Alasan Penghakiman GS 22-81-2007
DALAM MAHKAMAH TINGGI MALAYA DI MELAKA
GUAMAN NO. : 22-81-2007
ANTARA
5
AMALAN TEPAT SDN BHD
...PLAINTIF
(NO. SYARIKAT: 223294-D)
DAN
10
GUE SEE KIM
...DEFENDAN
(NO.K/P; 610524-04-5495)
GROUNDS OF JUDGMENT
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PLAINTIFF‘S CLAIM
[1]
The Plaintiff’s claims in the Statement of Claim are as follows:-
i)
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Plaintiff is a housing developer in a project named as A‘
Famosa De Agua Condominium;
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Alasan Penghakiman GS 22-81-2007
ii)
The Defendant is a purchaser of a unit in A‘ Famosa De Agua
Condominium;
iii)
On 25.11.2005 the Defendant filed an action against the
Plaintiff in the Session Court at Johore Bahru , Summon No.
5
No. 52-8057-2005 claiming interests over late delivery of
vacant posession based on Clause 22 of the Sales and
Purchase Agreement;
10
iv)
On 24.11.2006, the Defendant obtained a Summary
Judgment against the Plaintiff;
v)
On 15.2.2007, the Defendant filed a winding up petition
against the Plaintiff. On 19.3.2007, the Defendant advertised
the said petitition with malicious intent to force the Plaintiff to
15
pay the judgement sum which the Plaintiff disputed. The
Defendant’s action in filing the winding up petition is an abuse
of process which directly had negative impact and affected the
bussiness operation and reputation of the Plaintiff;
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vi)
The Plaintiff’s appeal against the judgment dated 24.11.2006
was allowed by the High Court on 3.5.2007 and the judgment
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Alasan Penghakiman GS 22-81-2007
was set aside. The Defendant withdrew the winding up petition
on 9.5.2007 with costs to be paid to the Plaintiff;
vii)
At all and or at the material times, the Defendant had no
reasonable grounds to file the winding up petition against the
5
Plaintiff and the Defendant‘s action was with malicious intent
to force the Plaintiff to pay an amount which the Plaintiff had
disputed. The Defendant had withdrawn the winding up
petitition, therefore, the Plaintiff has the right to claim damages
against the Defendant for malicious prosecution action against
10
the Defendant.;
viii)
The Defendant’s action in filing the winding up petition and
advertising the said petition had affected the Plaintiff’s
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business operation and the Plaintiff suferred damage and loss
including but not limited to-
a) Financing facilities given by the finacier had been
withdrawn;
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b) Loss of opportunity in applying for bank loan;
c) Loss of profit from potential buyers;
d) Loss of business opportunities; and
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Alasan Penghakiman GS 22-81-2007
e) Loss of reputation
ix)
As aresult of the Defendant’s action in filing the winding up
petition, the Plaintiff suferred loss of RM 428,800.00 from the
termination of the Sales and Purchase Agreement in the said
5
project;and
x)
Plaintiff claims damages of RM 428,800.00, General
Damages and Costs.
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DEFENDANT‘S DEFENCE AND COUNTER CLAIM
[2]
The defence can be summarised as follows;--
i)
There is no application to stay the execution of the judgment
dated 24.11.2006 and the Defendant has the right to proceed
15
with the action;
ii)
The Defendant admitted in filing the winding up petition but
denied the action had caused the Plaintiff to suffer loss and
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damage;
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Alasan Penghakiman GS 22-81-2007
iii)
If there is any damage and loss which are denied, the Plaintiff
had failed to mitigate the damage and loss;
iv)
The Defendant admitted in buying one of the unit in the
Plaintiff’s Codominium;
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v)
It was an agreed additional term that the Plaintiff will pay all
interest for progressive payment made by Defendant’s Bank
to purchase the unit of the condominium until vacant
posession is delivered to the Defendant;
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vi)
The Defendant had taken the loan from Malayan Banking
Berhad to purchase the said unit of the condominium;
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vii)
The Plaintiff had failed, refused and neglected in paying the
interests to Malayan Banking Berhad;
viii)
As a result of the Plaintiff’s failure to pay the interests to
Malayan Banking Berhad, the Defendant’s name had been
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black listed by finacial institutions.The Defendant failed to
secure loans from financial institutions. In the circumstaces,
the Defendant’s name and reputation was also affected.
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Alasan Penghakiman GS 22-81-2007
ix)
Further as a result, the Defendant’s business was affected
and causing him to loss his business opportunities when his
application for loan to finance the purchase of lands had been
rejected by the financial institutions;
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x)
The Defendant has suferred loss when he was forced to pay
the acrued interests of RM 26,972.94 to Resolution Alliances
Sdn Bhd (the Company which took over the non performing
loan from Malayan Banking Berhad);
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xi)
The Defendant claims against the Plaintiff the following
Damages and loss-
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a) RM 26,972.94;
b) Damages of RM 500,000 to be assessed for loss of
reputation
c) Damages for lost of profit of RM 2,000,000.00;
d) Exemplary Damages to be assessed; and
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e) Interests and Costs.
REPLY TO DEFENCE AND COUNTER CLAIM
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Alasan Penghakiman GS 22-81-2007
[3]
The Plaintiff denied the allegations in the Defendant’s Statement of
Defence and Counter Claim and stood by their allegations and claim in
the Statement of Claim.
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TRIAL
[4]
For purposes of this trial documents are marked as followsBundles of Pleading- “A“
Plaintiff’s Bundles of Documents-“B“
Additional Bundles of Documents-“C“
Defendant’s Bundles of Documents-“D“
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Issues to be Tried-“E“
Plaintiff’s case Summary-“F“
Defendant’s case Summary-“G“
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[5]
The Plaintiff called one witness who is Lee Huwen Chin,the Account
Manager of the Plaintiff (PW1). His witness statement during examination
in chief was read and marked as“WSP-1“.
[6]
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The Defendant is Gue See Kim, a contractor (DW1). His witness
statement during examination in chief was read and marked as“WSD-1“.
ISSUES TO BE TRIED
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Alasan Penghakiman GS 22-81-2007
[7]
After hearing oral testimonies from the Plaintiff and Defendant and
perusal of all the documents referred to during the trial, the issues to be
tried before this Court are as follows-
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1. Whether the winding up petition filed by the Defendant against
the Plaintiff is an abuse of process of Court;
2. Whether the winding up petition filed by the Defendant against
the Plaintiff as a whole is mala fide against the Plaintiff;
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3. Whether Plaintiff entitled to damages and loss
4. Whether the failure, refusal and negligent of the Plaintiff in not
paying the interests on progressive payment to Malayan Banking
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Berhad had caused the Defendant to be black listed and the
Defendant failed to secure loans from financial institutions and
has affected his business;
5. Whether Defendant entitled to damages and loss
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DECISION OF THE COURT
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Alasan Penghakiman GS 22-81-2007
[8]
The facts which are clearly not disputed are as follows:-
i)
On 25.11.2005 the Defendant filed an action in Summon No.
52-8057-2005
in the Session Court at Johore Bahru for
liquidated damages against the Plaintiff for failure to deliver
5
vacant posession in accordance with the Sales and Purchase
Agreement. In the process, the Defendant obtained a
summary judgment against the Plaintiff on
(seeCourt Order at page
24.11.2006
58 Defendant’s Bundles of
Documents “D“ and at page 20 Plaintiff’s Bundles of
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Documents“B“);
ii)
The Defendant then filed a winding up petition against the
Plaintiff Company under section 218 of Companies Act 1965
on 15.2.2007 (See the Petition at page 53 Defendant’s
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Bundles of Documents “D“ “ and at page 1A Plaintiff’s Bundles
of Documents “B“);
iii)
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Plaintiff filed in the Notice of Appeal on 4.12.2006 (see Notice
of Appeal at page 2 Plaintiff’s Additional Bundles of
Documents “C“);
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Alasan Penghakiman GS 22-81-2007
iv)
Plaintiff’s appeal in Civil No. MT4-12-180-2006 against the
Order of the Session Court dated 24.11.2006 was allowed by
the High Court on 3.5.2007 and the said Order was set aside
(see the letter dated 4.5.2007 via fax from Merss Tee &
Partners at page 1 Plaintiff’s Additional Bundles of
5
Documents“C“);
v)
The Plaintiff’s solicitor in their letter dated 7.5.2007 had
informed the Defendant that they will appear for the Plaintiff
during the hearing of the winding up petition on 9.5.2007( see
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page 66 Defendants Bundles of Documents “D“);
vi)
On 9.5.2007,the Defendant withdrew the winding up petition
with costs payable to the Plaintiff (see draft Order of the High
Court at page 26 Plaintiff’s Bundles of Documents “B“)
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Isues
Isue 1- Whether the winding up petition filed by the Defendant against the
Plaintiff is an abuse of process of Court
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Isue 2- Whether the winding up petition filed by the Defendant against
the Plaintiff as a whole is mala fide against the Plaintiff
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Alasan Penghakiman GS 22-81-2007
[9]
Both issues will be tried together because they are inter related and
my determination of the issues would be based on the same testimonies
and documentary evidence established during the trial.
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[10] In this case the judgment sum obtained in a summary judgment
aplication under Order 26A of the Rules of the Surbodinate Court 1980 on
24.11.2006 is 78,681.34 with interests of 8% per annum and with cost
RM 1,275.00.
10
[11] It is not disputed that from the time the winding up petition was filed
on 15.2.2007 and the service of the petition to the Plaintiff on 6.3.2007
until the date of the Defendant’s further demand for payment on
12.3.2007, (see page 208 Defendant’s Bundles of Documents “D“),
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Plaintiff had failed, refused and neglected the payment of the judgment
sum.
[12] Plaintiff‘s Notice of Appeal was filed on 4.12.2006. The stay of
execution of judgment filed by Plaintiff was heard on 2.4.2007 and later
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dismissed by the Court.
[13] It is trite law that appeal shall not aperate as a stay. Section 57 of
the Courts of Judicature Act 1964) says that “ No appeal shall operate
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Alasan Penghakiman GS 22-81-2007
as a stay of execution but the High Court or the Court of Appeal may
stay execution on any judgment on such terms as to the Court may
seem reasonable“
5
[14] In Abu Samah Bin Hj Wahab v Bukit Rambai Development
Sdn Bhd & Ors[2003] 4 MLJ 166 (High Court (Melaka) Low Hop Bing
J said that-
Stay of execution of judgment
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It is trite law that an appeal shall not operate as a stay of execution
or of proceedings under the decision appealed from unless the
court below or the Court of Appeal so orders and no intermediate
act or proceedings shall be invalidated except so far as the Court
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of Appeal may direct: s 73 of the Courts of Judicature Act 1964
(‘the CJA’).
In this context, the fact that the stay would result in the fruits of the
judgment being rendered nugatory is one of the factors to be
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considered (see Sarwari a/p Ainuddin v Abdul Aziz a/l Ainuddin
[2000] 5 MLJ 397).In granting a stay of execution of judgment, the
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Alasan Penghakiman GS 22-81-2007
court may have regard to s 57(1) of the CJA which where relevant
provides as follows:
Except in the cases mentioned subsection(3) and section 56A, no
5
appeal shall operate as a stay of execution, but the High Court or
the Court of Appeal may stay execution on any judgment, order …
pending appeal on such terms as to security for the payment of any
money or the performance or non-performance of any act … in the
judgment, order … as the Court may seem reasonable.“
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[15] In RHB Bank Bhb v. Pembinaan MCP Sdn Bhd, [2003] 5 CLJ
335, the petitioner, judgment creditor, therein filed a winding up petition
based on a summary judgment obtained against the respondent
company, judgment debtor. The respondent company had appealed
15
against the summary judgment. The respondent company objected to the
petition. One of the ground of objection was that the on inter- alia that the
respondent company had bona fide disputed the summary judgment and
there are merits in its appeal. The summary judgment was not stayed (see
pg 339 report @ pg 11 DBOA).His Lorship Low Hop Bing J, as he then
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was, opined at pg 342 (pg 14 DBA):-
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Alasan Penghakiman GS 22-81-2007
“There is high authority to support the principle that a judgment, be
it a judgment in default, summary judgment or a judgment obtained
after a full hearing, is nonetheless a good, enforceable and, valid
judgment unless and until it is set aside, or execution thereof has
5
been stayed: PembinaanKSY Sdn Bhd v. Lian Seng Properties Sdn
Bhd [1991] 1 CLJ 263; [1991] 1 CLJ (Rep) 343SC. A mere notice of
appeal against any such judgment cannot alter the validity of the
judgment so obtained, save and except where execution thereof has
been stayed. In the instant petition, the summary judgment has not
10
been stayed, notwithstanding the appeal filed by the JD against that
judgment.
[16] In this instance case, Plaintiff failed, refused and neglected the
payment of the judgment sum to the Defendant. The Plaintiff’s application
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for stay was dismissed. The amount was validly due from the date of
judgment 24.11.2006 until before it was set aside. The amounts has
become the Plaintiff’s debts. By failing, refusing and neglecting paying the
judgement debt, it is my opinion that the Plaintiff had acquiesced itself to
be “unable to pay its debts“.
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[17] Section 218 (1) (e) of the Companies Act, provides that the Court
may order a winding up if the company is unable to pay its debts. In
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Alasan Penghakiman GS 22-81-2007
section 218 (2), a company shall be deemed to be unable to pay its debts
amongst others, if the company neglected to pay the sum or to secure or
compound for it to the reasonable satisfaction of the creditior.
5
[18] Based on these facts and the provisions of section 218 of the Act,
the Defendant is clearly has the right to commence winding up petition
against the Plaintiff.
[19] The Plaintiff contended that the withdrawal of the winding up petition
10
with cost to the Plaintiff,the Defendant’s action is an abuse of process and
was with malicious intent to force the Plaintiff to pay an amount which the
Plaintiff disputed. I do not agree because in my opinion, the withdrawal of
the petition was anticipated because the Judgment dated 24.11.2006
which had formed the basis of the winding up petition was set aside on
15
3.5.2007. Moreover the withdrawal was only made on the 9.5.2007
whereas the petition had been filed much earlier on the 15.2.2007. The
petition has become academic. The fact that the judgment in this case
was set aside it does not make the winding up petititon filed by the
Defendant as invalid or an abuse of process or have malicious intent
20
against the Plaintiff.
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Alasan Penghakiman GS 22-81-2007
[20] I have noted that on 9.3.2007, Plaintiff’s solicitor wrote to the
Defendant’s solicitor stating inter alia , the Plaintiff’s application for stay of
execution was fixed 2.4.2007 and their appeal against the Session Court
Judge Order was fixed for hearing on 5.4.2007. The Plaintiff’s solicitor
5
requested that the petition be posphoned pending the hearing of its appeal
to avoid hardship to the Plaintiff. However the request was rejected by the
Defendant’s solicitor.At the same time the Plaintiff’s solicitor gave notice
that Plaintiff was able and willing to pay the whole judgment sum
considering the amount is smaller compared with the multi million dollars
10
status of the Plaintiff’s Company (see page 4 Plaintiff’s Additional Bundles
of Documents “C“).
[21] PW 1 in his evidence repeatedly said that the judgement sum was
disputed and the dispute is bona fide. The refusal of the Defendant to
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posphone the petition which was grounded on bona fide dispute, the
petition filed by the Defendant is an abuse of process and with malicious
intent against the Plaintiff.
[22] Plaintiff relied heavily on the case of Re Nima Travel Sdn Bhd Sun
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Soon Heng Coach Works Sdn Bhd v Nima Travel Sdn Bhd[1986] 2
MLJ 374, where SHANKAR J held-
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Alasan Penghakiman GS 22-81-2007
“There is a plethora of authorities to the effect that a winding-up
petition is not a legitimate means of seeking to enforce payment of
a debt which is bona fide disputed by the company (see Buckley,
supra at page 451 (a)).“
5
[23] In the above case it is noted that Shankar J was referring to “a debt
which is bona fide disputed by the company“.In this instance case, on the
facts before me whether the debt disputed by the Plaintiff is bona fide.
10
[24] SHANKAR J, further held that-
“On the facts before me I am satisfied that there is a bona fide
dispute as to whether there is a debt due from the respondent to the
petitioner and also the quantum of such debt. The proper course of
15
action for the plaintiff the moment they knew that their claim was
disputed, was to establish their debt by filing an action to have the
matter adjudicated upon in the usual way. If they were so convinced
of the strength of their case, they could have applied for summary
judgement. These steps could have been taken in February or
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March 1984 and by now the position may well have crystallised.“
[25] Analyzing the facts in that case, there isn’t any debt adjudicated by
Court in a normal action or in a summary judgement application.
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Alasan Penghakiman GS 22-81-2007
Therefore, based on the facts in that case, I totally agree that there is a
debt which is bona fide disputed by the company. However in this instance
case, it is very clear that there is a summary judgment adjudicated by the
Session Court.The facts can be distinguished.
5
[26] Further SHANKAR J held that-
“Whether or not a winding-up order is made is a discretionary matter.
Admittedly the defendant does appear to have some financial
10
problems but this alone is not conclusive. The other major creditor
of the respondent is opposed to the winding-up and there is no
evidence before me that the defendant is unable to pay the debt of
the plaintiff.
15
The passage in Buckley appear to indicate that the old practice was
for petitions founded on a disputed debt to be ordered to stand over
until the debt was established by action. The modern practice has
been to dismiss such petition unless of course the debt is not
disputed on some substantial grounds in which case the court could
20
decide on the petition and make the order.
The facts in this case indicate to my mind that there is a substantial
dispute here which should have been apparent to the petitioner at
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Alasan Penghakiman GS 22-81-2007
the very least when they received the respondent’s affidavit dated
June 16, 1984.
The continuation of the winding-up proceedings after they had that
5
knowledge, was not a permissible exercise of the process of this
court.“
[27] Applying the test that there must be evidence of inability to pay the
debt of the plaintiff in that case with the facts in this instance case, I found
10
the test does not apply because in this case the debt was established by
action and there was step taken by the Plaintiff to stay the execution. Even
after the stay was rejected, the Plaintiff failed, refused and neglected the
payment of the debt. When the winding up petition was served on the
Plaintiff, there was no affidavit to contest the petition to state the reason
15
why the debt is bona fide disputed by the company and its ability to pay
the debt. In the absence of such facts, the evidence by PW1 that the debt
is bona fide disputed is not fairly subtantiated. Plaintiff may argue that by
filing the Notice of Appeal and the notice in its letter dated 9.3.2007
notifying the Defendant that the debt is disputed by that appeal may well
20
be the reason but in my opinion it is not a good reason because the law is
trite that an appeal shall not operate as a stay of execution or of
proceedings under the decision appealed from.
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Alasan Penghakiman GS 22-81-2007
[28] In Chong Chee Yan v Golden Dragon Garden Sdn. Bhd [1999] 3
CLJ 151, Clement Skinner J ( now a Court of Appeal Judge) at page163
states that5
“ ....I find that the petitioner must have become aware that the debt
was being seriously disputed when he recieved Hashim’s affidavit
of 17 october 1998. To continue to invoke the winding-up jurisdiction
and prosecute this petition after becoming aware that the debt is
seriously disputed constitutes an abuse of process (lihat Mann &
10
Anor v Goldstein & Anor [1968] 2 ALL ER 768).“
[29] In Mann & Anor v Goldstein & Anor [1968] 2 ALL ER 768“...it is an abuse of the process of the court to prosecute a windingup application otherwise than in accordance with the legitimate
15
purpose of such process. The legitimate purpose of such process is
to wind-up a company on a ground specified in the Companies Act,
1948, which, so far as material to this case, is the ground that it is
unable to pay its debts“
[30] Chong Chee Yan’s case the debt was being seriously disputed
20
when he recieved Hashim’s affidavit of 17 october 1998 and Mann &
Anor’s case, the legitimate purpose of such process is to wind-up a
company on ground that it is unable to pay its debts“. Mann & Anor’s
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Alasan Penghakiman GS 22-81-2007
case applied to the Defendant in this instance case. The facts in Chong
Chee Yan’s case was not the same with the Plaintiff’s case.
Analysis
5
[31] The facts of the case gathered from the oral as well as the
documentary evidence are as follows-
10
i)
Judgement dated 24.11.2006.
ii)
Notice of Appeal filed on 4.12.2006.
iii)
Notice under S.218 Companies Act was sent by post to the
Plaintiff on 22.1.2007 and personal service on 6.2.2007.
iv)
Winding up petition filed on 15.2.2007.
v)
Petition was served on 6.3.2007
vi)
On 9.3.2007 Plaintiff request for posphonement of the petition
pending hearing of appeal on 5.4.2007.
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vii)
On 12.3.2007, Defendant’s solicitor continue demanded
payment of RM78,681.34.
viii)
Petition was advertised under the requirement of Companies
Rules on 19.3.2007
20
ix)
Application for Stay of Execution was fixed on 2.4.2007 and
was dismissed by Court
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Alasan Penghakiman GS 22-81-2007
x)
The Plaintiff’s appeal was allowed by the High Court on
3.5.2007.
xi)
On 7.5.2007 Plaintiff’s solicitor gave notice of attendace for
hearing of the petition
5
xii)
On 9.5.2007 the petition was heard and the Defendant
withdrew the Petition with Cost payable to the Plaintiff.
[32] It is not disputed that from the date of 12.3.2007 and the date the
petition was advertised on 19.3.2007, Plaintiff had not paid the judgement
10
sum to the Defendant.
[33] It is also noted that from the date of judgement on 24.11.2006 to the
date of filing of the Notice of Appeal on 4.12.2006, Plaintiff had not paid
the judgement sum to the Defendant.
15
[34] It can also be seen that from the date the Notice under S.218 of the
Companies Act was served personally on the Plaintiff on 6.2.2007 to the
date the petition was served on the Plaintiff on 6.3.2007, Plaintiff had not
paid the judgement sum to the Defendant.
20
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Alasan Penghakiman GS 22-81-2007
[35] Application for stay of execution was fixed on 2.4.2007 and DW1
confirmed that the stay application was dismissed by the Court. The
Judgement dated 24.11.2006 was eventually set aside on 3.5.2007.
5
[36] The notice given by the Plaintiff in its letter dated 9.3.2007 of its
ability to pay the judgement sum to the Defendant was a mere notice and
it was never performed by the Plaintiff neither the Plaintiff replied to the
winding up petition.
10
[37] Based on these facts, and the existent of a valid judgement obtained
in a summary judgment against the Plaintiff, I am of the view that the
evidence by PW1 that the debt amount is bona fide disputed by the
Plaintiff’s Company is not accepted but rather an appeal against the
decision of the Session Court Judge in a normal appeal process.
15
Therefore it is my finding that the winding up petition filed by the Defendant
is not an abuse of Court’s process. Re Nima Travel Sdn Bhd‘ case
andChong Chee Yan’s case do not apply to the Plaintiff’s case.
[38] The Plaintiff’s solicitor referred this Court the case of Maril20
Rionebel (M) Sdn Bhd & Anor v Perdana Merchant Bankers Bhd &
Other Appeals [2001] 3 CLJ 248, where Gopal Sri Ram JCA was the
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Alasan Penghakiman GS 22-81-2007
opinion that winding up petition is not an execution. At page 260, his
Lordships decision states that-
“ But a petition for winding-up is not execution. For a winding-up
5
petition is not based upon any judgment of a court. Normally, it is
based on the inability of a company to pay its debts as and when
they fall due“
[39] While I agree with that case that for a winding-up petition it is based
10
on the inability of a company to pay its debts as and when they fall due, I
am more inclined to follow the case of Bank Utama (Malaysia) Bhd v.
GKM Amal Bhd [2000] 2 CLJ 525, because the facts are similar with our
present case. The respondent in this case argued that since the appeal
had not been heard by the Court of Appeal, the debt is still disputed and
15
the debt cannot become the basis of the winding up petition. Abdul Aziz
Mohamad J (as he then was) was of the opinion at page 528 as follows :-
“A debt is not a disputed debt in that context simply because the
respondent maintains that he disputes the debt. A judgment on the
20
debt established in law that there is no bona fide dispute as to the
debt. The judgment is good until it is set aside on appeal, and it is
enforceable unless a stay has been granted. The facts that the
24
Alasan Penghakiman GS 22-81-2007
debtor has lodged an appeal against the judgment merely means
that he still disputes the debt but does not establish that the debt is
bona fide disputed. The judgment has already established the
contrary.”
5
[40] I am of the opinion that the Plaintiff as a multi million dollar Company
as it percieved to be should be in a position to at least deposit the
judgement sum in Court while pursuing its appeal to the High Court at the
time the petition was served on it on 6.3.2007 or after its application to
10
stay execution was dismissed by the Court.
[41] By failing, refusing or neglecting to pay the judgement debt, the
Plaintiff had acquiesced itself to be unable to pay its debts and was caught
under the provisions of section 218 of the Companies Act.
15
[42] The Plaintiff had accepted service of the winding up petition and
confirmed its attendance on the hearing of the petition and there is no
reply in the form of affidavit evidence to challenge the petition by giving its
reasons as admitted by PW1, the Plaintiff had directly submitting itself to
20
the jurisdiction of the winding up Court, therefore I am also of the opinion
that the Plaintiff is precluded from raising an arguement that the winding
25
Alasan Penghakiman GS 22-81-2007
up petition is an abuse of process and mala fide against the Plaintiff. It is
my opinion also that the withdrawal of the petition is a separate matter.
[43] The mere request by the Plaintiff to the Defendant to posphone the
5
petition pending appeal, in my opinion is not a good ground and cannot
constitute knowledge on the part of the Defendant that Plaintiff had bona
fide dispute as to the debt. Therefore the submission of the Plaintiff’s
solicitor that the Defendant had acted unreasonably or with malicious
intent is without merit.
10
[44] It is trite law that the judgement is always presumed to be a valid
and regular judgment until set aside.
[45] It is my finding that the Defendant was exercising his right under the
15
law to file the winding up petition. In Bright Rims Manufacturing Sdn
Bhd v. Victor Taichung Machinery Morks Co Ltd & Anor [2007] 4 CLJ
230, the Court of Appeal at page 249 held that “the 1st respondent had
every right to file the said winding up petition on 17 August 2000 to wind
up the appellant based upon the said summary judgment awarded against
20
the appellant by Haidar Mohd Noor J on 21 April 1997. The said summary
judgment was clearly a final judgment.”
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Alasan Penghakiman GS 22-81-2007
[46] It is my finding that the filing of the winding up petition is not mala
fide or with malicious intent. Therefore there cannot be a malicious
prosecution by the Defendant as alleged by the Plaintiff.
5
[47] The Defendant had testified that he is not well verse or has no
knowledge on matters of the law. He has left the matter (filing of the
petition) in the hands of his then solicitors. His then solicitors had perused
the petition diligently and advertised the said petition as requiredunder
rule 24 of the Companies (Winding-Up) Rules 1972. Pursuing one’s legal
10
right alone cannot amount to malicious prosecution. The hold otherwise
means that any attempt by any person to pursue his legal rights i.e. filing
a suit, enforcing a judgment or attempt to recover judgment sum would
amount to malicious prosecution. This cannot be the law. (see rule 24,
the Companies (Winding-Up) Rules 1972)
15
[48] The Plaintiff must prove that the Defendant had acted maliciously.
No evidence was tendered to shows that the Defendant had acted
maliciously or with malicious intent in filing the winding up petition. No
evidence was tendered to show that the Defendant had no good reason
20
for filing the petition. No evidence was also tendered to show that the
Defendant was motivated by malice.
27
Alasan Penghakiman GS 22-81-2007
[49] In Tetuan Bee Ling & Co v Vijendran Ponniah [2010] 6 CLJ 643,
(pgs 68-105 DBOA), a Court of Appeal case, the respondent claimed
against the appellant for civil malicious prosecution and abuse of court
process in filing a bankruptcy proceeding against the respondent. In his
5
judgment, his Lordship Sulaiman Daud HMR at pg 653 (pg 78 of DBOA)
quoted Cleasby B in Johnson v. Emerson and Sparrow [1871] LR 6 Ex
329:-
“I apprehend that, if three things concur, the person prosecuting the
10
proceedings is liable to an action. First, if the proceeding be really
without foundation; and this must be evidenced by proceedings
have finally terminated in favour of the plaintiff, whether the
proceedings be in bankruptcy or by indictment (see Whitworth v.
Hall (2B. & Ad. 695 at p. 698), where it is said that actions for
15
malicious prosecutions, malicious arrest, and taking bankruptcy
proceedings, stand upon the same foundation). Secondly, the
proceedings must have been taken without reasonable and
probable cause. And thirdly, lest persons should be deterred, by fear
of the consequences, from enforcing the law with dispatch upon
20
bona fide suspicion, before a man can be made responsible it must
be shewn that, in taking the proceeding, he was actuated by malice
or by some bad motive.”
28
Alasan Penghakiman GS 22-81-2007
Further at pg 655 (pg. 80 DBOA) His Lordship quoted Slade LJ in
Radivojevic v. LR Industries Ltd [1984] Transcript 514, as follows:-
5
“The authorities seem to show that where a bankruptcy petition has
been presented maliciously and without reasonable and probable
cause, an action will lie against the petitioning creditor, provided that
the petition has been dismissed or the adjudication annulled. Malice
in this context I take to mean improper or wrongful motive of some
10
kind.
Want of reasonable and probable cause I take to mean want of
genuine belief, based on reasonable grounds, that there was good
grounds in law for presenting the bankruptcy petition at the time
15
when it was presented, upon an alleged act of bankruptcy. I take
this from the judgments in Johnson v. Emerson and Sparrow Vol 6
Exchequer Cases 1870-1871 329 at p 345 per Baron Cleasby at
page 375 per Baron Martin and at page 391 per Chief Baron Kelly.
20
I would emphasise that malice and lack of reasonable and probable
cause are quite separate and distant ingredients of the tort, both of
which have to be proved...”
29
Alasan Penghakiman GS 22-81-2007
[50] His Lordship at pg 656 (pg 81 DBOA) concluded that 4 elements
need to be prove:-
5
(i)
the bankruptcy proceeding has been commenced.
(ii)
the proceedings have finally terminated in favour of the person
the proceedings commenced against.
(iii)
the proceedings was commenced without reasonable and
probable cause.
10
(iv)
the proceedings was actuated by malice.
[51] From the facts, the Plaintiff had failed to proof 3 of the element.
(v)
Firstly, the winding up petition was never terminated in favour
of the plaintiff. A perusal of the draft in pg 26-27 of Bundle B
15
shows that the plaintiff was represented by Messrs Tee &
Partners. The said petition was withdrawn by the defendant
with the consent or without objection of the plaintiff.
20
(vi)
When the defendant filed the petition, the summary judgment
was valid. Being a judgment creditor, the defendant had all the
reasonable and probable cause to file the petition; and
30
Alasan Penghakiman GS 22-81-2007
(vii) There was no malice on part of the defendant. The Defendant
testified that he has left the matter to his solicitors. No
evidence was tendered to show any malice on part of the
defendant. The Defendant was merely exercising his legal
5
rights.
[52] Based on my analysis both issues are answered in the negative.
10
Isue 3- Whether the Plaintiff is entitled to damages
[53] I have decided that the answer to the above issues are answered in
the negative. For the sake of completeness and if the answer to the above
issues are in the positive manner,whether the Plaintiff is entitled to
damages.
15
[54] Damages and loss must be proved.
[55] The Plaintiff prays for the following damages and relief-
20
i)
Financial facilities given by finaciers had been withdrawn;
ii)
Loss of opportunities to secure bank loans;
iii)
Loss of profit from potential buyers;
31
Alasan Penghakiman GS 22-81-2007
iv)
Loss of business opportunities; and
v)
Loss of reputation
xi)
As a result of the winding up petition, Plaintiff sufferred loss
of RM 428,800.00 from termination of Sales and Purchase
Agreement by the purchasers;
5
xii)
Plaintiff claims for loss of RM 428,800.00, General Damages
and Costs.
[56] There are no evidence to support the loss as prayed in prayers at
10
paragraph (i) to (v) above and they are speculative in nature. However the
Plaintiff submitted the case of Constrajaya Sdn Bhd v Johor Coastal
Defelopment Sdn. Bhd [2002] 6 CLJ 92 where Zulkifli Ahmad
Makinuddin (now CJ Malaya) recognised the seriousness effect on
reputation and business when a creditor is presented with a winding up
15
petition against a company.
[57] After reading that case carefully, the facts in that case can be
distinguished on grounds that the decision arrived by the learned judge
was in respect of the failure of the petitioner to observe the strict provisions
in the Companies Act. In that case the stay application had been granted
20
to suspend execution pending the disposal of the appeal. It was held that-
32
Alasan Penghakiman GS 22-81-2007
“Since the winding-up petition was based on a judgment sum and
the Court of Appeal had granted a stay pending disposal of the
appeal, the petitioner lost the right to continue or maintain the action.
His persistence in maintaining the said petition despite the stay
5
order amounted to a contemptuous act and an abuse of process. (p
95 f-g)
[3] A High Court judgment which is subject of an appeal cannot be
regarded as a final judgment. As the petitioner had knowledge
through the respondent's affidavit that there was a bona fide dispute
10
as to the debt, it should not be allowed to continue the winding-up
proceedings.(p 96 a-c)
[4] If the petitioner's application to stay the petition was granted,
then under s. 223 read together with s. 219(2) of the Companies Act
1965 the respondent's business transactions and developments
15
would come to a stand still. This was unjustified, especially as the
respondent had obtained a stay from the Court of Appeal. (p 97 eg)
33
Alasan Penghakiman GS 22-81-2007
[58] Therefore the facts are different with our present case and Kang
Hwee Gee J (as he was then) had given his Lordships decision based
on the following reasons“[1] The defendant did not indicate anywhere that he was not
going to serve the s. 218 notice with a view to commence winding
up of the plaintiff. Further, he had also not replied to the plaintiff's
letter seeking a confirmation from the defendant that he will not
5
serve the s. 218 notice on the plaintiff pending its payment into
court of the judgment sum. Neither did the defendant deny in his
affidavit that he would serve a s. 218 notice and commence a
winding up proceeding against the plaintiff. (p 548 d-e)
[1a] It was therefore legitimate for the plaintiff to assume that its
10
right to operate its banking business was being threatened by
the likelihood of the commencement of a winding up proceeding
that could have adversely affected its operation as a bank. That
threat was sufficient for the plaintiff to apply for the injunctive
relief. (p 548 f)
15
[2] The plaintiff was not insolvent. The fact that it had committed
itself to deposit the judgment sum pending the decision of the
court on its application to set aside the judgment in default,
34
Alasan Penghakiman GS 22-81-2007
reinforces its capability to pay its debts. A company that has
proven itself to be commercially solvent, has the right to protect
itself from being disturbed by a creditors' petition to wind it up. If
it could be determined that the petition is bound to fail, an
injunction will lie. (pp 549 g & 550 h-i)”
5
[59] Similarly in our present case the Plaintiff boasted itself as a multi
million dollar company and gave notice to the Defendant that the Plaintif
is able to pay the judgement debt as appeared in its letter dated 9.3.2007
10
but it never shown its capability to pay or deposit the money to prove itself
to be commercially solvent. Therefore the facts is different.
[60] Plaintiff claims for loss of RM 428,800.00 from the termination of
Sales and Purchase Agreement by the purchasers of properties in its
15
project.
[61] Sales and Purchase Agreements referred to by the Plaintiff can be
found at pages 28-47 between the Plaintiff and Lim Boon Kiong & Chia
Lee Ping (RM 187,900) and at pages 49-67 between Plaintiff and Lim
20
Cheo Tee (RM 240,900) Plaintiff’s Bundles of Documents “B“. Total prices
for 2 houses is RM 428,800.
35
Alasan Penghakiman GS 22-81-2007
[62] It is the evidence of PW 1 during the cross examination that both
agreements are signed by the respective house buyers. However both
agreements had been terminated. PW 1 had also testified that no reasons
were given for the termination. During the re-examination, PW1 said
5
though the agreements were signed the agreements were not complete
because the balance 90% of the purchase price was not paid. When
asked further, he said the purchasers refuse to proceed with the
agreements because there is a winding up petition against the Plaintiff
and the possibility that they might not get the title of the properties
10
transferred to them.
[63] It is hard to accept PW1 evidence. His evidence only referred to two
particular purchasers. There are many other purchasers who have had no
problem continuing with the agreements. For the two cases, why should
15
they terminate the agreements after they have paid 10% of the purchase
price. I can accept termination of the agreements on the ground that
house buyers failed to settle the balance 90% of purchase price because
such term is provided in the agreements. However Plaintiff failed to call
the said house buyers as witnesses to corroborate PW1 evidence that
20
termination of agreements is due to winding up petition against the
Plaintiff. There is also no evidence
36
on the additional cost of RM
Alasan Penghakiman GS 22-81-2007
100,000.00 (RM 50,000.00 per unit) incurred by the Plaintiff for the resale
of the two houses.
[64] The claim for loss of business during the period from Mac-Mei 2007
5
is also not supported by evidence and therefore it is rejected.
[65] Lord Goddard in the case of Bonham-Carter v Hyde Park Hotel
[1948] WN 89 followed by Thomson CJ in the case of Lee Sau Kong v
Leow Cheng Chiang [1960] 1 LNS 56; [1961] MLJ 17had stated as
10
follows-
“Plaintiff must understand that if they bring actions for damages it is
for them to prove their damages; it is not enough to write down the
particulars, and so to speak, throw them at the head of the court,
15
saying, this is what I have lost, I ask you to give me these damages’.
They have to prove it.“
[66] The Plaintiff referred the Court to Saman Pemula MT 1-24-2692005, (Plaintiff’s Bundles of Documents“B“), which relate to the dispute
20
between the Plaintiffs and the First Defendant (Plaintiff in this case) and
house buyers of A‘ Famosa Villa De Agua Condominium (see page 6980). The action in that suit is in respect an order of injunction to stop the
37
Alasan Penghakiman GS 22-81-2007
First Defendant (Plaintiff) from going into voluntary liquidation or from
taking any other action that may threaten the completeness of the said
project. By referring this document, what the Plaintiff trying to prove is that
there are some disturbances during that period that have affected the
5
business, banking facilities, loss of profits, loss of potential buyers and
loss of reputation of the Plaintiff.However, PW1 admitted that the
Defendant‘ name was not in the list as one of the house buyers in that suit
who took action against the Plaintiff. Therefore the evidence is irrelevant
against the Defendant.
10
[67]
Based on the evidence before this Court, on the balance of
probabilities, Plaintiff has failed to prove the claim for damage and loss.
[68]
15
Plaintiff’s claim is dismissed.
Defendant’s Counter Claim
Isue 4- Whether the failure, refusal and negligent of the Plaintiff in
not paying the interests on progressive payment to Malayan Banking
Berhad had caused the Defendant to be black listed and the
Defendant failed to secure loans from financial institutions and has
20
affected his business
38
Alasan Penghakiman GS 22-81-2007
[69] It is not disputed that the Defendant bought a unit at Plaintiff’s
condominium. It was an agreed additional terms that Plaintiff will pay all
interests on progressive payment to the bank which finance the purchase
of the Defendant’s unit property until handing over of vacant posession.
5
[70] Plaintiff took loan from Malayan Banking Berhad and Plaintiff had
failed to service the interest on progressive payment to Malayan Banking
Berhad.
10
[71] As a result, the Defendant’s name as the borrower has been black
listed by financial institutions and the Defendant fails to secure loans from
financial institutions. Defendant also sufferred loss of reputation.
[72] The document at page 21A Defendant’s Bundles of Documents “D“,
15
says that the Plaintiff agreed to pay all acrued interests on the progressive
payment of 90% paid by the bank for the Defendant to the Plaintiff. This
letter also says that the Defendant need only to pay 10% of the purchase
price and wait until delivery of vacant poseesion. The principal payment
will commence after delivery of vacant posession. However this
20
agreement is subject to terms and conditions that the financier of the unit
property must come from the Plaintiff’s panel bank. The Defendant agreed
39
Alasan Penghakiman GS 22-81-2007
with the terms and conditions and put his signature on the same letter at
page 21A.
[73] At page 22 in the Defendant Bundles of Documents “D“, Defendant
5
recieved letter of offer from the Plaintiff’s panel bank i.e. the Pacific Bank
for the amount of RM 138,000.00 to finance the purchase of unit B1/D/223, Block 1, A‘ Famosa Villa de Agua Condominium. Despite the offer from
the Facific Bank, the evidence shows that the housing loan was taken
from Malayan Banking Berhad. Since then the Defendant never paid the
10
interest on progressive payment to Malayan Banking Berhad. It is PW1
evidence that Malayan Banking Berhad is not from the pools of Plaintiff’s
panel bank. Facific Bank Berhad is the Plaintiff‘s panel bank. However it
is disputed by the DW1 because according to him there is no letter from
the developer.
15
[74] I rejected the Defendant’s dispute because there is no dispute by
virtue of the terms and conditions which the Defendant has agreed. It is
very clear in letters at page 21A and 22 that interests on progressive
payment will be paid by the Plaintiff on condition the loan is managed by
20
the Plaintiff’s participating bank.Since the Defendant’s bank is Malayan
Banking Berhad and it is not a participating bank in the Plaintiff‘s project,
40
Alasan Penghakiman GS 22-81-2007
the agreement to pay interests on the progressive payment does not apply
to Malayan Banking Berhad.
[75] DW1 in his evidence states that vacant posession of the unit
5
property was delivered sometimes in August 2004. He did not know and
do anything on the said unit property including taking the key of the unit
property from the Plaintiff and ascertained the bank statement regarding
interests payment and he even not remember the first progressive
payment made by the bank. The evidence of DW1 shows he is
10
irresponsible and unreasonable in his action. I find his evidence cannot
be tolerated, thus not accepted
[76] On 11.8.2004, Plaintiff offered a ‘package deal‘ with the Defendant
for the Defendant to agree not to file any claim for liquidated damages for
15
the late delivery of vacant posession.Vacant posession of the Defendant’s
Unit was supposed to be delivered on 4.2.2000. The Defendant agreed to
accept the packet deal including agreeing to regularise the progressive
payment according to Schedule of Payment (Third Schedule) of the Sales
and Purchase Agreement. Both agreed that the Plaintiff must complete
20
the project within the period of 24 months (see page 32 Defendant
Bundles of Documents “‘D“).
41
Alasan Penghakiman GS 22-81-2007
[77] Despite there was agreement not to claim for liquidated damages
by the Defendant against the Plaintiff, the Defendant proceeded to file a
suit against the Plaintiff for liquidated damages for late delivery of the
property on 24.11.2005. The civil action is No. 52-8057-2005 and the the
5
Defendant obtained judgement for RM 78,681.34 against the Plaintiff.
Eventually the judgement was set aside on appeal on 3.5.2007.
[78] I found there is no evidence on what happened after the judgment
was set aside. However not surprisingly at page 70 of Defendant’s
10
Bundles of Documents“D“, the Defendant Unit house was advertised for
auction on 22.9.2010. I conclude that the payment to the bank was not
made according to the schedule resulting in Resolution Alliance Sdn. Bhd
which took over the non performing loan from Malayan Banking Berhad
took action to auction of the property to recover the loan.
15
[79] Before the date of auction, i.e. on 21.9.2010, Resolution Alliance
Sdn. Bhd offered the Defendant a scheme of settlement to suspend the
auction by Defendant paying six monthly instalments for the pincipal
amount and one lump sum for payment on interests for progressive
20
payment. (See page 79 Defendant’s Bundles of Ducuments“D“).
Payments were made through 6 cheques and on record, all payments had
been paid according to the scheme of settlement in October 2010 andon
42
Alasan Penghakiman GS 22-81-2007
22.3.2011 (see. pages 80 and 81 Defendant’s Bundles of Documents“D“.
There is no evidence after the payments were made and I believe the
auction was called off.
5
Black listed
[80]
DW 1 said the Defendant’s name was blacklisted and the
Defendant failed to secure loans from financial institutions. Through out
the trial there is no evidence tendered to show that the Defendant had
applied for loans and it has been rejected on ground the Defendant is
10
black listed. Therefore the allegations by the Defendant at paragraphs 19,
20 and 21 of the Counter Claim is not proven and without basis.
[81]
I have read through the Defendant’s documents (Defendant’s
Bundles of Documents“D“) and found 1 particular letter from ORIX at page
15
78 to require the Defendant to fax a full settlement/release letter to CTOS
and another letter from Resolution Alliance Sdn Bhd dated 25.11.2011 at
page 77 to Maybank Berhad to ‘update‘ the account status of the
Defendant in their record system C-CRIS because the Defendant had fully
settled his account.These 2 letters did not mean anything and these letters
20
do not prove that the financial institutions had rejected his loan application.
43
Alasan Penghakiman GS 22-81-2007
[82]
Based on the entire facts, it is my finding that the issue that the
Plaintiff had breached the agreement to pay the interest for progressive
payments to Malayan Banking Berhad does not arise.The agreement to
pay only apply to the Plaintiff participating bank i.e the Pacific Bank.
5
[83]
It is my finding that the Defendant had failed to service his loans
with Malayan Banking Berhad resulting in Resolution Alliance Sdn Bhd
took action against the Defendant. The Defendant’s indebtedness to the
bank had resulted in his name being listed in the CTOS and C-CRIS
10
system of Malayan Banking Berhad.
[84]
Based on these facts and reasons given above, isue 4 is answered
in the negative and the Defendant’s counter claim is dismissed.
15
Isue5- Whether the Defendant is entitled to damages
[85] For purposes of this judgment and for the sake of completeness, if
issue 4 is answered in positive manner whether the Defendant had proven
the loss and damage.
20
[86] Firstly, my finding is that the interest payment of RM 26,972.94 is
not a loss caused by the Plaintiff to the Defendant because the amount
has always been part of the Defendant‘s obligation to pay Malayan
44
Alasan Penghakiman GS 22-81-2007
Bangking Berhad under the loan agreement with the bank to finance the
purchase of his unit property from the Plaintiff. (see pages 79, 80 and 81
Defendant’s Bundles of Documents “D“).
5
[87] Secondly, the claim for loss of profit amounting to RM 2,000,000.00
is totally without basis and supporting evidence. What the Defendant was
trying to prove in this case is by referring to a tender letter at pages 83107,Defendant’s Bundles of Documents “D“ for “Cadangan Membina Satu
Unit Gudang di Pasir Gudang Johor bernilai RM 8,787,517.27“. This
10
document is very vague without clearly stating to whom the letter was
adressed to. This letter in my opinion, does not prove anything and if it is
to be used to show the Defendant lost the project because he could not
get the financial support from financial institutions, there is no evidence
that applications for financing has been made and was rejected on
15
grounds that the Defendant is black listed.
[88] Thirdly, the Defendant referred to Sales and Purchase Agreements
(S&P) of shop lot at Mukim Senai, Kulai Johor of RM 200,000 between
Defendant’s Company and Low May Kiew/ Teo Wan Inn at pages 10820
122, S&P with Lee Kwan Fat & Fan Yok Mooi for shop lot at Batu Pahat,
Johor of RM 110,000 at pages 125-137. S&P with Michael Leong Kai
Cheong & Hee Yau Choon for vacant land at Plentong, Johor with the
45
Alasan Penghakiman GS 22-81-2007
value of RM 2,221,560.00 at pages 136-149. These documents in my view
are not relevant because all the S&Ps will show that the Defendant is the
vendor selling his properties to the named buyers, therefore the issue of
loss is non issue or very remote. Unless the Defendant is saying that he
5
sold the properties at under value, yet there is no evidence to support
such loss.
[89] Fourthly, at pages 150-190, the Defendant produced Sales and
Purchase Agreements (S&P) between him as buyer with Eshah bte Hasan
10
for vacant land with the value of RM 75,000 in Sedili, Johor, with Chang
Lee Moy for shop office in Larkin Perdana for the value of RM 76, 000 and
with Sumisuan Bin Sulaiman for vacant land for the value of RM 450,000.
These documents in my view are also not relevant because all the S&Ps
will show that the Defendant is the buyer of those properties. The
15
documents do not prove anything. Again, therefore the issue of loss is non
issue or very remote. Unless the Defendant is saying that he terminated
the agreement because he could not secure the financier to finance the
purchase of those properties on ground of his status as ‘black listed“, yet
there is no evidence to show application for financing has ever been made
20
and was rejected.
46
Alasan Penghakiman GS 22-81-2007
[90] Based on these facts the Defendant has failed to prove the claim for
loss of RM 2,000,000.
[91] Finally, the Defendant claim for damages for RM 500,000 to be
5
assessed as loss of reputation. There is nothing before the Court to prove
that such damages should be given. Loss of reputation could have been
ocassioned by him being black listed by the bank or financial institutions
because it derived from the failure of Plaintiff to service the interest on
progressive payments with the bank. I have ruled that the agreement to
10
pay the interests to non participating bank does not apply to the
Defendant. The Defendant had acquiesced himself to be unable to pay its
debts, therefore the bank or the creditor has the right to protect
themselved including taking steps to black list the Defendant. Therefore it
has nothing to do with the Plaintiff.The claim for damages for loss of
15
reputation is not proven and rejected.
[92] From the entire facts, the Defendant has not proven all the claims
as prayed for in his counter claim including the claim for exemplary
damages.
20
Conclusion
47
Alasan Penghakiman GS 22-81-2007
[93] The Plaintiff’s Claim is dismissed and the Defendant’s Counter
Claim claim is also dismissed. Each Party bears their own Cost.
5
Date:
2 August 2013
10
15
20
SOLICITORS
Tetuan R.Y Nanthan & Partners (R Yoganathan and K.C. Wong with him)
48
Alasan Penghakiman GS 22-81-2007
for the Plaintiffs
Tetuan Halim Hong & Quek (C.H. Wang) for the Defendants
LEGISLATION
5
Section 57 of the Courts of Judicature Act 1964[Act 91]
Companies Act 1965
Companies (Winding-Up) Rules 1972
CASES REFERRED
10
1.
Abu Samah Bin Hj. Wahab v Bukit Rambai Development Sdn
Bhd & Ors [2003] 4 MLJ 166
2.
Re Nima Travel Sdn Bhd Sun Soon Heng Coach Works Sdn Bhd
v Nima Travel Sdn Bhd[1986] 2 MLJ 374
15
3.
RHB Bank Bhb v. Pembinaan MCP Sdn Bhd, [2003] 5 CLJ 335
4.
Chong Chee Yan v Golden Dragon Garden Sdn. Bhd [1999] 3
CLJ 151
20
5.
Mann & Anor v Goldstein & Anor [1968] 2 ALL ER 768
49
Alasan Penghakiman GS 22-81-2007
6.
Maril-Rionebel (M) Sdn Bhd & Anor v Perdana Merchant Bankers
Bhd & Other Appeals [2001] 3 CLJ 248
7.
Bank Utama (Malaysia) Bhd v. GKM Amal Bhd [2000] 2 CLJ 525
8.
Bright Rims Manufacturing Sdn Bhd v. Victor Taichung
5
Machinery Morks Co Ltd & Anor [2007] 4 CLJ 230
9.
Tetuan Bee Ling & Co v Vijendran Ponniah [2010] 6 CLJ 643,
10.
Constrajaya Sdn Bhd v Johor Coastal Defelopment Sdn. Bhd
10
[2002] 6 CLJ 92
11.
RHB Bank Bhd V. Gunasingam Ramasingam [2002] 5 CLJ 544
12.
Bonham-Carter v Hyde Park Hotel [1948] WN 89
13.
Lee Sau Kong v Leow Cheng Chiang [1960] 1 LNS 56; [1961]
15
MLJ 17
50