A company is deemed unable to pay its debts if it fails to comply with a statutory demand, which constitutes grounds for winding-up under relevant provisions of the Companies Act.

(Enclosure 1 - Petition)

Introduction

[1] This is a winding-up petition presented by AmBank (M) Berhad ["the Petitioner"] against Top Builders Capital Berhad ["the Respondent"], a public limited company incorporated under the Companies Act 1965, now governed by the Companies Act 2016 (" CA 2016"). The Petition is premised on ss 464(1)(b), 465(1)(e), and 466(1)(a) of the 2016.

[2] The Petitioner seeks an order that the Respondent be wound up on the ground that it is unable to pay its debts, following its failure to comply with a statutory notice of demand issued under s 466(1)(a).

Factual Background

[3] The Respondent was indebted to the Petitioner under several banking facilities. The Petitioner obtained the following judgments:

• High Court Suit WA-22NCC-184-04/2022: Judgment dated 24 August 2022 for RM862,805.79 (HPA 1) and RM3,403,699.85 (HPA2), with interest and costs.

• Sessions Court Suit WA-B52NCC-36-01/2021: Consent Judgment dated 15 September 2023 for RM780,499.82 (HPA 3), with interest.

• High Court Suit WA-22NCC-376-06/2Q24: Judgment in Default dated 4 July 2024 for RM2,586,289.59, with interest and costs (BG Claim).

[4] On 30 July 2024, the Petitioner issued a Statutory Notice of Demand to the Respondent pursuant to s 466(1)(a) of the CA 2016. Service of the notice was made at the Respondent's registered address and duly acknowledged.

[5] The Respondent failed to pay or secure the total debt claimed or to compound the same to the reasonable satisfaction of the Petitioner within 21 days of service. The Petitioner accordingly filed this winding-up petition on 30 September 2024.

Issue Of Service

[6] At the hearing of the Petition, a Director of the Respondent Company appeared and claimed that he had not received the cause papers. However, this assertion was made orally and was not supported by any affidavit evidence.

[7] This Court must assess this claim against the documentary evidence on record. The Petitioner has filed several affidavits of service which confirm that all required procedural steps were duly complied with.

[8] First, encl 5 (Affidavit of Service) affirms that a sealed copy of the Petition was served on the Respondent at its registered address at No 35-1 & 37-1, Jalan PJU 1 A/41 B, Pusat Dagangan NZX, 47301 Petaiing Jaya, Selangor. This is the address recorded in the official company search from the Companies Commission of Malaysia (SSM). Service at the registered address constitutes proper service under r 25(1) of the Companies (Winding-Up) Rules 1972.

[9] Second, encl 7 (Memorandum of Advertisement and Gazetting) shows that the Petition was duly advertised in The New Straits Times and The Star on 16 and 17 October 2024, and published in the Government Gazette on 25 October 2024. This satisfies r 24 of the Companies (Winding-Up) Rules 1972, which requires notice of the petition to be published in a daily newspaper and the Gazette at least 7 clear days before the hearing date.

[10] Where proper service has been effected in accordance with the statutory rules, a mere oral claim of non-receipt is insufficient to rebut the presumption of proper service.

[11] Further, the Respondent has not filed any affidavit in opposition to the Petition, nor has it taken steps to challenge the validity of service procedurally. The absence of any timely objection further undermines the credibility of the Director's oral claim.

[12] In these circumstances, the Court finds that the Petition and all necessary documents were duly and properly served in accordance with the law.

Applicable Law And Analysis

[13] Section 466 (1)(a) CA 2016 provides that a company shall be deemed unable to pay its debts if it fails to comply wi