A creditor, including a contingent creditor, has the standing to file a winding-up petition under Section 464(1)(b) of the Companies Act 2016, regardless of disputed debts.

JUDGMENT

(Enclosure 18)

Nadzarin Wok Nordin JC:

Introduction

[1] In the Notice of Motion (Motion) at encl 18, the Respondent has applied pursuant to O 18 r 19(1)(a), (b) and/or (d) of the Rules of 2012 and/or the inherent of jurisdiction of the Court for inter alia that the Winding Up Petition (Petition) presented on 1 December 2021 be struck out.

[2] The brief grounds in support of the Motion are as follows:

(i) The Petitioner is not a creditor of the Respondent (the "Company") and therefore lacks the requisite locus standi to commence or maintain the Petition dated 1 December 2021 (the "Summons in Chambers");

(ii) The Petition and the Summons in Chambers were filed without proper authority or mandate;

(iii) The entire proceedings constitute an abuse of process;

(iv) The Petition, the Summons in Chambers and the resulting Ex Parte Order dated 7 January 2022 (the "Ex Parte Order") are in breach of the Interim Injunction Order dated 29 March 2018 (the "Interim Injunction Order") granted by the Kuala Lumpur High Court in Kuala Lumpur High Court Suit No WA-22NCC-352- 09/2017 (the "Main Suit"), hence procurement of the Petition, the Summons in Chambers and the Ex Parte Order are tainted with illegality;

(v) The alleged grounds of the Petition, that there is a purported risk of dissipation/siphoning of assets, are baseless and/or are entirely based on conjecture and/or are not premised on any proper evidence/or it lacks particulars that render it flawed and unsustainable. There is in fact no dissipation/siphoning out of assets and certainly no risk of the same;

(vi) The Company is not insolvent or in any case the Petition is unlikely to succeed;

(vii) The Petitioner has not come to this Court with clean hands and has not made full and frank disclosure and this action is tainted with mala tides and ulterior motives; and

(viii) Grave and irreparable damage will befall the Company should the Ex Parte Order not be set aside.

Background

[3] The Petitioner is the holder of Mining Certificate N.533 ("M.C. 533") for Part of Lot 6023 in the Mukim of Gali, District Raub, State of Pahang ("the Mining Land") measuring approximately 206,890 acres.

[4] The Petitioner and the Respondent entered into an agreement dated 18 February 2005 wherein the Petitioner granted the Respondent the sole and exclusive right to mine and extract gold and other minerals from the Mining Land ("the Mining Rights Agreement").

[5] The Petitioner also sub-let the Mining Land to the Respondent for a period of 3 July 207 to 16 August 2027 ("the Sublease"), a Sublease PN: 1/2007 was registered on 4 July 2007.

[6] Pursuant to cl 4.9 of the Mining Rights Agreement, the Respondent agrees to pay tribute to the Petitioner at an amount equal to 2% of the gross value of the gold extracted from primary gold deposits from the Mining Area and 6% of any other minerals extracted from the Mining Area and shall not need to pay tribute for tailings lying and stockpiled by the Respondent on the Mining Land.

[7] The Respondent had extracted gold from primary gold deposits for the period of December 2011 to December 2012. The Respondent alleges that it had made payment to the Petitioner in accordance with the Mining Rights Agreement on around 10 June 2013.

[8] In the years 2013-2014, the Respondent contends that it was not involve in the extraction of primary gold deposits.

[9] The Petitioner has subsequently filed a winding up petition against as well as obtained an ex-parte order dated 7 January 2022 to appoint an interim liquidator in Respondent Company.

[10] Thereafter the Respondent has filed this Motion (encl 18) to strike out the Petition.

[11] After hearing learned counsels for the parties submit on the Motion on 7 February 2022, this Court had reserved its decision to 11 March 2022 wherein I had dismissed the Motion with costs in the cause. The Respondent being dissatisfied with my decision has thereafter filed a Notice of Appeal on the same, and herewith are my written grounds.

Respondent's Submissions

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