Winding up proceedings under the Companies Act 2016 must be commenced by petition only, not convertible to writ actions, emphasizing regulatory frameworks for expeditious handling.

JUDGMENT

(Enclosures 1 & 18)

Nadzarin Wok Nordin JC:

[1] There is before this court an application by the Petitioner, Yew Sheng Lin (Petitioner) being encl 18 (Application) for inter alia the Winding Up Petition (Petition) dated 5 August 2020 to be continued as if the cause had been begun by a Writ and the pleadings shall be delivered or that any Petition and/or affidavits shall stand as pleadings pursuant to O 28 r 8 of the Rules of 2012 (RC 2012) and O 92 r 4 of Rules of 2012.

[2] Amongst the grounds relied on for the Application is that:

(i) the affidavits of both parties filed in the Petition clearly shows the conflict of evidence and dispute of material facts which requires further inquiry by the court through a full trial;

(ii) issues that need to be addressed in the Petition and the affidavits require the hearing of oral evidence and cross examination of witnesses for both parties;

(iii) there are serious allegations made in that there are, among others, allegations of misappropriation of funds for the respondent company, KEB Oil & Gas Sdn Bhd (Respondent) and dishonesty in the issuance of false claims by the Petitioner, which require further inquiry by this court through a full trial;

(iv) it is not appropriate at all to continue the Petition by hearing of affidavit evidence only; and

(v) the Respondent will not be prejudiced if the Petition is continued as if the cause had been begun by Writ and there is no delay in making the Application

Background Facts

[3] The Petition is grounded on the just and equitable provision under s 465 (1) (h) of the Companies Act 2016 as the Petitioner claims inter alia that:

a) the Respondent's main object had lapsed and the principle object of the Respondent can no longer be achieved

b) the directors have lost confidence in each other and there is an irreparable breakdown of mutual trust between them

c) the substratum of the Respondent has collapsed

Petitioner's Submissions

[4] Apart from the grounds relied on for the Application, the Petitioner submits that there are allegations of fraud, fraudulent breach of trust, conversion and conspiracy and that it was most inappropriate in such a situation to decide the same summarily by relying simply on affidavit evidence.

[5] It is also contended that serious disputed facts should be decided by way of a full trial.

[6] The Petitioner had orally submitted before me that the civil court lacks the jurisdiction to wind up a company and that this court should let the parties be cross examined for the court to make an informed decision

Respondent's Submissions

[7] The Respondent submits that the Application should be struck off as O 28 r 8 Rules of 2012 is not applicable to a winding up petition.

[8] It is further submitted by the Respondent that O 88 r 2 Rules of 2012 does not apply to winding up proceedings and that winding up proceedings should be disposed off expeditiously and thus a writ is against such an intention.

[9] The Respondent also contends that the Respondent and Datuk Lim had filed 2 writ actions against the Petitioner and that the issues in the Petition would be litigated in a full trial under 2 separate legal proceedings before the Kuala Lumpur High court vide Guaman Sivil No WA-22NCVC-616-09/2020 and Kuala Lumpur High court Guaman Sivil No WA-22NCVC-703-10/2020 (now transferred to new case QA-22NCC-527-10/2020) as well as another suit where the Petitioner had filed a suit against Datuk Lim.

court's Findings

[10] O 28 r 8 Rules of 2012 provides as follows:

"(1) Where, in the case of a cause or matter begun by originating summons, it appears to the court at any stage of the proceedings that the proceedings should for any reason be continued as if the cause or matter had been begun by writ, it may order the proceedings to continue as if the cause or matter had been so begun and may, in particular, order that pleadings shall be delivered or that any affidavits shall stand as pleadings, with or without liberty to any of the parties to add thereto or to