Procedural non-compliance can be remedied when it does not cause substantial injustice in winding-up petitions.

Introduction

[1] Enclosure 17 dated 12 September 2019 is the Notice of Motion filed by the Respondents pursuant to O 18 r 19 (1)(d) of the Rules of 2012 and inherent jurisdiction of Court for an Order, inter alia that the Petition dated 3 May 2019 herein be struck out.

Facts Of The Case

[2] The facts of the case may be summarised as follows:

2.1 On 9 October 2018, the Petitioner, has obtained a Judgment in Default against the Respondents at the Ipoh High Court Civil Suit No: MT2-22-45 /2007 for the sum of RM 808,006.63 together with interest at 1% per annum on the sum of RM 808, 006.63 from 1 February 2008 until full satisfaction and cost of RM 225.00.

2.2 On 24 April 2018, upon Notice of Application made by the Petitioner (Plaintiff) dated 23 October 2017, Ipoh High Court granted leave to the Petitioner "untuk mengeluarkan Penghakiman terhadap Defendan Pertama, Defendan Kedua dan Ketiga di atas Penghakiman bertarikh 2 July 2007 yang teiah luput selama 6 tahun dan tidak melebihi 12 tahun dari tarikh Penghakiman tersebut."

2.3 On 3 April 2019, the Petitioner served a copy of the Statutory Notice pursuant to s 465 of the Companies Act 2016 at the registered address of the Respondent demanding the sum of RM 686,334.20 as at 2 April 2019 being due and owing to the Petitioner to be paid within 21 days from the date of the receipt of the notice. Twenty-one (21) has lapsed from the service of the Notice and the Respondent failed to pay the sum as demanded.

2.4 On 3 May 2019, the Petitioner fiied this winding -up petition. Subsequently, Registrar's Certificate was issued by the High Court on 29 July 2019.

2.5 Hearing for the Petition was fixed on 21 August 2019. Representative from the Respondent came and asked for the Petition to be adjourned pending settlement. Adjournment granted by this Honourable Court. Counsel for the Petitioner then make an oral application to amend the intitulement of the Petition to delete the words Akta Syarikat, 1965 and replaced it with Akta Syarikat 2016. Oral amendment allowed by this Honourable Court on the same day.

2.6 On 28 August 2019, Petitioner fiied the Amended Winding-Up Petition.

2.7 So much for the factual background.

Issues

[3] Issues for determination are:

(a) whether the Winding Up Petition dated 3 May 2019 is void because Petitioner failed to obtain leave before filing this Petition;

(b) whether there defect in the intitulement of the Petition is fatal;

(c) whether Petitioner can sought the full amount from the Respondent without considering that the Respondent is jointly and severally liable to the Petitioner.

The Relevant Provision Of The Law

[4] (i) Order 18 r 19 (1) (d) Rules of 2012:

" Striking out pleadings and endorsements (O 18, r 19)

19. (1) The Court may at any stage of the proceedings order

to be struck out or amended any pleading or the endorsement, Rules of Court 81 of any writ in the action, or anything in any pleading or in the endorsement, on the ground that-

.......

(d) it is otherwise an abuse of the process of the Court,and may order the action to be stayed or dismissed or judgment to be entered accordingly, as the case may be. "

(ii) Order 92 r 4 Rules of 2012.

"Inherent powers of the Court (O 92, r 4)

4. For the removal of doubt it is hereby declared that nothing in these Rules shall be deemed to limit or affect the inherent powers of the Court to make any order as may be necessary to prevent injustice or to prevent an abuse of the process of the) Court."

The Law Governing The Application To Strike Out A Winding-Up Petition

[5] The now trite locus ciassicus governing