The court possesses discretion to permit withdrawal of a Winding-Up Petition based on changed circumstances affecting the case's relevance.

Introduction

[1] This Winding-Up Petition was filed on 1 March 2016 by the Petitioner pursuant to s 218 of the Companies Act 1965 premised inter alia on a failure of the substratum, deadlock in management and breakdown of mutual trust and confidence between the shareholders. The Petition against the 1st Respondent (interchangeably "the Company") seeks the following relief:

a. That the 1st Respondent to be wound up by Court pursuant to s 218 of Companies Act, 1965;

b. That Ng Eng Kiat and Khoo Pek Ling be appointed as the Liquidators of the 1st Respondent.

[2] The Winding-Up Petition was amended by the Petitioner by order of the Court dated 23 March 2017 in encl 121.

[3] On 2 September 2022, the Petitioner sought to withdraw the Petition with liberty to file afresh and with no order as to costs. The other contributories (including the Administrator Pendente Lite of TKC's estate) except for the 2nd Respondent. After considering the written submissions of the Petitioner and 2nd Respondent and upon hearing learned counsel for the various parties, I had on 14 November 2022 struck out the Winding-Up Petition with liberty to file afresh and no order as to costs. This judgment contains the full reasons for my decision.

Background Facts

[4] The background facts are culled from the Petition, the affidavits and submissions of the parties.

[5] The 1st Respondent ("the Company") is a family company established by Tan Kim Choo @ Tan Kim Choon("TKC") and the late Madam Chang Ying ('late Madam Chang') who are the parents of the Petitioner. The shareholding of the Company is held by family members. The Company owns real estate and receives rental income from its rented assets.

[6] After the demise of Madam Chang Ying in 2006, the shareholding of the Company was held as follows:

[7] The Petitioner, 2nd Respondent, Tan Poh Hui and Tan Poh Yee are siblings.

[8] Both the Petitioner and the 2nd Respondent are directors of the 1st Respondent. TKC was a director until his demise in August 2018. He was incapacitated due to a stroke on 3 August 2015 and was unable to perform his duties as a director.

[9] TPH and TPY as the Contributories of the 1st Respondent are in support of the Winding-Up Petition. TKC objected to the Petition and on his application, the Winding-Up Petition was stayed by order of the Court since 28 November 2017 pending the disposal of Kuala Lumpur High Court Civil Suit No: WA-22NCVC-58-01/2017 ("Suit 58") on the basis that if Suit 58 is successful, it would mean that the Petitioner has no locus to present this Winding Up Petition as she is not a shareholder of the 1st Respondent.

[10] Suit 58 in summary was filed by the late TKC against the Petitioner, the 2nd Respondent, TPH, TPY and 4 family companies including the 1st Respondent. TKC's cause of action in Suit 58 was based on the trust arrangements prior to and/or in 2004 that in consideration of certain Brickfields properties being transferred to his daughters (the Petitioner, TPH and TPY), his daughters were to transfer their shares in the 1st Respondent to him and his late wife. Despite the transfer of the Brickfield properties to the daughters, the shares in the 1st Respondent had remained in the daughters' names. TKC seeks an order that the shares held by the Petitioner, TPH and TPY in the 1st Respondent are held in trust by them and to be transferred to TKC as the principal beneficiary holding the ultimate beneficial interest to the shares under the trust arrangements.

[11] On 5 November 2018, the Petitioner filed an application to remove the Stay of Proceedin