A winding-up order can be set aside if proper service is not made, violating natural justice and allowing the court to prevent abuse of its process.

Prelusion

[1] The Respondent in this post-winding-up Application is Tan Kheng Guan (Tan). The Applicant is Chu Kok Khing (Chu). Tan and Chu are shareholders in the company: Shigen Polycolor Sdn Bhd (Shigen).

[2] Tan filed a petition to wind-up Shigen. Tan made Shigen and Chu the respondents in that petition. On the hearing date, Chu was not present. In default of Chu's appearance, Tan proceeded to obtain an Order that wound-up Shigen and appointed a private liquidator. Chu now files this post-winding-up Application to set aside that Order.

[3] Should the Order be set aside?

The Earlier Proceedings

[4] In May 2022, Tan filed a Petition to wind-up Shigen through Penang High Court Companies (Winding-Up) Petition No 28NCC-42-05/2022 (Petition 42). As it was a contributories' petition to wind-up the company on just and equitable grounds, Tan named Chu as a respondent. Shigen, as the company concerned, was a nominal respondent.

[5] On 19 July 2022, Tan obtained the winding-up Order, in default of Chu's appearance (the 19 July 2022 Order). The 19 July 2022 Order also appointed a private liquidator.

[6] Chu did not file any cause papers in the proceeding such as an affidavit in opposition to the petition or a notice of intention to appear at the hearing.

[7] Shigen went into liquidation.

[8] Chu now files this post-winding-up Application to set aside the 19 July 2022 Order.

[9] It should be noted here that there were several suits between Tan and Chu, and other parties. At the hearing of this Application, Tan (through his counsel) informed me that there were three writ actions, filed in 2014, 2017 and 2020 consecutively. The various causes of action include a claim for the ownership of intellectual property rights, the misappropriation of company assets, the breach of fiduciary duties, and the misappropriation of company shares.

[10] There was also an earlier winding-up Petition in 2015, filed by Chu against Tan, also on just and equitable grounds. That Petition was withdrawn.

The Representation Of Parties

[11] I asked the parties about their representation by solicitors. Both parties (through their respective counsels) verified for me that in all these suits between them, both Tan and Chu were always represented by solicitors.

The Grounds In Tan's Petition 42

[12] Tan and Chu are co-shareholders in Shigen. In Petition 42, Tan's grounds to wind-up Shigen include allegations that:

(1) Chu stole or misappropriated Tan's shares;

(2) Chu unilaterally appointed additional directors and changed company secretaries;

(3) there are various suits between Tan and Chu; and

(4) Chu dissipated or misappropriated company assets.

The Outcome Of Petition 42

[13] At the hearing of Petition 42 on 19 July 2022, Tan submitted that the Petition was duly served on Shigen and Chu, and that papers were in order for the hearing to proceed. Tan also represented that there was no opposition to the Petition, as Chu did not file any cause papers.

[14] The 19 July 2022 Order, as prayed for by Tan, included these terms:

(1) Shigen was wound-up; and

(2) Mr Khor Yong Yong was appointed as liquidator.

Chu's Assertions In This Application

[15] Chu challenges the propriety of the 19 July 2022 Order, and now applies to set it aside. Briefly, his assertions include:

(1) that he did not receive the Petition and the related cause papers;

(2) that he got to know about the 19 July 2022 Order only after the event ie after the Order was made;

(3) that the service of the cause papers was improper; and

(4) that he was not given the right to be heard, w