A company cannot apply to terminate or stay its winding up unless it meets statutory criteria, including being a liquidator, creditor, or contributory, and any stay must be for a specified period.

Prelusion

[1] The Respondent company (RCo) applies to terminate the winding up Order dated 3 April 2017 (Winding Up Order) and to resume "the management and control" of the company. RCo alternatively applies for a perpetual stay of the Winding Up Order.

[2] Should the Winding Up Order be terminated, or perpetually stayed?

Sections 493 And 492 Of The Companies Act

[3] RCo makes this Application as a post-winding up application under ss 493 and 492 of the Companies Act 2016 .

[4] Section 493 provides that when a liquidator or creditor or contributory of a wound up company makes an application to terminate the winding up of the company, the winding up Court may grant the Order to terminate the winding up, if the Court thinks that it is fit to grant the Order.

[5] Section 493 is set out here for reference:

Section 493. Power of Court to terminate winding up

(1) At any time after an order for winding up has been made, the Court may, on the application of the liquidator or of any creditor or contributory and on proof to the satisfaction of the Court that all proceedings in relation to the winding up of the company ought to be terminated, make an order terminating the winding up of the company as the Court thinks fit.

(2) In making an order under subsection (1), the Court may take into consideration, but not limited to, the following facts:

(a) the satisfaction of the debts;

(b) any agreement by the liquidators, creditors, contributories and other interested parties; or

(c) other facts that the Court considers appropriate.

(3) Where the Court makes an order under subsection (1), the company ceases to be in liquidation and the liquidator ceases to hold office and be released from all liability in respect of any act done or default made by the liquidator in the administration of the affairs of the company or otherwise in relation to his conduct as liquidator, with effect from the making of the order or such other date as may be specified in the order.

[Emphasis Mine]

[6] Section 492 provides that when an application is made by the liquidator or creditor or contributory of a wound up company for a stay of the Winding Up Order, the winding up Court may grant the Order to stay the winding up, for a specified time (for a specific period of time), on such terms and conditions that the Court thinks fit.

[7] Section 492 is set out here for reference:

Section 492. Power of Court to stay winding up

(1) At any time after an order for winding up has been made, the Court may, on the application of the liquidator or of any creditor or contributory and on proof to the satisfaction of the Court that all proceedings in relation to the winding up of the company ought to be stayed, make an order staying the winding up of the company for a specified time on such terms and conditions as the Court thinks fit.

(2) Where the Court makes an order under subsection (1), the liquidator shall cease to conduct any further action on behalf of the company from the date of such order.

[Emphasis Mine]

The Grounds For This Application

[8] The grounds for this Application to terminate the Winding Up Order, or alternatively to perpetually stay the winding up of RCo include:

(1) RCo's debt to the Petitioner (TC Success Jewellery Sdn Bhd) is fully settled. The Petitioner is the sole creditor of RCo.

(2) The Petitioner wrote an undated letter to the Jabatan Insolvensi Malaysia (JIM) to inform the JIM that RCo's debt to the Petitioner was fully settled. As such, they have no objections to the setting aside of the Winding Up Order, or to stay the Winding Up Order. According to RCo's affidavit evidence, which was affirmed by