A company can be wound up under the 'just and equitable' ground if its substratum has disappeared, even without proving quasi-partnership elements, as established in earlier case law.

[1] This is a petition by the petitioner to wind up the 1st respondent company ("the company") under s 218 of the Companies Act 1965 . The grounds broadly speaking are:-

(a) the company is a dormant company and has ceased to be a viable entity for more than 9 years ie, since 2003

(b) it has breached various statutory duties under the Companies Act 1965

(c) the substratum of the company has completely disappeared and gone

(d) it is just and equitable the company be wound up pursuant to s 218(1)(i) of the Act.

The petition is opposed by the 2nd respondent.

Case for the Petitioner

[2] The company was incorporated on 5 April 1984. The petitioner is a shareholder and a contributory of the company since its inception and now holds 33% of the shareholding in the company. As at 28 April 2012 the shareholding of the company is as follows:-

Th shares of the deceased shareholder are still registered in his name.

[3] The petitioner and the 2nd respondent were close personal friends and business confidants and have incorporated many different companies for joint business ventures and mutual financial benefit. The company is one of those companies incorporated out of that friendship. The Memorandum of Association (exh TCS-2) states the 1st object of the company as:-

"3(a) To carry on the business of shipping, shipping proprietors, ship and vessel owners, barge and lighter owners, carriers of cargo and passengers, navigations, shippers, jetty and dock proprietors."

The company was therefore incorporated specifically to carry out the business of 'shipping'. This is also indicated in the business profile of the company filed with SSM (TCS-1).

[4] The company was running as a quasi partnership between the petitioner and the 2nd respondent with the day to day management left to both the petitioner and the 2nd respondent. There was only one principal client of the company and that is Achi Jaya Transportation Sdn Bhd ("Achi Jaya"). It is owned by the family members of the 2nd respondent. Achi Jaya abruptly terminated all transport services with the company after the relationship between the petitioner and the 2nd respondent soured.

[5] The petitioner alleges that the company became the victim of the strained relationship between the petitioner and the 2nd respondent that started in 2003. The strained relationship is reflected in the numerous suits and counter-suits filed in Court totaling 11 between the petitioner and the 2nd respondent. The company has now ceased to be a viable entity because it does not carry on any business and there is no one to manage the company. There is no longer any employee of the company. The petitioner was kicked out of management when he was locked out from the registered office. All accounts and records are kept at the registered office and the petitioner is unable to access the documents. There is now a deadlock in management because there are only 2 surviving shareholders.

[6] Furthermore, the company has not prepared its annual account since 2003. The last audited account was for the year ended 31 December 2002. The company does not have a validly elected Board of Directors and has not called any AGM since year 2003 onwards. The company no longer has any employee or assets to carry out its principal business activity of transportation services since 2003. Since 2003 the company has totally lost its substratum in carrying on the business. There is no other viable business for it to carry on. Also, the deadlock in management and the total loss of confidence of the existing shareholders mean that there is no chance for the company to be functioning as an on-going entity.

[7] The company cannot overcome the crisis reached in management particularly that the 2nd respondent through callous attitude and indifference had nearly let the compa