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2020 MarsdenLR 3269
HIGH COURT MALAYA KUALA LUMPUR
MALEZA HEAVY EQUIPMENT & CONSTRUCTION SDN BHD – Appellant
Versus
PETROVIETNAM ENGINEERING (MALAYSIA) SDN BHD; PETROV.... – Respondent
[Companies Winding-Up No: WA-28NCC-949-09/2019]
The service of a Winding-Up Petition must adequately notify the affected company, and any discrepancies or procedural irregularities that do not affect the substance of service do not invalidate the Winding-Up Order.
Headnote:(A) Companies Act 2016 – Sections 471(1), 492, and 493 – Companies (Winding-Up) Rules 1972 – Application to intervene in winding-up proceedings – Proposed Intervener, a contributory, applying for leave to intervene and set aside the Winding-Up Order (WUO) – Court ruled the service of the Winding-Up Petition (WUP) was adequate despite contradictions in affidavits – Court held that the Proposed Intervener is entitled to intervene based on ss 492 & 493 of the CA – No injustice caused despite alleged procedural defects – WUO remains valid. (Paras 20, 22, 30, 34)
(B)
Service of Winding-Up Petition – Requirement of service must provide adequate notice – The overseas company and its officers are assumed to have received the petition unless explicitly denied. (Paras 28, 29)
(C)
Affidavit verification – Forms of affidavit are guidelines, not mandatory – Authority of deponent is presumed unless proven otherwise. (Paras 33)
Facts of the case:
The Proposed Intervener (PI) seeks to intervene in winding-up proceedings against Petrovietnam Engineering (Malaysia) Sdn Bhd (the Respondent). The application stems from questioning the validity of the service of the WUP, alleging procedural non-compliance with the Companies Act 2016 and Winding-Up Rules.
Findings of Court:
The court confirmed the service of the WUP was valid and that the discrepancies in affidavits did not negate proper service.
Issues
: Whether the service of the WUP was adequately performed and whether the Proposed Intervener could intervene in the proceedings.
Ratio Decidendi:
The court emphasized that the purpose of the service requirement is to ensure the affected party is given notice, and minor discrepancies do not invalidate the service.
Result:
Application dismissed.
Notice Of Motion
[1] The application before this Court is a Notice of Motion (NOM) under encl 1 pursuant to O 15 r 6(2)(b) (ii) of the Rules of 2012 and/or s 492 of the Companies Act 2016 ( CA ) and/or s 493 of the and/or O 92 r 4 of the Rules of 2012 where the Proposed Intervener, one Petrovietnam Engineering Consultancy Joint Stock Company (PI), who is also a contributory of Petrovietnam Engineering (Malaysia) Sdn Bhd (In Liquidation) the Respondent Co (R), is applying to (i) be granted leave to intervene in the proceedings and be made party to the proceedings, (ii) set aside the Winding Up Order dated 31 December 2019 made against R (WUO), (iii) alternatively that the WUO or any proceedings in relation to the WUO be terminated and/or stayed (iv) costs to be borne by the Petitioner (P), and (v) all loses and expense on R and the intervener as a consequence of the WUO be assessed and borne by P.
[2] The main grounds relied on by the R in its Affidavit In Support of the NOM (AIS) at encl 2 herein, is that there is no evidence addressed vide the Affidavit of Service (AOS) that the Winding Up Petition (WUP) was in fact served on R and that the deponent for the Affidavit Verifying the Petition (AVP) failed to declare that he was authorised to affirm the affidavit on behalf of P.
Background Of WUP
[3] On 14 August 2019 P had issued a Statutory Notice of Demand (NOD) pursuant to s 465(1)(e) of the Companies Act 2016 ( CA ), for the sum of RM160,560.00 being the amounts due and outstanding for rental and delivery of heavy equipment in the form of generator sets and heatless desiccant dryer which was served personally on the R's registered address at Ground Floor, 8 Jalan Siakap, Sungei Rengit, 81620 Pengerang, Johor (R's Registered Address) and that R had failed to pay the said sum within the 21 days of the receipt of the said NOD.
[4] Thereafter on 12 September 2019 P had filed a WUP on the grounds that R was unable to pay its debts to P for the said sum of RM160,560.00. Based on the evidence before this Court, as can be seen at para 9 (3) of the AOS affirmed on 23 December 2019, by Cik Nur Azreeen Binti Mohd Arshad (Cik Azreen), the solicitor for P, Cik Azreen, had at approximately 11 am caused to be served a sealed copy of the WUP on the R Co by way of personal service at the WUP at R's Registered Address and "the said petition was duly received by an officer of the Respondent company who was present but refused to acknowledge receipt of service of the said sealed Petition". P had accordingly thereafter obtained a WUO on 31 December 2019.
[5] It was alleged by the PI that they had subsequently conducted a search, the date of which was not made known to this Court, at the High Court Registry in Kuala Lumpur and obtained all the relevant papers in respect of the WUP.
PI's Submissions In Support Of The NOM
[6] It is submitted by the PI that they wholly own P and therefore has a substantive, direct and genuine legal interest in respect of the WUP and the WUO. Thus any declaration or order or outcome of the hearing will directly affect the PI's interest in R.
[7] The PI submits that the AOS is not in accordance with Form 5 of the Companies (Winding Up) Rules 1972 (WUR), contemplates that the deponent of the AOS should be the person who in fact serves the WUP on the R, see para 9(3) of the AIS, as the deponent of the AOS, Cik Azreen, does not appear to be the person who purported to serve the WUP on the R. PI further alleges that there is no evidence of Cik Azreen having served the WUP on R.
[8] It is also alleged by the PI that there are serious contradictions in the AOS and the purported endorsement of the purported process server, one Gan Chee Ming (GCM), which is exhibited to the AOS, wherein GCM had in his purported endorsement of service of the WUP exhibited in the AOS contradicted Cik Azreen's assertion by saying that he "do hereby solemnly affirm and declare that I have on 28 November 2019 attended in perso
