An applicant must demonstrate special circumstances to justify a stay of a Winding Up Order; mere appeal does not suffice.

JUDGMENT

Nadzarin Wok Nordin JC:

Enclosure 2

Application

[1] In the Notice of Motion dated 25 August 2021 the Respondent, Ganda Selat Sdn Bhd (Respondent) had applied to this Court pursuant to s 492(1) of the Companies Act 2016 for inter alia an order that:

i. the Winding Up Order dated 14 July 2020 (Winding Up Order) be stayed pending one MPDT Berhad, completing the development and delivering vacant possession within 24 months from 14 July 2020

ii. whilst awaiting the disposal of the appeal at the Court of Appeal an injunction that the Liquidator, Augustine James a/l TK James (Liquidator) from Messrs Zakaria Augustine Kang Consultancy Sdn Bhd either personally or through his employees and/or representatives and/or agents in any way whatsoever be restrained, prevented and prohibited from performing and enforcing his duties as the Respondent's Liquidator

[2] Amongst the grounds relied on for the Application are

a) the Respondent has filed a Notice of Appeal (Appeal) to the Court of Appeal against the Winding Up Order

b) the Respondent has signed a joint venture agreement dated 20 March 2020 (JVA) with MPDT Capital Berhad (White Knight) to rehabilitate and complete the Sungai Chinchin Residensi Housing Project

c) a total of 132 units of condominium units have been sold by the Respondents whilst the majority of 218 units have yet to be sold

d) as a result of the JVA, the White Knight has commenced initial works and the sum of RM400,000 has since been spent

e) the Respondent has valid grounds and special circumstances to stay the Winding Up Order

Background Facts

[3] The Respondent is the developer of a project known as Kondominium Residensi Sungai Chinchin Gombak (Project). The Project had also been declared an abandoned project by the Jabatan Perumahan Negara vide a letter dated 5 January 2018.

[4] Due to the failure of the Respondent to deliver vacant possession of the condominium units in the Project to the Petitioners and the Petitioners owing the Respondent the sum of RM6,008,590.73 being the amount due to the Respondent's failure to complete the Project as agreed under the respective Sales and Purchase Agreement's between the Petitioners and the Respondent.

[5] As a result of the above, the Petitioners had issued a total of 167 statutory notices (Notices) pursuant to ss 465(1)(e) and 466(1)(a) of the Companies Act 2016 after which due to the non compliance of the said Notices, a Winding Up Petition vide Companies Winding Up No WA-28NCC-216-03/2019 was filed by Muhammad Afiq Bin Anuar and Mohd Farid Bin Mohd Sood on behalf of 187 purchasers of the condominium units (Petitioners).

[6] The Respondent was consequently wound up by this Court on 14 July 2020 and has subsequently filed an appeal thereto to the Court of Appeal.

[7] On 11 March 2021 after hearing the respective parties counsels submit on the Application, this Court had delivered an ex tempore judgment and dismissed the Application with costs.

[8] The Respondent has now appealed against the decision of this Court made on 11 March 2021 and herewith are my written grounds.

Respondent's Submissions

[9] It is inter alia contended by the Respondent that the Stay Application will benefit both the parties as it will enable the White Knight to complete the Project and deliver vacant possession.

[10] The Respondent had also relied on O 45 r 11 of the Rules of 2012 with regards matters occurring after judgment in applying for a stay of execution of the Winding Up Order.

[11] It is also submitted by the Applicant that the Applicant has the locus standi to file the Application as the deponent of the Affidavit in Support of the Application is a contributory.

Petitioners Opposition

[12] The Petitioners raised a preliminary objection on the locus standi of the Company to make the Application as well as the point that leave of Court is required before proceeding with the Application.

[13] It is submitted by the Petitioners that no special circumstances exist for a stay of the Winding Up Order to be granted.

C