A company's failure to meet a statutory demand establishes a presumption of insolvency, which is rebuttable only by proving solvency or valid disputes regarding the debt.

[1] The petitioner in this case, Bangkok Bank Bhd, sought to wind up the respondent company, Tan Ngee Hong Construction Sdn Bhd (referred to here as the "Company"), on grounds that the respondent was unable to pay its debts, pursuant to s 465(1)(e) of the Companies Act 2016 . Malayan Banking Berhad ("Maybank") made an application for its nominated liquidator to be appointed should the court see fit to allow the petition.

[2] I allowed the petition as well as Maybank's application for its nominated liquidator to be appointed in respect of the Company. The grounds for these decisions are recorded here.

Material Background Facts

[3] The Company is a construction company engaged in the housing sector. It had obtained overdraft and revolving credit facilities from Bangkok Bank. It defaulted on those facilities. Bangkok Bank sued, and obtained judgment against the Company on 14 August 2014. The Company did not enter appearance to defend the suit. The principal of the amounts claimed by Bangkok Bank was approximately RM1.4 million.

[4] Bangkok Bank issued a statutory notice of demand pursuant to s 466(1)(a) of the Companies Act 2016 to the Company. This demand was dated 26 September 2017.

[5] The Company put forth two proposals for settlement to Bangkok Bank, both of which were rejected. On 17 April 2018, Bangkok Bank petitioned for the Company to be wound up. In its petition, Bangkok Bank prayed for the Official Receiver to be appointed as the liquidator of the Company.

[6] On 1 October 2018, Maybank made an application to nominate a private liquidator. Maybank's position was that, should the court consider it appropriate for the Company to be wound up, then the court should appoint its nominated liquidator as the liquidator of the Company.

[7] Maybank had also granted credit facilities to the Company. Its credit facilities to the Company were much larger those of Bangkok Bank. As at 30 September 2017 the total outstanding owed to Maybank by the Company was more than RM27 million. Maybank obtained a summary judgment for this amount.

[8] Maybank sought for a private liquidator to be appointed in the winding up of the Company, as it considered that, due to the nature of the Company's business and assets, it would be beneficial for a private liquidator with the appropriate commercial expertise to be appointed.

Maybank's Application

The Applicability Of Order 15 Rule 6(2)

[9] Counsel for the Company opposed Maybank's application. He referred to the case of Ambank (M) Berhad v. Malaysian Coal & Minerals Corporation Sdn Bhd (Encls 1, 14, 32 & 42), [2016] 11 MLJ 590 for the proposition that Maybank ought to have complied with the provisions of O 15 r 6(2)(b) and (3) of the Rules of 2012, which provides for the joinder of parties. It was contended that Maybank must show to the court that its presence was necessary for the effectual and complete determination of the matters in dispute (sub-rule 2(b)(i)) or that there exists an issue arising out of any relief or remedy claimed which would be just and convenient to determine as between Maybank on the one hand, and Bangkok Bank and the Company on the other (sub-rule 2(b)(ii)).

[10] In my judgment, counsel's reliance on AmBank (M) Berhad v. Malaysian Coal & Minerals Corporation Sdn Bhd was misplaced. In that case, the court was concerned with the right of a proposed intervener who was neither a creditor nor a contributory to the respondent company. (The propos