A Statutory Notice issued under the Companies Act 2016 is valid when creditors seek to enforce a judgment debt, even if an appeal is pending, provided that the debt is undisputed.

JUDGMENT

Rozi Bainon JC:

Introduction

[1] This is the Plaintiff's application vide an Originating Summons dated 30 December 2022 (Enclosure 1) amongst others, for declaratory and injunctive reliefs against the Defendants that the Defendants are not entitled to initiate winding up proceedings against the Plaintiff pursuant to the Statutory Notice dated 15 December 2022 (refer to as "Statutory Notice").

[2] The Plaintiff pleaded that the issuance of the Statutory Notice against the Plaintiff is an abuse of the court's process as the Statutory Notice issued is wrongful, invalid and void.

[3] The legal action against the Plaintiff was started in the Sessions court at Petaling Jaya where on 21 October 2022, the learned Sessions court judge ("the SCj") has allowed the Defendant's application for determination on issues of law/fact under O 14A and/or O 33 r 2 of the Rules of court 2012. The learned SCj has also dismissed the Plaintiff's application for striking out the Defendants' writs of summons and statement of claim.

[4] The facts as stated by the Plaintiff are:

the purchasers/Defendants (the Plaintiffs in the Sessions court) claim for amongst others the Liquidated Ascertained Damages (LAD) for purportedly late delivery of vacant possession of condominium units and common facilities for a project at Tropicana Metropark Phase 1C ("the Project").

the Sale and Purchase Agreements ("the SPA") were agreed and executed by the purchasers/Defendants in the year 2014.

the purchasers/Defendants contend that there is LAD payable as the developer/Plaintiff had allegedly delayed in handing over vacant possession of the said condominium units, which is strongly denied by the developer/Plaintiff.

the developer/Plaintiff contend that they have completed and fulfilled its obligations based on the SPAs.

the purchasers/Defendants filed an application pursuant to O 14A RoC 2012 and the learned SCj allowed the application.

the developer/Plaintiff aggrieved by the SCj's decision filed an appeal on 1 November 2022.

[5] The purchasers/Defendants then issued the Statutory Notice unders 465(1)(e) read with s 466(1)(a) of the Companies Act 2016 dated 15 December 2022 to the developer/Plaintiff in respect for the sum of RM767,090.83 as allowed by the Sessions court.

The Developer/Plaintiff Appeal To The High court

[6] On 1 March 2023, Y.A Tuan Tee Geok Hock upheld the Sessions court's decision and dismissed the appeal with costs.

[7] The High court held that the questions posed at the Sessions court are suitable for disposal under O 14A and/or O 33 r 2 of RoC 2012. The High court affirmed the Sessions court's decision on this question of law and procedure. The High court had also made the alteration of the Sessions court's Order dated 21 October 2022 by deletion of the declaratory order in item (a) and a minor amendment to item 2(f).

The Originating Summons By The Developer/Plaintiff

[8] The developer/Plaintiff filed the Originating Summons, amongst others for the following orders and/or reliefs:

(a) a declaration that the purchasers'/Defendants' demand against the developer/Plaintiff by way of the Statutory Notice for a claim amounting to RM767,090.83 as at 15 December 2022 is wrongful, invalid and void.

(b) a declaration that the purchasers/Defendants are not entitled to initiate a winding up proceeding against the developer/Plaintiff based on the Statutory Notice.

(c) the purchasers/Defendants whether by itself or its servants/agents/nominees or otherwise be restrained from acting upon the Statutory Notice.

(d) an injunction whereby the purchasers/Defendants, whether by itself or by its servants/agents/nominees or otherwise be restrained from filing, serving, advertising and/or publishing any winding up petition based on the Statutory Notice and/or from proceeding with or taking any step to wind up the Plaintiff.

(e) a declaration that the Statutory Notice is an abuse of the court process.

(f) as an alternative to prayers (c) and (d), if the purchasers/Defendants have ini