Multiple winding-up petitions against a company are permissible, and existing petitions do not preclude new filings if adequate relief cannot be obtained through ongoing proceedings.

[1] This appeal arose from the dismissal of a motion (encl 308 in Kuala Lumpur D4-28-258-2005) by the appellant for leave "to institute proceedings for the enforcement of judgment dated 4 March 2002 obtained by the appellant against the respondent including the presentation of a winding up petition against the respondent. "

[2] It is not in dispute that on 4 March 2002 the appellant obtained judgment against the respondent in the sum of RM42,610,361. 12 together with interests and costs. But the appellant could not capitalise on that judgment, as the respondent had obtained a succession of restraining orders under s 176(10) of the Companies Act 1965 ("the Act") that restrained "further proceedings in any action or proceeding against the company except by leave of the court and subject to such terms as the court imposes" until 21 October 2004. A fifth application for the same said restraining order was dismissed on 30 November 2004. Meantime, on 2 November 2004, one Morgan Stanley Emerging Markets Inc (Morgan) presented a winding-up petition against the respondent, which petition had the support of the appellant. But on 12 January 2005, Morgan withdrew that petition. On 13 April 2005, Morgan presented the instant winding-up petition (instant petition) against the respondent. On 22 December 2006, provisional liquidators was appointed to work with the management of the respondent "to formulate and present a composite group wide scheme of arrangement pursuant to s 176 of the Act" and "to endeavour to preserve the listing status of the respondent and to facilitate continued trading in the shares of the respondent". But all plans to preserve the listing status of the respondent were practically torn asunder on 15 May 2007, when the respondent was delisted from the Official List of Bursa Malaysia. Quite undaunted, the respondent on 15 May 2007 obtained a fresh restraining order under s 176 of the Act. But that fresh restraining order was set aside on 3 April 2009. A year later, on 27 April 2010, the appellant served a s 218 notice on the respondent, and demanded payment of the judgment sum from the respondent. Soon thereafter, the appellant filed the instant motion for leave to present a separate winding-up petition against the respondent, which motion, as said, was dismissed on 11 June 2010.

[3] The grounds upon which the appellant had grounded its application for leave were that on 20 October 2008 and then on 18 November 2009 the court had granted leave to another creditor (Affin Bank Berhad) to present a separate winding-up petition against the respondent and as such the appellant should be granted leave too to present a separate winding-up petition, and that the winding-up petition of Morgan remained unresolved despite the passage of five years from the date of its presentation.

[4] The respondent had resisted the motion on various grounds, all of which were held by the court below as technical and bereft of arguable merit, save for the following. On the contention by the respondent that there would be a multiplicity of proceedings if leave were granted to the appellant, the court below held, on the basis supposed of Chatib Kari v. Mosbert Bhd (in liquidation), and Mosbert Bhd (in liquidation) v. Stella D'Cruz; , that "it was incumbent on the appellant to show that their claim cannot be adequately dealt with in the winding-up or the remedy the appellant seeks cannot be given in the winding-up proceedings" (see p 24 of the Appeal Record). The court below further held the appellant had not provided any authority in support of