Gopal Sri Ram JCA:

The appellants, on 10 September 1994 presented a petition before the Commercial Division of the High Court at Kuala Lumpur to wind-up the first respondent of which they are shareholders. So are the other respondents. The appellants' petition, which is based, inter alia, on the just and equitable ground, contained the following prayers:

(1) For an order that the company may be wound-up by the Court under the provisions of s. 218(f) and/or (i) of the Companies Act 1965 .

(2) or that such other order be made in the premises as shall be just.

(3) that costs of this petition be borne by the second, third and fourth respondents.

(4) For an order pursuant to s. 221 of the Companies Act 1965 :

(a) that there be a distribution in specie of shares and investments.

(b) that See Teow Chuan render a proper account of the dealings in the shares, investment and the funds belonging to the company including the shares fraudulently misappropriated by him.

(c) restraining the company (whether by its officers, servants or agents or otherwise whatsoever) from proceeding with or holding the extraordinary general meeting of the company scheduled to be held on 21 September 1994.

(d) restraining the second, third and fourth respondents from voting at the extraordinary general meeting of the company scheduled to be held on 21 September 1994.

On 11 November 1994 the second, third and fourth respondents took out a motion in the petition to strike out prayer 4(a) on the ground that it was plain and obvious that the relief claimed therein could not be granted by the Court at the hearing of a winding-up petition. The learned Judicial Commissioner who heard the motion acceded to it and struck out the offending prayer. Against this the appellants have appealed. The appeal is at present pending before this Court. In the meantime, the learned Judicial Commissioner, quite properly, proceeded to fix the petition for hearing. The appellants took the view that if the petition was proceeded with before their appeal was heard and determined they would suffer prejudice. They accordingly moved this Court for a stay of all proceedings on the petition pending the hearing and disposal of their appeal. That application came on for hearing before this Court on 20 November 1995. After hearing the arguments of deSilva who moved the application and T. Thomas who opposed it this Court formed the unanimous view that a stay ought not to be granted. The appellants' application was therefore dismissed with costs.

I was initially not inclined to deliver written reasons for the decision arrived at. But for reasons that will appear shortly, I have come to the conclusion that a reasoned judgment is necessary in this case.

When Counsel for the appellants opened her argument on the application, she submitted that a stay ought to be granted because the question of law which arose in the appeal was one of first impression. She said that the point had not been considered or decided upon by any Court in the Commonwealth so that there was no authority going one way or the other. The appeal was therefore arguable and there ought to be a stay in order not to render it nugatory. Thomas when he came to oppose the application also advised the Court that there was no authority on the point. In the course of argument by Counsel, I had also observed that my limited researches, in the time made available, had not produced any authority. However, my later researches have in fact shown that there is concluded authority on the point and that it lies against the appellants. This discovery has necessitated the delivery of written reasons in this case.

In order to understand the point made by Counsel, it is necessary to appreciate what this case concerns. It has to do with the power of a companies Court when hearing a winding-up petition. That power is to be found in s. 221 of the Companies Act 1965 ('the Act') and so far as it affects this case, is more particularly