A winding-up order under the Companies Act 1965 cannot be rescinded after perfection; remedies must follow prescribed statutory procedures for a stay or appeal.

[1] This appeal arose from the decision of the Kuala Lumpur High Court dismissing the appellant's application to set aside the winding up order granted against it. It concerns the power of the Court to set aside a winding up order which had been perfected and duly sealed.

[2] The facts are simple and straightforward. The appellant was wound up by the Court on 11 July 2003. All of the documents in relation to the winding up proceedings including the notice of demand under s. 218 of the Companies Act 1965 and the petition were duly served on the appellant but no explanation was given why it failed to appear before the Court. There was no affidavit in opposition to the said petition. Neither did it appeal against the winding up order.

[3] On 10 June 2004, almost a year after the said order was made the appellant filed an application, by way of a notice of motion, to set aside the winding up order and that a new hearing date of the petition be fixed. Alternatively, it prayed that the winding up order be stayed under s. 243 of the Companies Act 1965 .

[4] The affidavit in support of the application dated 10 June 2004 was affirmed by one Noor Salamah binti Bunnawi who claimed to be a director of the appellant and that she was duly authorised to affirm the affidavit by the said appellant. She further claimed that the facts deposed therein were based on the appellant's record and documents in her possession.

[5] She affirmed the affidavit notwithstanding the clear provision of s. 233 of the Companies Act 1965 which states that where a winding up order has been made or a provisional liquidator has been appointed, the liquidator or provisional liquidator shall take into his custody or under his control all of the properties and things in action to which the company is or appears to be entitled. In Sri Hartamas DVPT Sdn Bhd v. MBF Finance Bhd , the Supreme Court (as it then was) held that, "after a winding up order is made, generally speaking no one but the liquidator can act on behalf of the company".

[6] The application is based on the ground that the appellant had no knowledge of the winding up proceedings as it had handed over the s. 218 notice served on it to a third party, ie, Mohd Najib bin Abu Bakar, who had promised to take the necessary actions to oppose the petition. It was therefore submitted that this was an order made in default and should be set aside. The appellant only knew of the winding up order after one of its directors, namely Anuar bin Abdullah discovered in January 2004 that his name had been blacklisted as being one of the directors of the appellant.

[7] Noor Salamah binti Bunnawi did not in her affidavit state that she was a creditor or a contributory of the appellant. It is necessary to disclose this fact as only the liquidator or any creditor or contributory is entitled to apply for a stay of the winding up order under s. 243 of the Companies Act 1965 . A director is not qualified and has no locus standi to apply for a stay of the winding upn order under s. 243 of the said Act: See Sri Hartamas Development Sdn Bhd, supra .

[8] The respondent opposed the application on the ground that it was irregular and wrong in law. The winding up order had been duly perfected and sealed. The appellant should have appealed against the said winding up order instead of applying to have it set aside: see Vijayalakshmi Devi Nadchatiram v. Jegadevan Nadchatiram & Ors, [1995] 1 MLJ 830 , Perdana Merchant Bankers Bhd v. Maril Rionebel (M) Sdn Bhd . In Vijayalaksmi 's case, supra , the Court of Appeal held that a winding up order cannot be discharged or rescinded after it had been made and that the only remedy is to apply for a stay of proceedings u