Nik Hashim JCA:

The facts are that on 16 October 1998, the High Court of Kuala Lumpur recorded a summary judgment against the appellant company videKuala Lumpur High Court Civil Suit No. D6-22-1187-1998. Pursuant to the aforesaid summary judgment, the petitioner (respondent before us) filed a winding-up petition No. D2-28-553-1999 to wind up the appellant company for failure to comply with a notice of demand pursuant to s. 218 of the Companies Act 1965 (the Act). An order for winding-up was granted to the respondent dated 25-2-2000 and the appellant company, being dissatisfied with the aforesaid order, appealed to this court.

In this case, the petition was not advertised seven clear days before the date of hearing on 17 September 1999. The petition was advertised in the newspapers, the Malay Mail and the Star on 26 August 1999 and 27 August 1999, ie, 22 days before the hearing date. The appellant contended that by r. 24 of the Companies (Winding-Up) Rules 1972 (the Rules) which states that "every petition shall be advertised in Form 4 seven clear days or such longer time as the court may direct before the hearing", the petition ought to be advertised on 10 September 1999, and since the respondent did not obtain the leave of the court to advertise the petition earlier than the time stipulated, the respondent was in breach of the r. 24 and therefore the petition, being invalid, ought to be cancelled.

In his judgment, which was reported in Bank Utama (M) Bhd v. GKM Amal Berhad [2000] 2 CLJ 525 at p. 527, Abdul Aziz J (as he then was) held:

In this case the advertising was, without court direction, done earlier than the seven days. Technically, therefore, it is an irregularity. Since, however, it does not do injustice to anybody and is, on the contrary, beneficial to creditors, I rule that it is an irregularity which, by virtue of r. 194, does not invalidate the advertisement.

The issue was whether the breach was an irregularity under r. 194 of the Rules.

In Re NKM Holdings Sdn Bhd [1984] ; [1985] 2 MLJ 390, a winding-up petition was filed by creditors against the company and the hearing was fixed for 12 December 1983. The Gazette of 24 November 1983 was put into circulation on 12 December 1983. A preliminary objection was raised on behalf of the Company that the petition has not been advertised in the Government Gazette at least seven clear days to the notice. George J (as he then was), in exercising the powers under s. 221(2) of the Act, directed that a new date for hearing be fixed and dispensed with the need to advertise the new hearing date whether in newspapers or the gazette. On appeal, the Supreme Court (at [1987] 1 MLJ 39) ruled that the learned judge had properly exercised his discretion in dispensing with the advertisement, and dismissed the appeal.

In the present case, however, there was no direction by the court under s. 221(2) of the Act to have the advertisement done earlier than the seven days, and hence the petition was advertised in breach of r. 24. Nevertheless, we agreed with the views of the learned judge. There was no injustice caused by the breach. The breach was a technicality amounting to a mere irregularity curable under r. 194(1) which states:

No proceedings under the Act or the Rules shall be invalidated by any formal defect or any irregularity, unless the Court is of the opinion that substantial injustice has been caused by the defect or irregularity, and that the injustice cannot be remedied by any order of the Court.

Therefore, we held that the petition was not rendered invalid by reason of the irregularity.

The whole purpose of advertisement is to give notice of a winding-up petition of a company to the creditors. As the petition in this case was advertised more than the stipulated period of seven days, and that the advertisement was already effected, the object of giving notice to the creditors had been achieved. The appellant cannot be said to be prejudiced by the advertisement. Thus, we