A winding-up order issued by a Deputy Registrar without jurisdiction is invalid and can be set aside by the Court exercising its inherent jurisdiction.

[1] By a Notice of Motion dated 29 June 2016, the appellants had applied pursuant to O 15 r 6(2)(b)(ii) of the Rules of 2012 and s 243(1) of the Companies Act 1965 or the inherent jurisdiction of the Court for leave to intervene in the winding-up proceedings between the 1st and 2nd respondents, and for an order that the order of winding up dated 18 March 2013 (the said winding-up order) be set aside or in the alternative that all further proceedings in respect of the winding up of the 2nd respondent be stayed.

[2] The grounds of the application appear sufficiently in the Notice of Motion and to the extent that they are central to this appeal, we would mention that the appellants, in their grounds of application started off by stating that a petition to wind up the 2nd respondent was presented on 19 December 2012 upon which petition, the 2nd respondent was ordered to be wound up on 18 March 2013. However, the said winding-up order was made by the Deputy Registrar of the High Court at Shah Alam which was in contravention of r 5(1)(a) of the Companies (Winding Up) Rules 1972. Under the said rule, a petition to wind up a company has to be heard before a judge in open Court and not by a Registrar. In view of the fact that the said winding-up order was made by the Deputy Registrar of the High Court, that order is null and void and ought to be set aside as the Deputy Registrar has no power to order the winding up of the 2nd respondent. That being the case, the position adopted by the appellants is that this is a fit and proper case for the Court to set aside the said winding-up order.

[3] The learned judge, that is Mohd Yazid Mustafa J, on 23 September 2016 dismissed the appellants' application concluding that the Notice of Motion was unsustainable. In the grounds of judgment, His Lordship found that the said winding-up order was made before the Deputy Registrar of the High Court at Shah Alam and not before Vernon Ong J (as His Lordship then was) as alleged by the 1st respondent. However, despite this finding, the learned judge held that the appellants must file an appeal to the Court of Appeal against the said winding-up order. Another reason relied on by the learned judge in dismissing the application was that the appellants had no locus standi to intervene for the reasons that they had not obtained leave of Court to institute the proceeding against the 2nd respondent who was in liquidation. The appellants, moreover did not file a notice to appear at the hearing of the petition nor a proof of debt with the liquidator and they were not creditors let alone shareholders of the 2nd respondent. Finally, there was, according to the learned judge, a delay in filing the application which was three years after the said winding-up order was made and yet the appellants failed to provide any explanation for such delay. The learned judge held in the end that the application to intervene should have been made before the said winding-up order was granted.

[4] This appeal therefore concerns, and has been brought by the appellants in light of, the order made by the learned judge on 23 September 2016 in dismissing the appellants' application. At the heart of the appeal, lies the essential question which is confined exclusively to the status of the said winding-up order of 18 March 2013 which is whether it was made before the Deputy Registrar or before Vernon Ong J, and if it was granted by the Deputy Registrar, whether the said winding-up order was valid.

[5] The principal challenge mounted by the respondents against the appellants' appeal is described in this Court in their written submissions to the effect that the appellants' application and thus this appeal are academic. It would be necessary to mention that this main ground was in fact relied on by the respondents