The Companies Winding Up Court has jurisdiction to order costs against a non-party if proper notice is provided, aligning with established principles in prior case law.

JUDGMENT

Hadhariah Syed Ismail JCA:

Introduction

[1] This is an appeal against the decision of the learned High Court Judge given on 16 June 2021, setting aside the previous Company Winding Up Court order dated 8 September 2020 with respect to costs granted against the respondent, Ng Cheng Keng (NCK), a non-party in the Winding Up Petition.

[2] On 21 March 2022, we heard the submissons of both learned counsel for the appellant and the respondent and allowed the appeal unanimously.

Winding Up Proceedings

[3] At the High Court of Kuala Lumpur, the appellant (Twin Faber) commenced a winding up proceedings against LKD Trading Sdn Bhd (LKD) via Winding Up Petition No WA-28 NCC-1257-11/2019 under ss 465(1)(e) and 466(1)(a) of the Companies Act 2016 .

[4] The respondent, Ng Cheng Keng (NCK) was a manager in LKD. He resigned from the company on 7 August 2020.

[5] In the winding up proceedings, NCK had affirmed four (4) affidavits in opposition of the winding up petition on behalf of LKD. He also filed a Notice of Motion (encl 7) to strike out the Companies Winding Up Petition.

[6] It is not disputed that NCK did not attend Court on the day the Companies Winding Up Petition was heard on 8 September 2020.

[7] On 5 August 2020, Messrs Davis & Co discharged themselves from acting for LKD in the winding up petition. Thus, LKD had no legal representation at the hearing of the winding up petition on 8 September 2020.

[8] On 8 September 2020, the High Court wound up LKD with inter-alia the following orders:

1) ''That the said LKD Trading Sdn Bhd [Registration No 199101007023 (217333-V)] to be wound up by the Court order under the provisions of the Companies Act 2016 ;

2) That Dato' Lee Cher Chye (No KP: 531103-10-5757) and Lim Tuck Cheong (No KP: 581012-10-6389) be appointed as the joint Liquidators for the purpose of the said winding up.

3) That the Petitioner be allowed the cost on an indemnity basis of RM75,000.00 to be paid by the Liquidators out of the assets of the respondent to the solicitors of the Petitioner within 14 days from the service of this order, failing which the said costs of RM75,000.00 to be paid by Ng Cheng Keng (NRIC No: 540226-10-5575) personally to the solicitors of the Petitioner within 30 days from the service of this order;

4) That the supporting creditors Cosode Resources, LNM Hardware Sdn Bhd, Sunwin Hardware Trading, M & J Iron Works Sdn Bhd, Odyssey O & G Sdn Bhd, LIWA Construction Sdn Bhd be allowed cost on an indemnity basis of RM12,000.00 to be paid by the Liquidators out of the assets of the respondent to the solicitors of the said supporting creditors within 14 days from the service of this order, failing which the said costs of RM12,000.00 to be paid by Ng Cheng Keng (NRIC No: 540226-10-5575) personally to the solicitors of the Petitioner within 30 days from the service of this order; and..."

[9] There was a penal notice endorsed in the said order which reads as follows:

"ENDORSEMENT

If you, the within-named Ng Cheng Keng (NRIC No 540226-10-5575) neglects to obey this order by the time therein limited, you will be liable to process of execution for the purpose of compelling you to obey the same"

Originating Summons

[10] On 22 March 2021, the respondent / NCK took out an Originating Summons No WA-24NCC-136-03/2021 against the appellant at Kuala Lumpur High Court, seeking for the following orders:

1. Bahawa kebenaran diberikan kepada pemohon, Ng Cheng Keng (No KP: 540226-10-5575) untuk memfailkan prosiding ini terhadap LKD Trading Sdn Bhd, responden kedua yang telah digulungkan menurut Perintah Penggulungan bertarikh 8 September 2020;

2. Bahawa satu perintah Penggantungan Ex-Parte dibenarkan terhadap perintah No 3 dan 4 dalam Perintah Penggulungan bertarikh 8 September 2020 mengenai kos yang diperolehi oleh Responden Pertama, Twin Faber Sdn Bhd hanya terhadap pemohon, Ng Cheng Keng di Mahkamah Tinggi Kuala Lumpur menerusi tindakan Penggulungan Syarikat No: WA-28NCC-1257-11/2019 sehingga pelupusan Saman Pemula ini.

3. Bahawa s