A winding-up order made by a Deputy Registrar is void if it contravenes statutory provisions requiring it to be made by a judge.

[1] This judgment is delivered pursuant to s 78 of the CJA 1964 as our sister Zainun binti Ali has since retired. This is a unanimous decision by the remaining members of the panel who heard this appeal.

[2] The appeals before us relate to the 1st, 2nd and 3rd respondents' application at the Shah Alam High Court to set aside a winding-up order dated 18 March 2013 (the said Winding-Up Order).

[3] The sole ground in support of the application to set aside the said Winding- Up Order was that it contravened r 5(1)(a) of the Companies (Winding-Up) Rules 1972 (the Winding-Up Rules). It was made by the Deputy Registrar of the High Court and not by a judge.

[4] The respondents' application to set aside the said Winding-Up Order was dismissed by the Shah Alam High Court on 23 September 2016. On 22 May 2017, the Court of Appeal reversed the decision of the High Court and set aside the said Winding-Up Order under its inherent jurisdiction.

[5] On 24 August 2017, this Court granted leave to appeal on the following question of law, that is:

Whether the principle established in Badiaddin Mohd Mahidin & Anor v. Arab Malaysian Finance Bhd, 1997 MarsdenLR 2081 confers jurisdiction upon a Court to set aside a perfected winding-up order for breach of r 5 of the Companies (Winding-Up) Rules 1972 having regard to the decision in Vijayalakshmi Devi Nadchatiram v. Jegadevan Nadchatiram & Ors, [1995] 1 MLJ 830 .

[6] For ease of reference we set down below the parties in these two appeals.

[7] The petitioner in the High Court was Malayan Banking Berhad ('Maybank'):

(i) Maybank was the 1st respondent in the Court of Appeal.

(ii) Upon leave being granted by the Federal Court, Maybank filed the Notice of Appeal dated 4 September 2017 herein which is registered as Appeal No: 02(i)-99-09-2017(B) ('Appeal 99').

[8] The respondent in the High Court was SKS Foam (M) Sdn Bhd (in liquidation):

(i) SKS Foam (M) Sdn Bhd (in liquidation) was the 2nd respondent in the Court of Appeal.

(ii) Upon leave being granted by the Federal Court, SKS Foam (M) Sdn Bhd (in liquidation) filed the Notice of Appeal dated 6 September 2017 herein which is registered as Appeal No: 02(i)- 101-09/2017(B) ('Appeal 101').

[9] SKS Foam (M) Sdn Bhd applied to intervene in these proceedings. The intervener was granted leave by the Federal Court on 24 August 2017.

[10] The applicants in the High Court are the respondents in this appeal. The appellants in these appeals are Maybank and SKS Foam (M) Sdn Bhd (in liquidation).

Brief Facts

[11] On 19 December 2012, Maybank presented a petition to wind up SKS Foam (M) Sdn Bhd, the intervener herein based on a judgment debt of approximately RM4 million.

[12] On 18 March 2013, Maybank's solicitor attended the Shah Alam High Court for the hearing of the winding-up petition presented against the SKS Foam (M) Sdn Bhd. However, as was the practice then the winding-up petition was fixed for hearing before the Deputy Registrar. (It should be stated here and, as observed by the Court of Appeal, such a practice was not supported by any provision of law nor any practice direction). No creditor or contributory appeared at the hearing of the winding-up petition on that day. Upon confirmation from the Official Receiver's representative that the said office had no objections to the petition, the said Deputy Registrar entered the Winding- Up Order against SKS Foam (M) Sdn Bhd.

[13] More than three (3) years later, on 29 June 2016 the 1st, 2nd and 3rd respondents ("the respondents") who claimed to be contributories and/or creditors of SKS Foam (M) Sdn Bhd, filed an application pursuant to O 15 r 6(2)(b) of the Rules