Hishamudin Yunus J:

On 28 January 2002, the petitioner presented a winding-up petition (the present petition) against the respondent under ss. 217(1)(b) and 218(1)(e) of the Companies Act 1965. This petition has yet to be heard.

Prior to the presentation of the present petition, the respondent, pursuant to a petition of another creditor, had already been wound up by the Kuala Lumpur High Court on 24 May 2000 videCompanies Winding-up Petition No. D8-28-25-2000.

The respondent had since appealed to the Court of Appeal against that winding-up order.

Meanwhile, a contributory of the respondent in the D8-28-25-2000 case, known as Mayform Holdings Sdn Bhd had, on 19 October 2000, obtained from the Winding-up Court a stay order of the previous winding-up order pending the appeal pursuant to s. 243(1) of the Companies Act.

Section 243(1) reads:

Power to stay winding up

243. (1) At any time after an order for winding up has been made the Court may, on the application of the liquidator or of any creditor or contributory and on proof to the satisfaction of the Court that all proceedings in relation to the winding up ought to be stayed, make an order staying the proceedings either altogether or for a limited time on such terms and conditions as the Court thinks fit.

The present summons-in-chambers is an application by the respondent pursuant to s. 222 of the Companies Act for a stay of the present winding up proceeding on the ground that there is already in existence a winding-up order against the respondent and that the petitioner has not obtained the leave of court to commence the present winding-up petition against the respondent as required by s. 226(3) of the Companies Act.

Section 222 states:

Power to stay or restrain proceedings against company.

222. At any time after the presentation of a winding up petition and before a winding up order has been made, the company or any creditor or contributory may, where any action or proceeding against the company is pending, apply to the Court to stay or restrain further proceedings in the action or proceeding, and the Court may stay or restrain the proceedings accordingly on such terms as it thinks fit.

Section 226(3) provides:

Actions stayed on winding up order.

(3) When a winding up order has been made or a provisional liquidator has been appointed no action or proceeding shall be proceeded with or commenced against the company except -

(a) by leave of the Court; and

(b) in accordance with such terms as the Court imposes.

Alternatively, on the same ground, the respondent applies to the court for the present petition to be dismissed.

In opposing the present application, the learned counsel for the petitioner submitted that leave of court pursuant to s. 226(3) is not required because the winding-up order of 24 May 2000 had been stayed by the Winding-up Court. Learned counsel argued that once a court stays a winding-up order, the winding-up order comes to an end. Learned counsel referred to BSN Commercial Bank (M) Bhd v. River View Properties Sdn Bhd .

I have allowed the application but in my judgment the present petition should not be stayed but should be dismissed. Accordingly I have dismissed the present petition with costs.

In my opinion, in view of the previous winding-up order, the presentation of the present petition, without prior leave of court, as stipulated by s. 226(3), is a breach of that provision and hence the petition is bad in law and should be dismissed. The petition should not have been filed in the first place.

With respect, I am unable to agree with the submission of the learned counsel for the petitioner regarding the effect of the stay order. Upon a close reading of the provision of s. 243(1), it will be noted that the relevant part reads:

... the Court may, ... make an order staying the proceedings either altogether or for a limited time...[Emphasis added]

Thus, in the context of a winding-up order, there are two types of stay order:

(a) the "altogether" (or ab