The court ruled that a director cannot independently represent a company post-winding up, requiring collective Board action for appeals. The stay of a winding-up order is contingent upon creditor consent, creditor conduct, and company solvency.

[1] There are two applications before me. The applications relate to a winding up order that this court made against the respondent company on 11 October 2011. The first application is for stay of execution under O 45 r 11 Rules of High 1980 by an advocate purporting to act on behalf of the respondent company. The second application is under s 243(1) of the Companies Act 1965 . This application is made by Dato Ting Check Sii as a contributory of the respondent company.

Brief Facts

[2] The respondent company was wound up on 11 October 2011. It was, in a manner of speaking, a "default" winding up order as suggested in these proceedings. This is because no one appeared for the respondent to oppose the winding up petition. There was no affidavit opposing the petition either. The Senior Assistant Registrar had certified that r 32 of the Winding up Rules 1972 was duly complied with. The representative of the Official Receiver confirmed that the papers were in order. In the premises, I granted the petition as prayed. On 14 November 2011, Mr Clement Wong, an advocate, purporting to act for the respondent, applied vide Summons in Chambers for:

(a) a stay of execution of the Winding Up Order until the final disposal of the Respondent's appeal against the winding up order to the court of Appeal;

(b) an interim stay of execution of the Winding Up Order until final disposal of the said Summons in Chambers before the this court.

[3] The three main grounds stated in the application are:

1. The Winding Up Petition is not based upon a judgment of the court.

2. The Petitioner's claim in the s 218 Notice is time barred.

3. The service of the Winding Up Petition on the Respondent was bad and there is mala fide on the part of the Petitioner.

[4] The second application was filed by Dato Ting Check Sii who is a contributory of the respondent. He is a 50% shareholder of the respondent. This application was made under s 243(1) of the Companies Act 1965 for a stay of the winding up order. The principal grounds are:

1. The winding up petition is based upon a judgment of the court.

2. The petitioner's claim in the s 218 notice is time barred.

3. The service of the winding up petition on the respondent was bad and there is mala fide on the part of the petitioner.

4. There are special circumstances that warrant the stay of execution of the winding up order.

[5] On 15 November 2012, 1 granted an ad interim stay of the winding up order pending the disposal of the instant two applications as the parties intimated that they would be filing further affidavits.

Issues

[6] In my opinion, after having considered the submissions and the affidavits of the parties, the issues that arise in the two applications are as follows:

1. Whether Mr Clement Wong who has been instructed by only one of the two directors can purport to act for the entire Board of Directors or the respondent company?

2. Whether a stay of execution pending appeal against a winding up order can be granted under O 45 r 11 or inherent jurisdiction of the court?

3. Whether a s 243(1) stay of proceedings ought to be granted in this case?

Decision

[7] For ease of reference I set out below the parties that appeared before me and their respective stands regarding the two applications:

(a) Counsel for the petitioner;

(b) Liquidator in person;

(c) Mr Clement Wong who purported to act for the respondent.

(d) Counsel for Dato Ting Check Sii who is one of the contributories.

(e) Counsel for Encik Draman @ Morshidi bin Omar who is the other contributory.

(f) Counsel for Inland Revenue Board (IRB) who is a cr