VC George J:

[On encl. (23)]

On 21 December 1984 NKM Development Sdn. Bhd. presented to the Court the petition herein to wind-up Irex Sdn. Bhd. (the Company). The relevant Senior Assistant Registrar apparently was prevailed upon to allot 10 January 1985, an early date indeed, for the hearing of the petition.

The petitioners relied on s. 218(1)(e) of the Companies Act which provides that the Court may wind-up a company if it is unable to pay its debts. In para. 4 of the petition it was contended that the company was indebted to the petitioners in the sum of RM250,000"being a loan due to the petitioners as at 22 December 1979 together with interest thereon at 12% per annum until date of payment".

According to the clerk of the petitioners' solicitors a statutory demand as prescribed by s. 218(2)(a) for the repayment of the alleged loan and interest was pursuant to the said s. 218(2)(a) duly served on the company on 13 November 1984 by his leaving it in the letter box at the registered office of the company because he had found the office locked. The petitioners said that in spite of the said demand the Company had neglected to pay the amount claimed or to secure or compound for it within the three weeks prescribed by the sub-section or at all and accordingly invoked the presumption provided by the sub-section that the company shall be deemed to be unable to pay its debts. For the Company it was said that they had never received the letter of demand but there was no challenge to the alleged service of the letter of demand.

The petition itself was served on 26 December 1984 by leaving it with a woman the process server found at the registered office of the company. Apparently attempts to effect service were made earlier on 22 and 24 December respectively when the registered office of the Company was found locked.

The petitioners caused the notice of hearing of the petition to be advertised in the Star newspaper of 24 December 1984. The Company has complained that the petitioners had also caused the Star newspaper to publish on Christmas Day "an article with a large heading entitled NKM Holdings gets winding-up petition against Irex". The newspaper article does indeed give credit for the information on which it was based to a"spokesman" of the petitioners and the petitioners have not denied the allegation that it was they that had caused the story to be published. However, since the Company had indicated that it may sue "the petitioner, its directors and officers and its solicitors for defamation in a separate legal action", I restrain myself from commenting on the contents of the article and that it was published and that it had been caused to be published but not before observing that some very loose language indeed was used in it.

The Company invoking O. 18 r. 19 of the Rules of the High and the inherent jurisdiction of the Court, took out a motion to have the petition struck off or dismissed. An early date of the hearing of the motion was sought for and obtained. It was fixed for hearing on 31 December 1984.

Encik George Proctor on behalf of the petitioners had argued that the issue of whether the petition should be dismissed should only be considered at the actual hearing of the petition. Encik T. Thomas disagreed as I also did. Order 18 r. 19(3) explicitly provides that the jurisdiction given by O. 18 r. 19(1) applies to a petition as if the petition is a pleading. Applications to strike out pleadings (and a fortiori petitions), should be made promptly. See 1982 White Book 18/19/2 and Re St. Piran Ltd. [1981] 3 All ER 270 at 273b.

The ground relied on by the company was that provided by O. 18 r. 19(1)(d) that the petition was an abuse of the process of Court in support of which evidence may be submitted and affidavits may be read - I had also overruled Encik George Proctor's contention that by O. 18 r. 19(2), the application should be disposed of without the Court reading the affidavit filed in support thereof. Orde