A party must establish grounds of oppression relating to their status as a member or shareholder under s 181 of the Companies Act.

[1] The 1st appellant and the respondent are Taiwanese. They were husband and wife from 1984 until 2009.

[2] The 2nd appellant is a company owned by the family of the 1st appellant, incorporated by the 1st appellant when he came to Sabah in 2001. The 3rd appellant is a company, acquired after the 1st appellant obtained RM1.2 million from his family through a family agreement entered into between the 1st appellant and his family members. The 1st appellant is the Managing Director of the 2nd and 3rd appellants while the respondent is a shareholder and a Director of the 3rd appellant.

[3] Before us, the appellants are appealing against the order of the High Court at Sandakan dated 5 May 2016 (the said order) which allowed the respondent's petition to wind up the 3rd appellant and also to appoint an independent liquidator to investigate into the 1st and 2nd appellants' conduct in the affairs of the 3rd appellant and to commence appropriate action against the 1st and 2nd appellants.

Preliminary Objection (PO)

[4] At the outset of the hearing of the appeal before us, the learned counsel for the respondent had raised a PO that by virtue of the said order, the 3rd appellant is a wound up company and therefore has no locus standi to initiate this appeal without first obtaining sanction from the Official Receiver (OR). The learned counsel cited the decision of the Federal Court in Winstech Engineering Sdn Bhd v. ESPL (M) Sdn Bhd, [2014] 3 MLJ 1 wherein the Federal Court had allowed the PO raised by the respondent and refused leave to appeal on the ground that the sanction by the OR given on 19 August 2013 had no retrospective effect, hence the application for leave filed prior to the issuance of the sanction was invalid.

[5] The learned counsel for the appellants argued that Winstech case, supra, can be distinguished as Winstech's leave application did not arise from the decision of the winding-up Court judge in granting the winding up order. It arose from a civil suit filed by Winstech where Winstech's claim was dismissed and the defendant's counter claim was allowed. Unlike the instant appeal, the suit in Winstech's case, supra, was not a continuation of the winding up proceedings.

[6] Having heard the arguments on the PO, we unanimously held that the PO raised was without merit. We respectfully agreed with the learned counsel for the appellants that Winstech case, supra, is distinguishable from the instant appeal as the appeal herein pertains to the order which had resulted in the company being wound up. The appellants herein were aggrieved with the winding-up order made against the 3rd appellant. In Sri Hartamas Dvpt Sdn Bhd v. MBf Finance Bhd , [1991] 3 MLJ 325 Hashim Yeop A Sani CJM, delivering the judgment of the Supreme Court had inter alia at p 230 stated the following:

"However, in our view, Loh (counsel for the respondent) was not with respect, correct if he said that the company could not appeal against the winding-up order. It is provided quite clearly in s 253(2) of the Act:

... that, subject to the rules, an appeal from any order or decision made or given in the winding-up of a company shall lie in the same manner and subject to the same condition as an appeal from any order or decision of the Court in cases within its ordinary jurisdiction.

Therefore under that provision, an appeal can be made to this Court against an order for the winding-up of a company."

[7] At p 231, His Lords