Abdul Malik Ishak J:

Detailed Facts And The Exposition Of The Law

[1] This was a petition in encl 2 by the petitioner - Eastool Industries Sdn Bhd, to wind up the respondent by the name of Getfirms Electronics (M) Sdn Bhd. Winding up is the surest way to extinguish the respondent's company (Princess Reuss v. Bos [1871] LR HL 176 at 193, 197, 202; and Salomon v. Salomon & Co [1897] AC 22 at 30, HL) and it can be filed in any branch of the High Court of Malaya irrespective of the location of the respondent (Goh Boon Kim v. Taman Sungai Dua Development Sdn Bhd [1995] 4 MLJ 553). According to the case of Re Phoenix Oil and Transport Co Ltd (No 2) [1958] Ch 565 at 570 a winding up by the Court simply means that the Court is given the overall power to administer and, consequently, the Court retains a greater degree of control over the destiny of the company. It goes without saying that once a company is being wound up, it triggers into operation a statutory scheme to deal with the assets of the company (per Lord Diplock in Ayerst (Inspector of Taxes) v. C & K (Construction) Ltd [1976] AC 167 at 176-177, [1975] 2 All ER 537 at 540-541). But, before proceeding to examine the law any further, I must continue with the narration of the facts in regard to the petition in encl 2. The respondent was incorporated on 5 November 1993 under the Companies Act 1965 and the registered office of the respondent was listed at 3rd floor, Wisma Wang, number 251-A Jalan Burma, 10350 Penang. The authorised capital of the respondent was said to be RM500,000 divided into 500,000 shares of RM1 each. The amount of the capital paid up or credited as paid came up to RM500,000. The respondent was established for the purpose of carrying on the business of manufacturing electronic products and that was said to be the object and nature of the respondent's company. It transpired that the respondent was indebted to the petitioner in the sum of RM40,336.44 as at 30 April 1998 being the rental due and owing for the use of the petitioner's machines. On 17 March 1999, the petitioner served on the respondent by hand at its registered office as alluded to above a s 218 statutory demand notice pursuant to the Companies Act 1965 under the hand of the petitioner's solicitors M/s Allen & Gledhill requiring the respondent to pay the sum of RM40,336.44. Unfortunately, the respondent had failed, neglected and/or refused to pay that sum or any part thereof. The notice of demand was worded in the following terms:

[2] The notice of demand as worded must in law be considered to be good. The notice of demand need not be worded in a certain way nor must it follow a particular format because there is no prescribed form to follow. The function of the notice of demand is simply to warn the respondent as the debtor of an impending petition (Sri Hartamas Development Sdn Bhd v. MBf Finance Bhd, [1992] 1 MLJ 313). The notice of demand must relate to a specified debt (Re A Co [1985] BCLC 37), which debt must be presently due and forthcoming (Re Bryant Investment Co Ltd [1974] 2 All ER 683) and that debt must be of a liquidated sum (Ng Ah Kway v. Tai Kit Enterprise Sdn Bhd; [1986] 1 MLJ 58). There were no irregularities in the notice of demand and even if there were, I am not unduly perturbed. To me, the statutory presumption of insolvency arose so long as the sum claimed exceeded RM500 ( YPJE Consultancy Service Sdn Bhd v. Heller Factoring (M) Sdn Bhd; [1996] 2 MLJ 482; [1996] 3 CLJ 51; [1996] 2 AMR 2013) and of crucial importance would be whether the respondent was able to pay its debts (Kampat Timber Industries Sdn Bhd v. Bensa Sdn Bhd; [1990] 2 MLJ 46; [1990] 2 CLJ (Rep) 189).