JUDGMENT

Gopal Sri Ram JCA:

[1] This appeal raises a short but important point of practice and procedure in the sphere of company law. The relevant facts fall within a narrow compass. On 30 January 2007, the High Court made an order winding up the respondent company on a petition presented by the appellant. On 16 February 2007 the respondent gave notice of appeal to this Court. That appeal - I will refer to it as the "merits appeal" - is presently pending. In the meantime the respondent took out a summons returnable before the judge in chambers seeking a stay of the winding up. The summons says that the application is made under s. 243(1) of the Companies Act 1965 ("the Act") and/or the inherent jurisdiction. The summons was supported by the affidavit of Cheah Theam Kheng, a director of the respondent. In it he says that he is authorised to make the affidavit on the respondent's behalf. The learned judge who heard the summons made an order staying the effects of the winding up order until the outcome of the merits appeal. The petitioner was unhappy with this order. It appealed to us. It is this instant appeal. I will refer to it as "the stay appeal". We heard it on 1 August 2007 and dismissed it. Ordinarily in a case such this we will not normally produce a written judgment. But, as I have said, a point of practical importance has arisen and demands written reasons for our decision to provide some guidance to the profession.

[3] A similar submission was made in Sri Hartamas Development Sdn Bhd v. MBF Finance Bhd and rejected by the Supreme Court. Hashim Yeop A Sani CJ (Malaya) said:

In Re Union Accident Insurance Co Ltd [1972] 1 All ER 1105, it was held, inter alia , that notwithstanding the appointment of the provisional liquidator and the general assumption by him of the company's powers, the board still retained certain residuary powers which included authority to instruct solicitors and counsel to oppose the petition and, if a winding-up order is made, to appeal against the order. In that case it was also held that the power to instruct solicitors and counsel is not the power which any one could suggest has passed to the provisional liquidator. At p 1113, Plowman J said:

The issue is to the extent of those residuary powers, and in particular whether they extend to the launching of the present motion. I think that it may sometimes be helpful to test the matter by considering the other side of the coin, namely to enquire whether the power which the board is said to have lost is one which can be said to have been assumed by the liquidator. If the answer is that it cannot, that may be a good reason for saying that the board still retains it. Clearly, for example, as I have already indicated, the power to instruct solicitors and counsel on the hearing of the winding-up petition is not a power which anyone could suggest has passed to the provisional liquidator and therefore the board retains it. If that is true in regard to the petition itself, it is, in my judgment, equally true of interlocutory proceedings which are such that it would not be appropriate for the provisional liquidator to give ins