The distinction between bankruptcy and company winding-up procedures entails unique legal requirements for each, with valid service being crucial for enforcement.

Abdul Malek Ahmad FCJ:

This is an appeal from the decision of the Court of Appeal on 5 June 1995 dismissing with costs the appellant's appeal from the decision of the High Court on 1 September 1994. Learned counsel for the appellant started off her submissions by raising a preliminary objection as regards the cross appeal as there had been no application for leave to do so although she had been served with the notice of cross appeal dated 11 November 1995.

The response from learned counsel for the respondent was that he was totally unaware of the situation as he had just been retained the day before. As such, he was not in a position to argue except to say that he was ready to proceed and that the circular from the Court of Appeal stated that no leave was necessary.

Learned counsel for the appellant's reply was that on the previous hearing date on 19 January 1998, the previous solicitors for the respondent had been discharged by the respondent who had been ordered to pay RM1,000 costs for the adjournment which were yet to be paid.

Since no leave to file a cross appeal was obtained when leave to file the appeal was given on 12 September 1995, we were of the unanimous view that the cross appeal should be, and was accordingly, struck out with costs.

In the High Court, the appellant was the petitioner and they had on 17 January 1994 been granted an order in terms to wind up the respondent because neither the respondent nor their counsel was present. On 10 June 1994, the respondent had applied for leave for extension of time to file the application and to set aside the default order made on 17 January 1994.

The learned High Court judge was satisfied that the respondent had filed the application within the time specified by the Rules of the High Court 1980. The mistake, he concluded, was that of the court registry.

As for the setting aside, the learned High Court judge agreed with the contention of the then learned counsel for the respondent on the ground that the words in the statutory notice dated 25 October 1991 namely "interest of $64.69 per day from 26 October 1991 till date of full settlement" made it defective as a result of the ambiguity. The learned High Court judge held that it was not a mere irregularity which could be cured relying on Fawzia bte Osman v. Bank Bumiputra Malaysia Bhd & Another Appeal , Low Mun v. Chung Khiaw Bank Ltd. , Lim Boon Peng v. United Orient Leasing Co. Bhd. and distinguishing the facts in Sri Hartamas Development Sdn. Bhd. v. MBf Finance Bhd. .

In the Court of Appeal, a strong Bench comprising Shaik Daud Ismail, Gopal Sri Ram and Siti Norma Yaakob, JJCA, said through the presiding judge as follows:

With respect, I am of the view that the learned judge ought not to apply principles enunciated in bankruptcy cases, in cases of winding up. Bankruptcy cases are governed by their own Act and Company winding-up cases are governed by an entirely different set of Act(s) and regulations. While it cannot be gainsaid that the liquidation or winding-up of a company has certain obvious affinities with the bankruptcy of an individual the courts should be careful not to stretch these affinities to such an extent that they lose sight of the fact that they may fall in danger of applying the law of bankruptcy to company windingup proceedings. It must be remembered that in a winding-up proceeding there is nothing corresponding to an act of bankruptcy. In my view it is because of this aspect of this act of bankruptcy that the courts adopt a strict view in construing a bankruptcy notice.

As a result of the Supreme Court decision in Fawzia's case, section 3(1)(i) of the Bankruptcy Act 1967 was amended by Act A827 with effect from 16.7.92 to include the phrase "with interest quantified up to the date of issue of the Bankruptcy Notice." With this amendment the ambiguity and uncertainty earlier encountered by creditors came to an end.

In a subsequent paragraph, the judgment states:

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