A winding-up petition is permissible without a prior judgment if the debt is not in substantial dispute, and acknowledgement of debt negates the need for arbitration stay.

Introduction

[1] Enclosure 1 is a Petition to wind up the Respondent pursuant to s 465(1)(e) read with s 466(1)(a) of the Companies Act 2016 ( CA 2016). This petition is premised on the failure by the Respondent to settle a judgment sum after the expiry of 21 days from service of a statutory notice under s 466(1)(a) of the on the Respondent.

[2] It is not disputed that the Petitioner did not obtain a judgment from any court before filing this Petition. However, it is trite law that it is not a requirement for the Petitioner to obtain a judgment before filing a petition to wind-up a company under s 465(1)(b) of the Companies Act 2016 (" CA 2016"), provided the debt is not bona fide disputed on substantial grounds.

[3] The Statutory Notice is premised on a breach of a Sales Agreement between the parties. The Respondent was to deliver 95,000 metric tonnes of fuel ("the Cargo") to the Petitioner. The Cargo was to be discharged between 24 December 2021 and 27 December 2021. The Respondent subsequently failed to deliver the Cargo to the Petitioner.

[4] The Petitioner contends that it had suffered losses amounting to USD1,158,628.06 from out-of-pocket expenses, including demurrage charges, storage and loading fees. In addition, the Petitioner contends that it also suffered losses of about USD14 million being the differential sum between the contractual price under the Sales Agreement and the price of fuel as at the date of the Petitioner's notice of termination on 11 May 2022.

Respondent's Grounds To Oppose The Petition

[5] The brief grounds on which the Respondent has sought to oppose the Petition are:

(a) The service of the Statutory Notice is irregular and not in compliance with s 466(1)(a) of the CA 2016. Likewise, the Petition was not served at the registered address of the Respondent.

(b) The Petitioner is not a creditor of the Respondent since there is no judgment or arbitration award on which the Petitioner can justify its claim against the Respondent. Also, there is no loss or damage suffered by the Petitioner and the alleged compensation of USD2 million was never agreed on.

(c) The winding-up action is to be stayed pending determination of the Petitioner's claim at the Singapore International Arbitration Centre.

Findings Of This court

[6] It is trite law that notwithstanding the wording of s 466(1)(a) of the CA 2016, there is no strict requirement to serve the Statutory Notice at the registered address of the Respondent. See the case of Ann Joo Metal Sdn Bhd v. Pembenaan My Chahaya Sdn Bhd 1999 MarsdenLR 291 ; 1999 MarsdenLR 1873 , where the court held as follows:

"In Cymun Development Sdn Bhd Lwn. Supermax Sdn Bhd 1995 MarsdenLR 376 ; 1995 MarsdenLR 1896 ; [1996] 1 CLJ 545 , anotice of demand was sent to the business address but was received by the respondent, who had made an appearance to defend the petition. In other words, those that do not cause substantial injustice incapable of being remedied by any order or court, would not invalidate a notice of demand."

[7] The Respondent in its Affidavit in Opposition ("AIO") confirmed that it had received a copy of the sealed Petition. Since both the Statutory Notice and the Petition were served at the business address of the Respondent and the Respondent was able to file the AIO, I find that there is no substantive injustice caused to the Respondent which would nullify service of the Statutory Notice or the Petition. See s 582(1) of the CA 2016, which stipulates that any irregularity or deficiencies of notice would not invalidate any proceedings unless the court is of the view that substantial injustice has been caused that could not be remedied