JUDGMENT

Celestina Stuel Galid J:

Introduction

[1] The applicant has appealed against this court's decision in striking out their notice of motion application pursuant to s 477 of the Companies Act 2016 ("CA 2016") for the appointment of private liquidators of the respondent company.

Salient Background Facts

[2] On 4 October 2024, the petitioner petitioned to wind up the respondent company pursuant to ss 465(1)(e) and 466(1)(a) of the CA 2016 based on an Adjudication Award dated 12 December 2023 in the sum of RM23,253,000.00 ("the Award") which was affirmed by the High court on 10 July 2024.

[3] The petition was later amended on 28 January 2025 before the petitioner obtained the requisite Registrar's Certificate under r 32(1) of the Companies (Winding-Up) Rules 1972 ("Rules") on 28 February 2025.

[4] Apart from the respondent, there was no other notice of intention to appear filed before the date of the hearing on 11 April 2025 as required under r 28(1) of the Rules and or the adjourned hearing on 20 June 2025 wherein after hearing the parties, the court fixed the decision on 31 July 2025.

[5] On 21 July 2025, the applicant, a creditor of the respondent, filed a notice of intention to appear on petition and at the same time, filed a notice of motion under s 477 of the CA 2016 ("the notice of motion").

[6] This court proceeded with its decision on 31 July 2025 and ordered the respondent to be wound up and the petitioner's proposed liquidator, one Mr Gabriel Teo Chun, to be appointed as the liquidator of the respondent.

[7] This court further held that in the circumstances, the applicant's notice of motion was rendered academic and struck it out with no order as to costs.

The Grounds For This court's Decision

[8] At the outset, it should be noted that the respondent did not oppose the appointment of the liquidator proposed by the petitioner in the petition. There was no averment at all that the proposed liquidator was in any way unsuitable. This court's own consideration of exh "P-7" showed that the proposed liquidator complied with all the requirements under r 31 of the Rules.

[9] The respondent has also not filed any appeal against the winding-up order (which order included the appointment of the petitioner's proposed liquidator).

Whether This court Ought To Have Considered The Applicant's Notice Of Motion?

[10] Quite obviously, by appealing against this court's decision, the applicant was of the view that the court ought to have considered the notice of motion before deciding on the petition.

[11] Rule 28 of the Rules provides that:

"(1) Every person who intends to appear on the hearing of a petition shall serve on the petitioner or his solicitor notice of his intention. The notice shall be signed by the person or by his solicitor and shall give the address of the person signing it and shall be served or if sent by post shall be posted in such time as in ordinary course of post to reach the address not later than 12.00pm of the day previous to the day appointed for the hearing of the petition.

(2) The notice may be in Form 8 with such variations as circumstances may require.

(3) A person who has failed to comply with this rule shall not, without special leave of the court, be allowed to appear on the hearing of the petition."

[12] As noted earlier, the applicant only filed a notice of intention to appear on 21 July 2025 after the hearing on 11 April 2025 and the adjourned hearing on 20 June 2025. The applicant's said notice was therefore contrary to r 28 of the Rules.

[13] Furthermore, there was no longer any hearing for the applicant to appear in as the court had, by then, already fixed the petition for decision on 31 July 2025. Additionally, any argument that the applicant was still entitled to appear and be heard on 31 July 2025 would be defeated by the fact that the applicant had not obtained leave under r 28(2) of the Rules. For all intents and purposes, learned counsel for the applicant was simply gatecrashing when he purported to appear on