Vernon Ong JC

The petitioner, The Bank of East Asia Ltd, Singapore Branch presented a winding up petition against the respondent, Axis Incorporation Bhd under s 218Companies Act 1965

BRIEF ACCOUNT OF THE FACTS

The respondent is a public company listed in Bursa Malaysia with a paid up capital of RM152,906,791. On 21 November 2008, the petitioner obtained a judgment in default of appearance against the respondent for US$2,422,277.23 together with interest and costs in the High Court in the Republic of Singapore. The foreign judgment was not registered in Malaysia. On 2 December 2008, the petitioner issued a notice under s 2182009, the petitioner presented a winding up petition against the respondent. On 19 February 2009, the petitioner obtained an ex parte order for the appointment of a provisional liquidator against the respondent. On 12 March 2009, the petitioner served the petition and the ex parte order on the respondent. On 18 March 2009, the respondent filed an application to set aside the ex parte order and to remove the provisional liquidator. On 7 April 2009, the court set aside the ex parte order. Meanwhile on 14 April 2009, the respondent obtained a restraining order under s 176(10)(10A)

THE RESPONDENT’S SUBMISSION

Learned counsel for the respondent submitted that a winding up petition may be struck out under O 18 r 19(1)(d) of the Rules of the High Court 1980 (‘RHC’) or under the inherent jurisdiction of the court under O 92 r 4 of the RHCJurupakat Sdn Bhd v Kumpulan Good Earth (1973) Sdn Bhd [1988] 3 MLJ 49[1988] 1 CLJ 618 (Rep) at pp 619–621). Independent of the RHC, the power to strike out the winding up petition is also within the jurisdiction of the court (Re Lo Siong Fong [1994] 2 MLJ 72Dato' Ibrahim bin Hj Ismail & Anor v Onstream Marine Sdn Bhd & Ors [1998] 4 MLJ 86[1998] 4 CLJ 526;Fairview Schools Bhd v Indrani a/p Rajaratnam & Ors (No 1) [1998] 1 MLJ 99[1998] 1 CLJ 285 (CA);Tan Kim Hor & Ors v Tan Heng Chew & Ors [2003] 1 CLJ 634 (CA)).

The petitioner had filed the petition in violation of the express statutory provisions of s 7Reciprocal Enforcement of Judgments Act 1958Re a Company (No 005685 of 1988), ex p Schwarcz (No 2) [1989] BCLC 427 at p 430;Datuk Mohd Sari bin Datuk Hj Nuar v Idris Hydraulic (M) Bhd [1997] 5 MLJ 377Ansa Teknik (M) Sdn Bhd v Cygal Sdn Bhd [1989] 2 MLJ 423

Learned counsel also submitted in the judgment of this court of 7 April 2009 that the court set aside the ex parte order on the ground that the petitioner had failed to register the foreign judgment under the REJA. In view of the fact that the non-registration was fatal to the ex parte order, it must follow that the petition as it stands is wholly unsustainable and is an abuse of process and must be struck out.

Learned counsel submitted that the petition is premised upon a Singaporean judgment which has not been registered under the REJA. The REJA applies to Singapore as it is a reciprocating country. The restriction under s 7 of the REJA means that bankruptcy proceedings could not issue upon a judgment of a reciprocating country (Re Raju Jayaraman Kerpaya ex p Associated Asian Securities (Pte) Ltd [1999] 5 CLJ 23). Learned counsel also referred to the position in the United Kingdom in the case ofIn re a Judgment Debtor (No 2176 of 1938) [1939] 1 Ch 601

It was also submitted that s 7 of the REJA applies to all proceedings for the recovery of a sum payable under a foreign judgment. As the petition is made upon demand for a judgment debt, such winding up proceedings are made with a view of recovering the judgment debt. An analogy was drawn with bankruptcy proceedings (Re Lim Szu Ang, ex p Kewangan Utama Bhd [2005] 7 MLJ 487[2005] 7 CLJ 23;Intrakota Komposit Sdn Bhd & Anor v Sogelease Advance (M) Sdn Bhd [2004] 8 CLJ 276). Accordingly, the petition as it stands is manifestly unsustainable and is an abuse of process of the court and must be struck out in the fact of the 7 April 2009 order of this court.

THE PETITIONER’S REPLY

Learned counsel for