Case Summary

The appellant was indebted to the respondent, a finance company in the sum of RM3,908,860.31 as at 26 January 1998. On 24 June 1998 the respondent's solicitors served on the appellant a notice pursuant to s 218 of the Companies Act 1965 requiring the appellant to pay the aforesaid sum. The appellant however did not make any payment. Thus, on 26 November 1998, the respondent presented a petition to wind up the appellant. The appellant's solicitors served on the respondent's solicitors a copy of notice of intention to appear and of intention to raise a preliminary objection, namely, that there was non-compliance with r 26 of the Companies (Winding Up) Rules 1972 (‘Rules’) on the part of the respondent. The appellant did not file any affidavit in opposition to the petition within the time specified in r 30(1) of the Rules. When the matter came up for hearing on 22 February 1999, the appellant argued that since the affidavit was filed together with the petition, the implication was that the affidavit was sworn earlier. The learned judicial commissioner (‘JC’) dismissed the preliminary objection and ruled that there was nothing wrong with the petition and that the matter could be rectified by the re-swearing of the affidavit verifying the petition. The respondent was ordered to re-file its affidavit verifying the petition. When the petition came up again for hearing on 12 April 1999, the appellant who had yet to file an affidavit in opposition of the petition applied for an adjournment on the ground that it did not receive from the High Court Registry the notice of the hearing date. The appellant claimed that it was only informed of the date of hearing by the respondent's solicitors by their letter dated 7 April 1999 and made an oral application for an abridgement of time to file an affidavit in opposition to the petition. The learned JC refused the applications, went on to hear the petition and granted the order of winding up as prayed for. The appellant appealed.

Held, dismissing the appeal with costs:

(1) Documentary evidence adduced showed that as at 28 October 1997 the appellant owed a company called Wei Sin Construction Sdn Bhd (‘WSCSB’) an outstanding amount of RM3,908,860.31. Further, the appellant had on 3 November 1997 acknowledged that it had notice of the assignment between the respondent and WSCSB and confirmed that the said outstanding amount as it stood was correct and affirmed that it will make all payment under the arrangement to the respondent. The debt was never disputed by the appellant. Thus, there were no merits in the appeal (see para 17).

(2) The facts clearly showed that the appellant knew of the date of hearing of the petition and had ample time to file the affidavit in opposition to the petition pursuant to r 30(1) of the Rules, but the appellant chose not to do so. Rule 30(1) of the Rules clearly provides that an affidavit in opposition to wind up shall be filed and a copy thereof served on the petitioner or his solicitors at least seven days before the date fixed for the hearing of the petition. Thus, it was unreasonable to suggest that r 30(1) of the Rules need not be complied when raising a preliminary objection (see para 20).

(3) The power to grant an adjournment of the hearing of any matter or any trial is discretionary. On the facts, the circumstances surrounding the refusal to grant the adjournment were clear. Thus, any reasonable tribunal similarly circumstanced would not have granted that adjournment (s