JUDGMENT

Noor Hisham Ismail J:

(Enclosure 1 And Enclosure 35)

Introduction

[1] There are two matters before this court.

[2] The first is the Petition for Winding Up dated 21 November 2022 (encl 1) filed by the petitioner ("P") against the respondent ("R") under s 465(1)(e) of the Companies Act 2016 ("CA 2016") for inability to pay debts and inability to meet the demands for the said debts within the stipulated period as stated in the Notice of Demand under s 466(1)(a) of CA 2016.

[3] The second is an application also by the petitioner by way of Notice of Motion dated 23 November 2023 (encl 35) to appoint a private liquidator for the respondent under ss 477, 478 and 479 of CA 2016.

The Factual Background

[4] By letter of award dated 27 November 2015, P appointed R as a subcontractor for structural steel works ("Work") in the MRT Kajang Line project ("Project") for a fixed maximum contract sum of RM4,541,670.00.

[5] Due to certain disputes over payment, P and R had both initiated actions against each other.

[6] R on 26 February 2018 had initiated an adjudication proceeding against P under the Construction Industry Payment Adjudication Act 2012 ("CIPAA").

[7] On 1 August 2018, the Adjudicator awarded a sum of RM2,363,028.92 as the adjudicated sum to be paid by P to R ("Adjudication Decision").

[8] On 21 November 2018, the High court of Shah Alam enforced the Adjudication Decision as if it is a judgment or order of the High court ("CIPAA Order").

[9] Based on the CIPAA Order, R on 25 February 2019 had presented a winding up petition at the Shah Alam High court against P based on the CIPAA Order. As a result, P was wound up by the Shah Alam High court on 5 August 2019.

[10] P on the other hand had initiated a Writ Action at the Johor Bahru High court ("JBHC") against R on 13 April 2018 for a sum of RM2,795,000.00 as Liquidated Ascertained Damages and a further sum of RM65,591.26 as Debit Notes. R had in this regard filed its counterclaim against P principally for the Revised Final Claim sum of RM2,504,810.67 and Retention Sum of RM228,400.00.

[11] On 21 July 2020, JBHC allowed P's (in liquidation) claim and dismissed R counterclaim with costs of RM40,000.00 ("JBHC Judgment").

[12] R appealed against the said JBHC Judgment but on the application by P, the said appeal was struck out in part by the court of Appeal ("COA") on 20 January 2021.

[13] On 13 September 2021, the Federal court dismissed R's application for leave to appeal against that part of the decision by the COA.

[14] On 30 March 2022 the COA dismissed the remaining part of R's appeal against the JBHC Judgment.

[15] 27 April 2022 R applied for leave to appeal against the said COA's decision to the Federal court. Pending the said leave application, the COA had granted a stay to R with a condition that R has to deposit a sum of RM1,000,000.00 with R's solicitors within 10 days from the date of the stay order and with an undertaking that the said sum is to be released to P should the Federal court dismiss R's leave application.

[16] R failed to deposit the said RM1,000,000.00 to its solicitors as a condition for the said stay.

[17] As a result, P took the position that the stay was no longer operative.

[18] On 17 October 2022, P served the Notice of Demand pursuant to s 466(1)(a) of CA 2016, demanding R to settle the then total outstanding JBHC Judgment sums of RM3,600,325.18 as of 17 October 2022 ("Statutory Notice").

[19] 31 October 2022, R withdrew its leave application to appeal at the Federal court with agreed costs of RM10,000.00.

[20] Hence on 21 November 2022, P filed encl 1 herein for an order of winding up against R. Subsequently, P also filed encl 35 for an order to appoint private liquidator for R.

The Cause Papers And Issues Raised By R For Enclosure 1 And Enclosure 35

[21] The cause papers filed for the purpose of the hearing of encl 1 are as follows:

(i) P's Petition for winding up dated 21 November 2022 - encl 1

(ii) P's Affidavit Verifying Petition dated 22 November 2022 ("AVP") - encl