VINCENT NG J

: This is an appeal against my decision refusing the application (‘encl 5’) by the respondents, Sentul Raya Sdn Bhd (‘the respondents’), for an injunction to restrain the petitioners, their agents, etc from advertising or otherwise publishing the existence or contents of the winding up petition. The application was supported by the affidavit affirmed by Hamidah bte Maktar on 24 August 2001 (‘encl 4’). I had initially directed that the application be heard inter partes but upon the insistence of the respondents (see para 20 of encl 4), encl 5 was heard ex parte though somehow the petitioners’ lawyer was present when the petition was heard on 30 August 2001 (presumably, notice was given to him as indicated under para 20(b) of encl 4).

After hearing an oral submission only from counsel for the respondents, Mr Michael Chow, I dismissed the ex parte interlocutory orders sought without calling on counsel on the other side, Mr Richard Tee, who indicated at the outset that he wished to have encl 5 treated as a opposed ex parte application (see Pickwick International Inc (GB) Ltd v Multiple Sound Distributors Ltd Lim Hean Pin v Thean Seng Co Sdn Bhd & Ors

It is important to note that the Companies Act 1965 (‘the Act’) has provided, a respondent company in a winding up petition, ample recourse or mode of relief which would include the invocation of s 221 of the Act, which reads:

(1) On hearing a winding up petition the Court may dismiss it with or without costs or adjourn the hearing conditionally or unconditionally or make any interim or other order that it thinks fit, but ...

(2) The Court may on the petition coming on for hearing or at any time on the application of the petitioner, the company, or any person who has given notice that he intends to appear on the hearing of the petition …

(f) give such directions as to the proceedings as the Court thinks fit. (Emphasis added.)

It is beyond question that the respondents did not frame their application in encl 5 under s 221 of the Act (of course, upon a certificate of urgency) for a stay which they could have done, and there was no explanation for this. At this juncture, I am reminded of the dicta of Raja Azlan Shah Ag LP in Land Executive Committee of Federal Territory v Syarikat Harper Gilfillan Bhd

As a general rule where a statute creates a new obligation and provides a special mode of enforcing it, no other court has jurisdiction to enforce that obligation. The case generally referred to, as establishing that rule is Pasmore v Oswaldtwistle Urban District Council

‘The principle that where a specific remedy is given by a statute, it thereby deprives the person who insists upon a remedy of any other form of remedy than that given by the statute, is one which is very familiar and which runs through the law. I think Lord Tenterden accurately states that principle in the case of Doe v Bridges (1 B & Ad, 847 at p 859). He says: ‘where an Act creates an obligation and enforces the performance in a specified manner, we take it to be a general rule that performance cannot be enforced in any other manner. …’

We now ask ourselves, what is there in the National Land Code which bars declaratory relief. Section 418 of the Code must now be looked at. If on a proper reading of it leads one to the conclusion that it is the intention of Parliament to create the right absolutely and independently of any specific form of remedy, the respondents’ action is well maintained. If on the other hand the proper interpretation is that the right and the remedy are uno flatu, that they are not mutually exclusive, that they are part and parcel of the remedy, then the action is misconceived. Reading s 418 of the Code, we are satisfied that the latter is the correct interpretation. (Emphasis added.)

Though Syarikat Harper Gilfillan Bhd was referred to and adopted by me in Shell Malaysia Trading Sdn Bhd v Pemungut Duti Setem, Pulau Pinang

Generally viewed, it is interesting to note that a company that is subject