Lee Swee Seng JC:

PROLOGUE

[1]There is a bit of history to this winding up petition. It was filed on 17 January 2005. On 1 August 2007 the respondent filed three interlocutory applications. One was an application for extension of time to file an affidavit to oppose the petition (‘encl 17’). Another was an application to strike out the petition (‘encl 14’) and the third was an application to cross-examine the deponent of the affidavit verifying the petition of one Dr Yap Teow Chong (‘encl 20’).

[2]On 3 September 2007, the court dismissed encl 17 with costs and the court also proceeded to dismiss encls 14 and 20 with costs. The court also on the same date granted an order in terms of the petition and the respondent was accordingly wound up.

PROBLEM

[3]The petitioner is the petition had stated in para 5 that the respondent is indebted to the petitioner in the sum of RM74,092.63 being the balance outstanding sum for goods sold and delivered and services rendered to the respondent and had also set out the particulars of the invoices in terms of its number, date and amount invoiced. The various statements of account and invoices were annexed to the petition and marked exh DPP1. The petition was verified by an affidavit verifying the petition.

[4]There was also an averment in para 6 that a s 218Companies Act

[5]There was the usual averment by para 7 of the petition that over three weeks had lapsed since the statutory demand was served but the respondent had failed and neglected to pay or satisfy the said sum or any part thereof or to make any offer to the petitioner to secure or compound the same.

[6]The petitoner continued in paras 8 and 9 of the petition to state that the respondent is unable to pay its debts and that in the circumstances it is just and equitable that the respondent be wound up. The petitioner prayed for the respondent to be wound up and for the Director General of Insolvency to be appointed the provisional liquidator and for costs to be paid put of the assets of the respondent.

[7]After the winding up order was made the respondent filed four notices of appeal to the Court of Appeal against each of the interlocutory application that was dismissed as well as the winding up order. On the hearing of the appeals on 14 March 2011, the official receiver from the Insolvency Department withdrew the appeals with regard to the decisions on the three interlocutory applications and as such the appeals were struck out. With respect to the appeal against the winding up order, the Court of Appeal allowed the appeal on the sole basis that it was improper to grant a winding up order on a mention date and the Court of Appeal further ordered that the winding up order be set aside and the matter be reverted to the High Court for a hearing date to be fixed for the hearing of the petition.

[8]On 17 August 2011, the respondent filed another application to strike out the petition in encl 50 and also another application in encl 52 to cross-examine Dr Yap Teow Chong with respect to his affidavit affirmed on 18 January 2005. Both encls 50 and 52 were fixed on the same day as the hearing of the petition.

PRINCIPLESApplication to strike out petition — encl 50

[9]Learned counsel for the petitioner rightly objected to the filing for a second time an application to strike out the petition in encl 50. The respondent having failed the first time to strike out the petition and had appealed against the decision of the High Court then only to withdraw the appeal before the Court of Appeal cannot now be allowed to relitigate the issue that had already been determined by the court. There must be a finality to litigation with respect to the same issue canvassed before the court and more so when there had been an appeal against the court’s decision on the issue only to have the appeal withdrawn in the Court of Appeal.

[10]The principle of res judicata as applied by our courts have been expounded in a number of cases. His Lordship Gopal Sri Ram JCA (later FCJ), in Hart