JUDGMENT

Abu Samah JC

This is a notice of motion by the respondent for an order that:

(a) the winding-up order dated 11 November 1994 be set aside and/or rescinded;

(b) all further winding-up proceedings be stayed pending the disposal of the application herein or on such other terms this honourable court deems fit; and

(c) provision be made for the cost of this motion.

At the hearing, learned counsel for the petitioner raised a preliminary objection to the motion on the ground that the court has no jurisdiction to set aside and/or rescind the winding-up order it pronounced on 11 November 1994. The court then proceeded to hear the parties on the preliminary objection first.

The petitioner's submission

Learned counsel for the petitioner submitted that the court has no jurisdiction to set aside and/or rescind the winding-up order made by this court on 11 November 1994 after it had been perfected. Apirami Sdn Bhd v Tamil Nesan (M) Sdn Bhd & Ors [1986] 1 CLJ 493 was cited as authority that an order pronounced by a judge can always be withdrawn, altered or modified before it has been perfected. The judge has control over the case until his order is perfected. In the instant case, the winding-up order had been perfected and extracted and hence it could not be set aside or rescinded.

The proper course for the respondent was to appeal against the winding-up order under s 253 of the Companies Act 1965 ('the Act'): Sri Hartamas Development Sdn Bhd v MBf Finance Bhd [1991] 3 MLJ 325 . Hashim Yeop A Sani CJ in that case stated at p 326:

It is provided quite clearly in s 253(2) of the Act that, subject to the rules, an appeal from any order or decision made or given in the winding up of a company shall lie in the same manner and subject to the same conditions as an appeal from any order or decision of the court in cases within its ordinary jurisdiction. Therefore under that provision, an appeal can be made to this court against an order for the winding up of a company.

1 Palmer's Company Law (24th Ed) at p 1389 states:

The court has inherent power to rectify or rescind an order before it is drawn up …. The court can correct an order even after it has been drawn up if it does not express its intention. Apart from this an order cannot be rescinded after it has been drawn up even though it was obtained by mistake or is bad on the face of it. The court has no jurisdiction to rehear a case after the order has been perfected. Any further proceedings to discharge or vary or challenge the order must be by way of appeal or an application to stay proceedings under s 147 of the Act.

The footnote at p 443 in the The Law of Company Liquidation by McPherson and JO Donovan (3rd Ed) reads:

It is improper to apply for an order rescinding the winding-up order: Re Baxters[1898] WN 60. Compare Re Nicholls Pty Ltd & The Companies Act (1982) 7 ACLR 76. As to termination or rescission of a winding-up order, see Quicksafe Freightlines Pte Ltd v Shell Company of Australia Ltd (1985) 3 ACLC 257 which confirms that s 383 provides only for a stay or termination of the winding up. It does not contemplate that the winding up might be rescinded or set aside.

The powers of the court, it was submitted, are subject to ss 24 and 25 of the Courts of Judicature Act 1964 ('the CJA'). Section 24(c) of the CJA makes specific provision on the High Court's jurisdiction with respect to companies.

s 24 Without prejudice to the generality of s 23 the civil jurisdiction of the High Court shall include —

(c) jurisdiction under any written law relating to bankruptcy or to companies.

The Act or the Companies (Winding-Up) Rules 1972 ('the Rules') contain no provision on setting aside or rescission of a winding-up order by the High Court. Section 243(1) of the Act allows the court to stay a winding-up order, on the application of the liquidator or of any creditor or contributory either altogether or for a limited time on such terms and conditions as the court thinks fit but it does not make