JUDGMENT

Mah Weng Kwai J:

(1) This is an appeal by the Pegawai Penerima Malaysia (official receiver) against the decision of the court given on 14 April 2011 which ordered the official receiver to pay the costs of the winding-up proceedings to the petitioner.

(2) Leave to appeal against the decision of costs was granted by the Court of Appeal on 30 September 2011.

(3) Background Facts

3.1. The petitioner filed a winding-up petition against the respondent on 5 January 2011.

3.2. On 21 September 2010, before filing the petition, counsel for the petitioner made a company search with Suruhanjaya Syarikat Malaysia (SSM) and was informed that the status of the company was "winding-up". The name of the respondent and the company number were cited. The abbreviated words of "Sdn Bhd" were spelt with a dot after the words "Sdn." and "Bhd.".

3.3. Counsel for the petitioner made a second company search on 8 December 2010. This time the search was made with Jabatan Insolvensi Malaysia (JIM) from the counsels office portal (http://callback.rilek.com.my). Counsel had cited the name and the company number of the respondent. However, on this occasion the abbreviated words "Sdn Bhd" were spelt without the dots after the words "Sdn" and "Bhd". The result obtained from this search showed that the respondent was not wound up.

3.4. Upon filing and extraction, the petition was served on inter alia, JIM on 5 January 2011.

3.5. On 14 January 2011, counsel for the petitioner informed JIM by letter that the hearing of the petition was fixed on 3 March 2011.

3.6. However on 2 March 2011, that is, a day before the hearing, the official receiver informed counsel for the petitioner by telephone that the respondent had in fact been wound up much earlier on 20 September 2007.

3.7. At the hearing on 3 March 2011, the petitioner had no alternative but to withdraw the petition. Counsel prayed for costs to be paid by the official receiver in light of the circumstances leading to the withdrawal and striking off the petition by the court and for the deposit to be returned.

Decision Of The Court

(4) Upon reading the written submissions of counsel for the petitioner and the official receiver and upon hearing the oral submissions of the parties, the court exercised its discretion and ordered that costs of the proceedings be borne by the official receiver and that the deposit be returned to the petitioner.

Grounds Of Decision

(5) The only issue in this appeal is whether the court had exercised its discretion properly and judiciously when granting the order for costs.

(6) Status Of Official Receiver

6.1. "Official receiver" under the Companies Act 1965 has been defined to mean the "official assignee" and other officers appointed under the Bankruptcy Act 1967. While the Bankruptcy Act 1967 does not define "official assignee", the Act does define "Director General of Insolvency" to include any officer appointed under s. 70 and authorised to exercise the powers of the Director General of Insolvency. And s. 71 of the Bankruptcy Act provides that the duties of the Director General of Insolvency shall have relation both to the conduct of the debtor and to the administration of his estate. As regards the estate of a debtor, the Director General of Insolvency shall act as the receiver of the debtors estate and act as manager thereof where a special manager has not been appointed. Thus, by definition it is incumbent upon the official receiver to exercise his duties as a receiver of the debtors estate. In this case, it will be incumbent upon the official receiver to exercise his duties as a receiver of the respondent company. And in the exercise of his duties, the court is of the view that the official receiver is obliged to check the records whenever a winding up petition has been filed and to inform the petitioner expeditiously and accurately of the status of the respondent company, if it has already been wound up.

6.2. Rule 25(3) of the Companies (Winding-up