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JUDGMENT
Low Hop Bing J:
Petition
Before me is the petitioner's petition in encl. (1) to wind up the respondent under
Unless the context otherwise requires, a reference to a section and a rule hereinafter is a reference to that section in the Companies Act 1965 and the rule in the Companies (Winding Up) Rules 1972 respectively.
Factual Background
The petitioner alleged that the respondent is indebted to him in the sum of RM395,740.24 ("the said sum"), for which the petitioner has served a three-week notice of demand dated 6 June 2001 issued and signed by its solicitor under s. 218(2)(a) ("statutory demand"), allegedly being the balance due for works done by the petitioner for the respondent from 1996 to 1998 in the development of 36 units of single-storey terrace houses on Lot 2075 Mukim of Bukit Lintang, Melaka ("the housing development").
The respondent did not pay the said sum and so the petitioner said that the respondent is unable to pay its debt.
These allegations of fact are contained in the petition. The petitioner has not obtained any judgment against the respondent for the said sum.
The respondent has filed and served encl. (5) ie, the notice of intention to oppose the petition, and encl. (6), the respondent's affidavit opposing the petition.
Submission For Petitioner
En. Lim Whei Chun, learned counsel for the petitioner, relied on r. 26 and submitted that by the petition, the petitioner has proved that the respondent is prima facie unable to pay its debt, and added that the respondent has failed to disprove the debt.
It was contended that "large chunks" of encl. (6) are inadmissible as under , because encl. (6) may contain only such facts as the deponent is able of his own knowledge to prove and that it does not appear to be perfectly understood by the deponent, since it did not contain anything to indicate that the deponent reads English and understands perfectly the English exhibits annexed thereto. He cited ; [1995] 2 CLJ 152; [1995] 1 AMR 513, 154 a-b;
His stand is that the law demands that the natural person, author or maker of a document has to be identified, relying on
He continued that since exhs. S3, S6 to S9 in encl. (6) were not made by the deponent, they should be struck out or disregarded as being inadmissible.
Hence, he stressed that the absence of the petitioner's contradicting under oath against the respondent's allegations in encl. (6) did not mean that the said allegations are deemed to be admitted by the petitioner, as the deeming of admission only usually but not always applies when the allegations are inadmissible.
It was argued that O. 1A and did not defeat his submissions as those rules came into effect well after the petition and applying those rules would cause injustice to the petitioner, and on the basis of L'Office Cherifien Des Phospates v. Yamashita Shinnihon Steamship Co. Ltd [1994] 1 AC 486, he said that injustice is an exception to the presumption of restrospectivity of precedural rules. He relied on
On the other hand, it was said that even if encl. (6) were to be considered, it was still insufficient to establish any bona fide dispute against the debt, and that the respondent's claim for late completion would fail, on the ground that losses cannot be claimed simpliciter but must be proved under
Anoth
