The merits of an appeal do not constitute 'special circumstances' that would justify a stay of execution pending appeal.

...

(e) the company is unable to pay its debts;"

[32] Where Parliament had allowed a company to be so wound up, this Court must not put any obstacle to the presentation of a winding up petition by way of a stay of the judgment given unless there is a bona fide serious dispute on the debt, here arising from an Adjudicated Sum or that otherwise there is an abuse of the Court's process. It goes without saying that until the judgment is set aside on appeal or stayed, there cannot be a bona fide dispute on the judgment sum though there is an appeal pending. Otherwise it would be easy not to pay pursuant here to a judgment given by just asserting that there is an appeal filed.

[33] The fact that the Plaintiff continues to dispute the debt and deny owing the judgment sum does not make the debt one that is disputed bona fide. See Kosma Palm Oil Mill Sdn Bhd & Ors v. Koperasi Serbuasaha Makmur Bhd, 2003 MarsdenLR 1713 , Chase Perdana Berhad v. Md Afendi Hamdan (No 2); [2006] 5 MLJ 798; [2006] 5 CLJ 575 and Walter Pathrose Gomez & Ors v. Sentul Raya Sdn Bhd; [2005] 6 MLJ 555; [2005] 7 CLJ 385.

[34] Under the new s 467(2) of the Companies Act 2016 , much of the severe consequences upon a presentation of the petition in Court have been buffeted by declaring that the commencement of winding up shall be at the date of the winding up order unlike previously when it was upon the presentation of the winding up petition.

[35] It is not for the Plaintiff/Applicant to argue that payment of the debt to their solicitors is as good as payment to the Defendant creditor as the words of s 466(1)(a) of the Companies Act 2016 is clear; it is payment to the creditor or "to secure or compound for it to the satisfaction of the creditor" Payment to the solicitors for the Plaintiff/Applicant as stakeholders until the disposal of the appeal against the order of this Court dismissing the setting aside of the Adjudication Decision is not a securing of the debt to the satisfaction of the Defendant creditor as they have not agreed to that.

Whether That The Judgment Sum Must Be A Final Judgment Before A Stay Of The Judgment May Be Dismissed Or That A Winding Up Petition May Be Presented

[36] It was argued by learned counsel for the Plaintiff/Applicant that a winding up Petition can only be filed on a final judgment. In the present case there is an appeal filed by the Plaintiff against the dismissal of the setting aside application and so therefore it is not a final judgment and on this ground alone the Petition should be dismissed.

[37] There is no merit in the above submission which is misconceived anyway. First, no way does s 465 of the Companies Act 2016 say that the winding up of a company must be premised upon a judgment debt that is a final judgment in that no appeal has been filed against the judgment or that the appeal has been disposed of in favour of the party who had obtained a judgment in its favour in the first instance. That has not been the law with respect to filing a winding up Petition as the test is whether there is a debt which cannot be seriously disputed bona fide.

[38] The Supreme Court in Morgan Guaranty Trust Co of New York v. Lian Seng Properties Sdn Bhd, [1991] 1 MLJ 95 at p 97; [1991] 1 CLJ 317 stated the law as follows:

"The issue is whether on the date of filing of the petition the company was unable to pay its debts. If it is shown by some evidence that the company was unable to pay its debts then the fact that there is a civil suit on the same amount in another jurisdiction is neither here nor there. In any event the debt must be disputed on some substantial grounds: see ReKing's Cross Industrial Dwellings Co [1870] 11 LR Eq 149 and Re Great Britain Mutual Life Assurance Society [1880] 16 Ch D 246 where Jessel MR said at p 253:

... in my opinion it is not sufficient for the respondents, upon a petition of this kind, to say 'we dispute the claim'. They must bring forward a prima facie case which satisfies the Court that there is so