The court affirmed that non-creditors may intervene in winding up proceedings; the criteria for commercial insolvency must be met to wind up a company.

(Court Enclosure Nos 1, 14, 32 And 42)

A. Introduction

[1] This winding up petition (This Petition) raises, among others, the following questions:

(1) whether a party who is neither a creditor nor a contributory of a respondent company, can apply for leave of the winding up Court to intervene in the winding up proceedings against the respondent company (1st Question);

(2) if the 1st Question is answered in the affirmative, can the purchaser of one of the real properties of the respondent company (Respondent) apply for:-

(a) leave to intervene in This Petition; and

(b) a stay of This Petition pending the completion of the sale in question;

(3) whether the Respondent can apply to stay the Petition pending the completion of the sale of the Respondent's two pieces of real property; and

(4) what is the test to be applied under s 73 of the Courts of Judicature Act 1964 (CJA) and r 13 of the Rules of of Appeal 1994 (RCA) on whether the Respondent can obtain a stay of the winding up order pending the disposal of the Respondent's appeal to the Court of Appeal against the winding up order.

B. Facts

[2] The petitioner bank (Petitioner) had obtained a judgment in default of appearance against the Respondent in the Kuala Lumpur High Court (HC) on 20 October 2014 (Judgment). The Petitioner then obtained an order from the HC to amend the Judgment on 29 January 2015 (Amended Judgment). According to the Amended Judgment, the Respondent shall pay:-

(1) a sum of RM1,331,629.47 as at 4 February 2014;

(2) interest, including penalty interest, at stipulated rates for specified periods of time; and

(3) costs.

[3] On 29 April 2015, the Petitioner's solicitors served by hand a demand (Statutory Demand) under s 218(2)(a) of the Companies Act 1965 ( CA ) for, among others, the Respondent to pay a sum of RM1,174,449.21 (Demanded Sum) as at 29 April 2015 within 21 days from the receipt of the Statutory Demand. The Demanded Sum consisted of the following:

(1) an amount of RM1,331,629.47 due under the Amended Judgment as at 4 February 2014;

(2) interest amounting to RM141,319.74 as calculated according to Amended Judgment;

(3) costs; and

(4) less 3 payments made by the Respondent to the Petitioner on 20 May 2014, 19 June 2014 and 27 January 2015 totalling RM300,000.00.

[4] The Respondent did not pay the Demanded Sum within the 21 days' period as stipulated in the Statutory Demand. Consequently, the Petitioner filed This Petition to, among others, wind up the Respondent and to appoint the Official Receiver (OR) as the liquidator of the Respondent.

C. Two Interlocutory Applications

[5] In Court enclosure No 14 (Court Enclosure No 14), the Respondent filed a summons in chambers for the following orders, among others:

(1) This Petition be struck out (1st Prayer in Court Enclosure No 14). The Respondent's learned counsel withdrew the 1st Prayer in Court Enclosure No 14 in his written submission;

(2) as an alternative to the 1st Prayer in Court Enclosure No 14, all proceedings in This Petition be stayed under the Court's inherent jurisdiction until the Respondent completes the sale of the Respondent's two real properties (2 Sales) as follows:-

(a) a two-storey shop office held under Master Title No PN 30378, Lot 28055, Mukim Setapak, Kuala Lumpur (KL Shop Office) which has been charged to the Petitioner under the National Land Code (NLC); and

(b) a piece of industrial land held under Title No PN 16690, Lot 28664, Mukim Sungai Karang, Kuantan, Pahang (Kuantan Land) which has been charged to AmIslamic Bank Bhd (AIBB) under the NLC

(2nd Prayer in Court Enclosure No 14);

(3) if and when necessary, the Petitioner to consent to the 2 Sales (3rd Prayer in Court Enclosure No 14); and

(4) costs of Court Enclosure No 14 to be borne by the Petitioner.

[6] On 4 November 2015, Unison Marine (M) Sdn Bhd (Proposed Intervene