Gopal Sri Ram JCA:

Preliminary

There are several appeals that are being disposed of by this judgment. They all arise out of the same dispute. It has to do with an order of winding up made against the appellant company. A few words first about how we came to hear these appeals.

On Monday, 2 April 2001, a company called Anafartalar Caddesi Sdn. Bhd moved us on an application for stay of execution of a winding up order made against the appellant. It is a contributory of the appellant. After a short argument, we permitted the applicant company to be added as a co-appellant and directed the cause papers before us to be amended to reflect this. We also granted a stay of execution pending appeal. Since the matter was of some importance to the parties, it was by consent ordered that the motion for stay be treated as the appeal proper. Leave was then given to the appellants to formally lodge and serve its memorandum of appeal by 11am the following day sans any supporting documents. The parties before us, including the supporting creditors were given liberty to put in one affidavit to complete the record if necessary. We then fixed the appeal for hearing on 5 April 2001.

Standing To Apply For A Stay

As I said earlier, the applicant is a contributory of the appellant. It had taken no part in the proceedings in the court below. Yet it was moving us for a stay. Now that sounded to me to be a bit odd. I would have thought that the proper party to make such an application was the appellant itself. I said so during argument. We were then told that the appellant had indeed made a similar application earlier. But it had withdrawn it on the strength of a decision by another division of this court. That decision was to the effect that it was not competent for a company that had been wound up to make an application to stay execution of the winding up order.

I must be forgiven if I express my strong dissent against any such view. Both principle and the weight of authority are against it. So far as principle is concerned, one need only refer to the relevant statutory provisions.

First, there is s. 253(2) of the Companies Act 1965. It reads as follows:

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.

For completeness, I would mention that the expression "court" is defined by s. 4 of the Companies Actas meaning the High Court or a judge thereof.

Next, there is s. 67(1) of the Courts of Judicature Act 1964which provides as follows:

The Court of Appeal shall have jurisdiction to hear and determine appeals from any judgment or order of any High Court in any civil cause or matter, whether made in the exercise of its original or of its appellate jurisdiction, subject nevertheless to this or any other written law regulating the terms and conditions upon which such appeals shall be brought.

Lastly, there is s. 44(1) of the Act of 1964 which provides as follows:

(1) In any proceeding pending before the Court of Appeal any direction incidental thereto not involving the decision of the proceeding, any interim order to prevent prejudice to the claims of parties pending the hearing of the proceeding, any order for security for costs, and for the dismissal of a proceeding for default in furnishing security so ordered may at any time be made by a Judge of the Court of Appeal.

Applying these sections to a case as the present, the following conclusions result. First, that a company that has been ordered to be wound up has a right to appeal against that order. Second, that after lodging its notice of appeal, the company is entitled to apply to the Court of Appeal for a stay of the winding up order in the ordinary way. In other words, incorporated into the right to appeal against a winding up order is the further right to apply for all ancillary reli