The petitioner must prove creditor status and the existence of a debt in a winding-up petition, especially when the debt is disputed.

[1] This is an appeal by the appellant (respondent in the court below) against the decision of the learned High court Judge dated 13 May 2015 which had allowed the winding up of the appellant pursuant to a petition filed by the respondent herein (petitioner in the court below) under ss 218(e) and 218(2) of the Companies Act 1965 ( CA 1965).

[2] Having heard parties and after taking into consideration the Appeal Records, unanimously, we allowed the appeal with costs. Herein below are our reasons.

[3] Parties shall be referred to, as they were, in the High court.

Background

[4] The petitioner filed a winding up petition against the respondent in the High court. The claim by the petitioner against the respondent is for a sum of RM154,004.82 as due and owing by the respondent to the petitioner.

[5] There was never any judgment obtained by the petitioner against the respondent for the alleged sum due and owing.

[6] On 1 October 2015, the learned Judge allowed the winding up petition against the respondent after refusing to admit the affidavit in reply of the respondent dated 23 September 2015 which was considered by the learned Judge to have being filed out of time, in contravention of r 30(1) of the Rules of Winding up of Company 1972 (the 1st winding up proceedings). The respondent appealed to the court of Appeal on this ruling, which was allowed on 2 February 2016, and the order of winding up against the respondent dated 1 October 2015 was set aside. The court of Appeal remitted back the petition for a rehearing to the High court.

[7] The learned Judge allowed the 2nd Petition of winding up and ordered winding up of the respondent premised on 3 grounds namely:

i) the respondent failed to rebut the statutory presumption of its inability to pay the debt, when it failed to pay after 3 weeks of the 218 notice; and

ii) the respondent based its submission on its Reports and Financial Statement of Accounts (pp 48-70 of the CB). However, a perusal of the same disclosed that there is nothing to indicate that the petitioner owes the respondent the amount of RM144,000.00. The respondent's own Financial Statement of Accounts for the year ending 31 December 2014 shows that the sum of RM154,004.82 under "other payables" as evidencing that this sum is due to the petitioner (p 70 of the CB). There was indeed proof of the said sum of RM154,008.42 as the amount due and owing by the respondent. The learned Judge further found that there has been no denial in any of the affidavits on this fact and therefore there is no dispute on the debt claimed by the petitioner.

iii) the issue of whether the respondent company is solvent was never argued at the application for stay proceedings and the High court had accordingly dismissed the application for stay by the respondent for the winding up. There has never been any appeal by the respondent on this. Therefore, it was the finding of the learned Judge that the respondent company is insolvent.

Grounds Of Appeal By The Respondent

[8] It was argued that the learned Judge erred in law and in fact in allowing the petition of winding up of the respondent for failing to take into consideration the following:

(a) The s 218 statutory notice dated 11 May 2015 issued by the petitioner was not premised on any judgment nor proof;

(b) Vide petition dated 23 July 2015, the petitioner claimed RM154,004.82 against the respondent, which was allegedly the amount due and owing by the respondent. The petitioner alleged that the respondent has knowledge of the said debt and also alleged that the statement of account (which was the respondent's) showing RM154,002.82 was attached with the s 218 notice. Howev