A winding-up petition is independent from execution of a judgment, and failure to file an affidavit in opposition is fatal to the defense, demonstrating insolvency when supported by creditors.

[1] This is an appeal against the decision of Penang High Court judge dated 6 August 2007 in granting an order in terms of the windingup petition (encl (1)) filed by Tan Soon Ping, (the petitioner/respondent in this appeal) in ordering Juara Aspirasi Sdn Bhd (the appellant in this appeal, subsequently referred to as 'the company') to be wound up. We dismissed this appeal for the following reasons.

[2] The background facts are these. On 1 November 2006 the petitioner filed a petition to wind up the company. The petitioner had on 4 February 2005 obtained judgment in the sum of RM47,288.64 against the company vide Penang High Court Civil Suit No 22-244 of 2004. Prior to the filing of the winding up petition (ie on 3 October 2006), the petitioner had, through his solicitors, issued a notice to the company under s 218 of Companies Act 1965 demanding payment of the judgment sum. The company had failed and neglected to pay the same or any part thereof to the petitioner In this situation the petitioner contended that the company was unable to pay its debts and that it was just and equitable for the company to be wound up.

[3] Six supporting creditors gave notice of their intention to attend the hearing of the petition where the following sums were stated to be due to them from the company: CHRB Utara the sum of RM227,791.45; Khoo Yew Choo the sum of RM36,649.96; Soranam a/p Subramaniam the sum of RM38,261.19; Halijah bt Sudin & Rimi bin Bah the sum of RM17,567.12; and Raj Kane a/l Kane Edran the sum of RM16,129.10.

[4] The company did not file any affidavit in opposition to the winding up petition. The company instead filed a summons in chambers on 4 April 2005 (encl (16)) and an affidavit is support to strike out the winding up petition instituted against them. The petitioner objected to this application to strike out and took issue with the matters raised by filing an affidavit in reply.

[5] Both, encl (16) as well as the winding up petition, encl (1), came up for hearing on the same date ie 30 March 2007.

[6] The High Court judge proceeded to hear encl (16) first. Based on the affidavits filed in support and in opposition to the application to strike out, and after hearing submissions of all parties, the High Court judge dismissed encl (16). The High Court judge then proceeded to hear encl (1) on its merits. On 6 August 2007 the learned judge granted an order in terms of encl (1), which decision is the subject matter of the appeal before us.