JUDGMENTBY: ZAKARIA YATIM J

This is an application by a company known as Yap Kim Kee and Sons Sdn Bhd (hereinafter referred to as the company) for an order that (a) the petition to wind up the company filed on 20 May 1988 be set aside; and/or (b) that all further proceedings be stayed until the final determination of the companys application for further arguments and/or further appeal in respect of the matter in Civil Suit No C7521 of 1985. The applicant asks that the costs of the application be costs in the cause.

I shall first deal with prayer (a). In the petition, the petitioning creditor states that the company is indebted to the petitioning creditor in the sum of $ 145,000 together with costs of $ 350 based on a judgment obtained in the High Court. The petition also states that a demand in writing dated 19 November 1985 for the payment of the said sum was sent to the companys registered office but no payment was made by the company. According to the petition, the company is unable to pay its debt and it is just and equitable that the company be wound up.

In order to consider prayer (a), it is relevant to see the sequence of events in the civil suit from the time the letter of demand was sent to the company to the time the judgment creditor obtained judgment against the company. Before the writ was issued the petitioning creditor, who was the plaintiff in the civil suit, wrote a letter of demand dated 19 November 1985 to the company, which was then the first defendant, and one Yap Kim Kee, the second defendant in the civil suit. The letter of demand required the defendants to repay the plaintiff immediately a sum of $ 232,000, failing which the plaintiff would institute legal proceedings against the defendants.

On 20 November 1985, the plaintiff filed a writ of summons in the High Court at Kuala Lumpur. In the statement of claim, the plaintiff claimed the same amount as stated in the letter of demand, that is the sum of $ 232,000. On 28 November, the defendants entered appearance and on 18 December, the defendants filed their defence. On 25 January 1986, the plaintiff filed an application for summary judgment under O 14 of the Rules of the High Court 1980. The application was supported by the affidavit of one Yap Chin Huat, the director of the plaintiff, affirmed on 24 January 1986. In that affidavit, the deponent averred that the defendants were at the commencement of the suit truly and justly indebted to the plaintiff jointly in the sum of$ 232,000 and interest and costs. According to him, by a letter dated 19 November 1985, the plaintiff through its solicitors made demand upon the defendants for the return of the money. He added that despite the demand the defendants failed, refused and neglected to pay the sum claimed. The letter of demand was exhibited to the said affidavit. The second defendant, Mr Yap Kim Kee, affirmed an affidavit on 22 September 1986 opposing the plaintiffs application for summary judgment. In that affidavit, the deponent averred that the defendants were surprised to receive the letter of demand. He also averred that the sum of $ 145,000 was in fact paid to or received to the use of Mr Yap Chin Huat and the remaining sums of $ 57,000 and $ 30,000 paid to or received by other persons best known to the plaintiff or Mr Yap Chin Huat, its director. The deponent added that the defendants challenged the genuineness of the plaintiffs claim and asked the court to dismiss the application for summary judgment with costs. On 24 September 1986, the same deponent affirmed an affidavit and stated, inter alia, that the defendants had a strong defence to the claim and that the plaintiffs application ought to be dismissed with costs.

On 11 December 1986, when the application for summary judgment came up for hearing before the senior assistant registrar, the defendants and their solicitors were absent, and the senior assistant registrar ordered that final judgment be entered for the plaintiff against the