JUDGMENTBY: HASHIM YEOP A SANI CJ (MALAYA)

(delivering the judgment of the court): On 18 July 1991, a winding-up order was made by the High Court, Kuala Lumpur (Zakaria Yatim J) against Sri Hartamas Development Sdn Bhd (the applicant in the motion before us) after ruling that the company had been unable to pay its debts consisting of claims by judgment creditors totalling $ 37.1m and claims by supporting creditors amounting to $ 1.4m. On the same day, an application for stay was refused by the same learned judge who also appointed the official receiver as provisional liquidator.

An appeal against the winding-up order was filed on 20 July 1991. The motion before this court was for an order of stay of the winding-up order pending disposal of the appeal.

In the affidavit in support of the motion, the grounds given for the application for stay was that in actual fact the company had very much more assets than debts, could settle all the debts and was therefore not insolvent. It is said that the company had its assets valued by an international valuer, Jones Lang Wooton, at $ 597,590,000.

At the commencement of the hearing of the motion, Mr SC Loh, counsel for the respondent, MBF Finance Bhd, raised a preliminary objection that the applicant was not one of the persons described in s 243(1) of the Companies Act 1965 (the Act) to make the application for stay. It was contended by Mr Loh, quite correctly in our view, that under s 243(1) of the Act after an order for winding up has been made by the court, the application for stay of all proceedings relating to the winding up may be made only by the liquidator or any creditor or contributory. Thus any other person is not qualified to apply for stay under that section. Upon such application under s 243(1) of the Act the court may order stay of the proceedings on such terms and conditions as the court may think fit.

It is also not disputed that the word court appearing in s 243 means the High Court as defined in s 4 of the Act.

However, in our view, Mr Loh was not, with respect, correct if he said that the company could not appeal at all against the winding-up order. It is provided quite clearly in s 253(2) of the Act that, 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. Therefore under that provision, an appeal can be made to this court against an order for the winding up of a company.

Where there is a right of appeal it is implicit that there is also a right to make any incidental application in respect of a pending appeal to this court. The authority for this is to be found in s 44(1) of the Court of Judicature Act 1964 itself which reads as follows:

In any proceeding pending before the Supreme Court 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 Supreme Court.

In respect of the present motion before us, it is to be observed that there is only one affidavit in support of the motion and the affidavit is by the solicitors of the company, which affidavit merely states that as solicitors of the company, they are making the application for stay pending disposal of the appeal. The rest of the affidavit deals with the grounds relied on for the application for stay.

In Re Union Accident Insurance Co Ltd [1972] 1 All ER 1105, it was held, inter alia, that notwithstanding the appointment of the provisional liquidator and the general assumption by him of the companys powers, the board still retained certain residuary powers which included authority to