JUDGMENT

Siti Norma Yaakob JCA:

This appeal has a chequered and troubled history. It started off, in relation to the instant appeal, with the appellant filing an originating summons against the respondent on 30 March 1993, seeking replies to three questions that they had posed to the High Court. The three questions relate to an order of court dated 19 November 1979, ("the winding up order") wherein on the petition of the respondent, a judgment creditor, in Companies Winding-Up No. 34 of 1979, Selvam Holdings (M) Sdn. Bhd. ("the company") was ordered to be wound up and the official receiver appointed the Provisional Liquidator of the Company. At that point in time, the only entity registered with the registrar of companies was the appellant, Selvam Holdings (Malaysia) Sdn. Bhd. There was no entity known as Selvam Holdings (M) Sdn. Bhd., the company that was ordered to be wound-up. From our reading and understanding of the petition itself, it is very clear that the respondent intended to wind up the appellant but a non-existent entity that used the abbreviation (M) as part of its name was wound up instead.

To correct the misapprehension that the appellant and the company were one and the same, the appellant tiled Originating Motion D6-25-42-92 on 26 August 1992, against the receiver and manager as well as the liquidator of the company and the registrar of companies as respondents, seeking various orders, the principal one being that the winding up order was not binding or effective on them. On 24 October 1994, Abdul Aziz Mohamad, J, held that Selvam Holdings (Malaysia) Sdn. Bhd. and Selvam Holdings (M) Sdn. Bhd. were one and the same company and that the winding up order was properly made and the receiver and manager and liquidator were properly appointed. There was no appeal against this order and the judgment of the learned judge appears as Selvam Holdings (Malaysia) Sdn. Bhd. v. Toby Lam as the Receiver and Manager and liquidator of Selvam Holdings (M) Sdn. Bhd. and Another [1994] 4 CLJ 899.

Whilst the aforesaid originating motion was part heard and pending decision, the appellant filed the originating summons from which the instant appeal originate, thirteen years after the winding up order, seeking answers to three questions, which we consider to be identical to that raised in the originating motion. Those three questions are as follows.

(1) Whether the winding up order is a nullity.

(2) If question (1) is answered in the negative whether the winding up order binds the appellant.

(3) Even if the winding up order is not a nullity that it does not bind or affect the status of the appellant and that the appellant have not been woundup.

Shaik Daud Ismail, J (as he then was) heard the originating summons two weeks after it was filed, and on 15 April 1993 allowed the appellant's application by declaring that the winding up order was a nullity, it did not affect the appellant and that the appellant had not been wound-up ("the 1993 order").

The 1993 order was drawn up and perfected in late April 1993, and it was after this date that the three interveners before us applied separately for leave to intervene in the originating summons, be added as defendants to the action and that the 1993 order be set aside. The second intervener, Esso Production Malaysia, Inc. filed their application to intervene first on 18 May 1993, followed by the third intervener, Pemegang Amanah Sekolah Rendah Cina Yu Hwa on 6 September 1993, and lastly by the first intervener, BSN Commercial Bank Malaysia Bhd. on 17 July 1995. On 7 November 1997, the High Court allowed the interveners' applications, gave them leave to intervene and set aside the 1993 order. It was to appeal against this order that the parties were before us.

For completeness, we consider that it is appropriate at this stage to state the interests of the three interveners and the reasons why they wish to be added as parties to the originating summons.

The first intervener formerly know