JUDGMENT

Hamid Sultan Abu Backer JC:

[1] This is my judgment in respect of the applicant's notice of motion seeking leave and an order to stay winding up proceedings under s. 243 of Companies Act 1965 (CA) when there is no appeal pending in the Court of Appeal and the winding up order was given as early as 23 June 1997. In this case, the officer of the director of insolvency has filed an affidavit in support of the application. The only creditor has informed the court it has no objection.

[2] The application is based on the following grounds, namely: (i) the respondent has fully satisfied the debts owing to the petitioner; (ii) there are no other debts owing by the respondent to other creditors; (iii) there is nothing for the liquidator to investigate with regard to the conduct of the respondent, its directors and/or its officer. The affidavit in support reads as follows:

The respondent is wholly owned by the applicant and I was advised by my advocates that, for this reason, the applicant is the contributory defined in s. 4(1) and s. 243 of Companies Act 1965 to commence this action. A copy of the Company Search of Respondent printed on 29.8.2007 is exhibited hereto and marked as 'DW1'.

By a court order dated 23 June, 1997, the respondent was ordered to be wound up by the court on the ground that the respondent was unable to pay a debt of RM270,721.90 to the petitioner. A copy of the Winding Up Petition dated 16th January, 1997 and court order dated 23 June, 1997 are now exhibited hereto and marked as 'DW2' and 'DW3' respectively.

There is no other creditor file any proof of debt against the respondent since it was wound up on 23 June, 1997.

On 26th May, 2008, the petitioner had received a payout from Jabatan Accountant in the sum of Ringgit Malaysia Two Hundred and Fifty Thousand (RM250,000.00) only being the agreed settlement sum for all the debts between the petitioner and respondent in toto. A copy of letter from Jabatan Insolvensi Malaysia dated 26th March, 2008 is exhibited hereto and marked as 'DW4'.

After settling the debts owing to the petitioner, the respondent is now clear from all its debts and there is no other debts owing to any creditors of the respondent from the record and accounts of the respondent.

Further, there is nothing for the liquidator to investigate further on the conduct of the respondent, its directors and/or its officer.

There would be new management appointed to the board of the respondent and I verily believe that the new management of the respondent would be able to run and manage the respondent efficiently.

In the premises, I humbly pray for orders in term of this application being granted by this Honourable Court.

[3] The applicant relies heavily on the case BSN Commercial Bank (M) Bhd. v. River View Properties Sdn. Bhd.; [1996] 1 BLJ 307, where the court stated:

Krextile Holdings Ply Ltd v. Widdows [1974] VR 689 at pp 693-694 laid down a principle akin to that of Vijayalakshmi Devi in that the order of a stay of the winding up if expressed in unlimited terms, would put an end to the winding-up process and company can thereupon resume the conduct of its business and affairs as if no winding up existed at all.

Law On Stay

[4] The law on stay of proceedings in company matters can be traced to s. 222 CA 1965 which says that:

At any time after the presentation of a winding up petition and before a winding up order has been made, the company or any creditor or contributory may, where any action or proceeding against the company is pending, apply to the court to stay or restrain further proceedings in the action or proceeding, and the court may stay or restrain the proceedings accordingly on such terms as it thinks fit.

And s. 243 CA 1965 which states:

At any time after an order for winding up has been made the court may, on the application of the liquidator or of any creditor or contributory and on proof to the satisfaction of the court that all proceedings in relation to the winding up ought to b