回收您的债款 偿债 或 清盘 你的债务人

Chinese 中文

Recover Your Debts- Pay Up or Wind Up Unsecured Creditors
收复您的债款- 偿债 或 清盘无担保的债权人

English Version
Versi Bahasa Malaysia

Unsecured Creditors Recover Your Debts- Pay Up or Wind Up
In the recovery of your debts, we regard a winding up petition as one of the most effective methods.   The sharpest tool in the box.


Unsecured Creditors Get Paid Ahead of the Bankers- the Concept of Pay Up or Wind Up

Many creditors have this  idea that if we   wind up our  debtors,   the bankers will be the biggest benefactor…  The bankers will be entitled to sell all the assets and pay themselves.

无担保的债权人将会比银行家先领到钱 -偿债或清盘的概念


The Remedy: Unless Order
We have to ask for a perfectly ‘timed’ Order,  just before the winding up Order is granted.   In this Order, the debtors are given an opportunity to pay the debts by a certain deadline otherwise they will be wound up by the Court.    We call this the ‘unless order’, or the ‘pay up or wind up’ order.

在清盘指令被批准前,我们必须要求一个准确的定时指令。在这种指令下,债务者们将被给予在一个期限前偿还债务的机会否者就会被法庭勒令清盘。我们称这为’否则指令’, 或“偿债或清盘”指令。

The concept of an Unless Order first entered  the Malaysian Jurisprudence in the year 2003, when Mr Alex Chang   appeared in , KTL SDN BHD V. AZRAHI HOTELS SDN BHD [2003] 3 CLJ 49 at page 51, where you can find  the following extract from the Original Judgment of Dato Vincent Ng J (as he then was):

否则指令的概念第一次出现在马来西亚司法是在2003年,张惠华大律师代表的一件案子,KTL SDN BJD V. AZRAHI HOTELS SDN BHD [2003] 3 CLJ 49,第51页,你可以找到以下拿督黄大法官的原文判决摘要

Mr. Alex Chang, who appeared for the second supporting creditor, suggested that the Respondent be given an opportunity to resolve the matter, failing which the winding up order be made. In all fairness, he suggested a later date, sometime in mid April 2002. His suggestion was enthusiastically received by Mr. Puspanathan.

张惠华先生,也就是第二债权人的代表律师向法庭建议,再给予答辩人,一次偿还债务的机会,为了公平起见,倘若答辩人仍无法在所建议的 2002 年四月中前与诉讼人达成协议并解决纠纷,该公司将被清盘。他的这项建议得到了Puspanathan 先生的认同。

The Difficulty
The  timing of the request is most crucial, if you make the suggestion too early during the hearing, the Judge may be annoyed as we as counsel (lawyers)  may not preempt (forecast)  what is on the mind of the Court.   The Court may ask us in turn, “…how could you be so sure that the Court will grant the winding up order?”

On the other hand, if we ask a little too late, the winding up order would have already been granted and the Court may not change the order.

What If We Did Not Ask For an Unless Order

If an unless order is not granted, the usual winding up order be made and in the debtor company will be wound up in the usual fashion, that is, the bankers will be paid first.  To find out more read click here What happens after compulsory winding-up?
如果否则法令不被应许,那么一般的清盘指令就会被做出然后债务公司就会以跟往常一样的方式被清盘,那就是,银行家们会先领到钱。想了解更多读点这里 强制清盘后会发生什么事?

Must I obtain a Judgment BEFORE filing a winding up petition against my debtors?
The general rule is no, to read more click here.

Must I obtain a Judgment BEFORE filing a winding up petition against my debtors?

This is one of the most frequently asked questions.   A short answer is no.

There are however, many colleagues at law who will advise you as a matter of prudence to obtain a judgment in a civil court before presenting/ filing the Companies Winding Up Petition.

Disputed Debts

Generally, if there are no bona fide disputes   (disputed on substantial grounds),  a creditor need not obtain a judgment in a civil court before presenting/ filing  a companies winding up petition.

Reported Authorities

These are matters handled by our Mr Alex Chang where a Companies Winding Up Petition was presented in the absence of a Judgment first had and obtained:

  • Campana Distributor Sdn Bhd v Amseal Engineering (M) Sdn Bhd [1998] 2 AMR 1330
  • Petro-Pipe Industries (M) Sdn Bhd v FW Industries Berhad [2006] 1 LNS 254
  • Vearrian Tanzania Ltd (Formerly known as Virian Tanzania Ltd) v CNLT (Far East) Berhad, the ground of judgment dated January 16, 2009
  • KTL Sdn Bhd v Azrahi Hotels Sdn Bhd [2003] 5 MLJ 503
  • PECD Construction Sdn Bhd v Freehold POint Sdn BHd [2008] 3 CLJ 215
  • NCK Wire Products Sdn Bhd v Konmark Corp Sdn Bhd [2001] 6 MLJ 57
  • CCM Chemicals Sdn Bhd v Urethane Technologies Sdn Bhd [2007] 3 MLJ 676
  • FW Industries Berhad v Suitech Sdn Bhd [2008] 3 CLJ 210

这案件随后被报道了,请查阅 KTL SDN BHD V. AZRAHI HOTELS SDN BHD [2003] CLJ 49 的案例,第51页   原审判决  Original Judgment 以上就是偿债否则被清盘  的概念…


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