{"id":428,"date":"2014-05-30T07:33:33","date_gmt":"2014-05-30T07:33:33","guid":{"rendered":"http:\/\/alexchanglaw.com\/kuala-lumpur-bar-committee-talk-introduction-tos-218-winding-up-proceedings-on-april-5-2013\/"},"modified":"2016-07-12T11:47:31","modified_gmt":"2016-07-12T03:47:31","slug":"kuala-lumpur-bar-committee-talk-introduction-tos-218-winding-up-proceedings-on-april-5-2013","status":"publish","type":"post","link":"https:\/\/alexchanglaw.com\/index.php\/kuala-lumpur-bar-committee-talk-introduction-tos-218-winding-up-proceedings-on-april-5-2013\/","title":{"rendered":"KL Bar Committee Talk: Introduction to s 218 Winding Up Proceedings"},"content":{"rendered":"

\"\"
\n<\/span><\/span><\/span><\/p>\n

The Seminar presented for The Kuala Lumpur \u00a0Bar Committee – by Mr Alex Chang<\/span><\/span><\/span><\/p>\n

We have reproduced below the outline of the seminar for your easy reference.<\/p>\n

For our articles relating to winding up and debt recovery click here<\/a>.<\/h3>\n

Have a Question about your debts?<\/a><\/span><\/h4>\n

The Notes for KL Bar Committee Talk: “Introduction to s 218 Winding Up Proceedings”<\/h3>\n

1\u00a0\u00a0\u00a0 Bankruptcy and Winding up
\n1.1\u00a0\u00a0\u00a0\u00a0\u00a0 Is a Judgment required prior to the filing of a Companies Winding Up Petition?<\/p>\n

 <\/p>\n

2\u00a0\u00a0\u00a0 An Introduction to Companies Winding Up Petitions
\n2.1\u00a0\u00a0\u00a0\u00a0\u00a0 Companies incorporated under the Companies Act may be wound up.<\/p>\n

2.2\u00a0\u00a0\u00a0\u00a0 Professor Low Chee Keong LLM (Hong Kong) Associate Professor, School of
\nAccountancy,\u00a0\u00a0 Chinese University of Hong Kong, said:<\/p>\n

2.3\u00a0\u00a0\u00a0\u00a0\u00a0 Perpetual\u00a0 succession is one of the principal distinguishing characteristics of a company whereby it retains its legal persona even though its membership may change over time. Its status as a legal entity, which evolved from Salomon v Salomon & Co Ltd\u00a0\u00a0 and since codified\u00a0\u00a0\u00a0 under s 16(5) of the Malaysian Companies Act 1965 (\u2018the Companies Act\u2019), continues until such time as the company is liquidated or wound up.<\/p>\n

3\u00a0\u00a0\u00a0 The distinctions between a s 181 Petition and a s 218 Petition
\n3.1\u00a0\u00a0\u00a0\u00a0\u00a0 181 is filed as a Petition under the RHC
\n3.2\u00a0\u00a0\u00a0\u00a0\u00a0 Under 181 (usually associated with the\u00a0 minority\u00a0 oppression type of complaint)\u00a0\u00a0 you can get an order to buy your clients (usually the minority)\u00a0 out;
\n3.3\u00a0\u00a0\u00a0\u00a0\u00a0 s218 Petitions are used an array of different reasons, two of the most popular are the ones for unable to pay debts 218(1)(e) and 218(1)(i), the Just and Equitable ground, remember the good ole case of\u00a0\u00a0 Ebrahimi v Westbourne Galleries Ltd [1973] AC 360, [1972] 2 All ER 492, HL.<\/p>\n

 <\/p>\n

4\u00a0\u00a0\u00a0 218 Petitions- Unable to pay its debts
\n4.1\u00a0\u00a0\u00a0\u00a0\u00a0 Definition of Unable to pay its debts
\n4.2\u00a0\u00a0\u00a0\u00a0\u00a0 Insolvency, 20 Schillings in the Pound
\n4.3\u00a0\u00a0\u00a0\u00a0\u00a0 Contingent liabilities,\u00a0 s 217
\nAccording to some judges if you do not have a judgment, you are considered as a contingent creditor.
\n4.3.1\u00a0\u00a0 Campana Distributor Sdn Bhd v Amseal Engineering Sdn Bhd [1998]\n7 MLJ 677, [1998] 2 CLJ Supp 12, [1998] 2 AMR 1330 see page 47 of the handout.\u00a0 A Companies Winding Up\u00a0 order was granted in favour of\u00a0 the petitioners who did not first obtain judgment while the respondents maintained a counter claim against the petitioners in the form of a civil suit claiming a sum 20 times the amount claimed by the petitioners.
\n4.3.2\u00a0\u00a0 See the last part of the judgment in Campana.<\/p>\n

4.3.3\u00a0\u00a0 See also NCK Wire Products Sdn Bhd v Konmark Corp Sdn Bhd [2001]\n6 MLJ 57\u00a0 Winding Up: Bona fide dispute. See page 83 of the handout<\/p>\n

5\u00a0\u00a0\u00a0 Affidavit Verifying Petition
\n5.1\u00a0\u00a0\u00a0\u00a0\u00a0 4 days rule, rule 26 Companies Winding Up Rules 1972
\nIt is best\u00a0 to file it within 4 days after filing the petition otherwise you may have to explain to\u00a0 the registrar when you are getting the Registrar\u2019s Certificate.<\/p>\n

6\u00a0\u00a0\u00a0 Appointment of\u00a0 a Provisional Liquidator under s 231
\n6.1\u00a0 the powers of the Provisional Liquidator
\n6.2\u00a0\u00a0\u00a0\u00a0\u00a0 the considerations before granting the order
\n6.2.1\u00a0\u00a0 Primary consideration is the dissipation of assets<\/p>\n

7\u00a0\u00a0\u00a0 Advertisement of the Petition in the Newspaper, r 24 Companies Winding Up Rules 1972
\n7.1\u00a0\u00a0\u00a0\u00a0\u00a0 twice or four times?
\n7.2\u00a0\u00a0\u00a0\u00a0\u00a0 What did the rules say?
\n\u201c…every petition shall be advertised in Form 4, 7 clear days…\u00a0 before the hearing of the petition…\u201d<\/p>\n

8\u00a0\u00a0\u00a0 Registrar\u2019s Certificate, r 32 Companies Winding Up Rules 1972
\n8.1\u00a0\u00a0\u00a0\u00a0\u00a0 By filing a Summons in Chambers; or
\n8.2\u00a0\u00a0\u00a0\u00a0\u00a0 By a Notice of Appointment; or
\n8.3\u00a0\u00a0\u00a0\u00a0\u00a0 By a letter of appointment; or
\n8.4\u00a0\u00a0\u00a0\u00a0\u00a0 By not doing anything at all.<\/p>\n

9\u00a0\u00a0\u00a0 Affidavit In Opposition to\u00a0 Petition
\n9.1\u00a0\u00a0\u00a0\u00a0\u00a0 Rule 30, Companies Winding Up Rules 1972
\n9.2\u00a0\u00a0\u00a0\u00a0\u00a0 Must be affirmed and served 7 days before the hearing date of the Petition.
\n9.3\u00a0\u00a0\u00a0\u00a0\u00a0 See paragraph 13 on Campana case.<\/p>\n

10\u00a0\u00a0 The Unless Order: Pay up or Wind Up
\n10.1\u00a0\u00a0\u00a0\u00a0 KTL Sdn Bhd v Azrahi Hotels Sdn Bhd [2003] 5 MLJ 503.
\n10.2\u00a0\u00a0\u00a0\u00a0 Petro-Pipe Industries (M) Sdn Bhd v FW Industries Berhad\u00a0 (unreported) where Unless Order was used to wind up a Berhad.<\/p>\n

11\u00a0\u00a0 Appointment of\u00a0 Liquidator
\n11.1\u00a0\u00a0\u00a0\u00a0 the Official Receiver
\n11.2\u00a0\u00a0\u00a0\u00a0 the (Private) liquidator<\/p>\n

12\u00a0\u00a0 Costs
\n12.1\u00a0\u00a0\u00a0\u00a0 How you do a Companies Winding Up Petition of RM18,000 and get a getting up of RM40,000.\u00a0 See Wong See Nyam v\u00a0\u00a0 Lemo Sdn Bhd [1995] 3 AMR 2853<\/p>\n

12.2\u00a0\u00a0\u00a0\u00a0 If you withdraw the Petition do you have to pay RM300 or RM500 to the Official Receiver?<\/p>\n

13\u00a0\u00a0 Advocacy in the Companies Winding Up Court
\n13.1\u00a0\u00a0\u00a0\u00a0 Campana Distributor Sdn Bhd v Amseal Engineering Sdn Bhd [1998] 2 AMR 1330 see if you can find the part where Abdul Aziz J, now FCJ, expressed his displeasures\u00a0 over the drafting of\u00a0 affidavits in opposition.<\/p>\n

13.2\u00a0\u00a0\u00a0\u00a0 See the dispute on interest\u00a0 raised in the NCK Case and the comments of\u00a0 T\u00a0 S Nathan J.\u00a0 NCK Wire Products Sdn Bhd v Konmark Corp Sdn Bhd [2001] 6 MLJ 57<\/p>\n

13.3\u00a0\u00a0\u00a0\u00a0 KTL Sdn Bhd v Azrahi Hotels Sdn Bhd [2003] 5 MLJ 503, see how the idea of Unless Order was introduced.<\/p>\n

13.4\u00a0\u00a0\u00a0\u00a0 Yian Sdn Bhd v Datuk Bandar Kuala Lumpur & Anor [1998] 5 MLJ 550, see how Suleiman J, retired as JCA, describe a last minute affidavit.
\n13.5\u00a0\u00a0\u00a0\u00a0 How do you deal with a difficult counsel?<\/p>\n

13.6\u00a0\u00a0\u00a0\u00a0 Bundle of authorities and the opposite solicitors.
\n13.7\u00a0\u00a0\u00a0\u00a0 A winding up order was given even when there are other applications pending\u00a0 and the applicants ask for adjournment to hear their applications first.\u00a0\u00a0 Judge used the words \u2018lame excuse\u2019…\u00a0\u00a0 FW Industries Berhad v Suitech Sdn Bhd [2008] 3 CLJ 210<\/p>\n

 <\/p>\n","protected":false},"excerpt":{"rendered":"

The Seminar presented for The Kuala Lumpur \u00a0Bar Committee – by Mr Alex Chang We have reproduced below the outline of the seminar for your easy reference. For our articles relating to winding up and debt recovery click here. Have a Question about your debts? The Notes for KL Bar Committee Talk: “Introduction to s […]<\/p>\n","protected":false},"author":1819,"featured_media":25,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":[],"categories":[7],"tags":[],"_links":{"self":[{"href":"https:\/\/alexchanglaw.com\/index.php\/wp-json\/wp\/v2\/posts\/428"}],"collection":[{"href":"https:\/\/alexchanglaw.com\/index.php\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/alexchanglaw.com\/index.php\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/alexchanglaw.com\/index.php\/wp-json\/wp\/v2\/users\/1819"}],"replies":[{"embeddable":true,"href":"https:\/\/alexchanglaw.com\/index.php\/wp-json\/wp\/v2\/comments?post=428"}],"version-history":[{"count":13,"href":"https:\/\/alexchanglaw.com\/index.php\/wp-json\/wp\/v2\/posts\/428\/revisions"}],"predecessor-version":[{"id":3587,"href":"https:\/\/alexchanglaw.com\/index.php\/wp-json\/wp\/v2\/posts\/428\/revisions\/3587"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/alexchanglaw.com\/index.php\/wp-json\/wp\/v2\/media\/25"}],"wp:attachment":[{"href":"https:\/\/alexchanglaw.com\/index.php\/wp-json\/wp\/v2\/media?parent=428"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/alexchanglaw.com\/index.php\/wp-json\/wp\/v2\/categories?post=428"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/alexchanglaw.com\/index.php\/wp-json\/wp\/v2\/tags?post=428"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}