POINTS ON WINDING UP ISSUES
1. Whether Judgement Creditor can state the total sums of 2 Judgement obtained from the Court
against the Judgement Creditor in Section 466 Notice of Companies’ Act 2016 (equivalent to
Section 218 Notice of Companies’ Act 1965)?
Landmark case [Federal case] of Malaysia Air Charter Co Sdn Bhd v Petronas Dagangan Sdn Bhd [2000]
4 MLJ 657:-
For the above reasons, our answer to the two questions posed in the appeal is that s 218(2)(a)
of the Act should be liberally interpreted. A notice of demand under the subsection need not
specify the exact sum due as at the date of the demand. So long as the sum due
exceeds RM500 and remained unpaid after a demand had been made without any
reasonable explanation to the satisfaction of the court, there is therefore neglect to pay such sum
within the meaning of the section. It should however be borne in mind that s å218(2)(a) does
not create separate grounds for winding-up, but provides a mode of proof available in aid of an
application seeking a winding-up on the ground specified in s 218(1), viz that the company is
unable to pay its debts ( Ataxtin). A company will not be wound up, even if it fails to heed a valid
notice, if it can establish by independent evidence that it is solvent ( Re Fabo). [Para 3 of Page
669]
Followed by more recent cases:
(HC) Orwell Offshore Ltd v TH Heavy Engineering Bhd [2017] MLJU 177 – Para 51 & 54
(HC) Pengkalen Holiday Resort Sdn Bhd v Perbadanan Pengurusan Paradise Lagoon & Anor [2016] MLJU
939 – Para 28
Conclusion – the sum specified in our s 466 Notice to Julang Gemilang (total sum from 2 judgement),
albeit exceeded than the judgement sum claimed in our petition (total sum for one judgement) does not
render the Notice defective. The principal is that the exact sum need not to be stipulated, as long as the
sum exceed RM10,000.00 (Companies Act 2016 new threshold for winding up [P.U.(B) 58]) and remained
unpaid.
2. Whether service by registered mail falls can substituted “leaving the notice at the registered
office of the company” in Section 466(1)(a)?
R. 18 (a) of Companies (Winding-Up) Rules 1972
18. Mode of service
Except as otherwise provided by the Act or these Rules or any order:-
(a) all notices, summonses and other documents except those of which personal service
is required shall be deemed to be sufficiently served if left at or sent by prepaid post to
the last known address of the person to be served therewith or the address (if any) at
which the person has authorized service on him to be effected; and the notice, summons
or document if so sent by prepaid post shall be considered as served at the time that the
same ought to be delivered in the ordinary course of post and notwithstanding the same
may be returned by the post office;
The above rule is not applicable as Section 466 provides the manner of service.
S 466 (1)(a) Companies Act 2016
466. (1) A company shall be deemed to be unable to pay its debt if:-
(a) the company is indebted in a sum exceeding the amount as may be
prescribed by the Minister and a creditor by assignment or otherwise has served
a notice of demand, by himself or his agent, requiring the company to pay the
sum due by leaving the notice at the registered office of the company,
and the company has for twenty-one days after the service of the demand
neglected to pay the sum or to secure or compound for it to the satisfaction of
the creditor;
(HC) Dayakuasa Holdings Sdn Bhd v Kayaal Holdings Sdn Bhd [2003] 2 MLJ 263
“… as the statutory demand was merely 'sent by registered post to the respondent's registered
office', the petitioner has not strictly complied with the provisions of s 218(2)(a) of the Act which
she said required it to be 'served on the company by leaving it at the registered office'. For this
contention, she relied on United Malayan Banking Corporation Bhd v Richland Trade and
Development Sdn Bhd [2000] 1 MLJ 385 (FC); Masboh Trading Sdn Bhd v Mejaris Builders Sdn
Bhd [2001] 5 MLJ 369 (HC); Sri Hartamas Development Sdn Bhd v MBF Finance Bhd [1992] 1
MLJ 313 (SC); Muniandy a/l Thamba Kaundan & Anor v D&C Bank Bhd & Anor [1996] 1 MLJ 374
(FC)”
Ho Siew Choong & 15 Ors v Everworth Sdn Bhd [2005]107 MLJU 1-
“I do conclude that the demand has not been ‘served on the company by leaving it at the
registered post’. In so holding, I follow the decision in Dayakuasa Holdings Sdn Bhd v Kayaal
Holdings Sdn Bhd where His Lordship Low Hop Bing J. stated:
‘Since the statutory demand was merely sent by registered post to the respondent’s
registered address, but was not served on the respondent by leaving it at the registered
office, it seems clear to me that the strict requirement of S 218 (2)(a) has not been
complied with by the Petitioner’
I refer to the Federal Court case of Muniandy a/l Thamba Kaundan & Ano v D & C Bank Bhd. &
Anor 1996 1 MLJ 374 it was held:-
‘Sending a notice is a far cry from serving one. Even if there was proof of posting of the
notice, this accompanied by the fact that it was not returned would not have sufficed as
proof of service in the absence of a deeming clause in the contract of loan or annexure
to the charge .’
Conclusion: The service by way of registered mail is not sufficient to the strict compliance of “leaving the
notice at the registered office of the company”. Thus our service is not in compliance with s. 466 making
it invalid.
