464

AFFIDAVIT in support of application for security for costs

[1467]

(Heading as in Form 1)

(Describe the background of the litigation in brief)

1. I state that the Plaintiff was wound up by an order of court

granted on the ________ day of ________ 20___ (the 'Winding
Up Order') pursuant to a winding up petition presented by a creditor
of the Plaintiff, AB Sdn Bhd on the ________ day of ________
20___ vide [Petition No ___].
2. Pursuant to the Winding Up Order, one CD was appointed
Liquidator (the 'Liquidator') of the Plaintiff. Now produced and
shown to me marked collectively as exhibit 'EX-1' are copies of the
Winding Up Order and the Affidavit Verifying Petition affirmed by EF
on the ________ day of ________ 20___ with a copy of the
Petition exhibited therein.
3. I state that the Plaintiff is impecunious and that there is
reason to believe that the Plaintiff will be unable to pay the costs of
the Defendant if the Defendant is successful in its defence. I state
this for the following reasons:

[Set out merits of defence and facts relating to company's likely

inability to pay costs, for eg:

3.1 Pursuant to the Winding Up Order, the Plaintiff was

compulsorily wound up on the grounds of insolvency.
3.2 The Account of Receipts and Payments in Form 631
dated the ________ day of ________ 20___ (the
'R&Ms' Accounts') lodged by the Receivers and
Managers with the Registry of Companies shows that
as at the ________ day of________ 20___, the
estimated value of the assets of the Plaintiff was
RM28,000.00 whereas the amount owing by the Plaintiff
to its secured creditors was RM 10,300,500.00. Now
produced and shown to me is a copy of the R&Ms'
Accounts marked as exhibit 'EX–2'.
3.3 The Liquidator's Accounts of Receipts and Payments and
Statement of the position on the Winding Up in Form
 752 dated the ________ day of ________ 20___
(collectively referred to as the 'Liquidator's Accounts')
lodged by the Liquidator with the Registry of Companies
show that the Liquidator has declared by way of
statutory declarations dated the ________ day of
________ 20___ (collectively referred to as the
'Liquidator's Declarations') that the Liquidator has not,
nor has any other person by his order or for his use
during the period from (state period) received or paid
any moneys on account of the Plaintiff. Now produced
and shown to me marked collectively as exhibit 'EX–3'
are copies of the Liquidator's Accounts and the
Liquidator's Declarations.]

4. In light of the above and as the Plaintiff is clearly

impecunious, I state that no benefit whatsoever would accrue to the
Plaintiff or its creditors even if the Plaintiff succeeds in its claim
herein. The Plaintiff's claim which is brought by the Liquidator herein
therefore does not serve any useful purpose and is without merit.
5. Further, I state that as the Plaintiff is in liquidation and this
action is brought by the Liquidator on behalf of the Plaintiff, the
Plaintiff ought to have known, anticipated and been prepared to
provide security for the Defendant's costs of this action pursuant to
the Companies Act 1965.3
6. I therefore state that in light of all the circumstances of the
case, it would not be in the interests of justice for the Plaintiff to be
allowed to proceed with this action herein without first providing
security for the Defendant's costs of this action.
7. I state that the Defendant had requested that the Plaintiff
provide security for the First Defendant's costs of this action in the
sum of RM_____, by way of a letter dated the ________ day of
________ 20___ from the Defendant's solicitors to the Plaintiff's
solicitors. Now produced and shown to me marked as exhibit 'EX–4'
is a copy of the said letter dated the ________ day of ________
20___ .
8. I state that the First Defendant's request for security for
costs has been refused pursuant to a letter dated the ________ day
of ________ 20___ from the Plaintiff's solicitors to the First
Defendant's solicitors. Now produced and shown to me marked as
exhibit 'EX-5' is a copy of the said letter dated the ________ day of
________ 20___ .
9. There is now produced and shown to me marked as exhibit
'EX-6' a detailed and itemised account prepared by the Defendant's
solicitors of the costs, including counsel's fees, which (a) have been
incurred up to the filing of the Defendant's Security For Costs
Application and (b) it is estimated will be incurred in the future
conduct of the action on the Defendant's behalf.4
10. Accordingly, I respectfully request that the Plaintiff be
ordered to provide security for the Defendant's costs of the action in
the sum of RM________ and that pending the provision of such
security the action be stayed.
11. I therefore humbly pray that the Defendant's Security For
Costs Application herein be allowed with costs.

(Conclude as in Form 4)

1 The Companies Regulations 1966 (PU 173/66) Form 63.

2 The Companies Regulations 1966 (PU 173/66) Form 75.
3 Ie the Companies Act 1965 (Act 125) s 351.
4 It is desirable for an itemised account or a draft bill of cost to be
annexed to the affidavit: Sloyan & Sons (Builders) Ltd v Brothers of
Christian Instruction [1974] 3 All ER 715 at 720 per Lane J.