Compulsory Winding Up

by Court: Procedure
COMPANIES (WINDING-UP) RULES 1972 [P.U. (A) 289/1972]
 Process
Procedure

1 2 3 4 5 6 7 8 9

Petition & Service of Nomination of Deposit of RM Notice of persons Consent of Before hearing – Hearing the Order for winding
Affidavit verifying Petition on liquidator 3000.00 with the who intend to Approved attend before petition up –
Petition Company Official Receiver appear at hearing Liquidator registrar to Powers of the lodgment and
of petition confirm Court on Hearing service of the
compliance. a Winding Up order
Advertisement &
Gazette Petition
 • If SD under 466(1)(a) is served, petition for WU shall be filed
within 6 months from the expiry date of the notice – s 466(2)
• Title of proceeding – r 8(1)
• Form of petition – r 22, Form 2, 3

Petition & • Affidavit verifying the petition: r 26, Form 7

Affidavit • shall be made by the petitioner or by one of the

petitioners,

verifying
• if more than one, or, in case the petition is presented by
a corporation, by some director, secretary or other
principal officer thereof,

Petition • and shall be sworn after and

• filed within four days after the petition is presented

• Presentation of petition – r 23: at the office of Registrar, will

appoint date and time for hearing.
• Deposit RM3000 with an approved liquidator / Official
Receiver: r 23A
 • R 17: “... Petition shall be served upon every person against whom any order or
other relief is sought …”
• R 25: how to serve?
• The petition is to be served upon the company:
• at the registered office of the company, and
• if there is no registered office, then at the principal or last known
principal place of business of the company, if can be found,

Service of • by leaving a copy with any member, officer, or servant of the company
there, or

petition
• in case no such member, officer, or servant can be found there, then
by leaving a copy at the registered office or principal place of
business, or
• by serving it on such member or members of the company as the
Court may direct;
• where the company is being wound up voluntarily, the petition shall also
be served upon the liquidator (if any) appointed for the purpose of
winding-up the affairs of the company.

• Proof: The affidavit of service of petition may be in Form 5 or 6.

Service on others

• A copy of the petition shall also be

delivered to:
• Official Receiver - R 25(3)
• Registrar of Companies - R 25(3)
• contributory or creditor R 27
Advertisement of petition
R 24
• “…every petition shall be advertised in Form 4, 7 clear days… before the hearing of the petition…”

 once in the Gazette and

 twice at least in two local newspapers circulating in Malaysia or in such other newspapers as the
Court may direct;
• the advertisement shall state:
- the day on which the petition was presented and
- the name and address of the petitioner and of his solicitor and local agent (if any) and
- contain a note at the foot thereof, stating that
- any person who intends to appear on the hearing of the petition, either to oppose or
support, must send notice of his intention to the petitioner or to his solicitor or local
agent, within the time and in the manner prescribed by rule 28, and
An advertisement of a petition for the winding-up of a company by the Court which does not
contain the note shall be deemed irregular;
Nominate liquidator
R 31. Approved liquidator and consent
• (1) When filing the petition the petitioner shall nominate in writing an
approved liquidator who is entitled to be appointed as liquidator if an
order for the winding-up of the company is made by the Court.
• (2) Before the hearing of the petition, the petitioner or his solicitor
shall obtain and file the consent in writing of the approved liquidator
nominated.
• (3) If no approved liquidator is nominated by the petitioner, the Court
shall, on making the winding-up order, appoint an approved liquidator
or the Official Receiver as the liquidator, as it deems fit.
 R 28. Notice of intention to appear
• (1) Every person who intends to appear on the hearing of a petition shall serve on the petitioner or his
solicitor notice of his intention.
• The notice shall be signed by the person or by his solicitor and shall give the address of the person signing it and shall be
served or if sent by post shall be posted in such time as in ordinary course of post to reach the address not later than 12.00
o'clock noon of the day previous to the day appointed for the hearing of the petition.
• (2) The notice may be in Form 8 with such variations as circumstances may require.
• (3) A person who has failed to comply with this rule shall not, without special leave of the Court, be
allowed to appear on the hearing of the petition.

R 29. List of persons intending to appear

• (1) The petitioner or his solicitor shall prepare a list of the names and addresses of the persons who
have given notice of their intention to appear in Form 9 on the hearing of the petition and of their
respective solicitors.
• (2) On the day appointed for hearing of the petition, a fair copy of the list or if no notice of intention to
appear has been given, a statement to the effect shall be handed by the petitioner or his solicitor to the
Court prior to the hearing of the petition.
Opposing the petition
• 30. Affidavits opposing the petition and affidavits in reply
• (1) Affidavits in opposition to a petition that a company may be wound up
shall be filed and a copy thereof served on the petitioner or his solicitor at
least seven days before the time appointed for the hearing of the petition.
• (2) Any affidavit in reply to an affidavit filed in opposition to a petition
(including a further affidavit in support of any of the facts alleged in the
petition) shall be filed within three days of the date of service on the
petitioner of the affidavit in opposition and a copy of the affidavit in reply
shall be forthwith served on the opposing petitioner or his solicitor.
Stay of WU proceeding
• S 470
(1) 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 for an
order to stay or restrain further proceedings in the action or proceeding, and
the Court may stay or restrain the action or proceeding accordingly on such terms
as it thinks fit.
(2) The applicant shall lodge with the Registrar the office copy of the order within
fourteen days from the making of such order under subsection (1).
Hearing of petition
• R 23(2): Notice of the time and place appointed for hearing the
petition shall be written on the petition and sealed copies thereof.
Before hearing
• 32. Attendance on the Registrar
• (1) After a petition has been presented, the petitioner or his solicitor shall on a day to be
appointed by the Registrar attend before the Registrar and satisfy him that
(a) the petition has been duly gazetted and advertised;
(b) the prescribed affidavit verifying the statements therein and the affidavit of service, if
any, have been duly filed;
(c) the consent in writing of the approved liquidator nominated by the petitioner has been
obtained and filed;
(d) the provisions of these Rules as to petitions have been duly complied with; and
(e) a sum of three thousand ringgit has been deposited as required by subparagraph (1) (a)
of rule 23A.
 S 469(1)
Power of
Court on
hearing
petition
Court may:
make order that
dismiss, adjourn or the court thinks
fit.
 Form no 11

Order for UPON the petition of the above-named company [or A. B., of etc., a creditor (or
contributory) of the above-named company, on the .... day of ......, 20........,
WU preferred unto the Court, and upon hearing .......... for the petitioner,
and......................... for .............., and upon reading the said petition, and affidavit
of ......., filed, etc., verifying the said petition, an affidavit of L.M.,........... filed
the ..... day of........, 20 ........., the Gazette of the .....day of ......., 20 ......, the .....
newspaper of the............. day of...... (enter any other papers), each containing an
advertisement of the said petition (enter any other evidence), this Court doth
order:
(1) that the said company be wound up by the Court under the provisions of the
Companies Act, 1965.
(2) that A. B. be appointed liquidator for the purpose of the said winding-up.
(3) that the Bank in which the liquidator is to open a Trust Account is …………..
NOTE-
It will be the duty of such of the persons as are liable to make out or concur in
making out a statement of affairs as the liquidator may require to attend on him at
such time and place as he may appoint and to give him all information he may
require.
Issue: Whether WU order can be set aside?
• Badiaddin bin Mohd Mahidin v Arab Malaysian Finance Berhad [1998] 1 MLJ 393:
The Federal Court in grounds of judgment dated 22 November 2018 in the SKS
Foam decision confirmed the Court’s jurisdiction to set aside a perfected winding
up Order in certain limited instances.
• The Court is able to exercise its jurisdiction under the Federal Court case
of Badiaddin to set aside its own Order where the defect is of such a serious
nature that there is a need to set aside the Order in the interests of justice. -
Commencement of WU
Section 467.
(1) Where before the presentation of the winding up petition a resolution has been
passed by the company for voluntary winding up, the winding up of the company
shall be deemed to have commenced at the time of the passing of the resolution, …
(2) In any other case, the commencement of winding up shall be at the date of the
winding up order.
Section 474. Lodgement of winding up
order
(1) The petitioner shall, within seven days from the making of a winding up order, notify
the Registrar, Official Receiver and liquidator
(a) the order and its date; and
(b) the name and address of the liquidator
(2) The petitioner shall within seven days from receiving the copy of the winding up order
(a) lodge an office copy of the order
(b) cause a copy to be served upon the secretary of the company or upon such
other person or in such manner as the Court directs; and with the Registrar and with the
Official Receiver
c) deliver a copy to the liquidator with a statement that the requirements of this
subsection have been complied with.
 • R 34.
• (1) When an order is made for the winding-up of a company the
petitioner shall forthwith inform the liquidator in Form 10 and within
fourteen days of the pronouncement thereof
(a) gazette and advertise a notice in Form 12 of the making of the
Notice and order;
(b) serve upon the liquidator a copy of the order; and

service of (c) serve upon the Official Receiver and the Registrar of
Companies a copy of the order.

winding-up
• (2) The copy of the winding-up order required by section 226(2) (now
474 CA2016) to be served upon the secretary of the company may be
served either personally or by prepaid letter addressed to the secretary

order -
at the registered office of the company (if any) or if there is no such
registered office at its principal or last known place of business.
• (3) An order to wind up a company in Form 11 shall contain at the foot
liquidator thereof a notice stating that it will be the duty of the person who is at
the time secretary or chief officer of the company and of such of the
persons who are liable to make out or concur in making out the
company's statement of affairs as the liquidator may require, to attend
on the liquidator forthwith on the service of the order at the place
mentioned therein.