'




  


|& %!

|




 

   
| 

 





 

|


 | 


 

  


    

  


 
   
 !"#"



 $ 
 !"%&





 !%"
  

()*+,-.*/0 /1*021+3*4-)

*+5(

61/+5-4-*01-+(27
-8

 |
 7

  8

|




|
  
)0101-+) The Bank of East Asia Ltd, Singapore
Branch
)/4-+2)+0Axis Incorporation Berhad
1- The petitioner presented a winding up petition
against the respondent under /)501-+-.0()
-94*+1)/ 50"%& (µthe Act¶) on the ground
that the respondent was unable to pay its debts. By
a notice of motion (encl 29), the respondent is
applying to strike out the petition.
2- The respondent is a public company listed in
Bursa Malaysia with a paid up capital of RM152,
906,791. On 
-:)9;)  , the petitioner
obtained a judgment in default of appearance
against the respondent for US$2,422,277.23
together with interest and costs in the High Court
in the Republic of Singapore. The foreign
judgment was not registered in Malaysia.
 On # 41<  ", the respondent obtained a
restraining order under s 176(10) and (10A) of the
Act at the KL High Court to restrain all further
proceedings against the respondent for a period of
nine months.
 
1- Whether winding up proceedings could be
instituted based on Singaporean judgment not
registered in Malaysia?

2-Whether winding up proceedings an execution

proceedings or an action to recover judgment sum?

3- Whether the application to strike out petition

by respondent can be considered as abuse of
process of court?
 () 3=9)+0/>())0101-+)

1- The petitioner had obtained a judgment in

default of appearance against the respondent, for
US$2,422,273.23 together with interest and costs
in the High Court of Singapore.
2-The petitioner presented a winding up petition
against the respondent which under s 218 of the
Companies Act 1965 on the ground that the
respondent was unable to pay its debts as and
when they fall due. The petitioner also obtained
an ex parte order to appoint a provisional
liquidator.
3- The petitioner argued that the reciprocal
enforcement should be applied for this act and the
decision that is taken by Malaysian court should not
be different from the Singaporean one. There is no
need to register the foreign judgment in Malaysia.
 () 3=9)+0/>() )/4-+2)+0

1- The respondent thereafter applied by way of

this notice of motion to strike out the petition
under O 18 r 19(1)(d) of the Rules of the High
Court 1980 (µthe RHC¶) as an abuse of process of
the court
.
2- The respondent¶s submission that the Reciprocal
Enforcement of Judgments Act 1958 (µREJA¶)
applied to Singapore because it is a reciprocating
country and that under s 7 of the REJA, which
applied to all proceedings for the recovery of a sum
payable under a foreign judgment, the winding up
proceedings could not be instituted against the
respondent without first registering the foreign
judgment in Malaysia.
3- The respondent further submitted that the court
had struck out the ex parte order on the same
grounds, i.e. that the petitioner had failed to
register the foreign judgment under REJA.
 =239)+0/
.()=23)/
+()
3=9)+0/
.())0101-+) +2
)/4-+2)+0
1- In the issue, whether the application to strike
out petition by respondent can be considered as
abuse of process of court?. The court without
doubt has come to a conclusion that the court has
the inherent jurisdiction to strike out a petition for
any abuse of its process. This is based on the case
of Jurupakat Sdn Bhd v Kumpulan Good Earth
(1973) Sdn Bhd [1988].
2- The court has also made judgment to strike out the
petition with costs on winding up proceeding granted
earlier by Singapore high court to the petitioner. The
decision made by learned judge was based on several
reasons and previous cases:

¢ ato¶ Ibrahim bin Hj Ismail & Anor v Onstream

Marine Sdn Bhd & Ors [1998] 4 MLJ 86; [1998] 4
CLJ 526. Where the petition was strike out by the
judge.
- There is no evidence to show that the has petitioner
taken any steps or made any attempts whatsoever to
register the Singaporean judgment in Malaysia.
-In the present case, the right to take proceedings on
the Singaporean judgment will only accrue to the
petitioner upon the registration of the said judgment
in Malaysia under the REJA. The registration of the
Singaporean judgment is a fundamental prerequisite
without which, the petitioner is devoid of the requisite
right to take any proceedings on the judgment.
-In the case of In re a Judgment ebtor (No 2176 of
1938) [1939] 1 Ch601, the Court of Appeal
considered the import of s 6 and sub-s (2) of s 2 of
the Foreign Judgments (Reciprocal Enforcement) Act
1933. Section 6 provides: µNo proceedings for the
recovery of a sum payable under a foreign judgment,
being a judgment to which this part of this Act
applies, other than proceedings by way of registration
of the judgment, shall be entertained by any court in
the United Kingdom.
- In order for such proceedings to be validly
instituted, the Singaporean judgment must be
registered in Malaysia. The winding up petition fell
far short of the mandatory requirements of the REJA
in that the petitioner did not even obtain an order for
leave to register the Singaporean judgment. In the
circumstances, the winding up petition is premature
and bad in law. A winding up petition which is bad in
law is also an abuse of process and it cannot be
entertained.
 



In my point of view, I totally agree with the court

judgment. Because the winding up petition fell far
short of the mandatory requirements of the REJA.
The petitioner did not register the judgment in
Malaysia.
 */)

+319(=*+ +-
:
)9;*3*=94=<*+ *+3194*+*+
),)?*

-=0 -=0-. 44)*<7=0*?*>*8

=23) *9<> <1
  
l Appellants : Ong Kim Chuan & Anor
l Plaintiff : Lembaga Kumpulan Wang Simpanan
Pekerja
l The appellants appeal against the decision of the
learned High Court in dismissing the appellants
appeal against the decision of sessions court
allowing the plaintiff's claim.
l The first defendant, Haleywood Industries Sdn
Bhd had failed to make payment of EPF
contribution of its employees for the period of
June 2000 to March 2002 and October 2000
and May 2002 for a sum of RM 180,624.
l The second and third defendants (appellants)
were directors of the first defendant company
during the relevant period. The first defendant
was wound up on 18 November 2002.
 
1. Whether directors personally liable when
company failed to pay EPF contributions?

2. Whether winding up of company absolved

directors from liablity under s 46 of EPF act?

3. Whether claim against directors and not against

company is fraudulent preference?
 () 3=9)+0/>()<*1+01..

1-The plaintiff argue that the company and

former directors who where in those periods
have not paid the EPF to their employees, and
therefore the plaintiff¶s claim that the company
and former directors should be jointly and
severally liable for the employee provident funds
under s 46 of the EPF Act.
2-The plaintiff claimed for the said sum of
RM180, 624 initially from all the three
defendants. The plaintiff intention to withdraw
its claim against the first defendant after the first
defendant (company wound up).
 () 3=9)+0/>
() 44)<<*+0).)+2*+0
1-The second and third defendants (µthe
appellants¶) who were directors have lost their
status or locus as directors when the first
defendant company was been wound up under s
218 of the Companies Act 1965.
2-Further it was also contended by the appellants
that under s 292(1) of the Companies Act 1965
in winding up of a company, any payment due
under the Provident Fund or Employees
Superannuation can be realized by filing the
proof of debt with the official receiver.
3-The appellants contended that s 46 of the Act
is not comprehensive to cover a situation where
the company has been liquidated or wound up,
and that the position of the directors¶ liability in
such an event is not expressly provided for.
The appellants also argued that the provision of s
46 of the Employee Provident Fund Act 1991
applies only in respect of the company which is
still in operation.
4-The appellants stressed that the plaintiff¶s claim
under s 46 of the EPF Act for the said amount
against the appellants tantamount
to fraudulent preference under the Companies Act
1965 and thus unenforceable in law.
 =239)+0/
.()=23)/
+()
3=9)+0/
.()<*1+01.. +2
44)<<*+0/
l It is not in dispute that the first defendant
,Haleywood Industries was at all material
times and it is also not in dispute that the first
defendant had failed to pay contribution to
the EPF. But during that period both the
appellants were directors of the first
defendant.
l According to s 65 (1) of EPF act , all
contributions recoverable by EPF can be
recovered as civil debt.

l The plaintiff took action against the appellants

based on s 46 of EPF act which provides any
remaining unpaid of company , the directors of
such company during that releven period were
liable to be paid.
l Thus under s 46 it is clear that directors of a
company shall together with the company be
jointly and severally liable for the unpaid
contribution. These provision are to be
enforceable µ notwithstanding anything to the
contrary in any other written law¶.
l First the plaintiff claim against first defendant
but later plaintiff withdrew its claim after the
first defendant wound up. During that periods
the first defendant company still in operation
and both appellants were directors. So the
directorship ceased long after the first
defendant company wound up on 18
November 2002 does not in any way absolve
the appellants from the liability imposed by s
46.
l The case of Salomon vs Salomon & Co which
reliance by appellants also does not help them.
The plaintiff claimed againts both the
appellants on their personal liabilities under s
46 EPF act not claim against the first defendant
so the issue of fraudulent under the Companies
Act 1965 does not arise.
l So based on above considerations the court
found that appellants arguments were totally
baseless and without merit. Therefore the court
dismissed with costs of RM 3000 to be paid by
appellants to the plaintiff (respondant).
 


l In my point of view, I would totally agree that
the appellants are personally liable for the
unpaid EPF contributions on that relevant
period. Because the both appellants were
directors of the the first defendant during the
relevant period which the said contributions
were liable to be paid.
Thank you