COMPANY’S WINDING UP

Winding up is a process in which the existence of a company is brought to an end, where assets of a
company are collected and realised. The proceeds collected are used to discharge the company’s
debts and liabilities and the remaining balance (if any) will be is distributed amongst the
contributories according to their entitlement.

There are 2 modes of winding up:

 Voluntary winding up (VWU); and

 Compulsory i.e. Winding up by Court

The process flow for winding-up (both VWU and Compulsory) in the Companies Act 1965 (CA 1965) is
retained in the Companies Act 2016 (CA 2016.)

Section 619 (6) of the CA 2016 states that a company which is in the course of winding-up
immediately before the commencement of the Act shall continue to be wound up under the relevant
provisions in the Companies Act 1965.

*CA 2016 commenced on 31.1.2017.

Voluntary winding up

Voluntary winding is divided into 2 categories, namely members’ voluntary winding (MVWU) and
Creditors’ voluntary winding up (CVWU):

 Section 257 of the CA 1965 define members’ voluntary winding (MVWU) up as the
liquidation of a solvent company where the directors have formed an opinion that the
company will be able to pay its debts in full within the period of 12 months after the
commencement of winding up.
 Section 433 of the CA 2016 further defines (MVWU) as A winding up in the case of which a
directors’ declaration under section 443 has been made ; and a winding up in the case of
which such a declaration has not been made is a “creditors voluntary winding up”.

Company winding up by Court

Winding up by Court is also known as a compulsory winding up. It begins with the presentation of a
petition in Court. The petitioners include creditors, liquidator, the Registrar of companies or the
Official Receiver under section 217(1) of the CA 1965 or section 464 of the CA 2016.
TERMS
Creditor
A creditor is an entity (person or institution) that extends credit by giving another entity permission
to borrow money intended to be repaid in the future. ... People who loan money to friends or family
are personal creditors.
Secured Creditor
A secured creditor is any creditor or lender associated with an issuance of a credit product that is
backed by collateral. ... In the event that a borrower defaults on the repayment of a secured loan, the
property is forfeited to the secured creditor.
Unsecured creditors
Unsecured creditors rank below secured creditors when it comes to receiving payment following the
liquidation of a company. Unsecured creditors do not have the benefit of having a claim over a
particular asset, and can include suppliers, contractors, landlords and customers.
A "secured creditor" is a creditor that has a lien on an item of your property. ... Mortgage lenders and car lenders
are secured creditors. They have voluntary liens on your property. An "unsecured creditor" is a creditor who has no
interest in any of your particular property. Some of the most common types of unsecured creditors include credit card
companies, utilities, landlords, hospitals and doctor's offices, and lenders that issue personal or student loans (though
education loans carry a special exception that prevents them from being discharged).

A solvent person
One who has sufficient to pay his debts, and all obligations. A solvent person is one who is able to
pay all his just debts in full out of his own present means.
Solvency
Solvency is the ability of a company to meet its long-term debts and financial
obligations. Solvency can be an important measure of financial health, since its one way of
demonstrating a company's ability to manage its operations into the foreseeable future.
Insolvency
Insolvency is a state of financial distress in which a business or person is unable to pay their bills. It
can lead to insolvency proceedings, in which legal action will be taken against the insolvent person
or entity, and assets may be liquidated to pay off outstanding debts.

A petition
A petition is a document signed by a lot of people which asks a government or other official group to
do a particular thing. ... A petition is a formal request made to a court of law for some legal action to
be taken.
Liquidation
Liquidation in finance and economics is the process of bringing a business to an end and distributing
its assets to claimants. ... As company operations end, the remaining assets are used to pay creditors
and shareholders, based on the priority of their claims.
Liquidation typically occurs when a limited company has reached a point where, for one reason or another, it has been
decided that the business will not continue. In this case, you might consider  liquidating your company; which basically
means turning your assets into cash. Turning assets into cash is typically done in order to pay off a variety of debts,
depending on investments made into the business by creditors, or loans taken out in growing the business.

The difference between Administration and Liquidation

The primary difference between the two procedures is that company administration aims to help the
company repay debts in order to escape insolvency (if possible), whereas liquidation is the process
of selling all assets before dissolving the company completely.
Pari Passu
Pari Passu is a Latin phrase that means something like “in equal proportion”. It is commonly employed in financial environments to refer to
situations where different financial claims are presented. In those cases, the term pari passu will mean that each claim will get equal
proportion of the distribution. In liquidation scenarios, this principle is particularly useful since it guarantees the fairness of the procedure.
Normally, there are different seniorities in the claims presented. In each seniority level (for example, bonds have seniority over common
stocks) the pari passu principle will indicate that an equal distribution must be given to each of the claims. Stocks are also pari passu
instrument, since no individual stock gets a bigger portion than the other, since profits and ownership are equally distributed among them.
CONTENTS

1. Meaning
2. Modes of Winding-Up:-
2.1 Compulsory winding-up
2.1.1 Who can petition
2.1.2 Grounds for compulsory winding-up
- When is company is deemed unable to pay its debts.
- Just and Equitable ground
2.2 Voluntary winding-up
3. The Liquidator
3.1 Qualification and Disqualification
4. Dissolution procedures
5. Arrangements, Reconstruction, Takeover & Merger.
6. Main Regulatory Bodies.

1. THE MEANING OF WINDING UP

 ‘Winding-up’ is synonymous with ‘liquidation’.
 One of the ways to bring to an end a company’s existence.
 As a company is a creation of the law, it can only be dissolved and have its name removed
from the Register of Companies when the proper legal procedure has been complied with.

 Process of WINDING UP:

Company’s ASSETs are collected and realized DEBTS are paid SURPLUS (if any)

are distributed among the Company’s member Company’s name is REMOVED from the
Register.

 The Meaning of Winding Up

 A process when company’s normal activities is stopped.
 Then the company’s assets and liabilities are assessed and the creditors debts are paid off.
 If there should be any residual assets remaining, it will be distributed among the members as
according to the type of shares they hold.
 In unlimited companies or a company limited by guarantee, the members may be required to
compensate in the event the assets are insufficient in accordance with their undertaking as in
the memorandum of association.
 On winding up the company cease to be a going concern.

 Reasons for Winding Up

Many reasons – amongst others:
 Most common – insolvency – company is not able to pay debts. …company will be liquidated;
its assets will be realized and distributed to creditors to pay off the co’s debts.
 Solvent companies may also wind up, such as in cases where their members may want to
realize their investment; or
 Sometimes in cases of oppression of members where the court orders a winding up as under
s.346.
 2. MODES OF WINDING UP

432. (1) The winding up of a company may be effected either—

(a) by way of a winding up order made by the Court; or
(b) by way of a voluntary winding up.

(2) A voluntary winding up may be effected by a resolution either—

(a) by a members’ voluntary winding up where the company is solvent and the liquidator is
appointed by the members at the members’ meeting; or
(b) by a creditors’ voluntary winding up where the company is insolvent and the liquidator is
appointed by the creditors at the creditors’ meeting.

 Who may petition for Winding Up : Section 464(1) Companies Act 2016
1. The company
May present a petition after a special resolution by the members.
2. A creditor
Including a contingent or prospective creditor of the company
A prospective creditor "is a creditor in respect of a debt which will certainly become due in
the future, either on some date which has already. been determined or on some date
determinable by reference to future events". The concept of a prospective creditor also
requires that there. be an existing obligation.

In that context, the expression "contingent creditor" means a creditor in respect of a debt
which will only become due in an event which may or may not occur.

3. A Contributory
Every person liable to contribute to the assets of the company in the event of its being
wound up.
“contributory”, in relation to a company, means a person liable to contribute to the assets of
the company in the event of its being wound up, and includes the holder of fully paid shares
in the company and, prior to the final determination of the persons who are contributories,
includes any person alleged to be a contributory: Section 2(1) Companies Act 2016

4. Trustee in Bankruptcy
Or the Official Assignee of the estate of a bankrupt contributory.
With the coming into force of the Bankruptcy (Amendment) Act 2003, the head of the
Department of Official Assignee Malaysia who was formerly known as Official Assignee is
now known as the Director General of Insolvency (hereinafter referred to as “the DGI”). The
change of the title has no effect to his dual functions and responsibilities in the
administration of the estates of the bankrupts and companies in liquidation. 

5. Liquidator
In a voluntary Winding Up
A liquidator is a person or entity that liquidates something—generally assets. ...
A liquidator refers to an officer who is specially appointed to wind up the affairs of a
company when the company is closing—typically when the company is going bankrupt.

“liquidator” includes the Official Receiver when acting as the liquidator of a corporation:
Section 2(1) Companies Act 2016
6. Various Ministers
On specified grounds
7. Central Bank
In the cases of banks and financial companies under the purview of the Ministry of Finance.
8. Registrar of Companies
Under Section 465 (b,c,d)

WHO MAY PETITION

S. 464.

COMPULSORY
GROUNDS
S. 465(1)

Winding -Up

MEMBERS

VOLUNTARY

CREDITORS
COMPULSORY WINDING UP
 Ground for Compulsory Winding Up: Section 465(1)
Circumstances in which company may be wound up by Court
465. (1) The Court may order the winding up if—
(a) the company has by special resolution resolved that the company is to be wound up by the
Court;
(b) the company defaults in lodging the statutory declaration under subsection 190(3);
(c) the company does not commence business within a year from its incorporation or suspends its
business for a whole year;
(d) the company has no member;
(e) the company is unable to pay its debts;
(f) the directors have acted in the affairs of the company in the directors’ own interests rather than
in the interests of the members as a whole or acted in any other manner which appears to be
unfair or unjust to members;
(g) when the period, if any, fixed for the duration of the company by the constitution expires or the
event, if any, occurs on the occurrence of which the constitution provide that the company is to
be dissolved;
(h) the Court is of the opinion that it is just and equitable that the company be wound up;
(i) the company has held a licence under the Financial Services Act 2013 or the Islamic Financial
Services Act 2013, and that the licence has been revoked or surrendered;
(j) the company has carried on a licensed business without being duly licensed or the company has
accepted, received or taken deposits in Malaysia, in contravention of the Financial Services Act
2013 or the Islamic Financial Services Act 2013, as the case may be;
(k) the company is being used for unlawful purposes or any purpose prejudicial to or incompatible
with peace, welfare, security, public interest, public order, good order or morality in Malaysia; or
(l) the Minister has made a declaration under section 590.
(2) For the purpose of winding up actions commenced by the Registrar under paragraph (1)(k), the
finding of the Registrar that a company is being used for unlawful purposes or any purpose
prejudicial to national security or public interest or incompatible with peace, welfare, public
order, security, good order or morality in Malaysia shall in all Courts and by all persons having
power to take evidence for the purposes of this Act, be received as prima facie evidence until
proven otherwise.

“inability to pay debts”: Section 465(1)(e)

Definition of “inability to pay debts”
466. (1) A company shall be deemed to be unable to pay its debts 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;
(b) execution or other process issued on a judgment, decree or order of any court in favour of a
creditor of the company is returned unsatisfied in whole or in part; or
(c) it is proved to the satisfaction of the Court that the company is unable to pay its debts and in
determining whether a company is unable to pay its debts the Court shall take into account the
contingent and prospective liabilities of the company.
(2) A petition to wind up a company shall be filed in the Court within six months from the expiry
date of the notice of demand issued under paragraph (1)(a). The
“just and equitable” grounds: Section 465(1)(h)
Wide grounds for Court to dissolve company on just and equitable grounds. Amongst the many
reasons:
a. Where the substratum of the co has gone or cannot be achieved.
This is normally where the principal object of the company cannot ever or can no longer be
achieved as in Re German Date Coffee Co. [1882] 20 ChD 169. It is necessary that all the main
objects cannot be achieved. Contrast with Re Kitson & Co. Ltd.
Re German Date Coffee Co(1882) 20 Ch D 169 (Court of Appeal, England)
Facts: The company was incorporated for the purpose of manufacturing a coff ee substi tute out of dates. In order to do
this, it was the fi rst object of the company to acquire a German patent. It turned out that the German Empire would not
grant thepatent to the company.

Held: It was held that the company had been set up with the aim of working a specific patent and that once that failed, the
shareholders were entitled tosay that they were not interested in carrying on any other business. The company was accordingly wound
up.The basis of this case is that the members banded together for a very specific purpose,and once that purpose failed they were entitled
to pull out of the enterprise.I n a dd iti o n, a c o m p an y m a y a ls o wo un d u p if e n g a g e s in ac t s wh ic h ar e e n ti r e l y out side
what can fair ly be regarded as having been within the general intenti on and common understanding of the members when
they became members.

b. Where there is a deadlock in the management of the co.

In Re Yenidje Tobacco Co. Ltd. [1916]2 Ch 426; the court ordered the company to be wound up
even though it was earning profits, because the members were hostile and did not communicate
with each other.
In re Yenidje Tobacco Co Ltd: CA 1916 All ER 1050
Facts: A company had been set up by two tobacco manufacturers, Mr Rothman and Mr Weinberg. The relationship between them had
broken down to the extent that the two shareholders were not on speaking terms and that no business which deserved the name of
business in the affairs of the company could be carried on. Even though the company was prosperous and making large profits, an
application was now made for the company to be wound up.
Held: The company was not in a state that could have been contemplated at the time when the company had been formed and it should
be terminated as soon as possible. Lord Cozens-Hardy MR referred to the grounds for winding up a partnership set out in Lord Lindley’s
textbook on Partnership as including ‘Refusal to meet on matters of business, continued quarrelling, and such a state of animosity as
precludes all reasonable hope of reconciliation and friendly cooperation’.
It was not necessary to show gross misconduct as a partner but only that the court must be satisfied that it is impossible for the partners to
place that confidence in each other which each has a right to expect and that such impossibility has not been caused by the person seeking
to take advantage of it.

c. Where the company is like small partnership based on mutual trust and confidence, and trust
and confidence is broken. Deliberate exclusion of minority from participating in the management of
the company was basis for the court to wind up the company on just and equitable grounds in
Ebrahimi v Westbourne Galleries Ltd. [1973] AC 360;
Ebrahimi v Westbourne Galleries Ltd [1973] AC 360
Facts: Mr Ebharimi and Mr Nazar had carried on business in partnership dealing in Persian and other carpets. They shared equally in
management and profits. In 1958, they formed a private company carrying on the same business and were appointed its first directors.
Shortly after the company’s incorporation, Mr Nazar’s son George, became a director. Mr Nazar and his son held most of the votes
exercisable at general meetings.
Issues: The company made profits but never distributed dividends. All the money was paid as directors; remuneration: no dividends were
ever paid. In 1969, Mr Ebrahimi was removed from his the office by a resolution of a general meeting under what is now CA 2006m s 168,
and a provision of the company’s articles.
Held: Huse of Lords ordered the company to be wound up on Mr Ebrahimi’s petition, because of his inability after the dismissal to
participate in the company’s management and profits.

In Tay Bok Choon v Tahansan Sdn. Bhd. [1987]1 MLJ 433

The Company had gone against its implied assurance that petitioner entitled to participate in the
management of the company as long as held a quarter of Issued Share Capital of the company.
Tay Bok Choon v Tahansan Sdn. Bhd. [1987]1 MLJ 433
In this case the facts were summarised in the judgment as follows: The company was incorporated on November 7, 1977 as a private
company limited by shares. The articles conferred on the directors power, in their discretion and without assigning any reason, to refuse to
register a transfer of shares to any person of whom they did not approve. The memorandum and articles were subscribed by four
subscribers who were appointed by the articles to be the first directors of the company. The nominal capital of the company was 400,000
shares of $1 each; 25,000 shares were issued to each of the four directors and were paid up. The principal business of the company was the
manufacture of window louvres at a factory in Kuala Lumpur. One of the shareholders, Tee Ah Kew, was a relation of the petitioner. In
February 1980, possibly at the instigation of Tee but in any event with the approval of the directors, 25,000 shares then held by Chew Kew
Hui were transferred to the petitioner for $18,750. In the course of the negotiations for the transfer of shares to the petitioner and for the
approval of the directors it was agreed between the directors and the petitioner that the petitioner would be appointed a director and
chairman of the board of directors. The petitioner was subsequently so appointed and in addition his son, Tay Hock Yam, was appointed to
be a fifth director. In March 1980 a finance company Balfour Williamson (S) Pte. Ltd. introduced by the petitioner agreed to finance the
company if the paid up capital was increased from $100,000 to $200,000 and if each of the four shareholders guaranteed the liabilities of
the company to Williamson. Accordingly 25,000 shares were issued to each of the four shareholders for cash paid to the company. The
petitioner lent $25,000 to Tee and $16,000 to another shareholder Mak Boon Seng. All the four shareholders entered into guarantees with
Williamson. Monthly salaries were paid to three working directors, Tee, Mak and Tay, the petitioner's son. In 1979 the company, after
paying directors' remuneration of $40,000, made a trading loss of $29,483. In 1980 the company, after paying directors' remuneration of
$33,000, made a net trading profit of $6,849. On June 30, 1981 the remuneration of each of the three working directors was increased to
$1,500 per month. On September 23, 1981 the board, against the opposition of the petitioner and his son Tay, terminated all the executive
powers of the directors and conferred them on Mak alone as managing director. On November 27, 1981 the petitioner was removed as
director and as chairman of the board and his son Tay was removed as director. On April 8, 1982 the petitioner presented his petition to
wind up the company. The trading profit for 1981 after providing $46,000 for directors' remuneration had increased to nearly $125,000.
The directors' report dated July 3,1982 affirmed that no dividend had been paid and that it was not intended to declare a dividend but on
August 5, 1982 the company declared a dividend of 30% for 1981. In the distribution of this dividend the petitioner was paid $9,000 after
deduction of $6,000 for income tax. Also on August 5, 1982 the remuneration of the directors Mak and Tee was increased to $2,500 per
month each.
The petitioner applied to have the respondent company wound up and the learned trial judge had made a winding-up order on just and
equitable grounds under section 218(1)(i)of the Companies Act. He held that the petitioner had joined the company as a shareholder on
the basis that he would be given a share in the management of the business and that he would remain a director so long as he held one
quarter of the shares of the company and that the other shareholders would allow the petitioner to participate in the conduct of the affairs
of the company -- see [1984] 1 MLJ 204. On appeal to the Federal Court it was argued that such an underlying obligation had not been
proved and was denied by the respondents. The Federal Court took the view that although no litigant applied to call oral evidence and no
litigant applied to cross-examine the deponents the court should have examined the deponents. In effect the Federal Court held in the face
of the denial that the agreement was ever made, the trial judge should have heard oral evidence before deciding whether the alleged
agreement was ever made. They therefore allowed the appeal -- see [1985] 1 MLJ 58. The petitioner appealed to the Privy Council.

Held:

(1) viewing the facts as a whole their Lordships are satisfied, as the trial judge was satisfied, that the petitioner was led to
believe, even in the absence of any express assurance, that he would participate in the management of the company and
that he would in any event be entitled to a seat on the board so long as he held one quarter of the issued share capital of
the company;
(2) in civil proceedings the trial judge has no power to dictate to a litigant what evidence he should tender. In winding-up
proceedings the trial judge cannot refuse to read affidavits which have been properly sworn, filed and produced to him,
unless some opposing party has applied for the attendance for cross-examination of the deponent and that application
has been granted and the deponent does not attend;
(3) if allegations are made in affidavits by the petitioner and those allegations are credibly denied by the respondent's
affidavits, then in the absence of oral evidence or cross-examination, the judge must ignore the disputed allegations. The
judge must then decide the fate of the petition by consideration of the undisputed facts;
(4) in this case the Board is satisfied that the judge confined his consideration of the petition to the undisputed facts and
rightly concluded that the petitioner had made out his case that it was just and equitable to wind up the company;
(5) the appeal should be allowed and the order of the trial judge restored.

d. Where there is fraud, misconduct or oppression in conduct and management of the company’s
affairs.
Minority must show lack of honesty on the part of the controllers. In Lock v John Blackwood Ltd.
[1924] AC 783; the court ordered a small co to be wound up on just and equitable grounds where
the controllers purposely kept shareholders in the dark as to the co’s affairs so that they could
obtain the minority shares at low price.
Loch v John Blackwood Ltd: PC 1924
Facts: The directors representing the majority had refused to call meetings, submit accounts or r e c o m m e n d a d i v i d e n d . T h e
m i n o r i t y h a d l o s t c o n fi d e n c e i n t h e m a n a g e m e n t a n d suspected that the majority were trying to force them to sell their
shares at undervalue.
Held: the company should be wound up as there was a justifiable lack of confidence in the management.
Shaw L said that a company may be wound up on the just and equitable ground where there is ‘a justifiable lack of confidence in the
conduct and management of the company’s affairs’ and thus a risk to the public interest that warrants protection
 In Re Wondoflex Textiles Pty Ltd. [1951] VLR 458, where the minority unfairly treated such as
where the controllers of a co. try to squeeze a minority member out of a company.
Re Wondoflex Textiles Pty Ltd [1951] VLR 458,
The unfair conduct by thegoverning director, such as job dismissal and false accusations against a minor shareholder, supported the minor
shareholder’s claim to having a justifiable lack of confidence in the management of the company’s affairs. This was sufficient to support a
just and equitable winding up. Also, the court found that the capital structure of the company—a small number of shareholders with the
residual discretion in directors to refuse entry to new shareholders—was analogous to a partnership (following Re Yenidje Tobacco Co[1916]
2 Ch 426).This further supported a just and equitable winding up, as the managing directors could not be trusted to run the company fairly
in the future.

Voluntary Winding Up
Circumstances in which company may be wound up voluntarily
439. (1) A company may be wound up voluntarily—
(a) when the period, if any, fixed for the duration of the company by the constitution expires,
or the event, if any, occurs, on the occurrence of which the constitution provide that the
company is to be dissolved and the company in general meeting has passed a resolution
requiring the company to be wound up voluntarily; or
(b) if the company so resolve by special resolution.

(2) A company shall—

(a) lodge a printed copy of the resolution with the Registrar within seven days from the
passing of a resolution for voluntary winding up; and
(b) give notice of the resolution in one widely circulated newspaper in Malaysia in the
national language and one widely circulated newspaper in Malaysia in the English
language within ten days after the passing of the resolution.
(3) The company and every officer who contravene subsection (2) commit an offence and shall, on
conviction, be liable to a fine not exceeding ten thousand ringgit and, in the case of a continuing
offence, to a further fine not exceeding five hundred ringgit for each day during which the offence
continues after conviction.

Date of commencement of winding up

441. (1) A voluntary winding up shall commence—
(a) where an interim liquidator has been appointed before the resolution for voluntary
winding up is passed, at the time when the declaration referred to in section 440 is lodged
with the Registrar; and
(b) in any other case, at the time of the passing of the resolution for voluntary winding up.
(2) A copy of the declaration referred to in paragraph (1)(a) shall be lodged with the Official Receiver.

Effect of voluntary winding up

442. (1) The company shall cease to carry on its business from the commencement of the winding up
except so far as is required in the opinion of the liquidator for the beneficial winding up.
(2) Notwithstanding anything to the contrary in the constitution, the corporate state and corporate
powers of the company shall continue until it is dissolved.
(3) Any transfer of shares, not being a transfer made to or with the sanction of the liquidator, and
any alteration in the status of the members made after the commencement of the winding up,
shall be void.

Declaration of solvency
443. (1) Where it is proposed to wind up a company voluntarily, the director or in the case of a
company having more than one director, the majority of the directors may—
(a) make a written declaration to the effect that the directors have made an inquiry into the
affairs of the company; and
(b) at a meeting of directors, have formed the opinion that the company will be able to pay
its debts in full within a period not exceeding twelve months after the commencement of
the winding up.
(2) The declaration in subsection (1) shall be made by the directors before the date on which the
notices of the meeting at which the resolution for the winding up of the company is to be
proposed are sent out to the members of a company.
(3) A statement of affairs of the company shall be attached to the declaration containing the
particulars made up to the latest practicable date before the making of the declaration as follows:
(a) the assets of the company, and the total amount expected to be realized;
(b) the liabilities of the company; and
(c) the estimated expenses of winding up.
(4) The declaration made by the directors shall have no effect for the purposes of this Act unless it is
—
(a) made at the meeting of directors referred to in subsection (1);
(b) made within five weeks immediately preceding the passing of the resolution for voluntary
winding up; and
(c) lodged with the Registrar before the date on which the notices of the meeting at which
the resolution for the winding up of the company is to be proposed are sent out to
members of the company.
(5) A director who makes a declaration under this section without having reasonable grounds for the
opinion that the company will be able to pay its debts in full within the period stated in the
declaration commits an offence and shall, on conviction, be liable to imprisonment for a term not
exceeding five years or a fine not exceeding three million ringgit or to both and in the case of a
 continuing offence, to a further fine not exceeding five hundred ringgit for each day during which
the offence continues after conviction.
(6) If the company is wound up under a resolution for voluntary winding up passed within a period of
five weeks after the making of the declaration, but its debts are not paid or provided for in full
within the period stated in the declaration, it shall be presumed until the contrary is shown that
the director did not have reasonable grounds for his opinion.
(7) The company and every officer who contravene paragraph (4)(c) commit an offence and shall, on
conviction, be liable to a fine not exceeding two hundred fifty thousand ringgit and in the case of a
continuing offence, to a further fine not exceeding one thousand ringgit for each day during which
the offence continues after conviction.

Distinction between “members” and “creditors” voluntary winding up

444. A winding up in the case of which a directors’ declaration under section 443 has been made, is a
“members’ voluntary winding up” and a winding up in the case of which such a declaration has
not been made is a “creditors’ voluntary winding up”.

 If debts are not in fact paid in full within the period specified in the declaration, the directors
who make the declaration are deemed to have made it without reasonable grounds until
they prove they did have such grounds. If they cannot justify themselves they are guilty of an
offence: S. 443… (4) & (5).
 At the general meeting, Members pass resolution:
1. Appoint a Liquidator,
2. Fix Liquidator’s remuneration, and
3. Ascertain supervisory powers over the liquidator’s conduct of the liquidation.

 If company insolvent or no declaration of solvency, directors must, in addition to calling for a

member’s meeting, convene a meeting of creditors and lay a statement before them of the
company’s financial position.
  Although it is called a creditor’s voluntary winding up, the creditors cannot call for the
meeting. A MVWU converts into CVWU if the company is insolvent.
 CVWU meeting is held after the member’s meeting, on the same day or the following day:
Section 444.

 MVWU would nominate a liquidator and also their representatives on the committee of the
investigation (not more than 5 persons): Section 445.
 CVWU can engage same liquidator, but if select different liquidator, the creditor’s choice will
prevail, unless the court orders otherwise.
 A voluntary winding up of either type terminates the powers of the directors, unless the
liquidator wishes them to continue: Section 445(2). Any legal proceedings or executions
against the company may still continue meanwhile.

 When does a MVWU begins (Section 441)

 appointment of interim liquidators
 date of passing the resolution
 A copy of the declaration to be lodged with Official receiver

 Publication (Section 440(4))

 notice of appointment of interim liquidator to be advertised within 14 days of appointment
in one widely circulated newspaper in Malaysia in national language and one newspaper in
English.

 Effect of a Voluntary Winding up (Section 442)

 The company shall ceased to carry on its business from the commencement of the winding
except depending on opinion of Liquidator.
 corporate power and corporate entity continue: Section 442(2)
 Any transfer of shares or alteration of members status shall be void: Section 442(3)

LIQUIDATOR
QUALIFICATION:
 an Official Receiver or
 an approved liquidator,
 a person of good character and is a fit and proper person competent to perform
the duties of an auditor can apply to the Minister of Finance: Section 433. Such
persons will remain as approved liquidators for 2 years or until the Minister of
Finance cancels their registration.
 In members’ or creditors’ voluntary winding up, a director or secretary can be
appointed as liquidator. Such person, however, must be approved by a simple
majority of creditors’ if it is a creditors’ winding up.
DISQUALIFICATION:
 A person is not qualified (disqualified) to be a liquidator of a company under s.433(1) if;
1. Is not an approved liquidator.
2. Owes the company that is being wound up or its related companies, a sum of more than
RM250,00-00.
3. Is an ‘officer’ or auditor of the company or had occupied such position within the past 24
months.
4. Is an undischarged bankrupt, and
 5. Has been convicted of fraud or dishonesty where the sanction includes a term of
imprisonment exceeding three months.
 These disqualifications would not be applicable to a liquidator in a members’ or creditors
winding up if the members or creditors pass a resolution to approve him & remove these
disqualifications.

APPOINTMENT
(1) MVWU, the liquidator is appointed:
 At the GM of the company where the decision to wind up the company is resolved:
Section 445.
 Members appoint the liquidator after he had given his consent in writing before that
General Meeting: Section 433(7)
(2) CVWU, a liquidator appointed depending on the circumstances as to how the liquidation
takes place :
 When the liquidator appointed by the members MVWU forms the opinion that the co. is not
capable of paying their debts, he will call for a meeting of the creditors: Section 447, or
 Where the directors do not file a declaration of solvency, the company convenes a creditor’s
meeting: Section 448 .
(3) COMPULSORY winding up, when the court orders the winding up of a company, it will order
the 2 appointment of a liquidator - s.476.
Normally Official Receiver appointed as a temporary liquidator until the applicants nominate their
own liquidator. If the court does not appoint a liquidator, the Official Receiver will remain as
liquidator of the company.

EFFECT OF WINDING UP
If a company goes into liquidation, all of its assets are distributed to its creditors. Secured creditors
are first in line. Next are unsecured creditors, including employees who are owed money.
Stockholders are paid last.
Payment are made according to priority:-
1. Secured Creditor: Debenture and Charge
2. Unsecured Creditors
I. Preferential Creditor: Section 527(1)
II. Ordinary Creditor

Priorities
527. (1) Subject to this Act, in a winding up there shall be paid in priority to all other unsecured debts
—
(a) firstly, the costs and expenses of the winding up including the taxed costs of a petitioner payable
under section 468, the remuneration of the liquidator and the costs of any audit carried
out under section 514;
(b) secondly, all wages or salary, whether or not earned wholly or in part by way of commission,
including any amount payable by way of allowance or reimbursement under any contract
of employment or award or agreement regulating conditions of employment, of any
employee not exceeding fifteen thousand ringgit or such other amount as may be
prescribed whether for time or piecework in respect of services rendered by him to the
company within a period of four months before the commencement of the winding up;
(c) thirdly, all amounts due in respect of worker’s compensation under any written law relating to
worker’s compensation accrued before the commencement of the winding up;
(d) fourthly, all remuneration payable to any employee in respect of vacation leave, or in the case of
his death to any other person in his right, accrued in respect of any period before the
commencement of the winding up;
(e) fifthly, all amounts due in respect of contributions payable during the twelve months next before
the commencement of the winding up by the company as the employer of any person
under any written law relating to employees social security contribution and
superannuation or provident funds or under any scheme of superannuation or retirement
benefit which is an approved scheme under the federal law relating to income tax; and
(f) sixthly, the amount of all federal tax assessed under any written law before the date of the
commencement of the winding up or assessed at any time before the time fixed for the
proving of debts has expired.
(2) The debts in each class specified in subsection (1) shall rank in the order specified but debts of the
same class shall rank pari passu and shall be paid in full, unless the property of the company is
insufficient to meet the debts, in which case the payment shall be reduced and the rate of reduction
shall be in equal proportion.
(3) Where any payment has been made to any employee of the company on account of wages, salary
or vacation leave out of money advanced by a person for that purpose, the person by whom the
money was advanced shall, in a winding up, have a right of priority in respect of the money so
advanced and paid, up to the amount by which the sum in respect of which the employee would
have been entitled to priority in the winding up has been
diminished by reason of the payment, and shall have the same right of priority in respect of that
amount as the employee would have had if the payment had not been made.
(4) So far as the assets of the company available for payment of general creditors are insufficient to
meet any preferential debts specified in subparagraphs (1)(b), (d) and (e) and any amount payable in
priority by virtue of subsection (3), those debts shall have priority over the claims of the holders of
debentures under any floating charge created by the company, and shall be paid accordingly out of
any property comprised in or subject to that charge.
(5) Where the company is under a contract of insurance, entered into before the commencement of
the winding up, insured against liability to third parties, then if any such liability is incurred by the
company, either before or after the commencement of the winding up, and an amount in respect of
that liability is or has been received by the company or the liquidator from the insurer, the amount
shall, after deducting any expenses of or incidental to getting in the amount, be paid by the liquidator
to the third party in respect of whom the liability was incurred to the extent necessary to discharge
that liability or any part of that liability remaining undischarged in priority to all payments in respect
of the debts referred to in subsection (1).
(6) If the liability of the insurer to the company is less than the liability of the company to the third
party, nothing in subsection (5) shall limit the rights of the third party in respect of the balance.
(7) Subsections (5) and (6) shall have effect notwithstanding any agreement to the contrary entered
into after the commencement of this Act.
(8) Notwithstanding subsection (1)—
(a) paragraph (c) of that subsection shall not apply in relation to the winding up of a company in any
case where the company is being wound up voluntarily merely for the purpose of
reconstruction or of amalgamation with another company and the right to the
compensation has on the reconstruction or amalgamation been preserved to the person
entitled thereto, or where the company has entered into a contract with an insurer in
respect of any liability under any law relating to workers compensation; and
(b) where a company has given security for the payment or repayment of any amount to which
paragraph(1)(f) relates, that paragraph shall apply only in relation to the balance of any
such amount remaining due after deducting from the balance the net amount realized
from such security.
(9) Where in any winding up assets have been recovered under an indemnity for costs of litigation
given by certain creditors, or have been protected or preserved by the payment of moneys or the
giving of indemnity by creditors, or where expenses in relation to which a creditor has indemnified a
liquidator, have been recovered, the Court may make such order as it deems just with respect to the
distribution of those assets and the amount of those expenses so recovered with a view to giving
those creditors an advantage over others in consideration of the risk run by the creditors in so doing.
(10) Subject to this Act, all debts proved in a winding up shall be paid pari passu.

Corporate Rescue Mechanisms – Available Options

Two Corporate Rescue Mechanism namely:-
1. Judicial Management and
2. Corporate Voluntary Arrangement
Introduced by the Companies Act 2016 may be of assistance to financially distressed companies to
avoid liquidation.

What exactly are ‘Corporate Rescue Mechanisms’? In simple terms, it means restructuring and rescue
options for companies to overcome its financial problems and to avoid liquidation. We set out below
the basic pre-requisites of each of these mechanisms, its key features and benefits.

Corporate Voluntary Arrangement (“CVA”) CVA is not available to all companies. Companies which
are eligible to opt for CVA as a rescue option are private limited companies incorporated under the
Companies Act 2016 which are:-
a. not regulated under the laws enforced by Bank Negara Malaysia and that of the Capital
Markets and Services Act 2007: Section 395 CA.
b. that have not have created any form of charge or undertaking of the companies’ properties:
Section 395(d) CA. In short, the companies have no secured debt. This stringent condition has
 attracted a number of criticisms as any company engaging in business would normally have
obtained some form of financing requiring the creation of a charge or undertaking of the
companies’ properties.
For companies which are eligible, CVA allows financially distressed companies to enter into an
arrangement with their creditors without the need for court approval. CVA may be proposed and
prepared (Section 397 CA) by the director(s) of the company (Section 396 CA). A nominee is to be
appointed to oversee and supervise the CVA but directors would still retain their powers of the day-
to-day management of the company throughout the CVA process.

One of the main advantages provided by CVA is that a company would be clothed with an automatic
‘moratorium’ upon filing of the relevant documents to the court. The court’s involvement under CVA
is only to the extent of serving as a filing platform of the required documents.
The term moratorium in this context is entirely different from the meaning understood by many i.e.
loan repayment deferment. The automatic moratorium (Section 398 CA) in this context is protection
to a company opting for CVA from a range of actions which includes inter alia:-
a. no winding up petition may be presented against the company;
b. no other proceedings and no execution or other legal process may be commenced or continued
against the company;
c. no landlord or other person to whom rent is payable may exercise any right of forfeiture and re-
entering the premises let to the company etc (paragraph 17 Eight Scedule CA).
The moratorium is for an initial period of 28 days and the extension may only be made up to a
maximum of 60 days calculated from the commencement of the moratorium (Paragraph 3 Eight
Schedule). Within the said 28 days, a meeting will be held with the company’s members and
creditors to either approve or disapprove the CVA proposal or to extend the moratorium or
otherwise. Such proposal must be passed by a majority of 75% of the total value of creditors present
and voting (Section 400 CA) and in a meeting of members, must be passed by a majority of members
present and voting. All creditors and members of the company would be notified of the meetings to
be held.
Once the CVA proposal is approved, all creditors will be bound by the terms of the same. A CVA
proposal would usually include the company’s assets and funds, distribution of such funds to each
and every creditor and the time frame for such distribution, future plans or performance to be
undertaken by the company etc.

Judicial Management (“JM”) Similar to CVA, JM is not available to all companies. This rescue option
is readily available to all private limited companies save for financial institutions or companies which
is subject to the Capital Markets and Services Act 2007 (Section 403 CA). Companies which are not
able to fulfill the stringent condition applicable for CVA as stated above, may opt to explore this
rescue option.
Unlike a CVA, JM is a court supervised rescue plan that places the management of a company under
a judicial manager appointed by the court. The director(s) of the company will no longer be in control
of the management of the company. An application for JM may be made by the company itself, the
director(s) or even the creditors of the company. The application would need to be made to the court
where upon such application, the company will be granted with a similar automatic moratorium as
the moratorium in the CVA context which shall last until the JM application is dismissed or
conversely, when a JM order is granted.
In JM, the court plays an important role in determining whether to grant a JM order as opposed to
CVA, where the court merely serves as the filing platform of the required documents. In determining
whether to grant a JM order, a court will need to be satisfied that the company is or will be unable
to pay its debts and considers that the making of the order would be likely to achieve one or more of
the purposes set out in Section 405(1)(b) of the Companies Act 2017 which includes inter alia the
survival of the company.
Apart from the possibility of a court not allowing the JM application, a company intending to opt for
such rescue option will also need to consider the possibility of the JM application being opposed by a
secured creditor or a debenture holder. If a secured creditor opposes or a debenture holder
proceeds to appoint a receiver or receiver and manager, a court will dismiss such judicial
management application (Section 409 CA). It will be in the company’s best interest and time to first
liaise and seek the consent of the secured creditor(s) and debenture holder(s) prior to making such
application.
If a company is successful in its JM application, a JM order remains in force for 6 months and may be
extended for another period of not more than 6 months. The moratorium shall continue during this
period. Within 60 days of the JM order, the judicial manager appointed shall table a statement of his
JM proposal before a meeting of the company’s creditors and is required to achieve 75% in value of
the creditors’ approval for the proposal. Once approved, all creditors will be bound by the terms set
forth in the JM proposal.
Corporate Rescue Mechanisms – A Compromise Between Debtors and Creditors Worth
ExploringCreditors must be prepared to face the increasing possibility that recovery of debts via the
traditional debt collection practices may not achieve or yield the desired results in light of the current
economic climate. Creditors may instead recover a higher portion of debts due and owing in a CVA or
JM scenario in comparison to the traditional winding up scenario.
The Corporate Rescue Mechanisms above is an avenue that can be explored by both debtors and
creditors to achieve the goal of creditors still being able to recover a portion of their debts, whilst at
the same time allowing the debtor to continue as an ongoing concern.