Closing Down a Company: Winding Up Law in Malaysia

The winding up of a company is the process of bringing an end to a company. The company’s assets are sold off and then used to pay off the company’s debts. Any excess proceeds are then returned to the shareholders of the company.

Here, I will give a brief overview of winding up law in Malaysia. We will start with getting our terminology right.

Mind Your Language: Winding Up, Not Bankruptcy

mind your language

In getting our terminology right, we should refer to the term ‘winding up’ or even ‘liquidation’ when referring to this process of winding up a company. In Malaysia (and a few other jurisdictions like Singapore, the UK and Australia), these are the correct terms to be used. In contrast, in Malaysia at least, the term ‘bankruptcy’ is for individuals and where an individual may be adjudged bankrupt.

Nonetheless, we sometimes see news reports referring to companies entering ‘bankruptcy’ of companies or certain companies seeking ‘bankruptcy protection’. The likely reason for this is that in the United States, it has a Bankruptcy Code and which will govern both the insolvency of individuals and companies.

Next, it would also be useful to look back in history. I examine briefly the reasons for the enactment of winding up laws universally, and how Malaysia introduced its winding up laws.

History Lesson

It is useful to look back and understand the underlying aims of winding up. For the winding up of a solvent company, it allows the assets of the company to be distributed back to the shareholders after paying off the debts of the company.

When winding up an insolvent company, there are three main aims of the winding up procedure. First, it allows an orderly and fair distribution of the assets of the company among its creditors. In the past, a creditor could rush to seize the assets of the company and it became a race against the clock as to which creditors could get some of the assets first. This fair distribution of assets also recognises the public interest in allow certain types of debts (for instance, a certain amount of wages owing to employees) to have priority over say, normal trade debts.

Secondly, allowing for the winding up of an insolvent company serves the greater good. It does not benefit the business community to have an insolvent company continue to trade and incur even more debts.

Thirdly, winding up allows for an independent and appropriately qualified person (i.e. the liquidator) to investigate the affairs of the company. Was there any mismanagement? Was there any wrongful depletion of assets of the company that led to the winding up?

In Malaysia, our winding up laws are contained in our Companies Act 1965 (and with some minor cross-referencing to the Bankruptcy Act). In turn, the Companies Act 1965 was based on the English Companies Act 1948 and the Companies Act 1961 of the Australian state of Victoria. Hence, the very persuasive value that we can draw on English and Australian company law cases.

With this framework in mind, I set out the ways in which one can initiate the winding up of a company.

Voluntary Winding Up: Company itself starts the winding up

The first form of winding up is known as a voluntary winding up. The process is initiated by the company itself, through its directors and shareholders, in deciding that the company should be wound up. This process does not involve the court at all.

A company could very well be solvent and be rich in terms of assets. The directors and shareholders may decide that they wish to wind up the company, and for all of the assets to be sold, and for the proceeds to then be distributed back to the shareholders. A method to essentially realise the investment the shareholders made into the company. Such a solvent method of winding up is known as a members voluntary winding up, or members voluntary liquidation. Safeguards are put into place to ensure that this method is solely reserved for the situation when a company is truly solvent.

A second form of voluntary winding up where the company is insolvent. This is a situation where the company is unable to pay off all of its debts. Nonetheless, a voluntary winding up process can still be initiated by its directors and shareholders. A creditor who is owed money by a company cannot object to a company deciding to wind itself up or the company deciding to close down its business. That is the usual business risk when dealing with any company.

This second method of winding up is known as a creditors voluntary winding up or a creditors voluntary liquidation.

The company (through its directors and shareholders) can make the decision to start the winding up process. However, the creditors now can have the final say in who should be appointed as the liquidator of the company.

This voluntary winding up process is known as a creditors voluntary winding up or creditors voluntary liquidation. The creditors have the ultimate say in the identity of the liquidator as the liquidator has the important role of taking control of the assets of the wound up company, selling the assets and then trying to maximise the distribution of the proceeds to the creditors. Since the company is insolvent, it is very likely that the creditors would not be able to be paid in full. Therefore, their interests need to be protected.

Court Process for Winding Up: Compulsory Winding Up

In the Malaysian context, it is very common to come across the winding up of a company through the court process. This is known as a compulsory winding up. I highlight the most common example where a company is unable to pay its debts.

A creditor who is owed more than RM500 can send out a demand letter to the company to pay within 21 days. Colloquially, this is known as a ‘Section 218 Notice’ or a ‘218 Notice’ since the demand is issued pursuant to section 218 of the Companies Act.

If the company fails to pay the amount demanded in this letter, there is a statutory presumption that the company is now insolvent. The creditor can now file the court papers, known as a winding up petition, to seek the Court Order for the winding up of the company.

Where the company still has an active business, and where the company disputes the demand, the filing of a winding up petition can often cause grave reputational and business damage.

The Court process for the winding up petition will require mandatory advertisement and inserting of a notice in the Government Gazette. The public knowledge may cause contracting parties to fear whether the company is going under and banks may also take the step to freeze the company’s bank accounts. So, as a matter of litigation strategy, if the company disputes the sum demanded, it is important for a company to take steps to prevent the filing of a winding up petition.

Enter the Liquidator

An important facet of all forms of winding up is the role played by the liquidator. A liquidator is essentially the independent person or entity who takes charge of the wound up company. One of the primary roles of the liquidator is to take control of all of the company’s assets, sell off the assets and then distribute the proceeds.

In Malaysia, the liquidator could be the Director-General of Insolvency, the government official designated to be in charge of the administration of bankruptcy and winding up matters in Malaysia. Alternatively, a private liquidator could be appointed. This would have to be an accountant since a person can only obtain a liquidator’s license if he holds an audit license.

When the liquidator takes over the company, the company continues to exist as a legal entity. But the directors’ powers of managing the company ceases, and the liquidator is now in the driving seat of the company. In other words, if the company were a giant robot, there is now just a change in the person piloting that robot.

Time for a new pilot to take control of the robot
Time for a new pilot to take control of the robot

So if the liquidator wanted to carry on the business of the company for a limited time, or if the liquidator were to sell off the company’s lands, it is still the company carrying out such tasks but the liquidator piloting these actions.

As mentioned earlier, besides the external dealings of the company, the liquidator will also have the powers to investigate the internal matters of the company.

The winding up will come to an end, and the company will cease to exist, upon the dissolution of the company. So the winding up process should have been completed and the company is then dissolved.

Conclusion

That is a overall snapshot of the winding up regime in Malaysia. Even in the upcoming changes to Malaysia’s company law, the relevant winding up provisions will be retained within the new Companies Act. The winding up regime will be tweaked and strengthened in certain areas, as it continues to evolve to meet the changing business environment.

 

 

94 thoughts on “Closing Down a Company: Winding Up Law in Malaysia

  1. Magnum Gan February 12, 2016 / 2:01 pm

    A friend of mine request me to ask you for a advice.
    He received a letter from Insolvent dept of M’sia regarding winding up petition by Tenaga National.
    He is actually not the MD(the owner) but a RM1 director and is not involve in the managing of the company as he is working for another company.He was requested by Insolvent dept.to present himself since they could not locate the MD of the company.
    So is he necessary need to present himself to the Insolvent dept.

    Thank You.

    • Lee Shih Lee Shih February 13, 2016 / 9:35 am

      It is best for your friend to meet with the Insolvency Department. The Insolvency Department can request the attendance of any of the directors of a wound up company. There is no difference between a Managing Director or just any other ordinary director.

      • Magnum Gan February 14, 2016 / 11:36 am

        According to my friend,he was just helping a friend since the friend has split with his other shareholders n need him to join him as director so that he can still use the bank’s cheque but after 5 months he has sold off all the machines.He also sold off the factory with consent of the owner probably for commission.
        My friend found out too late n the friend could not b contacted.

        So on your advice to meet with the the Insolvent Dept.He’s worried that he have to be responsible for the TNB debts.I have told him this is a SDN BHD. and I don’t think he will be responsible.He’s still in 2 mind whether to meet with the ID.He need your advice what to do if he proceed to go.

        To be frank,he is my brother.Anyway thank you for your first advice.

      • AMY TOK April 21, 2016 / 8:23 am

        pls possible give me Mr Lee Shih email address

      • Adrienne May 26, 2016 / 2:49 pm

        Hi Mr. Lee,
        In cases of co. under Creditors Voluntary Liquidation, is there a must for a Provisional Liquidator to be appointed during the interim (before the Creditors’ Meeting is held) if the company do not have any remaining assets at all?

        Appreciate yr reply.
        Thank you
        adrienne

        • Lee Shih Lee Shih May 30, 2016 / 10:48 am

          Hi Adrienne. In a Creditors Voluntary Liquidation, a provisional liquidator must be appointed.

          • Adrienne May 30, 2016 / 11:23 am

            Thank you so much for yr speedy reply Mr. Lee.
            I have came across a case where the Company secretary of a company under Liquidation had refused to release the secretarial books to the Provisional Liquidator citing a lien over the books as the company in question had not settled their outstanding secretarial fees & citing lien on common law. What is your thought on this Mr. Lee?

  2. Chong June 25, 2016 / 2:57 pm

    Where the members intend for the company to be voluntarily wound up, would it be more beneficially to sell off any bonds held by the company before initiating the winding up process? Or would the bond purchases (though not of much value) not matter?

    Thank you.

  3. KK July 15, 2016 / 4:25 pm

    My employer is planning to lodge a complain against a local Liquidator due to failure to carry its duty. May I know where is the right channel that we can lodge our complaints?

    • Lee Shih Lee Shih July 18, 2016 / 9:44 am

      Complaints can be lodged at the Malaysian Department of Insolvency. Every liquidator is also a member of the Malaysian Institute of Accountants (MIA), and you can lodge a complaint with MIA as well for them to investigate.

  4. adrienne Lim July 19, 2016 / 3:47 pm

    Apart from MIA, complaint should also be lodged to Ministry of Finance (MOF) since a Liquidator’s licence is under the jurisdiction of MOF .

  5. Eric July 19, 2016 / 10:53 pm

    Hi Mr Lee, I have a friend who plans to wind up a sdn bhd company as soon as possible but was advised by company secretary that SSM will only allowed the company to be wound up after 1 year without any business transactions. Is there another way to go about this as he doesn’t want to pay the company secretary fee for another year without any transaction. Kindly advise. Thanks.

    • JIm Choo August 1, 2016 / 11:20 am

      There is no such rule regarding winding up as prescribed by the companies Act. It can be wound up anytime once the shareholders at EGM pass a special resolution to wind up. It may refer however to striking off which is under the discretion of the SSM.

    • HT February 20, 2017 / 12:00 pm

      The company secretary is referring S218(1)(c) of the Companies Act. If the said company is solvent, the shareholders can always commence a members’ voluntary winding up.

  6. Samantha July 21, 2016 / 5:04 pm

    Hi Mr Lee,

    For Members Voluntary Liquidation, is there a must to appoint a Licensed Liquidator before the resolution for voluntary winding-up is passed? Thank you.

    • Lee Shih Lee Shih July 25, 2016 / 5:28 pm

      Samantha, for a members voluntary liquidation (MVL), I answer in two parts. Firstly, there is no strict need to appoint a licensed liquidator in an MVL. You have the flexibility to even appoint any third party or even a director of the company to carry out the winding up.

      Secondly, if you choose to have a licensed liquidator (and that normally makes the process much smoother), then you should get that liquidator’s consent to act before you pass the resolution. It is common to also sign the liquidator’s letter of engagement before the resolution, and for it to provide that his appointment will be effected at the time the resolution is passed. The appointment of the liquidator is then effected at the time of the passing of the resolution for the MVL.

  7. miserable creditor August 8, 2016 / 3:54 pm

    my company had obtained a judgment and seized the debtor’s property but I had been informed that the director of the company had filed winding up petition. I was told that I cannot continue to auction off the property. Is there any other way I can auction off the property and get my money back?

    • Lee Shih Lee Shih August 9, 2016 / 9:22 am

      If the company has been wound up, and a liquidator appointed, then you cannot auction off the property. If there is still a winding up petition pending, you may be able to still proceed with the auction. You will be able to check on the status of the winding up of the company through a check via CTOS, a company search or an insolvency search with the Malaysian Department of Insolvency.

      Once the company is wound up, your company will have to file a proof of debt form with the liquidator and be treated equally with the other unsecured creditors (regardless if they had also obtained a court judgment or not).

  8. Nik Nurul Ain August 9, 2016 / 9:35 am

    Hi Mr Lee,

    I would like to seek your advise on what is the procedure for Unsecured Creditors to claim the debt from Liquidator?

  9. Nik Nurul Ain August 9, 2016 / 9:45 am

    Hi Mr Lee,

    Would like to seek your advise on how the Unsecured Creditors claim the debt from Liquidator and/or Director?

  10. Nik Nurul Ain August 9, 2016 / 9:53 am

    Hi Mr Lee,

    Would like to seek your advise on how the Unsecured Creditors can claim the debt from Liquidator?

    • Lee Shih Lee Shih August 11, 2016 / 1:14 pm

      It would be best to get legal advice as you will need to prepare a Proof of Debt form based on a specific template and where you need to attach supporting documents. The Proof of Debt will need to be filed with the liquidator. There may then be a long process for the liquidator to eventually sell off any available assets and to then pay out equally to the unsecured creditors.

      • nickdarwish August 11, 2016 / 2:19 pm

        Dear Mr Lee,

        Thanks for your reply.

        Just get the info where the Debtor Company is currently under receivership and management to handle the secured creditors’ matter. And at the same material time, there is another entity who has filed a petition of winding up and eventually there will a Liquidator appointed.

        Therefore, my question :

        1) is it advisable for my company to conduct CCM search so that we will able to know as when the said petition is filed and who is the said entity and their representative (lawyer). Then, support the petition? OR

        2) just wait for the Debtor Company to be wound up and file the POD?

        Kindly advise.

  11. nickdarwish August 9, 2016 / 11:16 am

    Hi, Mr Lee,

    Would like to seek your advise on how to file Proof of Debt against the Liquidator as Unsecured Creditors and what is the chance and/or guarantee to recover the debt due?

  12. Adam August 24, 2016 / 2:02 pm

    Hello,

    Would like to ask;
    If a company has been making losses and may have to wind up, can a director/shareholder reclaim his/her initial investments (20%) plus a property (vehicle) that belongs to the company? Is that legally possible? Can the Director refuse to do a members voluntary liquidation?

    Really appreciate your advise.

    • Lee Shih Lee Shih August 24, 2016 / 8:56 pm

      Essentially, this is how the various parties will queue up and claim money from a wound up company.

      First, if there are secured lenders (like banks), they stand outside the queue and they are able to enforce their security e.g. foreclose over charged land.

      Second, the liquidator will pay his fees and expenses (normally, not that substantial).

      Third, there are some preferred creditors. These are essentially a certain amount of employee salaries, EPF contributions and taxes to the government.

      Fourth, then the rest of the unsecured creditors get paid. It is normally at this stage that there may or may not be enough realised assets to pay out to all the unsecured creditors. All of them will share equally.

      Fifth, only if there is excess will that be returned to the shareholders as part of the return of their investment.

      So this all depends on whether the wound up company had enough money or not.

  13. KB Tan August 30, 2016 / 11:00 am

    Hi Mr Lee, when a final dividend has been distributed, what will happen to subsequent proof of debt filed to Liquidator?

  14. annaessa September 6, 2016 / 10:40 am

    Dear Mr lee,

    Would like to seek your advise on my case,

    Kindly contact col or msg me,

  15. Andrew September 18, 2016 / 8:42 pm

    Mr. Lee,
    We are victims of an uncompleted condominium in Kota Kinabalu. Sagajuta has been winded up on the 20th June 2016. Government Liquidator has been appointed by the Court and we failed to get our Private Liquidator to be appointed by the Court. I have a few questions here:-
    1. We are very sure that there are over-claims in the project by the architect and feel that architect is collaborating with the Developer. But we need bank statements of the Housing Developer Account from the Liquidator to confirm it. Can the Liquidator NOT disclose to us by using Privacy Act ?
    2. We intend to pursue legal action against the Directors, there is sufficient money released to complete the project and yet the project has been delayed for 4 years. So there is mismanagement of fund for the project. Under what law should we sue the Directors ?
    3. Under what circumstances, can we request the court to replace the Gov’t Liquidator by the Private Liquidator ? We believe everything is moving so slowly and it has been 3 months since the winding up. Is an obligation to call a meeting with the victims of the project ? When must they call a meeting with us under the law ?

    Thanks

    • HT February 20, 2017 / 12:11 pm

      Hi Andrew, do you mind giving me your contact? I would like to know more about the your case and believe I would be able to shed some light if I am provided with more information.

  16. Andrew September 18, 2016 / 8:52 pm

    Mr. Lee,

    As victim of an incomplete project due to many reasons and now the company is winded up. Hence, there is no sign of completion and issuance of Certificate of Occupation (OC).

    1. Are the buyers consider unsecured creditors ?
    2. We have paid 80% of the S&P Price, can we submit POD based on the amount paid to the Developer ? If we submit POD based on the amount paid, are we giving up the rights of S&P for the completion of the condo when the condo is being revived ?
    3. Normal LAD can only be calculated upon completion of the project with OC. Can we submit POD based on LAD until the winding up date of the company since we don’t have the OC Date.

    Thanks

    Regards

    • Lee Shih Lee Shih September 19, 2016 / 8:58 am

      First of all, it would be best for you to seek formal legal advice as there are several legal issues that you will have to consider carefully. As the project is in Kota Kinabalu, you will have to seek advice from a Sabah lawyer.

      Secondly, do also raise your concerns with KPKT and the National House Buyers Association (www.hba.org.my). Both can be very helpful in assisting buyers in abandoned housing projects.

      Thirdly, there have been some amendments to the Housing Development (Control and Licensing) Act to cater for abandoned housing situations and to impose more obligations on the liquidator as well.

      With the Official Receiver appointed as the liquidator, the winding up process and the calling of creditor meetings would be a bit slower. The Official Receiver would have a heavy workload. As house buyers, you would be unsecured creditors and the unsecured creditors can have the liquidator / Official Receiver call for a creditor meeting to ascertain your wishes. In particular, the creditors’ wish to appoint a private liquidator.

      You will have to get legal advice on how to prepare the Proof of Debt form, to get consent from the private liquidator to act, and the process for calling for a creditors’ meeting.

      With a private liquidator in place, it will be far easier to investigate the affairs of the developer, and to see if there has been any breaches of the relevant laws.

  17. SIEN September 22, 2016 / 4:43 am

    Mr. Lee,

    Do you have any idea how much a private liquidator can charge for carrying ordinary task on behalf of the liquidated company, i.e. to acknowledge on certain documents & to update their record.

    In a situation whereas a sum of loan settled and borrower would have to do the Receipt & Reassignment to redeem the original document from bank (without title). As such, borrower has to notify the Developer (in liquidation) at a later stage for them to update their record by acknowledging on the Notice of Assignment.

    Now, Private Liquidator appointed refused to do so unless “Administrative fee at 1.06% of the prevailing sale and purchase agreement price + Disbursement fee” being paid for them to do the “Verification of Ownership Exercise (VOE)” before they can acknowledge on the Notice.

    Are they allowed to do so under Malaysian law?

  18. birthdaypresentforyeen September 22, 2016 / 4:44 am

    Mr. Lee,

    Do you have any idea how much a private liquidator can charge for carrying ordinary task on behalf of the liquidated company, i.e. to acknowledge on certain documents & to update their record.

    In a situation whereas a sum of loan settled and borrower would have to do the Receipt & Reassignment to redeem the original document from bank (without title). As such, borrower has to notify the Developer (in liquidation) at a later stage for them to update their record by acknowledging on the Notice of Assignment.

    Now, Private Liquidator appointed refused to do so unless “Administrative fee at 1.06% of the prevailing sale and purchase agreement price + Disbursement fee” being paid for them to do the “Verification of Ownership Exercise (VOE)” before they can acknowledge on the Notice.

    Are they allowed to do so under Malaysian law?

    • Lee Shih Lee Shih September 23, 2016 / 3:34 pm

      This is a common issue I have come across for housing projects which have gone into liquidation. Under the amended law under the Housing Development Act, a liquidator is now deemed to be a developer. So, the argument is that a liquidator should be bound by the scheduled fees just like a developer under the Housing Development Act.

      • birthdaypresentforyeen September 24, 2016 / 2:20 am

        Thank you for your prompt reply, I appreciate that.

        By saying Liquidator is now deemed to be a Developer, is it true they can charge whatever fees they deemed it right? Because normally there will not be any administrative fees to be charged for acknowledgement as far as I know.

        As of now, Rule 142 for remuneration of Liquidators are not clearly defined & they are not regulated by Table C as those are for Official Liquidator. Such a grey area for them to benefit from.

        Do you think MDI could help?

  19. Chua October 3, 2016 / 1:37 pm

    Hi, Mr. Lee,

    The Form 62 shall be signed by a director and the secretary or either one? The liquidator is asking external secretary to sign the said form, but I think the director is more suitable to sign. Is it compulsory that the secretary has to follow the request of the liquidator?

  20. Sharon October 7, 2016 / 11:39 am

    Hi Mr. Lee,

    Can we reject the first dividend given by the Liquidator during the winding-up process

    Appreciate your comments on the same. Thanks

  21. Sharon October 7, 2016 / 11:40 am

    can

  22. Warda Rose October 10, 2016 / 12:15 pm

    Hi Mr Lee,

    I want to ask whether the company can cancel the winding up order? if yes, what is the procedure? do we have to prepare notice of application & affidavit to cancel the order? can i get the sample for further reference? This is my email : [email protected]

    Thank you.

    • Lee Shih Lee Shih October 12, 2016 / 2:59 pm

      Hi Warda,

      In summary, this is my view:

      1. The majority of cases say that you can only obtain a permanent stay of a winding up. This is under section 243 of the Companies Act 1965.

      2. There are however some cases that suggest that the court will still have the inherent jurisdiction to set aside a winding up order.

      You can read more at: https://leeshih.com/2014/10/28/unwinding-a-winding-up-revisited/

  23. Warda Rose October 10, 2016 / 12:21 pm

    Hi Mr Lee,

    I want to ask whether the company can cancel the winding up order? is yes, what is the procedure? do we have to prepare notice of application & affidavit to cancel the order?

    Can i get the sample for my further reference? this is my email : [email protected]com

    Thank you.

  24. Christine TAn October 11, 2016 / 3:04 pm

    Mr Lee – need your advice how to go about to liquidate an insolvent limited company with creditors. Can the director be the liquidator. Does the company still need to have an AGM first before filing for liquidation with SSM. The company has since stop business since Sept 2016. Kindly advice.

    Thank you.

    • Lee Shih Lee Shih October 12, 2016 / 3:02 pm

      Hi Christine,

      Your query points towards a creditors’ voluntary winding up. So you will need to hold the necessary meetings of members and creditors.

      On whether the director can be the liquidator in a creditors’ voluntary winding up, do have a read of section 10 of the Companies Act 1965. You will need creditor approval in order to appoint the director as a liquidator.

  25. may November 15, 2016 / 10:23 am

    Dear Mr.Lee,

    I would like to have some info about members’ voluntary winding up, what is the procedures involved? How much it cost? How long it takes?

    Thanks a lot

    May

  26. Reader November 17, 2016 / 1:22 pm

    Hi Mr. Lee,
    Would be grateful if you could highlight the companies winding-up procedures under the CA2016. eg. previous s.218 CA 1965 notice, creditors scheme of arrangement etc. Are thereparallel provisions under the new Act?
    Do the previous Companies Winding-up Rules continue to apply ?

    Thank you
    reader

  27. Yusuf November 21, 2016 / 4:36 pm

    Hai Mr Lee,

    How to winding-up Cooperative in Malaysia? To be exact it is a Koperasi Guru- Guru Malaysia Berhad. It is the same winding up procedure as the normal company winding up?

    Thanks in advance

  28. qal December 21, 2016 / 11:52 am

    • Hi,
    my father, mother and sister are bankrupt and their bankruptcy reached 5 years soon (by the end of Dec 2015).
    My father (54 years old) was business man previously and he use my sister’s and mother’s (52 years old) name for other company and bank loan too.
    At the end all of them became bankruptcy. One of the reasons is that we were betrayed by a partner in the business; at the end my family had to bear all the loses as their names were registered in the company.
    Because of this, we have tried many lawyers in the hope to get my sister discharge from bankruptcy as she is still young at only 27 yeas old.
    She is working in travel field and it block her from travelling around and facing alot of restriction. She been sued by 2 company with amount RM50K++ & RM800K++, one of the debtor did hire lawyer and they insist don’t wan to settle. We also do not have so much money to clear the debt. I have search around and heard that after 5 years, they may have the chance to apply for discharge from bankruptcy. May i know is there any way to get my family discharge from bankruptcy? or is there anyway to get discount from them? Do really hope you may help. Thanks. Please do contact me if you may help on this case.Hi,
    my father, mother and sister are bankrupt and their bankruptcy reached 5 years soon (by the end of Dec 2015).
    My father (54 years old) was business man previously and he use my sister’s and mother’s (52 years old) name for other company and bank loan too.
    At the end all of them became bankruptcy. One of the reasons is that we were betrayed by a partner in the business; at the end my family had to bear all the loses as their names were registered in the company.
    Because of this, we have tried many lawyers in the hope to get my sister discharge from bankruptcy as she is still young at only 27 yeas old. She is working in the travel industries and the bankruptcy blocked her from travelling and imposed many restrictions.
    She has 2 creditors amounting to RM50,000; RM800,000, one of the creditors did hire a lawyer and they are persistent that they don’t want to reach a settlement with our family. We do not have sufficient to clear the debts.
    I heard, after 5 years, they may have the opportunity to apply for a discharge from bankruptcy. May I know to apply for a discharge from bankruptcy?
    Is there anyway to get a discount from the Creditors?
    Do really hope you may help. Thanks. Please do contact me if you may help on this case.

  29. Jube WJ Lim January 2, 2017 / 1:57 am

    Dear Mr Lee,

    …the company cannot repay fully the loan borrowed and the Bank obtained a judgement order from court against the company for ‘the outstanding loan amount as well as interest and penalty charges until full settlement’.

    The Bank subsequently obtained court order and wound-up the company as well as auctioned off its properties. If the money from the auction of properties were enough to repay the outstanding loan amount and (may be) also the interest and penalty charges.

    Please advise how to calculate the interest and penalty charges payable…. should they be calculated up till the date the company was wound up …or the date the charged properties were auctioned off … or the date the auction money was fully paid by the bidder….or..???

  30. Wan February 20, 2017 / 1:39 pm

    Mr Lee,
    I have registered a Sdn Bhd 12 years ago and it has been operating for about 6 years, then the business deteriorates and become dormant and dysfunction thereafter. It was a RM10 company and the company has no debtors. SSM invoked Sec 308 to winding up the company on 2015 and this process takes time. However, from time to time, the income tax contact me for small matter summons, e.g. not submit the Form E on 2014 or not update the sale prediction on 2012 or …, etc. Scared by their court tactics, I pay each summons RM300 for every threaten. I actually explained to them, but it seems they could find a small wrongdoing to validate their standing.

    Frustrated with all these scared tactics, are there anything I could do? or have to pay the summons in protest?

    How long I have to bear the responsibility before the company is fully wound up? What are the law I can refer for my rights understanding?

    Thanks for your reply or enlightenment.

    • Wan February 20, 2017 / 1:53 pm

      Sorry, the Sec 308 is to strike off the company from register, not winding up. I mention wrongly.

  31. Eric March 8, 2017 / 1:35 pm

    Hi Mr. Lee,

    I have a couple of questions regarding the liquidating process when it comes to intangible assets.

    in any case on winding up, how would the liquidator, private or otherwise liquidate intellectual property assets of a company such as the ownership of a high traffic website, patent, mobile app and so on?

    Do they just go to the highest bidders that the liquidator could find?
    Must the liquidator sell off to the highest bidder?
    Do the current members of the company have rights to also particpate in buying them over?

    • Lee Shih Lee Shih March 9, 2017 / 8:45 am

      Intellectual property assets would be sold just like any other assets of the company. The liquidator’s duty is to try to obtain the best possible price, in order to maximise the returns. An ideal situation may be for the liquidator to try to carry out a tender, obtain a valuation, request for bids, advertise and so on. But for a wound up company, it may also depend on how much funds are available to carry out such a process. So it will be a balancing act for the liquidator to maximise the returns from the sale. It will in the end be a commercial decision by the liquidator.

      Sometimes, it may not be as simple as the highest bid, especially if some assets are sold on a piecemeal basis or sold off entirely. The liquidation of Kian Joo Holdings had the liquidators also facing competing bids and then having to decide who to sell the assets to.

      Current members of the company can participate in the purchase of the assets.

  32. Sharon Sen May 17, 2017 / 12:59 pm

    Hi Mr Lee,

    I have a bit of different problem from most of the comment here. I opened and SDN. BHD with an initial of paid up capital of RM350k. My partner is a foreigner and while we try to obtain a visa it wasn’t granted because we do not have a company account. But without any visa, we are not granted any company account at all in any banks. Hence, we decided to close it down.

    While my accountant had tried twice to apply to the SSM, we are not granted to strike it off due to the high paid up capital. Can you please give me some advice on how am I able to solve this problem.

    Thanks.

    • Lee Shih Lee Shih May 18, 2017 / 10:09 am

      You can work with your company secretary to undergo a members voluntary winding up. This will require resolutions to be passed at the directors’ meeting and the shareholders’ meeting.

      • Sharon Sen May 18, 2017 / 4:29 pm

        Thank you.

  33. Kim May 19, 2017 / 4:46 pm

    Hi Mr. Lee,

    I have a sdn bhd company that is in debts and I can’t pay off the debts. No one is suing the company at the moment but 1 of the director keep mentally torture us to pay for debts that we are unclear of. And they always say we will be fine half a million dollar If we dun clear this and that. The company is a paid up capital of RM400k and is a RM100 company. Please advice because I really have no money anymore. what should I do?

    • Lee Shih Lee Shih May 22, 2017 / 9:47 am

      You can work with your company secretary to consider if the company can undergo a voluntary winding up. If the company has debts that cannot be paid off, then speak with your company secretary if a creditors voluntary winding up process can be pursued.

      • Kim May 22, 2017 / 5:03 pm

        Thank you sir

  34. Chiew Cindy May 30, 2017 / 12:41 pm

    I’m referring to Section 258 of the Companies Act, 1965 that provides the cessation of Directors’ powers on the appointment of a liquidator unless otherwise consented. However, the Directors are still required to sign the Statement by Directors for the last audited financial statement (“AFS”) which is made up to the day before the commencement of the liquidation and some auditors will also require for a Directors’ Circular Resolution (“DCR”) to approve the AFS and give authority to the Directors to sign the Statement by Directors. Will such acts of the Directors contravene with Section 258? Do the Directors still have power to act in their capacity to sign off the AFS and DCR accordingly?

  35. luxurybb September 21, 2017 / 12:51 pm

    Hi Mr Lee,

    I have a queries regarding the liquidating process when it comes to assets & Liabilities.

    For instants, the company which are going to strike off still owe Holding company as liabilities and there are also assets due to amount owe by related company.

    For the requirement for strike off, The company has no assets and liabilities at the
    time when the application is made.

    so in this case, the company can be strike off?

    Thank you in advance.
    hope hear from you soon.

    • Lee Shih Lee Shih September 23, 2017 / 7:13 pm

      With the company having assets and liabilities, it won’t be able to apply to be struck off. But, if the company fails to file its annual returns, SSM could still take steps to strike off the company. SSM is quite efficient in striking off companies on such grounds nowadays.

  36. Yuvarajah Thiagarajah October 24, 2017 / 9:30 am

    Hi Lee,

    Please explain the fate of employees rights to retrenchment and compensation (if there are contractual dues to executives). I was made known, after the High 5 case, that according to Company Act laws, employees are categorized as “unsecured creditors”. This means the employees have no right over the proceeds of liquidation, if there is nothing left after settling dues to vendors.

    How does sit within the spirit of good industrial harmony and corporate governance. Why is there a conflict of interest pursued by 2 laws in sustaining social justice and right to livelihood. I thought people were the most important assets, so why is their welfare state not given priority and precedence in compensation, compared to the “business” creditors?.

    I look forward to your response. Thank you.

    • Lee Shih Lee Shih October 24, 2017 / 10:43 am

      You may want to read the provisions under the Companies Act 2016. Section 527 refers to priority creditors who will be paid in priority to other unsecured creditors. You can refer to section 527(b) specifically on the types of wages and salary that fall within these priority debts.

  37. Farhana January 25, 2018 / 10:49 am

    Hello Mr Lee,

    I have checked my CTOS record and the record do mention my name as a shareholder of the company stated in the record. But the thing is the company status is “winding up”.

    I appreciate if you could give some hand due to issue stated above. If you have any suggestion for what should I do?

    • Lee Shih Lee Shih January 26, 2018 / 10:18 am

      As a shareholder of a company, there is nothing further to do for now. As a shareholder, there are no obligations to do anything for now.

  38. Sarah Lee January 26, 2018 / 4:41 pm

    Dear Mr Lee,

    I would appreciate if you could enlighten me on how to oppose a winding up process. I did came across Winding-Up Rules 1972, and is the authority only that? Only to file notice to appear and file affidavit?

    Thank you in advance.

    • Lee Shih Lee Shih January 29, 2018 / 6:24 pm

      You will have to follow the procedure set out in the Winding Up Rules 1972. Procedurally, you file in the notice of intention to appear and file in the Affidavit in Opposition. You then have to read the law on what are the good grounds to raise to oppose a winding up petition.

  39. Wu January 30, 2018 / 11:32 am

    Hi Lee,

    Question, is there any way to check the current status of a company that is winding down online? Have looked at the ssm website and there doesn’t seem to be any function that allows one to do so.

    Also, if there has been past issues of mismanagement of the company eg. in terms of asset disposal or irregularities of accounting, is the liquidator required or has the authority to look into this?

    • Lee Shih Lee Shih January 31, 2018 / 11:30 am

      1. On a winding up search, you could also try conducting an insolvency search with the Malaysian Department of Insolvency. You won’t be able to see a pending winding up just via the SSM website. You would have to do a physical search at SSM to see if a copy of the winding up petition has been served on SSM.

      2. The liquidator does have the power to investigate such possible mismanagement. However, a lot of that may depend on whether the liquidator will have assets or funds on hand in order to fund such investigation and any eventual litigation. And that is why in some cases, shareholders or creditors may fund the liquidator to investigate and take such action. The recovery of assets or damages would then benefit all the creditors overall.

      • Wu March 5, 2018 / 10:47 am

        Thanks for the answers Lee! Further to point 2, in the case where there is sufficient funds for an investigation, would a minority shareholder (under 25%) be able to instruct the liquidator to launch an investigation into such mismanagement if the if was perpetrated by a majority shareholder?

  40. Nur February 6, 2018 / 10:11 am

    Hi,

    I would like to ask, can the director do their duty while the company is winding up? Because as I read the Companies Act there is no section stating the director power ceased.

    Thank you

  41. JK February 28, 2018 / 11:49 pm

    Dear Mr Lee,
    I have a sdn bhd company thats in debt and we are unable to clear the debts as we have no more money to run this business.
    Our paid up capital is RM400k,
    if we get sued by creditors and company got wind up, will it affected me (e.g. blacklisted, personally bear the liability or even worse)
    I really hope to get some professional advice from you.
    Hope to hear from you soon.
    Thank you

    • Lee Shih Lee Shih March 1, 2018 / 9:21 am

      If you are a director of the company, and the company gets wound up, it is likely that you will have some form of record on your personal credit rating. This may affect you personally for future loans or in your dealings with banks. It is very difficult for creditors to show personal liability on the directors, and to try to get a Court Order for the directors to personally pay for the debts of the company.

  42. Courtney March 8, 2018 / 2:20 pm

    Hi Mr. Lee,

    What is the order with regards to the priority of debt in a winding up process? My ex-employer owed a large sum of EPF contribution, all the Company directors were bankrupts by EPF but the Company are still active in business as the Directors have obtained special exemption from Insolvency to continue the business.

    Upon further checking, I found out that EPF is reluctant to wind up the Company because most of the Company’s assets were kept as debenture by a bank which the Company has been taking up loans from. I found out that EPF prefer not to wind up the Company because EPF mentioned that if the Company is wound up, EPF will not be a priority creditor, the bank that hold the debenture will be the first priority to receive the debt. Hence, if Company is wound up, all ex- staffs will never get their contributions because the Company’s debt with the bank is so much higher and the assets will not be enough to cover all.

    Shouldn’t EPF contribution falls under Section 292 (1) (e) of the Companies Act 2016 and the bank’s loan having lower priority than EPF contribution?

    Besides that, despite being a bankrupt, one of the Director was not issued travel restriction to go overseas. He was issued with the restriction previously, but since December 2017 until current, the travel restriction has been lifted, but checks on the Insolvency status he is still a bankrupt. Can a bankrupt be permanently exempted from travel restriction?

    Thanks.

  43. Paul Tang March 25, 2018 / 4:02 pm

    Dear Mr Lee. How do I find out who the liquidator is? I would like to get in touch with the person in charge to discuss their asset sale. Do kindly advise, thank you.

  44. 1cutmanykills March 25, 2018 / 4:06 pm

    Dear Mr Lee.
    RE: Insolvency search with the Malaysian Department of Insolvency. You would have to do a physical search at SSM to see if a copy of the winding up petition has been served on SSM.

    How do I get in touch with the Liquidator & the person in charge to discuss their asset sale? Do kindly feedback, thanks, Paul.

  45. Ivan May 2, 2018 / 12:00 am

    Dear Mr Lee,

    I like to know some matters related to winding up of a company involved in a land development project that has gone … well, insolvent.

    As a purchaser of a plot of land among many other purchasers, we have started to request the liquidator who was handling the liquidation process to help rehabilitate the project that was abandoned by the developer to provide basic infrastructure facilities to the purchasers of the project. But, that rehabilitation did not materialise and has been passed on to a new liquidator appointed by the court.

    We were told that the liquidator could sell some parts of the land belonging to the project, but not belonging to purchasers, to help defray the cost of liquidation. This may require that the master title be cut up and parts of the land (which was meant for common facility or for recreational purposes) be sold of to recover costs of handling the liquidation by the liquidator.

    Can you help me understand whether this is permitted under the project development or under liquidation act.

    Thank you very much,

  46. James Chua June 13, 2018 / 12:49 pm

    Hi Lee,

    My company is going through compulsory winding up and we have just received notification that the DG of Insolvency is being appointed as the liquidator.

    Just wondering what the next procedure is for us as the directors of the company (no longer in business) ? Also, a statement of affairs appears to be required by the Court but do you know who would normally prepare this ? Will Jab Insolvensi be contacting us or we are suuposed to make the first move ?

    Never been through this, so hope to get your advice on the matter.
    Thanks !

    James

    • Lee Shih Lee Shih June 20, 2018 / 6:35 pm

      Hi James,
      Normally, the Jabatan Insolvensi will make the first move and contact all the directors. They will require the directors to attend a meeting with them and to fill up and submit the Statement of Affairs. The directors collectively bear the responsibility of preparing the Statement of Affairs. It is common to miss the Jabatan Insolvensi letter though. It will be sent out by post and with the stated deadline then very short (by the time the letter arrives by post).

  47. Boey Kok soon June 21, 2018 / 12:40 am

    Hi Lee Our father set up a private limited company with some properties as its assets His children are the shareholders in this company with source of income through rent collected The children have decided to wind up the company & distribute the assets Can you advise on the scope of work for the winding up cost involved I. This voluntary winding up process thank you

    • Lee Shih Lee Shih June 26, 2018 / 9:50 am

      This sounds like it would be a members’ voluntary winding up. This is because the company is solvent (i.e. can pay off its debts). The shareholders want to have the assets sold and then distributed. You can try to find an experienced company secretary or my recommendation is to get some quotes from the bigger and medium sized accounting firms. You can try the Big 4 accounting firms and then the next level firms. These firms would be very experienced liquidators and they can help to quickly sell of the properties and also deal with the tax and other issues.

  48. Ash June 27, 2018 / 4:07 pm

    Hi Mr Lee,
    if a company has two liquidators which do not see eye-to-eye hence unable to perform their liquidation functions, is there a way for the courts to approve their removal on the grounds of “cause shown” ie.not being able to perform duties in the best interest of the company?

    thanks.

  49. Jason Bong July 21, 2018 / 5:43 pm

    Hi Mr Lee,
    assuming the company A was wound up by company B, and now company C just only realized it and want to claim it.
    Can a proof of debt be lodged without having a court order declaring the debt is owed?
    And can a proof of debt be filed by a party who isnt party of the proceedings?
    Thanks

    • Lee Shih Lee Shih July 31, 2018 / 2:15 pm

      Yes, a proof of debt can be filed without having a court order. The liquidator will then look at all the supporting documents and to assess whether this debt is really owed or not. A court order would of course make it easier to crystallise the debt and the liquidator can accept it. But with the company now wound up, you cannot start or continue any legal proceedings against the wound up company.

      A proof of debt can be filed by a party/creditor who was not a party to the original winding up proceedings.

  50. Radin August 5, 2018 / 12:09 am

    Hi Mr. Lee,

    If a director owns few companies while one of the companies is wound up. Would the rest be affected in any ways? Thank you.

    • chua September 20, 2018 / 12:07 pm

      Hi Mr. Lee,

      Can a foreigner become a liquidator in Members’ Voluntary Winding Up?

      Regards
      Chua

  51. Richard September 21, 2018 / 6:24 pm

    Hi Mr Lee,

    Once a company enters into a Court Liquidation, does it automatically terminates all the employees contract? also what section of the CA1965 that states this provision. Thank you.

  52. Kakashi October 3, 2018 / 5:21 pm

    Hi, would you mind to provide quotation for winding up service? tq

Leave a Reply