ii) Effect of Adjudication Decisions in Winding Up Proceedings [12] The Court of Appeal in Bludream (supra) established critical principles regarding adjudication decisions in winding up proceedings: "[39] ... if the dispute on the debt has been adjudicated which resulted in an adjudication decision obtained in favour of the unpaid party, the debt ceases to be disputable in an ensuing winding-up proceeding. This is because the disputed debt has been independently adjudicated by a neutral third party. More pertinently, it should not be open to the non-paying party to again dispute the debt when the sanctity of the adjudication decision Page 6 of 13 has been preserved by the subsequent court orders refusing to set aside and/or stay as well as allowing enforcement of the adjudication decision as a judgment pursuant to ss. 27, 16 and 28 CIPAA respectively." (own emphasis added) [13] The Court of Appeal further held at paragraph [41] that the method of enforcement is a commercial choice for the creditor. iii) The Binding Nature of Adjudication Decisions [14] Section 13 of CIPAA provides that an adjudication decision is binding and enforceable unless: i) it has been set aside under Section 15; ii) it has been stayed under Section 16; or iii) there is a final determination by a court or arbitrator of the payment dispute. [15] None of these circumstances have occurred. Although the Plaintiff filed setting aside and stay applications, these remain pending. [16] The mere filing of such applications does not suspend the binding effect of the Corrected Adjudication Decision. The timeline of the Plaintiff’s notices of arbitration (whether issued on 8.3.2024 or 18.3.2024) is irrelevant to this analysis, as Section 13 CIPAA has not been triggered. [17] Furthermore, neither the non-registration to enforce the CIPAA decision nor an application to set it aside would be considered a bona fide dispute of the debt claimed as held in the following Court of Appeal cases: i) Likas Bay Precinct Sdn Bhd v. Bina Puri Sdn Bhd [2019] 3 MLJ 244 where the Court of Appeal held: “[20] … In the premises, we were of the view that such an adjudication decision was good and proper as a basis upon which a winding up petition notice against the appellant may be filed for a debt in the Page 7 of 13 amount, as stated in the said adjudication decision against the appellant. Armed with an adjudication decision, as it were, the respondent petitioner in the instant case stands on a stronger footing than a petitioner, say in the NCK Wire Products Sdn Bhd case. As such, we were inclined to agree with the proposition that, for the purpose of filing a notice to wind up under s 465 of the Companies Act 2016, a successful litigant in an adjudication proceeding need not have to register the said adjudication decision under s 28 of the CIPAA. …..” (own emphasis added) ii) Sime Darby Energy (supra) in which the Court of Appeal held as follows: “[50] With respect, to our minds, this does not equate to entitling the party ordered to make payment under the AD to an order to restrain the successful party from presenting a winding up petition as the former has a statutory right to challenge the statutory notice or petition before the winding up Court. Until and unless the AD is set aside, it can in law form the basis for the statutory notice which was the position in the present instance. Whether or not the Respondent had a bona fide cross claim against the Appellant on merits to challenge the petition is a matter to be adjudged by the winding up Court. We are not convinced that an unproven cross-claim can be the basis for restraining the filing of a winding up petition based on a valid and enforceable AD” ……. “[59] In the circumstances, our decision would be that the LJC had erred in principle in failing to consider or correctly apply established principles and criteria for the grant of a Fl against the enforcement of a proven judgment debt based on an AD contrary to the object and intention of the CIPAA for expeditious payments of proven construction claims. In our view, the LJC was plainly wrong in failing to strictly apply the principle expressly pronounced in Likas Bay (supra) on the basic premise of the right of the Respondent as the losing party in the Adjudication Proceeding to pursue Court action or Arbitration that may eventually prevail over or reverse the AD. This is an uncertain event that should not be used to preclude the statutory right of the Appellant to pursue a winding up action.” (own emphasis added) Page 8 of 13 iv) Bona Fide Dispute [18] The crux of the Plaintiff’s application rests on establishing a bona fide dispute. However, I find several fundamental flaws in the Plaintiff’s position: i) Claims Already Adjudicated: Most of the Plaintiff's counterclaims (liquidated damages, back charges, rectification works, and direct payments) were raised and considered during the adjudication proceedings but were rejected by the Adjudicator. As stated in Lion Pacific Sdn Bhd v. Pestech Technology Sdn Bhd [2021] MLJU 1399: “[33] … the correctness of the CIPAA decision is a matter which belong to the merits of the appeal pending in the Court of Appeal. The merits of the appeal are not matters this court ought to be concerned with in determining if a Fortuna Injunction should issue. … ” (own emphasis added) ii) New Claims Not Raised in Adjudication: Certain claims, particularly the fire door defect claim totalling RM12,156,894.00, were never raised during adjudication. The Court of Appeal in Bludream (supra) at paragraph [49] found such after-the-fact claims to be “contrived merely to defeat the Petition” and “repugnant to common sense.” iii) Inconsistent Evidence: The figures presented by the Plaintiff differ between adjudication and arbitration proceedings. This inconsistency undermines the credibility of the Plaintiff's claims and suggests a tactical approach rather than genuine disputes. iv) The ASM Development (supra) case: The Plaintiff’s reliance on ASM Development (KL) Sdn Bhd v. Econpile (M) Sdn Bhd [2022] 6 MLJ 392 is misplaced. The Court of Appeal’s decision in Bludream (supra), being the most recent on this issue, has clearly outlined the effect of adjudication decisions in winding up proceedings. It should be noted that the Court of Appeal in Bludream (supra) referred to Likas Bay (supra) Page 9 of 13 and Sime Darby Energy (supra). Similarly, the Court of Appeal also considered ASM Development (supra) and held as follows: “[42] In the premises, we are, with respect, constrained to hold that the decisions in ASM Development (KL) Sdn Bhd v. Econpile (M) Sdn Bhd (supra) and Setia Fontaines Sdn Bhd v. Pro Tech Enterprise Sdn Bhd (supra) relied upon by the Appellant were erroneously made.” (own emphasis added) v) Furthermore, as earlier stated by the Court of Appeal in Sime Darby Energy (supra): “We are not convinced that an unproven cross-claim can be the basis for restraining the filing of a winding up petition based on a valid and enforceable AD” (own emphasis added) v) Commercial Solvency [19] The Plaintiff’s alleged solvency is questionable. The evidence reveals: i) Total charges of RM152,000,000.00 against the company; ii) Annual revenue of only RM311,452.00 in 2022; iii) Cash and bank balance of RM3,979,569.00 (only 6.7% of the adjudicated sum); iv) Net assets of RM12,760,716.00 (only 21.46% of the adjudicated sum). [20] In contrast, the Defendant demonstrated substantial financial capacity with ongoing contracts worth RM3,594,164,610.87, including contracts awarded post-2022 valued at RM1,640,559,036.01. This disparity further undermines the Plaintiff’s position. Page 10 of 13 [21] As stated in Sme Majujaya Sdn Bhd v. Oon Brothers Electrical Trading Co Sdn Bhd [2018] MLJU 899: “[52] A neglect or a refusal to pay will justify the winding up of a company in debt. It is simply flawed logic and cannot be right that a party who claims to be solvent can defeat a winding up process by conveniently asserting that it can, but without more, refuse to pay." (own emphasis added) vi) Concurrent Remedies [22] The Plaintiff argued that the Defendant’s concurrent pursuit of enforcement under Section 28 CIPAA and winding up proceedings is contradictory and inconsistent. According to the Plaintiff, if the Defendant’s position is that enforcement by winding up is available to it, then the Enforcement OS becomes superfluous as the winding up, if allowed, would be a final form of enforcement with no further enforcement possible even with the Enforcement OS being eventually allowed. [23] However, I find this argument untenable. There is no prohibition against pursuing concurrent remedies. As noted in RHB Bank Bhd v. Malaysia Pacific Corp Bhd [2018] MLJU 103, creditors are entitled to pursue concurrent remedies unless specifically prohibited or agreed otherwise, as the Court of Appeal held: “Unless there was an agreement to the contrary, the appellant was entitled to pursue both or all remedies available against the respondent borrower “simultaneously, contemporaneously or successively to recover the monies lent ...” - see Chan Boi Loi v Public Bank Bhd [supra].” (own emphasis added) [24] Further, the Court of Appeal in Bludream (supra) specifically recognised this at paragraph [41], noting the enforcement method is “the commercial choice of the Respondent.” [25] The Defendant is thus entitled to pursue multiple avenues of enforcement simultaneously, and it is within its rights as a creditor to choose which method of enforcement to ultimately proceed with. Page 11 of 13 [26] Whether the Enforcement OS would become “superfluous” is a matter for the Court hearing that application and is not relevant to this Application for a Fortuna injunction. E]