Foraypack Industry Sdn Bhd v Indopackaging (M) Sdn Bhd (BA-24NCvC-2591-11/2025)

1 DALAM MAHKAMAH TINGGI MALAYA DI SHAH ALAM DALAM NEGERI SELANGOR DARUL EHSAN, MALAYSIA SAMAN PEMULA NO: BA-24NCvC-2591-11/2025 DALAM PERKARA NOTIS STATUTORI BERTARIKH 15.10.2025 YANG DIKELUARKAN

MENURUT SEKSYEN 465(1)(E) DIBACA BERSAMA SEKSYEN 466 AKTA SYARIKAT 2016 OLEH INDOPACKAGING (M) SDN. BHD (NO. SYARIKAT: 199701040403/455903-H) DALAM PERKARA MENGENAI SEKSYEN 465 (1) (E) DAN 466 AKTA SYARIKAT 2016 DALAM PERKARA ATURAN 7, 28, 29 DAN 92 KAEDAH 4 KAEDAH-KAEDAH MAHKAMAH 2012 DALAM PERKARA SEKSYEN 41, 50 DAN 51 AKTA RELIF SPESIFIK 1950 06/03/2026 10:42:07 BA-24NCvC-2591-11/2025 Kand. 29 S/N vQy4/3dDBk6/6bccyp9d7Q **Note : Serial number will be used to verify the originality of this document via eFILING portal 2 ANTARA FORAYPACK INDUSTRY SDN BHD. (NO. SYARIKAT: 200501010250 / 687297-A) … PLAINTIF INDOPACKAGING (M) SDN. BHD. (NO. SYARIKAT: 199701040403 / 455903-H) … DEFENDAN GROUNDS OF JUDGMENT Introduction

1. This is the Plaintiff’s application for a Fortuna injunction to restrain the Defendant from presenting a winding up petition against the Plaintiff. The application arises from a statutory notice dated 15 October 2025 issued by the Defendant pursuant to sections 465(1)(e) and 466 of the Companies Act 2016 (CA) demanding payment of RM1,882,466.72.

2. Having considered the affidavits filed by the parties and the written submissions together with the authorities cited, I was not satisfied that the Plaintiff had crossed the high threshold required for the grant of a Fortuna injunction. S/N vQy4/3dDBk6/6bccyp9d7Q **Note : Serial number will be used to verify the originality of this document via eFILING portal 3

3. Accordingly, I dismissed the Plaintiff’s application with costs and my reasons are as follows. The Parties

4. The Plaintiff, Foraypack Industry Sdn Bhd is a company incorporated in Malaysia and carrying on business in the manufacture and supply of food packaging materials.

5. The Defendant is Indopackaging (M) Sdn Bhd, a company involved in the business of supplying packaging materials.

6. The parties had an ongoing commercial relationship in which the Defendant supplied packaging materials to the Plaintiff. The present dispute arises from the Defendant’s issuance of a statutory notice to the Plaintiff in respect of alleged outstanding sums arising from those transactions. The Fortuna Injunction Application

7. The Plaintiff relies on the following grounds in support of the application for a Fortuna injunction:

(1) The statutory notice dated 15 October 2025 is said to be defective because the amount demanded includes invoices which are not yet due for payment. S/N vQy4/3dDBk6/6bccyp9d7Q **Note : Serial number will be used to verify the originality of this document via eFILING portal 4

(2) The Plaintiff contends that the parties had agreed to credit terms for payment of the invoices. The Plaintiff relies on the course of dealing between the parties and alleges that credit periods ranging from about 100 days and in some instances longer were allowed.

(3) The Plaintiff asserts that the inclusion of invoices which are still within the credit period renders the debt claimed in the statutory notice premature.

(4) The Plaintiff therefore contends that the debt claimed by the Defendant is disputed bona fide and on substantial grounds.

(5) The Plaintiff further contends that the presentation of a winding up petition based on the statutory notice would amount to an abuse of the process of the court because the alleged debt is disputed and should instead be resolved through ordinary civil proceedings.

(6) The Plaintiff also asserts that it is financially viable and able to meet its obligations, and that the Defendant has not shown that the Plaintiff is unable to pay its debts.

(7) The Plaintiff states that the presentation of a winding up petition would cause serious and irreparable damage to the Plaintiff’s business, including the possible withdrawal of banking facilities and loss of commercial confidence. S/N vQy4/3dDBk6/6bccyp9d7Q **Note : Serial number will be used to verify the originality of this document via eFILING portal 5

(8) On the above grounds, the Plaintiff contends that the intended winding up petition has no real prospect of success and that the court should restrain the Defendant from presenting the petition.

8. The Defendant opposes the Plaintiff’s application on the following grounds.

(1) The Defendant contends that the transactions between the parties were conducted on cash on delivery terms as stated in the invoices issued to the Plaintiff.

(2) The Defendant denies that any credit period of 180 days, or any extended credit terms as alleged by the Plaintiff, had been agreed between the parties.

(3) The Defendant asserts that the Plaintiff has long outstanding unpaid invoices and has failed to make payment despite repeated demands.

(4) The Defendant relies on email correspondence between the parties to show that the Plaintiff had acknowledged delay in payment and requested time to settle the outstanding sums.

(5) The Defendant maintains that the amount demanded in the statutory notice represents debts which are due and payable by the Plaintiff. S/N vQy4/3dDBk6/6bccyp9d7Q **Note : Serial number will be used to verify the originality of this document via eFILING portal 6

(6) The Defendant further contends that even if the Plaintiff disputes the timing of certain invoices, a substantial amount of the debt remains unpaid and undisputed.

(7) The Defendant therefore submits that the Plaintiff has failed to demonstrate that the debt is bona fide disputed on substantial grounds.

(8) The Defendant argues that the statutory notice was properly issued under sections 465 and 466 of the Companies Act 2016 and that it is entitled to exercise its statutory right to present a winding up petition.

(9) The Defendant further submits that the use of winding up proceedings to recover a debt does not amount to an abuse of process where the debt is due and not genuinely disputed.

(10) On that basis, the Defendant submits that the Plaintiff has not satisfied the high threshold required for the grant of a Fortuna injunction and the application should be dismissed with costs. Analysis and Findings

9. The law on Fortuna Injunction is trite and established as decided in the case of Mobikom Sdn Bhd v Inmiss Communications Sdn Bhd [2007] 3 MLJ 316. There were two S/N vQy4/3dDBk6/6bccyp9d7Q **Note : Serial number will be used to verify the originality of this document via eFILING portal 7 circumstances which Plaintiff must establish when a company may restrain the presentation of a winding-up petition, that is (refer to the case of Fortuna Holdings Pty Ltd v The Deputy Commissioner of Taxation of the Commonwealth of Australia [1978] VR 83):

10. In order to succeed in getting an injunction, Plaintiff must satisfy both limbs of the enunciated principle in Fortuna Holdings (see Pacific & Orient Insurance Co. Bhd. v Muniamah Muniandy [2011] 1 CLJ 947). Further, in Tan Kok Tong v. Hoe Hong Trading Co Sdn Bhd [2007] 2 CLJ 305, the Court of Appeal held that when deciding whether to grant an injunction to restrain a petition that is based on a statutory demand for a debt, the Court must be satisfied that the debt is bona fide disputed on substantial grounds. It is not enough that there is a serious question to be tried.

11. Applying the above principles, the Plaintiff bears the burden to show, on the materials before me, that the intended petition can be said to have no real prospect of success because the debt S/N vQy4/3dDBk6/6bccyp9d7Q **Note : Serial number will be used to verify the originality of this document via eFILING portal 8 is genuinely disputed on substantial grounds, or because presentation would amount to an abuse of process, and that restraint is justified. Alleged debt is bona fide disputed on substantial grounds

12. The Plaintiff’s core point is prematurity. The Plaintiff asserts that the statutory notice includes invoices still within agreed credit terms and is therefore premature and defective.

13. Plaintiff further states that there is a bona fide and substantial dispute on the amount because part of the claimed sum consists of debts which are within credit terms and therefore not due. The Plaintiff relies on course of dealing and also refers to an invoice extract showing “100 DAYS”.

14. The Defendant responds that the Plaintiff does not dispute that there is an amount owing. The Defendant states that the Plaintiff only argues that it is not yet due. The Defendant further says the Plaintiff shifted its position on credit terms, first alleging 180 days, later 100 days, and that any 100 day credit in the alleged letter applies only to two invoices. The Defendant also submits that even taking the Plaintiff’s position at its highest, there remains a substantial sum due and owing. The Defendant identifies this as RM1,449,812.87.

15. I find that, from the affidavits, the parties had taken a sharp conflicting positions on payment terms. The Plaintiff asserts S/N vQy4/3dDBk6/6bccyp9d7Q **Note : Serial number will be used to verify the originality of this document via eFILING portal 9 extended credit, including 180 days in the supporting affidavit, and later refers to 100 days and up to 240 days in the affidavit in reply. The Defendant denies any 180 day credit and maintains that transactions were cash on delivery (COD) as reflected in invoices. The Defendant also exhibits invoices stating “Terms: Cash” and emails where the Plaintiff sought more time to pay.

16. I accept that the Plaintiff has raised a contention that certain invoices may not yet have been due, depending on which credit term applies. However, the Plaintiff’s case on the applicable credit term is not presented on one consistent footing. In its written submission the Plaintiff refers to a range of terms, including 30 to 180 days, and also relies on longer periods said to be allowed in 2024 and 2025. In the reply submission, the Plaintiff focuses again on 100 days. The Defendant directly disputes the existence of such general credit terms and says COD governs, with any 100 day term limited to two invoices.

17. I am of the view that this dispute on payment terms is fact dependent. It turns on what the parties agreed and whether course of dealing altered the express terms stated on invoices. I do not decide those factual disputes finally in this application. What matters is whether the Plaintiff has shown that the intended winding up petition can be said to have no real prospect of success. S/N vQy4/3dDBk6/6bccyp9d7Q **Note : Serial number will be used to verify the originality of this document via eFILING portal 10

18. Even if I accept, for the purpose of this application, the Plaintiff’s contention that some of the invoices included in the statutory notice were not yet due, the Defendant submits that a substantial portion of the debt nevertheless remains outstanding and payable. The Defendant identifies that sum as RM1,449,812.87. On the materials before me, the Plaintiff has not shown that the statutory demand would fail in its entirety. In those circumstances, I am unable to conclude that the intended winding up petition has no real prospect of success.

19. I therefore find that the Plaintiff has not satisfied me that the alleged debt, as a whole, is bona fide disputed on substantial grounds to the degree required to restrain the creditor’s statutory right. Prematurity of the Statutory Notice

20. The Plaintiff submits that the statutory notice is invalid because it includes premature debts. The Plaintiff argues that invoices between 21.7.2025 and 31.10.2025 remain within the agreed credit period of 100 days, making the statutory notice premature in respect of those invoices.

21. The Defendant answers that the transactions between the parties were conducted on cash on delivery terms as stated in the invoices. On that basis, the Defendant maintains that the sums claimed are due and payable. The Defendant further submits that even if the Plaintiff disputes the timing of certain S/N vQy4/3dDBk6/6bccyp9d7Q **Note : Serial number will be used to verify the originality of this document via eFILING portal 11 invoices, this does not render the entire statutory notice unsustainable. The Defendant relies on authority for the proposition that where the dispute relates only to part of the debt or to quantum, the intended winding up petition cannot be said to have no prospect of success (see United Malaya Stores (M) Bhd v S Selapa Sivalingam [1987] 2 MLJ 230). Whether the intended winding up petition would be an abuse of process

22. The Plaintiff’s argument of prematurity depends on the assertion that the parties had agreed to credit terms allowing payment after the invoice date. The Defendant disputes this and maintains that the transactions were conducted on cash on delivery terms as reflected in the invoices. However, even assuming the Plaintiff’s contention to be correct, the Plaintiff has not demonstrated that the statutory demand would fail in its entirety. The Defendant’s position remains that a substantial portion of the debt is due and unpaid.

23. The Plaintiff submits that the Defendant should have proceeded by ordinary civil action, and that the winding up route is being used to bypass proper ventilation of the dispute. Again, the Plaintiff asserts that it would be an abuse because the debt is disputed and premature.

24. The Defendant’s answer is that it is entitled to issue a statutory notice and present a petition if the statutory requirements are S/N vQy4/3dDBk6/6bccyp9d7Q **Note : Serial number will be used to verify the originality of this document via eFILING portal 12 met, and that it is not abusive to pursue insolvency proceedings where the debt is due and not genuinely disputed on substantial grounds.

25. I do not accept that the Plaintiff has shown abuse of process on the present materials. The Plaintiff’s abuse argument largely rests on its contention that the debt is premature and disputed and therefore should be litigated in a civil suit. That may explain why the Plaintiff disputes the statutory notice. It does not, without more, establish that the Defendant’s reliance on the statutory procedure is abusive. Here, the Defendant’s position remains that substantial sums are due and unpaid.

26. The issuance of a statutory notice under Section 466 of the CA is generally considered a legitimate exercise of a creditor’s statutory rights and not an abuse of the court process, provided that the underlying debt is not subject to a bona fide dispute on substantial grounds.

27. The courts have consistently held that an unpaid creditor who has not been paid a debt that is due and payable has a prima facie right to petition for the winding up of the debtor company. This right exists independently of the creditor’s motives.

28. In the case of Dato Eii Ching Siew @ Yii Ching Siew v Starfield Capital Sdn Bhd [2019] MLRHU 1982, the court held that once a debt is established and remains unpaid, the court is generally not concerned with the petitioner’s collateral motives. S/N vQy4/3dDBk6/6bccyp9d7Q **Note : Serial number will be used to verify the originality of this document via eFILING portal 13 The existence of an unpaid, non-stayed judgment debt overrides arguments regarding the petitioner’s underlying intentions.

29. The courts have also recognised on what circumstances the issuance of a statutory notice may amount to an abuse of process. For example, in Alpine Horizon Development Sdn Bhd v Koh Boon Hwee [2020] MLRHU 1265, the court observed that the winding-up process ought not to be used as a means of exerting pressure on a company to make payment. Similarly, in Al Excel Services Sdn Bhd v Aero Line Services Sdn Bhd [2021] MLRHU 2608, the court emphasised that the winding-up jurisdiction should not be used as a debt-collecting mechanism for disputed sums. In Bank Kerjasama Rakyat Berhad v Hisniaga Sdn Bhd [2020] MLRHU 2338, the court further held that a petition may be struck out as an abuse of process where it is obviously unsustainable, for example where the petitioner cannot properly be regarded as a creditor because the alleged debt is genuinely contested. These authorities make clear that the winding-up process cannot be used as a means of pressuring payment of a disputed debt.

30. In this context, I am not satisfied that the Plaintiff has met the high threshold to restrain the Defendant on an abuse basis. S/N vQy4/3dDBk6/6bccyp9d7Q **Note : Serial number will be used to verify the originality of this document via eFILING portal 14 Irreparable damage and balance of justice

31. The Plaintiff submits that presentation of a winding up petition would cause serious reputational and commercial harm, including the risk of withdrawal of banking facilities and disruption to business. The Plaintiff relies on Sanjung Suria Sdn Bhd v PLB KH Bina Sdn Bhd [2022] 1 LNS 1282 for the proposition that once the consequences of a winding-up petition occur, the damage to the company’s business and reputation may not be fully undone even if the petition is later dismissed.

32. The Plaintiff also argues that the Defendant will suffer no real prejudice if restrained because the Defendant can sue in ordinary civil proceedings.

33. The Defendant’s response, in substance, is that the court should not restrain a statutory right when the debt is not shown to be genuinely disputed on substantial grounds, and that the statutory process exists to protect creditors.

34. The Defendant relies on authorities such as Lafarge Concrete

35. I accept that presentation of a petition can cause commercial and reputational consequences. However, the Plaintiff must first cross the threshold requirement. I have found that the Plaintiff has not crossed that threshold. In those circumstances, the balance of justice does not justify restraining the Defendant from exercising its statutory remedy. Solvency

36. The Plaintiff also relies on its financial position to contend that it is solvent. The Defendant submits that solvency in the balance sheet sense is not decisive, and that commercial insolvency concerns the ability and willingness to meet debts as they fall due.

37. I accept the Defendant’s submission that solvency by itself does not determine the issue in an application of this nature. Authorities such as United Malaya Stores (M) Bhd v S Selapa Sivalingam [1987] 2 MLJ 230 and Malaysia Air Charter Co Sdn Bhd v Petronas Dagangan Bhd [2000] 4 MLJ 657 make clear that solvency does not entitle a debtor to refuse payment of a debt which is due, and the court will not restrain a creditor from exercising its statutory remedy unless the debt is genuinely disputed on substantial grounds.

38. I also accept the Defendant’s submission on the legal relevance of solvency in this context. The question is not whether the Plaintiff has assets in the abstract. The question is whether the S/N vQy4/3dDBk6/6bccyp9d7Q **Note : Serial number will be used to verify the originality of this document via eFILING portal 16 Plaintiff has shown, for Fortuna purposes, that the intended petition has no real prospect of success because the debt is genuinely disputed on substantial grounds or because of abuse. Solvency by itself does not meet that threshold. It also does not answer the Defendant’s point that substantial sums remain unpaid. Conclusion

39. Having weighed the parties’ submissions and the affidavit evidence, I was not satisfied that the Plaintiff crossed the high threshold required for a Fortuna injunction.

40. Accordingly, the Plaintiff’s application was dismissed with costs fixed at RM5,000, subject to allocator. Dated this: 5th March 2026 ~signed~ (NOOR HAYATI BINTI HAJI MAT) JUDGE HIGH COURT OF MALAYA SHAH ALAM, SELANGOR S/N vQy4/3dDBk6/6bccyp9d7Q **Note : Serial number will be used to verify the originality of this document via eFILING portal 17 Representative: For the Plaintiff : Chai Ko Thing together with Jolyn Ch’ng Wei Fern Messrs Lee Ong & Partners For the Defendant : Lim Rue Chee Messrs Ang & Co. S/N vQy4/3dDBk6/6bccyp9d7Q **Note : Serial number will be used to verify the originality of this document via eFILING portal