/akn/my/judgment/high-court/2026/87f8c604-2d40-42b6-aa79-96baa1ac16b2
High Court of Malaysia25 Feb 2026WA-24NCC-35-01/2026
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“imed at securing an injunction to restrain the Defendant from presenting or continuing with any winding up Petition against the Plaintiff pursuant to a statutory notice under section 465(1)(e) of the Companies Act 2016 dated 30-12-2025 demanding an unpaid debt of RM3,063,22 6.96 (“Debt”). **Note : Serial number will be”
“2. In legal parlance, the injunction sought in Enclosure 1 is called a Fortuna injunction after Fortuna Holdings Pty Ltd v The Deputy Commissioner of Taxation of the Commonwealth of Australia [1978] VR 83. The interim injunction sought in Enclosure 2 is for the same order pending the determination of Enclosure 1 on the”
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DALAM MAHKAMAH TINGGI MALAYA DI KUALA LUMPUR DALAM WILAYAH PERSEKUTUAN KUALA LUMPUR, MALAYSIA (BAHAGIAN DAGANG) SAMAN PEMULA NO: WA-24NCC-35-01/2026 Dalam perkara mengenai Penghakiman Ingkar Kehadiran bertarikh 20.06.2025 oleh Mahkamah Tinggi Malaya di Kuala Lumpur bagi kes Guaman Sivil No.: WA-22M-768-05/2025; Dan Dalam perkara Notis Statutori bertarikh 30.12.2025 yang dikeluarkan oleh peguamcara untuk Export-Import Bank of Malaysia Berhad menurut Seksyen 465(1)(e), dan 466(1)(a) Akta Syarikat 2016; Dan Dalam perkara Aturan 7, 28, 29 Kaedah 1 dan/atau Aturan 92 Kaedah 4 Kaedah-Kaedah Mahkamah 2012; 03/03/2026 09:21:03 WA-24NCC-35-01/2026 Kand. 21 **Note : Serial number will be used to verify the originality of this document via eFILING portal Dan Dalam perkara Seksyen 464, 465 dan 466(1)(a) Akta Syarikat 2016; Dan Dalam perkara Seksyen 41, 50 dan 51 Akta Relif Spesifik 1950. ANTARA GAIA PLAS SDN BHD [NO. SYARIKAT: 200601035669(755428-W)] …PLAINTIF DAN EXPORT-IMPORT BANK OF MALAYSIA BERHAD [NO. SYARIKAT:199501027992(357198-K)] …DEFENDAN GROUNDS OF JUDGMENT
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1. The Plaintiff filed this Originating Summons on 16-1-2026 (Enclosure 1) with a Notice of Application for interim injunction (Enclosure 2), both aimed at securing an injunction to restrain the Defendant from presenting or continuing with any winding up Petition against the Plaintiff pursuant to a statutory notice under section 465(1)(e) of the Companies Act 2016 dated 30-12-2025 demanding an unpaid debt of RM3,063,22 6.96 (“Debt”). **Note : Serial number will be used to verify the originality of this document via eFILING portal
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2. In legal parlance, the injunction sought in Enclosure 1 is called a Fortuna injunction after Fortuna Holdings Pty Ltd v The Deputy Commissioner of Taxation of the Commonwealth of Australia [1978] VR 83. The interim injunction sought in Enclosure 2 is for the same order pending the determination of Enclosure 1 on the usual test in American Cyanamid Co v Ethicon Ltd [1975] AC
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396.
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3. On 23-1-2026, Enclosure 2 was called up for the urgent hearing before this Court. The Defendant sought time to file its affidavit to oppose Enclosures 1 and 2, and objected to the grant of an ad interim injunction sought by the Plaintiff in the interim. The ad interim injunction was granted, and both Enclosures 1 and 2 were fixed for an expedited hearing on 25-2-2026. Technically, there was no need to consider Enclosure 2 at all.
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4. The salient facts of this case are as follows:
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(a) The Defendant had filed Kuala Lumpur High Court Civil Suit No: WA-22M-768-05/2025 (“Suit 768”) against the Plaintiff and 2 others for recovery of a debt following the Plaintiff’s default on 2 banking facilities made available by the Defendant;
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(b) On 20-6-2025, a judgment in default of appearance was entered by the Court against the Plaintiff (“JID”). The Debt claimed by the Defendant in the statutory notice was calculated from that JID; and **Note : Serial number will be used to verify the originality of this document via eFILING portal
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(c) On 11-12-2025, the Senior Assistant Registrar dismissed the Plaintiff’s application to set aside the JID and a Notice of Appeal to the Judge in Chambers was promptly lodged against that decision in Suit 768.
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5. The entire thrust of the Plaintiff’s argument is that there is an appeal to the Judge in Chambers against the dismissal of its application to set aside the JID and an application for stay of execution in Suit
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768. On that premise, the Plaintiff contends that the Debt is still disputable and that a Fortuna Injunction should accordingly be granted.
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6. The law in this area is well-established. For a Fortuna Injunction to lie, the Plaintiff must prove that the intended winding up Petition has no chance of success as a matter of law as well as a matter of fact; and the presentation of such petition (which has no chance of success) might produce irreparable damage to the company (Pacific & Orient Insurance Co Bhd v Muniammah Muniandy [2011] 1 CLJ 947).
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7. Before a winding-up Petition may be stayed or dismissed for having no chance of success, the debt comprising the subject matter of the winding-up Petition must be disputed on genuine and substantial grounds (Tan Kok Tong v Hoe Hong Trading Co Sdn Bhd [2007] 2 CLJ 305) and in this context: **Note : Serial number will be used to verify the originality of this document via eFILING portal a) valid and enforceable Judgment (unless stayed or set aside) precludes the issuance of a Fortuna Injunction as it cannot be considered a disputed debt (Pacific & Orient Insurance Co Bhd v Muniammah Muniandy [2011] 1 CLJ 947); b) A judgment, be it a judgment in default, summary judgment or a judgment obtained after a full hearing, was nonetheless a good, enforceable and valid judgment (unless stayed or set aside)(RHB Bank Bhd v. Pembinaan MCP Sdn Bhd [2003] 5 CLJ 335).
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8. Thus, the pending proceedings in Suit 768 do not alter the validity of the JID so obtained. Even if this Court had been minded to consider the Plaintiff’s submission that the Debt is disputed, there was no material before this Court for the Plaintiff to make any attempt at establishing the existence of a defence on merits to the Defendant’s claim in Suit 768.
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9. The second principle is that a Fortuna Injunction may be granted in cases where the presentation of a winding-up Petition might produce irreparable damage to the company, but this does not apply to cases where the debt in question is undisputed. If the debt cannot be disputed, it is of no consequence whether or not it will cause irreparable damage, if presented (Pacific & Orient Insurance Co Bhd v Muniammah Muniandy [2011] 1 CLJ 947). **Note : Serial number will be used to verify the originality of this document via eFILING portal
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10. For the above reasons, this Court dismissed both applications, Enclosure 1 with costs of RM20,000.00 and Enclosure 2 with no order as to costs. Bertarikh: 03 Mac 2026 ELAINE YAP CHIN GAIK PESURUHJAYA KEHAKIMAN MAHKAMAH TINGGI MALAYA KUALA LUMPUR Peguam Untuk Plaintif: Fatin Adriana Binti Mohd Nizam Tetuan Amar Syiimir Izzat & Shams Untuk Defendan: Afifi bin Ahmad (Wan Muhammad Haziq Irfan bin Wan Mohd Hafizi bersamanya) Tetuan Azrul Afifi & Azuan **Note : Serial number will be used to verify the originality of this document via eFILING portal
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