Mega Greenview Sdn Bhd v Wang Shyun Kher (MA-22NCC-13-06/2026)

This is the plaintiff's application for what is commonly described as a Fortuna injunction: an order restraining the defendant from presenting a petition to wind up the plaintiff company upon a statutory notice of demand. The application is Enclosure 3. It is made under O.29 r.1 of the Rules of Court 2012 and is supported by the affidavit of Norerni binti Rahman affirmed on 18 June 2026, who deposes as a director of the plaintiff.

The notice in question is a statutory notice of demand dated 15 May 2026, issued under ss. 465(1)(e) and 466(1)(a) of the Companies Act 2016, by which the defendant demands payment of RM400,000.00 and warns that, in default, the plaintiff will be deemed unable to pay its debts and that steps will be taken to wind it up.

The plaintiff commenced this action by writ filed on 18 June 2026, by which date the twenty-one day period stipulated in the notice had already run. The statement of claim seeks, among other things, declarations that the underlying loan agreement and the statutory notice are unlawful and void, an order restraining a winding-up petition, the discharge of certain third-party charges and the cancellation of the related powers of attorney, and the repayment of RM150,000.00 said to have been overpaid. Enclosure 3 is confined to the injunctive relief; the declarations are matters for trial.

The real controversy is narrow and may be stated at the outset. The defendant asserts a debt and proposes to enforce it through the winding-up jurisdiction. The plaintiff says that the debt is genuinely contested and that the transaction from which it is said to arise is an unlicensed moneylending arrangement. The question on this application is not whether the debt is in truth owing that is the very matter reserved for the action but whether the defendant should be permitted to invoke the winding-up process to enforce it while that contest remains unresolved.

The central issues are therefore whether the debt founding the statutory notice is disputed on bona fide and substantial grounds and, if it is, whether the court should restrain the presentation of a petition pending the disposal of the action. A subsidiary question, the application having been brought before the defendant has been heard, is the proper form and duration of any relief.

I set out the material facts and the issues before turning to the governing principles and their application. I have deliberately refrained from expressing any view upon the result until the analysis that follows.

The facts material to this application are largely documentary. They are taken from the exhibits to the affidavit of Norerni binti Rahman. Where I describe the parties' competing positions on the state of the account, I do so to identify what is in dispute and not to resolve it.

By a written agreement entitled "Friendly Loan Agreement" and dated 24 March 2022 (exhibit "A"), the defendant, named in the agreement as "the Lender", agreed to make available to the plaintiff, named as "the Borrower", a loan facility of RM2,000,000.00 for a term of eighteen months. Section 3 of the First Schedule fixed interest at 2.5% per month on the loan.

Two features of that agreement are worth recording. First, by cl. 1B.1, the plaintiff irrevocably authorised the defendant to disburse RM1,950,000.00 of the facility directly to a third party, one Bong Kok Hoong, and to retain the remaining RM50,000.00 as the "first payment for the monthly interest under Clause 2.2". The sum so retained corresponds precisely to one month's interest at the contractual rate. Secondly, the loan was secured not by any charge over the plaintiff's own assets but by third-party legal charges, executed through powers of attorney, over three properties in Batu Pahat registered respectively in the names of Ng Git Ling @ Ng Gek Ling, Yeo Chung Hong and Yeo Tio Huat (s. 4 of the First Schedule).

The term of the facility was twice extended. By a Supplementary Letter of Agreement dated 16 August 2023 (exhibit "B"), the maturity date was extended and the rate of 2.5% per month was maintained; the same instrument provided, by clause 4, for the monthly interest of RM50,000.00 to be paid as to RM30,000.00 to an entity described as "225 PJ Enterprise" and RM20,000.00 to the defendant. By a Further Supplementary Letter of Agreement dated 21 August 2024 (exhibit "C"), the maturity date was extended to 15 September 2026, the rate was reduced to 2% per month, and the repayment obligation was restructured so that, with effect from 15 September 2024, the borrower was to make twenty-five monthly payments of RM50,000.00 each, comprising RM10,000.00 towards the principal and RM40,000.00 as interest, the balance of the loan remaining repayable in full by the new maturity date.

I record, only to put it aside, the position as to the date of the Further Supplementary Letter of Agreement. That date is given as 21 August 2024 in the body of the statement of claim, in the supporting affidavit, and in the defendant's own letter of demand, although the printed date line of the instrument itself was left blank. Prayer (i) of the statement of claim, by contrast, describes the instrument as dated 21 October 2024. The discrepancy in the prayer is plainly a typographical slip and nothing turns on it.

The plaintiff has made payments totalling RM2,150,000.00, particularised in exhibit "D". Consistently with clause 4 of the Supplementary Letter of Agreement, the monthly sum of RM50,000.00 was divided as to RM30,000.00 to the entity described as "225 PJ Enterprise" and RM20,000.00 to the defendant; from the restructuring of September 2024, RM10,000.00 of that monthly sum was characterised as a payment towards principal. The defendant's letter of demand records that the last payment was made in or about August 2025.

On 28 January 2026 the defendant's solicitors issued a letter of demand (exhibit "E") for RM250,000.00, described there as the sum outstanding for the period September 2025 to January 2026 under the restructured terms, and requiring payment within fourteen days.

On 15 May 2026 the defendant's solicitors issued the statutory notice of demand (exhibit "F"). That notice asserts that, as at its date, the outstanding sum had accrued to RM400,000.00 inclusive of principal and interest, for the period October 2025 to May 2026. It demands payment within twenty-one days, failing which the plaintiff is to be deemed unable to pay its debts under ss. 465(1)(e) and 466(1)(a) of the Companies Act 2016 and proceedings are to be taken to wind it up. The same notice further asserts that, upon the plaintiff's default, the defendant is entitled to call up the entire balance principal sum, there stated to be RM1,870,000.00, and that this sum will be claimed as a debt due should a petition be presented.

The plaintiff's position, as deposed in the affidavit and pleaded in the statement of claim, is that the entire principal of RM2,000,000.00 has been repaid; that the RM150,000.00 paid in excess represents interest; that the defendant is not licensed under the Moneylenders Act 1951; that the transaction is, in consequence, an unlawful moneylending arrangement void under s.24 of the Contracts Act 1950; and that the statutory notice is accordingly baseless, premature and issued in bad faith.

The defendant's position is not before me in the form of an affidavit, the application having been brought ex parte. It appears, however, from the defendant's own letter of demand and statutory notice that the defendant treats the transaction as a valid friendly loan under which, on the restructured terms, RM50,000.00 fell due each month, made up of RM10,000.00 towards principal and RM40,000.00 as interest; that RM400,000.00,representing eight monthly instalments for the period October 2025 to May 2026, is presently due; and that, the plaintiff being in default, the balance of principal of RM1,870,000.00 remains outstanding and may be called up.

The action and this application were filed on 18 June 2026 under a certificate of urgency. The plaintiff has given the usual undertaking as to damages, recorded at paragraphs 21 and 22 of the supporting affidavit. C. ISSUES FOR DETERMINATION

The application turns on the following issues:

what test governs an application to restrain the presentation of a winding-up petition;

whether the debt founding the statutory notice of demand dated 15 May 2026 is disputed on bona fide and substantial grounds, or whether its presentation would otherwise be an abuse of the process of the court;

whether the plaintiff's contention that the notice is "premature" assists the application;

whether damages would be an adequate remedy and whether the undertaking as to damages is sufficient; and

the proper form and duration of any relief, the application having been made before the defendant has been heard. D. THE STATUTORY AND LEGAL FRAMEWORK [19] The application is made under O.29 r.1 of the Rules of Court 2012, and the supporting affidavit is cast partly in the language of the ordinary interlocutory injunction a serious issue to be tried, the inadequacy of damages and the balance of convenience. That familiar American Cyanamid approach is not, however, the operative test where the relief sought is an order restraining the presentation of a winding-up petition. The two enquiries are different in kind, and it is important to identify the correct one before applying it. [20] The jurisdiction in fact invoked is that recognised in Fortuna Holdings Pty Ltd v Deputy Commissioner of Taxation [1978] VR 83 (Supreme Court of Victoria) adopted by the Court of Appeal in Mobikom Sdn Bhd v Inmiss Communications Sdn Bhd [2007] 3 MLJ 316 (CA) and refined by the Court of Appeal in Pacific & Orient Insurance Co Bhd v Muniammah Muniandy [2011] 1 CLJ 947 (CA), from which the relief takes its name and which the application expressly invokes by describing the order sought as a "Fortuna injunction". The principle rests upon a more fundamental proposition: the winding-up jurisdiction exists to wind up companies that are unable to pay their debts, not to serve as a mechanism for the recovery of a debt that is genuinely in dispute. A petition presented to enforce a disputed debt is not a legitimate invocation of that jurisdiction. [21] Two situations are conventionally identified. The first is where the proposed petition has no prospect of success for example because the debt on which it is founded is not, as a matter of law, owing and where its presentation would cause the company irreparable harm. The second, and the one principally engaged here, is where a person threatens to present a petition to enforce a debt that the company disputes on bona fide and substantial grounds. In that second situation the court will restrain presentation, because to permit the threat of winding up to be used as a lever to coerce payment of a disputed debt is an abuse of the process of the court. [22] Several points of discipline follow from this, and they govern the analysis below. The applicant need not establish that the debt is not owing; it is enough that the dispute is bona fide and rests on substantial grounds. The converse is equally important: the dispute must be substantial and not a mere cloud of unparticularised assertion, for a company cannot defeat a genuine debt simply by professing to dispute it. Whether the threshold is crossed is assessed upon the affidavit evidence and the documents, the winding-up court being neither the forum nor the procedure for the trial of a genuinely contested claim. [23] As to the statute, s. 465(1)(e) of the Companies Act 2016 empowers the court to wind up a company that is unable to pay its debts, and s. 466(1)(a) provides that a company is deemed to be unable to pay its debts where a creditor to whom it is indebted in a sum exceeding the prescribed amount has served a statutory demand and the company has for twenty-one days thereafter neglected to pay or otherwise to satisfy the creditor. The sum here demanded is far in excess of the prescribed threshold of RM 50,000, and the twenty-one day period had run before the writ was filed. But the deeming for which s. 466(1)(a) provides is evidential and not conclusive. It founds the jurisdiction to present a petition; it does not transform a disputed debt into an admitted one, nor does it displace the company's entitlement to show that the debt is bona fide contested. [24] Finally, the legality of the transaction lies at the centre of the plaintiff's case and must be identified, though it need not and on this application cannot be decided. The Moneylenders Act 1951 requires a person who carries on the business of moneylending to be licensed, and a moneylending contract made by an unlicensed lender is unenforceable. Section 24 of the Contracts Act 1950 renders void an agreement whose consideration or object is forbidden by law or would, if permitted, defeat the provisions of any law. Whether a particular advance of money at interest is a friendly loan or an unlicensed moneylending transaction is a question of fact, turning on whether the lender carries on the business of moneylending; the mere reservation of interest, even at a high rate, does not without more answer that question. These are the provisions against which the plaintiff's assertion of illegality must ultimately be tested at trial. E. ANALYSIS AND DETERMINATION The Operative Test [25] It is convenient to dispose first of the framework. The affidavit invites the court to weigh the serious issue to be tried, the adequacy of damages and the balance of convenience. Those are the considerations that govern the ordinary interlocutory injunction, and they are not without relevance here. But an order restraining the presentation of a winding-up petition is not an ordinary interlocutory injunction between two private litigants over their private rights. It restrains a party from invoking a statutory jurisdiction that exists in the public interest and whose consequences extend beyond the immediate parties. The question is not which party the balance of convenience favours, but whether the invocation of the winding-up jurisdiction would, in the circumstances, be an abuse of its process. That question is answered by the Fortuna principle. I therefore approach the application on that footing, treating the inadequacy of damages and the undertaking as matters relevant to the exercise of the discretion once the principle is engaged, rather than as the test itself. Whether The Debt Is Bona Fide Disputed On Substantial Grounds [26] The dispositive question is whether the debt of RM400,000.00 founding the statutory notice is disputed on bona fide and substantial grounds. In my judgment it is, though for a reason narrower than the affidavit suggests. The substance of the dispute lies in a single, but fundamental, contention: that the transaction is an unlicensed moneylending arrangement and is for that reason void and unenforceable. The disputes about the state of the account flow from that contention, and I approach the matter on that footing. [27] The contention is, in my view, substantial and not a mere assertion. It is grounded in concrete features of the transaction disclosed by the documents themselves. The contractual interest of 2.5% per month, later reduced to 2% per month, represents an annualised rate of the order of 30% and 24% respectively. Of the RM2,000,000.00 facility, only RM1,950,000.00 was in fact advanced, the first month's interest of RM50,000.00 having been retained by the lender at the outset under clause 1B.1. That advance was paid not to the borrower but directly to a third party, and the monthly payments were routed not to the defendant alone but in substantial part to a separate enterprise. The loan was secured by third-party charges over three properties, supported by powers of attorney. These are features that a court may, after trial, regard as indicia of a moneylending business carried on for profit; they are sufficient to raise a real and triable question whether the defendant carried on the business of moneylending without a licence, so as to render the agreement unenforceable under the Moneylenders Act 1951 and void under s. 24 of the Contracts Act 1950. [28] I am equally conscious of the limits of that contention, and it is right to state them. A friendly loan bearing interest, even at a high rate, is not without more a moneylending transaction; the Moneylenders Act 1951 is directed at those who carry on the business of moneylending, which ordinarily imports a degree of system or continuity rather than a single advance to a single borrower. The plaintiff has not deposed that the defendant lends to others or otherwise carries on such a business, and on the material presently before the court the arrangement has the appearance of an isolated, if substantial, transaction. The plaintiff's case on illegality is therefore arguable rather than strong. But the threshold for the relief now sought is not strength. It is enough that the question is bona fide and substantial, in the sense that it is a real question fit to be tried and not a pretext advanced to stave off a clear and admitted debt. The features I have described carry the plaintiff over that threshold. Whether the contention ultimately succeeds is a matter for the trial court, on evidence, and not for the winding-up jurisdiction on affidavits. [29] The consequences of that question for the state of the account confirm that the debt cannot be treated as clear and undisputed. If the agreement is a valid friendly loan, the defendant's figures are coherent and indeed internally consistent: on the restructured terms RM50,000.00 fell due monthly, the arrears of RM400,000.00 represent eight unpaid instalments for October 2025 to May 2026, and the balance principal of RM1,870,000.00 reflects the limited reduction of principal achieved by the RM10,000.00 monthly component. If, on the other hand, the interest provisions are unenforceable for illegality, the RM2,150,000.00 already paid falls to be applied differently, the plaintiff's contention that the principal has been discharged becomes arguable, and its claim to have overpaid by RM150,000.00 arises for consideration. The existence and the amount of the debt thus turn upon the resolution of the illegality question. That is the hallmark of a debt disputed on substantial grounds, and it is not a matter the winding-up court is equipped to determine. [30] I have not overlooked the considerations that pull the other way, and fairness to the absent defendant requires that they be stated plainly. The plaintiff's assertion that it has repaid the principal of RM2,000,000.00 in full is, on the documents, far from self-evident: only RM1,950,000.00 was advanced, and under the restructured terms to which the plaintiff itself agreed only RM10,000.00 of each monthly payment was applied to principal, so that the plaintiff's case on the account stands or falls with its case on illegality. The defendant, moreover, has had no opportunity to answer the plaintiff's characterisation of the transaction, and his demands, taken on their own terms, are internally consistent. These matters do not displace the conclusion that the debt is bona fide disputed; rather, they show that the dispute is genuinely two-sided and turns on a question of fact and law that only a trial can resolve. They also explain why the relief I grant is interim only. The Contention That The Notice Is Premature [31] The plaintiff contends that the statutory notice is "premature" because the defendant has filed no action to recover the RM400,000.00. That contention is misconceived and I reject it. A statutory notice of demand under s. 466(1)(a) of the Companies Act 2016 does not presuppose a prior judgment, or even a prior action, for the debt. A creditor of an undisputed debt may serve such a notice and, on non-payment, present a petition without first suing. The vice in the present case is not that the defendant has proceeded without a judgment; it is that the defendant proposes to proceed upon a debt that is genuinely disputed. The plaintiff's complaint, properly understood, is not one of prematurity but of the use of the winding-up jurisdiction to enforce a contested claim, and it is on that ground, and not on any notion of prematurity, that the application succeeds. The Adequacy Of Damages And The Undertaking [32] Once the Fortuna principle is engaged, the inadequacy of damages and the undertaking as to damages remain relevant to the exercise of the discretion. The affidavit deposes that the plaintiff carries on the business of property development, that its financing facilities and its standing as a going concern depend upon its continued solvency, and that the presentation and advertisement of a winding-up petition would imperil those facilities and its commercial relationships. The proposition requires no elaboration. It is in the nature of a winding-up petition, once advertised, to inflict damage upon a solvent company's credit and standing that is difficult to undo and not readily measurable in money; that is precisely why the jurisdiction to restrain an abusive petition exists. I am satisfied that damages would not be an adequate remedy for the plaintiff. The plaintiff has, for its part, given the usual undertaking as to damages, which affords the defendant the protection to which he is entitled should the restraint later prove to have been wrongly granted. The Ex Parte Posture And The Form Of Relief [33] There remains the question of the form and duration of the order. The application has been made and heard ex parte, and the defendant has not been heard. That circumstance does not preclude relief; the urgency is real, the twenty-one day period under the notice having expired so that a petition may be presented at any time, and the existence of a genuine dispute is apparent on the face of the defendant's own documents, which the plaintiff has exhibited. But it does shape the order. It would not be right, on the defendant's untested absence, to restrain him until the disposal of the action as the notice of application seeks. The appropriate course is to grant an interim restraint to hold the position until the application can be heard inter partes, leaving the question of any longer restraint to be determined when the defendant has been heard. That course also accords with O.29 r.2B of the Rules of Court 2012, which governs the duration of an injunction granted on an ex parte application and requires an early inter partes hearing. F. CONCLUSION [34] Drawing the threads together, the defendant seeks to deploy the winding-up jurisdiction to enforce a debt whose existence and amount depend upon a substantial and triable question whether the underlying transaction is an unlicensed moneylending arrangement, unenforceable under the Moneylenders Act 1951 and void under s.24 of the Contracts Act 1950 which only a trial can resolve. To enforce such a debt by the threat of winding up is not a legitimate use of that jurisdiction but an abuse of its process. The plaintiff has crossed the threshold required by the Fortuna principle, damages would not be an adequate remedy, and the undertaking as to damages protects the defendant. The defendant not yet having been heard, the proper relief is an interim restraint returnable inter partes rather than a restraint until the disposal of the action. G. ORDERS OF THE COURT [35] For these reasons, enclosure 3 is allowed to the following extent:

upon the plaintiff's undertaking as to damages recorded in the affidavit of Norerni binti Rahman affirmed on 18 June 2026, the defendant, whether by himself or through his agents, servants, nominees or otherwise howsoever, is restrained from presenting, advertising or gazetting any petition to wind up the plaintiff founded upon the statutory notice of demand dated 15 May 2026 issued under ss. 465(1)(e) and 466(1)(a) of the Companies Act 2016, and from taking any further step in any such petition;

this order is made before the defendant has been heard and operates on an interim basis only; it shall continue until the inter partes hearing of Enclosure 3, which is to be fixed by the Registrar on a date not more than twenty-one days from today;

the plaintiff shall serve this order, the writ and statement of claim, the notice of application, the supporting affidavit and this decision on the defendant within three days of today;

the defendant is at liberty to apply, on notice, to set aside or vary this order; and

the costs of Enclosure 3 shall be costs in the cause. [36] The question whether the restraint should continue until the disposal of the action, and all other questions arising on the substantive prayers in the statement of claim, are reserved to the inter partes hearing and to trial respectively. Dated 22 June 2026 (MELAKA) Lawyer For Plaintiff Encik James Au Wei bersama Encik Siet Yi Heng Tetuan Kai & Co. Peguamcara dan Peguambela So 21-05, Menara 1, KL Eco City, 3, Jalan Bangsar, 59200 Kuala Lumpur.