Pestech Sdn Bhd v Ceec Tianjin Electric Power (M) Sdn. Bhd. (WA-24NCC-17-01/2026)

The Plaintiff filed this Originating Summons for a Fortuna Injunction to restrain the Defendant from presenting a winding up petition premised on a statutory notice dated 18-12-2025, which demanded payment of RM8,965,940.79 under a settlement agreement dated 22-8-2025 (“Debt”). Background facts

The Plaintiff and China Energy Engineering Group Tianjin Electric Power Construction Co. Ltd (“TPEC”) entered into a Joint Venture Agreement dated 27-2-2022 on a project to construct a power station in Iraq (“Project”).

The Plaintiff, its wholly owned subsidiary in China, Pestech Engineering Technology China Co. Ltd (“Pestech China”), and S/N Tby5Ghf51kK6caPeogqOUg TPEC, further entered into a Tri-Partite Agreement dated 28-7- 2023 (“Tri-Partite Agreement”), under which Pestech China was to have performed the Plaintiff’s scope of work in the joint venture.

The Plaintiff (and not Pestech China) appointed the Defendant as a sub-contractor in the Project, as evidenced by a Purchase Agreement No. PA23-09-001 dated 12-9-2023 (“Contract”). The Contract works were valued at USD22,068,790.00.

Based on the documentary evidence before this Court, the Debt accrued under the Contract in the following circumstances: a) On 10-6-2025, the Defendant claimed that USD1,968,163.00 (RM8,434,908.62) was owed and the parties entered into a settlement agreement dated 16-7-2025 pursuant to which the Plaintiff agreed to settle the sum claimed in 3 instalments between 21-7-2025 and 21-9-2025 (“Settlement Agreement No. 1”); b) On 8-8-2025, the Defendant claimed that a further RM5,965,967.70 was owed by the Plaintiff, comprising 2 invoices dated 15-7-2025 (“July Invoices”); c) By letter dated 22-8-2025, the Defendant’s solicitors wrote to the Plaintiff referencing a meeting between the parties’ representatives at which the Plaintiff was said to have acknowledged the total debt of RM11,829.470.82, comprising the balance of 2 instalments under Settlement Agreement No. 1 and the July Invoices. The Plaintiff signified its acknowledgement and acceptance of the terms set out in the letter (“Settlement Agreement No. 2”); and S/N Tby5Ghf51kK6caPeogqOUg d) On 27-8-2025, the Plaintiff paid one of the two balance instalments due under Settlement Agreement No. 1, leaving the sum RM8,965,940.79 remaining due under Settlement Agreement No. 2. This is the Debt claimed in the statutory notice on 18-12-2025. Analysis and findings

In moving the Court for the Fortuna Injunction, the Plaintiff submitted as follows: a) The validity of the Contract is in issue as the scope of work mirrors that which is to be undertaken by TPEC; b) The validity of the Tri-Partite Agreement is also in issue due to various “discrepancies” and the fact that Pestech China is not the counterparty in the Contract; c) The July Invoices are unsubstantiated and not due and payable as they do not conform to Contract requirements; and d) Payments due to the Defendant are payable on a back-to-back basis upon receipt of payment from the relevant Iraqi Ministry.

This Court found that none of the above issues had been raised contemporaneously in the exchange of correspondences nor in any event, do they qualify as vitiating factors that would nullify the superseding Settlement Agreement No. 1 or Settlement Agreement No. 2. As the validity of these agreements was not credibly challenged, the terms must be given effect to.

Even if this Court were to disregard Settlement Agreement No. 2 because the terms of Settlement Agreement No. 1 might be construed to have waived all future claims, RM2,999,973.09 remains due under Settlement Agreement No.

In law, the Plaintiff is deemed to be unable to pay its debts and may be wound up if it is indebted in a sum exceeding RM10,000.00 and does not, 21 days after the service of the statutory demand, pay, secure or compound for it to the satisfaction of the creditor.

In any event, this Court did not consider it necessary to entertain arguments about whether the July Invoices conformed to Contract requirements or were not due for whatever reason. If they were not initially due and owing, they became due and owing by virtue of Settlement Agreement No. 2 and the undertaking thereunder to pay the sums claimed. Thus the Debt is not disputable on substantial grounds for purposes of a winding up (Tan Kok Tong v Hoe Hong Trading Co Sdn Bhd [2007] 2 CLJ 305).

The law on the grant of Fortuna Injunctions is well established and need not be re-stated here. A winding-up petition premised on the statutory notice of 18-12-2025 cannot be said to have no chance of success for the reasons set out above. If the Debt cannot be disputed, it is of no consequence whether or not it will cause irreparable damage, if a winding up petition is presented (Pacific & Orient Insurance Co Bhd v Muniammah Muniandy [2011] 1

The Originating Summons was accordingly dismissed with costs of RM10,000.00. Bertarikh: 15 April 2026 ELAINE YAP CHIN GAIK PESURUHJAYA KEHAKIMAN MAHKAMAH TINGGI MALAYA KUALA LUMPUR Peguam Untuk Plaintif: Aawaisha Pillai (Mohd Hafiz bin Mahmund bersamanya) Tetuan Ahmad Deniel, Ruben & Co Untuk Defendan: Niak Hiong Keong (Jimmy Lim dan Ong Wei Ying bersamanya)