Techcrew Sdn. Bhd. v Miracle Asset Builder Sdn Bhd (WA-24NCC-415-08/2024)

Before the court is an application for a Fortuna injunction to restrain the presentation of a winding-up petition, where the plaintiff company seeks to prevent the defendant from commencing winding-up proceedings based on a judgment debt of approximately RM5.85 million obtained in 2018. The plaintiff raises several grounds to dispute the debt, including that the underlying judgment has lapsed, payments made were not accounted for, and there are pending court proceedings that may affect the quantum owed. The matter is complicated by the existence of a settlement agreement executed after a previous winding-up order (which was later terminated), and parallel garnishee proceedings initiated by the defendant while this application was pending.

On 8.12.2017, the Defendant, Miracle Asset Builder Sdn Bhd filed a civil suit against the Plaintiff, Techcrew Sdn Bhd in the High Court of Malaya at Johor Bahru (Suit No.: JA- 22NCVC-26-12/2017). The suit concerned a development project where the Defendant was the main contractor and had appointed the Plaintiff as one of six nominated subcontractors to carry out electrical works for the project. The Defendant claimed RM5,850,000 for alleged breach of the subcontract terms.

In the proceedings, the Plaintiff was represented by Messrs Nur Hamizah Hamzah who filed a defence. On 17.4.2018, the High Court allowed the Defendant's application to strike out the Plaintiff's defence and entered judgment against the Plaintiff for the sum of RM5,850,000 with interest at 5% per annum from 8.12.2017 until full settlement, and costs of RM1,000 (“April 2018 Judgment”).

The Plaintiff filed an appeal against the April 2018 Judgment. During the appeal process, the Plaintiff appointed new solicitors, Messrs Leela A. Sanghrajka & Associates. However, the appeal was struck out by the Court of Appeal on 27.8.2018 due to procedural non-compliance.

Subsequently, the Defendant initiated winding-up proceedings against the Plaintiff in the High Court of Malaya at Johor Bahru (Petition No.: JA-28NCC-155-08/2018). On 19.11.2018, the High Court made a winding-up order against the Plaintiff. Two days later, on 21.11.2018, the parties executed a Settlement Agreement (“Settlement Agreement”) whereby the Defendant agreed to accept RM2,850,000 as full settlement, to be paid by the Plaintiff in instalments. On the same day, the Plaintiff's director and shareholder, Ten Sing Jeng, executed a Guarantee and Indemnity Agreement with the Defendant.

Following the Settlement Agreement, on 6.12.2018, the Plaintiff obtained an order staying the winding-up order. The winding-up order was subsequently terminated on 3.6.2019.

On 29.11.2019, the Plaintiff filed a professional negligence claim at the Johor Bahru High Court (Suit No.: JA-23NCVC- 2-01/2019) against both its former law firms - Messrs Nur Hamizah Hamzah and Messrs Leela A. Sanghrajka & Associates. After trial, the High Court allowed the claim against Messrs Nur Hamizah Hamzah with nominal damages of RM50,000 but dismissed the claim against Messrs Leela A. Sanghrajka & Associates.

The matter proceeded through appeals. The Court of Appeal found both law firms liable and awarded damages of RM2.85 million. On 14.7.2022, the Federal Court in Appeals No. 02(f)-68-12/2021 and 02(f)-69-12/2021(J) (“the FC Appeals”) upheld the finding of liability against both law firms but remitted the matter back to the High Court for assessment of damages. On 29.5.2024, the High Court assessed damages at RM100,000 against each law firm. the Plaintiff has appealed this assessment to the Court of Appeal.

On 20.5.2024, the Defendant issued a letter of demand to Ten Sing Jeng. Subsequently, on 25.7.2024, the Defendant issued a statutory notice under Section 466 of the Companies Act 2016 demanding payment of RM7,608,640 5 from the Plaintiff, comprising the judgment sum, interest, costs and allocator fees.

On 28.8.2024, the Plaintiff filed an Originating Summons seeking a Fortuna injunction to restrain the Defendant from filing a winding-up petition pending disposal of its appeal in the Court of Appeal regarding the assessment of damages against its former solicitors.

During these proceedings, it emerged that the Plaintiff had previously made payments totalling RM602,064.66 to the Defendant. On 7.11.2024, while the Fortuna injunction application was pending, the Defendant obtained garnishee orders against the Plaintiff's bank accounts.

The matter came before the High Court for hearing on 29.11.2024.

The Originating Summons filed by the Plaintiff sought a Fortuna injunction against the Defendant. The primary prayer was to restrain the Defendant from filing a winding-up petition against the Plaintiff pursuant to the April 2018 Judgment and the statutory notice dated 25.7.2024, pending disposal of the Plaintiff's appeal in Court of Appeal Civil Appeal No.: J-02(IM)(NCvC)-1124-07/2024 (“Appeal 1124”). Alternatively, the Plaintiff sought an injunction to restrain the Defendant from filing a winding-up petition on 6 the basis that the judgment sum under the April 2018 Judgment and statutory notice was disputed.

The application was grounded on several bases: a) The statutory notice dated 25.7.2024 failed to account for payments of RM602,064.66 already made by the Plaintiff; b) The April 2018 Judgment had lapsed after six years and could not be enforced without leave of court; c) There was a bona fide dispute regarding the judgment sum, particularly in light of the Federal Court's directions regarding reassessment of damages in the Plaintiff's negligence claim against its former solicitors; d) The Settlement Agreement dated 21.11.2018 was executed when the Plaintiff had already been wound up and therefore raised questions about its validity; and e) Proceeding with the winding-up petition would cause irreparable damage to the Plaintiff and stultify its pending appeal in the Court of Appeal.

The Plaintiff contended that the statutory notice was procedurally and substantially flawed because: a) it was based on the April 2018 Judgment that had lapsed under Order 46 Rule 2 of the Rules of Court 2012 (“ROC 2012”); b) it failed to account for payments of RM602,064.66 already made; c) the underlying debt was genuinely disputed as evidenced by the Federal Court's direction to reassess damages in the professional negligence claim; d) and the Settlement Agreement was invalid as it was executed after the Plaintiff had been wound up.

Furthermore, the Plaintiff argued that the Defendant's conduct in obtaining garnishee orders while the Fortuna injunction application was pending demonstrated an abuse of process, and that allowing the winding-up petition would unfairly prejudice the Plaintiff's pending appeal.

The Defendant maintained that the April 2018 Judgment remained valid and enforceable as Order 46 Rule 2 ROC 2012 did not apply to winding-up proceedings, which are 8 not execution proceedings under the ROC 2012. While acknowledging receipt of RM602,064.66, the Defendant argued this did not invalidate the statutory notice as the remaining debt was still well above the RM50,000 threshold for winding-up proceedings. the Defendant contended that whether the Settlement Agreement was valid or void was irrelevant as either scenario led back to the binding April 2018 Judgment, and that the Plaintiff's pending appeal against its former solicitors could not be grounds to restrain winding-up proceedings as the Federal Court's directions on assessment in the FC Appeals related only to the quantum of damages in the negligence claim. Analysis and findings of the court Whether the statutory notice is invalid for failure to obtain leave under Order 46 Rule 2 of the ROC 2012

The Plaintiff contends that the statutory notice dated 25.7.2024 issued by the Defendant is procedurally flawed as it relies on the April 2018 Judgment which has lapsed after six years. The Plaintiff submits that leave of court under Order 46 Rule 2 of the ROC 2012 was required before any enforcement action could be taken based on this order, including the issuance of a statutory notice under Section 466 of the Companies Act 2016.

The Defendant's position is that Order 46 Rule 2 ROC 2012 applies only to writs of execution and does not extend to winding-up proceedings. The Defendant argues that court orders remain valid until set aside on appeal or by separate action, and that the April 2018 Judgment stands as a valid and binding order since the Plaintiff's appeal against it was struck out by the Court of Appeal on 27.8.2018.

I have carefully considered the submissions of both parties on this issue. Order 46 Rule 2(1)(a) of the ROC 2012 provides that “A writ of execution to enforce a judgment or order may not be issued without the leave of the Court …. where six years or more have lapsed since the date of the judgment or order.” The provision is specifically confined to writs of execution and does not state that judgments automatically lapse after six years.

The authorities are clear that a winding-up petition does not constitute an execution proceeding under the ROC 2012. In Klass Corporation (M) Sdn Bhd v MKRS Management Sdn Bhd [2018] 7 CLJ 303, Mohd Nazlan J (as he then was) held that “a winding-up is not a form of an execution of judgment” and that “a stay cannot operate to restrain the execution of the judgment debt should the mode of enforcement is by way of a winding-up action.” This distinction was made in a dispute involving a construction sub-contractor with a RM1.1 million judgment debt who sought to prevent a winding-up petition while its appeal was pending. The court clarified that winding-up proceedings 10 operate independently from conventional execution mechanisms, explaining why Order 46 Rule 2's requirement for leave after six years applies to writs of execution but not to statutory winding-up petitions, which instead derive from the creditor's rights under Sections 465 and 466 of the Companies Act 2016.

The Plaintiff relies on both AmFraser Securities Pte Ltd v Poh Gaik Lye [2016] 4 MLJ 314 and Pacific Sanctuary Holdings Sdn Bhd v Masaland Construction Sdn Bhd [2020] 3 MLJ 692 to argue that the Defendant's statutory notice is procedurally flawed. The Plaintiff contends that since the April 2018 Judgment was more than six years old when the statutory notice was issued, leave of court under Order 46 Rule 2 ROC 2012 was required before any enforcement action, including winding-up proceedings, could be undertaken. In AmFraser, the Federal Court invalidated a bankruptcy notice issued ten years after judgment without prior leave, holding that a judgment creditor must obtain leave to enforce judgments older than six years. Similarly, the Plaintiff cites Pacific Sanctuary to argue that the Settlement Agreement superseded the original judgment, rendering it ineffective, and that upon alleged breach of the Settlement Agreement, the Defendant should have initiated fresh proceedings rather than relying on the original judgment.

However, these cases are distinguishable from the present matter. AmFraser specifically dealt with bankruptcy proceedings under the Bankruptcy Act 1967, which contains a proviso in Section 3(1)(i) requiring the petitioner to be “a person who is for the time being entitled to enforce a final judgment.” No equivalent provision exists for winding-up proceedings under the Companies Act 2016. Furthermore, the Court in Klass Corporation specifically held that “a winding-up is not a form of an execution of judgment” and therefore not subject to Order 46 Rule 2.

As for Pacific Sanctuary, while it does establish that settlement agreements can supersede original judgments, the case turned on the plaintiff's failure to provide any explanation for the delay in enforcement and the specific terms of that settlement agreement. In the present case, the Settlement Agreement contained clause 1.3 which explicitly provided that upon default, the Defendant “shall be liable to [the Defendant] for the full sum payable originally under the Judgement” and the Defendant “shall be at liberty to execute the Judgement against [the Plaintiff].” This distinguishing provision directly contemplated reversion to the original judgment upon default, unlike the settlement agreement in Pacific Sanctuary where the Court of Appeal emphasised that after a valid settlement agreement, the original judgment becomes spent and cannot be executed, and any remedy must be sought through a fresh action on the settlement.. Further, that case did not establish that a statutory notice is a form of execution. Rather, it dealt with 12 an application under Order 46 after the statutory notice had been withdrawn.

The April 2018 Judgment remains valid and enforceable as the Plaintiff's appeal against it was struck out. Order 46 Rule 2 ROC 2012 does not operate to invalidate the order itself, but merely requires leave before certain forms of execution can be undertaken. As a winding-up petition is not an execution proceeding, no leave was required before issuing the statutory notice.

For these reasons, I find that the statutory notice is not procedurally flawed for want of leave under Order 46 Rule 2 ROC 2012. This ground of challenge to the statutory notice therefore fails.

The Plaintiff contends that the statutory notice dated 25.7.2024 is defective as it claims RM7,608,640.00 without accounting for payments of RM602,064.66 already made to and received by the Defendant. The Plaintiff further suggests there may be additional payments through contra of RM699,289.90 that were not disclosed, arguing this demonstrates a lack of full and frank disclosure that should invalidate the notice.

The Defendant acknowledges receiving RM602,064.66 from the Plaintiff but argues this does not invalidate the statutory notice. The Defendant maintains that even after deducting this sum, there remains an undisputed debt well above the statutory threshold of RM50,000. The Defendant denies any further payments through contra and notes that this allegation was never properly explained or evidenced in the Plaintiff's affidavits.

Upon examining the evidence, I find that while the Defendant has verified receipt of RM602,064.66 after reviewing its records, this admission does not render the statutory notice defective. The purpose of a statutory notice under Section 466 of the Companies Act 2016 is to allow the recipient company to respond within 21 days if it disputes the claimed amount. This is precisely what occurred here - the Plaintiff had the opportunity to and did raise the issue of payments made in response to the notice.

As for the alleged contra payment of RM699,289.90, I note that this was not explained in the Plaintiff's affidavits. The only reference appears on page 196-197 of Enclosure 2 without any supporting explanation. The Plaintiff's own counsel acknowledged during oral submissions that “I honestly don't know what this is.” Given this uncertainty, no weight can be attached to this allegation.

This situation parallels MBSB Bank Bhd v Erakemas Sdn Bhd [2024] 9 CLJ 245, where the respondent construction company, awarded a contract by the Ministry of Education, argued against a winding-up petition partly on grounds that it had made two part-payments totaling RM50,000 which it claimed were unaccounted for in the statutory demand of approximately RM2.865 million. The High Court rejected this argument, finding that “when there is no doubt that R is deemed unable to pay its debt to P and is therefore commercially insolvent, it would be unjust to dismiss this winding up petition just because R raises a question about the precise amount owing,” particularly where the part-payment represented “a very small portion of the demanded debt.” Justice Kenneth St James emphasised that the respondent was “obviously currently unable to pay its judgment debt,” noting that the test of commercial insolvency is simply whether the company is unable to meet its current debts as they fall due, even if it may have substantial wealth that cannot be immediately realised. The principles in that case are directly applicable here.

Even taking the verified payment of RM602,064.66 into account, the remaining debt of approximately RM7,006,575.34 far exceeds the statutory threshold of RM50,000 for winding up proceedings. The Defendant's statutory notice therefore remains valid despite the omission of this payment, as the threshold requirement for presenting a winding up petition is clearly met.

For these reasons, I find that the non-disclosure of the RM602,064.66 payment in the statutory notice does not render it invalid, nor does it provide grounds for restraining the presentation of a winding up petition. This ground of challenge must therefore fail.

The Plaintiff contends that the Federal Court's direction in the FC Appeals to reassess the actual losses in its negligence claim against its former solicitors creates substantial doubt about the quantum being claimed through the winding-up proceedings. The Plaintiff argues that since the Federal Court held that equating the settlement sum with the actual debt owing was incorrect, this creates uncertainty about the true amount owed, which should prevent the presentation of a winding-up petition until the reassessment is complete.

The Defendant submits that the negligence proceedings against the Plaintiff's former solicitors are entirely separate and have no bearing on the validity of the April 2018 Judgment or the debt owed thereunder. The Defendant argues that the Federal Court's directions pertained solely to quantifying damages in the negligence claim, and cannot affect the binding nature of the original judgment debt.

I have carefully considered this issue and find that the pending reassessment of damages in the negligence proceedings does not create a bona fide dispute of the debt. The April 2018 Judgment ordered the Plaintiff to pay the Defendant RM5,850,000 with interest and costs. The Plaintiff's appeal against this order was struck out by the Court of Appeal on 27.8.2018, rendering it final and binding between the parties.

The Federal Court's direction to reassess damages in the FC Appeals pertains solely to quantifying the Plaintiff's loss of chance to defend the original action due to its solicitors' negligence. This is an entirely separate matter from the enforceability of the judgment debt itself. The principle of res judicata prevents the Plaintiff from now challenging the quantum established by the April 2018 Judgment.

The fact that the Plaintiff may eventually recover damages from its former solicitors for their negligence does not affect its liability to pay the judgment debt to the Defendant. These are separate causes of action between different parties. To hold otherwise would mean that any company could resist winding-up by claiming pending litigation against third parties that might eventually provide funds to pay the debt.

In Pacific & Orient Insurance Co Bhd v Muniammah Muniandy [2010] MLJU 2217, the Court of Appeal established principles that are directly applicable here. The court held that “once judgment is obtained, the debt ceased 17 to be a disputed debt. Thereafter the question whether the debt or amount due was bona fide disputed became non-issue.” Further, the court emphasised that “this is so even though the appellant had filed an appeal against the said judgment because the filing of an appeal does not have the effect of reverting the status of the judgment debt to its original status as a disputed debt before judgment was obtained.” Applying these principles to the present case, the April 2018 Judgment constitutes an undisputed debt that the Plaintiff cannot now challenge through a Fortuna injunction application, regardless of the pending reassessment of damages in the negligence proceedings against its former solicitors.

For these reasons, I find that the pending reassessment of damages in the negligence proceedings does not create a bona fide dispute of the debt owed under the April 2018 Judgment. This ground for seeking a Fortuna injunction therefore fails.

The Plaintiff contends that the Settlement Agreement dated 21.11.2018 is invalid as it was executed after the company was wound up by order of court dated 19.11.2018. The Plaintiff argues that as a wound-up company lacks capacity to contract, this timing raises fundamental questions about 18 the validity of the agreement which forms part of the basis for the current proceedings.

The Defendant submits that the validity or otherwise of the Settlement Agreement is immaterial to these proceedings as the statutory notice is premised on the April 2018 Judgment, not the Settlement Agreement. The Defendant argues that whether the Settlement Agreement is valid or void, all roads lead back to the original April 2018 Judgment which remains binding and enforceable.

I find the Defendant's position on this issue compelling. Looking at Clause 1.3 of the Settlement Agreement, if the agreement is valid, then upon default in payment (which is admitted), the clause provides that “this Agreement shall be deemed terminated forthwith and [the Plaintiff] shall be liable to [the Defendant] for the full sum payable originally under the Judgement less any payments already made whereupon [the Defendant] shall be at liberty to execute the Judgement against [the Plaintiff].”

Alternatively, if the Settlement Agreement is void for lack of capacity as the Plaintiff contends, then it would be treated as never having existed. In either scenario, the parties would revert to their positions under the April 2018 Judgment, which ordered the Plaintiff to pay the Defendant RM5,850,000 with interest and costs.

It is significant that the Defendant's statutory notice dated 25.7.2024 refers to the Settlement Agreement purely for context but bases its demand on the April 2018 Judgment. The notice does not seek to enforce the Settlement Agreement itself. This approach is consistent with Pacific & Orient Insurance Co Bhd v Muniammah Muniandy where Ramly Ali JCA held that a valid and enforceable judgment cannot be characterised as a disputed debt.

For these reasons, I find that questions about the validity of the Settlement Agreement do not affect the Defendant's right to present a winding-up petition based on the April 2018 Judgment. This ground of challenge therefore fails.

The Plaintiff contends that as one of six nominated sub-contractors on the project, it should not be made solely liable for the entire Liquidated Ascertained Damages (LAD) claim when other contractors may have contributed to delays. The Plaintiff relies heavily on ES HVAC Sdn Bhd v Miracle Asset Builder Sdn Bhd [2019] 3 MLJ 485, where the Court of Appeal questioned the fairness of claiming the entire LAD from one sub-contractor.

The Defendant submits that the allocation of LAD liability between sub-contractors was an issue that should have been raised in defending the original action. The Defendant 20 argues that the April 2018 Judgment is now binding by virtue of res judicata, and the Plaintiff cannot now challenge the quantum or basis of the judgment debt through these proceedings.

I note that in ES HVAC, the Court of Appeal expressed significant concerns about the fairness of claiming the entire LAD from a single subcontractor when there were multiple contractors involved in the project. The court observed it was “unusual that the whole of the LAD claim by the employer against the respondent... is now to be paid by only one of the NSCs when there were five others... who could have possibly contributed to the delay.” The court emphasised that where a subcontractor's work constituted only a small percentage of the overall project value (4.5% in that case), the allocation of LAD liability required detailed examination at trial, particularly when the LAD claim exceeded the contract sum. However, the present situation is materially different from ES HVAC. Here, the High Court has already determined the Plaintiff's liability through its Order dated 17.4.2018, and the Plaintiff's appeal against this order was struck out, making it final and binding between the parties.

The principle of res judicata prevents the Plaintiff from now challenging the quantum or basis of the LAD claim. These were matters that should have been raised in defending the original action. The fact that the Plaintiff's former solicitors failed to do so due to alleged negligence does not affect the 21 binding nature of the judgment, even though it may give rise to a separate cause of action against those solicitors.

The situation here is analogous to Pacific & Orient Insurance Co Bhd v Muniammah Muniandy, where Ramly Ali JCA held that a valid and enforceable judgment cannot be characterised as a disputed debt. The Court of Appeal emphasised that once judgment is obtained, questions about the underlying merits of the claim become non-issues.

For these reasons, I find that the Plaintiff's arguments about the allocation of LAD liability between sub-contractors cannot create a bona fide dispute of a debt that has been reduced to judgment. This ground for seeking a Fortuna injunction therefore fails.

The Plaintiff contends that the Defendant's action in obtaining garnishee orders on 7.11.2024 while this Fortuna injunction application was pending constitutes an abuse of process and oppressive conduct. The Plaintiff relies on Jasa Keramat Sdn Bhd & Anor v Monatech (M) Sdn Bhd [1999] 4 MLJ 637 (CA) to argue that such parallel proceedings amount to misconduct that should weigh against allowing the winding-up to proceed.

The Defendant submits that the garnishee proceedings are properly brought under Order 49 of the ROC 2012 and do not affect this Fortuna injunction application. The Defendant maintains that it has the right to pursue different modes of enforcement, and that garnishee proceedings are specifically governed by Order 49 which does not require leave under Order 46.

I find that the garnishee proceedings do not constitute an abuse of process that would affect this Fortuna injunction application. The garnishee proceedings and the proposed winding-up proceedings are distinct enforcement mechanisms available to a judgment creditor. The fact that the Defendant has chosen to pursue garnishee proceedings does not impinge upon its right to also present a winding-up petition.

The case of Jasa Keramat is distinguishable as it involved the filing of multiple actions seeking the same relief in different courts. In that case, there were already two pending actions in the Penang High Court when the respondent initiated a third action in Shah Alam High Court, obtained ex parte orders that nullified a consent order made in the first action, and effectively stayed the proceedings in Penang without proper inter partes applications. The Court of Appeal found this to be a clear abuse of process designed to circumvent established procedures and oppress the opposing party. Here, the Defendant is pursuing different modes of enforcement based on the 23 same judgment debt, which is permissible. The garnishee proceedings are specifically provided for under Order 49 of the ROC 2012 as a distinct enforcement mechanism. Unlike in Jasa Keramat, the Defendant is not attempting to relitigate the same issues in different courts or nullify previous court orders, but is simply utilising different enforcement tools available to a judgment creditor under the law.

Furthermore, the subject matter of this Fortuna injunction application is whether the Defendant should be restrained from presenting a winding-up petition. The existence of parallel garnishee proceedings does not affect the central question of whether there is a bona fide dispute of the debt that would justify such restraint. The Defendant's conduct in pursuing garnishee proceedings is therefore not relevant to determining whether the requirements for a Fortuna injunction have been met.

For these reasons, I find that the garnishee proceedings do not constitute an abuse of process that would justify granting a Fortuna injunction. This ground of challenge therefore fails.

The Plaintiff contends that allowing winding-up proceedings at this stage would unfairly stifle its pending Court of Appeal 24 proceedings (Civil Appeal No.: J-02(IM)(NCvC)-1124- 07/2024) and cause irreparable harm to the company. The Plaintiff argues that since these proceedings may result in an award that could satisfy the judgment debt, the winding-up petition should be restrained pending their resolution.

The Defendant submits that the possibility of the Plaintiff recovering damages from its former solicitors in separate proceedings cannot affect its right to enforce a valid judgment debt. The Defendant argues that accepting such reasoning would mean any company could resist winding-up by claiming pending litigation against third parties that might eventually provide funds to pay the debt.

I find that the pending Court of Appeal proceedings do not justify restraining the presentation of a winding-up petition. The Court of Appeal proceedings concern the assessment of damages in the Plaintiff's negligence claim against its former solicitors. While the Plaintiff may eventually recover damages that could help satisfy the judgment debt, this possibility does not affect its current liability to the Defendant under the April 2018 Judgment.

In Pacific & Orient Insurance Co Bhd v Muniammah Muniandy, Ramly Ali JCA held that where there is a valid and enforceable judgment, the court will not consider whether the presentation of a winding-up petition might cause irreparable damage to the company. This principle recognises that a company's potential ability to pay in the 25 future does not affect its current inability to pay an established debt.

This approach is sound in principle. If courts were to restrain winding-up proceedings whenever a company had pending litigation that might yield funds, this would effectively allow companies to indefinitely delay paying their debts by maintaining litigation against third parties. This would undermine the efficacy of winding-up proceedings as a remedy for creditors.

The proper course for the Plaintiff, if it obtains damages from its former solicitors, would be to use those funds to pay its creditors through the liquidation process. The possibility of such recovery does not justify preventing the Defendant from exercising its statutory rights as a judgment creditor.

For these reasons, I find that the pending Court of Appeal proceedings do not justify granting a Fortuna injunction to restrain the presentation of a winding-up petition. This ground of challenge therefore fails.

Having carefully considered all the grounds raised, I find that the Plaintiff has failed to establish any basis for granting a Fortuna injunction to restrain the presentation of a winding-up petition. The statutory notice is not invalidated by the failure to obtain leave under Order 46 Rule 2 ROC 2012 or the non-disclosure of payments received, while questions about the Settlement Agreement's validity and the pending Court of Appeal proceedings do not create a bona fide dispute of the judgment debt which remains valid and enforceable. For these reasons, the Originating Summons is dismissed with costs of RM10,000.00. 25 April 2025 ATAN MUSTAFFA YUSSOF AHMAD Judge Kuala Lumpur High Court (Commercial Division) Counsel: For the Plaintiff: Reuben Netto with C Sankaran and Maithily Manoher (Messrs C.Sankaran & Co.) For the Defendant: Clinton Tan with Sovitra Sukahut and Harishdeep Singh (Messrs Clinton Tan)