The Store (Malaysia) Sdn Bhd v Kcsb Konsortium Sdn. Bhd (WA-24NCC-116-03/2026)

The P filed this originating summons dated 2.3.2026 OS for a Fortuna injunction to prevent the Defendants from presenting a winding - up petition against P pursuant to a statutory notice dated 13.2.202 statutory notice .

In the OS, P also sought for a declaration that the statutory notice issued by the Defendants, which is premised on a judgment dated 30.8.2013 awarded by the Johor Bahru High Court in Suit No. : 22 NCvC - 52 - 02 / 2013 2013 judgment , is time - barred.

Concurrently with the OS, P filed a notice of application dated 2.3.2026 via Enclosure 2. The reliefs sought for by P in Enclosure 2 are substantially similar to that in the OS. Namely for a Fortuna injunction to prevent the Defendants from presenting a winding - up petition against P pursuant to the statutory notice.

On 12.3.2026, I granted an ad interim Fortuna injunction which restrained the Defendants from presenting a winding - up petition against P, pending the disposal of the OS.

The OS and Enclosure 2 were heard together on 4.5.2026. I dismissed the OS and Enclosure 2. Here are my reasons. Background facts

The 1st Defendant is the owner of the subject land situated at Mukim land By means of a power of attorney, the 1st Defendant appointed the 2nd Defendant as its attorney to deal with the land.

At the material time, P was a tenant on the land. P had carried out the construction of a supermarket and departmental store on the land building Tenancy dispute between the Plaintiff and the Defendants

In February 2013, the Defendants filed a suit against P via Johor Bahru High Court Suit No. : 22 NCvC - 52 - 02 / 2013. In that suit, P claimed for outstanding rental and delivery of vacant possession of the land.

On 30.8.2013, the Johor Bahru High Court delivered its judgment. Through the 2013 judgment, the Johor Bahru High Court held that P is to continue to pay monthly rental to the Defendants, until the delivery of vacant possession of the land.

The relevant extract of the 2013 judgment reads : MAKA ADALAH DENGAN INI DI HAKIMI Defendan hendaklah membayar kepada Plaintif-Plaintif baki bayaran sewa tertunggak terdahulu yang telah di persetujui sebanyak RM 100,000-00. ADALAH JUGA DI HAKIMI Defendan hendaklah membayar kepada Plaintif sewa tertunggak bagi bulan Oktober 2012, November 2012, Disember 2012, dan Januari 2013 keseluruhannya sebanyak RM 545,040-00. DAN ADALAH DI HAKIMI Defendan hendaklah membayar kepada Plaintif sewa berterusan sebanyak RM 136,260-00 sebulan sehingga milikan kosong bagi parcel tersebut di serahkan kepada Plaintif-Plaintif. ADALAH JUGA DI HAKIMI Defendan hendaklah menyerahkan milikan kosong bagi parcel tersebut kepada Plaintif-Plaintif. DAN SETERUSNYA DI HAKIMI Defendan hendaklah menyerahkan milikan kosong bagi parcel tersebut dalam keadaan asalnya dan Defendan membayar segala kos untuk baik pulih premis (sekiranya perlu).

According to P, the Defendants did not enforce the 2013 judgment between the period of September 2013 to August 2022. Instead, the Defendants continued to rent the said premises to P on a month to month tenancy basis. The 1st D 2013 judgment

Approximately nine years after securing the 2013 judgment, the 1st Defendant applied ex - parte to the Johor Bahru High Court for leave to execute the 2013 judgment, which had exceeded the six year threshold.

On 23.6.2022, the Johor Bahru High Court granted leave to the 1st Defendant to execute the 2013 judgment. The delivery of vacant possession of the land

P offered the following narrative regarding the delivery of vacant possession of the land.

On 5.4.2022, P and the Defendants had a meeting to discuss about the rental rate and vacant possession of the land. At the meeting, the Defendants stipulated their rental rate. If P disagrees with the rental rate, the Defendants would require P to deliver vacant possession of the land.

Thereafter, P, through a letter dated 10.5.2022, informed the Defendants that it will be delivering vacant possession of the land in its original condition, without the building. P will demolish the building on the land, since the tenancy was only for the land. To retain the building, P proposed that the Defendants pay to P the market value of the building.

The Defendants responded to P through 21.6.2022, informing that they are not agreeable to the demolishment of the building. The Defendants also demanded the payment of outstanding rental totalling RM 1,741,459.20 as at May 2022.

to the building had been locked and As a result, P as a tenant was unable to utilize the building and was denied access to the building.

O notice of application for an assessment of damages under the 2013 judgment, and an order of court dated 28.9.2022. The grounds relied upon by the Defendants for assessment of damages are as follows :

(a) that the Defendants had obtained the 2013 judgment;

(b) that an ex - parte order for leave to issue writ of possession dated 28.9.2022 was granted to the Defendants by the Johor Bahru High Court in Suit No. : 22 NCvC - 52 - 02 / writ of possession order

(c) that the Defendants took vacant possession of the land on 14.11.2022.

On 1.11.2023, the notice of application to assess damages was dismissed with liberty to re - file.

Under the writ of possession order, the Johor Bahru High Court ordered that :

(a) the Defendants, within 14 days from the date of the writ of possession order being received by P, are granted leave to issue a writ of possession against P, to enforce the 2013 judgment which ordered P to hand over vacant possession of the land; and

(b) P shall hand over vacant possession of the land in its original condition, and P shall pay all costs for the repairment of the premises (if necessary).

P stance is that the Defendants had wrongfully taken possession of the building. P applied to set aside the writ of possession order.

The Johor Bahru aforesaid application. P has appealed to the Court of Appeal against the dismissal of its application to set aside the writ of possession order.

P alleges that it is entitled to the costs of construction of the building totalling RM 9,466,816.77, or the market value of the building totalling RM 24,916,815.00 as of December 2017. P commenced an action against the Defendants via Johor Bahru High Court Originating Summons No. : JA - 24 NCC - 38 - 12 / 2022, which was subsequently converted to a writ action bearing Johor Bahru High Court Suit No. : JA - 22 NCC - 20 - 02 / 2024 suit

In the 2024 suit, P sought for the following reliefs :

(a) a declaration that the 1st and / or 2nd Defendants are to compensate and / or provide restitution to P for unjustly enriching themselves by taking possession of the building constructed by P on the land; and

(b) that the compensation and / or restitution for unjust enrichment shall be based on the market value or the construction cost of the building, whichever is higher. case

P argues that a Fortuna injunction should be granted for the following reasons :

(a) There is a bona fide dispute regarding the alleged debt, which is based on the 2013 judgment. The 2013 judgment is statutorily time - barred by the Limitation Act 1953. Limitation had set in on 30.8.2025.

(b) The Defendants issuance of the statutory notice against P for repayment of the alleged debt is an abuse of the process of the court. It is used to exert pressure on P to claim for a disputed debt, and to frustrate an upcoming trial in the 2024 suit involving the same parties herein.

(c) The Defendants are deemed insolvent. They do not have any locus standi to commence winding - up proceeding, which is evident from the following :

(i) The 1st Defendant is faced with a winding - up petition commenced by the Government of Malaysia, due to its failure to pay the Government of Malaysia a judgment sum of RM 269,502,986.14 dated 21.12.2018.

(d) P is a going concern. P will suffer irreparable damage if the court does not grant the Fortuna injunction herein.

The Defendants canvassed the following arguments.

It is undisputed that :

(a) P is indebted to the Defendants by virtue of the 2013 judgment;

(b) judgment debt under the 2013 judgment, the Defendants exercised their statutory right to issue the statutory notice pursuant to section 466 (1) (a) of the Companies Act 2016;

(c) P has failed to comply with the statutory notice; and

(d) P is deemed to be commercially insolvent and unable to pay its debts within the meaning of section 466 (1) (a) of the Companies Act 2016.

It was only after the issuance of the statutory notice that P hastily filed this Fortuna injunction application to restrain the Defendants from presenting a winding - up petition, with the intention of frustrating the judgment debt under the 2013 judgment.

A successful litigant is entitled to enforce a judgment awarded by a court of law, unless and until it is set aside. This includes the right to present a winding - up petition, where the judgment debt has been adjudicated and remains unpaid. The mere fact that P continues to operate its business is neither a defence nor a ground to defeat enforcement of the judgment debt under the 2013 judgment.

1st a separate judgment debt dated 21.12.2018 to the Government of Malaysia, and the 2nd alleged failure to lodge financial accounts with the SSM since 2018, are irrelevant. These allegations do not establish a bona fide dispute in relation to the judgment debt under the 2013 judgment. Nor do they justify restraining the Defendants from presenting a winding - up petition, based on the judgment debt under the 2013 judgment.

cross - claim in the 2024 suit, and the purported right of set - off arising therefrom, is misconceived. The mere filing of a cross - claim, and the alleged right of set - off, does not and cannot convert a judgment debt into a bona fide disputed debt. The law on Fortuna injunction

The court has discretionary powers to grant a Fortuna injunction under sections 50 and 51 of the Specific Relief Act 1950.

The test to be adopted when granting a Fortuna injunction was set out by the Court of Appeal in Mobikom Sdn Bhd v Inmiss Communications Sdn Bhd [2007] 3 CLJ 295; [2007] 3 MLJ 316, which cited Fortuna Holdings Pty Ltd v Deputy Federal Commissioner of Taxation [1976] 2

The Court of Appeal said (at pages 303 - 307, CLJ; pages 322 - 324, MLJ) : His Honour went on to discuss the first branch of the principle : The first branch applies in cases where the presentation of the petition might produce irreparable damage to the company and where the proposed petition has no chance of success. ... [7] In respect of the second branch, his Honour said this : I consider that there is a second branch of the principle which may apply in situations where the first branch does not. The second branch applies in cases where a petitioner proposing to present a petition has chosen to assert a disputed claim, by a procedure which might produce irreparable damage to the company, rather than by a suitable alternative procedure. It may apply in cases where the petition, if presented, has a chance of success. In some cases both the first and the second branches of the principle apply. stressed that the jurisdiction to restrain the presentation of a petition was to be exercised with care and only in a clear case. [8] In a later passage McGarvie J summed up the two branches of the principle as follows : The first branch applies to cases where the petitioner is incapable of success as a matter of law or through absence of supporting evidence. Where the petitioner is not entitled to present a petition or where the ground alleged is not a ground which can found a winding up order, the petition is incapable of success as a matter of law. If there is no sufficient evidence to establish an otherwise sufficient ground, the petition is incapable of success for that reason. Thus the first branch applies where the proposed petition cannot succeed. The second branch applies to cases where there is a more suitable alternative means of resolving the dispute involved in a disputed claim against the company. They are not necessarily cases in which, as a matter of law or through absence of evidence, there is an inherent incapacity of success. They may be cases where the petitioner is entitled to present the petition, the ground is sufficient in law and there is evidence to support the ground. They are cases, though, where, due to the availability of the more suitable alternative remedy, the Court hearing the petition would in the circumstances, in the exercise of its discretion, decline to make a winding up order, at least while the circumstances remain as they are at the time of the application for an injunction. Thus the second branch applies where, because of the availability of a suitable alternative procedure, the petition is unlikely to succeed in the circumstances existing at the time.

The two principles to warrant the grant of a Fortuna injunction are as follows :

(a) the winding - up petition has no chance of success and the presentation of such petition might produce irreparable damage to the subject company; and

(b) a Fortuna injunction may be granted where an intended petitioner proposes to present a winding - up petition premised on a disputed claim, which presentation might produce irreparable harm to the subject company, rather than use a suitable alternative procedure to assert the disputed claim.

Similarly, in Pacific & Orient Insurance Co Bhd v Muniammah Muniandy [2010] MLJU 1668; [2011] 1 CLJ 947 at 958 - 960, the Court of Appeal held : An application for an injunction to restrain an intended winding - up petition against a company is known as a Fortuna Injunction , taking its name from the case of Fortuna Holdings Pty Ltd v. The Deputy Commissioner of Taxation [1978] VR 83. In that case the court laid down the basis on which a court acts to restrain the presentation of a winding - up petition and the two principles that guide courts in the grant of an injunction to that effect. (see also: Mobikom Sdn Bhd v. Inmiss Communications Sdn Bhd [2007] 3 CLJ 295 (Court of Appeals). [26] The first principle laid down in that case in that an injunction of that nature may be granted by court where the presentation of the petition might produce irreparable damage to the company and where the proposed petition has no chance of success. In order to succeed in getting injunction under this principle, the applicant must satisfy both limbs of the principle ie,:

(i) the intended petition has no chance of success, as a matter of law as well as a matter of fact; and

In Tan Kok Tong v Hoe Hong Trading Co Sdn Bhd [2007] 2 CLJ 305; [2007] 4 MLJ 355, the Court of Appeal observed that the burden of proof lies on the applicant to show that there is a prima facie case that the debt is bona fide disputed on substantial grounds.

The Court of Appeal said (at page 360, MLJ) : 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 (see Stonegate Securities Ltd v Gregory [1980] 1 All ER 241). It is not enough that there is a serious question to be tried. In other words, this is one of those cases to which the general test laid down in American Cynamid Co v Ethicon Ltd [1975] AC 396 does not apply. In Molop Corp Sdn Bhd v Uniperkasa (M) Sdn Bhd [2003] 6 MLJ 311, Low Hop Bing J (as he then was) correctly held as follows (at p 321): I had the occasion to consider and determine the burden of proof cast on the plaintiff in an application for interlocutory injunction to restrain the presentation of a winding up petition, in the following words : I agree with the reasons given by the English and New Zealand Court of Appeal respectively and by Abdul Malik J and hold that for the purpose of obtaining an interim injunction to restrain the defendant from proceeding with the winding up petition, the burden of proof cast on the plaintiff is only discharged by reference to the standard of proof or test in adducing evidence to establish a prima facie case and that the principle relating to the test of serious question to be tried in American Cynamid Co v Ethicon Ltd [1975] AC 396; [1975] 1 All ER 504 as applied in Keet Gerald Francis Noel John v Mohd Noor bin Abdullah & Ors [1995] 1 MLJ 193 is not applicable as the applications there were not applications to restrain winding up petitions or proceedings, such as in the instant case before me. Illustration of a prima facie case may be provided by necessary evidence that there is a bona fide dispute by the plaintiff in relation to the statutory demand or that the plaintiff is solvent

I concur with the opinion of the High Court in CME Group Bhd v Bellajade Sdn Bhd [2002] MLJU 928 at [42]. To wit, following Tan Kok Tong (supra), that the American Cynamid principles applicable to an interlocutory injunction such as whether there is a serious question to be tried, whether damages is an adequate remedy and the balance of convenience test are not applicable. The American Cynamid test cannot be used to justify restraining a party from presenting a winding - up petition. Decision

In line with the authorities cited above, a court may grant a Fortuna injunction on one of the following two limbs :

(a) That the winding - up petition must have no chance of success and that the presentation of the winding - up petition would cause irreparable damage to the subject company; or

(b) In the event where an alternative procedure to winding - up proceedings is available, and the winding - up proceedings (premised on a disputed claim) would cause irreparable harm to the subject company, a Fortuna injunction may be granted.

It is my finding that the criteria for granting a Fortuna injunction is not met in the present case. Here is my explanation. The judgment debt under the 2013 judgment is an indisputable debt

to the Defendants arises from the 2013 judgment, which remains valid and enforceable unless set aside. A successful party is entitled to the fruits of its litigation. Thus, the Defendants are entitled to enforce the judgment debt under the 2013 judgment against P, including by way of winding - up proceeding.

The 2024 suit filed by P does not constitute an appeal or a challenge to the 2013 judgment. At its highest, cross - claim in the 2024 suit is an unproven and independent claim. It cannot override the validity or enforceability of the judgment debt under the 2013 judgment. Ultimately the judgment debt under the 2013 judgment is not bona fide disputed. The 2013 judgment is not time - barred

P contends that the 2013 judgment became time - barred on 30.8.2025, i.e. 12 years after the date of the 2013 judgment on 30.8.2013. I disagree. It must be pointed out that the 2013 judgment imposes a continuing liability on P to pay the monthly rental, until vacant possession of the land is surrendered to the Defendants. The 2013 judgment therefore did not stipulate a fixed or definite amount of the judgment sum.

The delivery of vacant possession of the land only took place in November 2022. From the time of the 2013 judgment and until then, P continued to occupy the said premises and paid the monthly rental. payment of the monthly rental, as obligated under the 2013 judgment, was a running account, if you like.

In the circumstances, judgment is time - barred is incorrect. By virtue of the part - payments made by P, the last of which was on 28.1.2022, the right of action upon the 2013 judgment has been revived. Accordingly, the issue of limitation under section 6 (3) of the Limitation Act 1953 does not arise. The Limitation Act 1953

Section 6 (3) of the Limitation Act 1953 imposes a 12 - year limitation period on an action upon a judgment . It reads : An action upon any judgment shall not be brought after the expiration of twelve years from the date on which the judgment became enforceable .

The interpretation provision in section 2 of the Limitation Act 1953 any other proceeding in a court reads :

under section 2 of the Limitation Act 1953, the Federal Court in Perwira Affin Bank Bhd v Lim Ah Hee @ Sim Ah Hee [2004] 2 CLJ 787; [2004] 3 AMR 699; [2004] 3 MLJ 253 held that the meaning of section 6 (3) of the Limitation Act 1953.

The Federal Court said (at page 265, MLJ) : [48] Coming back to the issue now before this court. In my view, the answer lies in the answers to the following questions :

Although the above Federal Court case pertains to a bankruptcy proceeding, the principles enunciated therein are equally applicable to a winding - up proceeding. As held by the Court of Appeal in Island Hill Sdn Bhd v Pengurusan Danaharta Nasional Bhd [2012] 5 MLJ 506 at 514 : Does the principles enunciated by the Federal Court in Lim Ah Hee apply to winding up proceedings? Does the fact that it is governed by a separate law and rules and by reason of the distinction made that bankruptcy proceedings is based on a judgment, whilst and winding up proceedings, is onclusion? [19] We are of the view that this difference is not of any significance. Winding up proceedings against a company clearly has certain obvious affinities with the bankruptcy of an individual. Both are insolvency proceedings. Similar to bankruptcy proceedings a judgment creditor does not petition for the satisfaction of seeking the demise of the company debtor but also in the hope of recovering

Applying the principles in Lim Ah Hee (supra), I consider that the section 2 of the Limitation Act 1953 includes an action based on a judgment, such as a winding - up petition in the present case. section 26 (2) of the Limitation Act 1953.

Section 26 (2) of the Limitation Act 1953 reads :

On a plain and literal reading of section 26 (2) of the Limitation Act 1953, I consider that enough to encompass all forms of debt. This would include a judgment debt awarded by a court of law. In fact, a judgment debt, being one that has already been determined by a court of law, stands on an even stronger footing.

P argues that the part - payment or admission must be made voluntarily before commencement of legal proceedings, in order for section 26 (2) of the Limitation Act 1953 to apply. According to P, the payments for monthly rental paid by it were made post securing the 2013 judgment. As such, those monthly payments do not reset the limitation period, as claimed by the Defendants.

I disagree. There is no requirement under section 26 (2) of the Limitation Act 1953 that the part - payment must be made prior to the entry of judgment. P cannot read into the statute, words which are not present. (See the Supreme Court case of Vengadasalam v Khor Soon Weng & Ors [1985] 2 MLJ 449 at 450 - 451).

By way of comparison, section 26 (2) of the Limitation Act 1953 is similar to section 23 (4) of the UK Limitation Act 1939. In Re Footman Bower & Co Ltd [1961] 2 All ER 161 at 164, a case under section 23 (4) of the UK Limitation Act 1939, the English High Court payment in respect of a debt will make time to run afresh in respect of that The Plaintiff continued to pay the monthly rental under the 2013 judgment

having made part payment of the judgment sum to the Defendants up to 28.1.2022, establishes that the right of action to recover the judgment sum under the 2013 judgment continues to accrue.

P relies on the High Court case of The Co - operative Central Bank Bhd v Abdul Razak bin Sheikh Mahmood & Anor [2003] MLJU 80. With respect, that High Court case does not override the principles laid down by the apex court in Lim Ah Hee (supra). Accordingly, it does not assist P in contending that t action herein is time - barred.

Here, there is the existence of the 2013 judgment. Further, there is the failure of P to satisfy the judgment sum under the 2013 judgment. That gives the Defendants a right of action to recover the judgment sum under the 2013 judgment.

It bears reiterating that the amount of the judgment sum under the 2013 judgment had not crystallized, as at the date of the 2013 judgment on 30.8.2013. This is because the 2013 judgment stipulates a continuing liability on the part of P to pay the monthly rental, until vacant possession of the land is handed over to the Defendants.

Accordingly, the final amount of the judgment sum under the 2013 judgment can only be ascertained, as and when the delivery of vacant possession of the land actually takes place. Until such time, the judgment sum continues to accrue. Hence, the 12 - year limitation period to sue on the 2013 judgment did not begin to run from the date of the 2013 judgment on 30.8.2013.

It appears that the Defendants took vacant possession of the land in November 2022, pursuant to the writ of possession order. Albeit that P contends the Defendants had wrongfully taken possession of the building.

I make no comment on the legality or otherwise of the Defendants taking possession of the said premises. That is the subject - matter of dispute in P pending appeal to the Court of Appeal against the dismissal of its application to set aside the writ of possession order, as well as in the pending 2014 suit.

For the purposes of this Fortuna injunction application, I have regard to the fact that the judgment sum under 2013 judgment crystallized in November 2022. It was only then that time began to run in respect of the recover the final judgment sum under the 2013 judgment. notice issued by the Defendants pursuant to the 2013 judgment is time - barred. The validity and enforceability of the 2013 judgment is unaffected by the cross - claim

P asserts that its cross - claim in the 2024 suit, and the alleged right of set - off thereunder, constitutes a bona fide dispute in respect of the 2013 judgment. I disagree. Once a final judgment has been obtained, the judgment debt therein is conclusively established. The judgment debtor is precluded from re - litigating the merits of the original claim under the guise of a dispute.

A mere assertion of a right of set - off does not, in itself, amount to a bona fide dispute sufficient to resist the enforcement of a judgment debt or the presentation of a winding - up petition premised thereon. To hold otherwise would undermine the finality and sanctity of court judgments. It would open the floodgates to non - compliance with judgments awarded by a court of law. Any judgment debtor could simply evade a judgment by merely asserting a set - off. Alleged commercial insolvency, reputational harm or ongoing business cannot resist enforcement of the 2013 judgment

- up petition, the Supreme Court in Sri Hartamas Development Sdn Bhd v MBF Finance Bhd [1992] 1 MLJ 313 at 320 held : commercial insolvency unable to meet current demands upon it, we would respectfully follow the Privy Council in the Malayan Plant case and cite the following observations from Buckley on the Companies Act (13th Ed) at p 460 : In such a case it is useless to say that if its assets are realized there will be ample to pay twenty shillings in the pound: this is not the test. A company may be at the same time insolvent and wealthy. It may have wealth locked up in investments not presently realizable; but although this be so, yet if it have not assets available to meet its current liabilities it is commercially insolvent and may be wound up.

In similar vein, the Court of Appeal in Bludream City Development Sdn Bhd v Pembinaan Bina Bumi Sdn Bhd [2024] 4 MLJ 67 at 78 said : [31] In Pengkalen Holiday Resort Sdn Bhd v Perbadanan Pengurusan Paradise Lagoon & Anor [2016] MLJU 939; [2016] 1 LNS 1114, the court held as follows : [48] It is, in any event, now settled law that the issue on the inability to pay debt is to be considered in commercial context, which is the neglect to pay current demands regardless of whether the debtor is in possession of assets which, if realized would permit it to discharge its liabilities. The test of commercial insolvency simply means that the respondent company is not able to meet current debts when they fall due (see System Communication Engineering Sdn Bhd v Zabidin Sdn Bhd [1999] MLJU 55; [1999] 1 LNS 79; [1999] 1 AMR 1187). This is why it has been said that a company could be both insolvent but wealthy at the same time (see, for example, the Privy Council decision in Malayan Plant (Pte) Ltd v Moscow Narodny Bank Ltd [1980] 2 MLJ 53; [1980] 1 LNS 44 and the Supreme Court decision in Sri Hartamas Development Sdn Bhd v MBF Finance Bhd [1992] 1 MLJ 313; [1992] 1 CLJ 637). It is wholly insufficient that the assets might be realizable at some future date after the debts have become due and payable (see the Supreme Court decision in Lian Keow Sdn Bhd (in liquidation) & Anor v Overseas Credit Finance (M) Sdn Bhd [1988] 2 MLJ 449; [1988] 1 LNS 44).

I consider that P has failed to adduce sufficient or credible evidence to demonstrate that it is commercially paid - up capital of RM 30 million, and retained earnings in the sum of RM 30,533,688.00 as of 31.12.2025, does not rebut the statutory presumption of insolvency under section 466 (1) (a) of the Companies Act 2016. Accordingly, P is deemed unable to pay its debts to the Defendants pursuant to the said provision.

The mere fact that P is an on - going concern cannot be used as a shield to resist enforcement of the 2013 judgment. The fact remains that P is unable or unwilling to pay the judgment debt under the 2013 judgment.

P contends that the presentation of a winding - up petition would cause irreparable damage to it. My answer is this :

(a) Where a winding - up petition is not bound to fail, the question of whether it would cause irreparable harm does not arise. Both those requirements are conjunctive, and both must be satisfied.

(b) comply with the 2013 judgment by settling the judgment debt thereunder.

(c) Moreover, the Court of Appeal in Pacific & Orient Insurance (supra) has said that the question of irreparable prejudice is of no consequence, if the winding - up petition has a good chance of success and the debt cannot be undisputed.

I echo the sentiment expressed by the High Court in Klass Corporation (M) Sdn Bhd v MKRS Management Sdn Bhd [2018] 9 MLJ 305 at 320 : [41] In other words, in order to avoid the predicament and risks of irreparable damage that could be brought about by the petition as contended by the plaintiff, the course of action that ought to be taken is to pay up and settle the judgment debt. In Bakti Dinamik Sdn Bhd v Bauer (M) Sdn Bhd [2016] MLJU 1878; [2016] 10 CLJ 247, I observed : However, in Pacific & Orient Insurance, the Court of Appeal was clear in stating that the question of whether there was irreparable damage was wholly irrelevant when there is a judgment debt, as a petition would thus [not] be bound to fail. Any fears of damage should be avoided by settling the judgment debt (see the Court of Appeal decision in Ming Ann Holdings Sdn Bhd v Danaharta Urus Sdn Bhd [2002] 3 CLJ 380).

In the premises, whether or not a winding - up petition would cause irreparable damage to P is immaterial to this application for a Fortuna injunction. Irrelevant allegations concerning the Defendants financial position do not establish a bona fide dispute as to the judgment debt, or prohibit winding - up proceedings

whether there exists a bona fide dispute as to the judgment debt, or whether winding - up proceedings ought to be restrained.

In the present case, P is deemed commercially insolvent by reason of its failure to satisfy the statutory notice within the prescribed 21 - day period under the Companies Act 2016. Allegations concerning the quite irrelevant, in the context of a Fortuna injunction application. Conclusion

injunction under the OS and Enclosure 2. I awarded total costs of RM 20,000 to the Defendants. Dated 18 May 2026 Quay Chew Soon Judge High Court of Kuala Lumpur (Commercial Division NCC 2) Counsels Brian Ernest Cumming and Yip Man Fei (Messrs. Gideon Tan Razali Zaini) for the Plaintiff Lim Kien Huat and Sam Wei Yan (Messrs. Lee & Lim) for the Defendants Case reference 1. Mobikom Sdn Bhd v Inmiss Communications Sdn Bhd [2007] 3 CLJ 295; [2007] 3 MLJ 316 2. Fortuna Holdings Pty Ltd v Deputy Federal Commissioner of Taxation [1976] 2 ACLR 349 3. Pacific & Orient Insurance Co Bhd v Muniammah Muniandy [2010] MLJU 1668; [2011] 1 CLJ 947 4. Tan Kok Tong v Hoe Hong Trading Co Sdn Bhd [2007] 2 CLJ 305; [2007] 4 MLJ 355 5. CME Group Bhd v Bellajade Sdn Bhd [2002] MLJU 928 6. Perwira Affin Bank Bhd v Lim Ah Hee @ Sim Ah Hee [2004] 2 CLJ 787; [2004] 3 AMR 699; [2004] 3 MLJ 253 7. Island Hill Sdn Bhd v Pengurusan Danaharta Nasional Bhd [2012] 5 MLJ 506 8. Vengadasalam v Khor Soon Weng & Ors [1985] 2 MLJ 449 9.

Re Footman Bower & Co Ltd [1961] 2 All ER 161 The Co - operative Central Bank Bhd v Abdul Razak bin Sheikh Mahmood &

Anor [2003] MLJU 80

Sri Hartamas Development Sdn Bhd v MBF Finance Bhd [1992] 1 MLJ 313 Bludream City Development Sdn Bhd v Pembinaan Bina Bumi Sdn Bhd [2024] 4

MLJ 67 Klass Corporation (M) Sdn Bhd v MKRS Management Sdn Bhd [2018] 9 MLJ 305 Legislation reference 1. Sections 2; 6 (3) and 26 (2) of the Limitation Act 1953 2. Section 466 (1) (a) of the Companies Act 2016 3. Sections 50 and 51 of the Specific Relief Act 1950 4. Section 23 (4) of the UK Limitation Act 1939