TTDI KL METROPOLIS SDN BHD v China Construction Yangtze River (Malaysia) Sdn Bhd (WA-24NCC-45-01/2026)

The Plaintiff filed this Originating Summons on 21-1-2026 (Enclosure 1) together with an ex-parte Notice of Application for interim injunction (Enclosure 2), both aimed at securing a Fortuna Injunction to restrain the Defendant from presenting or continuing with a winding up petition against the Plaintiff.

Enclosure 2 was withdrawn and struck off on the Defendant’s undertaking not to proceed with the gazetting of the Winding Up Petition pending the disposal of Enclosure

These are the Court’s grounds of Judgment for dismissing Enclosure 1. Background facts

The Defendant was the Plaintiff’s main contractor in a construction project that fell into dispute. It was a mixed development project with a contract sum of RM620,869,686.86. According to the Defendant, Certificates of Completion and Compliance were issued on 22-10-2024 for 2 of the towers constructed, and the third tower was handed over in late 2024.

The Defendant commenced adjudication for payment claims under the Construction Industry Payment and Adjudication Act 2012 (“CIPAA”) and successfully obtained an Adjudication Decision dated 27-11-2025 in Adjudication Case No. AIAC/D/ADJ-5990- 2025 (“Adjudication Decision”). The adjudicator allowed various payment claims, together with interest and costs, totalling RM21,251,303.48 as at 15-12-2025.

According to the Plaintiff, it has substantial cross claims for loss and damages and liquidated ascertained damages. However, the Plaintiff has so far unsuccessfully called on the Defendant’s performance bond. On 4-12-2025, the Court of Appeal allowed an Erinford Injunction to restrain the Plaintiff from receiving the proceeds of the bond following its call on the bond for payment of RM31,043,484.34. The Erinford Injunction was granted pending the Defendant’s appeal against the High Court’s decision on 28- 11-2025 dismissing Originating Summons No: WA-24C(ARB)-20- 06/2025 for the same injunction (“Performance Bond OS”).

Against the above backdrop, the Defendant issued a statutory notice of demand under sections 465 and 466 of the Companies Act 2016 to the Plaintiff on 15-12-2025 to demand payment of RM21,251,303.48 based on the Adjudication Decision (“Statutory Notice”). Following its receipt, the Plaintiff applied to set aside the Adjudication Decision in Originating Summons No: WA-24C-204- 12/2025 on 29-12-2025 (“Setting Aside OS”).

Although the Plaintiff also filed an application for a stay of the Adjudication Decision in the Setting Aside OS on 8-1-2026, it did not act in time, and the 21-day notice in the Statutory Notice expired without a stay or setting aside of the Adjudication Decision. A winding up petition was presented vide KL High Court Companies (Winding Up) Petition No: WA-28NCC-35-01/2026 (“Winding Up Petition”) on 12-1-2026.

On 16-1-2026, the Plaintiff commenced arbitration against the Defendant and claimed sums close to RM500 million (RM168,507,945.77 in loss and damages and RM303,971,945.00 in liquidated ascertained damages) (“Arbitration”). Analysis and findings The law on Fortuna Injunctions

For a Fortuna Injunction to lie, the Plaintiff must prove that the intended winding up petition has no chance of success as a matter of law as well as a matter of fact; and the presentation of such petition (which has no chance of success) might produce irreparable damage to the company (Pacific & Orient Insurance Co Bhd v Muniammah Muniandy [2011] 1 CLJ 947).

Before a winding up petition may be stayed or dismissed for having no chance of success, the debt comprising the subject matter of the winding up petition must be disputed on genuine and substantial grounds (Tan Kok Tong v Hoe Hong Trading Co Sdn Bhd [2007] 2 CLJ 305) and in this context, the Court of Appeal in Bluedream City Development Sdn Bhd v Pembinaan Bina Bumi Sdn Bhd [2024] 4 MLJ 67 (“Bluedream”) held as follows: “[39] For winding up proceeding based on unpaid construction payment debts arising after the advent of the CIPAA particularly where the debt is based on an adjudicated decision, it is our view critical to properly understand the notion of disputability of the debt. Put in another way, disputability must be seen in its proper context. In this regard, we hold that an unpaid debt unadjudicated in a CIPAA proceeding will be disputable if the non-paying party has prima facie established a bona fide dispute of the debt on substantial or reasonable grounds. However, if the dispute on the debt has been adjudicated which resulted in an adjudication decision obtained in favour of the unpaid party, the debt ceases to be disputable in an ensuing winding up proceeding. This is because the disputed debt has been independently adjudicated by a neutral third party. More pertinently, it should not be open to the non-paying party to again dispute the debt when the sanctity of the adjudication decision has been preserved by the subsequent court orders refusing to set aside and/or stay as well as allowing enforcement of the adjudication decision as a judgment pursuant to ss. 27, 16 and 28 CIPAA respectively. Consequently, it is immaterial in the winding up court that the non-paying still disputes the adjudicated debt and has referred the dispute to arbitration or the court for final determination; see Barisan Performa Sdn Bhd v. Hype Park City Sdn Bhd [2018] MLJU 10. The disputability of the dispute can only be done in the arbitration or the court to enable the parties to finally re-contest the dispute de novo unabated by the adjudication decision as well as without attracting res judicata because the adjudication decision enjoyed temporary but not perpetual finality; see G-Pile System Sdn Bhd v. CMMC Sdn Bhd and Anor [2021] 1 LNS 1727.” [Emphasis added]

The main thrust of the Plaintiff’s argument is that pending determination of the Setting Aside OS, the adjudicated sums under the Adjudication Decision must be regarded as still disputable and therefore, a Fortuna Injunction should be granted by this Court.

Counsel for the Plaintiff sought to distinguish Bluedream on the facts i.e. that the adjudication decision in Bluedream had been enforced pursuant to section 28 of CIPAA on failure to set it aside. The Plaintiff contended that, read in the context of its facts, it is the sentence following the highlighted passage in the above extract that is most material, i.e.: “More pertinently, it should not be open to the non-paying party to again dispute the debt when the sanctity of the adjudication decision has been preserved by the subsequent court orders refusing to set aside and/or stay as well as allowing enforcement of the adjudication decision as a judgment pursuant to ss. 27, 16 and 28 CIPAA respectively.”

If the failure to resist adjudication proceedings is strike 1, and the failure to set aside, stay or resist enforcement proceedings under sections 26, 16 and 28 of CIPAA is strike 2, then according to the Plaintiff, when the Court of Appeal in Bluedream closed the door to the non-paying party to again dispute the debt, it is necessarily referring to another round of dispute after strike 2 and not before.

This Court does not agree with the above analysis of Bluedream and considers that when read in totality, it is clear that the Court of Appeal had sought to give effect to the policy behind CIPAA by elevating the status of a debt after it has been adjudicated by an independent third party and crystallised into an adjudication decision.

Bluedream speaks of the “sanctity of the adjudication decision” after strike 1, which is preserved after strike

In other words, it is not the failure to set aside or stay it, nor the successful enforcement of the adjudication decision, that renders the adjudication decision sacrosanct. This is also fortified by Likas Bay Precinct Sdn Bhd v Bina Puri Sdn Bhd [2019] 3 CLJ 499, where the Court of Appeal made it clear that registration of an adjudication decision for enforcement under Section 28 of the CIPA Act is not a requirement to present a winding up petition.

This Court therefore considers itself bound by Bluedream and find that the Adjudication Decision is not disputable in winding up proceedings. Irreparable damage

The second principle is that a Fortuna Injunction may be granted in cases where the presentation of a winding up petition might produce irreparable damage to the company. The Plaintiff described this perceived damage, but did not address the established law that this factor may not feature in cases where the debt in question is undisputed.

If the debt cannot be disputed, it is of no consequence whether or not it will cause irreparable damage, if presented (Pacific & Orient Insurance Co Bhd v Muniammah Muniandy [2011] 1 CLJ 947). Injunction after Winding Up Petition is filed

In this case, the Defendant also raised an issue of the Court’s jurisdiction to grant a Fortuna Injunction after the presentation of the Winding Up Petition, referring to the Court of Appeal decision in People Realty Sdn Bhd v Red Rock Construction Sdn Bhd [2008] 1 CLJ 632 (“People Realty”) held as follows: “In our judgment, once a winding up petition is filed, the court is precluded from granting an injunction against advertisement or gazettal of the petition. In this regard, we agree with Vincent Ng J (later JCA) in Azman & Tay Associates Sdn Bhd v. Sentul Raya Sdn Bhd [2002] 4 CLJ 391 at p 396 where he said: I would hold that the court is not empowered to make any order to restrain or injunct the petitioners from carrying out their statutory obligation to comply with r. 24. Therefore, the appellant is not entitled to the injunctive relief prayed for as the appellant's cross-claim for damages was purely monetary in nature; there was nothing to be preserved by the grant of the injunction and indeed, there is no evidence of any irreparable harm. Thus, the learned judge was right in dismissing the motion with costs.”

Both People Realty and the authority that it cited were decided in the context of the winding up petition itself. It held that under section 221 of the Companies Act 1965, the court’s power to dismiss or stay a petition is restricted to the hearing of the petition and because Rule 24 of the Companies (Winding Up) Rules 1972 imposes a mandatory rather than directory requirement to advertise and gazette a petition once it is filed, the Court is not empowered to grant an injunction to restrain a petitioner from fulfilling this statutory obligation.

In the context of a Fortuna Injunction, the High Court in Permata Trans Offshore Sdn Bhd v New Wing Energy Sdn Bhd [2019] CLJU 1273 (“Permata Trans”) reviewed the authorities and held that the decision in People Realty was correct on its facts, but did not construe it to mean that the winding up court may never grant an injunction, stay proceedings or strike it out prior to the hearing of the Petition, if there is an abuse of process.

Permata Trans held that after a winding up petition has been presented, the company may apply to the winding up court for appropriate reliefs if it believes that the petition is an abuse of the court process, as the winding up court is already seized of the matter. Pertinently, it dealt with the question of forum in this way: “[34] Quite apart from the fact that the company has access to the same if not more options before the winding up court to prevent an abuse of the court process, another reason why any application seeking reliefs from the abuse of process should rightfully be made before the winding up court after a winding up petition has been filed is because the applications that are made before the winding up court for an injunction or stay or striking out may be subject to different legal principles from the principles applicable in an application for a Fortuna Injunction before a civil court. … [37] …Suffice is it to state that there are sound reasons for the civil courts not to exercise the jurisdiction to grant an injunction after the winding up petition has been presented. Whilst they may be no jurisdictional bar for the civil courts to grant an injunction after the winding up petition has been filed, it should only be exercised in rare and exceptional cases where it is not expedient or if irreparable harm will be suffered by the company if it is required to file its application for the injunction before the winding up court.” [Emphasis added]

On this point, this Court finds that the preponderance of authority supports the proposition that once a winding up petition has been presented, the proper recourse for the party wishing to restrain the winding up proceedings is to file any necessary application for injunctive relief before the winding up Court, rather than commencing a separate action in another court for such injunction. See WRP Asia Pacific Sdn Bhd v Ahmad Zul-Qarnain bin Ibrahim [2024] MLJU 2738 and WH Electrical Marketing (M) Sdn Bhd v Kenwingston Sdn Bhd [2024] MLJU 2210.

It was brought to this Court’s attention that before Enclosure 1 was even filed on 21-1-2026 in this case, the Winding Up Petition had not only been filed and served, but also advertised. There were no facts presented by the Plaintiff why it did not see fit to seek an injunction to restrain any further pursuit of the Winding Up Petition on its complaint of abuse of process in the Winding Up Court itself.

As such, this Court found it entirely improper for the Plaintiff to have commenced parallel proceedings here, to seek the assistance of this Court to restrain ongoing proceedings in another High Court.

For the above reasons, this Court dismissed Enclosure 1 with costs of RM10,000.00.

This Court also dismissed an oral application by the Plaintiff for an Erinford Injunction on 6-3-2026 pending an appeal by the Plaintiff to the Court of Appeal. A formal application filed and heard on 13- 3-2026 was similarly dismissed with costs of RM5,000.00. Bertarikh: 23 Mac 2026 ELAINE YAP CHIN GAIK PESURUHJAYA KEHAKIMAN MAHKAMAH TINGGI MALAYA KUALA LUMPUR Peguam: Untuk Plaintif: Oon Khai Yue (Hazelyn Khoo Hui Ying bersamanya) Tetuan Lee & Poh Partnership Untuk Defendan: Choon Hon Leng (Khor Yongshi dan Wang Siew Woon bersamanya)