Z&Z Bina Sdn Bhd v Concrewall Buildings System (Ibs) Sdn Bhd (WA-24NCC-686-12/2023)

This judgment deals with both Enclosures 1 and 2 filed by the Plaintiff. Essentially, by the 2 Enclosures, the Plaintiff is seeking a Fortuna Injunction to restrain the Defendant from commencing a winding up petition against the Plaintiff based on a statutory demand issued on 28.11.2023 pursuant to section 466 of the Companies Act 2016 (“the Section 466 Notice”).

The Defendant had on 18.7.2016 obtained a judgment against the Plaintiff for the sum of RM 171,784.34 with interest and costs from the Kuala Lumpur Sessions Court in Suit WA-A52C-20-3/2016 (“the Judgment”). The Section 466 Notice was issued to demand payment of the sum as adjudged by the Session Court Judge in the Judgment.

On 14.12.2023, based on a Certificate of Urgency, this Court granted an order in terms of prayer (1) of Enclosure 2 until the inter parte hearing and disposal of both Enclosures 1 and 2.

On 8.2.2024, after hearing submissions from counsel, this Court dismissed both Enclosures 1 and 2 with costs.

The Plaintiff’s main ground for the Fortuna Injunction notwithstanding the Judgment was that the Judgment is a “disputed debt”.

The Judgment is said to be a “disputed debt” because the Plaintiff had filed an appeal against the Judgment (“the Appeal”) on 29.7.2016 and that there is no evidence that the Appeal was not successful.

It was contended that in a letter dated 11.11.2020 from the Kuala Lumpur High Court to the Plaintiff’s former solicitors, the High Court had informed the said solicitors that the deposit for the Appeal was in the process of being returned (“the Letter”). There is no Court order or judgment indicating that the Appeal had been dismissed. Learned counsel for the Plaintiff contended that the fact that the deposit paid for the Appeal was being returned could indicate that the Appeal was successful.

It is unfortunate that the search conducted at the Court Registry could not shed any light on the fate of the Appeal.

Notwithstanding the aforesaid, there is no dispute that the Defendant had on 21.3.2019 obtained an order to execute the Judgment by way of a Writ of Seizure and Sale.

Learned counsel for the Defendant contended that the Court had allowed the Defendant to issue execution by way of the Writ of Seizure and Sale because the Appeal was not proceeded with by the Plaintiff. Indeed, there is no evidence before the Court that the Plaintiff had challenged the Defendant’s right to commence execution proceedings to enforce the Judgment.

Based on the aforesaid, the Defendant contended that the Plaintiff’s application under Enclosures 1 and 2 must be dismissed.

The only issue that this Court has to determine is whether the Judgment remains valid and enforceable. The fact that the Defendant had obtained the Judgment is not disputed. Until and unless set aside on appeal, the Judgment remains valid and enforceable.

It is the Plaintiff who asserts that the Judgment has been set aside on appeal. He who asserts bears the burden of proof. In this regard, this Court is satisfied that the Plaintiff has failed to discharge that burden.

The only piece of evidence put forth in support of its contention that the Appeal was successful is the Letter. However, the fact that the deposit for the Appeal was returned could also mean that the Plaintiff had withdrawn the Appeal.

The Plaintiff did not procure its former solicitors who had conduct of the Appeal to file any affidavit to explain the Letter. Neither did the Plaintiff explain why the Defendant was able to obtain leave of the Sessions Court to commence execution of the Judgment by way of the Writ of Seizure and Sale. Significantly, the Plaintiff did not challenge the Defendant’s right to enforce the Judgment by way of the Writ of Seizure and Sale.

The Plaintiff clearly does not meet the requirements to entitle them to a Fortuna Injunction as established in Pacific & Orient Insurance Co Bhd v Muniammah Muniandy [2010] MLJU 2217 and Mobikom Sdn Bhd v Inmiss Communications Sdn Bhd [2007] 3 MLJ 316.

Accordingly, it is my judgment that the Plaintiff’s applications under the Enclosures 1 and 2 are completely unmeritorious and both applications are to be dismissed with costs. Dated the 29th day of February 2024 ONG CHEE KWAN Judge of the High Court of Malaya High Court of Kuala Lumpur, NCC2 Counsel:

Mr. Dato' R. Kamalanathan together with Mr. Vinod Kamalanathan and Ms. Anis Amirah binti Zakaria for Plaintiff

Ms. Revathi Kannan together with Ms. Thanusheilla Paneerselvam for Defendant

Pacific & Orient Insurance Co Bhd v Muniammah Muniandy [2010] MLJU 2217 2. Mobikom Sdn Bhd v Inmiss Communications Sdn Bhd [2007] 3 MLJ 316

Section 466 of the Companies Act 2016