PERUSAHAAN OTOMOBIL NASIONAL SDN BHD v VICTORIOUS STEP SDN BHD

Case Significance

A clear application of the Fortuna-injunction principles under the Companies Act 2016: where a debt underlying a statutory demand is bona fide disputed and the company is not shown to be commercially insolvent, winding-up is not the proper forum and presentation of a petition will be restrained.

This High Court decision at Shah Alam concerns an application for a Fortuna injunction to restrain the presentation of a winding-up petition founded on a disputed debt. The plaintiff, Perusahaan Otomobil Nasional Sdn Bhd, sought the injunction after the defendant, Victorious Step Sdn Bhd, issued a statutory demand (Notis Tuntutan Berkanun) dated 17 July 2025 under section 466(1) of the Companies Act 2016 demanding payment of RM643,044.59 (the debt the plaintiff disputed) and threatening to present a winding-up petition. The plaintiff contended that the debt was genuinely disputed on bona fide grounds, that it held a cross-claim (Tuntutan Silang) of RM1,688,853.43 — which it said the defendant had acknowledged — exceeding the demanded sum, that it was commercially solvent ("solven secara komersial") with realisable assets, and that presentation of a petition would cause irreparable harm to its reputation and business. The court restated the principles governing Fortuna injunctions and the meaning of "unable to pay its debts" under the Companies Act, adopting the commercial-insolvency test discussed in Lafarge Concrete (Malaysia) Sdn Bhd v Gold Trend Builders and the older authorities on the phrase. The court found that the debt claimed remained in dispute and that the dispute was bona fide ("hutang yang dituntut itu masih dalam pertikaian dan pertikaian itu adalah bona fide"), so that a winding-up petition was not the appropriate forum to resolve it. It also held that the defendant had failed to prove that the plaintiff was unable to pay its debts, and that a statutory demand was not the proper course where an alternative procedure to recover the sum existed. The court further weighed that the plaintiff had offered to deposit the disputed sum into its solicitors' client account if required, and that a winding-up petition would risk serious and irreparable harm to the plaintiff's reputation and operations wholly out of proportion to a genuinely contested debt. The court allowed the originating summons for a Fortuna injunction with costs.