ASIAN KITCHEN (M) SDN BHD v MENARA KUALA LUMPUR SDN BHD

wa-24ncc-38-01-2025 High Court (Mahkamah Tinggi) 23 January 2025 • WA-24NCC-38-01/2025

Catchwords

a Fortuna injunction to restrain the defendant from commencing winding up proceedings based on a summary judgment -a pending appeal does not preclude the judgment creditor i.e. the defendant here from presenting a winding-up petition. No court will grant a Fortuna injunction to restrain the judgment creditor from commencing winding up proceedings based on a summary judgment that has not been stayed-If it is an ex parte OS then the party filing it is described as the applicant-A Fortuna injunction is the name given to a type of injunction applied by a plaintiff to restrain the filing of an intended winding up petition or if filed, its further prosecution. This is because the presentation of the petition will produce irreparable damage to the plaintiff company-The presentation of a winding up petition may be restrained by injunction where its presentation, or if presented its further continuation, would amount to an abuse of the process of the court. The application of this principle has two branches-The first branch applies in cases where the presentation or continuation of the petition might produce irreparable damage to the plaintiff company and where the petition has no chance of success. This branch will apply if the defendant has no locus standi to file a petition or does not satisfy the statutory requirements under the Companies Act 2016 to file a winding -up petition-The second branch applies in cases where a defendant proposing to present a petition has chosen to assert a disputed claim, by a procedure which might produce irreparable damage to the plaintiff company, rather than by a suitable alternative procedure-A party who has a court Judgment which has not been stayed is entitled to present a winding-up petition based on the Judgment. The filing of an appeal against the said judgment does not make it a disputed debt. The court will not grant a Fortuna injunction to restrain the presentation of a winding-up petition based on a judgment-A summary judgment remains regular and enforceable until it is set aside on appeal. The fact that there is a pending appeal does not make it a disputed debt. A judgment creditor is entitled to present a winding-up petition based on the summary judgment-The court will not grant a Fortuna injunction to restrain the presentation of a winding-up petition based on a summary judgment-A party who has an Adjudication Decision made under the CIPAA in its favour is entitled to present a winding-up petition based on the Adjudication Decision. There is no requirement to register the Adjudication Decision in court prior to presenting the petition-A party who has an Adjudication Decision made under the CIPAA in its favour is entitled to present a winding-up petition based on the Adjudication Decision. The court will not grant a Fortuna injunction to restrain the presentation of the winding-up petition-As long as the debt cannot be disputed, it is not consequence whether or not it will cause irreparable damage to the company, if presented. A valid and enforceable judgment of court as in the present case, (unless set aside or stayed) cannot be considered a disputed debt-a cross-claim or counterclaim by a respondent cannot be used to defeat a winding-up petition filed based on a summary judgment obtained by the petitioner-

Practice Areas

a Fortuna injunction to restrain the defendant from commencing winding up proceedings based on a summary judgment -a pending appeal does not preclude the judgment creditor i.e. the defendant here from presenting a winding-up petition. No court will grant a Fortuna injunction to restrain the judgment creditor from commencing winding up proceedings based on a summary judgment that has not been stayed-If it is an ex parte OS then the party filing it is described as the applicant-A Fortuna injunction is the name given to a type of injunction applied by a plaintiff to restrain the filing of an intended winding up petition or if filed, its further prosecution. This is because the presentation of the petition will produce irreparable damage to the plaintiff company-The presentation of a winding up petition may be restrained by injunction where its presentation, or if presented its further continuation, would amount to an abuse of the process of the court. The application of this principle has two branches-The first branch applies in cases where the presentation or continuation of the petition might produce irreparable damage to the plaintiff company and where the petition has no chance of success. This branch will apply if the defendant has no locus standi to file a petition or does not satisfy the statutory requirements under the Companies Act 2016 to file a winding -up petition-The second branch applies in cases where a defendant proposing to present a petition has chosen to assert a disputed claim, by a procedure which might produce irreparable damage to the plaintiff company, rather than by a suitable alternative procedure-A party who has a court Judgment which has not been stayed is entitled to present a winding-up petition based on the Judgment. The filing of an appeal against the said judgment does not make it a disputed debt. The court will not grant a Fortuna injunction to restrain the presentation of a winding-up petition based on a judgment-A summary judgment remains regular and enforceable until it is set aside on appeal. The fact that there is a pending appeal does not make it a disputed debt. A judgment creditor is entitled to present a winding-up petition based on the summary judgment-The court will not grant a Fortuna injunction to restrain the presentation of a winding-up petition based on a summary judgment-A party who has an Adjudication Decision made under the CIPAA in its favour is entitled to present a winding-up petition based on the Adjudication Decision. There is no requirement to register the Adjudication Decision in court prior to presenting the petition-A party who has an Adjudication Decision made under the CIPAA in its favour is entitled to present a winding-up petition based on the Adjudication Decision. The court will not grant a Fortuna injunction to restrain the presentation of the winding-up petition-As long as the debt cannot be disputed, it is not consequence whether or not it will cause irreparable damage to the company, if presented. A valid and enforceable judgment of court as in the present case, (unless set aside or stayed) cannot be considered a disputed debt-a cross-claim or counterclaim by a respondent cannot be used to defeat a winding-up petition filed based on a summary judgment obtained by the petitioner-

Judges (1)

Leong Wai Hong Delivered

Parties (2)

ASIAN KITCHEN Sdn Bhd Applicant MENARA KUALA LUMPUR Sdn Bhd Respondent

Case Significance

ASIAN KITCHEN (M) SDN BHD v MENARA KUALA LUMPUR SDN BHD is a High Court (Mahkamah Tinggi) decision dated January 23, 2025 (citation: wa-24ncc-38-01-2025). The case was decided by Leong Wai Hong.

What was the outcome of ASIAN KITCHEN (M) SDN BHD v MENARA KUALA LUMPUR SDN BHD?

ASIAN KITCHEN (M) SDN BHD v MENARA KUALA LUMPUR SDN BHD is a High Court decision dated January 23, 2025. The case was heard by Leong Wai Hong. See the full judgment for details.