Aswar, Simon & Azhar

On the court record

The firm's record illustrates the use of the Fortuna injunction to restrain a winding-up petition founded on a disputed debt under the Companies Act 2016, and the application of constructive-trust principles to a commercial letter of arrangement.

Aswar, Simon & Azhar appears in the corpus as counsel in commercial and corporate litigation, argued in the High Court (Mahkamah Tinggi), including on appeal from the Sessions Court, in both English and Bahasa Malaysia.

One matter, argued in Malay, concerned a constructive trust. Acting for the appellant, Pens Holdings Sdn Bhd, the firm appeared in an appeal against a Sessions Court decision where the questions were whether a letter from the appellant created a constructive trust in favour of the respondent, and whether any such constructive trust was subject to a letter of approval by a third party.

In a related matter the firm again acted for Pens Holdings Sdn Bhd, this time as plaintiff, in an application for a Fortuna injunction to restrain a winding-up petition, engaging sections 465 and 466 of the Companies Act 2016, whether the proposed petition had any prospect of success, and whether an injunction might cause damage to the company. The Fortuna injunction is the established means by which a company resists a winding-up petition founded on a genuinely disputed debt, and the matter illustrates its use.

The firm also appeared in a joint-venture dispute involving MindDios Berhad, a company incorporated to venture into the education business as a joint venture between a defendant and other shareholders. There the plaintiff company alleged that the defendant had promised to transfer know-how or intellectual property in education programmes and had failed to do so, causing the plaintiff to incur substantial promotional expenses in reliance on the promise, and appealed to the High Court against the Sessions Court's dismissal of the claim, engaging the plainly-wrong test governing appellate interference. The firm's record is a commercial-litigation practice engaging constructive trusts, insolvency injunctions and joint-venture disputes. A common thread is the enforcement or resistance of promises and arrangements that fall short of a fully documented contract, whether a letter said to create a constructive trust, a disputed debt said to found a winding-up, or an oral undertaking to contribute intellectual property to a joint venture, so that the firm's matters often turn on how the courts hold parties to informal commercial commitments.