A summary judgment remains enforceable until set aside, and a Fortuna injunction cannot restrain winding-up proceedings based on such a judgment.

JUDGMENT

Mohd Radzi Abdul Hamid J:

[Application For Fortuna Injunction]

Introduction

[1] The plaintiff filed an Originating Summons dated 21 January 2025 ["OS"] for a Fortuna injunction to restrain the defendant from commencing winding up proceedings based on a summary judgment obtained by the defendant on 4 September 2023 in Kuala Lumpur High Court Suit No WA-22NCC-399-06/2023 ("Suit 399").

[2] The basis for the Fortuna is that the plaintiff had appealed to the Court of Appeal on 20 September 2023 against the summary judgment. The appeal has not been heard when this OS was heard before me.

[3] The plaintiff meanwhile had applied for a stay of execution of the summary judgment at both the High Court and Court of Appeal but both applications were dismissed. [See supporting affidavit encl 2 at paragraph 18].

[4] Premised on the above facts, I dismissed the OS on 24 January 2025 as it is trite law that a summary judgment is enforceable as a judgment unless it is stayed pending appeal or set aside on appeal.

[5] The fact that there is a pending appeal does not preclude the judgment creditor ie 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. In fact, it is an abuse of process and an utter waste of the Court 's precious time for the judgment debtor, ie the plaintiff here, to file proceedings for a Fortuna injunction.

[6] The plaintiff has appealed to the Court of Appeal on 28 January 2025 against my decision.

[7] These are my Grounds of Judgment containing my reasons to dismiss the plaintiff's application for a Fortuna injunction.

On Correct Nomenclature

[8] The OS identifies the parties as applicant and respondent. The correct designations are plaintiff and defendant as this is an OS and not an ex parte OS. If it is an ex parte OS then the party filing it is described as the applicant. [See O 7 r 2 of the Rules of 2012]. For good order, I shall identify the parties as plaintiff and defendant.

Material Facts

[9] The key facts are limited in number and can be summarised as follows.

[10] Pursuant to various agreements, the plaintiff was appointed by the defendant since 15 August 2011 as the Food and Beverage operator and manager for, inter alia, the Revolving Restaurant (Atmosphere 360) in the Kuala Lumpur Tower. [See supporting affidavit at para 4].

[11] Pursuant to a change in management of the Kuala Lumpur Tower, the new management issued a letter dated 10 November 2022 terminating the plaintiff as the Food and Beverage operator and manager of the Kuala Lumpur Tower.

[12] The plaintiff and defendant subsequently agreed to extend the tenancy until 30 June 2023 due to advanced bookings to dine at the Revolving Restaurant (Atmosphere 360) already made by members of the public. [See supporting affidavit at para 10 and Exhibit "KFC-6" at p 218].

[13] Twenty-one days before the expiry of the tenancy, the plaintiff commenced Suit 399 against the defendant and a company called Hydroshoppe Sdn Bhd along with an application for interim injunction to prevent the "eviction" of the plaintiff.

[14] The defendant filed its Defence and Counterclaim for, inter alia, the plaintiff to surrender vacant possession of the demised premises as the tenancy would expire on 30 June 2023.

[15] The defendant filed an application for Summary Judgment of its Counterclaim which was granted with the following orders:

i. The tenancy has expired on 30 June 2023;

ii. The plaintiff has been unlawfully holding over the Demised Premises since 1 July 2023;

iii. The plaintiff is liable to pay double rental from 1 July 2023 until the date the plaintiff surrenders vacant possession;

iv. The plaintiff shall pay the sum of RM 421,950.00 being the amount outstanding for rental and charges for June 2023; and

v. Costs of RM 5,000.00 subject to allocatur.

[For the Order see the supporting affidavit at pp 34 - 39].

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