A winding-up petition cannot be restrained if the debt is undisputed, and concerns of irreparable damage are irrelevant in such cases.

Wan Muhammad Amin Wan Yahya J:

[1] This is the Plaintiff's second application for a Fortuna injunction against the Defendant ("this Application"). The Plaintiff's first Fortuna application via Originating Summons No WA-24NCC- 141-03/2024 ("First Fortuna Application") sought to restrain the Defendant from filing a winding up petition based on a statutory notice dated 29 February 2024, which was premised on a Corrected Adjudication Decision dated 20 February 2024. I dismissed the First Fortuna Application on 7 May 2024, finding that the Plaintiff had failed to establish the necessary grounds for a Fortuna injunction.

[2] The present application now seeks an order that the Defendant, whether by itself, its agents, officers, or servants, or any of them or otherwise, be restrained from filing a petition to wind up the Plaintiff based on a fresh statutory notice dated 24 October 2024 ("October Statutory Notice") and/or various High Court orders.

[3] Having considered the submissions and evidence put forth by both parties, I find that this Application ought to be dismissed for reasons that will be elaborated below.

A] Salient Background Facts

[4] The Plaintiff is the employer of a project commonly known as the Agile Mont Kiara Project ("the Project"). By way of a letter of award dated 9 December 2016 ("Letter of Award"), the Plaintiff appointed the Defendant as the main contractor to carry out construction works for the Project.

[5] The Defendant carried out the works and on 15 July 2021, the Architect issued the Certificate of Practical Completion ("CPC") certifying that the works had been completed on 10 July 2021. Despite the issuance of the CPC, the Plaintiff alleged that the works were delayed and defective.

[6] Due to the Plaintiff's failure to pay the Defendant, the Defendant issued a Payment Claim dated 3 October 2023 pursuant to the Construction Industry Payment and Adjudication Act 2012 ("CIPAA") against the Plaintiff.

[7] The Defendant then commenced adjudication proceedings pursuant to CIPAA against the Plaintiff for payment of sums due. In the adjudication proceedings, the Plaintiff contended that:

i) It had allegedly made a payment of RM29,142,007.70 to the Defendant for Interim Certificates No 35 to 49;

ii) The Defendant's progress of works was allegedly slow, and therefore the Plaintiff was entitled to impose liquidated damages on the Defendant;

iii) The Plaintiff had allegedly made payments on behalf of the Defendant to the Defendant's sub-contractors; and

iv) Defendant had allegedly failed to attend to defect rectification works, and the Plaintiff had allegedly expended costs to attend to the defect rectification works.

[8] After considering both parties' submissions and clarifications, the Adjudicator issued a Corrected Adjudication Decision on 20 February 2024 ("Corrected AD"), awarding the Defendant:

i) The principal sum of RM59,304,233.53, being the sum due under Interim Certificates No 35 to 49 (RM84,050,170.91) less set-offs allowed (RM24,745,937.38);

ii) Costs of RM30,000.00;

iii) Costs of the adjudication proceedings in the sum of RM59,184.14; and

iv) Interest at the rate of 5% per annum calculated from the date of the Corrected AD until the realisation of the principal sum.

[9] On 29 February 2024, the Defendant's solicitors issued a statutory notice ("February Statutory Notice") to the Plaintiff demanding payment of the adjudicated sum. The 21-day period expired on 21 March 2024.

[10] Shortly before the expiry of the February Statutory Notice, the Plaintiff:

i) Issued a Notice of Arbitration on 18 March 2024; and

ii) Made applications to set aside and to stay the Corrected AD on 20 March 2024.

[11] The Plaintiff then filed the First Fortuna Application to restrain the Defendant from filing a winding up petition based on the February Statutory Notice.

[12] The chronology of events thereafter is as follows:

i) 7 May 2024: The High Court dismissed the First Fortuna Application.

ii) 8 May 2024: The Plaintiff applied for an E