A valid judgment debt cannot be deemed disputed, negating grounds for a Fortuna injunction against winding-up proceedings.

JUDGMENT

Liza Chan Sow Keng JC:

Introduction

[1] This Originating Summons ("OS") was filed on 1 March 2022 by the Plaintiff against the Defendant for an injunction to restrain the Defendant from filing, presenting and/or continuing with any petition for winding-up premised on the Statutory Notice of Demand issued by the Defendant pursuant to a s 466 of the Companies Act 2016 (" CA 2016") dated 24 February 2022 and advertising and/or gazetting any petition for winding-up pending the full and final disposal of the Plaintiff's application for a review pursuant to s 80 of the Courts of Judicature Act 1964 and/or r 137 of the Rules of Federal 1995 vide Federal Court Civil Application No: 08(RS)-18-12/2021(W) ("Review Motion").

[2] On 9 March 2022, I had granted an ad interim injunction restraining the Defendant from presenting a winding-up petition against the Plaintiff pending inter partes hearing of the OS.

[3] I had dismissed the OS with costs to the Defendant on 18 April 2022 and given broad reasons for my decision. This judgment contains the full reasons for my decision.

Background

[4] The background facts are culled from the affidavits and submissions of the parties.?

[5] On 21 February 2013, CME as the tenant and Bellajade, the Defendant as the landlord entered into a Tenancy Agreement for CME to rent a 23-storey office building known as Plaza Palas ("the premises") for a period of 3 years ("Tenancy Agreement"). The performance of the Tenancy Agreement was guaranteed by one Tan Sri Dato' Lim Cheng Pow ("TSL").

[6] CME entered into possession of the premises on 21 February 2013 and paid rental for only six months amounting to RM6,110,100.

[7] On 21 January 2014, Bellajade filed an action against CME and TSL for the recovery of the rental arrears in the sum of RM8,401,756.85 and rental for the unexpired tenure of the three year tenancy and interest. CME counterclaimed for the refund of the rental and deposits paid on the basis that the Tenancy Agreement is null and void as it was tainted with illegality ("the counterclaim").

[8] On 20 May 2015, the High Court dismissed Bellajade's claim and allowed CME's counterclaim in Bellajade Sdn Bhd v. CME Group Bhd & Anor, [2015] 7 CLJ 343 HC ("HC Judgment").

[9] Bellajade appealed against the HC Judgment to the Court of Appeal. On 24 August 2016, the Court of Appeal in Bellajade Sdn Bhd v. CME Group Bhd & Anor, [2017] 1 MLJ 92 held the Tenancy Agreement was valid and enforceable, allowed Bellajade's claim against CME and TSL, dismissed CME's counterclaim and set aside the decision of the High Court ("the CA Judgment").?

[10] Thereafter, CME and TSL respectively applied for leave to appeal to the Federal Court. On 13 November 2017, the Federal Court granted leave to appeal and granted a stay of execution of the CA Judgment pending disposal of CME and TSL's appeals to the Federal Court ("the FC Appeals").

[11] On 25 September 2018, the majority of the Federal Court adopted the grounds of decision of Tan Sri Zulkefli, who resigned on 31 July 2018 and allowed the FC Appeals, the Court of Appeal Order dated 24 August 2016 was set aside, and the decision of the High Court was reinstated ("the 25 September 2018 FC decision").

[12] On 2 October 2018, Bellajade applied to review the 25 September 2018 FC decision on the ground of corum failure, which was allowed by the Federal Court on 14 February 2019. The FC Appeals were re-heard by a panel of 5 Federal Court Judges ("the Re-Hearing") on 27 January 2021 and judgment reserved. On 30 September 2021, the Federal Court delivered the decision for the Re-Hearing. The Federal Court ordered CME and TSL to pay Bellajade the balance rental from May 2013 to December 2013 (deducting the rental for June and July 2013 which have been paid) and further rentals from January 2014 to middle of December 2015 only, together with interest ("the FC Judgment") - see Tan Sri Dato' Lim Cheng Pow v. Bellajade Sdn Bhd & Another Appeal, [2021] 10 CLJ 183.

[13] CME filed a Review