Back
2019 MarsdenLR 2246
HIGH COURT MALAYA KUALA LUMPUR
IBAI GOLF & COUNTRY CLUB BHD – Appellant
Versus
LAMAN KEJORA SDN BHD – Respondent
[Originating Summons No: WA-24NCC-483-09/2018]
The court ruled that the debt was admitted, negating grounds for issuing an injunction against winding-up proceedings.
Headnote:(1) The applicant seeks to prevent winding-up proceedings by challenging a debt notification under s 466 of the Companies Act 2016 without judgment for said debt. The court assessed whether the debt is disputed on substantial grounds. (2) The primary issue is if the debt is undisputed, influencing the court’s decision to grant or deny the injunction. The court referenced well-established principles from Fortuna Holdings Pty Ltd v. Deputy Federal Commissioner of Taxation regarding the issuance of Fortuna injunctions. (3) The application was dismissed as the plaintiff failed to demonstrate a bona fide dispute over the debt, leading to the conclusion that the injunction sought constituted an abuse of process.
| Table of Content |
|---|
| 1. application for an injunction to restrain winding-up petition. (Para 1 , 2 , 3) |
| 2. distinction between disputed and undisputed debts in context of statutory notice. (Para 4 , 6 , 10) |
| 3. legal basis for granting or denying injunctions under the companies act. (Para 5 , 7 , 8 , 9) |
| 4. estoppel and admission of debt supported by audit confirmation. (Para 22 , 23) |
| 5. conclusion on the admission of debt and court's dismissal of the injunction. (Para 27 , 33) |
| 6. considerations in granting or denying injunctive relief based on fortuna principles. (Para 30) |
[1] This is an application by way of Originating Summons No: WA-24NCC-483-09/2018 ("OS 483") for an injunction to restrain the presentation of a winding-up petition, consequent upon the issuance of a statutory notice by the defendant (through their solicitors) dated 27 August 2018 under s 466 of the Companies Act 2016 (p 167, encl 4) ("the statutory notice") demanding payment from the plaintiff in the sum of RM246,547.00 ("the debt"). The defendant has not filed any legal action against the plaintiff in respect of the debt. As such, the defendant does not have judgment for the debt. The statutory notice reads:
"Re: 1) Your indebtedness to Laman Kejora Sdn Bhd
2) Statutory Notice issued under s 466 of the Companies Act 2016
_____________________________________________________________________
We act for Laman Kejora Sdn Bhd
2. We are instructed by our client that it has advanced you a total sum of RM246,547.00 and that you have failed and/or neglected to repay the same or any part thereof to our client as of to date.
3. In the circumstances, upon our client's instructions and on its behalf, you are hereby required to pay to our client the aforesaid sum of RM246,547.00 or you must secure or compound for it to the reasonable satisfaction of our client within TWENTY-ONE (21) days from the date of receipt of this notice, failing which you shall be deemed to be unable to pay your debts and proceedings will be taken for the Winding-up of your company."
[2] The plaintiff in OS483 is Ibai Golf & Country Club Berhad (Company NO 227542-A) ("the plaintiff"). The plaintiff is a wholly-owned subsidiary of Kuala Ibai Development Sdn Bhd (Company NO 282366-H) ("KIDSB"). The plaintiff's auditor is Messrs Mohamed Asri & Co ("MAC")(p 44, encl 4). It is relevant to mention here that parties had agreed that OS483 will be a "test case" and the outcome of OS483 case will bind several other Originating Summons ("OS") applications of a similar nature which involve advances that were allegedly made to the subsidiaries of KIDSB ("the said agreement").
[3] The OS applications which are within the ambit of the said agreement are:
(a) OS filed in NCC1:
i. OS-24-485-09/2018 ("OS 485")
ii. OS-24-487-09/2018 ("OS 487")
iii. OS-24-489-09/2018 ("OS 489")
iv. OS-24-491-09/2018 ("OS 491")
v. OS-24-493-09/2018 ("OS 493")
vi. OS-24-495-09/2018 ("OS 495")
vii. OS-24-497-09/2018 ("OS 497")
(b) OS filed in NCC2:-
i. OS-24-482-09/2018 ("OS 482")
ii. OS-24-484-09/2018 ("OS 484")
iii. OS-24-486-09/2018 ("OS 486")
iv. OS-24-490-09/2018 ("OS 490")
v. OS-24-492-09/2018 ("OS 492")
vi. OS-24-496-09/2018 ("OS 496")
vii. OS-24-498-09/2018 ("OS 498")
[4] In OS483, the plaintiff seeks to obtain a restraining order against Laman Kejora Sdn Bhd (Company NO 830614-W) ("the defendant") to prevent the presentation of a winding up petition against the plaintiff. The prayers sought in OS483 are:
"1. An injunction restraining the defendant, its servants, agents or otherwise howsoever from filing, presenting, advertising and/or doing any act in relation to a petition to this Honourable Court or any other Court for the winding up of the plaintiff pursuant to a statutory notice of demand dated 27 August 2018 or any other demand for the payment of a sum of RM246,547.00 issued by the defendant under s 466 of the Companies Act 2016 ;
2. An injunction restraining the defendant, its servant, agents or otherwise howsoever from taking or initiating further proc
