A court may grant an Erinford injunction to preserve the status quo pending appeal, even if a substantive interim injunction was previously denied, especially to prevent irreparable harm.

JUDGMENT

Alice Loke Yee Ching JC:

Introduction

[1] On 27 April 2021, this Court dismissed the Plaintiff's application for a Fortuna Injunction to restrain the Defendant from presenting, advertising, gazetting a petition for winding up until the disposal of several proceedings between the parties, namely civil suit filed vide BA-22NCVC-85-02/2021, the arbitration proceedings commenced by the Plaintiff, and the Plaintiff's appeal in the Court of Appeal filed on 14 October 2020. The Plaintiff has since filed an appeal against the dismissal of the Fortuna Injunction.

[2] The Plaintiff then filed the present application [enclosure 27] on 28 April 2021 for an Erinford Injunction accompanied with a Certificate of Urgency.

[3] The Erinford Injunction is sought to restrain the Defendant from advertising, gazetting and/or prosecuting the winding up petition pending the disposal of the Plaintiff's appeal to the Court of Appeal against the dismissal of the Plaintiff's application for a Fortuna Injunction.

Background Facts

[4] On 22 January 2013, the Government of Malaysia appointed a consortium known as the Skypark Link Sdn Bhd-Lion Pacific Sdn Bhd Consortium ("Consortium") for the design, construction, equipping and maintenance of a project known as Project Landasan Keretapi dari Subang ke Terminal Skypark Subang Fasa 1.

[5] The Consortium then appointed the Plaintiff as the sub-contractor for the System Works Package for the Project ("Works"). The Plaintiff in turn appointed the Defendant as a sub-sub contractor pursuant to an agreement dated 24 November 2014, to execute and complete the Works for an agreed sum of RM42,300,000.00.

[6] A dispute then arose between the parties in relation to the payment for the Defendant's execution of the Works, causing the Defendant to commence adjudication proceedings for the sum of RM24,902,980.45. On 30 October 2019 the adjudicator adjudged the Plaintiff liable for the sum of RM12,522,732.71, interests and costs. ("CIPAA decision").

[7] On 20 February 2020, the Plaintiff applied to set aside and stay the CIPAA decision. The Defendant on the other hand, sought to enforce the CIPAA decision by filing an application in the same suit on 23 July 2020.

[8] On 29 September 2020, the High Court Judge allowed the Defendant's enforcement application ("Enforcement Order") but dismissed the Plaintiff's applications. The Plaintiff appealed against the High Court's decision to the Court of Appeal and the appeals have now been fixed for hearing on 27 October 2021.

[9] Pending the hearing of the appeals, the Plaintiff applied for a stay of the execution of the Enforcement Order, but was refused by the High Court on 26 November 2020. The Plaintiff then applied for an interim order under s 44 Courts of Judicature Act 1964 to stay the execution of the Enforcement Order. The application was refused by the Court of Appeal on 19 January 2021.

[10] On 8 February 2021, the Defendant issued a demand notice pursuant to s 465(1)(e) and 466(1)(a) and (2) of the Companies Act , 2016 for the sum of RM13,841,691.60 calculated as at 8 February 2021.

[11] To prevent the Defendant from proceeding to file a winding up petition, the Plaintiff applied to this Court for a Fortuna injunction. Upon the dismissal of the Plaintiff's application, the Defendant filed a winding up petition the following day on 28 April 2021, vide Petition No BA-28NCC-213-04/2021.

Decision Of This Court

[12] The Erinford Injunction applied for is principally to preserve the integrity of the appeal in respect of the Fortuna Injunction. The status quo of the parties would then be maintained until final determination of the appeal.

[13] The fact that the Fortuna Injunction was dismissed is no bar to this Court granting an Erinford Injunction. In Subashini Rajasingam v. Saravanan Thangathoray and other appeals, 2008 MarsdenLR 4185 , the Federal Court held,

[28] The learned judicial commissioner in granting the Erinford injunction was of the view that on the balance of convenienc