A Fortuna injunction may be granted to restrain the presentation of a winding-up petition based on a judgment debt that is disputed due to a stay order, preventing abuse of process.

[1] This is an application for a Fortuna injunction to restrain the presentation of a winding-up petition. The Plaintiff in this application is Sanjung Suria Sdn Bhd ("SSSB") and the injunction is sought as against the Defendant, PLB-KH Bina Sdn Bhd ("PKBSB"). For convenience, I have in this judgment, referred to the parties by their abbreviated name, ie, the Plaintiff herein has been referred to as "SSSB" and the Defendant as "PKBSB". This is to avoid confusion because SSSB and PKBSB wear different hats in another action which I will be referring to shortly.

The Background

[2] Previously, in Penang High Court Suit No: 22-227-2009 ("the suit") PKBSB, as the Plaintiff, had sued SSSB for the recovery of certain sums of money. After a full trial, judgment was entered in favour of PKBSB for a sum of RM1,696,862.70, excluding interest and costs ("the judgment"). The Judgment is dated 8th November 2012. SSSB lodged an appeal to the Court of Appeal by way of Civil Appeal No: P-02-2936-12-2012 ("the appeal"). The appeal is still pending. On 31st January 2013, pursuant to an application made by SSSB, the High Court granted a stay of execution or enforcement in respect of the Judgment ("the stay order").

[3] In most cases, the matter would have ended there and the judgment creditor would have taken no further steps vis-a-vis the judgment other than to await the outcome of the appeal. But regretably, that did not happen in this case. On the very same day when a stay order was made by the Court, PKBSB served a notice under s 218(1)(e) of the Companies Act 1965 ("the 218 Notice") giving SSSB 21 days to pay the amounts ordered under the judgment.

[4] This prompted SSSB to move this Court by an originating summons for injunctive and other reliefs. The application was filed on 15th February 2013 which was well within the 21 day period stipulated in the 218 Notice. As I said earlier, principally SSSB has sought to obtain an injunction to restrain PKBSB from presenting a winding-up petition.

[5] For completeness, I should mention that PKBSB had lodged an appeal against the stay order. At the time when the decision was made by this Court in respect SSSB's application the fate of PKBSB's appeal against the stay order was not known as the appeal had yet to be disposed off.

The Suit

[6] The dispute which originated between the parties and which culminated in the judgment arose out of an agreement dated 11th Oct 2006, ("the 1st Agreement"), wherein SSSB agreed to sell and PKBSB agreed to purchase land owned by SSSB, known as Lot 2767, Bandar Kulim, Kedah ("the said land") at the price of RM11,312,418.00 subject to the terms and conditions contained therein. Pursuant to the 1st Agreement, PKBSB paid a deposit of RM1,696,862.70 ("the deposit") to account of the purchase price leaving the balance thereof to be paid on the completion date stated therein.

[7] Subsequently, the parties entered into an Agreement dated 28th June 2007 ("the 2nd Agreement") to rescind the 1st Agreement subject to the terms and conditions contained therein, whereby SSSB was required to refund the deposit to PKBSB upon the happening of certain specified events as provided for under the 2nd Agreement. PKBSB maintaine