The court affirmed that a hybrid originating summons is permissible, and the defendant is entitled to file a winding-up petition based on an adjudication decision.

[1] This originating summons (OS) raises the following three novel questions:

(1) whether the plaintiff company (plaintiff) can file a "hybrid" or "composite" OS which applies for-

(a) an order under s 16(1)(b) of the Construction Industry Payment and Adjudication Act 2012 (CIPAA) to stay an adjudication decision dated 19 April 2019 (AD) made by Mr Khoo Chin Chio (Adjudicator) in favour of the defendant company (defendant) against the plaintiff pending the disposal of an arbitration regarding the dispute between the plaintiff and defendant (Arbitration); and

(b) a Fortuna Injunction to restrain the defendant from presenting a petition to wind up the plaintiff based on the AD. In this respect, is the defendant a creditor of the plaintiff under s 464(1)(b) of the Companies Act 2016 ( CA ) who is entitled to present a winding-up petition against the plaintiff based on the AD?;

(2) whether the court should exercise its discretion pursuant to s 16(1)

(b) CIPAA to stay the AD pending the disposal of the Arbitration (Stay Application); and

(3) if the court dismisses the Stay Application, does the court have the discretionary power to grant a Fortuna Injunction to restrain the defendant from presenting a petition to wind up the plaintiff based on the AD (Fortuna Injunction Application)? If yes, whether the court should exercise its discretion to allow the Fortuna Injunction Application in this case.

Background

[2] By a Letter of Award dated 9 May 2016 (Construction Contract), the plaintiff had appointed the defendant as a sub-contractor to construct an integrated building block in Bangi, Selangor (Project).

[3] The defendant initiated adjudication proceedings against the plaintiff and claimed for payment in respect of work done for the Project under the Construction Contract.

[4] The Adjudicator made the AD as follows, among others:

(1) the plaintiff should pay to the defendant a sum of RM281,136.70 (Adjudicated Sum) on or before 6 May 2019;

(2) the plaintiff should pay to the defendant interest at the rate of 5% per annum on the Adjudicated Sum from 6 May 2019 until full payment of the Adjudicated Sum; and

(3) the plaintiff should pay to the defendant costs of the adjudication proceedings.

[5] Based on the AD, the defendant's solicitors issued a notice dated 8 July 2019 under s 466(1)(a) CA to the plaintiff (Statutory Demand) which demanded the plaintiff to pay to the defendant a sum of RM328,433.04 (as at 8 July 2019) (Demanded Sum) within 21 days from the plaintiff's receipt of the Statutory Demand. The Demanded Sum consisted of, among others, the Adjudicated Sum, costs of adjudication proceedings and interest on the Adjudicated Sum.

Whether This OS Can Lump Together Stay Application And Fortuna Injunction Application?

[6] The defendant's learned counsel, Encik Abdul Rashid Bin Ismail, has contended that the plaintiff cannot file a "hybrid" OS which applies for a stay of the AD pending the disposal of the Arbitration and a Fortuna Injunction. According to Encik Rashid, a stay of the AD pending the disposal of the Arbitration is provided by s 16(1)(b) CIPAA and is different from the court's power to grant a Fortuna Injunction. As such, Encik Rashid has opined that the plaintiff should have filed two OS's, one OS for the Stay Application and another OS regarding the Fortuna Injunction Application.

[7] The plaintiff's learned counsel, Mr Vishal V Kumar, had the candour to admit that he could not find any Malaysian case which could support a hybrid or composite OS in this case.

[8] I am of the view that a hybrid or composite OS can be filed by the plaintiff. My reasons are as follows:

(1) there is nothing in CIPAA, CA , Rules of 2012 (RC) or any other written law which prohibits a hybrid or composite OS;

(2) if a hybrid or composite OS is filed, the court has to decide separately (with reasons) in the OS regarding the St