A Fortuna injunction may be granted if a bona fide dispute about the debt exists, particularly when legal irregularities arise from concepts of estate agency.

[1] This is an application for an injunction filed by the plaintiff to restrain the defendants from presenting a winding-up petition under s 465 of the Companies Act 2016 against the plaintiff. At the conclusion of the hearing, I allowed the application and highlighted the main reasons for the same. This judgment contains the full reasons for my decision, which reiterates the principles governing applications of Fortuna injunctions by reference to the winding-up provisions in the new .

Key Background Facts

[2] The plaintiff is a property developer and a wholly owned subsidiary of a public listed company. The plaintiff engaged the defendants, who are partners in a partnership, as the marketing agents for the project known as Liberty @ ARC, in Ampang Ukay, being developed by the plaintiff ("the Project").

[3] The appointment of the defendants as the marketing agents is documented in two letters. The first was dated 15 October 2015, for a term of appointment from 15 October 2015 until 31 March 2016. This letter was issued by one Curah Bahagia Sdn Bhd, the proprietor of the land for the Project, and also a wholly owned subsidiary of the same listed company. The other letter was issued by the plaintiff on 1 April 2016, extending the term of appointment from 1 April 2016 to 31 December 2016.

[4] The defendants had managed to cause the sale of 44 units of properties in the Project.

[5] In return, the plaintiff had made four payments of a total amount of RM128,596.65 as commission fees to the defendants.

[6] After several requests from the defendants to the plaintiff for what the former claimed to be the outstanding sum of further commission fees of RM343,847.48 in respect of 32 units at the Project went unheeded, the defendants through their solicitors, issued a statutory demand in a winding- up notice under s 465(1)(e) and (h) of the Companies Act 2016 dated 28 November 2017 demanding payment of the said sum within the requisite period of 21 days.

[7] The plaintiff disputed the alleged debt owed by it to the defendants and demanded the withdrawal of the notice by the defendants. The latter refused. This then swiftly led to the plaintiff filing an application to restrain the service of a winding-up petition against it.

[8] Hence, the proceedings now before me.

Summary Of Contentions Of Parties

[9] The plaintiff anchors its application on a number of grounds which are not uncommonly proffered by applicants for injunctions intended to prevent the filing of winding-up petitions. First, the plaintiff contended that there is a bona fide dispute on the alleged outstanding sum or debt.

[10] The key grounds upon which the plaintiff says the debt is bona fide disputed are two-fold. Significantly, the plaintiff argued that the contracts appointing the defendants are illegal under s 22C of the Valuers, Appraisers and Estate Agent Act 1981 , rendering them void and unenforceable pursuant to s 24 of the Contracts Act 1950 .

[11] The other contention raised by the plaintiff as to why there is a bona fide dispute on the debt is that the alleged outstanding sum is not due and payable in any event. This the plaintiff attributed to the absence of invoices, the complication arising from the appointment by a different entity (Curah Bahagia Sdn Bhd) for the same project, that the alleged sum was based on speculation and never ascertained and that some of the sales relied on by the defendants had in fact been cancelled.

[12] Secondly, the plaintiff argued that an