Low Hop Bing J:

Application

This is the plaintiff's application in encl. (4) seeking an interim injunction to restrain the defendant's winding-up petition against the plaintiff in Shah Alam High Court MT3-28-33-01 ("winding-up petition"), pending a full and mature determination of the plaintiff's action herein or any further order or direction of this court.

Background Facts

From the numerous affidavits filed by the respective parties herein, the background facts which are not substantially controverted have been carefully stated in the written submission for the defendant and may be reproduced as follows:

The Defendant and its own wholly-owned subsidiary, Broadcast Communications Ltd. ("BCL"), have provided consultancy service to the Plaintiff to enable the Plaintiff to commence and to run a television broadcasting station ("Consultancy Service").

By agreement, the Plaintiff has agreed to pay to the Defendant for the Consultancy Service provided by both the Defendant and BCL to the Plaintiff.

The Plaintiff has admitted in writing on three (3) occasions the Plaintiff's indebtedness of a certain sum to the Defendant in respect of the Consultancy Service ("Due Sum").

The Defendant has previously issued a notice under section 218 of the Companies Act 1965 ("CA 1965") to the Plaintiff dated 17.7.1998 demanding payment of the Due Sum ("First Statutory Notice").

The Plaintiff then commenced an action against the Defendant in Kuching High Court Suit No. 22-179-98-II ("Kuching Suit") and obtained an ex parteinjunction from the Kuching High Court on 21.8.1998 restraining the Defendant from proceeding with the First Statutory Notice ("Plaintiff's Kuching Injunction").

The Defendant applied successfully to strike out the Kuching Suit and the Plaintiff's Kuching Injunction with costs on 8.6.1999. The Plaintiff has not appealed to the Court of Appeal against the striking out of the Kuching Suit.

The Defendant then instituted an action against the Plaintiff in Shah Alam High Court No. 1 Civil Suit No. MT1-22-1238-1999 in respect of the Due Sum and has obtained default judgment against the Plaintiff on 24.10.2000 ("Default Judgment").

The Plaintiff has applied to set aside the Default Judgment in Shah Alam High Court No. 1 ("Plaintiff's Application to set aside Default Judgment"). The Plaintiff's Application to set aside the Default Judgment was scheduled to be heard by Shah Alam High Court No. 1 on 14.6.2001.

The Defendant has served a notice dated 11.12.2000 under section 218 CA 1965 to the Plaintiff demanding payment of the sum stated in the Default Judgment ("Second Statutory Notice").

Upon the Plaintiff's failure to pay the Defendant the sum as stated in the Second Statutory Notice, the Defendant has presented the Winding-up Petition which is scheduled to be heard by the Shah Alam High Court No. 3 on 17.8.2001.

Submission For Plaintiff

Cik Lorraine Cheah and Cik SS Soo, both learned counsel for the plaintiff, relied on Keet Gerald Francis Noel John v. Mohd Noor Abdullah & Ors[1995] 1 CLJ 293and submitted that the burden on the plaintiff to succeed in the said application is, apart from the question of an undertaking as to damages and the balance of convenience, whether there are serious issues to be tried. For this purpose, it was argued for the plaintiff that there are indeed serious questions to be tried, as the winding-up petition was used as an improper pressure on the plaintiff and based on a debt which was seriously disputed and cannot succeed. Support for this contention was sought in Bina Satu Sdn Bhd v. Tan Construction (Sued as a firm)[1988] 2 CLJ 652;[1988] 1 CLJ 384 (Rep)and Salak Park Development Sdn Bhd v. Fajar Menyensing Sdn Bhd[1994] 4 CLJ 581.

It was also submitted that the defendant has failed to perform its obligations to the plaintiff under the consultancy agreement and has therefore caused the delay in the launching of NTV 7.

It was further argued for the plaintiff that the plaintiff's admission of the due