A plaintiff cannot obtain a Fortuna injunction without demonstrating a genuine cross-claim or that the filed petition would be an abuse of process.

[1] This is an application for an injunction filed by the plaintiff to defendant from presenting a winding-up petition under s 465 of the Act 2016 against the plaintiff. At the conclusion of the hearing, I application and highlighted the main reasons for the dismissal. These are the full reasons for my decision, which affirms the principles governing applications for Fortuna injunctions under the new Companies Act 2016 .

Key Background Facts

[2] The parties had been in a business relationship that however subsequently turned litigious. The defendant had filed a claim for payments in respect of goods sold and delivered against the plaintiff. The defendant managed to obtain a summary judgment on 30 March 2017 at the Sessions Court in Kuala Lumpur on the claim against the plaintiff ("the Judgment").

[3] The application by the plaintiff to have the Judgment set aside or stayed was not successful. The application by the plaintiff to set aside the Judgment on the ground that the decision was given in the absence of the plaintiff's solicitors was dismissed on 20 October 2017 by the Sessions Court for the reason that no affidavit in reply and written submissions were filed by the plaintiff and that the merits of the application had also been considered. The plaintiff now indicates that as at the morning of this hearing it had filed a notice of appeal, even though, it had not been served on the defendant.

[4] On the premise of the Judgment, the defendant commenced a winding-up proceedings against the plaintiff via Kuala Lumpur High Court Winding-Up Petition No WA-28NCC-398-07-2017 by the presentation of a petition ("the Petition").

[5] The Petition was however struck out by the High Court on 16 October 2017 given the finding of non-observance with the rules on service of the Petition.

[6] Alleging abuse of process on the part of the defendant in its action commencing the winding-up proceedings, the plaintiff then filed a suit founded on the tort of an abuse of process of the Court via Kuala Lumpur Sessions Court Writ No. WA-A52-16-11-2017 ("the Suit").

[7] On the part of the defendant however, on 31 October 2017, it again issued another winding-up notice under s 466 of the Companies Act 2016 ("the CA "), against the plaintiff, similarly founded on the Judgment.

[8] The plaintiff responded by the filing of the instant Fortuna injunction application before me.

Essence Of Contention Of Parties

[9] The plaintiff is anchoring its Fortuna injunction application, resisted by the defendant, on the primary argument that the Suit on the tort of abuse of process initiated by the plaintiff against the defendant represents a genuine and serious cross-claim against the defendant, justifying the granting of a Fortuna injunction pending disposal of the Suit for which the plaintiff is, as submitted by the plaintiff, entitled to the award of damages.

[10] The plaintiff also raised a subsidiary point in support of its application. This is the contention that the defendant has again, resorted to abuse the process of Court by issuing the statutory demand in the winding-up notice under s 466 Notice despite the availability of alternative forums for recovery of the judgment sum. This, so the plaintiff argues, would provide the basis for the Court to grant the Fortuna injunction to prevent the abuse.

[11] The opposition to the Fortuna injunction application is on the other hand based on the stance taken by the defendant which maintains that the defendant has the right conferred by the substantive law, specifically under ss 465 and 466 of the Comp