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COURT OF APPEAL PUTRAJAYA
MOBIKOM SDN BHD – Appellant
Versus
INMISS COMMUNICATIONS SDN BHD – Respondent
[Civil Appeal No: W-02-884-2005]
[1] The plaintiff (Appellant before us) and the defendant (Respondent before us) entered into a contract. Later, a dispute arose between them in relation to that contract. They referred it to an arbitrator who, in his award, found for the defendant. The plaintiff was dissatisfied with the award. It applied to have the award set aside for misconduct on the part of the arbitrator "Misconduct" here is not used in a pejorative sense. In Sharikat Pemborong Pertanian & Perumahan v. Federal Land Development Authority, [1971] 2 MLJ 210 at p 211, Raja Azlan Shah J (as His Royal Highness then was) said that misconduct:-
... is used in its technical sense as denoting irregularity and not moral turpitude. It includes failure to perform the essential duties which are cast on an arbitrator as such, for instance, failure to observe the rules of natural justice, appearance of bias or partiality. It also includes any irregularity of action which is not consonant with the general principles of equity and good conscience. These illustrations are not meant to be exhaustive. But failure to analyse and appraise the evidence does not vitiate the award on the ground of misconduct. It is only when the evidence is material, relevant and had gone to affect the award that the award will be vitiated. In my Judgment the plaintiffs' complaint is sustainable only if the failure to do so had occasioned some irregularity causing a miscarriage of justice that is apparent on the face of the award.
[2] Of this statement of the law, I said in Hartela Contractors Ltd v. Hartecon JV Sdn Bhd & Anor, [1999] 2 MLJ 481:-
I have searched in vain for a better description of what Parliament meant by the use of the expression 'misconduct' in the Act of 1952.
Seven years or more have passed since I made that observation. Yet, nothing has happened in the interim that causes me to alter my view.
[3] Let me now return to the factual mainstream. Relying on the award, the defendant issued to the plaintiff a notice under s 218 of the Companies Act 1965 calling for the payment of the sum awarded by the arbitrator the plaintiff failed to comply with the demand. Instead, it took out an originating summons claiming an injunction to restrain the defendant from presenting a winding up petition and from prosecuting it. Before the plaintiff's summons could be heard the defendant presented its petition. The learned Judge who heard the summons dismissed it. This appeal is directed against that decision.
[4] There is no doubt that a Court has jurisdiction and power to grant an anti-suit injunction whenever the interests of justice call for or demand it. So an injunction may be issued by our Courts to restrain the institution or prosecution of a suit in a foreign jurisdiction where this would lead to a multiplicity of proceedings. See, BSNC Leasing Sdn Bhd v. Sabah Shipyard Sdn Bhd & Ors, [2000] 2 MLJ 70. Similarly, a party may be restrained from presenting a winding up petition if it is found, for example, that there is a bona fide dispute about the debt on which the notice of demand issued under s 218 of the Companies Act is based. See, Bina Satu Sdn Bhd v. Tan Construction [1987] 1 MLRH 417; [1988] 1 MLJ 533; [1998] 1 CLJ (Rep) 384; Stonegate Securities Ltd v. Gregory [1980] 1 Ch 576. Once the debt on which the proposed petition is based is bona fide disputed it matters not that the debtor Company is in fact insolvent. See, Mann v. Goldstein [1968] 2 All ER 769.
[5] The kind of injunction by which an intended winding up petition is sought to be restrained is known as a "Fortuna injunction" taking its name from the case in which the juridical basis for the relief was first explained. See, Fortuna Holdings Pty Ltd v. The Deputy Commissioner of Taxation [1978] VR 83. In that case, McGarvie J discussed the basis on which a Court acts to restrain the presentation of a winding up petition and the two branches of the principle that guide Courts in the grant of an injunct
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