Gopal Sri Ram JCA:

[1] This morning, we have a motion before us for an interim injunction pending appeal. It was sought under s. 44 of the Courts of Judicature Act 1964. By consent of the parties, we directed the motion to be treated as the appeal proper as this would dispose of the substantive dispute without further delay. We have ample power to do so. See Syarikat Bunga Raya Timor Jauh Sdn Bhd v. Tractors Malaysia Bhd; [1980] 2 MLJ 127; Sabil Mulia (M) Sdn Bhd v. Pengarah Hospital Tengku Ampuan Rahimah & Ors [2005] 2 CLJ 122.

[2] This case has a history. It arises out of an assertion by the instant appellant that the respondent broke its contract to deliver the total amount of Direct Reduced Iron within the agreed time. The appellant gave notice to the respondent that it intended to recover damages for breach of contract. The appellant filed its suit claiming for, inter alia, RM36,079,860.33 for breach of contract. Before it could serve its writ, the respondent purporting to exercise its right under s. 218(2)(a) of the Companies Act 1965, served on the appellant a statutory notice of demand for a sum of RM3,390,509.03 which it claimed was owed to it ("the statutory notice"). The appellant then instituted a second action ("the anti-suit action") against the respondent seeking to restrain the presentation of a winding up petition against it. The respondent filed its defence to the anti-suit action and added a counterclaim for RM3,390,509.03 which is the sum demanded under the statutory notice. The appellant then moved the High Court in chambers by summons for an interlocutory injunction in the anti-suit action. The High Court after hearing arguments dismissed the summons in chambers. The appellant then appealed to this court.

[3] The principles governing an application of this nature are not in dispute. They are well settled. A creditor, generally speaking, does not have to obtain judgment before instituting winding up proceedings against a company. That is the purpose for which s. 218(2)(a) of the Companies Act 1965 was enacted. However, if the statutory notice is issued for a collateral purpose or if the presentation of the winding up petition would constitute an abuse of process or if the debt in question is substantially disputed, then a court of equity may, in the exercise of its specific relief jurisdiction, injunct the putative petitioner from presenting a winding up petition. See Fortuna Holdings Pty Ltd v. The Deputy Commissioner of Taxation [1978] VR 83; Mann v. Goldstein [1968] 2 All ER 769; Stonegate Securities Ltd v. Gregory [1980] 1 Ch 576; Tan Kok Tong v. Hoe Hong Trading Co Sdn Bhd [2007] 2 CLJ 305. The issue here is whether those principles apply to the facts of the instant appeal. We think they do.

[4] Whether there was a breach of contract committed by the respondent is a serious question that requires investigation at a trial. From a reading of the affidavits, it is clear that there is a marked conflict as to the events that transpired between the parties with regard to the question that lies in the axis of the dispute. On one hand, we have the respondent saying that the sum of RM3,390,509.03 is undoubtedly due to it. On the other hand, the appellant claims that not all the goods that were supposed to be supplied to it arrived. It is impossible at this stage to resolve this dispute based on affidavit evidence. It is also wholly unsuitable in our judgment, for this dispute to be resolved in a winding up proceeding based on the particular facts. There are already two actions and a counter-claim before the High Court. We think it is appropriate that these issues be tried and disposed of in those suits.

[5] We are conscious of the fact that this appeal is directed against the discretionary power of the High Court. An order in granting or refusing an injunction is made in the exercise of equitable discretion. An appellate court will not generally interfere with the exercise of such a discretion save on