JUDGMENT

Adlin Abdul Majid J:

A. Introduction

[1] The plaintiff filed an originating summons, seeking a Fortuna Injunction to restrain the defendant from commencing or continuing with winding-up proceedings against it.

[2] The court dismissed the originating summons, after finding that the debt owed by the plaintiff to the defendant is an undisputed debt.

B. Background Facts

[3] The plaintiff appointed the defendant as a contractor in relation to the construction of a service condominium at Genting Permai, Mukim Bentong, Daerah Bentong, Pahang ("Project"). The plaintiff and the defendant entered into the following agreements:

a. A Subcontract Agreement And Conditions of PAM Contract 2006 (With Quantities) ("Main Contract 1"), pursuant to which the plaintiff appointed the defendant as its main contractor to perform and complete the main building works for the Project ("Main Contract Works 1"); and

b. A Letter of Award dated 30 June 2015 and the Agreement And Conditions of PAM Contract 2006 (With Quantities) (collectively, the "Main Contract 2"), pursuant to which the plaintiff appointed the defendant as its contractor in relation to the construction and completion of earthworks, retaining walls, bored piling and contiguous bored piling works and foundation works for the Project ("Main Contract Works 2").

The Main Contract 1 and the Main Contract 2 shall collectively be referred to as the "Main Contracts", while the Main Contract Works 1 and the Main Contract Works 2 shall collectively be referred to as the "Main Contract Works".

[4] The defendant claimed it had completed the Main Contract Works in accordance with the Main Contracts, but the plaintiff did not honour its contractual obligation towards the defendant.

[5] Therefore, the defendant initiated the following adjudication proceedings against the plaintiff pursuant to the Construction Industry Payment and Adjudication Act 2012 ("CIPAA"):

a. In respect of the Main Contract 1, adjudication proceedings were initiated by way of adjudication reference No AIAC/D/ADJ-5465-2024 ("5465 Adjudication"); and

b. In respect of the Main Contract 2, adjudication proceedings were initiated by way of adjudication reference No AIAC/D/ADJ-5422-2024 ("5422 Adjudication").

[6] Decisions on the 5465 Adjudication ("Adjudication Decision 1") and the 5422 Adjudication ("Adjudication Decision 2") were delivered on 20 November 2024 (collectively, the "Adjudication Decisions").

[7] By the Adjudication Decisions, the plaintiff was ordered to pay a total of RM15,429,864.05 to the defendant ("Debt").

[8] The Debt has not been paid. Accordingly, the defendant issued a statutory notice of demand dated 6 December 2024 against the plaintiff ("Winding-Up Notice").

[9] In response to the Winding-Up Notice, the plaintiff filed an originating summons, seeking to restrain the defendant from presenting a winding-up petition or continuing with winding-up proceedings against it.

C. Considerations And Findings

[10] The court's power to restrain the presentation of a winding-up petition can be traced back to the Australian case of Fortuna Holdings Pty Ltd v. Deputy Federal Commissioner of Taxation [1976] 2 ACLR 349. The Supreme court of Victoria held that an injunction may be granted:

a. Where the presentation of the petition might produce irreparable damage to the company and where the proposed petition has no chance of success; and

b. Where a petitioner has chosen to assert a disputed claim by a procedure that might produce irreparable damage to the company rather than by a suitable alternative procedure.

[11] The principles set out in Fortuna Holdings (supra) have been recognised by the Malaysian courts (see Mobikom Sdn Bhd v. Inmiss Communications Sdn Bhd; [2007] 3 MLJ 316; [2007] 3 CLJ 295 and Pacific & Orient Insurance Co Bhd v. Muniammah Muniandy; [2011] 1 CLJ 947; [2011] 1 AMR 685).

[12] The approach of the courts in considering the grant of a Fortuna Injunction has been clear, in that the injunction will only be granted when there