JUDGMENT

Ahmad Murad Abdul Aziz J:

Introduction

[1] The Respondent filed an application in Encl 7 for a Fortuna Injunction to stop the Petitioner from proceeding with this Petition.

Background Facts

[2] On 12 May 2023, the Petitioner commenced a civil suit (Suit No: WA-B52NCVC-207-05/2023) at Kuala Lumpur Sessions Court ("The main Suit") against the Respondent/Defendant due the Defendant's breach of obligations to pay monthly salary and to provide the Petitioner with Annual Remuneration Statements for Private Employees ("EA Forms") for the years 2018 to 2020.

[3] On 2 June 2023, a Judgment in Default of Appearance was entered against the Respondent ("the JID"). Pursuant to the said Judgment, the Respondent is indebted to the Petitioner the sum of RM388,503.50.

[4] The timeline of the material events leading to the filing of Enclosure 7 is as follows:

Respondent Grounds In Support Of The Fortuna Injunction Application

[5] The Respondent's grounds are mainly:

(a) The Petition has no chance of success

(b) The presentation of the Petition might cause irreparable damage to the Respondent.

[6] In support of the grounds in para 5(a) above the Respondent sought to challenge the validity of the said JID. On the allegation that the JID irregular and allegedly improperly obtained, the Respondent submits that the Petition has no chance of success.

[7] In support of the grounds in para 5(b), the Respondent avers that a company called Tenaga Inara Sdn Bhd has shown its intention to purchase 70% equity shares in the Respondent. Thus, the winding-up proceedings if allowed to proceed, will cause irreparable damage to the Respondent.

Findings Of The Court

[8] On the Respondent's submission that this Petition has no chance of success, I find this submission is misconceived and without merits.

[9] This Petition is based on a JID which remains valid and enforceable. The Respondent's application to set-aside the JID was dismissed and there is not appeal against the dismissal. Additionally, as at the date of the hearing of this application the time to appeal against the dismissal has lapsed. In the Court of Appeal case of Pacific & Orient Insurance Co Bhd v. Muniammah Muniandy; [2011] 1 CLJ 947; [2011] 1 AMR 685 the Court held that a valid and enforceable judgment is not bound to fail and cannot be considered a disputed debt. On this ground alone I find that the Respondent has failed to meet the threshold for granting a Fortuna Injunction.

[10] Additionally, a Fortuna Injunction is intended to prevent the presentation of a Petition. In the present case, the Petition has been filed, served, advertised and gazetted. Thus, the alleged damage if any, would have been caused. I find it was filed too late in the day.

[11] For the reasons aforesaid, I dismiss this application with costs.