JUDGMENT

Nurulhuda Nur'aini Mohamad Nor J:

(Enclosure 27)

[1] This is a judgment by this court allowing enclosure 27 in this suit (suit "104" winding-up). Enclosure 27 was filed by the respondent for a stay of the Winding-Up Petition in encl 2 filed by the petitioner. The stay was sought pending the disposal of suit JA- 22C-3-05/2024 (hereafter referred to 'suit "3" to claim and to challenge) filed by the respondent before the Johor Bahru High court.

[2] The basis for allowing encl 27 by this court is that there is real likelihood of breach of natural justice that goes towards the determination on encl 2 "inability to pay" by the respondent in this present suit "104". More importantly, suit "3" by the respondent to claim and to challenge, was filed way earlier than this suit "104" winding-up.

[3] This Winding-Up Petition suit "104" by the petitioner is initiated based on an adjudication order dated 7 February 2024 in which an amount of debt claimed by the petitioner for a sum of RM2,002,663.98 was allowed by the AIAC (Asian International Arbitration Centre). This sum was highly disputed by the respondent that moved the filing of suit "3". To this date, with pre-trial case management completed and filing of the necessary cause-papers, suit "3" is fixed for case management before court 4 to fix the hearing date of suit "3".

[4] Although an application to enforce the said arbitration order was filed at the High court by the petitioner via encl 1 in suit JA-24C-10-03/2024 (enforcement suit "10"), however at the time of filing this suit "104" winding-up', the enforcement application suit "10" is yet to be disposed. In short, the petition, as contended by the respondent and undisputed by the petitioner, was filed in absence of a High court enforcement order under s 28 Construction (Industry Payment and Adjudication) Act 2012.

[5] Furthermore, the respondent had also filed an application via suit "3" to set aside the Adjudication Order which (at the time of filing the Affidavit-In-Support by the respondent to encl 27 in suit "104" winding-up), the application to set aside in suit "3", was fixed for hearing on 9 October 2024. No subsequent affidavits filed by either party to suggest the outcome of this suit "3" to challenge, hence it is only reasonable for this court to conclude that the relevant court hearing the suit, has yet to arrive at its decision.

[6] The Respondent also sought to set aside the Adjudication Order by filing its application on 22 April 2024 via JA-24C-11-04/2024 (suit "11" to set aside). At the hearing of suit "104", this application suit "11" to set aside, is yet to be disposed.

[7] Based on all these suits filed and pending disposal, most particularly suit "3" to claim and to challenge the Adjudication Order, the inevitable deduction that can be arrived at by this court, having balanced the right and interest of both the petitioner and also the respondent is that the Adjudication Order has not reached its finality.

[8] This is arrived at since the respondent had taken all the necessary steps within a reasonable speed of time to dispute the petitioner's claim by revisiting the Adjudication Order again, utilizing the available procedures permitted.

[9] The Respondent's submission to move this court to allow encl 27 also focused on the Statement of Defence and Counterclaim filed by the petitioner to counter the respondent's claim in suit "3 to claim and to challenge", where the petitioner had pleaded a sum of RM2,051,102.47 in its counterclaim said a sum that was already claimed and adjudicated in the said Adjudication order.

[10] In Lafarge Concrete (Malaysia) Sdn Bhd v. Gold Trend Builders Sdn Bhd; [2012] 6 MLJ 817; [2012] 5 AMR 104, the court of Appeal dealt with this issue as to when a company is said "unable to pay its debt" and held as follows:

"[6] Before we proceed to answer those questions, we should perhaps say that 'a creditor is not required to obtain a judgment before serving a statutory demand (The Law of Company