JUDGMENT

Noradura Hamzah JC:

Introduction

[1] This is the Plaintiff's application by way of Originating Summons seeking for:

(a) a declaration that the Statutory Notice of Demand dated 19 April 2025 issued by the Defendant pursuant to ss 465 and 466 of the Companies Act 2016 [Act 777] is invalid and amounts to an abuse of process;

(b) a Fortuna Injunction to restrain the Defendant from presenting or proceeding with any winding-up petition based on the said Statutory Notice until the disposal of the Originating Summons; and

(c) such further and consequential orders as this court deems fit.

[2] On 21 September 2025, this court allowed an ad interim injunction until the disposal of this Originating Summons.

[3] Parties filed their written submissions and also made oral submissions before this court on 29 September 2025. The court adjourned its decision to 14 October 2025. These are this court's grounds of decision.

Background

[4] The Plaintiff is a property development company in Malaysia, responsible for the "Sun City" project in Johor Bahru. In 2012, it entered into a Joint Venture Agreement with Dinding Development Sdn Bhd to develop Block A of the project. At the same time, a Novation Agreement was executed with Malaysia Building Society Berhad (MBSB), under which the Plaintiff's debt to MBSB was transferred to Dinding Development. As security, a third-party charge was created over the Plaintiff's land in favour of MBSB.

[5] In February 2019, MBSB sued the Plaintiff for RM20.3 million. The Plaintiff resisted liability, arguing that the debt had been novated to Dinding Development. Despite this, the matter was settled by a Consent Judgment recorded on 3 December 2024, where the Plaintiff agreed to pay RM16 million (the "Settlement Sum") to MBSB.

[6] After the Consent Judgment, MBSB requested that payment be made not to itself, but to the Defendant (Emerald Unity Sdn Bhd). This was on the basis of a Vesting Order dated 6 January 2023 granted by the Shah Alam High court, which purported to transfer all of MBSB's rights and obligations under the loan to the Defendant. Notably, the Vesting Order predates the Consent Judgment. Given that the Vesting Order was made in December 2023, MBSB arguably no longer retained the legal capacity to enter into the Consent Judgment of 3 December 2024. This temporal inconsistency forms part of the bona fide dispute.

[7] Relying on that Vesting Order, the Defendant issued a Statutory Demand dated 19 April 2025 under ss 465-466 of Act 777, claiming RM16.19 million allegedly due under the Consent Judgment.

[8] The Plaintiff disputes this claim, arguing that Emerald Unity was never a party to the Consent Judgment and therefore lacks locus standi to enforce it. To prevent the Defendant from pursuing winding-up proceedings based on the disputed debt, the Plaintiff filed encl 1 (the Originating Summons) on 29 May 2025, seeking a Fortuna injunction to restrain the Defendant from presenting, serving, or advertising a winding-up petition.

Analysis

[9] The remedy commonly referred to as a Fortuna injunction traces its origin to the Australian case of Fortuna Holdings Pty Ltd v. Deputy Federal Commissioner of Taxation [1978] VR 83, where the court held that it would be an abuse of process to present a winding-up petition founded on a debt that is bona fide disputed on substantial grounds.

[10] This principle has been consistently adopted in Malaysia. In the most recent case of V Medical Services M Sdn Bhd v. Swissray Asia Healthcare Co Ltd; [2025] 2 MLJ 744; [2025] 4 CLJ 282; [2025] 3 AMR 379 the Federal court affirmed that a Fortuna injunction may be granted only where the debt is bona fide disputed on substantial grounds.

[11] The court of Appeal in Pacific & Orient Insurance Co Bhd v. Muniammah Muniandy; [2011] 1 CLJ 947 reaffirmed the principles from Fortuna Holdings Pty Ltd The court explained that a Fortuna Injunction may be granted where:

(a) the proposed winding-up petition has no chance of success; and

(b) it would caus