Lim Chong Fong JCA:

GROUNDS OF JUDGMENT

INTRODUCTION

[1]This is an appeal against the decision to wind-up a company based on non-payment ordered by an adjudication decision made under the Construction Industry Payment and Adjudication Act 2012 (“CIPAA”).

[2]The Appellant here (Respondent in the High Court) is the developer of a service apartment located at the Mines Resort City, Selangor (“Project”).

[3]The Respondent here (Petitioner in the High Court) is the construction works contractor engaged by the Appellant to construct and complete the building and infrastructure works of the Project.

[4]We heard the appeal on 24th November 2023 and thereafter reserved our decision to deliberate on the submissions advanced by the parties.

[5]Having so duly deliberated, we provide below our decision together with the supporting grounds thereof.

BACKGROUND

[6]The Respondent on 17th July 2019 initiated CIPAA adjudication proceeding against the Appellant for unpaid interim certificate no. 4R for work done in the Project amounting to RM5,510,197.91.

[7]After having gone through the adjudication proceeding, the adjudicator on 4^th February 2020 made his decision (“Decision”) in favour of the Respondent by ordering, amongst others:

(i)pay the Respondent the sum of RM5,510,197.91 (“Adjudicated Amount”);

(ii)pay the Respondent simple interest on the Adjudicated Amount at the rate 5% per annum from 9^th July 2019 until the Adjudicated Amount is paid; and

(iii)pay the Respondent the costs of adjudication proceeding of RM61,289.00.

[8]Consequently, the Appellant on 4^th March 2020 instituted Shah Alam High Court Originating Summons no. BA-24C-27-03/2020 to set aside the Decision.

[9]The Appellant also in the same proceeding applied to stay the Decision.

[10]The Respondent thereafter on 11th August 2020 also instituted Shah Alam High Court Originating Summons no. BA-24C-76-08/2020 to enforce the Decision.

[11]On 13th August 2020, the Appellant’s architect issued valuation report no. 37, interim certificate no. 37 and revised statement of final account. The Respondent was aggrieved and accordingly on 26th August 2020 commenced arbitration proceeding to have the dispute on interim certificate no. 37 and revised statement of final account referred to arbitration. The Appellant cross referred its dispute on the final determination of the Decision to the same arbitration.

[12]The High Court on 10^th December 2020 dismissed the Appellant’s setting aside application as well as stay application and allowed the Respondent’s enforcement application; see Bluedream City Development Sdn Bhd v. Pembinaan Bina Bumi Sdn Bhd [2021] CLJU 319.

[13]The Appellant appealed to the Court of Appeal against the decisions of the High Court but they were subsequently all dismissed on 19th May 2022.

[14]The Appellant thereafter sought for leave to appeal to the Federal Court against the decisions of the Court of Appeal but the Appellant’s application was also dismissed on 20th October 2022.

[15]In the meantime, upon the High Court having made the decisions as stated in paragraph [12] above, the Respondent on 24th August 2021 served on the Appellant a statutory notice pursuant to s. 465(1)(e) and 466(1)(a) of the Companies Act 2016

IN THE HIGH COURT

[16]The unpaid Respondent hence on 23rd September 2021 instituted Shah Alam High Court Winding-up Petition no. BA-NCC-454-09/2021 (“Petition”) to wind-up the Appellant.

[17]As a result, the Appellant applied to strike out the Petition, but that application was dismissed on 21st October 2021.

[18]Subsequently, the Appellant made another interlocutory application in the winding-up proceeding to seek a Fortuna injunction to restrain the Respondent from continuing with the winding-up proceeding against the Appellant but that application was also dismissed on 7^th December 2021.

[19]Finally, the Petition was heard and accordingly allowed on 15th November 2022 with costs of RM8,000.00 to be paid out to the Respondent from the assets of the Appellant (“Judgment”).

[20]T