Wong Kian Kheong J:

JUDGMENT

(Court enclosure no. 1)

A. Issues

[1]This originating summons (OS) raises the following three novel questions:

1.whether the plaintiff company (Plaintiff) can file a “hybrid” or “composite” OS which applies for -

(a)an order under s 16(1)(b)Contruction Industry Payment and Adjudication Act 2012CIPAA) to stay an adjudication decision dated 19.4.2019 (AD) made by Mr. Khoo Chin Chio (Adjudicator) in favour of the defendant company (Defendant) against the Plaintiff pending the disposal of an arbitration regarding the dispute between the Plaintiff and Defendant (Arbitration); and

(b)a “Fortuna Injunction” to restrain the Defendant from presenting a petition to wind up the Plaintiff based on the AD. In this respect, is the Defendant a “creditor” of the Plaintiff under s 464(1)(b) of the Companies Act 2016 (CA) who is entitled to present a winding up petition against the Plaintiff based on the AD?;

2.whether the court should exercise its discretion pursuant to s 16(1)(b)CIPAAStay Application); and

3.if the court dismisses the Stay Application, does the court have the discretionary power to grant a Fortuna Injunction to restrain the Defendant from presenting a petition to wind up the Plaintiff based on the AD (Fortuna Injunction Application)? If “yes”, whether the court should exercise its discretion to allow the Fortuna Injunction Application in this case.

B. Background

[2]By a Letter of Award dated 9.5.2016 (Construction Contract), the Plaintiff had appointed the Defendant as a sub-contractor to construct an integrated building block in Bangi, Selangor (Project).

[3]The Defendant initiated adjudication proceedings against the Plaintiff and claimed for payment in respect of work done for the Project under the Construction Contract.

[4]The Adjudicator made the AD as follows, among others:

(1)the Plaintiff shall pay to the Defendant a sum of RM281,136.70 (Adjudicated Sum) on or before 6.5.2019;

(2)the Plaintiff shall pay to the Defendant interest at the rate of 5% per annum on the Adjudicated Sum from 6.5.2019 until full payment of the Adjudicated Sum; and

(3)the Plaintiff shall pay to the Defendant costs of the adjudication proceedings.

[5]Based on the AD, the Defendant’s solicitors issued a notice dated 8.7.2019 under s 466(1)(a) CA to the Plaintiff (Statutory Demand) which demanded the Plaintiff to pay to the Defendant a sum of RM328,433.04 (as at 8.7.2019) (Demanded Sum) within 21 days from the Plaintiff’s receipt of the Statutory Demand. The Demanded Sum consisted of, among others, the Adjudicated Sum, costs of adjudication proceedings and interest on the Adjudicated Sum.

C. Whether this OS can lump together Stay Application and Fortuna Injunction Application

[6]The Defendant’s learned counsel, Encik Abdul Rashid Bin Ismail, has contended that the Plaintiff cannot file a “hybrid” OS which applies for a stay of the AD pending the disposal of the Arbitration and a Fortuna Injunction. According to Encik Rashid, a stay of the AD pending the disposal of the Arbitration is provided by s 16(1)(b)CIPAA

[7]The Plaintiff’s learned counsel, Mr. Vishal A/L V. Kumar, had the candour to admit that he could not find any Malaysian case which could support a hybrid or composite OS in this case.

[8]I am of the view that a hybrid or composite OS can be filed by the Plaintiff. My reasons are as follows:

(1)there is nothing in CIPAA, CA, Rules of Court 2012 (RC) or any other written law which prohibits a hybrid or composite OS;

(2)if a hybrid or composite OS is filed, the court has to decide separately (with reasons) in the OS regarding the Stay Application and Fortuna Injunction Application. This is because, as explained below, the test for the court to determine a Stay Application differs from the test which will be applied by the court in deciding a Fortuna Injunction Application;

(3)the three-fold objective of RC is to ensure a just, expeditious and economical disposal of cases - please see O 34 r 1(1)(b) RC and CELCOM (M) Bhd & Anor v Tan Sr