Liza Chan Sow Keng JC:

GROUNDS OF JUDGMENTIntroduction

[1]This Originating Summons (“OS”) was filed on 20.6.2021 by the Plaintiff against the Defendant for a Fortuna injunction to restrain the Defendant from presenting a winding-up petition against the Plaintiff pursuant to a s. 466 of the Companies Act 2016

[2]On 21.6.2021, I had granted an ex parte interim injunction restraining the Defendant from presenting a winding-up petition against the Plaintiff pending inter partes hearing of the OS.

[3]The Defendant on 29.6.2021 filed an application vide Enc. 6 to set aside the ex parte interim injunction and for damages to be assessed.

[4]Both the OS and Enc. 6 were heard together on 27.7.2021. I had dismissed the OS with costs to the Defendant and allowed Enc. 6.

[5]The Plaintiff has appealed to the Court of Appeal against the dismissal of the OS and filed Enc. 38 for an Erinford Injunction to restrain the Defendant frcim presenting a winding-up petition against the Plaintiff pending disposal of the Plaintiff’s appeal to the Court of Appeal. I have granted the Erinford Injunction on 9.8.2021. The Defendant has appealed against the grant of the Erinford Injunction. As the matters were related, it is convenient to deal with the dismissal of the OS, both Enc. 6 and Enc. 38 in one judgment.

Background

[6]The Plaintiff is a wholly owned subsidiary of Jaks Resources Berhad, a public limited company whose shares are listed on Bursa Malaysia, and with businesses in Malaysia and overseas.

[7]By a Letter of Award dated 12.11.2014 (“LA”), the Plaintiff as the Main Contractor appointed the Defendant as the Nominated Sub­ Contractor for electrical works “Electrical 11KV & LV Installation & Electrical Power Supply For ACMV Services” (“the Works”) in the project identified as “Cadangan Membina Dua (2) Blok Pejabat 14-17 Tingkat, Tiga (3) Blok Pangsapuri Servis 25-34 Tingkat Dengan Sepuluh (10) Tingkat Podium Yang Mengandungi Mezamin, Kemudahan Pangsapuri, Ruang Perniagaan (33 Unit), Pejabat Dan Tempat Letak Kereta Berserta Empat (4) Aras Basemen Tempat Letak Kereta Di atas Lot 141 (PT16), Jalan 13/6, Seksyen 13, Petaling Jaya, Daerah Petaling, Selangor Darul Ehsan untuk Tetuan Jaks Island Circle Sdn Bhd” (“Project”).

[8]The LA together with the Standard PAM 2006 Form of Agreement and Schedule of Conditions of Building Contract, Private Edition (Without Quantities) constituted the Subcontract between the parties.

[9]As provided by the Subcontract, the consultants would value the Defendant’s works and recommend interim payments by issuing Payment Voucher Recommendations (“PVR”). Based on the PVR, the Plaintiff would issue its interim payment certificates. Between February to August 2020, there were 5 PVRs and 1 interim certificate issued, amounting to RM RM1,608,001.51 as follows:

[10]The Defendant has sent letters dated 10.6.2020, 21.7.2020 and 16.10.2020 to the Plaintiff to pay the outstanding amount due under the relevant payment certificates and/or PVRs. Between June to October 2020, the Plaintiff made five (5) part payments to the Defendant, amounting to RM350,117.47.

[11]On 30.11.2020, the Defendant issued to the Plaintiff its Progress Claim No. 64 on 30.11.2020 claiming the sum of RM5,045,176.36 consisting of the unpaid certified amount of RM1,608,001.51 and uncertified work amount of RM3,437, 174.85.

[12]When no payment was received, on 16.12.2020, the Defendant issued a Notice of intention to suspend its works (“Notice to Suspend”) under Clause 26.15 of the PAM Subcontract Conditions if payment was not made. On 17.12.2020, there was a meeting between the parties where inter alia, the Plaintiff alleged that there was an ove