Mohd Nazlan J:

JUDGMENT

Introduction

[1]This is an application for an injunction filed by the plaintiff to restrain the defendant from presenting a winding up petition under Section 465 of the Companies Act 2016

Key Background Facts

[2]The plaintiff is involved in the construction business, and is the sub-contractor for a certain work package in respect of the project for the Mass Rapid Transit (“MRT”) in the Klang Valley. The defendant is in the business of supplying products and services related to scaffolding, manpower and safety consultancies in the construction and engineering sectors.

[3]The parties had entered into a contractual relationship that subsequently turned litigious, and which saw the defendant instituting a claim against the plaintiff on 28 April 2015, for what the former pleaded was a breach of contract, and thus sued for an alleged outstanding amounts from the plaintiff (Suit No: B52C-6-04/2015).

[4]The plaintiff contested the claim, and a trial then ensued, which took place for 27 days, over a period of two years, where 14 witnesses testified. On 10 October 2017, the Kuala Lumpur Sessions Court allowed the defendant’s claim against the plaintiff and ordered that the plaintiff must pay the defendant the following:-

(i)Principal amount of RM715,381.79;

(ii)Contractual interest on overdue sum up to 9 October 2017 amounting to RM340,248.49;

(iii)Disbursements totalling RM19,670.85;

(iv)Costs in the sum of RM30,000; and

(v)Post judgment interest on (i) and (ii) above at the rate of 5% per annum from 10 October 2017 till full settlement (collectively, “the Judgment Debt”).

[5]Dissatisfied, the plaintiff on 12 October 2017 filed a notice of appeal to the High Court (Rayuan Sivil No: WA-12BC-22-10/2017) against the decision of the Sessions Court.

[6]The defendant however, on 19 October 2017 served a notice of statutory demand issued under Section 465 (1) (e) and (h), and Section 466 (1) (a) of the Companies Act 2016

[7]The plaintiff then filed the instant injunction application by way of originating summons, seeking to restrain the defendant from presenting a winding up petition pending the disposal of the plaintiff’s appeal against the said decision of the Sessions Court. The plaintiff however at least initially described its injunction application being in the nature of an Erinford injunction.

[8]Hence, the instant proceeding before me.

Essence of Contentions of Parties

[9]The plaintiff anchors its application on a number of grounds commonly proffered by applicants for injunctions intended to prevent the filing of winding up petitions. First, as mentioned above, the plaintiff asserted that this is an Erinford type injunction, and that Malaysian Courts recognise and have allowed this type of injunction. The plaintiff refers to a number of authorities, which it says are in support of its application, such as the Federal Court decision in Subashini a/p Rajsingam v Saravanan a/l Thangathoray and other appeals Siow Mon Yew v Panglobal Berhad & Ors (2000) MLJU 184Daya CMT Sdn Bhd v Yuk Tung Construction Sdn Bhd Celcom Malaysia Sdn Bhd v Inmiss Communication Sdn Bhd

[10]Secondly, the plaintiff argues that there is not yet a final judgment on the defendant’s disputed claim because the matter is presently pending appeal.

[11]The plaintiff further submits that there are very serious appealable issues to be considered by the High Court in the appeal against the decision of the Sessions Court.

[12]The plaintiff further argues that it is clear that the defendant is seeking to enforce the judgment of the Sessions Court through winding up proceedings, and this pursuit by the defendant is an abuse of process as it is designed to force the plaintiff to pay the Judgment Debt.

[13]If the defendant is not restrained by an injunction pending the disposal of the appeal, the plaintiff contends that defendant’s winding up action against the plaintiff would cause severe irreparable damage to the plaintiff company, rendering any possible decision in favo