YENG YING SDN BHD (NO. SYARIKAT : 816023-V) OLW CONTRUCTION AND TRADING SDN BHD (NO. SYARIKAT : 1238203-T)

YENG YING SDN BHD (NO. SYARIKAT : 816023-V) OLW CONTRUCTION AND TRADING SDN BHD (NO. SYARIKAT : 1238203-T)

The Court of Appeal found the existence and amount of the claimed debt were genuinely disputed on the affidavits and exhibits before the court and that the appellant established it would suffer irreparable harm if a winding-up petition were presented; the High Court erred by accepting partial evidence and failing to apply the Fortuna two-limb test correctly, therefore the appeal was allowed and injunctive relief warranted.

Citation
C-02(C)(A)-1686-09/2019 (Mahkamah Rayuan)
Parties
Appellant/plaintiff: Yeng Ying Sdn Bhd; Respondent/defendant: OLW Construction And Trading Sdn Bhd
Court
C
Jurisdiction
Malaysia
Judgment Date
16 July 2020
Case Number
C-02(C)(A)-1686-09/2019 (Mahkamah Rayuan)
Procedural Posture
Civil Appeal (fortuna Injunction Under Companies Act 2016 and Specific Relief Act 1950) / Appeal to Court of Appeal (decision on Injunction)
Outcome
Appeal allowed; High Court decision set aside; Fortuna injunction granted restraining respondent from presenting a winding-up petition.
Legal Topics
Fortuna Injunction, Winding Up Petition, Statutory Demand (s466 Companies Act 2016), Disputed Debt
Source Language
Malay/English
Company Law Injunctions Civil Procedure Contract Law Fortuna Injunction Winding Up Petition Statutory Demand (s466 Companies Act 2016) Disputed Debt

Case Brief

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Parties

Yeng Ying Sdn Bhd

Appellant/plaintiff

OLW Construction And Trading Sdn Bhd

Respondent/defendant

Procedural Posture

Civil Appeal (fortuna Injunction Under Companies Act 2016 and Specific Relief Act 1950) / Appeal to Court of Appeal (decision on Injunction)

Legal Issues

  1. 1 Whether a Fortuna injunction should be granted to restrain presentation of a winding-up petition
  2. 2 Whether the debt claimed by respondent is disputed and thus whether the petition has any chance of success
  3. 3 Whether presentation of the petition would cause irreparable damage to the appellant company

Ratio Decidendi

The Court of Appeal found the existence and amount of the claimed debt were genuinely disputed on the affidavits and exhibits before the court and that the appellant established it would suffer irreparable harm if a winding-up petition were presented; the High Court erred by accepting partial evidence and failing to apply the Fortuna two-limb test correctly, therefore the appeal was allowed and injunctive relief warranted.

Court Disposition

Appeal allowed; High Court decision set aside; Fortuna injunction granted restraining respondent from presenting a winding-up petition.

Orders

  • Appeal allowed and High Court decision set aside
  • Fortuna injunction granted restraining respondent from presenting any winding-up petition against appellant