Euro Facade Tech Manufacturing Sdn Bhd Sri Ribuan Industries Sdn Bhd

Euro Facade Tech Manufacturing Sdn Bhd Sri Ribuan Industries Sdn Bhd

The court granted the Fortuna injunction because the applicant demonstrated a bona fide substantial counterclaim uncontradicted in affidavit evidence, pending appeals to the Court of Appeal creating a legitimate expectation of reconsideration, and evidence of commercial solvency and outstanding receivables such that presentation of a winding-up petition would likely cause irreparable harm and would be an abuse of process; balance of justice favoured maintaining status quo.

Citation
BA-24NCC-117-12/2022 (Mahkamah Tinggi)
Parties
Plaintiff/applicant: Euro Façade Tech Manufacturing Sdn Bhd; Defendant/respondent: Sri Ribuan Industries Sdn Bhd
Court
High Court
Jurisdiction
Malaysia
Judgment Date
13 February 2023
Case Number
BA-24NCC-117-12/2022 (Mahkamah Tinggi)
Procedural Posture
Originating Summons for Fortuna Injunction (restraining Winding Up Petition) / High Court Hearing and Judgment on Originating Summons
Outcome
Fortuna injunction granted; status quo maintained; respondent restrained from presenting or pursuing winding-up petition pending determination of appeals
Legal Topics
Fortuna Injunction, Winding Up Petition, Summary Judgment, Counterclaim as Bona Fide Dispute, Stay of Execution, Abuse of Process, Balance of Convenience
Source Language
Malay/English
Companies Law Insolvency and Winding Up Civil Procedure Injunctions Commercial Law Fortuna Injunction Winding Up Petition Summary Judgment +4 more

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Parties

Euro Façade Tech Manufacturing Sdn Bhd

Plaintiff/applicant

Sri Ribuan Industries Sdn Bhd

Defendant/respondent

Procedural Posture

Originating Summons for Fortuna Injunction (restraining Winding Up Petition) / High Court Hearing and Judgment on Originating Summons

Legal Issues

  1. 1 Whether a Fortuna injunction should restrain presentation of a winding-up petition
  2. 2 Whether the summary judgment debt is a disputed debt
  3. 3 Whether the applicant's counterclaim constitutes a bona fide dispute sufficient to defeat the petition

Ratio Decidendi

The court granted the Fortuna injunction because the applicant demonstrated a bona fide substantial counterclaim uncontradicted in affidavit evidence, pending appeals to the Court of Appeal creating a legitimate expectation of reconsideration, and evidence of commercial solvency and outstanding receivables such that presentation of a winding-up petition would likely cause irreparable harm and would be an abuse of process; balance of justice favoured maintaining status quo.

Court Disposition

Fortuna injunction granted; status quo maintained; respondent restrained from presenting or pursuing winding-up petition pending determination of appeals

Orders

  • Fortuna injunction granted restraining Sri Ribuan Industries Sdn Bhd from presenting or advertising any winding-up petition against Euro Façade Tech Manufacturing Sdn Bhd until the Court of Appeal determines the pending appeals
  • Costs awarded to respondent in the sum of RM12000 to be paid by applicant within 14 days