CARIMIN ENGINEERING SERVICES SDN BHD DYNAMIC NAVIGATION SDN BHD

CARIMIN ENGINEERING SERVICES SDN BHD DYNAMIC NAVIGATION SDN BHD

The court found a contemporaneous bona fide dispute (solicitors' letter dated 11.7.2023 and partial payment of undisputed sum) and that issuance of the section 466(1) statutory notice while Suit 813 and a pending section 10 stay application existed was an abuse of process intended to circumvent ongoing proceedings; the plaintiff would suffer irreparable reputational and commercial harm and the balance of convenience favors the plaintiff, therefore a Fortuna injunction restraining presentation of a winding-up petition was warranted and granted.

Citation
WA-24NCC-359-07/2024 (Mahkamah Tinggi)
Parties
Plaintiff: Carimin Engineering Services Sdn Bhd; Defendant: Dynamic Navigation Sdn Bhd
Court
High Court
Jurisdiction
Malaysia
Judgment Date
25 October 2024
Case Number
WA-24NCC-359-07/2024 (Mahkamah Tinggi)
Procedural Posture
Originating Summons Fortuna Injunction Under Section 466(1) Companies Act 2016 / Judgment on Originating Summons (application for Injunction Decided)
Outcome
Originating Summons allowed. Fortuna injunction granted. Section 466(1) statutory notice declared an abuse of process in circumstances; plaintiff granted relief.
Legal Topics
Statutory Demand, Winding Up Petition, Fortuna Injunction, Abuse of Process, Stay Pending Arbitration, Mareva Injunction, Bona Fide Dispute
Source Language
Malay/English
Company Law Arbitration Law Civil Procedure Equitable Remedies (injunctions) Statutory Demand Winding Up Petition Fortuna Injunction Abuse of Process +3 more

Case Brief

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Parties

Carimin Engineering Services Sdn Bhd

Plaintiff

Dynamic Navigation Sdn Bhd

Defendant

Procedural Posture

Originating Summons Fortuna Injunction Under Section 466(1) Companies Act 2016 / Judgment on Originating Summons (application for Injunction Decided)

Legal Issues

  1. 1 Whether a bona fide dispute exists in relation to the debt claimed in the section 466(1) notice
  2. 2 Whether issuance of the statutory demand/winding-up notice while parallel civil proceedings and an application for stay pending arbitration are pending constitutes an abuse of process
  3. 3 Whether winding-up proceedings are sui generis such that multiplicity does not arise

Ratio Decidendi

The court found a contemporaneous bona fide dispute (solicitors' letter dated 11.7.2023 and partial payment of undisputed sum) and that issuance of the section 466(1) statutory notice while Suit 813 and a pending section 10 stay application existed was an abuse of process intended to circumvent ongoing proceedings; the plaintiff would suffer irreparable reputational and commercial harm and the balance of convenience favors the plaintiff, therefore a Fortuna injunction restraining presentation of a winding-up petition was warranted and granted.

Court Disposition

Originating Summons allowed. Fortuna injunction granted. Section 466(1) statutory notice declared an abuse of process in circumstances; plaintiff granted relief.

Orders

  • Enclosure 1 allowed and orders in terms granted restraining the Defendant from filing, presenting, proceeding with, advertising and/or gazetting any winding-up petition against the Plaintiff based on the statutory notice dated 15.7.2024
  • Declaration that the statutory notice under section 466(1) Companies Act 2016 issued by the Defendant is invalid and an abuse of process