Christine Resort Sdn Bd Pachira Eco Garden Associates Sdn Bhd

WA-24NCC-463-09/2024 Kand. 61 29/04/2025 12:47:50 IN THE HIGH COURT OF MALAYA AT KUALA LUMPUR (COMMERCIAL DIVISION) ORIGINATING SUMMONS NO. WA-24NCC-463-09/2024 In the matter of Statutory Notice under Sections 465(1)(e) and 466(1)(a) of the Companies Act 2016 dated 3.9.2024 and 4.9.2024; AND In the matter of Sections 50 and 51 of the Specific Reliefs Act 1950; AND In the matter of Order 29, Rule 1 and Order 92 Rule 4 of the Rules of Court 2012; AND In the matter of the inherent jurisdiction of this Honourable Court BETWEEN CHRISTINE RESORT SDN BHD (Company No.: 199001002446 (194011-A)) ... PLAINTIFF AND PACHIRA ECO GARDEN ASSOCIATES SDN BHD 1 S/N fSdQwjj2G0W5uo2j9XJuA **Note : Serial number will be used to verify the originality of this document via eFILING portal (Company No.: 201401006108 (1082188-P)) ... DEFENDANT JUDGMENT [1] Before the court is an application for a Fortuna injunction to restrain the presentation of a winding-up petition, arising from statutory notices issued pursuant to Sections 465(1)(e) and 466(1)(a) of the Companies Act 2016 for alleged unpaid landscape maintenance services rendered after the expiry of a written contract. The plaintiff, a subsidiary of a publicly listed company operating a hotel business, contends there is a bona fide dispute over the alleged debt as there was no valid contract after the written agreement expired, the scope and performance of works are disputed, and the presentation of a winding-up petition would cause irreparable damage to its business and reputation. The defendant argues there is no substantial dispute as services continued to be provided and accepted under an oral contract or by conduct, with invoices acknowledged and payments made until shortly before the statutory notices were issued, and that the plaintiff's insolvency is evidenced by substantial quit rent arrears leading to forfeiture proceedings against its properties. Background facts [2] Between 2018 and 2022, the Plaintiff Christine Resort Sdn Bhd, engaged the Defendant Pachira Eco Garden Associates Sdn Bhd to provide landscape management and 2 S/N fSdQwjj2G0W5uo2j9XJuA **Note : Serial number will be used to verify the originality of this document via eFILING portal maintenance services under three successive Landscape Management Agreements (“LMAs”). [3] The first LMA dated 4.12.2017 was for a three-year term expiring on 31.12.2020. The second LMA dated 8.12.2020 was for a one-year term expiring on 31.12.2021. The third and final LMA dated 15.12.2021 was for a one-year term expiring on 31.12.2022. These agreements were signed between the Defendant and the Plaintiff's then-director, Dato' Yap Sing Hock (“Dato' Yap”). [4] The landscape area covered by the LMAs was initially 146 acres but was reduced to approximately 30 acres in the final LMA, following the Plaintiff's divestment of a portion of the land between 2020 and 2021. Under the final LMA, the scope included maintenance of landscape areas and fruit trees, with a monthly maintenance fee of RM25,000. [5] Dato' Yap passed away on 21.5.2022, before the expiry of the final LMA. After the final LMA expired on 31.12.2022, the Defendant continued to issue monthly invoices to the Plaintiff for landscape maintenance services. [6] On 5.3.2024, the Defendant sent a letter to the Plaintiff stating its intention to stop providing services effective 15.3.2024 and demanding payment of RM147,000 allegedly outstanding. Upon receiving that letter, a Plaintiff representative requested a one‐month extension until 15.4.2024 which the Defendant agreed to. The Defendant 3 S/N fSdQwjj2G0W5uo2j9XJuA **Note : Serial number will be used to verify the originality of this document via eFILING portal continued services until 15.4.2024, with the last invoice dated 6.5.2024. [7] In April 2024, the Plaintiff engaged a new landscape contractor who conducted several site visits between 18.4.2024 and 30.5.2024. The contractor produced reports identifying various issues with trees on the property. [8] On 3.9.2024, the Defendant issued a statutory notice to the Plaintiff demanding payment of RM149,962. This was followed by another statutory notice dated 4.9.2024 demanding RM139,000, which was stated to supersede the earlier notice. [9] By letter dated 20.9.2024, the Plaintiff's solicitors disputed the validity of the statutory notices. The Defendant's solicitors responded on 24.9.2024 providing a statement of accounts and requesting confirmation of instructions to accept service of cause papers. [10] On 25.9.2024, the Plaintiff filed an Originating Summons seeking a Fortuna injunction to restrain the Defendant from filing a winding-up petition, along with a declaration that the statutory notices were null and void. [11] The Plaintiff is a wholly-owned subsidiary of Armada Resorts Sdn Bhd, which in turn is wholly owned by Lien Hoe Corporation Berhad (“Lien Hoe”), a publicly listed company. The Plaintiff owns a piece of land at Lot PTD 229494, 4 S/N fSdQwjj2G0W5uo2j9XJuA **Note : Serial number will be used to verify the originality of this document via eFILING portal Mukim Plentong, Masai, Johor Bahru. The company operates Hotel Armada Petaling Jaya through the Lien Hoe group. [12] During this period, three properties owned by the Plaintiff (PTD 239921, PTD 239923, and PTD 239924) became subject to forfeiture proceedings by the Land Office, with quit rent arrears totalling RM1,335,342.00 as confirmed on 10.11.2024. [13] The last payment made by the Plaintiff to the Defendant was on 1.4.2024. According to the Defendant's statement of accounts, this payment was for invoices from April and May 2023. The Originating Summons [14] The Originating Summons filed by the Plaintiff on 25.9.2024 seeks a Fortuna injunction to restrain the Defendant from filing and/or serving a winding-up petition against the Plaintiff based on the statutory notices dated 3.9.2024 and 4.9.2024. The Originating Summons also seeks a declaration that these statutory notices, issued pursuant to Sections 465(1)(e) and 466(1)(a) of the Companies Act 2016, are null and void. Additionally, in the event that the Defendant has already filed a winding-up petition, the Plaintiff seeks an injunction to restrain the Defendant from taking any further steps in prosecuting the petition, including advertising or gazetting it. The application includes prayers 5 S/N fSdQwjj2G0W5uo2j9XJuA **Note : Serial number will be used to verify the originality of this document via eFILING portal for indemnity costs and such further relief as the court deems fit and proper. [15] The application is grounded on several bases, as stated in the supporting affidavit of Cheong Marn Seng dated 25.9.2024: a) the Plaintiff has a bona fide dispute regarding the alleged debt; b) the Plaintiff has counterclaims and/or rights of set-off against the Defendant; c) any winding-up petition and/or process would cause substantial and irreparable damage to the Plaintiff and its parent companies; d) the balance of convenience favours the Plaintiff; and e) the petition if presented would constitute an abuse of the court process. The application is supported by evidence that the written contract had expired, there were deficiencies in the Defendant's work discovered in April 2024, and that presentation of a winding-up petition would adversely affect the Plaintiff and the Lien Hoe group's business relationships and reputation as a publicly listed company operating Hotel Armada Petaling Jaya. 6 S/N fSdQwjj2G0W5uo2j9XJuA **Note : Serial number will be used to verify the originality of this document via eFILING portal Respective parties’ submissions Plaintiff’s submissions [16] The Plaintiff submits that the Fortuna injunction should be granted on two grounds. [17] Firstly, the intended petition has no chance of success as the alleged debt is substantially disputed - there was no valid contract after the expiry of the final LMA on 31.12.2022, the scope and performance of works are disputed, and the Plaintiff has potential counterclaims for defective work. Such disputes require proper trial and should not be determined in winding-up proceedings. The presentation of such a petition would cause irreparable damage to the Plaintiff and the Lien Hoe group's reputation and business relationships. [18] Secondly, the Defendant has chosen to assert a disputed claim through winding-up proceedings rather than pursuing a civil suit, which amounts to an abuse of process, particularly given the timing of the statutory notices shortly after the Defendant's separate suit against other Lien Hoe companies. 7 S/N fSdQwjj2G0W5uo2j9XJuA **Note : Serial number will be used to verify the originality of this document via eFILING portal Defendant’s submissions [19] The Defendant contends that the Fortuna injunction should be refused because the Plaintiff does not have a bona fide dispute on substantial grounds. [20] Despite the expiry of the written contract, services continued to be provided under an oral contract or contract by conduct, evidenced by the Defendant's continued access to the premises, issuance of invoices which were acknowledged by the Plaintiff, and payments made until 1.4.2024. [21] No protests were made against the works or invoices until after the statutory notices were issued, making the Plaintiff's current objections mere afterthoughts. The [22] Defendant further argues that the Plaintiff has not come to court with clean hands, having concealed its financial statements and made deceitful claims about administrative oversights. [23] Additionally, the Plaintiff's insolvency is evidenced by its inability to pay quit rent leading to forfeiture proceedings, making winding-up proceedings appropriate. [24] The questions of irreparable damage become irrelevant when there is no bona fide dispute of the debt. 8 S/N fSdQwjj2G0W5uo2j9XJuA **Note : Serial number will be used to verify the originality of this document via eFILING portal Analysis and findings of the court The Existence of Bona Fide Dispute on Substantial Grounds [25] The Plaintiff contends that there exists a bona fide dispute on substantial grounds concerning the alleged debt claimed by the Defendant. The Plaintiff's primary argument rests on the expiry of the Final LMA on 31.12.2022, with no renewal or new contract in place thereafter. The Plaintiff further argues that there is no evidence of any oral or implied contract post-December 2022, and that site inspections conducted in April-May 2024 revealed substantial deficiencies in the Defendant's work. The Plaintiff also maintains that it has legitimate cross-claims against the Defendant for breach of contract and unauthorised use of land. [26] The Defendant, on the other hand, argues that the contract continued on the same terms after December 2022 through oral agreement and/or conduct, evidenced by the Plaintiff's continued acceptance of services and acknowledgment of invoices until April 2024. The Defendant contends that the Plaintiff never protested against the works or invoices until after receiving the statutory notice, and that the last payment was made on 1.4.2024, covering invoices for works done in April and May 2023. 9 S/N fSdQwjj2G0W5uo2j9XJuA **Note : Serial number will be used to verify the originality of this document via eFILING portal [27] After careful consideration of the evidence and submissions, I find that there is no bona fide dispute on substantial grounds. The evidence shows that the Defendant continued providing services after the expiry of the Final LMA, with the Plaintiff's knowledge and acceptance. This is demonstrated by the uncontested delivery and acknowledgment of invoices by the Plaintiff between January 2023 and April 2024, with the Plaintiff's company stamp and signature appearing on these documents. The Defendant's Statement of Accounts (referenced in Encl. 3, p.277-279) shows a consistent pattern of invoicing and partial payments throughout this period, with the last payment made by the Plaintiff on 1.4.2024 amounting to RM7,000 for invoices INV2310-0158 and part of INV2310-0159, which covered work performed in April and May 2023. [28] Significantly, on 5.3.2024, the Defendant issued a letter to the Plaintiff stating, “pihak kami Pachira Eco Garden Associates Sdn Bhd ingin menamatkan perkhidmatan penyelengaraan landskap untuk kelab golf bermula 15.3.2024” and demanding payment of outstanding amounts totaling RM147,000 within 30 days. According to the Defendant's affidavit, upon receiving this letter (which the Plaintiff acknowledged receipt of on 7.3.2024), a representative of the Plaintiff contacted the Defendant to request an extension of services until 15.4.2024. The Defendant agreed to this extension, as evidenced by the final invoice dated 6.5.2024 specifically covering the period 10 S/N fSdQwjj2G0W5uo2j9XJuA **Note : Serial number will be used to verify the originality of this document via eFILING portal from 15.3.2024 to 15.4.2024. The Plaintiff's conduct in requesting this extension, rather than disputing the existence of any contractual relationship or obligations, strongly indicates the existence of an ongoing contractual relationship between the parties. [29] Furthermore, the Plaintiff never raised any complaints about the quality of the Defendant's work until after receiving the statutory notices in September 2024, despite claiming to have discovered deficiencies in April 2024 through the new contractor's site visits. This timeline of events and documentary evidence demonstrates that both parties conducted themselves in a manner consistent with the continuation of their contractual relationship after the expiry of the written agreement. [30] The Federal Court in Boustead Trading (1985) Sdn Bhd v Arab-Malaysian Merchant Bank Berhad [1995] 1 MLRA 738 established that a party who receives contract documents and does not protest the terms, but instead makes payment, is bound by those terms. Here, the Plaintiff not only received and acknowledged invoices with company stamps and signatures for over 16 months (January 2023 to April 2024) following the expiration of the written contract on 31.12.2022, but also made multiple payments toward these invoices, with the last payment being made on 1.4.2024 for invoices from April and May 2023. The Plaintiff's conduct goes well beyond mere silence, particularly evident in its representative's request for a one-month extension of 11 S/N fSdQwjj2G0W5uo2j9XJuA **Note : Serial number will be used to verify the originality of this document via eFILING portal services until 15.4.2024 upon receiving the Defendant's termination letter dated 5.3.2024, an action the Federal Court in Boustead would characterise as “influenced by conduct” rather than passive acceptance. [31] Furthermore, the Plaintiff's failure to raise any objection to the invoices or services until after receiving the statutory notices in September 2024 mirrors the situation in Boustead where the court held it would be “unconscionable and inequitable” to permit a party to question the validity of arrangements they had actively participated in for months, especially when the other party had relied on this conduct to continue providing services. The Plaintiff's actions - allowing the Defendant continued access to its private property to perform landscape maintenance, accepting and acknowledging detailed monthly invoices, making substantial payments without protest, and explicitly requesting service extension - collectively represent the type of conduct that created a reasonable expectation in the Defendant that a contractual relationship persisted, making it inequitable for the Plaintiff to now claim no valid contract existed. [32] The Plaintiff cites Kim Seng Hotel and Coffee Shop v Chuah Teong Buan [1971] 1 MLJ 233 (FC) and Ganesan v Baskaran [1986] 2 MLJ 26 (SC) to argue that disputes about oral contracts require proper trial adjudication rather than summary winding-up proceedings. In Kim Seng Hotel, the dispute centered on whether an entirely new oral 12 S/N fSdQwjj2G0W5uo2j9XJuA **Note : Serial number will be used to verify the originality of this document via eFILING portal agreement existed that fundamentally altered a written tenancy by creating an irrevocable license coupled with an interest based on a $20,000 payment. Similarly, in Ganesan, the case turned on whether there was a separate oral undertaking constituting a condition precedent regarding obtaining consent from the Ruler-in-Council for land transfer - a material term absent from the written agreement. Unlike those cases which involved distinct oral agreements that substantially modified written contracts, the present case involves a continuation of services under established terms from the Final LMA, with modifications evidenced by consistent conduct of both parties over multiple months, including invoice acknowledgments, payments until April 2024, and most tellingly, the Plaintiff's request for extension of services upon receipt of the Defendant's termination letter. [33] The Plaintiff's allegations regarding defective work only surfaced after receiving the statutory notice, despite having had multiple opportunities to raise such concerns earlier. This mirrors the situation in Poney Garments Sdn Bhd v Bambika Sdn Bhd [2024] CLJU 603 (HC), where this court held that allegations surfacing only after a statutory demand constituted “a belated attempt to challenge a contract it had voluntarily performed without protest.” In Poney Garments, the court found that a party who performed a contract for four years, receiving invoices and making payments without objection, was estopped from suddenly disputing the agreement's validity after a statutory notice was issued. 13 S/N fSdQwjj2G0W5uo2j9XJuA **Note : Serial number will be used to verify the originality of this document via eFILING portal [34] Similarly here, the Plaintiff continued to receive services, acknowledge invoices, and make payments until April 2024, even requesting an extension of services in March 2024, only to challenge the arrangement after receiving the statutory notice. As stated in Poney Garments, “to turn around now and cry foul is simply unacceptable and inequitable.” [35] The Plaintiff's argument regarding the fruit trees maintenance is similarly unconvincing. The scope of work under the Final LMA clearly included maintenance of fruit trees within the designated area, as explicitly stated in Clauses 1.2, 2.1(a), and 2.1(b) of the Final LMA [Encl. 3, p.184]. This is further supported by the Defendant's quotation dated 15.11.2021 showing it had quoted and billed the Plaintiff for the planting of 300 durian trees around the time of the Final LMA [Encl. 12, p.108], with corresponding entries in the Defendant's Statement of Accounts dated 28.1.2022, 22.2.2022, and 31.3.2022 [Encl. 3, p.277]. The Defendant's alleged denial of this obligation appears contradictory to its own documentation and conduct, and does not create a substantial dispute sufficient to warrant an injunction. [36] This is particularly evident given the Plaintiff's continued acceptance of services without any documented protest until after the statutory notice was issued. Despite claiming to have discovered deficiencies in the Defendant's work in April 2024, the Plaintiff acknowledged receipt of the 14 S/N fSdQwjj2G0W5uo2j9XJuA **Note : Serial number will be used to verify the originality of this document via eFILING portal Defendant's final invoice dated 6.5.2024 without raising any objections at that time, undermining the credibility of its current position. [37] The purported cross-claims regarding unauthorised use of land and defective works appear to be afterthoughts, raised only after the statutory notice was issued. The evidence reveals that despite receiving invoices for work between January 2023 and April 2024 and making a payment as recently as 1.4.2024, the Plaintiff never raised any concerns about defective work until after receiving the statutory notices in September 2024. In site inspections conducted from 18.4.2024 to 30.5.2024, the Plaintiff claimed to have discovered deficiencies in the Defendant's work, yet even after these inspections, the Plaintiff acknowledged receipt of the Defendant's final invoice dated 6.5.2024 without protest. Similarly, the claim regarding unauthorised use of the Plaintiff's land for storage was never communicated prior to this action. [38] As held by the Court of Appeal in Bluedream City Development Sdn Bhd v Pembinaan Bina Bumi Sdn Bhd [2024] 3 MLRA 909, where the court determined that claims “arising as belated attempts to challenge a contract that had been voluntarily performed without protest” do not constitute bona fide disputes, such eleventh-hour claims do not meet the substantiality threshold required to warrant an injunction against winding-up proceedings. The Bluedream decision emphasised that commercial parties are expected to raise 15 S/N fSdQwjj2G0W5uo2j9XJuA **Note : Serial number will be used to verify the originality of this document via eFILING portal genuine disputes contemporaneously rather than retrospectively when faced with statutory demands, as timely objection is crucial to establishing the genuineness of a dispute. [39] Accordingly, I find that there is no bona fide dispute on substantial grounds that would justify the grant of a Fortuna injunction. The evidence overwhelmingly suggests that the Plaintiff acknowledged and accepted the continuation of services post-December 2022, making payments accordingly until April 2024. The Originating Summons must therefore be dismissed. Irreparable Harm from Presentation of Winding-up Petition [40] The Plaintiff contends that the presentation of a winding-up petition would cause irreparable harm to both itself and the Lien Hoe group. The Plaintiff has deposed on affidavit that such harm would include damage to the group's reputation as a public listed company and hotel operator, disruption to relationships with creditors, suppliers and contractors, adverse implications on existing and prospective business dealings, impairment of creditworthiness, and potential triggering of loan defaults, particularly affecting Hotel Armada's banking facilities. [41] The Defendant argues that irreparable harm is immaterial where there is no bona fide dispute of the debt on substantial grounds. The Defendant submits that as the 16 S/N fSdQwjj2G0W5uo2j9XJuA **Note : Serial number will be used to verify the originality of this document via eFILING portal debt is not genuinely disputed, any potential damage to the Plaintiff becomes irrelevant to the determination of the Fortuna injunction application. [42] I find that the question of irreparable harm, while a relevant consideration in Fortuna injunction applications generally, is not determinative in this case. As held by the Court of Appeal in Pacific & Orient Insurance Co Bhd v Muniammah Muniandy [2011] 1 CLJ 947, where an insurer sought to restrain a judgment creditor from filing a winding-up petition based on a valid court judgment, the issue of damage only becomes material if the debt is genuinely disputed in the first place. The court emphasised that the Fortuna injunction principles operate on two distinct branches - the first applying where the petition has no chance of success and might produce irreparable damage, and the second where a petitioner has chosen to assert a disputed claim through winding-up rather than a suitable alternative procedure. Ramly Ali JCA (as he then was), delivering the judgment, held that “where there is no bona fide dispute and the petition is not hopeless, then damage alone cannot justify an injunction to restrain an otherwise legitimate statutory remedy.” In the present case, having already found that there is no bona fide dispute of the debt on substantial grounds, the Plaintiff's contentions regarding irreparable harm, though not without merit, become academic. 17 S/N fSdQwjj2G0W5uo2j9XJuA **Note : Serial number will be used to verify the originality of this document via eFILING portal [43] This principle was recently affirmed in Poney Garments, where this court held that the primary consideration is whether the debt is disputed bona fide and on substantial grounds, with potential damage being only a secondary factor that becomes relevant if the debt is genuinely disputed. [44] Having already found that there is no bona fide dispute of the debt on substantial grounds, the Plaintiff's contentions regarding irreparable harm, though not without merit, become academic. While the court acknowledges that winding-up proceedings may impact a company's reputation and business operations, as recognised in WRP Asia Pacific Sdn Bhd v Dato' Lee Son Hong [2023] 1 LNS 2148 (HC), where the court observed that “the mere initiation of a winding-up petition can inflict irreparable harm to a company's reputation and its ongoing business operations,” such considerations cannot override a creditor's statutory right to enforce a legitimately owing debt where there is no substantial dispute. Unlike in WRP, where the court found triable issues regarding the existence of the alleged debt and granted the Fortuna injunction to prevent irreparable harm, here the evidence clearly demonstrates acknowledgment of an ongoing contractual relationship without protest until after the statutory notices were issued. [45] The Plaintiff's reliance on HSC Logistics Sdn Bhd v Teong Tiek Wah [2023] 7 CLJ 916 (HC) to support the position that, in the context of a disputed debt, the irreparable 18 S/N fSdQwjj2G0W5uo2j9XJuA **Note : Serial number will be used to verify the originality of this document via eFILING portal damage that a winding‐up petition would likely cause is a compelling reason for the court to grant an injunction against such proceedings is misplaced. In HSC Logistics, the court specifically held that a Fortuna injunction can only be granted if both limbs of the test are satisfied: first, the winding-up petition has no chance of success, and second, the company will suffer irreparable harm from the presentation of such petition. The court in HSC Logistics dismissed the application precisely because the debt was undisputed and supported by clear documentary evidence, making the defendant's petition viable regardless of potential harm to the company. [46] Similarly here, the evidence overwhelmingly demonstrates that the Plaintiff acknowledged and accepted the Defendant's services until April 2024 through multiple uncontested actions: acknowledging receipt of invoices between January 2023 and April 2024, making payments as recently as 1.4.2024 for services rendered, and notably requesting an extension of services until 15.4.2024 after receiving the Defendant's termination letter on 5.3.2024. These documented actions establish an ongoing contractual relationship that undermines any claim of a bona fide dispute. The Plaintiff's concerns about potential harm to its reputation and business operations, while understandable given its position as part of a listed group operating Hotel Armada Petaling Jaya, cannot serve to defeat the Defendant's legitimate recourse to the statutory remedy of 19 S/N fSdQwjj2G0W5uo2j9XJuA **Note : Serial number will be used to verify the originality of this document via eFILING portal winding up where the underlying debt is not substantially disputed. [47] For these reasons, I find that the potential irreparable harm alleged by the Plaintiff cannot sustain the grant of a Fortuna injunction in circumstances where there is no bona fide dispute of the debt. Commercial Solvency of the Plaintiff [48] The Plaintiff contends that its solvency is irrelevant given that the debt is bona fide disputed. Relying on Court of Appeal decisions in Kumpulan Liziz Sdn Bhd (in liquidation) v Pembinaan Azam Jaya Sdn Bhd [2022] 1 MLJ 570 (CA) and Mobikom Sdn Bhd v Inmiss Communications Sdn Bhd [2007] 3 MLJ 316 (CA), the Plaintiff argues that once a debt is substantially disputed, the company's solvency becomes immaterial. The Plaintiff further asserts through affidavit evidence that both itself and Lien Hoe have positive net asset positions and anticipate improved cash flow from the hotel business. [49] The Defendant argues that the Plaintiff is commercially insolvent, pointing to unpaid quit rent arrears totalling RM1,335,342.00 leading to forfeiture notices on three properties, significant losses shown in financial statements, and the SSM search revealing negative retained earnings of RM62,444,525.00. The Defendant contends that the test of commercial solvency requires immediate availability of 20 S/N fSdQwjj2G0W5uo2j9XJuA **Note : Serial number will be used to verify the originality of this document via eFILING portal funds to meet current liabilities, not merely the existence of assets that might be realisable in the future. [50] Having considered the submissions, I find the Plaintiff is commercially insolvent. As established in Lafarge Concrete (Malaysia) Sdn Bhd v Gold Trend Builders Sdn Bhd [2012] 4 MLRA 112, the Court of Appeal held that the test for commercial insolvency is not whether assets exceed liabilities, but whether there are presently available funds to meet debts as they become due. This principle was clearly articulated in the judgment where Jeffrey Tan JCA (as he then was) stated: “In short, the question is not whether the debtor's assets exceed his liabilities as appeared in the books of the debtor, but whether there are moneys presently available to the debtor, or which he is able to realise in time, to meet the debts as they become due.” The Plaintiff's assertion of having a positive net asset position thus fundamentally misses the mark in relation to the established legal test for commercial insolvency. [51] The evidence reveals compelling indicators of the Plaintiff's commercial insolvency. Three of the Plaintiff's properties (PTD 239921, PTD 239923, and PTD 239924) are subject to forfeiture proceedings due to unpaid quit rent amounting to RM1,335,342.00, as confirmed by the District and Land Office on 10.11.2024 and evidenced in the Defendant's Affidavit of Correction [Encl. 13] and Additional Affidavit [Encl. 24]. This substantial default on a basic statutory obligation strongly suggests an inability to meet current 21 S/N fSdQwjj2G0W5uo2j9XJuA **Note : Serial number will be used to verify the originality of this document via eFILING portal liabilities, particularly when the Plaintiff characterises this significant default merely as an “administrative oversight” without providing any documentation to substantiate this claim. [52] Furthermore, the SSM search presented in evidence shows the Plaintiff has negative retained earnings of RM62,444,525.00 and zero revenue for the financial year ending 31.12.2023, with losses before and after tax of RM8,371,412.00 [Encl. 3, p.29]. The Plaintiff also has an outstanding liability of RM25 million that remains unsatisfied. These financial indicators, when considered collectively with the Plaintiff's conduct in failing to make prompt payment to the Defendant despite acknowledging receipt of services, strongly support the conclusion that the Plaintiff lacks the present ability to meet its current obligations as they fall due, which is the essence of commercial insolvency as defined in Lafarge. [53] The Plaintiff's argument that its solvency is irrelevant given that the debt is bona fide disputed is untenable, as I have already found there is no substantial dispute regarding the debt. This distinguishes the present case from Kumpulan Liziz, where there were genuine disputes regarding facilities and cross-claims related to a terminated joint venture agreement with substantial outstanding obligations between the parties. It also differs from Mobikom, which involved an unregistered arbitration award being challenged on grounds 22 S/N fSdQwjj2G0W5uo2j9XJuA **Note : Serial number will be used to verify the originality of this document via eFILING portal of arbitrator misconduct, creating a legitimate dispute pathway. [54] Here, the Plaintiff's conduct in continuing to receive services and make payments until April 2024, with the last payment made on 1.4.2024, coupled with its request for extension of services after receiving the Defendant's termination letter, negates any suggestion of a bona fide dispute. Unlike the complex contractual and financial entanglements in Kumpulan Liziz or the specialized legal challenge to an arbitration award in Mobikom, this case presents a straightforward commercial relationship evidenced by uncontested conduct of both parties. The significant accumulated losses and outstanding statutory payments demonstrate a present inability to meet current obligations. [55] The Plaintiff's anticipation of improved future cash flows from its hotel business is speculative and, as held in Ace Holding Berhad v Lukman Hakimi Abdullah [2023] MLRHU 521 (HC), commercial solvency requires immediate availability of assets to pay current liabilities, not potential future earnings. In Ace Holding, the High Court emphasised that “the test of commercial solvency or cashflow insolvency require immediate availability of assets to pay current liabilities and not at a future date after the debts have become due and payable,” citing the Supreme Court in Sri Hartamas Development Sdn Bhd v MBf Finance Bhd [1992] 1 MLRA 311; [1992] 1 CLJ (Rep) 303 which noted that “a company may be at the same time insolvent and wealthy. It 23 S/N fSdQwjj2G0W5uo2j9XJuA **Note : Serial number will be used to verify the originality of this document via eFILING portal may have wealth locked up in investments not presently realisable; but although this be so, yet if it has not assets available to meet its current liabilities it is commercially insolvent and may be wound up.” The significant accumulated losses and outstanding statutory payments demonstrate a present inability to meet current obligations. [56] For these reasons, I find that the Plaintiff is commercially insolvent within the meaning of Section 466 of the Companies Act 2016. Having already determined there is no bona fide dispute of the debt, the Plaintiff's commercial insolvency further supports the dismissal of the Originating Summons. Conclusion [57] Based on the foregoing analysis, the Originating Summons (Enclosure 1) must be dismissed. The evidence clearly demonstrates that there is no bona fide dispute of the debt on substantial grounds, as the Plaintiff's conduct in continuing to receive services and make payments until April 2024 indicates acknowledgment of an ongoing contractual relationship post-December 2022. The Plaintiff's allegations of defective work and cross-claims appear to be afterthoughts raised only after receiving the statutory notice. While the presentation of a winding-up petition may cause harm to the Plaintiff's business operations, such considerations become immaterial in the absence of a genuine dispute of the debt. 24 S/N fSdQwjj2G0W5uo2j9XJuA **Note : Serial number will be used to verify the originality of this document via eFILING portal [58] Furthermore, the evidence of the Plaintiff's commercial insolvency, particularly the substantial quit rent arrears leading to forfeiture proceedings and negative financial indicators, supports the appropriateness of winding-up proceedings as a legitimate remedy for the Defendant. The application for a Fortuna injunction is accordingly dismissed with costs of RM3,000.00 to be paid by the Plaintiff to the Defendant. 29 April 2025 ATAN MUSTAFFA YUSSOF AHMAD Judge Kuala Lumpur High Court (Commercial Division) Counsel: For the Plaintiff: Karen Yong with Kong Mei-Yan and Nathaniel Low (Messrs Robert Low & Ooi) For the Defendant: Shereena Gill with Mavin Rajah a/l Vinkneswaran (Messrs Law Chambers of Shakila) 25 S/N fSdQwjj2G0W5uo2j9XJuA **Note : Serial number will be used to verify the originality of this document via eFILING portal