Malaysia Case Law: Decisions & Judgments

Topic

Bona fide dispute of debt

Legal area

Court

27 May 2024

JENERI OIL PALM SDN BHD DITALI PALM OIL MIL SDN BHD

Citation

WA-24NCC-46-01/2024 (Mahkamah Tinggi)
Court

High Court
Case number

WA-24NCC-46-01/2024 (Mahkamah Tinggi)

Applicant failed to demonstrate a bona fide disputed debt on substantial grounds; respondent produced a signed 2022 audit confirmation and a detailed running account explaining the s.466 demand; applicant's lack of contemporaneous challenge, reliance on an undated self-serving document and a misleading WhatsApp exhibit undermined its case; P&O v Muniammah conditions for a Fortuna injunction were not met; application dismissed with costs RM5,000.00.
27 Sept 2022

MAJU HOLDINGS SDN BHD SPRING ENERGY SDN BHD

Citation

WA-24NCC-144-03/2022 (Mahkamah Tinggi)
Court

High Court
Case number

WA-24NCC-144-03/2022 (Mahkamah Tinggi)

The application was dismissed because the debt was not bona fide disputed: the consent order and settlement agreement created an enforceable obligation of RM48,000,000 and the applicant admitted an outstanding sum of RM17,200,000; therefore the Fortuna injunction test was not satisfied.
22 Sept 2021

ATM Development Sdn Bhd Pembinaan Melima (M) Sdn Bhd

Citation

WA-24NCC-375-09/2021 (Mahkamah Tinggi)
Court

High Court
Case number

WA-24NCC-375-09/2021 (Mahkamah Tinggi)

Because the Defendant held an enforceable adjudication decision and consequent High Court judgments which were neither stayed nor set aside, the debt was not bona fide disputed; issuance of the s466 statutory notice was not an abuse of process and the Fortuna injunction was refused, therefore the interlocutory applications were dismissed with costs.
16 Feb 2021

SIME DARBY ENERGY SOLUTION SDN BHD (sebelum ini dikenali sebagai SIME DARBY OFFSHORE ENGINEERING SDN BHD) (No. Syarikat: 214416-V) RZH SETIA JAYA SDN BHD (NO. Syarikat: 539404-K)

Citation

B-02(NCC)(A)-695-06/2020 (Mahkamah Rayuan)
Court

NCC
Case number

B-02(NCC)(A)-695-06/2020 (Mahkamah Rayuan)

The Court of Appeal allowed the appeal, holding the High Court erred in granting the Fortuna injunction because the respondent failed to establish a bona fide substantial dispute or timely commenced arbitration/proceedings to rebut the statutory presumption of insolvency; an adjudication decision can ground a winding up petition and the injunction was an inappropriate interference with the statutory and common law rights of the adjudication beneficiary to pursue winding up or enforcement.
8 Sept 2020

Alpine Horizon Development Sdn Bhd (No. Syarikat: 898454-M) Koh Boon Hwee (P) (No. K/P: 621014-01-5812)

Citation

JA-24NCvC-170-03/2020 (Mahkamah Tinggi)
Court

High Court
Case number

JA-24NCvC-170-03/2020 (Mahkamah Tinggi)

Plaintiff established a prima facie case of abuse of process and that presentation of a winding up petition would cause irreparable harm; there existed serious bona fide issues to be tried on the circumstances and evidence relied upon by Plaintiff, and the balance of convenience favored granting a Fortuna injunction to restrain Defendant from filing or continuing a winding up petition arising from the s.466 notice dated 27.02.2020.
8 Sept 2020

Daniel Siew for the Petitioner [Messrs Lee Kuang Mang & Co.] Mohd Faiz Bad Rahim for the Respondent [Messrs Rastam Singa & Co.]

Citation

COMPANIES (WINDING UP) NO. WA-28NCC-141-01/2020 (Mahkamah Tinggi)
Court

WINDING UP
Case number

COMPANIES (WINDING UP) NO. WA-28NCC-141-01/2020 (Mahkamah Tinggi)

The statutory demand was validly issued and served; the High Court order of 11.7.2019 expressly ordered immediate payment of the sum and was not appealed or set aside and therefore binding; non-payment of a valid statutory demand creates a presumption of inability to pay; the Respondent failed to rebut that presumption or establish a bona fide dispute preventing enforcement of the demand; therefore the winding up petition succeeds and a winding up order is appropriate.
10 Mar 2020

CHENGALJATI SDN BHD JERAM ANGGUN SDN BHD

Citation

DA-22NCC-4-05/2019 (Mahkamah Tinggi)
Court

High Court
Case number

DA-22NCC-4-05/2019 (Mahkamah Tinggi)

Transfer refused because the plaintiff's place of business and its directors are in Kelantan, the statutory notice was addressed to the Kelantan address, the defendant failed to particularise Kuala Lumpur witnesses, and the balance of convenience did not favour transfer; injunction continued because the debt was bona fide disputed on substantial grounds given unperfected subcontract, conflicting affidavits about receipt of a demand letter and disputed repayment terms, so restraint on filing/proceeding with winding-up petition was justified.
6 Feb 2020

CHING CHEE KONG (NRIC NO.: 571204-01-6212) ....PETITIONER PROSMIER CONSTRUCTION SDN BHD (COMPANY NO.: 598398-X)

Citation

JA-28NCC-218-09/2019 (Mahkamah Tinggi)
Court

High Court
Case number

JA-28NCC-218-09/2019 (Mahkamah Tinggi)

The court accepted the respondent's written admission (letter and statement of account) that RM146,750 was outstanding and found no bona fide dispute on substantial grounds or prima facie evidence to the contrary; the jurat/translation objection failed because the petitioner was conversant in Malay and translation for technical terms was permissible; the respondent's counterclaim lacked prima facie substance to defeat the petition; accordingly the winding-up petition was allowed and costs awarded.