IN THE HIGH COURT AT KUALA LUMPUR (COMMERCIAL DIVISION)
SUIT NO. D-22NCC-689-2009
GLOBAL PROCESS SYSTEMS SDN BHD
(Company No: 502658-K) … PLAINTIFF
CORETECH RESOURCES PTE LTD
(Company No: 200413141R) … DEFENDANT
BEFORE THE HONOURABLE JUDGE Y.A. DR. HAJI HAMID SULTAN BIN ABU BACKER
This is my judgment in respect of the plaintiff’s claim in seeking declaratory and injunctive relief to restrain the defendant from commencing the winding up proceeding.
At the case management stage and at the trial stage I have cautioned the learned counsel for the defendant that the threshold requirement for the plaintiff to obtain an order what is often referred to as “fortuna injunction” is very low in contrast to establishing a claim for monetary sum in a civil suit. My observation in the case of Feller Resources Sdn
Bhd v Contramec Sdn Bhd  1 LNS 66 has some relevance to this case. In that case I have stated:
“(i) As a general rule payment certificates relating to construction dispute must be honoured. And that does not mean a party can present a winding up petition as of right for its breach. Support for the proposition is found in a number of cases. The defendant had relied on the following cases namely (a) Kumpulan Liziz Sdn Bhd v. Pembinaan OCK Sdn Bhd  4 CLJ 709; (b) Pembenaan Leow Tuck Chui & Sons Sdn Bhd v. Dr.Leela’s Medical Centre Sdn Bhd  2 CLJ 345; (c) Antah Schindler Sdn Bhd v. Ssangyong Engineering & Construction Co Ltd  3 CLJ 641; (d) Bandar Raya Development Bhd v. Woon Hoe Kan & Sons Sdn Bhd  1 LNS 11;  1 MLJ 375. The cases relied on by the defendant relates to summary judgment. The plaintiff in those cases had not proceeded to wind up the company as what the defendant in this case attempts to do without a judgment. In the instant case the plaintiff is not challenging the payment certificates but alleging that there is overpayment. The allegation of the plaintiff is well documented and no reasonable mind at this stage will say that there is no issue between the plaintiff and the defendant to permit the defendant to present a winding up petition. And the court is not required at this stage to scrutinize the evidence as it would have done when dealing with a summary judgment application.
(ii) Filing a civil suit to obtain judgment is a right but winding up of company is only a discretionary relief and the consideration and evaluation of evidence and weight to be given may differ as the defendant has better alternative.
(iii) The nature of injunction which the plaintiff is seeking are referred to as “Fortuna Injunction”, [see Fortuna Holdings Pty Ltd v. The Deputy Commissioner of Taxation  VR 83]. I have dealt with this area of jurisprudence in TPPT v. Jurukur Berjasa  1 LNS 1221. I do not wish to repeat the same save to say where the debt claimed is bona fide disputed on substantial ground, the court would grant the injunction when it is just and equitable to do so. The same test may not be applicable when the court is exercising its jurisdiction and/or power when hearing a winding up petition. The threshold here is much lower, then the winding up court, as the law permits a company to be wound up if it is shown that it is not able to pay debt due and owing which exceeds RM500.00.
(iv) I have taken into consideration that the defendant if he so chooses can proceed by arbitration or alternatively proceed to file a suit to recover the sum allegedly owing as the plaintiff in the instant case has no objection to both. ”
1. The plaintiff is part of the Global Process System Group of Companies with its head office in Dubai. There was instruction through the office of the plaintiff for supply of services for two oil platforms, one called “Cendor Producer” located in Malaysian waters and another known as the “Maleo Producer” located in Indonesian waters. There were 5 unpaid invoices. The plaintiffs version was that the work was done for their Head Office in Dubai which is a separate entity and the defendant’s version was that the plaintiff had not made it clear that the work was for
the “Head Office” and because they instructed the work to be done they are liable. The defendant also in their submission say that the defendant was acting for undisclosed principal and is equally liable pursuant to section 183 of Contract Act 1950 (CA 1950).
2. Four witnesses gave evidence for the plaintiff and three for the defendant. The witnesses of the plaintiff consisted of people employed by the plaintiff as well as the group. All of their versions were consistent and I will say they generally admitted that (i) they have instructed the defendant, (ii) the work was satisfactorily done, (iii) the work was not for the plaintiff, (iii) the Head Office for Dubai was responsible for payment. The documentary evidence also to some extent supports the plaintiffs version. The defendant also had subpoenaed one of the employee of the plaintiff (DW2). That witness’s evidence also supports the plaintiffs case and in evidential terms is fatal to the defence as DW2 stands as the defendant’s witness. The other witnesses of the defendant gave evidence to establish their case as pleaded in the defence.
3. I have read the evidence, read the documents and submission of the parties in detail. I take the view the plaintiffs prayer must be partly allowed. My reasons inter alia are as follows:
(i) It is my finding that the plaintiff’s and the defendant’s witnesses were witnesses of truth. There appears to be miscommunication as to who should pay and to whose benefit the work was done. I will say from the evidence the defendants were less prudent in not ensuring the right party when no work was actually done for the plaintiff, or at the plaintiffs premises etc;
(ii) For the purpose of granting the relief as prayed, I need not make a finding as to who is liable at this stage. I am satisfied that the plaintiffs have established that the debt is bona fide disputed on substantial ground;
(iii) The defendant’s argument that section 183 of CA 1950 will make the plaintiff liable has no merits in respect of this action, and based on the evidence adduced. In addition, there was no counterclaim by the defendant for the sum claimed for me to deal with issue of liability and quantum. And all the necessary and interested parties were not before the court, to make any such findings.
4. For reasons stated above, I allow the plaintiffs prayers (a) and (d) with costs. The defendant, to pay the plaintiff a sum of RM 50,000.00 as costs.
I hereby order so.
(Y.A. DR. HAJI HAMID SULTAN BIN ABU BACKER)
High Court (Commercial Division)
Date: 23rd April 2010
For the Plaintiff: Kuhendran Thanapalasingam (Syed Haris bin Syed
Yahya with him); M/s Zul Rafique & Partners For the Defendant: S.Y.Liew; M/s Shearn Delamore & Co.