JCW

[Fortuna Injunction – pending Section 37 and/or Section 42 Arbitration Act 2005 application] Justin acted for the plaintiff to apply for an ad interim Fortuna Injunction to restrain the defendant from proceeding or acting upon the statutory notice and proceeding with a winding-up petition against the plaintiff. This decision further clarifies the position of the law on Fortuna Injunctions and is helpful for litigants as a winding up threatened to be filed based on an award challenged and/or not registered as a Court Judgment yet arise often in Courts. (i)The Court held that the case of Mobikom Sdn Bhd v Inmiss Communications Sdn Bhd [2007] 3 MLJ 318 which is a pre-Arbitration Act 2005 case is still applicable to injunct a winding up proceedings when there is a pending Sections 37 and/or 42 Arbitration Act 2005 application to challenge the Arbitration Award plus the recognition and enforcement application by the Defendant. (ii)Despite the Final Award, the Plaintiff had been disputing the alleged debt both on liability and quantum right from the stage the dispute was referred to arbitration. It would be premature and improper for the Winding Up Petition to be presented at this stage before the pending actions are disposed of. The argument by the Defendant that unlike Section 17 of the old Arbitration Act 1952 (relied by Mobikom’s case), the wordings of the new Section 36 of the Arbitration Act 2005 grants sufficient power to the party to rely on the Award to initiate Court proceeding is plainly misconceived as there is effect hardly any significant difference in the wording of the finality clause in both sections, except for different usage of words which for all intents and purposes convey the same meaning.