Carimin Engineering Services Sdn Bhd v Dynamic Navigation Sdn Bhd [2025] MLJU 112 (High Court, KL) per Aran Mustaffa Yusof Ahmad J - Seeking a Fortuna Injunction to Stop a Winding Up When There Was Still An Issue To Be Disposed Of Under An Arbitration Clause

Prologue

This is the first case write up for 2026 in IMSML Web Article series. This reported case was the first case presented by the writer at IMSML’s Maritime Law Course conducted on 29-30 January 2026 at the Asian International Arbitration Centre (AIAC) as part of the ‘Development of Case Laws’ Module.

Background to the Case

The case concerned disputed sums under two charterparty agreement,both containing Kuala Lumpur Regional Centre for Arbitration (KLRCA) BIMCO Dispute Resolution Clauses. Note, that KLRCA is the precursor body to the now well known Asian International Arbitration Centre (AIAC), situated in Kuala Lumpur.

On 23 June 2023, the Defendant (D) demanded RM368,315 from the Plaintiff (P). However, the P only partially paid RM187,136 as this not not disputed. However, the remaining was disputed. On 11 July 2023, the P’s lawyers sent a letter to the D, disputing the balance of the sum alleged owed. On 10 October 2023, D commenced action at the KL Sessions Court for the outstanding sum, ie RM240.260.63. On 15 November 2023, D obtained an ex parte Mareva Injunction against P. On 21 February 2024, the injunction was set aside with costs by the Sessions Court.

In a separate legal action (Suit 813), the P made an application for stay of the proceedings under the Arbitration Act 2005, Section 10, with respect to the claims made under the charterparty. The hearing for this application was fixed for hearing on 6 December 2024. At the same time, the P also filed an application for damages following the setting aside of the ex parte Mareva injunction, where the matter was still pending further directions from the Sessions Court.

The D then went ahead and issued a statutory notice of demand form the sum of RM240,260.63 under Section 466(1) of the Companies Act 2016. In response, the P wrote to both the Sessions Court and D on 22 July 2024 to expedite the stay application. There was no response from the D to this letter. By contrast, on 14 August 2024, the D instead wrote to the Sessions Court to get P’s Suit 813 withdrawn, but without any order as to costs. The suit was only lodged two days later at 5.58 pm. The P objected that the withdrawal would be prejudicial. At the date of the hearing in this case, Suit 813 remained active.

The Decision of the Court

Given the multiplicity of proceedings and the possibility inconsistent findings, Mr Justice Atan Mustaffa Yussof Ahmad made the following findings: First, the balance favoured granting of the Fortuna injunction to stop the winding up petition. Even if the winding up petition was unsuccessful, it could have a devastating impact on a company’s reputation. It would result in unquantifiable damage would cannot be compensated with damages. Second, the sum of the debt was in dispute even though the P made partial payment. There was no admission of the full debt. Winding up does not extend to a disputed debt. If the winding up process was left unchecked, it could cause severe and irreversible prejudice to the P’s corporate group. Third, the D’s attempt at winding up the P was an abuse of process as the P’s stay application has yet to be disposed of in the light of the arbitration clause.

His Lordship therefore concluded that as there was a bona fide dispute concerning the debt claimed, the requirements of granting a Fortuna Injunction to stop the winding up petition was established. The Fortuna Injunction should be granted as the winding up process would cause irreparable damage to the P’s reputation and business operation.

Thank you for reading IMSML Web Article 26/2026

Stay tuned for the next IMSML Web Article 27/2026:  New Golden Sea Shipping Pte Ltd and Another v Mahatit bin Mohd Harun (The Sole Proprietor Reading Under the Name and Style as Delmas Maju Industri and Others) [2025] MLJU 3885 (sessions Court, Klang) - ‘Pretend Agents’ Do Exist in the Shipping Supply Chain

Signing-off for today,

Dr Irwin Ooi Ui Joo, LL.B(Hons.)(Glamorgan); LL.M (Cardiff); Ph.D (Cardiff); CMILT

Professor of Maritime and Transport Law

Faculty of Law

Universiti Teknologi MARA Shah Alam

Selangor, Malaysia

Tuesday,  7 July 2026

Note that I am the corresponding author for the IMSML Website Articles. My official email address is: uijoo310@uitm.edu.my