Geopancar Sdn Bhd v M101 Entity Sdn Bhd (Summons No. WA-24C(ARB)53-11/2017)

that until the final disposal of the disputes between the parties by arbitration or otherwise, the defendant be restrained 2 whether by its directors, its servants or agents from making a demand on Bank Guarantee No. T807171BG1031040 dated 20.4.2017 issued by AmBank (M) Sdn Bhd, Kuala Lumpur (the “Bank Guarantee”); and

(ii) that until the final disposal of the disputes between the parties by arbitration or otherwise, the defendant be restrained whether by its directors, its servants or agents from receiving any proceeds under the Bank Guarantee, assuming that a demand has been made. [2] Having considered the application and the submission of the parties, this Court had dismissed the Originating Summons and enclosure (4) with costs. The Salient Facts [3] The defendant is a Developer and had engaged Web Structures (Malaysia) Sdn Bhd (“Web Structures”) as the Civil and Structural Engineer to consult the defendant in relation to the sub-structure works, that is the foundation of two blocks of building consisting of 80 storeys with a Ferris wheel in between the two blocks. [4] The said project is known as “Cadangan Pembangunan 2 Blok Perdagangan bercampur 81 dan 80 Tingkat Serta Sebuah Roda Pemerhati “Ferris Wheel” Yang Mengandungi: (a) Menara 1 yang Terdiri Daripada : (1) 1 Tingkat Kemudahan (Di Aras 78) (ii) 25 3 Tingkat Suit Pejabat (Di Aras 53 hingga 77), (iii) 1 Tingkat Breaktank dan Ruang M&E (DI Aras 52A), (iv) 5 Tingkat Perniagaan dan Suit Pejabat (Di Aras 48 hingga 52), (v) 1 Tingkat Ruang Kemudahan (Di Aras 47), (vi) 34 Tingkat Suit Pejabat (Di Aras 13 hingga 46), (b) Menara 2 yang Terdiri Daripada : (i) 1 Tingkat Kemudahan (Di Aras 77), (ii) 24 Tingkat Suit Pejabat (DI Aras 53 hingga 76), (iii) 1 Tingkat Breaktank Dan Ruang M&E (Di Aras 52A),

(iv) 5 Tingkat Perniagaan dan Suit Pejabat (Di Aras 48 hingga 52),

1 Tingkat Ruang Kemudahan (Di Aras 47), (iv) 34 Tingkat Suit Pejabat (Di Aras 13 hingga 46), (c) Sebuah Roda Pemerhati “Ferris Wheel” (Di Aras 53), Termasuk 14 Tingkat Podium yang Mengandungi 2 Tingkat Ruang Niaga (Di Aras Tanah dan Mezanin) dan 12 Tingkat Tempat Letak Kereta (Di Aras 1 hingga 12) dengan 1 Tingkat Basemen, Di Atas Lot 1713 (Lot Lama 412) Seksyen 41, Jalan Raja Muda Abdul Aziz Kampong Bahru, Kuala Lumpur untuk Tetuan M101 Entity Sdn Bhd (“the Project”). [5] The plaintiff was subsequently awarded as the sub-structure contractor to carry out the construction works in relation to “Site Clearance, Demolition Works, Piling Works, Diaphragm Wall and Plunge in Column” for a lump sum amount of RM75,800,000.00 by way of a Letter of Award issued by the Architect dated 10.2.2017. [6] The plaintiff and the defendant then entered into a contract incorporating the Persatuan Akitek Malaysia (“PAM”) Standard Form of Contract (“Conditions of Contract”). 4 [7] Following the appointment of the plaintiff, the plaintiff provided a bank guarantee to the defendant to secure the plaintiff’s performance of the Project (“Bank Guarantee”). [8] Prior to the employment of Web Structures being mutually determined, the plaintiff had submitted alternative design to Web Structures for their comment. Vide emails dated 23.5.2017, 31.5.2017 and 4.7.2017, revised construction drawings submitted by the plaintiff were reviewed and approved by Web Structures. [9] Web Structures ceased to be the Engineer for the Project on 19.7.2017. Meinhardt (M) Sdn Bhd (“Meinhardt”) was subsequently appointed to replace Web Structures as the Civil and Structural Engineer and the plaintiff was informed vide a letter dated 24.7.2017. [10] Meinhardt found that the design parameters, which formed part of the alternative design submitted by the plaintiff in the construction drawings do not correspond with the Specification in the Contract Documents after analyzing the data obtained from the Data Report for Bored Pile Instrumented Bi-Directional Load Test (PTP1) (“the PTP Report”) provided by the plaintiff. [11] Meinhardt then wrote an email to the plaintiff dated 24.8.2017 stating that the group pile calculation was not acceptable in view of PTP Report based on the Specification under the Contract. 5 [12] The plaintiff responded vide a letter dated 25.8.2017 to the Architect claiming that Meinhardt had imposed a new design requirement which results in significant cost and time implication to the Contract. [13] In response, Meinhardt wrote to the plaintiff on 8.9.2017 and 11.9.2017, disputing the plaintiff’s claim that Meinhardt had imposed a new design requirement. Meinhardt then requested the plaintiff to substantiate the proposed alternative design and review their calculations. [14] The plaintiff replied vide letters dated 7.9.2017 and 12.9.2017 stating that a written Architect’s Instruction was required before it can proceed with Meinhardt’s request. [15] The Architect had thereafter issued 2 Architect’s Instructions dated 18.9.2017 formalising Meinhardt’s letters dated 8.9.2017 and 11.9.2017 against the plaintiff. [16] Vide a letter dated 20.9.2017, the plaintiff requested that the Architect specify in writing which provision of the Condition of Contract empowered the issuance of the above Architect’s Instruction. [17] Meinhardt issued an Engineer’s Instruction dated 28.9.2017 to the Plaintiff requiring it to revise and resubmit the alternative design. The plaintiff refused to comply on the ground that the alternative design had been approved by Web-Structures. 6 [18] Meinhardt had thereafter issued a second Engineer’s Instruction also confirmed by an Architect’s Instruction dated 10.10.2017 requesting the plaintiff to substantiate the alternative design. [19] In view of the plaintiff’s failure to comply, the Architect issued a reminder via Architect’s Instruction dated 12.10.2017 requesting the plaintiff to comply with the Architect’s Instructions to substantiate their alternative design. However, the plaintiff challenged the Architect’s Instructions issued on 18.9.2017, 28.9.2017 and 10.10.2017 and referred them to arbitration. [20] The defendant issued a Notice of Default dated 6.11.2017 (“Notice of Default”) to the plaintiff formally notifying it of its failure to comply with Architect’s Instructions and requesting the plaintiff to rectify the default. The Notice of Default was issued pursuant to Clause 25.1 and 25.2 of the Conditions of Contract. [21] By a letter dated 16.11.2017 to the defendant, the plaintiff sets out its reasons for not following the Architect’s Instruction, reiterating its position that the Architect has no authority to issue such instructions which call for a redesign of the plaintiff’s works, as the same have been approved by Web Structures. [22] On 21.11.2017, the defendant issued the Notice of Determination dated 21.11.2017 (“Notice of Determination”) to determine plaintiff’s employment under the Contract pursuant to Clause 25 of the Conditions of Contract. 7 [23] The plaintiff had thereafter filed this application to injunct the defendant from calling on and/or receiving money from the Bank Guarantee. The Findings of the Court [24] It is settled law that an injunction may be granted by the Court to restrain the beneficiary from calling on a performance bond or bank guarantee if there is fraud or unconscionable conduct. In Sumataec Engineering and Construction Sdn Bhd v Malaysian Refining Co Sdn Bhd [2012] 4 MLJ 1, the Federal Court held that: “[33] It would seem from the modern authorities we have read, that in the case of on demand letters of guarantee or performance bond, the courts are now more willing to look beyond the frauds exception and considered unconscionability as a separate and independent ground to allow for a restraining order on the beneficiary.” [25] The first issue is whether the Bank Guarantee issued by AmBank

(M) Bhd is a demand guarantee. In order to ascertain whether the Bank Guarantee is a demand guarantee or otherwise, the Court will have to look at the intention of the parties from the wordings of the Bank Guarantee. In LEC Contractors (M) Sdn Bhd (formerly known as Lotteworld Engineering & Construction Sdn Bhd) v. Castle Inn Sdn Bhd & Anor [2000] 3 MLJ 339, the Court of Appeal held as follows: 8 “From the authorities we have referred earlier it is clear to us that to determine whether a performance bond is a conditional or unconditional bond, the court should not be concerned whether there was actual breach being committed or not. It is for the parties to litigate as to whom the blame is to be placed. The court is only concerned whether on the wordings of the bond, it is an on demand bond. If it is so then the bank has to pay the person whom it guaranteed. The only exception to this is in the case of fraud which comes to the notice of the bank. As we have said earlier it is clear to us that this is an on demand performance bond. A proper demand had been made and as such the bank (second defendant) is obliged to pay the first defendant the amount stated in the bond. As to whether the plaintiff or the first defendant was at fault is not the concern of the bank. That dispute is for the parties to the contract to settle either by arbitration or by litigation in court. The bank has no choice but to pay the amount demanded. The first defendant is entitled to that sum not under the contract but under the performance bond.” [26] In the present case, the relevant clause in the Bank Guarantee reads as follows: “If the contractor (unless relieved from the performance by any clause of the Contract or by statute or by the 9 decision of a tribunal of competent jurisdiction) shall in any respect fail to execute the Contract or commit any breach of his obligations thereunder then the Guarantor shall pay to the Employer up to and not exceeding the sum of Ringgit Malaysia: Three million Seven Hundred Ninety Thousand Only (RM3,790,000.00) representing (5%) of the Contract Sum or such part thereof, on the Employer’s Demand notwithstanding any contestation or protest by the Contractor or by the Guarantor or by any other third party.” (emphasis added) [27] I am of the considered opinion and I agree with the defendant that from the clear wordings above, the Bank Guarantee in the present case is an unconditional and an on-demand in nature. Therefore, the defendant is entitled to make a demand on the Bank Guarantee without proving the default underlying the contract. [28] The next issue is whether there is any evidence of fraud or unconscionable conduct on the part of the defendant that would disentitled it from making a demand on the Bank Guarantees. [29] In the present case, there is no allegation of fraud. However, the plaintiff takes the position that the defendant’s course of conduct is prima facie unconscionable and necessitates the intervention of this court. From the plaintiff’s affidavit in support, the plaintiff sets out the following grounds of unconscionable conducts of the defendant: 10

The demand on the Bank Guarantee by the defendant would be unconscionable;

(ii) That the defendant had acted unconscionably by being consistently late in making payments to the plaintiff and failed to observe its contractual obligations;

(iii) That the defendant’s determination of the plaintiff’s employment is in bad faith and without basis, given that the determination is based on purported instructions that neither the Architect or Meinhardt is entitled to give; and

(iv) That the defendant had acted unconscionably by seeking bids from replacement contractors to perform the same job which amount to a sham. (see paragraph 38 of the plaintiff’s affidavit in support) [30] With regards to the test to be applied to establish unconscionable conduct, the Federal Court in Sumatec Engineering (supra) said as follows: "[39] We are of the considered view that the 'seriously arguable and realistic inference' test as used by the learned judicial commissioner in Focal Asia is equally applicable to the extended exception of unconscionability. That test therefore needs to be applied to the relevant 11 material facts before the court. The same test which results in a 'strong prima facie case' was utilized by the Court of Appeal at the intermediate appeal stage. And the Court of Appeal said this of the required burden now rested on the shoulder of Sumatec: As in the case of fraud, to establish 'unconscionability' there must be placed before the court manifest or strong evidence of some degree in respect of the alleged unconscionable conduct complained of, not a bare assertion. Hence, the respondent has to satisfy the threshold of a seriously arguable case that the only realistic inference is the existence of 'unconscionability' which would basically mean establishing a strong prima facie case. In other words, the respondent has to place sufficient evidence before the court so as to enable the court to be satisfied, not necessarily beyond reasonable doubt, that a case of 'unconscionability' being committed by the beneficiary (the appellant) has been established to an extent sufficient for the court to be minded to order injunction sought. This additional ground of 'unconscionability' should only be allowed with circumspect where events or conduct are of such degree such as to prick the conscience of a reasonable and sensible man. 12 We are in agreement with those propositions." (emphasis added) [31] Therefore, the onus is on the plaintiff to establish a strong prima facie case of the alleged unconscionable conduct and not a bare assertion. As to what amount to unconscionable conduct depend on the facts of each case, but are generally conducts lacking of bona fide or conducts which appears to be performed in bad faith, that will prick the conscience of a reasonable and sensible man. [32] Bearing in mind the above principles, I will now deal with the plaintiff’s complaints of unconscionable conducts of the defendant. Issue – whether the demand on the Bank Guarantee by the defendant is unconscionable [33] The first issue is whether the demand on the Bank Guarantee by the defendant would be unconscionable. Since the Bank Guarantee is ‘on-demand’ and unconditional in nature, I agree with the defendant that there is no restriction to prevent the defendant from making demand on the Bank Guarantee under Clause 37.5 of the Conditions of Contract after the plaintiff’s employment was terminated. Clause 37.5 provides as follows: “In the event the Employer determines the employment of the Contractor in accordance with Clause 25.0, or if there is any breach of the Contract, the Employer may call on 13 the Performance Bond and utilize and make payments out of or deduction from the Performance Bond for the completion of and/or rectification of the Works and reimbursement of loss, and/or expenses suffered by the Employer. On completion of the Works, any balance of monies remaining from the Performance Bond shall be refunded to the Contractor without interest.” [34] Therefore, I agree with the defendant that once the defendant has determined the plaintiff’s employment in accordance with Clause 25 of the Contract, the defendant is entitled to call on the Bank Guarantee and utilize the same. It cannot be said that the actions of the defendant in exercising its contractual rights to be an unconscionable act. Issue – whether consistent late payment amount to unconscionable conduct [35] The next complaint is on late payments by the defendant and the defendant had explained to the plaintiff that the late payment was due to the delay in receiving the Bridging Loan. Even though the plaintiff has suspended the sub-structure works due to the late payment, the defendant has made the required payments which enabled the sub-structure works to resume subsequently. As such, I am of the considered opinion that since the delay in the payment had been reasonably explained, it cannot be said to be an unconscionable act against the plaintiff. Further, I agree with the 14 defendant that late payment may amount to a breach of the contract, but allegations of breaches of contract are not sufficient to be unconscionable conduct. In Gumusut-Kakap Semi Floating Production System (L) Ltd v. Sabah Shell Petroleum Company Limited [2017] 1 LNS, Justice Lee Swee Seng held as follows: “[40] It is generally understood that whilst there is no pre-set or defined formula or categories for what amounts to unconscionable conduct, nevertheless disputes between parties concerning allegations of breaches of contract are not sufficient to be unconscionable conduct. In Raymond Construction Pte Ltd v. Low Yang Tong & Anor [1996] SGHC 136 at para. 5 Lai Kew Chai J stated as follows (and which was cited with approval by the Court of Appeal and Federal Court in the Sumatec case): "Bocotra Construction Pte Ltd v. AG (No. 2) lays down the rule of law that there must be compelling evidence capable of proving fraud or unconscionability before an injunction may be granted restraining payment under instruments which contain unconditional and irrevocable obligations to pay on demand. The concept of unconscionability to me involves unfairness, as distinct from dishonesty or fraud, or conduct of a kind so reprehensible or lacking in good faith that a court of conscience would either 15 restrain the party or refuse to assist the party. Mere breaches of contract by the party in question (in this case the first defendant) would not by themselves be unconscionable. Where breaches are alleged, there would generally be (counter-allegations and) disputes when the case is before the court. Therefore the first defendant's breach alone would not have sufficed." (emphasis added) [41] Thus breaches of contract or disputes pertaining thereto without more do not amount to unconscionable conduct. Thus in Ranhill E&C Sdn Bhd v. Thyssenkrupp Industries (M) Sdn Bhd &Anor [2016] 6 CLJ 290; [2016] 4 MLHR 151 at page 170, para. 46 it was observed as follows: "Genuine contractual disputes should not be elevated to the level of unconscionable conduct calling on the BG in the absence of evidence at the interlocutory stage of an injunction to restrain the call, pointing towards an unfair advantage or an oppressive conduct or morally reprehensible conduct." 16 Issue – whether the defendant had acted unconscionably as the determination of the Contract was made in bad faith [36] The next issue is whether the determination of the plaintiff’s employment by the defendant was made in bad faith and/or without basis, rendering the same to be an unconscionable conduct. [37] It is the defendant’s contention that the determination of the plaintiff’s employment was due to the following sequence of events:

Meinhardt found that there were some deficiencies in relation to the alternative design which were proposed by the plaintiff.

(ii) Meinhardt wrote to the plaintiff on 8.9.2017 and 11.9.2017 and requested the Plaintiff to substantiate the proposed alternative design and review their calculations. The plaintiff refused to comply with Meinhardt’s request. The Architect had thereafter issued 2 Architect’s Instruction dated 18.9.2017 formalising Meinhardt’s letters dated 8.9.2017 and 11.9.2017 against the plaintiff. Yet, the plaintiff still refused to comply.

(iii) Meinhardt issued an Engineer’s Instruction which was confirmed by an Architect’s Instruction dated 28.9.2017 to the plaintiff to reinstate Meinhardt’s position to revise and resubmit the alternative design. Again, it was challenged by the plaintiff and the plaintiff refused to comply. Meinhardt had 17 thereafter issued a second Engineer’s Instruction which was confirm by an Architect’s Instruction dated 10.10.2017 and requested the plaintiff to substantiate the alternative design. However, the plaintiff insists not to comply with the Architect’s Instructions to substantiate their alternative design.

(iv) A Notice of Default dated 6.11.2017 was issued to the Plaintiff for its failure to comply with Architect’s Instructions and the defendant had requested the plaintiff to rectify the default. Due to plaintiff’s persistent refusal to comply, the defendant had no choice but to issue the Notice of Determination dated 21.11.2017 to determine plaintiff’s employment under the Contract. [38] The Notice of Determination issued by the defendant was made pursuant to Clause 25.1(d) of the Conditions of Contract, which reads: “25.0 Determination of Contractor’s Employment by Employer

25.1 The Employer may determine the employment of the Contractor if the Contractor defaults in any of the following:

25.1(a) if without reasonable cause, he fails to commence the Works in accordance with the Contract; 18

25.1(b) if without reasonable cause, he wholly or substantially suspends the carrying out of the Works before completion;

25.1(c) if he fails to proceed regularly and/or diligently with the Works;

25.1(d) if he persistently refuses or neglects to comply with an AI:

25.1(e) if he fails to comply with the provisions in Clause 17.0; or 25.1(f) if he has abandoned the Works.” [39] Although the plaintiff argued that the determination by the defendant is in bad faith and/or without basis, I am of the considered opinion and I agree with the defendant that this is a matter of fact, as to whether the determination took place solely because the persistent refusal of the plaintiff to comply with the Architect’s Instructions. [40] Despite the Plaintiff stating that it was ready to comply with the Architect’s Instruction if a Variation Order was issued by the Architect and/or the Architect has no basis in issuing the Architect’s Instruction to compel the plaintiff to substantiate the alternative design, there is nothing in the contract which entitled the plaintiff to refuse to comply with the aforesaid Architect’s Instructions. [41] If the plaintiff was right in that a variation order ought to have been issued, it was contractually obliged to carry out the instruction first 19 and claim damages or a right to a variation order in arbitration later. It cannot force the Architect to issue a variation order by refusing to comply, especially in a situation which involves a critical safety issue. In this regard, I refer to The PAM 2006 Standard Form of Building Contract at page 109, where the learned authors stated very clearly that Clause 2.3 of the Conditions of Contract does not entitle the contractor to refuse to comply with what is subsequently determined to have been a valid instruction. It is therefore prudent for the contractor to comply with the purported instruction which he challenges, having first made the request to refer it to dispute resolution under the Contract. [42] As such, I agree with the defendant that should the plaintiff have complied with the Architect’s Instructions after referring the dispute to arbitration, the defendant would not have determined the employment of the plaintiff under the Contract which subsequently gives rise to the right of the defendant to make a demand on the Bank Guarantee. [43] It is not in dispute that the defendant had issued a Notice of Default to the plaintiff to ensure that the plaintiff had the chance to rectify such default before the determination took place. In fact, prior to the Notice of Default being issued, the Architect had issued reminder to the plaintiff to comply with the Architect’s Instructions. But, the plaintiff still failed to comply with the Architect’s Instructions. 20 [44] Further, I agree with the defendant that the plaintiff had acted unreasonably by alleging that the plaintiff need not to justify the alternative design and should be allowed to proceed with the alternative design without interference. The Project involves two 80 storey towers with a ferry wheels in between the towers. This is a large scale Project which required meticulous examination and construction by the consultant and the contractor, especially when the plaintiff’s scope of works involves the foundation of these two huge buildings. [45] I agree with the defendant that it would be unreasonable for the plaintiff to proceed with the sub-structure works since Meinhardt discovered that there is insufficiency of the alternative design proposed by the plaintiff which required justification. [46] Therefore, having considered the facts leading to the termination, I am of the considered opinion that these circumstances do not in any event render the defendant being unconscionable as there is no unfair advantage and/or unfairness in relation to the determination of the Plaintiff’s employment. The determination was due to the persistent refusal of the Plaintiff to comply with Architect’s Instructions. 21 Issue – whether seeking replacement contractor amounts to unconscionable acts [47] The last issue raised by the plaintiff is that the defendant had acted unconscionably by seeking bids from replacement contractors to perform the same job. [48] I am of the considered opinion that it is commercially prudent for the Defendant as the Developer of the Project to seek quotations from other contractors to mitigate any loss of time, and damages which the Defendant may be exposed to from its end Purchasers in the event that the employment of the Plaintiff was determined. As such, such actions cannot possibly show a strong prima facie case of unconscionability, and merely demonstrates what actions any commercially prudent developer would take when faced with a potentially imminent loss of a contractor. The plaintiff’s contention [49] The plaintiff takes the position that the overall conduct of the defendant, from the late payments, the changing of consultant from Web Structure to Meinhardt, refusal to engage the plaintiff, failure to specify the contractual basis of the instructions given, the unreasonable refusal to grant a variation, unreasonable and/or vexatious termination and seeking bids from replacement contractors in bad faith, cumulatively establish a strong prima facie case for an injunction. 22 [50] The plaintiff relied on the case of Bina Jaya Mantap Sdn Bhd v Institute of Technology Petrona Sdn Bhd [2014] 11 MLJ 352 and submit as follows in paragraph 32 of its written submission: “32. …. Given the striking similarities between the facts in the instant case and the facts in Bina Jaya, where the court held that a strong, prima facie case for an injunction had been made out, it follows that injunctive relief should be granted in this case...” [51] However, if we look at the facts in Bina Jaya’s case, the facts are not strikingly similar. In paragraph 69 of the judgment, the Court has summarized the plaintiff’s complaints to be as follows: “[69] As I understand the plaintiff’s case, it claims that in the course of the execution of the works, it had faced innumerable impediments from the defendant’s representatives that were unreasonable; that it had received harassing or ‘antagonizing treatment’ which made it difficult and unbearable for the plaintiff to continue to work with the defendant. It further claimed that such impediments and treatment was because the plaintiff had refused to accede to one of the defendant’s representatives’ request for a bribe ‘in exchange for their corporation or fair treatment’. The plaintiff construed these impediments or actions and conduct of the defendant as a fundamental breach and 23 repudiation of the contract which it then proceeded to accept. [70] The critical allegations therefore are those pertaining to the ‘corporation fee’. The court will have to determine whether that incident ever took place; whether the plaintiff’s complaints of impediments, harassment or problems and difficulties encountered in the course of execution and implementation of the contract was in any way related or affected by this incident; and whether the defendant’s demand on the bank guarantee was thereby unconscionable in the circumstances..” (emphasis added) [52] Therefore, in Bina Jaya’s case there were complaints that the impediments faced by the plaintiff was because the plaintiff had refused to accede to one of the defendant’s representatives’ request for a bribe ‘in exchange for their corporation or fair treatment’. [53] In the present case, there is no complaints of similar nature, but merely complaints which relate to the execution of the Contract, and such matters can be properly resolved by arbitration. Indeed, in Bina Jaya’s case, the Court held that the plaintiff’s complaints on site possession, construction of burrow pits, drains and employment of the subcontractors, are matters which are properly for resolution by arbitration. It is the conduct of the representatives of the defendant, after having failed to secure the ‘corporation fee’ and 24 mounted the innumerable impediments on the plaintiff, that was found to be unconscionable by the Court. Conclusion [54] Premised on the reasons enumerated above, I am of the considered opinion that the defendant is entitled to make a demand on the Bank Guarantee as the nature of the Bank Guarantee is “on-demand” basis and unconditional. I also find that plaintiff is not able to show a strong prima facie case of unconscionability and therefore the application is dismissed with costs. (AZIZAH BINTI HAJI NAWAWI) JUDGE HIGH COURT MALAYA (Appellate and Special Powers Division 2) KUALA LUMPUR Dated: 27 August 2018 For the Plaintiff : Kamraj Nayagam/Dawn Wong Messrs Mah-Kamariyah & Phillip Koh Petaling Jaya, Selangor. For the Defendant: Allen Cheng Messrs Azman Davidson & Co Kuala Lumpur. 25 Cases referred:

Sumataec Engineering and Construction Sdn Bhd v Malaysian Refining Co Sdn Bhd [2012] 4 MLJ 1.

LEC Contractors (M) Sdn Bhd (formerly known as Lotteworld Engineering & Construction Sdn Bhd) v. Castle Inn Sdn Bhd & Anor [2000] 3 MLJ 339.

Gumusut-Kakap Semi Floating Production System (L) Ltd v. Sabah Shell Petroleum Company Limited [2017] 1 LNS.

Bina Jaya Mantap Sdn Bhd v Institute of Technology Petrona Sdn Bhd [2014] 11 MLJ 352.