Gumusut-Kakap Semi-Floating Production System (L) Ltd v Sabah Shell Petroleum Company Limited (WA-24C(ARB)-30-10/2016)

SABAH SHELL PETROLEUM COMPANY LIMITED (Company No. 993229-W)

AMBANK (M) BERHAD (Company No. 8515-D) … DEFENDANTS THE JUDGMENT OF YA LEE SWEE SENG [1] The Plaintiff, Gumusut-Kakap Semi-Floating Production System (L) Ltd, and the 1st Defendant (D1), Sabah Shell Petroleum Company Limited, 3 are in the oil and gas industry. The Plaintiff specialty is in the construction and lease of Semi-submersible Floating Production System (“SEMI-FPS”). D1 had entered into an agreement with the Plaintiff for the engineering, procurement, construction and lease of a SEMI-FPS dated 9.11.2012 (Lease Agreement No. C-591673) (“Lease Agreement”). [2] A dispute has arisen between the parties and D1 had called upon an on demand Performance Bond ("Bond") dated 28.11.2014 for the sum of USD 20 million procured by the Plaintiff from D2, AmBank (M) Berhad, under the terms of the Lease Agreement, in favour of D1. [3] Under the Lease Agreement, there was provided a Commencement of Commercial Production of oil ("CoCP"), namely, first oil delivery, which was achieved on 11.10.2014. Upon notification of CoCP, the Plaintiff was to procure the bond of USD 20 million in favour of the D1 from a Malaysian Bank and the lease payment for the SEMI-FPS day rate of USD 600,000 per day shall commence to be paid by D1 to the Plaintiff. [4] Under the Lease Agreement the Bond was procured by the Plaintiff as a security in respect of the Plaintiff's obligation to perform the work in accordance with the provisions of the Lease Agreement and without any defects, as well as the Plaintiff's obligation to complete all work prior to final 4 acceptance and completion. [5] On 20.10.2016, the Plaintiff filed an ex parte injunction application (Enclosure 3) with notice to restrain D1 from receiving the monies it demanded in respect of the Bond ("Ex parte Injunction"). The hearing of the Ex-parte Injunction was fixed on the same day and the Plaintiff informed D1 of the said hearing. It was heard as an opposed ex-parte application and after hearing the parties, this Court granted an Ex-parte Injunction order and fixed 3.11. 2016 for inter partes hearing. [6] During the inter partes hearing on 3.11.2016, the Plaintiff learned counsel informed the Court that they had just been served with some 55 volumes of affidavit and exhibits. They were given 14 days to reply to D1's affidavit. [7] Meanwhile, parties agreed that the status quo should be preserved and so this Court proceeded to grant an ad-Interim Injunction along the following terms subject to the usual undertaking as to damages until the disposal of this Originating Summons ("OS"): "(1) An ad interim injunction is granted restraining the 1st Defendant, whether by itself or through its directors, employees, servants, representatives and/or agents otherwise howsoever, from receiving 5 the proceeds of any payment made under the Bond (dated 28 November 2014 and issued pursuant to Contract No. C591673) or, in the event that the said proceeds have been received by the first Defendant, an Order that the funds be refunded to the Plaintiff within seven (7) days from the date of this Order;

That this ad interim injunction is maintained until the disposal of the Plaintiff's Originating Summons dated 20 October 2016;

The Plaintiff to renew the Bank Guarantee (dated 28 November 2014 and issued pursuant to Contract No. C591673) to remain valid up to 31 January 2017 and to include a provision on interest and to furnish the renewed Bank Guarantee (dated 28 November 2014 and issued pursuant to Contract No. C591673) to the 1st Defendant's solicitors by close of business on 6 November 2016.

The Plaintiff to deposit the interest on the secured sum of USD20,000,000.00 (at a rate of 3% per annum payable monthly) with the Plaintiff's solicitors from 30 November 2016 and thereafter on the last day of each succeeding month until the disposal of the Originating Summons. The Plaintiff's solicitors 6 are to give written confirmation of receipt to the 1st Defendant's solicitors at the end of each month. The interest earned is to be applied as ordered by the Court at the disposal of the Inter Partes Injunction and/or Originating Summons both dated 20 October 2016; Liberty to apply." (Emphasis added) [8] To date, the Order dated 3.11.2016 has not been perfected. The Plaintiff also made an oral application to withdraw the injunction OS against Ambank on the basis that Ambank had, by its letter dated 20.10.2016, given an unequivocal undertaking to abide by any decision of this Court. Upon the request of D1's Solicitors, the Plaintiff's Solicitors extended a copy of Ambank's letter of undertaking dated 20.10.2016 which reads: "[W]e write to confirm that we shall irrevocably and unconditionally undertake to strictly comply with all or any terms of the High Court order and directions in respect of the Injunction Application. In light of our undertaking in this matter, we therefore request that you withdraw the above action against us with no order as to costs." 7 [9] This Court allowed the Plaintiff's oral application and struck out the Plaintiff's OS against D2 with no order as to costs. Thus D1 shall hence forth be referred to as the "Defendant". [10] However, AmBank by their letter dated 4.11.2016 to the Plaintiff's solicitors took the stand that the Bond need not be extended or renewed as the demand had already been made on the Bond and sum secured will continue to be made available until a decision is made on the OS. The said letter reads as follows: "We… confirm the following:

Since SSPC has made a demand on the Bond before the expiry i.e. before 6 November 2016 (“the Expiry Date”), the sum secured under the Bond will continue to be available until a decision is made on the Originating Summons. (ii) The Bond does not need to be extended or renewed since the demand has already been made prior to the Expiry Date. " [11] On 4.11.2016, the Plaintiff applied to vary the Order dated 3.11.2016 ("1st Variation Application") and the hearing was fixed on the same day. On 4.11.2016, AmBank had provided the Plaintiff with a letter [Page 29, Exhibit “B-2”, Encl 87] confirming that: 8

…the sum secured under the Bond will continue to be available until a decision is made in the Originating Summons.

(ii) The Bond does not need to be extended or renewed since the demand has already been made prior to the expiry date. [12] This Court, upon hearing parties and examining the AmBank's undertaking, held that the requirement to renew the Bond was no longer necessary as it was initially requested due to an abundance of caution for fear that there might be a problem enforcing a Bond that would have expired by the time the inter–partes order is made. The Court thereby ordered as follows: a. stayed the requirement to renew the Bond; and b. directed the Plaintiff to procure AmBank's written undertaking to the Defendant's solicitors to abide by any decision of this Court on the Bond and confirm that the monies is available for payment out to the First Defendant upon the Court deciding that the call has been validly made; the said undertaking to be procured by 5 p.m. on 7.11.2016 (Monday). 9 [13] In line with the aforesaid direction, the Plaintiff procured AmBank's written undertaking to the Defendant's solicitors on 7.11.2016. This letter reads as follows: "In accordance with the High Court's directions on 4.11.2016, we write to confirm that:

We, AmBank (M) Berhad, will abide by any decision of the

(ii) The sum secured under the Bond, USD 20,000,000 (US Dollar Twenty Million Only), is available for payment out to SSPC upon the High Court deciding that the demand on the Bond by SSPC dated 19th October 2016 has been validly made” (emphasis added) [14] On 10.11.2016, this Court, upon hearing the parties, allowed the Variation Application by deleting prayer (3) completely and replacing the same with the following prayer: “(3) that AmBank (M) Berhad (“AmBank”) having given an undertaking and provided confirmation in writing on 7 November 2016 to the 1st Defendant (as attached to this Order) that the sum secured under the Bond of USD20,000,000.00 is available for payment out of 10 Ambank to the 1st Defendant forthwith upon the High Court deciding that the 1st Defendant’s demand on the Bond dated 19 October 2016 was validly made, AmBank, being the issuer of the Bond, do abide by any judgment and/or order that this High Court may make in relation to the Bond.” Prayer [15] The Plaintiff subsequently filed another application (2nd Variation Application) in Enclosure 86 on 23.11.2016 to vary the ad-interim injunctive order of 3.11.2016, fixed for hearing on 25.11.2016. [16] The Plaintiff had prayed that the whole of prayer (4) of the ad-interim injunctive order of 3.11.2016, which has not been perfected yet, be deleted altogether. Principles [17] Learned counsel for the Plaintiff submitted that it is trite law that an order pronounced by Court can always be withdrawn, altered or modified until it is drawn up, passed and perfected. Learned counsel further submitted that it is also settled law that when a Court has pronounced judgment, it retains control over the case until the Order giving effect to its judgment is formally perfected. He was however candid to admit that such 11 control must be used in accordance with judicial discretion as provided for under Order 42 Rule 13 of the Rules of Court 2012 ("ROC"). [18] This vast powers of the Court is not untrammeled as was observed by the Court of Appeal in Chua Wah Keow v Ng Ho Huat & Anor [1961] MLJ 321b, where Tan Ah Tah J (as he then was) said at p 322 as follows: "The principle relating to the power of a Judge to recall an unperfected order is stated by the English Court of Appeal in Re Harrison's Settlement, supra in the following terms (at p 188): 'We think that an order pronounced by the Judge can always be withdrawn, or altered or modified by him until it is drawn up, passed and entered.' It may perhaps be argued that the principle, laid down as it is in such wide terms, confers upon a Judge an unlimited power to withdraw, or alter, or modify an order made by him which has not yet been perfected. But a perusal of the cases in which the power has been exercised indicates that the power is not as untrammelled as it appears to be. In all these cases something transpired between the pronouncement of the order and the perfecting of it which 12 showed that there was some error in the order as pronounced." (emphasis added) [19] I would agree with the Defendant's submission that the mere fact that an order has not been perfected yet cannot be relied on as a justification to vary or amend an order. Otherwise there would be no finality to litigation and to the decision of a Court whether made pursuant to an interlocutory application or after full trial. If the order is with respect to a matter that is appealable, then of course any party to the proceedings who is dissatisfied with the order may exercise his right of appeal. Therefore even in a case where an Order is not perfected, there is no inherent right to vary the order and the Court's discretion to vary an Order prior to its perfection must be "exercised judicially and not capriciously" and only "in exceptional cases where the justice of the case requires it. [20] As was held in Commercial Plastic Industries Sdn Bhd v Lim Chin Cheap & Ors [2002] 6 MLJ 619, by Justice Ramly Ali J (now FCJ) at page 627. “However, I must stress here that this power, i.e. to amend or vary an order earlier granted, is not without limitations. It must be exercised 13 judicially and not capriciously. It must only be exercised in exceptional cases where the justice of the case requires." [21] While the question of functus officio does not arise at the stage when the Order made has not been perfected, yet as was explained in the case of Owners of Cargo carried in the ‘Ship Gang Cheng' v Owners and/or Persons Interested in the Ship ‘Gang Cheng' (No 2) [1998] 6 MLJ 492, at p. 497 "...such control, however, must be used in accordance with his discretion, exercised judicially and not capriciously." [22] Learned counsel for the Plaintiff urged this Court that as the Order dated 3.11.2016 had merely been pronounced by this Court and had not been perfected yet by the parties, this Court therefore has wide power to alter and modify the terms of the draft order dated 3.11.2016 by exercising its discretion. While that may be so, this Court must always bear in mind that its power to vary or amend orders prior to perfection "is not a blanket one" as it is subject to established principles and certain restrictions such as to correct an error in the order itself and that it certainly "does not allow the Court to make a fundamentally different order". 14 [23] The authority for this proposition is found in the case of Syarikat Marak Jaya Sdn Bhd v Syarikat Masinda Sdn Bhd [1991] 2 MLJ 417 at page 420 as follows: "To revert to the instant case, the order in question had not been extracted or perfected, but as regards the power of re-considering it, the order in question not being a consent order, what would be actually the nature of such power to be exercised? This court was much exercised by this problem. In my view, the nature of this power is not a blanket one; it is subject to a restriction which is, to correct an error in the order itself where the order made does not express the court's manifest intention in the matter or in other words it is not conformable with such manifest intention of the court. It does not allow a court to make a fundamentally different order. The power is exercised concurrently with the express power to correct any clerical error, or any error arising from accidental slip or omission as expressly conferred by O 20 r 11 of the Rules of the High Court 1980. If such restriction does not exist, it will also somewhat destroy the fabric of the principle that there should be finality in litigation, for 15 otherwise, the court may decide this way today and it may recall the parties and after further argument, decide in the opposite way tomorrow as was done in Chua Wah Keow [1961] MLJ 321, this would somewhat bring some disrepute to the court unless such a radical change is expressly authorized by any other written law such as follows." (emphasis added) [24] This vast power to vary an order given by the Court is not to be exercised on account of the Judge having changed his mind after giving his order or having being persuaded to change his mind. The Court of Appeal in Visia Finance Bhd v Expert Credit & Leasing Sdn Bhd & Ors [1998] 2 MLJ 705 at page 712 admonished as follows: "As to the trial judge's view that he could reopen the matter because no order had been perfected, we must make it clear that these curative powers can only be exercised under the slip rule if it can be clearly shown that the unextracted order was wrongly worded and in some way did not truly represent what was actually decided. Reference may be made to the cases cited by the appellant's counsel and in particular Chua Wah Keow v Ng Ho Huat & Anor [1961] MLJ 321 and Lim Kar Bee v Abdul Latif bin Ismail [1978] 1 MLJ 109." (emphasis added) 16 [25] Learned counsel for the Plaintiff sought to buttress his submission to vary the injunctive order of 3.11.2016 on account of the fact that there was a material change of circumstance with the Bank undertaking to pay the Defendant in the event that this Court should hold that the call on the Bond was validly made eventhough by the time of the decision the Bond would have expired. [26] I cannot see how that variation allowed for the 1st Variation Application can be justification for the 2nd Variation Application. As accepted by learned counsel for the Plaintiff, paragraph 3 of the said ad-interim injunctive order was on the basis that when this Court ordered a renewal or extension of the Bond it was due to the uncertainty of the status of Bond when it is called prior to its expiry but the hearing of the injunction application would be after the expiry of the Bond. The order was made purely in the abundance of caution so as to ensure that the D1's security under the Bond is intact pending final determination of the injunction application. [27] The Plaintiff's informal transcript of the notes of proceedings records as follows: "On 3.11.2016, the learned judge said this: 17 "YA: The position of the law is that once the call has been made, parties' rights have accrued ... LCW: It has accrued, yes. YA: But to be on the very safe side, in terms of the abundance of caution. Just renew it. On 8.11.2016, the learned judge said this: ARR: My point is this, yesterday there was a court order that the Plaintiff to renew the Bank Guarantee. YA: I did say that abundance of caution as some banks don't comply”. [28] Prayer (3) of the Order dated 3.11.2016 in relation to the grant of renewal or extension of the Bond by this Court was varied by deleting it after learned counsel for the Plaintiff informed the Court that AmBank was not prepared to renew the Bond but that they were prepared to undertake to the Defendant that they will abide by the decision that this Court may make on the validity of the call on the Bond and that the sum so secured by the Bond of USD 20 million would be released to the Defendant if the injunction is set aside finally. 18 [29] The variation was necessary as there was a problem with the implementation of the Court order with respect to prayer (3) on account of the Bank not willing to renew the Bond but willing instead to abide by the Court Order and to undertake to the Defendant that the sum secured by the Bond would be released if this Court would so order at the end of the inter-parte hearing of the injunction. [30] The variation order was made as there was a "Liberty to apply" order qualifying both prayers (3) and (4) of the said Order of 3.11.2016. [31] Prayer (4) of the said Order with respect to the payment of the monthly interest at 3% per annum on the sum secured of USD 20 million has nothing to do with the variation of the prayer (3) order. Had the Bank agreed to renew the Bond there would of course be no justification to vary prayer (4). Now that the Bank had not agreed to renew but instead had given the above undertaking to the Defendant and to abide by the order of this Court on the Bond, I cannot see how that would be a material change that renders the paying of interest unnecessary or redundant. The making of the order for the payment of interest in prayer (4) was irrespective of the order made by the Court in prayer (3) on 3.11.2016. All that the Bank would pay is the amount secured of USD 20 million and nothing on interest. 19 [32] The Court had exercised its discretion when granting the ad-interim injunction to try to hold in a balance the conflicting interests of the parties pending the exhausting of affidavits and the submissions of the parties pending the decision on the OS. [33] Whilst it is true that there was a "liberty to apply" clause to both prayers (3) and (4), I cannot agree that the variation of prayer (3) of the Order dated 3.11.2016 is a substantial change of circumstances justifying the variation to prayer (4). I cannot therefore agree that just because Ambank has confirmed and assured the Defendant that the monies under the Bond is available, this renders the order for interest unnecessary. [34] As can be gleaned from the leading case of Cristel v Cristel [1951] 2 KB 725 which has been applied in the Malaysian Federal Court case of Tong Lee Hwa & Anor v Chin Ah Kwi Tong Chong Fah v Chin Ah Kwi [1971] 2 MLJ 75, the Federal Court agreed that the term "liberty to apply" means that parties are at liberty to go back to court for the purpose of working out the terms of the order. It observed as follows at page 80: "With respect to the learned judge, the words "liberty to apply" in an order, prima facie, mean that when the order was drawn up its working out might involve matters on which it might be necessary to 20 obtain a decision of the court; they do not confer any right to ask the court to vary the order (see Cristel v Cristel [1951] 2 KB 725)." (emphasis added) [35] In Public Bank Bhd v Chan Tak Kow [1988] 3 MLJ 330 at page 331, it was held that the term "liberty to apply" should be: "....confined to the problems relating to enforcing or executing the order such as, for example, if there is some difficulty in its enforcement because of the terms of the order later found to be unclear or doubtful when faced with the actual situation on the ground, the party which obtained the order may approach the court again for its indulgence to seek clarification." [36] Such was the case with the 1st Variation Application to prayer (3) when the Plaintiff was supposed to procure an extension of the Bond by a certain date but the Bank took the position that there was no need to renew the Bond and that they would honour the Bond if this Court shall hold that the call by the Defendant on the Bond is validly made. There was thus a problem with the implementation or execution of the order of 3.11.2016 that constrained the Plaintiff to apply to this Court to vary it for otherwise the Plaintiff might be found to have breach the order in prayer (3) for failure to 21 procure the extension of the Bond. Apparently the position taken by the Bank has some support of the following authorities that take the stand that the rights of the parties have accrued under the Bond once the demand is made:

CIMB Bank v Sumbangan Kemuncak Sdn Bhd & Ors [2012] MLJU 49;

(ii) Wuhan Guoyu Logistics Group Co Ltd & Anr v Emporiki Bank of Greece SA [2012] EWHC 1715., (Comm). [37] It is no doubt true that the injunction granted was against the Plaintiff's undertaking as to damages that the Defendant might suffer as a result of the injunction restraining them from receiving the secured sum of USD 20 million. Whilst in most cases, it might be difficult to quantify or anticipate what kind of damage the Defendant would suffer and hence the damages to be assessed thereafter, if the injunction is set aside, here this Court agrees with the Defendant that for so long as they are kept from receiving this sum, it can be anticipated the damages they would suffer if the injunction is finally set aside. [38] The Defendant's damage would reasonably be the interest they would have earned had they received this sum secured and placed in the 22 Bank to earn interest. Of course the Defendant might want to contend that their damage is more severe than that as in perhaps, had they had this sum to invest in a certain project, notice of which had been given to the Plaintiff, their loss would be the loss of the opportunity to make certain returns on the investment. [39] Learned counsel for the Plaintiff argued that as regards status quo, the applicable position to be maintained is the position of parties immediately preceding the filing of this Originating Summons and Injunction, i.e. the Bond remained available to the Defendant, albeit held by Ambank. This continues to be maintained. As per Lord Diplock in the locus classicus of Garden Cottage Foods Ltd v Milk Marketing Board [1984] AC 130 at page 140: "The status quo is the existing state of affairs; but since states of affairs do not remain static this raises the query: existing when? In my opinion, the relevant status quo to which reference was made in American Cyanamid is the state of affairs existing during the period immediately preceding the issue of the writ claiming the permanent injunction…" (emphasis added) 23 [40] Whilst generally the maintaining of status quo would mean the preservation of the position of the parties before the call on the Bond is made, there is nothing preventing the Court from looking at the situation which cannot be reversed, which is that a call has been made and so at the end of the day, if the call has been rightly made, the sum secured is to be released together with the interest earned for the period when the Defendant was kept out of the sum secured. Little wonder that learned counsel for the Defendant wanted the sum to be released to them as stakeholders in an interest earning account until the disposal of the application in Enclosure 3 and the OS. [41] The interest rate of 3% per annum on the sum secured is a conservative estimate of the interest that the Defendant would have earned had they put the money into a fixed deposit interest earning account. The interest earned is to be paid to the Plaintiff's solicitors at the end of each successive month with the said solicitors' confirmation to the Defendant's solicitors. [42] Should the Court hold that the call was unconscionable, then the amount of interest paid would be released by the Plaintiff's solicitors to the Plaintiff. 24 [43] Learned counsel for the Plaintiff said that this is tantamount to requiring the Plaintiff to reinforce its undertaking in damages. I do not think so. [44] It is a neat and convenient way to deal with a problem that arises from an injunction restraining a substantial sum from being released when one can anticipate and so assess at the outset the kind of damage that conservatively may be caused to the party restrained from receiving the sum secured under the Bond. There is no need to go for further assessment of damages suffered if the Defendant is prepared to accept that sum of interest retained as the damages they suffer for being deprived of the USD 20 million during the period between the ad-interim injunctive order and the disposal of the OS in their favour. [45] The Plaintiff's argument is that assets-wise they are more than financially capable of making good any award for damages. However this is a double-edged argument. If that be the financial position of the Plaintiff, then the Plaintiff should have little cause for complaint if their funds are moved from their account to their solicitors' account to be held as stakeholders pending the outcome of the hearing on the injunction. The interest per month is about USD 50,000.00. Learned counsel then submitted that going by the "quick asset test" exemplified by the cases 25 below, the Defendant is insolvent as its current liabilities exceeds its current assets:

Strukturmas (Selangor) Sdn Bhd v Majlis Perbandaran

(ii) Genting Sanyen Industrial Paper Sdn Bhd v WWL Corrugators Sdn Bhd [2000] 5 MLJ 33. [46] The Plaintiff submitted that the Defendant is a loss making company and that unless its parent company provides the funds, the Plaintiff would have real cause for worry. There is little cause for worry, at least not at this stage, because the interest is parked with the Plaintiff's own solicitors as stakeholders. [47] However it cannot be denied that the Plaintiff must have considerable confidence in the Defendant which had been around before most of us were born. It is a foreign company registered in Malaysia under the Companies Act 1965. This confidence of the Plaintiff in the Defendant's financial standing is seen in the long term lease of 25 years under the Lease Agreement at the rate of USD 600,000.00 per day (Clause 2.3.1) for the lease of the SEMI-FPS which works out to USD 18 million per month since 11.10.2014 to date and this has not been disputed by the Plaintiff. 26 Neither has the Plaintiff complained that the Defendant has defaulted in payments. [48] The Plaintiff's own auditors Ernst & Young had commented at page 8 of its audited accounts in Exhibit B2 in the Plaintiff's Affidavit in Support of its 2nd Application to vary the order of 3.11.16 (Enclosure 86) as follows: "As at 31 December 2015, the current liabilities of the Company exceeded its current assets by USD862,923,478 (2014: USD 1,071,629,495) mainly due to the loan from the ultimate holding company of USD 1,060,000,000 (2014: USD 1,250,000,000). The financial statements of the Company have been prepared on a going concern basis, as the ultimate holding company has agreed to provide the Company with financial support to meet its obligations when they fall due." (emphasis added) [49] The Plaintiff also exhibited the latest audited accounts of the Defendant in the same Exhibit B2 showing at page 16 of the audited accounts the following comment: "The balance sheet at 31 December 2015 reports net current liabilities of RM1,458,350,000 (2014:RM2,003,019.000) and net liabilities of RM131,235,000 (2014: net assets of RM417,039,000). 27 The accounts have been prepared under the going concern concept due to the availability of parent company funding, which will enable the Company to meet its liabilities as they fall due." (emphasis added) [50] In the light of the above, it would be a case of the pot calling the kettle black, for the Plaintiff to assert its financial superiority over the Defendant when both are dependent on their parent company funding to keep them in business. It is general knowledge that this Court can take cognizance of that in the past year the oil and gas industry has been severely hit by the sharp fall in the price of oil and are facing challenging time. [51] In fact it can be surmised that the Plaintiff's substantial revenue of USD 141,096,834 in 2015 is contributed significantly by the revenue from the lease of USD 18 million per month or USD 216 million. The Plaintiff's own audited accounts at page 19 Note 8 records as follows: "Finance lease receivables represent lease rental and interest receivable due from a customer, Sabah Shell Petroleum Company Limited ("SSPC"), for the lease of Semi-FPS." 28 [52] It is further recorded that for 2015 the future minimum lease receivables not later than one year is USD 230,146,832 and at Note 7 is it opined by the Plaintiff's auditors, lest there be some anxious concern, that: "Trade receivables that are neither past due nor impaired is due from a creditworthy debtor with good credit rating and profile." (emphasis added) [53] In the light of the reasons given above, it is within the Court's exercise of its discretion to order interest to be paid at the rate of 3% per annum of the sum secured by the Bond of USD 20 million which works out to a paltry USD50,000.00 per month; certainly paltry and more like petty cash for 2 big players in the oil and gas industry; the Plaintiff's ultimate holding company being Petronas Nasional Berhad as disclosed in the audited accounts exhibited and that of the Defendant, being the Royal Dutch Shell PLC. [54] It was submitted by the Plaintiff that the case of Nam Fatt Corporation Bhd & Anor v Petrodar Operating Co Ltd & Anor [2010] 9 CLJ 732 ("Nam Fatt") relied on by this Court in granting Prayer (4) of the Order dated 3.11.2016 to the Defendants could be distinguished. 29 [55] It was submitted by the Plaintiff that the facts in Nam Fatt are peculiar and distinguishable from the facts of the present case. In Nam Fatt, the learned judge awarded to the first defendant "interest at a rate of 3% per annum on the sum of RM18 million every quarter by 30th day of the commencement of each quarter to the first defendant's solicitors client's account earning interest and the first quarter shall commence on 1 July 2010" at the stage of setting aside the ad interim injunction and pending the hearing of the inter partes injunction and his Lordship's basis is as follows: "[80] I am of the view that at this stage of setting aside the ad-interim injunction and pending the hearing of the inter parte injunction the balance of convenience would have been more than achieved if the plaintiffs were to pay to the 1st defendant's solicitors the interests that could be earned on the sum of US$18 million so that at most, the only disadvantage to the 1st defendant is a postponement of their receipt of the sum of US$18 million under the PG until the hearing of the inter parte injunction. As the 1st plaintiff is under PN17 and there is a current restructuring plan afoot under a S176 scheme under the Companies Act 1965, the 1st defendant cannot be blamed for being anxious about the 1st plaintiff financial standing which can be allayed by the payment of interest periodically". 30 [56] It was further submitted that in the present case, the Plaintiff is not under PN17 and not under any restructuring plan under Section 176 scheme under the Companies Act 1965 but instead is in very good financial health and standing as can be seen in its latest audited financial statements for the year ended 31.12.2015. [57] The Plaintiff therefore contended that Prayer (4) ought to be granted only in special and limited circumstances, one of which is when the company seeking an injunctive relief is not a going concern. This, it was argued, is clearly not the case here. [58] I would say in a case where the Plaintiff's own auditors have qualified the going concern basis making it subject to "the ultimate holding company has agreed to provide the Company with financial support to meet its obligations when they fall due," it is within the exercise of the Court's discretion pending the hearing of the inter-parte injunction for the interest to be paid to the Plaintiff's solicitors. [59] The terms of the ad-interim injunctive order in Nam Fatt was affirmed by the Court of Appeal in Petrodar Operating Co Ltd v Nam Fatt Corporation Bhd & Anor [2012] 5 MLJ 445. 31 [60] In Ranhill E&C Sdn Bhd v Thyssenkrupp Industries (M) Sdn Bhd & Anor [2016] 6 CLJ 290 this Court observed as follows at the hearing of the application for injunction to restrain the 1st Defendant from receiving the monies secured under a Bond: “[55] The plaintiff contended that D1, though incorporated locally, is a company controlled from India, being a wholly-owned subsidiary of a foreign entity based on India…The plaintiff said that it was not in a position to ascertain the extent, if any of D1’s assets in Malaysia… [58] If the plaintiff is still anxious, that can be attended to by ordering that the amount of RM1,591,523.52 to be released by D2, be released to the solicitors’ clients’ account of D1’s solicitors herein and the same to be kept in an interest-earning account as stakeholders until the disposal of this suit.” [61] The Plaintiff there subsequently applied for an Erinford injunction which the Court granted subject to the paying of interest on the sum secured by the Bond as follows: "[77] Weighing the respective factors in the scale of balance of convenience and seeing that the trial is just round the corner in the first week of June, which is hardly three months away, the court 32 would be inclined to maintain the status quo ante and to grant the Erinford injunction subject to terms. The Erinford injunction would be until the disposal of the appeal or the disposal of the trial of this case whichever is earlier. [78] The plaintiff shall pay interest from 11 November 2015 (the date of call on the BG) to the date of disposal of trial or of the appeal whichever is earlier at the rate of 5% per annum to D1's solicitors and the first payment, calculated until the 31 March 2016, shall be paid to D1's solicitors as stakeholders by 31 March 2016 and the balance shall be on a monthly basis. Costs shall be costs in the cause." [62] The payment of interest on the sum secured by a Bond may be made at the ad-interim injunction stage or at the end of the inter-parte hearing for the injunction or even at the Erinford injunction stage in the exercise of the Court's discretion with the ends of justice in mind in that delicate balance of convenience test. [63] There was also the objection taken by the Defendant's learned counsel that the Plaintiff’s Notice of Application is procedurally flawed in that it does not state under which provision of the Rules of Court 2012 it was made. I would be inclined to follow the sentiments expressed 33 by Justice Mary Lim J (now JCA) in Safuan Group Berhad v Jambulingam Sethuraman Raki C/O Rimbun Corporate Advisory Sdn Bhd [2010] MLJU 1860 where her Ladyship held that an objection is to be dismissed where there is no prejudice or injustice caused. The Court would be slow to strike out applications due to technical non-compliance and compromise the interests of justice. Instead, the Court is able to cure such minor errors pursuant to its powers under Order 2 Rule 1(2), Order 1A and/or Order 92 Rules 5 of the Rules of Court 2012. See further Chin Wooi Keat v Isberg Corporation Sdn Bhd (dalam Penerimaan) & Anor [2014] 1 LNS 48. [64] I agree with the Plaintiff that the Defendant was not prejudiced and was certainly not misled as to the content and purpose of this application. The application was sufficiently clear and certain to the extent that the Defendant has able to address the issues raised and reply to the affidavit. I had therefore allowed the Plaintiff's learned counsel to make an oral application to amend the Notice of Application to reflect that it was made pursuant to Order 42 rule 13, Order 92 rule 4 and/or the inherent jurisdiction of this Court. 34 [65] To summarize, what the Plaintiff had sought to do was to ask this Court to review its decision of 3.11.2016 with respect to deleting prayer (4) altogether. There has been no material change of circumstances from that date to the date of the application (22.11.2016) to justify any review of the ad-interim order made, which by its very nature is temporary pending the outcome of the inter-partes hearing of Enclosure 3 where the injunction is concerned together with the main prayers in the OS. [66] The proper remedy would be for the Plaintiff to appeal against the said order of 3.11.2016 which the Plaintiff did by filing a Notice of Appeal dated 28.11.2016 at the same time as they filed an appeal against the decision of this Court in Enclosure 86 given on 25.11.2016. This is in line with the approach taken in Chua Weng Meng v Wong Kok Kong [1999] 2 MLJ 416 at page 422 where it was observed: "Having regard to the extensive rights of appeal, the power to recall an order which has not been passed and entered should be sparingly exercised if such issues for further consideration can be left to be dealt with by way of appeal to the Court of Appeal." 35 [67] This judgment is written both for the purpose of the Plaintiff's appeal in Enclosure 86 on their application to vary the order of 3.11.2016 as well as for their appeal against the ad-interim order in Enclosure 3. Pronouncement [68] For the reasons given above, the Plaintiff's application to vary prayer 4 of the ad-interim injunctive order of 3.11.2016 in Enclosure 86 is dismissed with costs in the cause. [69] In the meanwhile prayer (4) of the order of 3.11.2016 shall remain. The Plaintiff shall deposit with their solicitors the interest that would have been earned on the sum secured of USD 20 million calculated at the rate of 3% per annum and payable monthly to be paid on the last day of each month to the Plaintiff's solicitors commencing 30.11.2016 and thereafter on the last day of each succeeding month until the disposal of Enclosure 3 and the OS. The Plaintiff’s solicitors shall give written confirmation to the Defendant's solicitors at the end of each month. 36 [70] The interest earned shall be applied as the Court may direct at the end of the inter-parte hearing of Enclosure 3. Liberty to apply. Dated: 1 February 2017. Y.A. LEE SWEE SENG Judge Construction Court Kuala Lumpur For the Plaintiff : Lim Chee Wee, Shannon Rajan, Janice Tay, and Geraldine Goon. (Messrs Skrine) For the Defendant : Ariff Rozhan together with William Lim, Kho Sze Jia and Kow Kean Fatt (Messrs Ariff Rozhan & Co.) Dates of Decision: 3 November 2016 and 25 November 2016.