International Shipcare Sdn Bhd v Sabenajadi Sdn Bhd (WA-22NCC-867-12/2025)

SABENAJADI SDN BHD (Company No. 200301032800 (635221-M))

PETRONAS DAGANGAN BERHAD (Company No. 198201008499 (0088222-D))

MOHD AMIN BIN MOHD SHUKOR … DEFENDANTS GROUNDS OF JUDGMENT

Before this Court are two applications which raise the same essential question: whether the Plaintiff's claim against an employer who is not in contract with it (the 2nd Defendant), and against that employer's employee (the 3rd Defendant), is fit to proceed to trial, or whether it is so plainly and obviously unsustainable that summary disposal is warranted at the threshold.

Enclosure 9 has been filed by the 2nd Defendant, Petronas Dagangan Berhad. Enclosure 11 has been filed by the 3rd Defendant, Mohd Amin Bin Mohd Shukor. Both applications are brought pursuant to Order 18 Rule 19(1)(a), (b), (c) and (d) and Order 92 Rule 4 of the Rules of Court 2012, and seek to strike out the Plaintiff's Writ of Summons and Statement of Claim insofar as the same relate to the 2nd and 3rd Defendants.

The Plaintiff is a subcontractor that performed debunkering and tank cleaning services on the vessel Puteri Firus Satu. Its only contracting counterparty is the 1st Defendant, Sabenajadi Sdn Bhd, which is the main contractor appointed by the 2nd Defendant. The Plaintiff acknowledges this absence of privity, but nevertheless asserts non-contractual claims against the 2nd and 3rd Defendants founded on quantum meruit and unjust enrichment under Section 71 of the Contracts Act 1950, promissory estoppel, and fraudulent misrepresentation.

The questions for determination are: (a) whether the threshold for summary striking out is met against the 2nd Defendant; (b) whether the threshold is met against the 3rd Defendant; and (c) what consequential orders are appropriate.

Having considered the affidavits, the pleadings, and the written and oral submissions of all counsel, this Court allowed both Enclosure 9 and Enclosure 11 in their entirety, with costs. The grounds for that decision rest on two cardinal pillars: first, that there is no contractual nexus between the Plaintiff and either of the 2nd or 3rd Defendants; and second, that the 2nd Defendant has fully discharged its contractual obligations by paying the 1st Defendant the entirety of the agreed contract sum. These pillars are explained in full below.

The material facts giving rise to the suit are largely undisputed and may be set out chronologically.

On 24 April 2024, the 2nd Defendant appointed the 1st Defendant to perform debunkering and tank cleaning services on the vessel Puteri Firus Satu. A Letter of Appointment was executed on 10 May 2024 between the 2nd Defendant and the 1st Defendant for the sum of RM300,000.00 to be completed within nine days.

On 14 May 2024, a meeting was convened between representatives of the Plaintiff, the 1st Defendant, and the 2nd Defendant. At that meeting, the scope of services was revised, requiring a longer duration and a higher contract sum.

On 20 May 2024, the Plaintiff and the 1st Defendant executed a separate Letter of Award. The Plaintiff is not a contractual counterparty to the 2nd Defendant under any document tendered before this Court.

On 23 May 2024, the 1st Defendant accepted revisions to its Letter of Appointment with the 2nd Defendant. The contract sum was increased to RM2,147,700.00 and the duration extended to 14 days. On 4 June 2024, the 2nd Defendant issued Addendum No. 1 reflecting these revised terms.

The works were completed on or about 9 to 10 June 2024. The 1st Defendant invoiced the 2nd Defendant for RM2,147,700.00.

On 27 August 2024, the 2nd Defendant paid the 1st Defendant the full sum of RM2,147,700.00. With this payment, the 2nd Defendant fully and finally discharged its contractual obligations to the 1st Defendant under the Letter of Appointment as varied by Addendum No. 1.

The Plaintiff alleges that it has not been paid in full for additional works and now asserts a recalculated claim of RM2,310,128.00. There is, on the face of the documents, a shortfall of approximately RM162,428.00 between the Plaintiff's recalculated claim and the sum that the 2nd Defendant paid to the 1st Defendant. The Plaintiff has not produced before this Court any contract, express or implied, by which the 2nd Defendant agreed to make payment to the Plaintiff directly.

The 3rd Defendant is an individual employed by the 2nd Defendant as Head (Vessel) for Vessel Operation Assurance. His role in the project was to oversee, on behalf of his employer, the performance of the contract by the 1st Defendant.

A.The 2nd Defendant's Submissions (Enclosure 9) Counsel for the 2nd Defendant submitted that there is a complete absence of privity of contract between the 2nd Defendant and the Plaintiff. The Plaintiff's Letter of Award is exclusively with the 1st Defendant. The 2nd Defendant has paid the 1st Defendant the agreed contract sum in full. Any benefit accruing to the 2nd Defendant from the Plaintiff's works was the incidental product of the 1st Defendant performing its contractual obligations to the 2nd Defendant. There is, on the pleadings, no recognisable cause of action against the 2nd Defendant. Reliance was placed on Bandar Builder Sdn Bhd & Ors v United Malayan Banking Corporation Bhd and Godrej Sara Lee Ltd v Siah Teong Teck & Anor.

B.The 3rd Defendant's Submissions (Enclosure 11) Counsel for the 3rd Defendant adopted the 2nd Defendant's submissions and added that the 3rd Defendant is an employee acting at all material times in his official capacity. He derived no personal benefit from the Plaintiff's works. The pleadings disclose no specific particulars of fraud, no representations made in his personal capacity, and no proper basis for fixing him with personal liability. To name him as a party in his individual capacity in the present circumstances is, it was submitted, an abuse of process.

C.The Plaintiff's Submissions Counsel for the Plaintiff submitted that privity of contract is not a precondition to a claim under Section 71 of the Contracts Act 1950, relying on Mega Mayang M & E Sdn Bhd v Utama Lodge Sdn Bhd & Anor. The Plaintiff contended that the 2nd and 3rd Defendants induced the additional works, supervised them on the ground, and gave assurances of payment. Contemporaneous emails and meeting minutes (Exhibit ISC-1, Encl. 15) were said to demonstrate this direct involvement. Striking out, the Plaintiff submitted, is a draconian remedy that ought not to be exercised where serious questions of fact require oral evidence, citing Sivakumar a/l Varatharaju Naidu.

IV.ISSUES FOR DETERMINATION This Court has reduced the matters in dispute to the following issues: a) Issue 1 — Whether the threshold for summary striking out under Order 18 Rule 19 of the Rules of Court 2012 is met against the 2nd and 3rd Defendants; b) Issue 2 — Whether the absence of contractual privity between the Plaintiff and the 2nd and 3rd Defendants is fatal to the Plaintiff's claim; c) Issue 3 — Whether the 2nd Defendant's full payment of the agreed contract sum to the 1st Defendant extinguishes any claim by the Plaintiff in quantum meruit and unjust enrichment; d) Issue 4 — Whether the Plaintiff's claims in promissory estoppel and fraudulent misrepresentation disclose any reasonable cause of action and are properly particularised under Order 18 Rule 12 of the Rules of Court 2012; e) Issue 5 — Whether any reasonable cause of action lies against the 3rd Defendant in his personal capacity; and f) Issue 6 — Whether the suit against the 2nd and 3rd Defendants is otherwise an abuse of the process of the Court.

A.The Statutory Framework Order 18 Rule 19(1) of the Rules of Court 2012 provides: "The Court may at any stage of the proceedings order to be struck out or amended any pleading or the indorsement of any writ in the action, or anything in any pleading or in the indorsement, on the ground that —(a) it discloses no reasonable cause of action or defence, as the case may be;(b) it is scandalous, frivolous or vexatious;(c) it may prejudice, embarrass or delay the fair trial of the action; or(d) it is otherwise an abuse of the process of the Court,and may order the action to be stayed or dismissed or judgment to be entered accordingly, as the case may be."

Order 18 Rule 19(2) further provides that no evidence shall be admissible on an application under sub-paragraph (1)(a). However, evidence by affidavit is admissible under the remaining limbs (b), (c), and (d), and under Order 92 Rule 4.

Order 18 Rule 12(1) of the Rules of Court 2012 mandates the proper pleading of fraud and misrepresentation. It provides: "Subject to paragraph (2), every pleading shall contain the necessary particulars of any claim, defence or other matter pleaded including, without prejudice to the generality of the foregoing —(a) particulars of any misrepresentation, fraud, breach of trust, wilful default or undue influence on which the party pleading relies; and(b) where a party pleading alleges any condition of mind of any person, whether any disorder or disability of mind or any malice, fraudulent intention or other condition of mind except knowledge, particulars of the facts on which the party relies."

Order 92 Rule 4 of the Rules of Court 2012 reserves to this Court its inherent jurisdiction. It provides: "For the removal of doubt it is hereby declared that nothing in these Rules shall be deemed to limit or affect the inherent powers of the Court to make any order as may be necessary to prevent injustice or to prevent an abuse of the process of the Court."

Section 71 of the Contracts Act 1950 governs the equitable obligation to compensate for non-gratuitous acts. It provides: "Where a person lawfully does anything for another person, or delivers anything to him, not intending to do so gratuitously, and such other person enjoys the benefit thereof, the latter is bound to make compensation to the former in respect of, or to restore, the thing so done or delivered."

B.Burden and Standard of Proof The burden in a striking out application rests squarely on the applicant. The applicant must persuade this Court, on the civil standard of the balance of probabilities (per Lord Denning's classic exposition in Miller v Minister of Pensions [1947] 2 All ER 372), that the case falls within the limited category of "plain and obvious" cases warranting summary disposal. Conversely, the plaintiff resisting the application is entitled to have its pleadings read at their highest, with all reasonable inferences drawn in its favour.

C.Case Law The leading authority on the threshold for striking out is the decision of the Supreme Court in Bandar Builder Sdn Bhd & Ors v United Malayan Banking Corporation Bhd. The principle is that this summary jurisdiction will only be exercised in plain and obvious cases where the claim is, on the face of it, obviously unsustainable. The Court will not embark upon a minute examination of disputed facts where serious triable issues exist.

In Sivakumar a/l Varatharaju Naidu, the Court reiterated that striking out is a draconian remedy and must be used sparingly. Where serious questions of fact or mixed law and fact arise, the proper course is to permit the matter to proceed to trial. This Court has kept these warnings firmly in mind.

In Godrej Sara Lee Ltd v Siah Teong Teck & Anor, the Federal Court held that where a plaintiff's grievance lies solely against one defendant, and no valid cause of action is established against a co-defendant, the action against the latter ought to be summarily dismissed. This authority bears directly upon the position of the 2nd and 3rd Defendants in the present case.

The Plaintiff places considerable reliance on Mega Mayang M & E Sdn Bhd v Utama Lodge Sdn Bhd & Anor, which it cites for the proposition that privity of contract is not an absolute precondition to a claim in quantum meruit under Section 71 of the Contracts Act 1950 between a subcontractor and an employer. As will be explained, that authority is distinguishable on the facts of the present case and does not assist the Plaintiff where the employer has, on the undisputed evidence, fully paid the main contractor the agreed sum.

A.Issue 1 — The Threshold for Striking Out This Court is fully conscious that the jurisdiction to strike out summarily is a draconian one and must be exercised with circumspection. The principles in Bandar Builder and Sivakumar are settled and require no further elaboration. The applicants bear the burden; they cannot ride on assertion alone. Equally, however, where a claim is on the pleadings plainly and obviously unsustainable, this Court must not allow the suit to be deployed as a vehicle of attrition against parties with no proper case to answer. The doctrine of restraint cuts both ways.

On the materials placed before this Court, the present case falls into the limited category in which striking out is appropriate. The reasons rest on two cardinal pillars, addressed in turn below: first, the absence of any contractual nexus between the Plaintiff and the 2nd or 3rd Defendants; and second, the 2nd Defendant's full discharge of its contractual obligations by payment to the 1st Defendant of the entirety of the agreed sum.

B.First Pillar — Absence of Privity The Plaintiff has, in its own pleadings, expressly admitted that its only contractual counterparty is the 1st Defendant. The Letter of Award dated 20 May 2024 is between the Plaintiff and the 1st Defendant exclusively. There is no document, instrument, or agreement before this Court evidencing any contractual relationship between the Plaintiff and either the 2nd or 3rd Defendants.

The Plaintiff's explanation for this state of affairs — that it lacked vendor registration with the 2nd Defendant and that the contract was "routed through" the 1st Defendant for that reason — is, with respect, irrelevant to the legal question before this Court. Whatever the commercial expediency for the structure adopted, the legal consequence is unaltered: the Plaintiff chose to enter into a Letter of Award with the 1st Defendant and not with the 2nd Defendant. Having made that election, the Plaintiff cannot now disavow the consequences of the contractual chain that it itself accepted.

The absence of privity is not, by itself, fatal to every form of equitable or restitutionary claim. This Court accepts the Plaintiff's submission, on the authority of Mega Mayang, that Section 71 of the Contracts Act 1950 does not impose an absolute requirement of privity. A subcontractor may, in suitable cases, recover from an employer who has enjoyed the benefit of non-gratuitous works. However, that proposition takes the Plaintiff only so far. The further requirements of Section 71 — that the act be done for the defendant; that it be not gratuitous; and that the defendant has enjoyed the benefit thereof in a manner that justifies compensation — must each be satisfied. In the present case, the second pillar of this Court's reasoning, set out below, demonstrates that those further requirements cannot be satisfied on the facts. C.Second Pillar — Full Discharge by Payment to the 1st

Defendant It is undisputed that on 27 August 2024, the 2nd Defendant paid the 1st Defendant the full agreed contract sum of RM2,147,700.00. By that payment, the 2nd Defendant discharged in full its contractual obligations to the 1st Defendant under the Letter of Appointment as varied by Addendum No. 1.

The legal consequence is twofold. First, the 2nd Defendant cannot, as a matter of law, be said to have been "unjustly" enriched. It has paid for what it received, in the agreed sum, to the contractor with whom it had a direct contractual relationship. The retention of any benefit was matched, dollar for dollar, by the discharge of a corresponding contractual obligation. There is no enrichment without a juristic basis; on the contrary, the enrichment, if any, is fully grounded in the D2–D1 contract.

Second, any benefit accruing to the 2nd Defendant from the Plaintiff's works was merely incidental to the 1st Defendant's performance of its own contractual obligations. The 2nd Defendant did not commission the Plaintiff. It commissioned the 1st Defendant. That the 1st Defendant chose to subcontract part of its scope to the Plaintiff does not transform the 2nd Defendant into the Plaintiff's commercial counterparty.

This Court has noted the apparent shortfall between the Plaintiff's recalculated claim of RM2,310,128.00 and the RM2,147,700.00 paid by the 2nd Defendant to the 1st Defendant. That shortfall, on the materials before the Court, reflects works the Plaintiff says it performed within the scope of the 1st Defendant's contract with the 2nd Defendant. If the Plaintiff has been under-recompensed, that under-recompense lies at the door of the 1st Defendant — its actual contracting counterparty — and not at the door of the 2nd Defendant. Any cost overrun is, in law, a matter for the 1st Defendant to absorb under its own contract with the Plaintiff. The 2nd Defendant cannot be made to pay twice for the same scope of work merely because the 1st Defendant has, on the Plaintiff's case, failed to remit a fair share of what it received.

It is on this point that Mega Mayang is materially distinguishable. Mega Mayang stands for the limited proposition that an employer who has enjoyed the benefit of non-gratuitous works performed by a subcontractor may, in appropriate circumstances, be liable under Section 71. It does not stand for the broader proposition that an employer who has paid the main contractor in full for the very scope of works in question remains liable to the subcontractor in restitution. To extend the principle in that manner would be to expose employers to double recovery and to subvert the contractual chain freely chosen by the parties.

D.Application to the Section 71 Claim Applying the two pillars to the Plaintiff's principal claim, this Court finds as follows. The absence of privity, taken with the 2nd Defendant's full discharge by payment to the 1st Defendant, is together fatal to the quantum meruit and unjust enrichment claims. The four limbs of Section 71 cannot be satisfied. The 2nd Defendant has not enjoyed any benefit beyond that for which it has paid in full. There is no juristic gap that the law of restitution must close. The claim, on the pleadings as they stand, is plainly and obviously unsustainable.

E.Application to the Promissory Estoppel Claim The Plaintiff pleads promissory estoppel as an alternative cause of action. To found such a claim, the Plaintiff must plead and prove a clear and unequivocal promise or representation by the 2nd or 3rd Defendants, intended to be acted upon, and acted upon to the Plaintiff's detriment in circumstances making it inequitable for the promisor to resile.

The pleadings disclose no such clear and unequivocal promise. The Plaintiff's assertions of "assurances of payment" by the 2nd or 3rd Defendants are pleaded at the highest level of generality — without identifying who said what, when, in what terms, and in what capacity. Such bare assertions are insufficient to ground a promissory estoppel claim and cannot survive a striking out application. The cause of action is, on the pleadings, plainly unsustainable.

F.Application to the Fraudulent Misrepresentation Claim The Plaintiff has further pleaded fraudulent misrepresentation against the 2nd and 3rd Defendants. This is a serious allegation — perhaps the most serious that can be levelled — and the law accordingly requires that it be pleaded with the strictest specificity.

Order 18 Rule 12(1) (a) of the Rules of Court 2012, which has been quoted in full above, mandates that every pleading shall contain the necessary particulars of any misrepresentation or fraud relied upon. The settled requirement is that the pleader must identify, with precision: the particular representation alleged; the precise words or substance of that representation; the date and place at which it was made; the person who made it; the person to whom it was made; the capacity in which it was made (whether personal or representative); the falsity of the representation; the knowledge of falsity (or recklessness) of the representor; the reliance placed upon it by the representee; and the loss or detriment thereby occasioned.

Tested against that standard, the Plaintiff's pleadings fall well short. The Statement of Claim contains generalised allegations of inducement and assurance, but it does not particularise any specific representation in the manner required. There is no identification of the precise words used, the date and venue of utterance, or — critically as against the 3rd Defendant — the capacity in which any such representation was made. The pleadings amount to no more than bare assertion.

Where the requirements of Order 18 Rule 12 are not met, an allegation of fraud cannot stand. To permit such allegations to proceed to trial on the pleadings as presently drawn would be to require the 2nd and 3rd Defendants to meet a case that has not been properly formulated, and to expose them to the inherent prejudice that follows from any allegation of fraud. The fraudulent misrepresentation claim, against both the 2nd and 3rd Defendants, is plainly unsustainable.

G.Issue 5 — The 3rd Defendant's Personal Position The 3rd Defendant is, on the undisputed evidence, an employee of the 2nd Defendant in the position of Head (Vessel) for Vessel Operation Assurance. His communications with the Plaintiff and his attendance at meetings were carried out as part of his employment duties on behalf of the 2nd Defendant. There is no pleaded basis upon which it can be said that he stepped outside the scope of his employment, derived any personal benefit, or made any representation in his personal as opposed to his representative capacity.

The settled principle is that an employee or director acting bona fide within the scope of his authority is not personally liable for the company's contracts, nor for any tort committed in the discharge of his duties save where the elements of the tort are personally satisfied as against him with the requisite particularity. The Plaintiff has pleaded no such case. The naming of the 3rd Defendant in his personal capacity adds nothing to the substance of the suit and is, for the reasons set out at paragraphs 42 to 45 above, unsupported by any properly particularised allegation of personal fraud or independent representation.

Accordingly, no reasonable cause of action lies against the 3rd Defendant in his personal capacity. Enclosure 11 succeeds on this ground in addition to the two cardinal pillars.

H.The Plaintiff's Contemporaneous Documents This Court has carefully examined the contemporaneous emails and meeting minutes exhibited in Exhibit ISC-1 of Encl. 15, on which the Plaintiff places great reliance. They are said to demonstrate direct communication, operational supervision, and assurances of payment by the 2nd and 3rd Defendants.

Reading those documents at their highest, this Court finds that they are wholly consistent with the 2nd and 3rd Defendants discharging their role as the employer overseeing the performance of the main contract by the 1st Defendant. It is to be expected — indeed it would be remarkable if the position were otherwise — that an employer in a project of this nature would communicate with personnel on the ground, attend coordination meetings, and supervise operational matters. The 3rd Defendant's involvement in those activities was the discharge of his function as Head (Vessel) for Vessel Operation Assurance. None of the documents, even taken at the Plaintiff's highest case, evidences a separate agreement between the 2nd Defendant and the Plaintiff, or a personal undertaking by the 3rd Defendant outside the scope of his employment.

The documents are not ignored; they are addressed and assessed. Their proper construction does not give rise to any triable issue against the 2nd or 3rd Defendants once the contractual chain is properly understood and the full payment to the 1st Defendant is taken into account.

I.Issue 6 — Abuse of Process Having regard to the absence of privity, the full discharge by payment, the failure to plead fraud with the requisite particularity, and the absence of any independent personal cause of action against the 3rd Defendant, this Court is satisfied that the continued maintenance of the suit against the 2nd and 3rd Defendants is an abuse of the process of the Court within Order 18 Rule 19(1) (d) and Order 92 Rule 4. The dispute, properly characterised, is a payment dispute between the Plaintiff and the 1st Defendant. To draw the 2nd and 3rd Defendants into that dispute by way of generalised pleadings of equitable doctrine and fraud is to misuse the Court's process.

J.By Way of Observation By way of observation only and not forming part of this Court's ratio: even if the Plaintiff's pleadings had cleared the privity and payment hurdles, this Court would have remained troubled by the manner in which fraud has been alleged against the 3rd Defendant. The casual invocation of fraud against an individual employee, unaccompanied by the particulars that Order 18 Rule 12 demands, is a matter that the profession would do well to reflect upon. Allegations of fraud are not to be made lightly, and they are not to be deployed as an instrument to pressure individual employees into procuring settlement from their employers.

VII.CONCLUSION AND ORDERS For the reasons set out above, this Court is satisfied that the Plaintiff's claim against the 2nd and 3rd Defendants is plainly and obviously unsustainable on the pleadings as they stand. The two cardinal pillars — absence of privity and full discharge by payment — together with the inadequate particularisation of the fraud and misrepresentation allegations and the absence of any independent cause of action against the 3rd Defendant in his personal capacity, place the matter squarely within the limited category of cases in which summary striking out is the appropriate course.

Accordingly, this Court makes the following orders: a) Enclosure 9 is allowed in its entirety. b) Enclosure 11 is allowed in its entirety. c) All endorsements in the Writ of Summons and all claims in the Statement of Claim insofar as they relate to the 2nd and 3rd Defendants are hereby struck out. d) The suit shall proceed solely as between the Plaintiff and the 1st Defendant. e) The Plaintiff shall pay costs to the 2nd Defendant in the sum of RM5,000 and to the 3rd Defendant in the sum of RM5,000, such costs to be subject to allocator and to be paid within fourteen (14) days from the date hereof. The basis for the costs award is that the applications were straightforward and were allowed in their entirety, and the Plaintiff has had the benefit of a full hearing on the merits.

VIII.APPRECIATION This Court records its appreciation to all counsel for the able and courteous manner in which the applications were argued. The written submissions were of considerable assistance to the Court in arriving at this decision. Dated 07hb May 2026 (MOHAMAD REDZUAN BIN IDRUS) JUDICIAL COMMISSIONER KUALA LUMPUR HIGH COURT NCC 5 WILAYAH PERSEKUTUAN KUALA LUMPUR APPEARANCES For the Plaintiff: Bhavaanah Sharma a/l Gurchan Singh Sharma & Yeenay Jit Singh (Bhavanash Sharma Advocates & Solicitors (Kuala Lumpur)) For the 1st Defendant: Yap Zhi Chen (JY Ko (Kuala Lumpur)) For the 2nd & 3rd Defendant: John Rolan Fernandez & Ashrvini Nair a/p Gobal Lakerisnan (Christopher & Lee Ong (Kuala Lumpur))

CASES REFERRED TO IN THIS JUDGMENT Bandar Builder Sdn Bhd & Ors v United Malayan Banking Corporation Bhd [1993] 3 MLJ 36 (SC).

Godrej Sara Lee Ltd v Siah Teong Teck & Anor [2007] 7 MLJ 153.

Mega Mayang M & E Sdn Bhd v Utama Lodge Sdn Bhd & Anor [2018] MLJU 1323.

Miller v Minister of Pensions [1947] 2 All ER 372.

Sivakumar a/l Varatharaju Naidu v Ganesan a/l Retanam [2011] 6

LEGISLATION REFERRED TO IN THIS JUDGMENT Contracts Act 1950 — Section 71.

Rules of Court 2012 — Order 18 Rule 12; Order 18 Rule 19; Order 92 Rule 4.