Jack-In Pile (M) Sdn. Bhd. v Geotechnical Alliance Sdn. Bhd. (WA-22C-82-12/2024)

Enclosure 4 is the Plaintiff’s application (Enclosure 4) for an injunction to restrain the Defendant and/or their agents etc. from acting on the 2 Purported Sub-Contract dated 5.3.2024 (Purported Sub-Contract) until full disposal of this action.

In or around January 2024, the Plaintiff approached the Defendant to be the sub-subcontractor to carry out “Bored Piling Works” (“Works”) for a Project known as “Cadangan Pembangunan 3 Blok Pangsapuri 15 Tingkat Yang Mengandungi: -1) Blok 1 - 105 Unit Kediaman Di Tingkat Bawah Hingga Tingkat 14 (1 Unit Jenis Al, 1 Unit Jenis A2, 14 Unit Jenis A3, 14 Unit Jenis A4, 1 Unit Jenis Bl, 1 Unit Jenis B2, 14 Unit Jenis B3, 14 Unit Jenis B4, 2 Unit Jenis Cl, 1 Unit Jenis C2, 28 Unit Jenis C3 & 14 Unit Jenis C4); 2) Blok 2 - Kemudahan Bilik Bacaan, Bilik Dobi Dan Pejabat Pengurusan Di Tingkat Bawah Berserta 105 Unit Kediaman Di Tingkat 1 Hingga Tingkat 15 (1 Unit Jenis Al, 1 Unit Jenis A2, 14 Unit Jenis A3, 14 Unit Jenis A4, 1 Unit Jenis Bl, 1 Unit Jenis B2, 14 Unit Jenis B3,14 Unit Jenis B4,2 Unit Jenis Cl, 1 Unit Jenis C2, 28 Unit Jenis C3 & 14 Unit Jenis C4); 3) Blok 3 - Tempat Letak Kereta Di Tingkat Bawah Dan 105 Unit Kediaman Di Tingkat 1 Hingga Tingkat 15 (1 Unit Jenis Al, 1 Unit Jenis A2, 14 Unit Jenis A3, 14 Unit Jenis A4, 1 Unit Jenis Bl, 14 Unit Jenis B2, 2 Unit Jenis Cl, 2 Unit Jenis C2, 28 Unit Jenis 3 C3 & 28 Unit Jenis C4); 4) Kemudahan Kolam Renang, Dewan Serbaguna Tadika, Taman Permainan, Gimnasium, Dan Surau Di Tingkat Bawah; 5) 3 Tingkat Tempat Letak Kereta Dari Tingkat Separa Bawah 1 Hingga Tingkat Separa Bawah 3, 5 Unit Kedai, 1 Unit Pencawang Elektrik Dan Bilik Sampah, Di Aras Separa Bawah 1 Berserta Loji Rawatan Kumbahan; 6) 1 Unit Pondok Pengawal Berserta Pintu Gerbang; Di No. 2 (Lot 737), Jalan Kelab Golf 13/6, Kelab Golf Sultan Abdul Aziz Shah, Seksyen 13, 40100 Shah Alam, Selangor Darul Ehsan Untuk Tetuan Golden Armani Sdn Bhd” (“Project”) by way of a series of communications between the Plaintiff and the Defendant including by way of WhatsApp messages which culminated in the issuance of the Letter of Award dated 05.03.20241 (“LOA”) which is to be read together with other sub-contract documents (collectively referred to as “the Sub-Subcontract”) for a contract sum of RM526,395.34 (“Contract Sum”).

Premised on the terms and conditions of the Sub-Subcontract, the Defendant commenced the said Works in the said Project in or around March 2024, to amongst others, construct 21 nos. of bored piles. Further instructions were received by the Plaintiff and/or its representatives to construct an additional 77 bored piles 4 (“Additional Works”). By 21.06.2024, the Defendant constructed a total of 98 nos. of bored piles.

At all material times during the execution of the Works, all meetings and correspondences were between the Plaintiff and the Defendant with the Defendant receiving instructions directly from the Plaintiff in relation to the progress of the said Works.

The Defendant submitted a Request for Work Inspection (“RFWI”) for each of the 98 bored piles constructed, accompanied by Bored Pile Records, drawings, and delivery orders. All RFWI submissions were duly approved by the clerk of works, MKR Structure Sdn. Bhd.

During the course of the Works, the Defendant submitted monthly Interim Payment Applications (“IPAs”) to the Plaintiff, supported with detailed completed works, breakdowns and the corresponding payment amounts due between 26.03.2024 and 20.09.2024. The details are as follows: - Interim Payment Applications (“IPAs”) Submitted to the Plaintiff No. Date Amount (RM) 1 26.03.2024 226,210.48 5 2 29.04.2024 591,012.85 3 17.05.2024 296,016.96 4 20.06.2024 796,169.51 5 19.07.2024 73,145.62 6 20.08.2024 18,553.50 7 20.09.2024 102,855.50

At all material times, these IPAs were issued in accordance with the Subcontract and the IPAs were allegedly not refused, denied or rejected by the Plaintiff.

Due to the Plaintiff’s alleged continued failure to certify and/or honour its payment obligations under the Sub-Subcontract, the Defendant made several demands on the outstanding IPA issued to the Plaintiff including by way of a letter dated 20.09.2024 where the Defendant demanded the Plaintiff to certify IPAs No.1 to No.6 which was allegedly overdue and issued the overdue interim payment certificates within 7 days from 20.09.2024 to allow immediate submission of corresponding invoices and payments of the outstanding amounts (“September LOD”). 6 [9] The Plaintiff had allegedly failed and/or refused to certify and/or honour the IPAs.

Following the September LOD, the Defendant submitted two (2) additional IPAs dated 20.09.2024 and 18.10.2024 to the Plaintiff, i.e., IPAs No.7 and No. 86, detailing the alleged completed works and the corresponding payment amount due.

On 19.09.2024, Abadi Makmur Engineering Sdn. Bhd. (“Abadi”) issued Progress Payment Certificate No.1 backdated to 30.04.2024 (“IPC No. 1”) in relation to the Defendant’s Interim Payment Application No. 1 via email, and subsequently on 25.09.2024 made payment to the Defendant based on IPC No. 1.

At all material times, the Defendant alleges that it had no knowledge of the Plaintiff’s internal arrangement it had with Abadi in relation to the IPAs issued by the Defendant to the Plaintiff.

On 22.10.2024, the Defendant issued Invoices to the Plaintiff in relation to IPAs No.2 to No.8, which were later re-issued on 23.10.2024 (“Invoices”). The details of the Invoices, which allegedly remain due and outstanding to date, are stated in the table below: - No. IPA Date Date of Issuance of the Invoices Due Date (per Clause 8 of the LOA Amount Due (RM) 2 29.04.2024 23.10.2024 07.12.2024 569,487.93 3 17.05.2024 23.10.2024 07.12.2024 296,016.96 4 20.06.2024 23.10.2024 07.12.2024 796,169.51 5 19.07.2024 23.10.2024 07.12.2024 73,145.62 6 20.08.2024 23.10.2024 07.12.2024 18,553.50 7 20.09.2024 23.10.2024 07.12.2024 102,855.50 8 18.10.2024 23.10.2024 07.12.2024 2,650.50 Total 1,858,879.53

On the same day, following the receipt of the Invoices, the Plaintiff’s representative instructed the Defendant via email to re-issue the Invoices to Abadi.

By way of a letter dated 28.10.2024, the Defendant expressed its disagreement on the Plaintiff’s instructions to re-issue the Invoices to Abadi as there is no provision within the LOA and the Sub-Subcontract authorising Abadi to pay on behalf of the Plaintiff. Thereafter, the Defendant’s solicitors had issued a letter dated 28.10.202410 to the Plaintiff and demanded the Plaintiff to pay the sum of RM1,858,879.53 within 45 days from the date of the Invoices (“LOD”). 8 [16] The Plaintiff susbequently initiated the present action against the Defendant by alleging that the Sub-Subcontract issued by the Plaintiff was purportedly tainted with illegality and/or fraudulently issued by the Defendant itself.

On 10.01.2025, the Defendant filed its Defence and Counterclaim in response to the Plaintiff’s Writ, seeking to defend against the claims and to recover the sums due and owing by the Plaintiff.

Prior to the Defendant’s Defence and Counterclaim, the Plaintiff filed and served the Injunction Application to the Defendant’s solicitors to injunct the Defendant from exercising its rights against the Plaintiff under the Sub-Subcontract, which is now before this Court.

In coming to this Court’s decision, this Court had carefully considered both sides written and oral submissions, in particular the Defendant’s contentions inter alia that:

19.1 the Plaintiff did not come to this Court with clean hands as the allegations of the Plaintiff that the Sub-Contract was tainted with illegality or fraudulently issued by the Defendant was only filed after the Defendant demanded payment from the Plaintiff for the Works and Additional Works;

19.2 the Plaintiff’s claim is frivolous and vexatious;

19.3 the Plaintiff has failed to provide an undertaking to pay damages. [20] As to the issue of ‘clean hands’, I have noted that the Plaintiff had approximately 14 days after receiving the alleged Impugned Sub-Contract, lodged a police report on the alleged Impugned Sub-Contract and thereafter some 2 days after the same, the Plaintiff had filed the Suit herein. Premised on these facts, I find that the allegation of unclean hands is misconceived. [21] In any event, after due consideration and an objective assessment of the documents before this Court, my preliminary and prima facie observations are inter alia as follows: -

The Purported Sub-Contract appears to have been made on a forged letterhead of the Plaintiff when compared with the Plaintiff’s letterhead in the contract dated 2.2.2024 between the Plaintiff and one Abadi Makmur Engineering Sdn. Bhd. (Abadi) and the signatory for the Plaintiff, one Mr. Soo Moon Mun is not the Managing Director of the Plaintiff but the MD for Abadi.

(ii) The Purported Sub-Contract appears to have identical terms to that of the contract dated 2.2.2024 between the Plaintiff and Abadi but the reference to Abadi in the Purported Sub-Contract and has been replaced with that of the Plaintiff.

(iii) The Purported Sub-Contract contains a Letter of Undertaking which appears to be addressed to Abadi annexed to it which is identical to the Letter of Undertaking in the contract dated 2.2.2024 between the Plaintiff and Abadi.

(iv) An affidavit given by Mr. Soo Moon Mun confirms that he did not sign the Purported Sub-Contract and that he is not the MD of the Plaintiff.

There is no evidence of the Plaintiff making payments to the Defendant for any wok done and that the Plaintiff had advised the Defendant to issue its invoices to Abadi. This goes to prima facie show contemporaneous conduct on the part of the Plaintiff that there is no Purported Sub-Contract.

(vi) On a balance of probabilities, I accept that the email allegedly sent by the Defendant on 21.5.2024 and 18.7.2024 enclosing or referring to the Purported Sub-Contract was overlooked by the Plaintiff as per the Plaintiff’s Affidavit in Enclosure 19.

(vii) It is not disputed that the works by the Defendant have been completed. [22] I have also for the record taken into consideration amongst others the Defendant’s argument that the Plaintiff has to demonstrate on the facts that the claim is not frivolous and vexatious, and the Defendant’s contention that the Defendant has no reason to forge the Purported Sub-Contract as well as the material time lines provided by counsel for the Defendant to this Court and balanced this against the Plaintiff’s submissions before me. [23] The law relating to interim injunctions can be found in Keet Gerald Francis Noel John v Mohd Noor Bin Abdullah & Ors [1995] 1 MLJ 12 193 where the Court of Appeal held that for an injunction to be granted: - a. there must be a bona fide serious issue to be tried; b. the balance of convenience i.e. must consider where the justice of the case lies; c. damages would not be an adequate remedy. [24] Taking into account the principles aforementioned and the aforesaid preliminary observations, I hold that all in there is a good arguable case made out by the Plaintiff in the case before me for the reasons aforementioned and that there are bona fide serious questions to be tried especially inter alia in terms of who is to be liable for payment to the Defendant for works done and the existence or validity of the Purported Sub-Contract. [25] With regards the issue of there being no undertaking as to damages provided by the Plaintiff herein, I hereby hold no such undertaking is required as per Eshwara Engineering Sdn Bhd v Delta Structure Sdn Bhd [2003] 4 MLJ 18; [2003] 7 CLJ 447 where the court held that an undertaking as to damages would only apply in an ex-parte application for an interim injunction. There was no such requirement for an undertaking as to damages in an inter partes application; Petronas Dagangan Sdn Bhd v Omar bin Abdul Samad [1996] 4 MLJ 391. [26] Accordingly, I further hold that the balance of convenience is in favor of this court granting an ad interim injunction as prayed for as the Plaintiff would suffer greater injustice if the application in Enclosure 4 was denied as compared to the Defendant who maybe compensated in damages at the end of the day if the matter is found in their favor. [27] I therefore grant an Order In terms for prayers (a) and (b) of Enclosure 4 subject to the Plaintiff giving an undertaking as to damages. Dated: 26th day of March 2025 sgd. NADZARIN WOK NORDIN HIGH COURT JUDGE CONSTRUCTION COURT 1 COUNSEL FOR PLAINTIFF: Chan Kheng Hoe and Yee Chau Ruey (Messrs Kheng Hoe & Lee Yuen] COUNSEL FOR DEFENDANT: Allen Cheng Peng Han and Peng Elaine (Messrs Mohandass Partnership]