Kumkang Kind (M) Sdn. Bhd. v 1. ) Golden Star M&C Sdn. Bhd. (BA-22NCvC-528-12/2022)

GOLDEN STAR M&C SDN BHD (No. Syarikat: 201501033236 [1158556-P])

TEW KIAN TECK (No. K/P: 720725-01-5169)

CHINA COMMUNICATIONS CONSTRUCTION COMPANY (M) SDN BHD (No. Syarikat: 201201022921 [1007413-M]) − DEFENDAN-DEFENDAN GROUNDS OF JUDGMENT Introduction [1] The Plaintiff’s application is made under Order 29 rule 2 Rules of Court 2012 (“RoC 2012”) and/or Item 6 of the Schedule to the Courts of Judicature Act 1964 (Act 91) an for injunction to prevent the Third Defendant from releasing the amount of RM1,843,394.42 (from the adjudicated sum of RM2,083,034.47) based on the adjudication decision dated 20-6-2022 (adjudication reference no.: AIAC/D/ADJ-4159- 2022) to 30/06/2023 16:10:36 BA-22NCvC-528-12/2022 Kand. 32 the First Defendant and/or the Second Defendant before the disposal of this main action; Costs in the cause; and Any other reliefs that this Court deemed fit and proper. [2] The Plaintiff’s application is premised on Order 29 RoC 2012 and Item 6 Schedule 2 to Act 91. [3] On 31-5-2023, this Court held that – “Mahkamah ini memutuskan untuk menolak Lampiran 11 dengan kos sebanyak RM5000.00 (tertakluk kepada fi alokatur) dibayar oleh Plaintif kepada Defendan Pertama dan Defendan Kedua; dan kos sebanyak RM5000.00 (tertakluk kepada fi alokatur) dibayar oleh Plaintif kepada Defendan Ketiga.”. [4] The Plaintiff appeals. The main suit [5] Under the statement of claim, the Plaintiff is claiming against the Third Defendant for the sum of RM1,843,904.93 based on the Three Parties Agreement. The Facts: [6] The relationship between the parties – • Plaintiff is a company that supplies materials for Aluminium Formwork System. • First Defendant is the sub-contractor for a project site known as ‘Gem Residence Project’. • Second Defendant is a guarantor. On 16-11-2021, the Second Defendant gave personal guarantee to the Plaintiff that the Second Defendant personally and irrevocably guarantee the performance and obligations of the payment stated in the contracts entered between the Plaintiff and First Defendant. • Third Defendant is the main contractor for the Gem Residence Project’. [7] By a letter of award dated 7-4-2020 the Third Defendant had awarded the contract for ‘reinforced concrete works for pile cap only’ [“Pile Cap Works”] concerning the Gem Residence Project to the First Defendant. [8] The Third Defendant is aware that the Plaintiff is the supplier engaged by the First Defendant for the Aluminium Formwork System materials for the Gem Residence Project. [9] Between the Third Defendant, the First Defendant, and the Plaintiff, the three parties had entered into a first three parties agreement dated 20-3-2020. And later, a second three parties agreement dated 1-3-2022 (“the second Three Parties Agreement”) was entered. On 10-1-2022, the Third Defendant had determined the First Defendant’s Sub-Contract. [10] The Plaintiff had supplied materials for aluminium formwork system worth for the project site, ‘Gem Residence Project’ based on the First Defendant’s order, lease agreement and sales agreement and issued invoices to the First Defendant but the First Defendant had failed to pay for the relevant invoices. [11] As at 31-7-2022, the First Defendant still owes the Plaintiff an amount of RM1,843,394.42 for the leasing materials of the Aluminium Formwork System supplied by the Plaintiff to the First Defendant for the Gem Residence Project. [12] On 20-3-2020, the Plaintiff, the First Defendant and the Third Defendant had entered into a ‘Three Parties Agreement – Aluminium Formwork System (For Podium)’ (“the Agreement”). The first Three Parties Agreement dated 20.3.2020 entered between the Plaintiff, the First Defendant and the Third Defendant: [13] The relevant clause 15 reads – “In the event that the Sub-Contractor (the First Defendant) fails to comply the payment terms issued by Supplier (the Plaintiff) without any reasons, the Main Contractor (the Third Defendant) may (but not obliged to) pay such amount directly to the Supplier (the Plaintiff) and deduct from the Sub-Contractor (the First Defendant) interim payment certificate including administrative charge due to become due to the Sub-Contractor (the First Defendant).”. [14] The Plaintiff is claiming against the Third Defendant for whatever alleged non-payment rental or purchase price by the First Defendant to the Plaintiff in the sum of RM1,843,394.42. [15] In the Agreement, it was agreed between the parties that – • the Agreement comes into effect if termination of the First Defendant (sub-contractor) by the Third Defendant (main contractor) or self-termination of the sub-contractor for the Gem Residence Project. • in the event that the First Defendant (sub-contractor) fails to comply the payment terms issued by the Plaintiff (supplier) without any reasons, the Third Defendant (main contractor) may (but not obliged to) pay such amount directly to the Plaintiff (supplier) and deduct from the First Defendant (sub-contractor) interim payment certificate including the administrative charge due to become due the First Defendant (sub-contractor). [16] On 16-2-2022, the First Defendant (sub-contractor) had initiated adjudication proceedings (Ref No.: AIAC/D/ADJ-4159-2022) against the Third Defendant to claim RM2,083,034.47 from the Third Defendant. [17] On 20-6-2022, Dr. Shahrizal M Zin, the learned adjudicator, had given an adjudication decision in favour of the First Defendant in which the Third Defendant has to pay, among others, RM2,083,034.47 (‘adjudicated sum’) to the First Defendant. [18] On 9-8-2022, the First Defendant had filed a winding up petition against the Third Defendant based on the adjudicated amount. [19] On 30-3-2023, the Court of Appeal has granted a stay of execution of the adjudication decision pending the appeal against the petition for winding up, subject to the condition that the solicitor for the Third Defendant shall hold the adjudicated sum as stakeholder. [20] On 3-4-2023, the Third Defendant had complied with the order of the Court of Appeal. [21] The Plaintiff’s writ summons and statement of claim filed on 28-12- 2022 and on 17-3-2023 (that is about 2 weeks before the Court of Appeal decision on the stay application) the Plaintiff filed for injunction and seeks that the sum of RM1,843,394.42 from the adjudicated amount is the subject matter of cause and shall be preserved until the Plaintiff’s claim against the Defendants in this action is disposed of. [22] The dispute between the parties revolves around the alleged non-payment of rental or purchase price of Aluminium Formwork System purportedly rented or sold by the Plaintiff to the First Defendant for the Gem Residence Project. [23] The Plaintiff now vide the interlocutory application in Enclosure 11, seeks to injunct the Third Defendant from paying the sum of RM1,843,904.93 to the First defendant based on the Adjudication Proceedings. [24] Question before this Court: Whether the Third Defendant is allowed to pay RM1,843,394.42 to the Plaintiff. The Plaintiff’s contentions to support its application [25] The Plaintiff’s application is more in the nature of an interim preservation of property as envisaged under the law. [26] The cases cited by the learned counsel for the Plaintiff are − • Teknik Cekap Sdn Bhd v. Villa Genting Development Sdn Bhd [2000] 7 CLJ 385 • Chaplin v. Barnett [1912] 28 TLR 256; Nicholas v. Gan Realty Sdn Bhd [1970] 2 MLJ 89; and Tan Lay Soon v. Kam Mah Theatre Sdn Bhd (Malayan United Finance Bhd, Intervener [1990] 3 CLJ 183 (Rep) • S v. S, W v. Official Solicitor [1970] 3 All ER 107 • West Mercia Constabulary v. Wagener [1981] 3 All ER 378 and Chief Constable of Kent v. V. [1982] 2 All ER 36 • Polini v. Gray [1879] 12 Ch D 438 • Sebaya Sdn Bhd v. Syarikat Bekerjasama Ladang Kelapa Sawit Pegawai-Pegawai Negeri Pahang Berhad [1980] 2 MLJ 23 • Lian Keow Sdn Bhd v. Overseas Credit Finance Bhd [1982] 2 MLJ 162 • Tan Chong Keat Sdn. Bhd. v. Pintar Pintas Sdn Bhd [2005] 4 MLJ 201 • Karunamoorthy a/l Ramasamy (trading as Era Hemas Trading Registration) v. Hariharan a/l Subramaniam & Ors [2020] MLJU 2276 • American Cyanamid v Ethicon Ltd [1975] AC 396 [27] The Plaintiff prayed for this application to be allowed on the following reasons:

O. 29 r. 2 of the RoC 2012 provides for the preservation of property (and the power of the court to act under this rule comes from its inherent jurisdiction with the ultimate motive of advancing and promoting a fair trial). Either the plaintiff or the defendant is entitled to seek the assistance of this rule. If the sum of money is identifiable, then the process of preservation under this rule may be resorted to. Indeed, this rule may be invoked to preserve an identifiable sum of money that arises from any criminal activity. So long as the money can be preserved, this rule may be vigorously resorted to.

if the Defendant is not disputing there is money payable but only the amount payable, the Court can preserve the money being the subject matter of cause. This is because eventually, there would be a sum to be due to the Plaintiff that ultimately has to be paid by the Defendant and the purpose of Order 29 Rule 2 RoC 2012 is to secure the fruits of litigation, it is a pre-trial remedy.

in a case of an interlocutory application for the payment of money into court made before the trial of an action for the taking of the account, the court is now at liberty, when it has before it the parties to an account, to look at the account and the facts of the case, and, in the fair exercise of its judicial discretion, to order a sum of money to be paid into Court when it has been sufficiently ascertained that such a sum will be due on the taking of the account.

this application shall be allowed to secure the Plaintiff’s fruits of litigation, so that the amount which ultimately will be due to the Plaintiff is secured.

in the Statement of Defence of the First Defendant, the First Defendant is not disputing that there is an agreement; the Plaintiff had supplied materials for Aluminium Formwork System to the project site (Gem Residence Project); the First Defendant does not dispute that there is an amount payable to the Plaintiff but the First Defendant cannot agree on the amount payable as the First Defendant cannot ascertain the amount (in other words, the First Defendant indirectly admitted that there is an amount which is eventually payable by the First Defendant to the Plaintiff but only the amount payable is disputed by the parties.

the amount of RM1,843,394.42 from the adjudicated sum of RM2,083,034.47, currently under the possession of the Third Defendant is a subject matter of cause which shall be preserved, based on the three parties agreement, in which the Third Defendant is one of the parties to the agreement.

the exception to the rule is not applicable in this case i.e. if the whereabouts and the amount of the monies are not known but received by agents or by constructive trustees the court has in these circumstances the power to make an order of preservation of the estimated amount by ordering the same to be deposited in a joint account in the name of the solicitors.

there was nothing erroneous with the decision of the High Court in granting the order prayed for by the Plaintiff in this application. Order 29 r 2 RoC 2012 has provided for a pre-trial remedy available to a party before the full trial of an action, viz, the preservation of the subject-matter of the dispute.

an interlocutory injunction is a temporary and discretionary remedy. To consider whether to grant it or to refuse it the court is not concerned with the chances of success or failure of the appellants in proving their civil suit at the forthcoming trial, neither is the court’s function to evaluate the evidence and materials before it for that purpose. The court is simply concerned with what it has to do in the meantime in order to protect the right of the parties so that no irreparable injury would be caused to either of them. Further whilst the court is not concerned with such questions the court must however, be satisfied that there are serious questions to be gone into in that suit, lest an application for an injunction should be made on frivolous and vexatious grounds. [28] In the Plaintiff’s Affidavit-in-Support, the Plaintiff raised that the following are serious issues have to be tried:

whether the First Defendant has to pay RM1,843,394.42 to the Plaintiff for materials for Aluminium Formwork System supplied to the Gem Residence Project Site upon the First Defendant’s order;

whether the Third Defendant has to pay RM1,843,394.42 directly to the Plaintiff based on the three parties agreement by using the sum (if any) owed to the First Defendant. [29] As regards to balance of convenience, the learned counsel for the Plaintiff cited and submitted that in the case of Keet Gerald Francis Noel John [1995] 1 MLJ 193, the Court of Appeal held that – “(2) … having found that an issue has been disclosed that requires further investigation, he must consider where the justice of the case lies. In making his assessment, he must take into account all relevant matters, including the practical realities of the case before him. He must weigh the harm that the injunction would produce by its grant against the harm that would result from its refusal… Similarly, if he concludes that the defendant would suffer the greater injustice by the grant of an injunction, he would be entitled to refuse relief. Of course, cases may arise where the injustice to the plaintiff is so manifest that the judge would be entitled to dispense with the usual undertaking as to damages (see Cheng Hang Guan & Ors v Perumahan Farlim (Penang) Sdn Bhd & Ors [1988] 3 MLJ 90). Apart from such cases, the judge is entitled to take into account the plaintiff's ability to meet his undertaking in damages should the suit fail, and, in appropriate cases, may require the plaintiff to secure his undertaking, for example, by providing a bank guarantee; …”. [30] Another factor that this Court must take into consideration is that based on the CTOS Report of the First Defendant, it can be seen that – • for the financial year ended 31-8-2018, the First Defendant suffered losses of RM46,656.00. • for the financial year ended 31-8-2019, the First Defendant suffered losses of RM7,659.00. • for the financial year ended 31-8-2020, the First Defendant suffered losses of RM72,198.00. • for the financial year ended 31-8-2021, the First Defendant had increased its shares from 372,600.00 shares to 1,000,000.00 shares. Even though the profit of D1 is RM8,088,228.00, the profit after taxation is only RM647,063.00. 35. • the business of the First Defendant did not perform well. The First Defendant had either suffered losses or even when the First Defendant earns a profit, the profit is not sufficient to cover the Plaintiff’s claim of RM1,843,394.42. 38. Therefore, based on the above facts, the Plaintiff believes that had the adjudicated sum being released by the Third Defendant to the First Defendant without first wait for the disposal of Plaintiff’s main suit against the Defendants in this proceeding, the First Defendant will use the money. This is supported by the fact that the First Defendant proceeded to file a winding up petition even though there is an arbitration proceeding, which is within the First Defendant’s knowledge. [31] Next, the Plaintiff stated that if the adjudicated sum of RM2,083,034.47 is released to the First Defendant without preserving RM1,843,394.42, which is the subject matter of cause of this proceeding, the Plaintiff’s claim will be nugatory, as amount that should ultimately be paid by the First Defendant to Plaintiff will not be secured. Objections by the Defendants [32] The Defendants had objected to the Plaintiff’s application. The First and the Second Defendants’ Contentions [33] There are two preliminary points to note − Firstly, what the Plaintiff seeks to injunct is the execution of the said Adjudication Award that the First Defendant obtained against the Third Defendant. The Plaintiff is not a party to the Adjudication Proceeding. The Adjudication Award does not concern the Plaintiff and it is not part of the Plaintiff’s pleaded case against the Second and Third Defendants. Hence, there is no cause of action to support the injunctive relief sought for by the Plaintiff. In the case of Nishimatsu Construction Co Ltd v Kecom Sdn Bhd [2009] 2 MLJ 404 whereby the Court of Appeal held as follows: “[3] In our judgment the injunction applied for should have not been granted because there was no pleading against the appellant on which the injunction could issue. It is settled law that the right to obtain an interlocutory injunction is not a cause of action. There must be a cause of action pleaded in the usual fashion before an interlocutory injunction may be applied for and obtained. We consider it unnecessary to do more than refer to the following passage in the speech of Lord Diplock in the Siskina (Cargo Owners) v Distos Compania Naviera SA [1979] AC 210 at p 256: … a right to obtain an interlocutory injunction is not a cause of action. It cannot stand on its own. It is dependent upon there being a pre-existing cause of action against the defendant arising out of an invasion, actual or threatened by him, of a legal or equitable right of the plaintiff for the enforcement of which the defendant is amenable to the jurisdiction of the court. The right to obtain an interlocutory injunction is merely ancillary and incidental to the pre-existing cause of action. It is granted to preserve the status quo pending the ascertainment by the court of the rights of the parties and the grant to the plaintiff of the relief to which his cause of action entitles him, which may or may not include a final injunction.”. Secondly, Enclosure 11 seeks to injunct the Third Defendant from complying with the said Adjudication Award up to the amount of RM1,843,394.42. The prayer is in substance a Mareva Injunction in which case, the Plaintiff clearly does not pass the threshold for the granting of the same. [34] With these 2 points, the learned counsel for the First and Second Defendants submits that Enclosure 11 to be dismissed. [35] NO NEXUS: The only argument advanced by the Plaintiff in justifying the nexus is that both the dispute in present suit and the dispute in Adjudication Proceedings between the First Defendant and the Third Defendant arose from the same project, i.e. the Gem Residence Project. [36] The learned counsel for the First and Second Defendants submits that the above argument does not hold any water for the following reasons:

it stands uncontroverted that the Plaintiff is not a party to the Adjudication Proceeding.

the fact that both disputes arose out of the same construction project does not give rise to the nexus between the present dispute and the Adjudication Proceedings.

the unescapable fact is that both proceedings are based on different factual matrix. [37] The Adjudication Proceedings or Adjudication Award: The adjudicator has granted in favour of the First Defendant. The Plaintiff is not privy to it. The Plaintiff is a mere bystander or a stranger. An injunction sought in this regard is doomed to fail. See Low Hop Bing J (later CJA)’s judgment in Dato’ Jaffar bin Mohd Ali v Jastera Berhad (No. Sykt 78053-H) [1999] MLJU 575. [38] In the case of Sari Artists, Film Productions Sdn Bhd v Malaysia Film Industries Sdn Bhd [1974] 1 MLJ 123 where Hashim Yeop A Sani J (later FCJ) laid down – “Finally, an injunction is an order of the court to the party addressed to refrain from doing a particular act. It is imperative therefore for the plaintiff in order to justify the continuance of the injunction to show some connection between the defendant and the particular act or acts in respect of which the injunction was sought. It has come to light now that on the evidence that is available before the court, connection has not been sufficiently established between the defendant and the advertisements contained in exhibits ‘YM-1’ and ‘YM-2’ of the affidavit of Yusoff bin Majid.”. [39] The learned counsel for the First and Second Defendants submits that there is no basis that justifies this Court’s intervention to grant an injunction to stop the execution of the Adjudication Award. Quoting an excerpt by Low Hop Bing J in Dato’ Jaffar bin Mohd Ali (supra): “Our Courts do not function as busy bodies and it has never been the business of our Courts to give an order in favour of or against any person or persons who are non-parties or strangers to the cases before our Courts.”. [40] Next, the learned counsel for the First and Second Defendants submits that what the Plaintiff is seeking is too wide in nature. Such an injunction, if granted, would be oppressive of the First and Third Defendants. The reason is, without having its case proven against the Defendants, the Plaintiff is now applying for an interlocutory injunction which has the effect in injuncting the execution of an Adjudication Award which has been awarded to the First Defendant. The First Defendant is prohibited from enjoying its fruits of litigation. This is oppressive in nature and it is submitted that this Court should be wary in granting an injunction in this nature. (See Ace Capital Growth Sdn Bhd v. Kua Kee Koon & Ors [2021] MLJU 2118 at paragraph 21; See Motor Sports International Ltd (Servants Or Agents At Federal Territory Of Labuan) & Ors v. Delcont (M) Sdn Bhd [1996] 2 MLJ 605 at Headnote 4). [41] On the Mareva Injunction, the learned counsel for the First and Second Defendants submits that vide prayer 1, the Plaintiff is seeking to injunct the Third Defendant from releasing the sum of RM1.8 million to the First Defendant, in other words, from dealing with its assets up to RM1.8 million. The Plaintiff is seeking to freeze this amount in the sum of RM1.8 million with the intention that such amount can be used to satisfy a judgment granted in its favour. The relief sought for is aimed to aid the execution of judgment after trial. [42] In this respect, the learned counsel for the First and Second Defendants submits that that the prayer sought for by the Plaintiff clearly does not pass the threshold or the test of the same. [43] The law on a Mareva injunction has been profoundly laid down in the case of S & F International Limited v Trans-Con Engineering Sdn Bhd [1985] 1 MLJ 62, at 64; and Creative Furnishing Sdn Bhd v Wong Koi [1989] 2 MLJ 153, at 154 – 155. The test is three-fold: [44] An applicant for a Mareva injunction must demonstrate that –

it has ‘a good arguable case’ against the defendants;

the defendants have assets in the Malaysia jurisdiction; and

there is ‘a real risk of dissipation or secretion of assets so as to render a judgment which the applicant may obtain nugatory’. [45] From the affidavit in support of Enclosure 11, there is no averment of any sort which can justify the above 3-fold test. This is not proven by the Plaintiff. With that, Enclosure 11 ought to be dismissed in limine. [46] Here, the Plaintiff’s complaint is that the Third Defendant will be unable to satisfy any judgment sum should the Plaintiff succeed in proving its claim against the Third Defendant. The reasons as stipulated by the Plaintiff are that the Third Defendant has been allegedly making losses over the past few financial years. [47] The learned counsel for the First and Second Defendants submit that this is not a ground to justify the injunctive relief sought for by the Plaintiff. In other words, the Plaintiff is relying on Enclosure 11 to seek to become a secured creditor. This is unsustainable in law. (See Itramas Technology Sdn Bhd v. Maju Holdings Sdn Bhd & Ors [2020] MLJU 1663 whereby the High Court held as follows: “[90] In the circumstances, I find that there is no solid evidence to establish a real risk that the 2nd Defendant’s assets, the RM2 million FD, would be dissipated. A Mareva Injunction is not intended to put the Plaintiff in the position of a secured creditor especially when a good arguable case has not been made out.”). [48] In the case of KT Team Sdn Bhd v. SCEC Group Sdn Bhd [2022] MLJU 1812 whereby the High Court held that − “[42] There is therefore no cogent evidence or even reasonable suspicion that the First Defendant has unusually dissipated its assets particularly in moving them out from Malaysia to avoid paying the Plaintiff. It must not be mistaken that a Mareva Injunction is never a tool to make the Plaintiff a secured creditor of its unpaid debts. Thus, in Ikatan Innovasi Sdn Bhd v Kacc Construction Sdn Bhd [2008] 3 CLJ 48, Abdul Aziz Rahim J (later JCA) succinctly held as follows: “[44] It is true that the plaintiff has shown that the defendant is not exactly a good paymaster. There is evidence in the affidavits, and the defendant did not deny this, that the defendant has been slowed in making payment to the plaintiff for works already done and billed to the defendant. This fact however is insufficient to grant the plaintiff the Mareva Injunction on the reasoning that if the plaintiff is successful in the arbitration proceedings the plaintiff would also be at difficulty to realize the judgment in the same manner as it is difficult to get payment from the defendant under the contract. If that is the reasoning to be followed then I think the granting of the Mareva Injunction would merely put the plaintiff in the position of a secured creditor, something which is not supposed to be done in Mareva Injunction.”. [49] The relief sought for vide Enclosure 11by the Plaintiff is purely monetary in nature whereby damages are an adequate remedy. [50] Damages Are Adequate Remedy: It is indisputable that what the Plaintiff is seeking to injunct is monetary in nature. [51] There is no question about damages is an inadequate remedy. In this regard, there is plethora of authorities deciding that an injunction application ought to be rejected. (See Associated Tractors Sdn Bhd v. Chan Boon Heng & Anor [1990] 2 MLJ 408, at page 409A – B; Perak Hydro Renewable Energy Corp Sdn Bhd & Anor v. Wak Ngah Pili a/p Bah Adim (suing on behalf of herself and 22 individuals from the Senai tribe, as listed in ‘Appendix A’) [2022] 6 MLJ 698 at paragraph 60 – 67; Kilang Kosfarm Sdn Bhd v Kosma Nusantara Bhd [2002] 5 MLJ 662, at page 673C). [52] Balance of Conveniece: The learned counsel for the First and Second Defendants submit that the balance of convenience clearly tilts in favour of refusing Enclosure 11 for the following reasons:

if the injunction is allowed, the Plaintiff’s position will be improved at the expense of the Defendants. Not to forget that what the Plaintiff is seeking to injunct is the execution of a valid Adjudication Award, to which it is not privy. The First Defendant will be prejudiced irreparably where it is deprived of enjoy the fruits of its litigation.

(ii) from the Third Defendant’s perspective, it will be prejudiced because it will be injuncted from dealing with its assets up to RM 1.8 million.

(iii) if the injunction is refused, the Plaintiff will not be prejudiced in any manner. The Plaintiff still bears the burden to prove its case in the full trial to be entitled to its claim. An injunction cannot be granted at the behest of the Plaintiff, nor it can be granted just because the Plaintiff fears that any judgment granted in its favour would not be satisfied. The Third Defendant’s contention [53] In opposing and objecting to the Plaintiff’s application, the learned counsel for the Third Defendants submits as follows:

No Contractual Obligation; No Privity of Contract: This application turns on the core issue of whether there is an obligation for the Third Defendant to pay the Plaintiff under the Three Parties Agreement. In the Three Parties Agreement: “At all material times, CCCC may but is not obliged to pay such amounts directly to Kumkang and deduct from Golden Star’s interim payment certificate including the administrative charge due.”. The obligations of Third Defendant, the First Defendant and the Plaintiff are made clear in the Three Parties Agreement. It is trite law that where on the facts there is nothing which gives the plaintiff any right at all, the injunction sought should be refused. (See: Amalgamated Steel Mills Bhd v. Ingeback (Malaysia) Sdn Bhd [1990] 2 MLJ 3749 and Government of Pakistan v. Seng Peng Sawmills Sdn Bhd & Ors [1979] 1 MLJ 219). In Government of Pakistan v Seng Peng Sawmills Sdn Bhd & Ors (supra), in an appeal against the dismissal of an injunction to restrain the first respondent from removing various types of railway sleepers to enable the appellant to ship them to Pakistan, the Federal Court held that there was nothing in the acts of the first respondent, singly or considered together, which would make it owe a duty to the appellant or give the appellant a right against the first respondent ; and that the trial judge was correct in refusing the injunction as the appellant had now shown that it had a legal right against the first respondent.

The Plaintiff cannot seek to use the Adjudication Decision as a basis for an injunction when there is no privity of contract between the Plaintiff and the Adjudication Decision in question. In other words, there is no basis for the Plaintiff to make this Application. There is no contractual obligation, or legal right for the Plaintiff to file this Application and Suit 528 against the Third Defendant.

Disputed Adjudication Decision and Adjudication Sum with Stakeholder: With regard to the Adjudication Decision, it is the subject of a Kuala Lumpur High Court Companies Winding-up Petition No. WA-28NCC-651-08/2022 [“Petition”]. It is being disputed by the Third Defendant in an ongoing arbitration between Third Defendant and the First Defendant [“Arbitration”]. The adjudicated sum of RM2,200,474.80 has been deposited in the Third Defendant’s solicitors’ client’s account to hold as stakeholder following the orders of the Court of Appeal [“Stakeholder Sum”]. [54] The learned counsel for the Third Defendant submits that if the Third Defendant is required to deposit another sum of RM1,843,394.42 for which the Third Defendant is not obliged to pay to either Plaintiff or the Second Defendant, the Third Defendant would be seriously prejudiced as it is a running company with many ongoing construction projects and a double deposit for claims that are disputed and/or unproven will impinge upon the Third Defendant’s cashflow. [55] To allow the Plaintiff’s Application when the Stakeholder Sum is already in place would be a double-injunction and prejudicial to the Third Defendant. [56] The learned counsel for the Third Defendant raised the point that the Plaintiff’s Application is Premature because the Plaintiff is seeking to secure its monies from a third party before even obtaining a judgment. [57] The main suit filed by the Plaintiff against the Defendants has not been proven. In any event, the Third Defendant is not obligated to pay any sums on behalf of the First Defendant to the Plaintiff. In the circumstances, the Third Defendant prays for this Application to be dismissed with costs as this Application is a non-starter The Law [58] The provision in Order 29 of the RoC 2012 [P.U(A) 205/2012] provides that the Court may grant an injunction made by a party to a cause or matter before the trial of the cause or matter. [59] In Khoo Soo Teong v. Khoo Siew Ghim [1991] 3 MLJ 158 at 159, the Supreme Court, Hashim Yeop A Sani CJ stated that the jurisdiction to grant an injunction is established by the Specific Relief Act 1950, and that the procedure to be followed is governed by Order 29 of the Rules of Court. His Lordship concluded: “Thus, under our law an application for an injunction may be made by any party to a cause or matter at any stage of the proceeding, whether or not a claim for the injunction is included in the party’s writ and statement of claim or counterclaim or third-party notice.”. [60] In Alor Janggus Soon Seng Trading Sdn Bhd v. Sey Hoe Sdn Bhd [1995] 1 MLJ 214, the Supreme Court fully adopt the test in the case of American Cyanamid Co. v. Ethicon Ltd [1975] 1 All ER 504 where there are 3 main factors that the Court must take into consideration before allowing an interlocutory injunction, namely –

Serious questions to be tried;

(ii) Balance of convenience; and

(iii) Adequacy of damages as a remedy. [61] As it was held in Alor Janggus case, Jemuri Serjan CJB observed that – “At an interlocutory proceeding for an injunction, the court is not called upon nor it is desirable for the court to decide finally on the rights of the parties but the court must be satisfied that there is a serious issue to be tried.”. [62] This Court is also in the view that based on the factual matrix of the Plaintiff’s application, the source of “getting the sum of RM RM1,843,394.42” is from the adjudicated sum/the adjudicator’s decision. The Plaintiff seeks this Court to preserve this sum. [63] The Plaintiff stated that if the adjudicated sum of RM2,083,034.47 is released to the First Defendant without preserving RM1,843,394.42, which is the subject matter of cause of this proceeding, the Plaintiff’s claim will be nugatory, as amount that should ultimately be paid by the First Defendant to Plaintiff will not be secured. [64] As to the 3 main factors that the Court must take into consideration before allowing an interlocutory injunction, namely, Serious questions to be tried; Balance of convenience; and Adequacy of damages as a remedy, this Court finds that the trial for main suit against the Defendants has been fixed on 11 and 12 March 2024. The full trial is the best platform to resolve the disputes between the parties. The serious questions need to be tried and the parties must prove their claims and defences. [65] The allegations by the Plaintiff that its claim will be nugatory and the payment to the Plaintiff is not been secured are just a bare speculation. The Plaintiff only can get its fruits of litigation after the full trial ends. [66] As far as the reliefs seek by the Plaintiff in its statement of claim are concerned, the Plaintiff has pleaded that –

First Defendant and Second Defendant to be jointly and severally liable to pay the outstanding amount of RM1,843,394.42 to the Plaintiff; or

alternatively, if the First Defendant or Second Defendant failed to make payment, if there is outstanding amount owed by the Third Defendant to the First Defendant, Third Defendant is allowed to pay RM1,843,394.42 to the Plaintiff;

First Defendant and/or Third Defendant to be jointly and severally liable to pay the outstanding amount of RM448,904.93 to the Plaintiff;

interest;

Second Defendant will be subject to committal proceedings if he failed to comply with this judgment;

Costs to be paid on solicitor-client basis; and

any other relief deemed appropriate and reasonable by this Court. [67] It’s clear that the Plaintiff has pleaded that according to the Plaintiff’s knowledge, the First Defendant is currently in the process of claiming payment from the Third Defendant in which the Plaintiff believes that the Plaintiff could claim the payment from the Third Defendant directly. According to the Three Parties Agreement, Plaintiff can claim the amount of RM1,843,394.42 owed by the First Defendant to the Plaintiff for the Gem Residence Project from the Third Defendant. [68] However, on balance of probability, this Court has decided that the amount of RM1,843,394.42 owed by the First Defendant to the Plaintiff for the Gem Residence Project from the Third Defendant only can be realized after the full trial. [69] On factor balance of convenience, that in order to carry the lower risk of injustice, the injunction must not be granted to the Plaintiff. The Defendants will suffer more consequential harm if the injunction is granted. The damages is adequate to compensate the Plaintiff if the injunction is not granted. [70] This Court has finds that in dismissing an injunction, the following matters has been considered:

Plaintiff must show locus. At this interlocutory stage, the court is not required to make a final determination on the merits of the claim or the rights of the parties.

The court must then consider where the justice of the case lies. In determining where the justice of the case lies, the court must consider – • the harm that the injunction would produce by its grant; and • the harm that would result from its refusal, and conclude as to which party would suffer greater injustice. [71] In determining this, the Court must consider whether damages would constitute an adequate remedy in respect of the plaintiff’s claim. If damages are adequate, the Court should not grant an injunction order. Conclusion [72] In conclusion, therefore, based on the aforesaid reasons, and after careful scrutiny and judicious consideration of all the evidence before this Court, the Plaintiff’s Application as in Enclosure 11 is dismissed with costs. Dated: 30 June 2023. RoziBainon ( ROZI BINTI BAINON ) Judicial Commissioner High Court NCvC12 Shah Alam The Counsels: For the Plaintiff: Lim Shu Wei Tetuan Ng Kee Way & Co., Puchong, Selangor For the First & Second Defendants: Jeff Ng Qin Liang Tetuan Damien Chan, Hannibal & Ng, Kuala Lumpur For the Third Defendant: Tasha Lim Yi Chien Tetuan Gan Partnership, Kuala Lumpur