Meccilect Sdn Bhd v Honeywell Engineering Sdn Bhd (WA-12ANCvC-128-10/2025)

This is an appeal by the appellant, Meccilect Sdn Bhd, against the decision of the learned Sessions Court Judge at Kuala Lumpur dated 26 September 2025. By that decision, the learned Judge allowed the respondent's application to strike out the appellant's writ of summons and statement of claim pursuant to Order 18 rule 19(1)(a), (b) and/or (d) of the Rules of Court 2012. The application was advanced on the footing that the pleading disclosed no reasonable cause of action, was frivolous and vexatious, and constituted an abuse of the process of the court. The claim was struck out in its entirety with costs of RM3,000.

The appeal raises questions of some importance concerning the doctrine of privity of contract, the proper approach to the construction of pleadings in striking out applications, and the circumstances in which a party may maintain a claim against another notwithstanding the absence of an express contractual nexus. The central issue is whether the appellant's claim is so plainly and obviously unsustainable that it ought to have been terminated at the threshold, or whether it discloses triable issues which merit ventilation at a full trial.

For the reasons which follow, I am satisfied that the appeal ought to be allowed. In my judgment, the appellant's claim cannot be characterised as plainly and obviously unsustainable. The pleadings disclose material disputes of fact and arguable questions of law which cannot properly be resolved on affidavit evidence alone. The learned Sessions Court Judge therefore erred in striking out the action at this interlocutory stage. Background Facts

The dispute arises out of a construction project known as the Dexcom Malaysia Factory 3 Project at Batu Kawan, Penang ("the Project"). The Project involved the construction of a manufacturing facility. The present controversy concerns the supply of scaffolding materials and related services in connection with that Project. In order to appreciate the nature of the appellant's claim and the respondent's objection to it, it is necessary to set out the contractual structure with some care. The Contractual Framework

The main contractor for the Project was Exyte Malaysia Sdn Bhd ("Exyte"). Exyte was engaged in respect of, inter alia, the installation of building management systems within the facility. On 6 April 2022, Exyte entered into a sub-contract agreement with the respondent, Honeywell Engineering Sdn Bhd. Under that sub-contract, the respondent undertook specified works relating to the supply and installation of building management systems. The scope of the respondent's works included the provision of scaffolding materials and services necessary for the performance of its obligations.

The respondent did not directly appoint the appellant under a formal written contract. Instead, it engaged NN Systems Sdn Bhd ("NNS") as a further sub-contractor. By way of Purchase Order No. 4418879121 dated 20 December 2022, the respondent appointed NNS to carry out certain works, which included the supply of scaffolding.

NNS, in turn, engaged the appellant, Meccilect Sdn Bhd, as its scaffolding supplier. The appellant's immediate contractual relationship was therefore with NNS. The precise nature and terms governing that engagement, and the extent to which the respondent may have assumed direct obligations towards the appellant, are matters of dispute. The appellant contends that, notwithstanding the absence of a formal written contract between itself and the respondent, the scaffolding services were in fact requested directly by the respondent through client requisition forms signed by the respondent's personnel. It is this alleged course of dealing which forms the foundation of the appellant's claim.

Thus, what emerges is a multi-tiered contractual arrangement typical of large construction projects. Exyte as main contractor; the respondent as sub-contractor, NNS as sub-sub-contractor; and the appellant as scaffolding supplies. The legal question is whether, in the context of that chain, the appellant may nonetheless maintain a claim directly against the respondent. That question, in my view, cannot be resolved summarily without a fuller examination of the factual matrix and the parties' dealings. The Course of Dealing Between the Parties

Between approximately April 2022 and December 2022, the contractual structure described above operated without apparent difficulty. The appellant supplied scaffolding materials and related services for the Project. Invoices were rendered by the appellant to NNS, and NNS duly effected payment. At that stage, the commercial relationship reflected the formal contractual chain: the appellant looked to NNS for payment, and NNS discharged those obligations.

The position altered in or about January 2023, when NNS began to default in settling the appellant's invoices. Faced with non-payment, the appellant sought recourse beyond NNS. On 30 January 2023, the appellant sent a WhatsApp message to the respondent in the following terms: "Hi boss, we haven't received payment from NN SYSTEM". That communication is relied upon by the appellant as evidencing a direct engagement with the respondent in relation to payment difficulties.

It is common ground that NNS was at that time experiencing financial difficulties. The respondent's position is that it merely sought to assist in resolving the impasse. The appellant's case, however, is that in the course of those discussions certain representations were made by personnel of the respondent to the effect that the respondent would assume responsibility for payment of the appellant's outstanding invoices. The appellant further contends that discussions took place regarding the formal registration of the appellant as a direct vendor of the respondent.

In particular, the appellant relies upon alleged notations by Dato' Mohan Vathumalai, who was the respondent's operations director at the material time, indicating that no further purchase orders would be issued for services rendered after October 2022 and that the respondent would make direct payment to the appellant. The appellant also asserts that Indiran Muniandy, an employee of the respondent, represented that the respondent would cease dealing with NNS and would itself assume responsibility for payment for the scaffolding services rendered. The respondent disputes any such legally binding assumption of liability occurred. Whether these communications amount to a collateral contract, a novation, an agency arrangement, or are no more than informal assurances is plainly a matter requiring careful evidential scrutiny.

From April 2023 onwards, the appellant began issuing invoices directly to the respondent rather than to NNS. Three invoices were issued to the respondent: Invoice No. MPI 2304/20 dated 30 April 2023 in the sum of RM98,174.95; Invoice No. MPI 2305/18 dated 31 May 2023 in the sum of RM101,551.30; and Invoice No. MPI 2306/32 dated 30 June 2023 in the sum of RM78,955.10, totalling RM278,681.35. In addition, the appellant had earlier issued invoices to NNS for the period January to March 2023 amounting to RM388,178.25. The aggregate sum claimed in these proceedings is therefore RM666,859.60, comprising both the sums invoiced to NNS and those invoiced directly to the respondent. The Termination of NNS's Contract and Subsequent Events

In June 2023, NNS terminated its contractual relationship with the respondent. Notwithstanding that termination, the sums allegedly due to the appellant for the period January to March 2023 remained unpaid. On 28 June 2024, the appellant issued a letter of demand to NNS seeking payment of RM388,178.25. The respondent places reliance on this letter as an acknowledgment that NNS was the appellant's contracting counterparty. The appellant, however, maintains that the letter was sent as a matter of prudence, in an effort to pursue recovery against all parties who might be liable, and does not amount to an unequivocal election or admission precluding a claim against the respondent.

On 16 July 2024, NNS responded to the letter of demand. In its reply, NNS described itself as a "pass-through" contractor or agent for the respondent. It asserted that its role had been confined to facilitating the supply of scaffolding and that ultimate responsibility for payment rested with the respondent. It was following this response that the appellant adopted the position that NNS had acted as the respondent's agent and that the respondent was the proper party against whom the claim should be directed.

It is also material that, following the termination of NNS's engagement, the respondent entered into a direct contractual relationship with the appellant by way of Purchase Order No. 4420166168 dated 14 January 2024. The appellant relies upon this subsequent engagement as indicative of the respondent's recognition of it as a scaffolding supplier and as supportive of the inference that the respondent may have assumed, or acknowledged, responsibility in respect of earlier services. Whether that inference is ultimately sustainable is a matter for trial, but its existence underscores that the issues between the parties cannot be dismissed as fanciful or unarguable at this interlocutory stage. The Present Action

On 29 April 2025, the appellant commenced the present action against the respondent by filing a writ of summons and statement of claim. The essence of the pleaded case is that the appellant supplied scaffolding materials and ancillary services at the request of the respondent, and that the respondent has failed and/or neglected to make payment for those services. The appellant claims the aggregate sum of RM666,859.60, together with interest and costs.

The respondent responded by applying to strike out the writ and statement of claim pursuant to Order 18 rule 19(1)(a), (b) and/or (d) of the Rules of Court 2012. It was contended that the pleading disclosed no reasonable cause of action, was scandalous, frivolous and vexatious, and constituted an abuse of the court's process. The learned Sessions Court Judge, having considered the affidavits and submissions, allowed the application and struck out the appellant's claim in its entirety. It is against that decision that the present appeal is brought. The Appellant's Contention

The appellant, in support of its appeal, advances several contentions which may be summarised as follows. First, it is said that the learned Sessions Court Judge misdirected herself as to the applicable legal test. The appellant submits that the learned Judge approached the matter on a "balance of probabilities", as reflected in the use of the phrase atas imbangan kebarangkalian in the grounds of decision. That, it is argued, is the standard applicable at trial after evidence has been tested, and not the stringent threshold applicable to a striking out application. The correct inquiry, the appellant contends, is whether the claim is plainly and obviously unsustainable, such that it cannot possibly succeed.

Secondly, the appellant maintains that its statement of claim does, on its face, disclose a reasonable cause of action. In paragraph 3 of the pleading it is expressly averred that the scaffolding materials and ancillary services were provided at the request of the respondent. The appellant relies in particular on client requisition forms said to have been signed by the respondent's employees, servants and/or authorised agents. These documents, it is contended, evidenced direct request from the respondent for the supply of scaffolding services, thereby giving rise to an arguable basis for contractual or quasi-contractual liability.

Thirdly, the appellant invokes section 71 of the Contracts Act 1950 as an alternative basis for its claim. It is submitted that even in the absence of a concluded contract between the appellant and the respondent, the latter is liable on a quantum meruit for the value of the benefit received. Reliance is placed on the decision of the High Court in Tanjung Teras Sdn Bhd v Kerajaan Malaysia [2015] MLJU 2161, where it was observed that liability under section 71 does not depend upon an existing contract but rests upon restitutionary principles designed to prevent unjust enrichment. The appellant contends that the scaffolding services were rendered for the respondent's benefit, and that it would be inequitable for the respondent to retain that benefit without payment.

Fourthly, the appellant submits that there are plainly triable issues which cannot properly be resolved summarily. Among these are whether the respondent assumed liability for payment of services rendered from November 2022 to May 2023, and whether the representations were made by the respondent's personnel to the effect that it would take over responsibility for payment. These matters, the appellant argues, involve disputed questions of fact and inference which are ill-suited to determination on affidavit evidence alone.

Fifthly, the appellant relies upon what it characterises as the respondent's own conduct. Reference is made to the alleged representations by its personnel, the discussions regarding vendor registration, the assistance extended to the appellant when NNS defaulted, and the subsequent issuance of a direct purchase order to the appellant following NNS's termination. Taken cumulatively, the appellant contends that these matters are capable of supporting an inference that the respondent assumed, or at least represented that it would assume, responsibility for payment. Whether that inference is ultimately justified is a question for trial, but it cannot, in the appellant's submission, be dismissed as fanciful at this preliminary stage. The Respondent's Contentions

The respondent, for its part, submits that the learned Sessions Court Judge was correct to strike out the action. It is contended that the statement of claim is fundamentally defective and fails to disclose any reasonable cause of action against the respondent. The respondent advances the following arguments in support of its position.

First, the respondent emphasises the absence of any pleaded or proven contract between itself and the appellant. The statement of claim, it is said, does not identify any document constituting a contract between the parties, nor does it set out the essential elements of a binding agreement, namely offer, acceptance and consideration. On the contrary, the evidence demonstrates two distinct contractual relationships: one between the respondent and NNS, and another between NNS and the appellant. In support of this proposition, reliance is placed on the decision of the Court of Appeal in University of Malaya v FBSM Ctech Sdn Bhd [2018] 5 MLJ 397, where a sub-contractor's claim against the employer was struck out in the absence of any contractual nexus between them.

Secondly, the respondent contends that section 71 of the Contracts Act 1950 is of no assistance to the appellant. It is submitted that mere fact that a party may ultimately derive some benefit from work performed by another does not, without more, attract liability under that provision. In this regard, the respondent relies upon the decision in High Point Furnishing Sdn Bhd v President Hotel Sdn Bhd & Anor [2024] MLJU 3030, where it was held that the mere receipt of a benefit is insufficient to ground a claim under section 71. The respondent further points to the appellant's letter of demand dated 28 June 2024, in which the appellant asserted that NNS had benefited and gained from the scaffolding works. That assertion, it is argued, is inconsistent with the present attempt to fix liability upon the respondent.

Thirdly, the respondent submits that the appellant's case has shifted in a manner which is procedurally impermissible. The "client requisition forms" now relied upon as evidencing direct requests from the respondent were not pleaded in the statement of claim but were introduced for the first time in the reply to defence. It is contended that a plaintiff is not entitled to repair deficiencies in its primary pleading by advancing new material facts in a reply. Reliance is placed on the decision in Accolade Land Sdn Bhd v Mass Rapid Transit Corporation Sdn Bhd & Ors [2017] MLJU 1868, where it is observed that matters which ought properly to have been pleaded in the statement of claim cannot be introduced at a later stage by way of reply.

Fourthly, the respondent characterises the claim as frivolous, vexatious and an abuse of the court's process. It is said that the appellant initially treated NNS as its contracting counterparty, it invoiced NNS, demanded payment from NNS, and only altered its position after receiving NNS's letter describing itself as a "pass-through" contractor. The respondent submits that the appellant cannot approbate and reprobate, having acknowledged NNS as the party liable and as the beneficiary of the works, it cannot now seek to impose liability upon the respondent on a fundamentally different footing. On that basis, it is contended that the learned Sessions Court Judge was correct to terminate the proceedings summarily. Court's Analysis and Findings The Applicable Legal Principles

Before addressing the specific issues arising in this appeal, it is necessary to set out the applicable legal principles governing striking out applications under Order 18 rule 19 of the Rules of Court 2012. Order 18 rule 19 provides as follows: 19 (1) The court may at any stage of the proceedings order to be struck out or amended any pleading or the endorsement, of any writ in the action, or anything in any pleading or in the endorsement, 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.

The principles governing striking out applications is well settled. The Federal Court in Tan Wei Hong & Ors v Malaysia Airlines Berhad [2019] 1 MLJ 59 undertook a comprehensive review of the authorities and reaffirmed the principles articulated earlier in Bandar Builder Sdn Bhd & Ors v United Malayan Banking Corporation Bhd [1993] 3 MLJ 36. The court summarised the applicable principles as follows: "[17] The tests for striking out application under O 18 r 19 of the ROC, as adopted by the Supreme Court in Bandar Builder (supra) are, inter alia, as follows:

(a) it is only in plain and obvious cases that recourse should be had to the summary process under the rule;

(b) this summary procedure can only be adopted when it can be clearly seen that a claim or answer is on the face of it obviously unsustainable;

(c) it cannot be exercised by a minute examination of the documents and facts of the case in order to see whether the party has a cause of action or a defence;

(d) if there is a point of law which requires serious discussion, an objection should be taken on the pleadings and the point set down for argument under O 33 r 3 of the ROC; and

(e) the court must be satisfied that there is no reasonable cause of action or that the claims are frivolous or vexatious or that the defences raised are not arguable."

The Federal Court further observed that the basic test is that the claim, on its face, must be obviously unsustainable. The emphasis is not only on the word unsustainable but also on the word obviously. As the Federal Court explained: [19] The basic test for striking out as laid down by the Supreme Court in Bandar Builder (supra) is that the claim on the face of it must be 'obviously unsustainable'. The stress is not only on the word 'unsustainable' but also on the word 'obviously', ie, the degree of unsustainability must appear on the face of the statement of claim without having to go into a lengthy and mature consideration in detail. If one has to go into a lengthy detailed argument and mature consideration of the issues of law and/or fact, then the matter is not appropriate to be struck out summarily. It must be determined at the trial." [Emphasis is mine]

A similar approach was articulated by the Court of Appeal in Sivarasa Rasiah & Ors v Che Hamzah Che Ismail & Ors [2012] 1 MLJ 473, where it was observed that a striking out order ought not to be made summarily where issues of law require lengthy argument and mature consideration, in the following passage: "A striking out order should not be made summarily by the court if there is issue of law that requires lengthy argument and mature consideration. It should also not be made if there is issue of fact that is capable of resolution only after taking viva voce evidence during trial."

It follows from these authorities that the court must approach a striking out application with circumspection. The function of the court at this stage is not to determine whether the plaintiff will ultimately succeed, nor to weigh the relative merits of the parties' evidence. The question is a narrower one. Assuming the pleaded facts to be true, is the claim so plainly and obviously untenable that it cannot possibly succeed? Only if that stringent test is satisfied should the draconian step of striking out be taken.

It is against this legal backdrop that the present appeal must be assessed. The inquiry is not whether the appellant has established its case on a balance of probabilities, but whether its pleaded case is, on its face, so devoid of legal foundation as to warrant summary termination. The Test Applied by the Sessions Court Judge

The appellant's first ground of appeal concerns the test applied by the learned Sessions Court Judge. The appellant contends that the learned Judge applied the wrong test by using the phrase atas imbangan kebarangkalian (on the balance of probabilities) in the grounds of decision. The respondent submits that the learned Judge applied the correct test, and that the phrase used should be understood as referring to the legal standard rather than the legal test for striking out. To be precise, the exact words used by the learned Session Court Judge when delivering the decision are as follows: "Keputusan untuk notis permohonan (Lampiran 11): Setelah Mahkamah meneliti kertas-kertas kausa berkaitan dan hujahan bertulis yang difailkan oleh pihak-pihak, Mahkamah atas imbangan kebarangkalian membenarkan notis permohonan (Lampiran 11) dengan kos RM3000 dibayar oleh Plaintif kepada Defendan. Alasan ringkas:

Plaintif dan Defendan tidak mempunyai hubungan kontrak atau undang-undang

Tuntutan Plaintif tidak menunjukkan suatu kausa tindakan yang munasabah terhadap Defendan dan bersifat remeh dan/atau menyusahkan." [Emphasis is mine]

In my judgment, the appellant's complaint is not without substance. The expression on the balance of probabilities denotes the standard of proof at trial, after the court has heard and weighed the evidence. A striking out application under Order 18 rule 19 proceeds on an entirely different footing. The court is not concerned with determining whether the plaintiff has proved its case to the requisite standard. Rather, the inquiry is whether the pleaded claim is so plainly and obviously unsustainable that it cannot succeed as a matter of law. The distinction is fundamental. To frame the analysis in terms of a balance of probabilities risks conflating the evaluative function of a trial court with the threshold scrutiny required at an interlocutory stage.

I readily accept that the learned Sessions Court Judge may have intended to apply the plain and obvious test. However, the language employed in the grounds of decision suggests, at the very least, a blurring of the conceptual boundaries between the standard of proof at trial and the test for summary striking out. In so far as the reasoning appears to have turned upon an assessment of whether the appellant had established its case on a balance of probabilities, that constitutes a misdirection in law.

In any event, even absent such misdirection, this Court's task is not confined to reviewing the exercise of discretion. By virtue of section 29 of the Courts of Judicature Act 1964, an appeal of this nature proceeds by way of rehearing. As observed by Lim Chong Fong J in Wong Cheng Yong & Anor v Confast Hardware & Fasteners Sdn Bhd [2018] MLJU 1230: "[23] Moving on to the substantive contentions, this appeal is basically a rehearing as provided in s 29 of the Courts of Judicature Act 1964. In Ruslan Baharin Industries Sdn Bhd & Ors v Kerajaan Malaysia [2009] 4 MLRA 479; [2009] 5 MLJ 63; [2010] 7 CLJ 713, Suriyadi Halim Omar JCA (later FCJ) held as follows: '[21] In United Malayan Banking Corporation Berhad v Pembinaan KSY Sdn Bhd & Ors [1993] 1 MLRA 379; [1993] 3 MLJ 45; [1993] 3 CLJ 612; [1993] 2 AMR 2169 likewise the Supreme Court had occasion to discuss the principles of interference by an appellate court in an O 14 appeal. Mohamed Dzaiddin, SCJ in dismissing the appeal had held: The approach to be taken by an appellate court in an O 14 appeal has been settled. The appellate court should not regard the appeal as reviewing the exercise of the judge's discretion but approach the appeal as a rehearing." [Emphasis is mine]

Accordingly, it falls to this Court to reconsider the application afresh and to determine, on a proper application of the established principles, whether the appellant's claim is so plainly and obviously untenable as to warrant being struck out at this preliminary stage. Whether the Statement of Claim Discloses a Reasonable Cause of Action

I turn now to consider whether the appellant's statement of claim discloses a reasonable cause of action against the respondent. The respondent's principal submission is that there is no contractual nexus between the appellant and the respondent, and that in the absence of privity, the claim is bound to fail.

It is undoubtedly true that the contractual framework in this case involves a familiar multi-tiered construction arrangement. The respondent contracted with NNS, and NNS in turn contracted with the appellant. Ordinarily, the appellant's right to payment would lie against its immediate contractual counterparty, namely NNS, and not against the respondent. The Court of Appeal's decision in University of Malaya v FBSM Ctech Sdn Bhd [2018] 5 MLJ 397 is illustrative of this principle: "[14] What we found clear is that there is no contractual nexus between the plaintiff and the first defendant. The relationship between the parties in this case in fact, is a classic example of a contractual arrangement, where the employer appointed the main contractor, and the main contractor appointed a subcontractor to undertake a particular project of the employer ..."

However, authority must always be applied in its factual context. In University of Malaya (supra), the plaintiff's case against the employer was premised solely upon a purported right to recover monies payable to another entity. There was no allegation that the employer had directly requested the plaintiff's services, nor that it had undertaken any independent obligation to the plaintiff. The cause of action was thus wholly derivative and devoid of any pleaded basis for direct liability.

The present case stands on a different footing. The appellant advances several alternative bases of liability which, if established at trial, are capable of founding a claim against the respondent.

First, the appellant contends that the respondent directly requested the scaffolding services through client requisition forms signed by the respondent's personnel. These requisition forms, which are part of the evidence before the Court, bear the signatures of the respondent's employees and agents, and specify the scaffolding requirements for the Project. If this contention is established at trial, it could support an inference that the respondent directly engaged the appellant's services, notwithstanding the presence of NNS in the contractual chain. Whether such an inference is justified cannot be determined without examining the surrounding circumstances and hearing oral evidence.

Secondly, the appellant pleads that NNS was acting as a "pass through" contractor or as agent for the respondent. The respondent disputes this characterisation and points to the formal purchase order issued to NNS and the invoices issued by the appellant to NNS. Those matters are undoubtedly material. However, the question of whether NNS was indeed acting as an agent for the respondent is a question of fact that cannot be determined on a striking out application. The Court would need to consider the nature of the relationship between the respondent and NNS, the terms of their engagement, and the circumstances surrounding the provision of scaffolding services.

Thirdly, the appellant alleges that the respondent assumed liability for the appellant's outstanding invoices through the representations and conduct of its personnel. Reliance is placed on the alleged statements by Dato' Mohan Vathumalai and Indiran Muniandy, the discussions regarding vendor registration, and the subsequent direct engagement of the appellant through Purchase Order No. 4420166168 dated 14 January 2024. If these matters are proved, they may give rise to liability by way of novation, collateral contract, or estoppel. Whether they do so is a matter for trial, but it cannot be said, at this stage that such a case is inherently untenable.

The importance of pleadings in defining the issues was emphasised by the Court of Appeal in Ketua Pengarah Jabatan Kerja Raya v Strongkota Development Sdn Bhd and another appeal [2016] MLJU 820, where it was observed that: "[16]... Pleadings therefore prevents surprises during trial as both parties are sure and certain as to what they are supposed to do in terms of establishing their respective positions in court. There is no element of trial by ambush where a party would be taken by surprise by the other party introducing evidence outside the contemplation of what had been the pleaded cause or causes of action or of defence. It is trite law that parties to a suit are bound by what have been pleaded in their respective pleadings." [Emphasis is mine]

However, the present inquiry is not whether the appellant's pleading is extensively drafted, but whether it is so deficient that it discloses no cause of action at all.

In the present case, I am satisfied that the statement of claim, read generously, does plead a cause of action against the respondent. Paragraph 3 of the statement of claim states that the scaffolding services were provided at the respondent's request. Paragraph 5 pleads that NNS was a "pass-through" contractor. Paragraph 6 pleads that the respondent failed to make payment. These pleadings, while not as detailed as one might wish, are sufficient to disclose a cause of action that is not plainly and obviously unsustainable. Whether Section 71 of the Contracts Act 1950 Applies

The appellant relies, in the alternative, upon section 71 of the Contracts Act 1950. The section provides: "71. Where a person, rightfully doing something for another person, without 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."

The appellant places reliance on Tanjung Teras Sdn Bhd v Kerajaan Malaysia [2015] MLJU 2161, in which the Court explained that liability under section 71 is not founded upon any subsisting contract between the parties, but upon equitable considerations grounded in restitution and the prevention of unjust enrichment. The Court held: [35] Liability under section 71 is not based on any existing contract between the parties. Rather it is based on the equitable principle of conscionable conduct and restitution to prevent unjust enrichment by one party at the expense of another party... [37] In Ramkrishna Shankarrao vs. Rangoobal, it was held as follows: ...From a bare reading of the section it is clear that even if there is no contract for the performance of certain work and if the Plaintiff has done that work, without intending to do that work gratuitously, and the Defendant has enjoyed the benefits thereof, then the Defendant is bound to compensate the Plaintiff in respect of such work. The equitable principle underlying Section 70 of the Contract Act is that there should be no undue enrichment of one party at the cost of another. It is based on the principle of restitution which prevents unjust enrichment [Emphasis is mine]

The respondent, on the other hand, relies on High Point Furnishing Sdn Bhd v President Hotel Sdn Bhd & Anor [2024] MLJU 3030, where the Court declined to extend section 71 on the mere fact that a party ultimately derived a benefit from works carried out. Nadzarin Wok Nordin J held: "[20] From the same it can thus be seen that there was no gratuitous work done by the Plaintiff for D1 for which the Plaintiff could claim for quantum meruit. Although it is D1 who ultimately obtained or derived the benefit of the works done by the Plaintiff, this by itself is not sufficient to come within the provision of section 71 of the Contracts Act 1950 ..."

The respondent also points to the appellant's letter of demand dated 28 June 2024, where the appellant stated that NNS had benefited and gained from the scaffolding works. It is submitted that this constitutes an admission inconsistent with the present claim.

In my judgment, the applicability of section 71 in the present case cannot be properly determined on a striking out application. The question of whether the respondent enjoyed the benefit of the appellant's services is a question of fact that requires evidence to be adduced at trial. The respondent's contention that the appellant has admitted that NNS was the beneficiary is not, in my view, conclusive. The letter of demand was issued in the context of attempting to recover payment from NNS, and does not necessarily preclude the appellant from contending that the respondent also benefited from the services. Moreover, the respondent's subsequent direct engagement of the appellant suggests that the respondent recognised the appellant's role in the Project.

The decision in High Point Furnishing (supra) is distinguishable on its facts. In that case, the plaintiff had contracted with the second defendant, and sought to hold the first defendant liable under section 71 simply because the first defendant ultimately derived benefit from the works. The court held that this was insufficient. In the present case, however, there are additional factors that distinguish it from High Point Furnishing (supra), including the direct requests from the respondent's personnel, the alleged representations regarding assumption of liability, and the subsequent direct engagement of the appellant. These factors, if established, could support a claim under section 71. The Alleged Defective Pleading

The respondent contends that the appellant's pleadings are defective because the client requisition forms are not pleaded in the statement of claim but are introduced for the first time in the reply to defence. The respondent cites Accolade Land Sdn Bhd v Mass Rapid Transit Corporation Sdn Bhd & Ors [2017] MLJU 1868, where Lee Swee Seng J held: "[103] It follows from the cardinal principle that a plaintiff is not allowed to supplement its statement of claim by including in its reply, matters that should have been pleaded in the statement of claim."

While I accept this principle, I am not satisfied that it requires the striking out of the appellant's claim in the present case. The statement of claim does plead, at paragraph 3, that the scaffolding services were provided at the respondent's request. The client requisition forms are evidentiary material that supports this pleaded allegation. They are not new causes of action or new claims, but rather particulars of the claim already pleaded. In this sense, the reply to defence is not supplementing the statement of claim, but is responding to the defence's denial that the respondent requested the appellant's services.

It is well established that pleadings are concerned with material facts, not the evidence by which those facts are to be proved. In that context, the inclusion of the requisition forms in the reply cannot properly be regarded as an impermissible supplementation of the claim.

The decision in Ioupay Ltd & Ors v Kuan Choon Hsuing & Ors [2025] MLJU 75 does not advanced the respondent's case. There, the impugned paragraphs in the reply introduced entirely new transactions and new parties which had not been mentioned in the amended statement of claim. The court held, expectedly, that such matters could not be advanced through a reply. The present case is materially different. The client requisition forms do not alter the identity of the parties, the nature of the transactions, or the legal basis of the claim. They relate to the same Project and the same alleged request already pleaded.

Moreover, even if there were some defect in the pleadings, the appropriate remedy would be to allow the appellant an opportunity to amend the statement of claim, not to strike out the claim entirely. Striking out is a draconian remedy that should only be exercised in plain and obvious cases. Where the defect is one of form rather than substance, the court should lean in favour of allowing the claim to proceed. It would be disproportionate to terminate the claim at this stage for what, at most, is a curable irregularity. Whether There Are Triable Issues

Having considered the parties' submissions and the evidence before the Court, I am satisfied that there are triable issues that cannot be determined on a striking out application.

First, there is a triable issue as to whether NNS was acting as a "pass-through" contractor or agent for the respondent. The respondent disputes this characterisation, but the question cannot be determined without evidence as to the nature of the relationship between the respondent and NNS, the terms of their engagement, and the circumstances surrounding the provision of scaffolding services.

Secondly, there is a triable issue as to whether the respondent assumed liability for the appellant's outstanding invoices. The appellant points to the alleged representations made by the respondent's personnel, the discussions concerning vendor registration, and the respondent's subsequent direct engagement of the appellant. These matters, if established, could give rise to an assumption of liability by the respondent.

Thirdly, there is a triable issue as to whether the respondent directly requested the appellant's services through the client requisition forms. The respondent does not dispute that these forms bear the signatures of its personnel, but contends that they were merely administrative documents and do not give rise to any liability. This is a question of fact that requires evidential exploration to be adduced at trial.

Fourthly, for the reasons already given, there is a triable issue as to whether section 71 of the Contracts Act 1950 applies. The question of whether the respondent enjoyed the benefit of the appellant's services is a question of fact that cannot be determined on a striking out application.

The principles governing striking out applications are clear, the court should not strike out a claim where there are triable issues that require evidence to be adduced at trial. As the Court of Appeal observed in Sivarasa Rasiah (supra): "A striking out order should not be made summarily by the court if there is issue of law that requires lengthy argument and mature consideration. It should also not be made if there is issue of fact that is capable of resolution only after taking viva voce evidence during trial."

In the present case, there are multiple issues of fact that are capable of resolution only after taking viva voce evidence during trial. The appellant's claim is not plainly and obviously unsustainable. It raises triable issues that ought to be determined at trial.

I also find it relevant to consider the respondent's conduct in this matter. The respondent, when approached by the appellant for assistance in obtaining payment from NNS, did not distance itself from the matter but instead sought to assist the appellant in securing payment. Thereafter, the respondent entered into a direct contractual relationship with the appellant through Purchase Order No. 4420166168 dated 14 January 2024. Whilst these matters are not determinative, they are not without significance. They are capable, at least arguably, of supporting the inference that the respondent recognised a degree of commercial engagement with the appellant in relation to the Project. In that context, they lend some support to the appellant's contention that the respondent may have assumed responsibility, whether expressly or impliedly, for the outstanding invoices. The weight to be attached to this conduct is a matter for trial, but it cannot be dismissed as irrelevant at this stage.

The respondent's contention that the appellant is approbating and reprobating is not, in my judgment, persuasive. The doctrine of approbation and reprobation requires a person to elect between two alternative and inconsistent rights or claims. In the present case, the appellant is not asserting inconsistent rights, rather, the appellant is pursuing alternative claims against alternative defendants. The appellant initially sought payment from NNS, and when NNS claimed to be a "pass-through" contractor, the appellant sought payment from the respondent. This is not approbation and reprobation, it is the pursuit of alternative remedies in the alternative.

As the Court of Appeal held in Cheah Theam Kheng v City Centre Sdn Bhd (in liquidation) and other appeals [2012] 1 MLJ 761: "The doctrine of approbation and reprobation requires a person to elect between two alternative and inconsistent rights or claims. He cannot both approbate and reprobate. The doctrine applies where a person has chosen one of two alternative and inconsistent courses of conduct."

In the present case, the appellant has not made a final election to pursue NNS exclusively. The letter of demand to NNS was an attempt to recover payment, but it did not constitute an irrevocable election that precludes the appellant from pursuing the respondent. The appellant is entitled to pursue alternative claims in the alternative, and to let the court determine which, if any, of those claims should succeed. Conclusion

For all the foregoing reasons, I am satisfied that the learned Sessions Court Judge erred in striking out the appellant's writ and statement of claim. The appellant's claim raises triable issues which cannot be determined on a striking out application without the benefit of full evidence being adduced at trial. The claim is not plainly and obviously unsustainable, and ought to be allowed to proceed to trial.

The appeal is accordingly allowed. The order of the Sessions Court striking out the appellant's writ and statement of claim is set aside. The matter is remitted to the Sessions Court for trial in the ordinary course.

The respondent shall pay the appellant costs of this appeal fixed at RM10,000,subject to allocatur. Dated the $ 3^{rd} $ day of March 2026 ...SGN... MOH KOK WAI JUDICIAL COMMISSIONER OF THE HIGH COURT HIGH COURT (CIVIL DIVISION NCvC14) HIGH COURT OF MALAYA AT KUALA LUMPUR IN THE FEDERAL TERRITORY OF MALAYSIA Counsel for the Appellant:Selva Kumaran and Tan Yew Kit Messrs Rose HussinCounsel for the Respondent:Ooi Chih-Wen and Janice Tay Messrs Wong & Partners