Syarikat Ong Yoke Lin Sdn Bhd v Grand Dynamic Builders Sdn Bhd (WA-24NCC(ARB)-57-12/2022)

1.1 an interim injunction to forthwith restrain the Defendant whether by themselves, or their directors, managers, officers, employees, servants, agents, shareholders or otherwise from making and/or issuing and/or calling on a demand pursuant to Standard Chartered Bank Malaysia Berhad Letter of S/N avA5TrB/Zka3H5z7dg8tw Guarantee No. 300021354979-SP dated 08.03.2021 (hereafter “the Bank Guarantee”) pending the full and final disposal of arbitral proceedings that the Plaintiff shall commence against the Defendant;

1.2 in the event the Defendant has made and/or issued and/or called a demand on the Bank Guarantee, an interim injunction to forthwith restrain the Defendant from receiving any payment pursuant to the aforementioned demand pending the full and final disposal of arbitral proceedings that the Plaintiff shall commence against the Defendant; and

1.3 in the event the Defendant has made and/or issued and/or called on a demand on the Bank Guarantee, and in the event the Defendant has received payment pursuant to the aforementioned demand, an interim injunction to forthwith restrain the Defendant whether by themselves, or their directors, managers, officers, employees, servants, agents, shareholders or otherwise from howsoever dealing with, transferring and/or disposing of any and all monies received pending the full and final disposal of the arbitral proceedings that the Plaintiff shall commence against the Defendant. [2] I had on 12.5.2023 allowed the injunction as set out in prayer 1 of the OS with costs and given broad reasons for my decision. This judgment contains the full reasons for my decision. S/N avA5TrB/Zka3H5z7dg8tw Background [3] The background facts are culled from the affidavits and submissions of the parties. [4] The Defendant was appointed as the Main Contractor by the Employer, Damai City Sdn Bhd by way of a Letter of Award dated 9.11.2020 to carry out the balance of the Main Building Works of a project known as “Cadangan Pembangunan Perdagangan Yang Mengandungi 3 Blok Menara iaitu: Fasa 1: 5 Tingkat Besmen dan 10 Tingkat Podium, Fasa 2: Menara A – 61 Tingkat Pangsapuri Servis, Fasa 3: Menara B-56 Tingkat Pangsapuri Servis, Fasa 4: Menara C-72 Tingkat Hotel (Fasa 4A) dan Hotel Suite Strata (Fasa 4B) Di Atas Lot 20000 (Lot Lama 111 & 112) Seksyen 63, Bandar Kuala Lumpur, Jalan Conlay, Wilayah Persekutuan Kuala Lumpur untuk Tetuan Damai City Sdn. Bhd” (“the Project”). [5] The Defendant (as the Main Contractor), issued a Letter of Acceptance dated 3.2.2021, to the Plaintiff as a nominated sub-contractor to carry out the balance of the works for the ‘Supply, Delivery, Installation, Testing and Commissioning of Air Conditioning, Mechanical Ventilation and Building Management System’ under the Project for a sub-contract sum of RM39,823,291,48 (“the sub-contract”). The salient terms of the sub-contract include inter alia the following terms: -

Clause 3 (Nominated Sub-Contract Conditions) – The Agreement and Conditions of PAM Sub-Contract 2006 shall apply to the Contract; S/N avA5TrB/Zka3H5z7dg8tw

Clause 5 (Work Programme) – Contractual works to commence on 07.12.2020 and to complete from 22.08.2022 to 22.09.2023;

Clause 7 (Terms of Payment) – Payment to Plaintiff shall be within seven (7) days from the “period of honouring cetificates” (i.e. not more than thirty (30) days from the date of the

Clause 21 (Performance Bond) – The Plaintiff shall deposit a bank guarantee with the Defendant: “Prior to the commencement of the Nominated Sub-Contract Works, you are required to deposit the Main Contractor a Bank Guarantee of the amount equivalent to five percent (5%) of the Nominated Sub-Contract Sum of the entire Nominated Sub-Contract Works in the form of an approved Banker’s Guarantee (which must contain the provision of assignment of bank guarantee, such assignment as defined below) and shall be valid until up to the date of issuing Certificate of Practical Completion plus an additional three (3) months. ………. We may utilize and make payment out of or deductions from the Performance Bond should you fail to carry out the Nominated Sub-Contract Works or commit any breach of your obligations under this Nominated Sub-Contract. …………..” S/N avA5TrB/Zka3H5z7dg8tw

Clause 31 (Dispute Resolution) – “Any dispute, controversy or claim arising out of or relating to this Nominated Sub-Contract, or the breach, termination or invalidity thereof shall be settled by arbitration in accordance with the Asian International Arbitration Centre Rules”. [6] The PAM Sub-Contract 2006 incorporated into the sub-contract include the following terms: -

Clause 24.1 (Defaults by Contractor) – The Plaintiff may determine its own employment if the Defendant, inter alia: - (i) “wholly or substantially suspends the carrying out of the Main Contract Works”; or (ii) “fails or neglects to pay the Sub-Contractor the amount properly due on any certificate…within seven (7) days after the Period of Honouring Certificate”;

Clause 24.2 (Procedure for Determination) – By way of written notice specifying default, and if the Defendant continues default for fourteen (14) days thereafter, the Plaintiff may within ten (10) days issue a further written notice to forthwith determine its employment; and

Clause 29.1 (Disputes Referred to Arbitration) – All disputes between parties shall be referred to arbitration. S/N avA5TrB/Zka3H5z7dg8tw [7]

10.1 The Defendant was contractually obliged to make payment of certified sums pursuant to Certificate of Payments Nos 7- 12 amounting to RM8,794,676.94 to the Plaintiff as the Nominated Sub-Contractor under the sub-contract. In breach of the sub-contract, the Defendant has failed, refused and/or neglected to make such payment;

10.2 The Defendant without reasonable cause, instructed the Plaintiff to suspend the sub-contract works for over three (3) months causing the Plaintiff to sustain recurring costs in the sum of RM20,166,695.33, damages of which is continuing;

10.3 The Defendant has failed, refused and/or neglected to make payment of the certified sums and recurring costs;

10.4 On 25.11.2022, the Plaintiff had issued a Notice of Default to the Defendant premised on the Defendant’s defaults under the sub-contract for unreasonably suspending the sub-contract works and failing to pay Certificates of Payment Nos. 7, 8, 9, 10, 11, and 12 for a total sum of RM8,794,676.94; S/N avA5TrB/Zka3H5z7dg8tw

10.5 On 19.12.2022, the Plaintiff issued a Notice of Determination of the sub-contract;

10.6 As the Defendant is disputing the Plaintiff’s action of self-determination, unless restrained by this Honourable Court from so doing, there is a real risk and likelihood that the Defendant will call on the bank guarantee made in favour of the Defendant by the Plaintiff on the misconceived ground of breach of contract by the Plaintiff;

10.7 The Plaintiff has an unusually strong and clear case for this Court to grant the interim injunctions sought, amongst others, to prevent the Defendant from calling on the Bank Guarantee or if monies have been received pursuant thereto, to prevent the Defendant from dealing with, transferring or disposing of any and all monies received;

10.8 The injunctive reliefs sought in this Originating Summons are wholly necessary, amongst others, to (a) maintain the status quo pending the full and final determination of the Arbitration Proceedings; and (b) prevent the Defendant from taking any action that is likely to cause current or imminent harm or prejudice to the Arbitration Proceedings especially considering the Plaintiff has not been paid the Certificates of Payment Nos 7-12 amounting to RM8,794,676.94; S/N avA5TrB/Zka3H5z7dg8tw

10.9 there exist serious bona fide issues to be tried in respect of the Plaintiff’s Claim against the Defendant in the Arbitration Proceedings, all of which ought to be determined by the arbitral tribunal. Defendant’s case against the grant of relief [11] In opposing the application, the Defendant in essence contended:

11.1 the Notice of Determination is wrongful as there was no unreasonable suspension of works - the Defendant had with reasonable cause, to protect its own rights, suspended the Main Contract Works by serving a notice dated 16.8.2022

11.2 On 4.11.2022, the Defendant informed the Plaintiff via email regarding defective works discovered in relation to the Air-Conditioning Works and required urgent action and solution S/N avA5TrB/Zka3H5z7dg8tw from the Plaintiff to resolve the defective Air-Conditioning Works; renders the valuation of the works done and materials made by the Plaintiff as grossly over-valued; the Plaintiff is liable for the rectification, replacement, additional and/or consequential costs for works and installed equipment which are not in accordance with contractual requirements;

11.3 As for the bank guarantee:

11.3.1 it is an unconditional on-demand bank guarantee;

11.3.2 the Defendant is entitled to make a demand on the bank guarantee and the guarantor is required to pay the Defendant based on the bank guarantee notwithstanding any contestation or arbitration or legal proceedings or any protest by the Plaintiff or the guarantor or any third party;

11.3.3 the Plaintiff has not proven that there was unconscionable conduct on the part of the Defendant to warrant the grant of injunction relief sought by the Plaintiff;

11.4 non-payment of invoices is not considered an unconscionable conduct - Ranhill E&C Sdn Bhd v Thyssenkrupp Industries (M) Sdn Bhd & Anor [2016] MLJU S/N avA5TrB/Zka3H5z7dg8tw 535; Jeks Engineering Sdn Bhd v Pali Ptp Sdn Bhd [2019]

11.5 the disputes between the Plaintiff and Defendant are merely contractual disputes and following the case of Ranhill, a genuine contractual dispute between parties cannot be elevated to the level of unconscionability to justify a grant of the injunction;

11.6 damages would be an adequate remedy for the Plaintiff and the balance of convenience lies in refusing injunction as amongst others the present application:

11.6.1 has prejudiced the reputation, business and operations of the Defendant as a company, as the

11.6.2 may set a precedence for other Nominated Sub-Contractors to make a similar claim which can be fatal to the business and operations of the Defendant as well as the completion of the Project;

11.6.3 may affect the confidence of the Defendant’s shareholders and stakeholders since the Defendant is a public listed company; and S/N avA5TrB/Zka3H5z7dg8tw

11.6.4 the bank guarantee will expire by the end of this year before a resolution can be achieved from the arbitration proceedings commenced by the Plaintiff;

11.6.5 the amount in the bank guarantee is lesser than the losses and damages incurred by the Defendant due to the Plaintiff’s defective works of the Air-Conditioning Works

11.7 The Plaintiff had run foul of Order 29 Rule 1(2A) of the Rules of Court 2012 by failing to disclose inter alia the defective Air-Conditioning Works in the Plaintiff’s affidavit in support;

11.8 there will be an inevitable delay in commencing the arbitration proceedings as at time of application, there is no director of AIAC to appoint any arbitrator, should the injunction be granted to restrain the Defendant from making a demand on the bank guarantee until disposal of the Arbitration Proceedings, the bank guarantee will expire by 22.12.2023 and this will prejudice the Defendant in not being able to make a demand on the bank guarantee. [12] The Plaintiff in rebuttal posited in essence that that the bank guarantee is a conditional guarantee, the condition precedent to call on the guarantee is not fulfilled, there is unconscionable conduct and over securitisation. S/N avA5TrB/Zka3H5z7dg8tw This Court’s Findings [13] The Plaintiff’s Application has been brought, inter alia, pursuant to s. 11(1)(a) and (b) of the Arbitration Act 2005 (“the Act”) which allows the High Court to grant any interim measure before arbitration proceedings. It reads: “(1) A party may, before or during arbitral proceedings, apply to a High Court for any interim measure and the High Court may make the following orders for the party to –

maintain or restore the status quo pending the determination of the dispute;

take action that would prevent or refrain from taking action that is likely to cause current or imminent harm or prejudice to the arbitral process;” (Emphasis added) [14] In Ahmad Zaki Sdn. Bhd. v. SN Akmida Holdings Sdn. Bhd. [2021] MLJU 644 CA, the Court of Appeal affirmed the principle that interim measures under s. 11(1)(a) and (b) of the Act include injunctions to restrain the calling/receipt of performance bonds and bank guarantees to preserve the status quo pending reference to arbitration: “[34] Thus, it should be obvious the statutory provision of s. 11(1) of the AA as narrated above, is available for the Respondent to apply for the injunction in restraining the Appellant from receiving payments pursuant to the PB (performance bond) and APG (advance payment guarantee). The above statutory provision also allows for the Respondent to maintain the status quo of the positions of the Appellant and the Respondent pending the determination of the dispute at the arbitration. It allows for interim measures to be granted by the High Court.” (Emphasis added) S/N avA5TrB/Zka3H5z7dg8tw [15] For interim injunctive relief to restrain the calling on a bank guarantee/performance bond under s. 11(1) of the Act pending arbitration, in KNM Process Systems Sdn. Bhd. v. Lukoil Uzbekistan Lubricating Company LLC [2020] MLJU 85, the Court of Appeal discussed the intended effect of the said section and provided guidance on the role of the court: “[31] Section 11 was amended in 2018 vide Arbitration (Amendment) (No. 2) Act 2018 [Act A1569/2018]. These amendments have brought section 11 substantially in line with Article 17(2) of the 2006 UNCITRAL Model Law on International Commercial Arbitration. These measures are also reflected in section 19(2) of the Arbitration Act 2005 in relation to the interim measures that may be granted by an arbitral tribunal. ……. [34] Under the old law, the type of interim measures that may be granted by the Court was substantially spelt out; it is otherwise under the new law. The focus is no longer on the type of interim measure but the effect or intent of the measure, that the measure that is moulded or ordered by the Court achieves the intended effect as found in section 11(1)(i) to (v). In the instant appeal, the interim remedies were sought for the purpose of maintaining the status quo pending determination of the dispute at arbitration. [35] Regardless the position, pre or post amendment, section 11 confers discretion upon the Court to grant any interim measure. …… [36] The exercise of discretionary power under section 11 requires a careful examination of the relevant material facts against the allegations made, with a cautious restrain of determining the dispute in any definitive manner since that is a matter for determination at the arbitration and not for the Court. The Court is only approached to grant an interim remedy which will ultimately support or aid that arbitration. S/N avA5TrB/Zka3H5z7dg8tw [16] The Court of Appeal went on to hold at [46] that the exercise of discretionary power is to be exercised with caution and a prima facie case of fraud or unconscionability must be made out by the applicant (following Sumatec Engineering & Construction Sdn Bhd v Malaysian Refining Company Sdn Bhd [2012] 4 MLJ 1; [2012] 3 CLJ 401: “[46] …. where the injunctive relief concerns performance bonds, guarantees and warranties, the applicant must in addition, show a strong prima facie case of fraud or unconscionability but the merits and substantive arguments of such an allegation is to be determined at the arbitration, and not by the Court. The Court in fact, must avoid engaging or being caught up in protracted consideration of the merits of such dispute.” [17] It is not disputed that there is an arbitration agreement between the Plaintiff and Defendant that any dispute between them regarding the sub-contract shall be decided by way of arbitration. The parties are on common ground on the application of the principles in Ahmad Zaki supra and KNM Process supra. [18] As the Plaintiff has referred the dispute to arbitration, s. 11 (1) of the Act in my view, is wide enough for the Plaintiff to apply for the injunction in restraining the Defendant from making a demand on the bank guarantee. I am satisfied that the application has met the threshold requirement of s. of the Act. The section allows for the maintaining of the status quo pending the determination of the dispute between the Plaintiff and Defendant via arbitration. It allows for interim measures to be granted by the High Court to aid, support or facilitate the arbitral proceedings. The Defendant in fact has no quarrel with the court’s powers pursuant to s. 11 of the Act. S/N avA5TrB/Zka3H5z7dg8tw [19] The starting point here is to determine the nature of the bank guarantee/performance bond i.e. whether it is an ‘on demand’ or an unconditional one. If it is an ‘on demand’ one, the Supreme Court in Esso Petroleum Malaysia Inc v Kago Petroleum Sdn Bhd [1995] 1 MLJ 149; [1995] 1 CLJ 283, held that a mere demand would trigger payment without the need to assert any reason for such demand and that such ‘on demand’ performance bond is independent of the underlying contract between the disputing parties, and that it is not open for the courts to inquire into any breach of obligations in the underlying contract. [20] Once the bank guarantee/performance bond is determined to be an unconditional or on-demand basis, the Federal Court, 17 years later in Sumatec (supra) pronounced such an ‘on demand’ bond/guarantee can only be injuncted if the applicant establishes a seriously arguable or strong prima facie case for the grant of such an interim remedy through manifest or strong evidence of fraud or unconscionability; endorsing the approach adopted by the Court of Appeal in Kejuruteraan Bintai Kindenko Sdn Bhd v Nam Fatt Construction Sdn Bhd [2011] 7 CLJ 442 and agreed with the Court of Appeal in the same Sumatec case: “[36] We are also in agreement with Mohamad Ariff bin Md Yusof JC in the case of Focal Asia Sdn Bhd when he expressed this opinion on these two exceptions and the test to be applied-If there is clear evidence of fraud in the underlying contract, or unconscionability, the Court can interfere. In these two situations, the integrity and autonomy of the document will not be compromised, since S/N avA5TrB/Zka3H5z7dg8tw the paying bank will not be directly prevented from acting on the document. It is the beneficiary that is prevented from making a call on the document on these grounds. Nonetheless, the evidence allowing intervention by the Court must be clear. I accept the test of “seriously arguable that the only realistic inference is fraud” as good law in an interlocutory application such as the present. ... [39] We are of the considered view that the 'seriously arguable and realistic inference' test as used by the learned judicial commissioner in Focal Asia is equally applicable to the extended exception of unconscionability. That test therefore needs to be applied to the relevant material facts before the court. The same test which results in a 'strong prima facie case' was utilised by the Court of Appeal at the intermediate appeal stage. And the Court of Appeal said this of the required burden now rested on the shoulder of Sumatec: As in the case of fraud, to establish 'unconscionability' there must be placed before the court manifest or strong evidence of some degree in respect of the alleged unconscionable conduct complained of, not a bare assertion. Hence, the respondent has to satisfy the threshold of a seriously arguable case that the only realistic inference is the existence of 'unconscionability' which would basically mean establishing a strong prima facie case. In other words, the respondent has to place sufficient evidence before the court so as to enable the court to be satisfied, not necessarily beyond reasonable doubt, that a case of 'unconscionability' being committed by the beneficiary (the appellant) has been established to an extent sufficient for the court to be minded to order injunction sought. This additional ground of 'unconscionability' should only be allowed with circumspect where events or conduct are of such degree such as to prick the conscience of a reasonable and sensible man. We are in agreement with those propositions.” S/N avA5TrB/Zka3H5z7dg8tw [21] Both the Federal Court in Sumatec supra and the Court of Appeal in Kejuruteraan Bintai Kindenko Sdn Bhd made clear that injunctive relief against the call on a performance bond or bank guarantee is available upon proof of manifest or strong evidence of fraud or unconscionability. The Court of Appeal in Kejuruteraan BIntai Kindenko Sdn Bhd supra explained the test for unconscionability as summarised in the headnotes: “(6) In order to rely on the ground of ‘unconscionable conduct’ to restrain an abusive call on a performance bond the plaintiff must show manifest or strong evidence of some degree of the conduct complained of; not a bare statement. The evidence need not necessarily be beyond reasonable doubt. The circumstances or conduct must be of such degree as to prick the conscience of a reasonable and sensible man.” [22] The Court of Appeal in the same case broadly indicated that unconscionability is tantamount to actions that lack bona fides where there is an element of unfairness or some form of conduct which appears to be performed in bad faith, see [47] & [48]: “[47] It is not possible to define “unconscionability” other than to give some very broad indications such as lack of bona fides. What kind of situation would constitute “unconscionable conduct” would have to depend on the facts of each case. This is a question which the court has to consider on each occasion where its jurisdiction is invoked. There is no pre-determined categorization (see; Dauphin Offshore Engineering and Trading Pte. Ltd. v. The Private Office of HRH Sheikh Sultan bin Khalifa bin Zayed Ai-Nahyan [2000] 1 SLR (R) 117; and Shanghai Electric Group Co Ltd v. PT Merak Energi indonesia & Anor [2010] 2 SLR 329). S/N avA5TrB/Zka3H5z7dg8tw [48] Based on the above considerations, we are of the view that there is no simple formula that would enable a court to ascertain whether a party had acted unconscionably in making a call or demand on an “on demand” performance bond. In the final analysis, whether or not “unconscionability” has been made out is largely dependent on the facts of each case. In every case where “unconscionability” is made out, there would always be an element of unfairness or some form of conduct which appears to be performed in bad faith.” [23] The Court of Appeal at p 449 speaking through Her Ladyship Zainun Ali JCA (later FCJ) expressed thus: “[4] ... unconscionability is a doctrine which allows the courts to deny enforceability of a contract because of abuses arising out of contract. [5] In my view the principle underlying the unconscionability doctrine is the prevention of oppression and unfair conduct and because the determination of unconscionability is fact specific, courts must consider such a claim on a case by case basis and assess the totality of the circumstances” [24] In summary, the authorities are clear that:

24.1 The applicant must be able to satisfy the court that he has a “seriously arguable case that the only realistic inference is that unconscionability has been made out”; and

24.2 The applicant has to place manifest or strong prima facie case of the alleged unconscionable conduct before the Court and not a bare assertion. [25] I deal with the contentions. S/N avA5TrB/Zka3H5z7dg8tw Bank guarantee is a conditional bond [26] On this issue, at the outset, the Plaintiff postulated that the bank guarantee is not to be considered in isolation but together with the underlying sub-contract where the dispute of the parties is to be resolved in arbitration proceedings. This posit in my view is not unattractive based on the facts of this case. [27] The Defendant argues that the bank guarantee is an unconditional ‘on demand’ guarantee, the Plaintiff is not entitled to the injunctive relief sought as there is no mention nor proof of unconscionable conduct. [28] The Plaintiff countered that even if the words unconscionable conduct is not used, it is not altogether fatal as the matter turns on the factual matrix and the bank guarantee is a conditional bond:

28.1 Firstly, by the plain wording employed (set out at paragraph 7 of this judgment);

28.2 Second, clause 21 of the Subcontract shows that the Bank Guarantee may only be called upon where there is a breach:- “…… We may utilize and make payment out of or deductions from the Performance Bond should you fail to carry out the Nominated Sub-Contract Works or commit any breach of your obligations under this Nominated Sub-Contract.” (Counsel’s emphasis) S/N avA5TrB/Zka3H5z7dg8tw

28.3 Thirdly, Clause 32.5 (Payments from the Performance Bond) of the Sub-Contract also states that the Bank Guarantee may only be called upon where there is a breach. It reads: - “In the event that the Contractor determines the employment of the Sub-Contractor in accordance with Clause 23.0, or if there is any breach of the Sub-Contract, the Contractor may call on the Performance Bond and utilise and make payments out of or deduction from the Performance Bond for the completion of and/or rectification of the Sub-Contract Works and reimbursement of loss, expense and/or damage suffered by the Contractor. On completion of the Sub-Contract Works, any balance of monies remaining from the Performance Bond shall be refunded to the Sub-Contractor without interest.” (Counsel’s emphasis) [29] The Plaintiff’s Counsel argues that by reasons aforesaid, the call on the bank guarantee is clearly conditional upon a breach by the Plaintiff i.e. the first limb as outlined in China Airlines Ltd. Maltran Air Corp Sdn. Bhd. (formerly known as Maltran Air Services Corp Sdn. Bhd.) and another appeal [1996] 2 MLJ 517 FC and further, the precise wordings of the bank guarantee in the instant case are almost identical to the case of Teknik Cekap Sendirian Berhad v. Public Bank Berhad [1995] 3 MLJ 449 at 454 & 455;[1995] 4 CLJ 697 at pg. 701 where the Court of Appeal found that the performance bond therein was a conditional bond because of the opening words of “If the sub-contractor shall in any respect fail to execute the contract or commit any breach of his obligations thereunder then the guarantor shall pay…”. S/N avA5TrB/Zka3H5z7dg8tw [30] In my respectful view, to determine the nature of the bond is a straightforward exercise of construction. [31] Having read the sub-contract and the bank guarantee and given the words therein its ordinary meaning, I find that the bank guarantee is a conditional guarantee similar to the bond in Teknik Cekap. Unless there is breach by the Plaintiff, or until Plaintiff has failed to perform its obligations, there was no liability under the bank guarantee. The bond in Teknik Cekap reads: “If the sub-contractor (unless relieved from the performance of any clause of the contract or by statute or by the decision of a tribunal of competent jurisdiction) shall in any respect fail to execute the contract or commit any breach of his obligations thereunder then the guarantor shall pay to the contractor up to and not exceeding the sum of RM422,000 (Malaysian Ringgit four hundred twenty two thousand) only representing 10% of the contract value or such part thereof on the contractor's demand notwithstanding any contestation or protest by the sub-contractor or by the guarantor or by any other third party, provided always that the total of all partial demands so made shall not exceed the sum of RM422,000 (Malaysian Ringgit four hundred twenty two thousand) only and that the guarantor's liability to pay the contractor as aforesaid shall correspondingly be reduced proportionate to any partial demand having been made as aforesaid.” [32] This construction is consistent with clause 21 and clause 32.5 of the sub-contract. In so concluding, I agree with Plaintiff’s counsel, and hold that the words “IF THE SUB-CONTRACTOR SHALL IN ANY RESPECT FAIL TO EXECUTE THE SUB-CONTRACT OR COMMIT ANY BREACH OF HIS OBLIGATIONS THEREUNDER THEN THE GUARANTOR SHALL PAY …” in the bank guarantee are not surplusage. S/N avA5TrB/Zka3H5z7dg8tw [33] Thus, having regard to the elucidations and principles held in the two cases of Teknik Cekap and Kejuruteraan Bintai Kindenko Sdn Bhd supra, I find that it is incorrect for the Defendant to submit that the bank guarantee is an unconditional guarantee payable on demand. Failure To Issue Notice of Breach [34] I accept the Plaintiff’s argument that the Defendant is disentitled from calling on the bank guarantee for failure to issue a Notice of Breach in accordance with Clause 22.6 of the Sub-Contract–which is a condition precedent to the calling of the Bank Guarantee. In this case, Clause 22.6 of the Sub-Contract reads: - “22.6 Where the regular progress of the Main Contract Works has been or is likely to be disrupted by negligence, omission, default and/or breach of contract by the Sub-Contractor, and the Contractor had incurred or is likely to incur loss and/or expense the Contractor shall be entitled to recover such loss and/or expense from the Sub-Contractor as a debt or to set-off the same from any monies due or to become due to the Sub-Contractor under the Sub-Contract or to recover the same from the Performance Bond, provided always that:-

22.6(a) the Contractor shall give written notice to the Sub-Contractor, delivered by hand or by registered post of his intention to claim for such loss and/or expense within twenty-one (21) Days from the commencement of the cause of disturbance giving rise to the claim, and the written notice shall specify the negligence, omission, S/N avA5TrB/Zka3H5z7dg8tw default and/or breach of contract and its consequences. The giving of such written notice shall be a condition precedent to any entitlement that the Contractor may have under the Sub-Contract; and

22.6(b) within twenty eight (28) Days of the Contractor giving written notice (or within such longer period as may be agreed in writing by the Sub-Contractor), the Contractor shall send to the Sub-Contractor particulars of the claim for loss and/or expense together with all necessary supporting calculations to substantiate his claims. If the Contractor fails to submit the required particulars within the stated time (or within such longer period as may be agreed in writing by the Sub-Contractor), it may be deemed that the Contractor has no claim for loss and/or expense.” (Counsel’s emphasis) [35] In this case, in my view, it cannot be denied that the bank guarantee was provided by the Plaintiff pursuant to the sub-contract. The terms in the sub-contract agreed by the parties govern payments under the bank guarantee. In this regard, the implications of clause 21, clause 26 and clause 32.5 of the sub-contract when judicially considered show plainly that the Defendant can utilize payments under the bank guarantee towards loss and expense of the Defendant arising from default and/or breach of contract by the Plaintiff. [36] Further, Clause 26 stipulated a pre-condition which must first be fulfilled - that the Defendant shall have issued to the Plaintiff written notice of its intention to claim for such loss and/or expense and specifying the breach and its consequences. The Defendant in this case has not produced any S/N avA5TrB/Zka3H5z7dg8tw evidence before the court of such a notice of breach. The Defendant should not be allowed to take advantage of the Plaintiff by making a call when that is not the intention of providing the bank guarantee at the outset. [37] In Kejuruteraan Bintai Kindenko Sdn Bhd supra, the Court of Appeal allowed an injunction to restrain a performance bond, inter alia, on the basis that the condition precedent (i.e. a certificate in writing) was not yet fulfilled: “[79] Thus, under cl 24, of the underlying contract, the beneficiary (the 1st respondent) is only entitled to utilise the performance bonds if the nominated subcontractor (the appellant) fails to execute the contract or commits a breach of its obligations under the contract with one precondition which must first be fulfilled i.e., that the Employer (Gerbang Perdana Sdn Bhd — GPSB) shall have issued to the 1st respondent (with a duplicate copy to the appellant) a certificate in writing stating its opinion that the appellant has been in default. This precondition must be fulfilled before the beneficiary is entitled to make any call or demand on the said performance bonds. Unfortunately, in the present case, there is no evidence of any certificate issued by GPSB for that purpose. Therefore, under the underlying contract, the beneficiary is not entitled to make any demand on both the performance bonds. The demands are premature and they must be restrained from making such demands. …… [101] The calling of the performance bond by the beneficiary is subject to the terms of the underlying contract as agreed by the parties. It was pursuant to those agreed terms that the performance bonds were issued; and therefore, any demand on the performance bonds must be in compliance with the terms of the contract (i.e., in this case - cl. 24(c) of the underlying contract). S/N avA5TrB/Zka3H5z7dg8tw [102] On the above ground, the court is satisfied that the demands made by the beneficiary are invalid and of no effect; and must be restrained by an injunction.” [38] As such, in my respectful view, just as in the case of Kejuruteraan Bintai Kindenko Sdn Bhd as is the case here, sans the notice of breach, there is a failure to fulfil the pre-condition of a call on the bank guarantee, the Defendant then has no right to call on the bank guarantee. Any formal or procedural requirement stipulated in the bank guarantee and underlying sub-contract must be complied with strictly and meticulously. It did not happen in the present case. Over securitisation [39] To recapitulate, in seeking to restrain the Defendant (i.e. the beneficiary) from calling on the bank guarantee, the Plaintiff contended that to date, the Defendant has failed, refused and/or neglected to pay to the Plaintiff the certified payments in the sum of RM8,794,676.94 pursuant to the Certificates of Payment Nos. 7-12 due and owing to the Plaintiff. Additionally, the Defendant has also failed, refused and/or neglected to pay to the Plaintiff prolongation/recurring costs in the amount of RM20,166,695.33. The Defendant in response asserted that due to the defective Air-Conditioning works, it will have to incur very substantial sums in carrying out rectification works. [40] It must be borne in mind that the issues of alleged breaches of the sub-contract by the respective parties have already been referred to S/N avA5TrB/Zka3H5z7dg8tw arbitration to be determined by the arbitral tribunal. This will obviously include the issues of whether the Defendant has breached the sub-contract by failing, refusing and/or neglecting to pay to the Plaintiff the certified sums pursuant to the Certificates of Payment Nos 7-12 in accordance with its obligations under the sub-contract; whether the Defendant’s actions of suspending the works and/or instructing the Plaintiff to suspend its works was invalid, unreasonable and/or unlawful pursuant to the terms of the sub-contract; whether there were defective Air-Conditioning works carried out by the Plaintiff and consequential relief based on the determination of the issues arising. [41] The Plaintiff relies on unconscionability in this case. [42] Whether there is ‘unconscionable conduct’ depends on the facts of each case. [43] Based on the allegation and counter allegations of the parties, in my view, it behoves the court to evaluate whether the entire course of conduct of the Defendant supports a “strong prima facie case of unconscionability" and bearing in mind of course that a survey of the authorities show there is no exhaustive list of circumstance where unconscionability arises. For instance, in Kejuruteraan Bintai Kindenko Sdn. Bhd. supra where Ramly Ali JCA (later FCJ) explained: “[28] It is not possible to define “unconscionability” other than to give some very broad indications such as lack of bona fides. What kind of situation would constitute “unconscionable conduct” would have to depend on the facts of each case. This is a question which the court S/N avA5TrB/Zka3H5z7dg8tw has to consider on each occasion where its jurisdiction is invoked. There is no pre-determined categorization… [29] Based on the above considerations, we are of the view that there is no simple formula that would enable a court to ascertain whether a party had acted unconscionably in making a call or demand on an “on demand” performance bond. In the final analysis, whether or not “unconscionability” has been made out is largely dependent on the facts of each case. In every case where “unconscionability” is made out, there would always be an element of unfairness or some form of conduct which appears to be performed in bad faith. … [41] What kind of situation would constitute unconscionability would have to depend on the facts and circumstances of each particular case (see Dauphin Offshore Engineering and Trading Pte Ltd v The Private Office of HRH Sheikh Sultan b Khalifa b Zayed Al Nahyan [2000] 1 SLR 117).” [44] In deciding this factor of over securitisation, I have to bear in mind the weight to be attached to this factor as each factor will vary from case to case depending on the strength of the evidence. I should at the outset state that I agree with the submissions of the Plaintiff’s counsel as the weight of evidence show:

the Defendant has admitted, by way of its letter to the Plaintiff dated 21.12.2022, that it owes the Plaintiff certified payments amounting to at least RM8,776,200.84 [ pp. 507-510 of Encl. 15]; S/N avA5TrB/Zka3H5z7dg8tw

the Defendant’s failure to pay to the Plaintiff certified payments amounting to RM8,794,676.94 which is approximately more than four (4) times the sum of the Bank Guarantee – renders the calling on the Bank Guarantee “unconscionable” and would amount to “over-securitisation”. [45] The Plaintiff argued that where there are certified payments due and owing, the courts have restrained the calling of a bank guarantee or performance bond citing in support: (i) Dunggon Jaya Sdn. Bhd. v. Aeropod Sdn. Bhd. & Anor and another appeal [2019] MLJU 392 where the Court of Appeal restrained the calling of a bank guarantee pending arbitration, inter alia, on the basis that there were certified payments of approximately RM1.8 million owing; (ii) China Construction Pearl River (M) Sdn. Bhd. v. Industrial and Commercial Bank of China (Malaysia) Sdn. Bhd. & Anor [2022] 5 AMR 664 at [34] - [40], the High Court restrained the calling of a performance bond, inter alia, on the basis that there were certified payments of approximately RM3.8 million due and owing by the beneficiary to the principal and if the performance bond is called, it would amount to an “over-securitisation”, (iii) Ssangyong Engineering & Construction Co. Ltd. v. Oxley Rising Sdn. Bhd. [2022] MLJU 888 at [48]-[50], the High Court restrained the calling of a bank guarantee pending arbitration, inter alia, on the basis that there were certified payments of approximately RM63.3 million due and owing by the beneficiary to the principal and if the performance bond is called, it would amount to an “over-securitisation”; (iv) SN Akmida Holdings Sdn. Bhd. v. Ahmad Zaki Sdn. Bhd. [2020] 4 CLJ 564 [51] - [53] where injunctive relief was allowed as there were certified payments of approximately RM15.7 million due and owing by the beneficiary to the S/N avA5TrB/Zka3H5z7dg8tw principal and if the bank guarantee is called, it would amount to an “oversecuritization” – paras [51]-[53]. [46] Added to that, it was further posited by the Plaintiff that the Plaintiff’s prolongation and/or recurring costs, due to the suspension of works (as issued by the Defendant), amounting to at least RM20,166,695.33 was not paid, the said sum is not in dispute but is only subject to certification by the Architect as made evident by the letters at pages 194 to 198 of enc. 2; if the prolongation/recurring costs of RM20,166,695.33 is added to the certified payments owing by the Defendant to the Plaintiff in the sum of RM8,794,676.94, the total sum due and owing by the Defendant to the Plaintiff would be in the region of approximately RM30 million which is a sum approximately fifteen (15) times larger than the sum of the Bank Guarantee; as such it is highly unconscionable for the Defendant to insist on calling on the Bank Guarantee pending full and final determination in arbitration, given that it already owes the Plaintiff approximately RM30 million. In this regard, I note that the Defendant made no contemporaneous protest against the prolongation claim and, had sent the Plaintiff’s claim to the architect for certification. [47] In exercising discretion with utmost care so as not to encroach onto the domain of the arbitral tribunal to whom the parties have entrusted the decision making alone on their disputes, the words of Lord Mustill sitting in the House of Lords in the case of Channel Group v. Balfour Beatty Ltd. [1993] AC 334 comes to my mind: S/N avA5TrB/Zka3H5z7dg8tw "there is always a tension when the Court is asked to order, by way of interim relief in support of an arbitration, a remedy of the same kind as will ultimately be sought from the arbitrators: between, on the other hand, the need for the court to make a tentative assessment of the merits in order to decide whether the plaintiff's claim is strong enough to merit protection, and on the other the duty of the court to respect the choice of tribunal which both parties have made, and not to take out of the hands of the arbitrators (or other decision-makers) a power of decision which the parties have entrusted to them alone. In the present instance I consider that the latter consideration must prevail. The court has stayed the action so that the panel and the arbitrators can decide whether to order a final mandatory injunction. If the court now itself orders an interlocutory mandatory in junction, there will be very little left for the arbitrators to decide." [48] I am aware that:

where an arbitration agreement exists, these matters ought to be rightfully ventilated, tried and determined by an arbitral tribunal – in accordance with the concepts of ‘party autonomy’ and ‘minimal judicial interference’ as enjoined by the Federal Court in the cases of Tindak Murni Sdn Bhd v Juang Setia Sdn Bhd and another appeal [2020] 3 MLJ 545; [2020] 4 CLJ 301 and Press Metal Sarawak Sdn Bhd v Etiqa Takaful

(ii) that contractual disputes between the parties pursuant to the underlying sub-contract in the absence of an unfair advantage or oppressive/morally reprehensible conduct of the beneficiary has been held not to be unconscionable in Ranhill S/N avA5TrB/Zka3H5z7dg8tw E&C Sdn Bhd v. Thyssenkrupp Industries (M) Sdn Bhd [2016] 6 CLJ 290; [2016] 9 MLJ 703 and Gumusut-Kakap Semi Floating Production System (L) Ltd v. Sabah Shell Company Limited (No 2) [2017] 1 LNS 945. [49] Nevertheless, I have a need to make a tentative assessment of the merits to decide if the Plaintiff’s claim is strong enough to warrant protection pursuant to s. 11 of the Act. Having considered the totality of all the facts here, I am persuaded that the Plaintiff has shown that “events or conduct are of such degree such as to prick the conscience of a reasonable and sensible man” have been made out. I have no doubt at all that the Plaintiff has placed sufficient evidence before the court so as to enable the court to be satisfied, that a case of “unconscionability” is made out, and that it is just to grant injunctive relief to keep the status quo pending the parties fighting it out at arbitration. [50] A factor I took into account in finding there is a “seriously arguable and realistic inference” of unconscionability was that the amount owed by Defendant to the Plaintiff is more than adequate to safeguard the Defendant's alleged financial exposure on the alleged defective Air Conditioning works pending the disposal of the arbitration proceedings between the parties. I have used the word “alleged" as I accept and find that there is no notice of breach sent by the Defendant as required under the sub-contract. It is for the Defendant to prove before the arbitral tribunal its allegations of defective Air Conditioning works, breach and wrongful termination of the sub-contract by the Plaintiff. To allow a call on the bank guarantee for sums which are disproportionate to the as yet unproven S/N avA5TrB/Zka3H5z7dg8tw potential losses alleged by the Defendant for defective Air Conditioning works reeks of unfairness and positively oppressive to the Plaintiff particularly when the Defendant owes the Plaintiff colossal sums that are already certified and may be used as set-off, if the Defendant’s claims are proved to be meritorious and not speculative. The Defendant will enjoy an unfair advantage if allowed to pre-maturely demand against the bank guarantee. In circumstances such as the one before me, there is unconscionability as decided in Kejuruteraan Bintai Kindenko Sdn. Bhd. supra: “[93] We all agree that performance bonds are used frequently in the construction industry as well as trade transactions locally as well as internationally. They are provided by and to parties who deal at arm's length. The court should give effect to the intention of the parties. The law in relation to performance bond should be placed on a clear and unambiguous footing so that they could be accepted by parties in Malaysia or at international level. Parties should not be allowed to take advantage of one another in making a demand or call on the performance bond particularly when they are not entitled to do so. It must be stressed that a performance bond can operate as an oppressive instrument and a demand or call by a beneficiary can sometimes be abusive. In the event that a beneficiary calls on the bond in circumstances where there is prima facie evidence of fraud or unconscionable conduct, the court should step in to intervene at the interlocutory stage to avoid further injustice to the other party. As has been expressed by the Court of Appeal in GHL Pte Ltd v. Unitrack Building Construction Pte Ltd & Anor (supra), "we agree that a beneficiary under a performance bond should be protected as to the integrity of the security he has in case of non-performance by the party on whose account the performance bond was issued, but a temporary restraining order does not prejudice or adversely affect the S/N avA5TrB/Zka3H5z7dg8tw security it merely postpones the realisation of the security until the party concerned is given an opportunity to prove his case." [51] That is not all. As pointed out by the Plaintiff, it appears that the only reasons offered by the Defendant to justify its inability to pay is: (i) due to the Employer’s delay in paying the Defendant and (ii) that the Plaintiff “remain(s) in a better fiscal position in comparison to” the Defendant. These are not acceptable reasons. That cashflow is the lifeblood to sub-contractors in the construction industry is irrefragable. [52] Added to that, it is clear to me that as the bank guarantee is a conditional guarantee, where the call can only be made if it is finally established that there is a breach of the sub-contract by the Plaintiff, it becomes obviously glaring for the invocation of s. 11 of the Act to assist the Plaintiff who had sought for protection of the court through injunctive relief pending arbitration. [53] As for the Defendant’s contention that Plaintiff is not entitled to the injunction sought because it delayed the process of arbitration, with respect, I do not agree to this assertion. Firstly, this is because it is common ground that any dispute arising between the parties is to be decided in the arbitration. Second, the court takes judicial notice that the AIAC director is already re-appointed and well ensconced in his position, and that the process of arbitration has already commenced at date of hearing of the application before this court. The injunction is only meant to preserve the status quo for the period between the grant of the injunction and the determination of the dispute by arbitration. As the court respects the choice of tribunal which the S/N avA5TrB/Zka3H5z7dg8tw parties have made, the fact that the Defendant may find arbitration too slow, or too inconvenient, is quite beside the point. [54] As for the Defendant’s fears that the bank guarantee will expire by 22.12.2023, in my respectful view, the injunction can be granted with a condition that (i) the Plaintiff do renew the bank guarantee on the same terms until the delivery of the arbitration award such that the Arbitrator will be at liberty to make such order for payment if any from the bank guarantee as he may deem fit to decide; and (ii) a copy of such renewed bank guarantee to be given to the Defendant’s solicitors 3 working days prior expiry of the same. A grant of injunctive relief with these conditions ought to allay the Defendant’s concerns of expiry of the bank guarantee. In this regard, the Plaintiff’s counsel to his credit, had agreed to apply for the AIAC fast track of the arbitration proceeding. [55] All things considered, in the circumstances of this case, to allow the Defendant to call on the bank guarantee will be oppressive, unfair to the Plaintiff, and if I may add, rubbing salt into the wound. Balance of convenience [56] The Court of Appeal in Dunggon Jaya (supra) and Petrodar Operating Co Ltd v. Nam Fatt Corporation Bhd & Anor [2012] 8 CLJ 311 held once a strong prima facie case of unconscionability has been established, the court need not concern itself with where the balance of convenience lies or whether damages will be an adequate remedy. This, in my view accords S/N avA5TrB/Zka3H5z7dg8tw with what was said by the Singapore Court of Appeal in Bocotra Construction Pte Ltd & Ors v Attorney General (No 2) [1995] 2 SLR 733, at pg. 747, 748: “The statement in Brody, White & Co Inc v Chemet Handel Trading (S) [1993] 1 SLR 65 that the balance of convenience test does not apply correctly indicates that cases involving such transactions are virtually sui generis. If the appellants’ arguments are accepted, this would mean that the court has to deal with both the equitable principle as well as the balance of convenience. To require such a ‘double-barrelled’ test would be dichotomous and illogical. In our opinion, whether there is fraud or unconscionability is the sole consideration in applications for injunctions restraining payment or calls on bonds to be granted. Once this can be established, there is no necessity to expend energies in addressing the superfluous question of ‘balance of convenience’. It does not lie in the mouth of the defendant to claim that damages would still somehow be an adequate remedy. ….. To allay these concerns, we need only note that dispensing with consideration of the balance of convenience does not make an injunction any easier to obtain. Indeed, a higher degree of strictness applies, as the applicant will be required to establish a clear case of fraud or unconscionability in interlocutory proceedings. It is clear that mere allegations are insufficient.” [57] In my respectful view, following Dunggon Jaya supra, Petrodar supra and Bocotra Construction, in considering applications for injunctions restraining call or payment of bonds or bank guarantees, the sole criteria is whether there is fraud or unconscionability. The tests of where the balance of convenience lies and whether there are serious issues to be tried and whether damages will be an adequate remedy are irrelevant in determining S/N avA5TrB/Zka3H5z7dg8tw whether to grant an injunction to restrain a call on the bank guarantee or performance bond. [58] At any rate, even if these tests are applicable, I am of the view that weighing the Defendant’s as yet unproven complaints of defective Air Conditioning works against that of the substantial payments certified to the Plaintiff, obviously the scales tip in favour of the Plaintiff. The balance of convenience lies in favour of the Plaintiff to restrain the Defendant from calling on the bank guarantee. There can be no prejudice to the Defendant as it has admitted owing mega millions unpaid to the Plaintiff; but if the injunction is not granted, the Plaintiff’s cash flow will be strangled further as it obviously will have to indemnify the bank for such payment. Besides, the pre – condition to call on the bank guarantee was not fulfilled by the Defendant. Damages in my view will not be an adequate remedy to the Plaintiff who is already put under tremendous financial strain due to the not insignificant certified sums that remain unpaid to it. [59] Finally, as the matter is heard inter partes, I do not find the suggestion of material non disclosure as posited by the Defendant to be fatal to the Plaintiff’s application. Looking at the matter from the wide-angle lens of justice, the essential justice of the case should take precedence over technical non-compliance of the Rules of Court 2012, if any. In this context, I do not intend to deviate from what I said in Aerodua Metal (M) Sdn. Bhd. v. Ibarat Hijau Sdn. Bhd [2021] MLJU 106; [2021] 1 LNS 256 :- “[42] In any case to address the non-disclosure point, the Defendant’s counsel ought to be aware that the Court of Appeal in Damayanti Kantilal S/N avA5TrB/Zka3H5z7dg8tw Doshi v. Jigarlal Kantilal Doshi [2004] 1 MLJ 456 after referring to the case of Salcon Engineering Sdn. Bhd. v. PRM Energy Systems (M) Sdn. Bhd. [1994] 1 CLJ 295 and Noor Jahan bte Abdul Wahab v. MD Yusoff bin Amanshah & Anor [1994] 1 MLJ 156 ruled that the paramount consideration was whether the justice of the case required the granting of the interim injunction on the facts presented in an inter partes hearing and the Court should not take a narrow and strict interpretation of O. 29 r. 1(2A). At p. 464, 465 , the Court of Appeal approvingly cited: “The practicality of the Bennet and Broadbent approach is that the court will not at the inter parte hearing, be encumbered with a forensic study on the question of disclosure. In some cases, such as the present, this is an onerous task involving detailed study of voluminous documents. At the end of this exercise, much time is wasted. I prefer to approach the inter parte hearing on a more pragmatic level by considering the merits of continuing the injunction on the material disclosed by both parties..” (emphasis added) [60] On the facts and circumstances of this case, the court finds that there is a “seriously arguable and realistic inference” of unconscionability to warrant the exercise of the Court’s discretion to grant the injunctive relief sought by the Plaintiff to maintain the status quo. [61] As such, prayer 1 of the OS is granted SUBJECT to the conditions that that the Plaintiff do renew the bank guarantee on the same terms until the delivery of the arbitration award. A copy of such renewed bank guarantee is to be given to the Defendant’s solicitors 3 working days prior expiry of the S/N avA5TrB/Zka3H5z7dg8tw same. The injunction granted shall automatically lapse upon failure to renew by the Plaintiff. The Defendant is to pay the Plaintiff costs of this application subject to allocator. Dated: 2nd July 2023 - sgd - ……………………….. Liza Chan Sow Keng Judge High Court of Malaya at Kuala Lumpur COUNSEL: For the Plaintiff : Edward Kuruvilla (together with him, Nereen Kaur Veriah) Messrs Atma Singh Veriah & Co. For the Defendant : Allen Cheng (together with him, Sandhya Saravanan) Messrs Azman Davidson & Co CASES REFERRED: Ranhill E&C Sdn Bhd v Thyssenkrupp Industries (M) Sdn Bhd & Anor [2016] MLJU 535; [2016] 6 CLJ 290; [2016] 9 MLJ 703 Jeks Engineering Sdn Bhd v Pali Ptp Sdn Bhd [2019] MLJU 1029 Ahmad Zaki Sdn. Bhd. v. SN Akmida Holdings Sdn. Bhd. [2021] MLJU 644 KNM Process Systems Sdn. Bhd. v. Lukoil Uzbekistan Lubricating Company LLC [2020] MLJU 85 Sumatec Engineering & Construction Sdn Bhd v Malaysian Refining Company Sdn Bhd [2012] 4 MLJ 1; [2012] 3 CLJ 401 S/N avA5TrB/Zka3H5z7dg8tw Esso Petroleum Malaysia Inc v Kago Petroleum Sdn Bhd [1995] 1 MLJ 149; [1995] 1 CLJ 283 Kejuruteraan Bintai Kindenko Sdn Bhd v Nam Fatt Construction Sdn Bhd [2011] 7 CLJ 442 China Airlines Ltd. Maltran Air Corp Sdn. Bhd. (formerly known as Maltran Air Services Corp Sdn. Bhd.) and another appeal [1996] 2 MLJ 517 Teknik Cekap Sendirian Berhad v. Public Bank Berhad [1995] 3 MLJ 449; [1995] 4 CLJ 697 Dunggon Jaya Sdn. Bhd. v. Aeropod Sdn. Bhd. & Anor and another appeal [2019] MLJU 392 China Construction Pearl River (M) Sdn. Bhd. v. Industrial and Commercial Bank of China (Malaysia) Sdn. Bhd. & Anor [2022] 5 AMR 664 Ssangyong Engineering & Construction Co. Ltd. v. Oxley Rising Sdn. Bhd. [2022] MLJU 888 SN Akmida Holdings Sdn. Bhd. v. Ahmad Zaki Sdn. Bhd. [2020] 4 CLJ 564 Channel Group v. Balfour Beatty Ltd. [1993] AC 334 Tindak Murni Sdn Bhd v Juang Setia Sdn Bhd and another appeal [2020] 3 MLJ 545; [2020] 4 CLJ 301 Press Metal Sarawak Sdn Bhd v Etiqa Takaful Berhad [2016] 9 CLJ 1; [2016] 5 MLJ 417 Gumusut-Kakap Semi Floating Production System (L) Ltd v. Sabah Shell Company Limited (No 2) [2017] 1 LNS 945 Petrodar Operating Co Ltd v. Nam Fatt Corporation Bhd & Anor [2012] 8 CLJ 311 Bocotra Construction Pte Ltd & Ors v Attorney General (No 2) [1995] 2 SLR 733 S/N avA5TrB/Zka3H5z7dg8tw Aerodua Metal (M) Sdn. Bhd. v. Ibarat Hijau Sdn. Bhd [2021] MLJU 106; [2021] 1 LNS 256 LEGISLATION/STATUTE REFERRED: Order 29 Rule 1(2A) of the Rules of Court 2012 Section 11(1)(a) and (b) of the Arbitration Act 2005 S/N avA5TrB/Zka3H5z7dg8tw