[2019] 1 LNS 1121 Legal Network Series

IN THE HIGH COURT IN MALAYA AT KUALA LUMPUR

IN THE FEDERAL TERRITORY, MALAYSIA

[CIVIL APPEAL NO.: WA-12AC-13-12/2018]

BETWEEN

PEMBINAAN BLT SDN BHD … APPELLANT

(Company No.: 704498-D)

AND

PORTNEKA SDN BHD … RESPONDENT

(Company No.: 375290-M)

(IN THE SESSIONS COURT AT KUALA LUMPUR

IN THE FEDERAL TERRITORY, MALAYSIA

CIVIL SUIT NO.: WA-B52C-28-07/2018)

BETWEEN

PORTNEKA SDN BHD … PLAINTIFF

(Company No.: 375290-M)

AND

1. PEMBINAAN BLT SDN BHD

(Company No.: 704498-D)
2. RIZAL MOHD PAUDZI

1
[2019] 1 LNS 1121 Legal Network Series

3. NOR KHAIRIAH ABDUL HALIM

4. MITISA HOLDINGS SDN BHD (In Liquidation)
(Company No.: 410994-M) … DEFENDANTS

GROUNDS OF JUDGMENT

INTRODUCTION

[1] This is an appeal by the Appellant, which is the 1 st Defendant in

Civil Suit No. WA-B52C-28-07/2018, against the decision of the
learned Sessions Court Judge („SCJ‟) on 12.12.2018 in allowing
the application by the Respondent/ Plaintiff for summary
judgment to be entered under O. 14 of the Rules of Court 2012
(„RoC 2012‟) for the sum of RM531,441.12 with interest at the
rate of 5% per annum from the date of judgment until full
settlement and costs of RM3,000.00.

[2] The appeal was heard on 13.5.2019 where apart from the learned
counsels for the Appellant and the Respondent, Mr. Mark Ho
and Ms. Pang Li Xuan also appeared for the 4 th Defendant
(„D4‟). The Writ and Statement of Claim („SoC‟) was filed in
the Sessions Court on 23.7.2018. D4 had applied to intervene
vide a Notice of Application dated 5.9.2018 which was allowed
by the SCJ on 20.9.2018.

[3] Although D4 did not file a Notice of Appeal against the decision
of the SCJ in the O. 14 application, according to counsels for
D4, they had participated in the oral submissions in the court
below. In view of this fact, I allowed D4‟s counsel to address
the Court in this appeal.

[4] After hearing oral submissions by learned counsels and

scrutinising the Record of Appeal („RoA‟) and written

2
[2019] 1 LNS 1121 Legal Network Series

submissions filed, this Court, on 23.5.2019, allowed the

Appellant‟s appeal with costs of RM4,000.00 to be paid to the
Respondent subject to the payment of the allocatur fee. Learned
counsel for the Appellant then verbally applied for
consequential orders that payment made under the Order of the
SCJ be returned forthwith and that the trial be heard before a
different Judge. Both consequential orders were granted by the
Court.

[5] The Respondent, being dissatisfied, has now appealed to the

Court of Appeal against the entire decision of the Court
including the consequential orders made. It is noted that the
Notice of Appeal filed by the Respondent states that costs of
RM4,000.00 ordered is for the costs at the High Court and
Sessions Court. However, the order made by this Court was
costs in respect of the appeal in the High Court only.

[6] These are my full grounds for the decision.

THE RELATED DOCUMENTS

[7] The documents which are related to this appeal are as follows:

(a) the Appellant‟s Notice of Appeal dated 20.12.2018

(Enclosure 1);

(b) RoA filed on 11.1.2019 consisting of Volume 1 (Part A)

(Enclosure 4) and Volume 2 (Part B) (Enclosure 5);

(c) the Additional RoA filed on 24.1.2019 (Enclosure 6);

(d) the Respondent‟s Written Submission (Enclosure 7) and

Bundle of Authorities („BoA‟) dated 11.2.2019;

3
[2019] 1 LNS 1121 Legal Network Series

(e) the Appellant‟s Written Submission and BoA dated

13.2.2019 (Enclosures 9 and 10, respectively);

(f) the Respondent‟s Additional Written Submission

(Enclosure 11) and Additional BoA dated 28.3.2019;

(g) D4‟s Written Submission and BoA dated 10.5.2019

(Enclosures 12 and 13, respectively); and

(h) Brief Summary of the Respondent‟s Oral Submission dated

13.5.2019 (Enclosure 14).

SALIENT BACKGROUND FACTS

[8] The Appellant was incorporated with the main purpose of

rehabilitating the construction projects of government buildings
and the leasing of these buildings. 99% of its shares are owned
by the Minister of Finance Incorporated.

[9] Pursuant to a contract dated 7.10.2009 („the Main Contract‟), the

Appellant had appointed Mitisa Holdings Sdn Bhd as the
Contractor for a project known as “Cadangan Pembangunan
Tambahan Bagi Ibu Pejabat Polis Kontinjen Kuala Lumpur (IPK
KL) Serta Komponennya Di Atas Lot PT112, Seksyen 56, Mukim
Bandar, Kuala Lumpur Untuk Tetuan Polis Diraja Malaysia ”
(Contract No.: PBLT/CON/2007/Z- 2/829) („the said Project‟).
The Main Contract is the Standard Form of Contract To Be Used
Where Bills of Quantities Form Part of The Contract, P.W.D.
Form 203A (Rev. 10/83) (Incorporating Addendum No. 1 To No.
7).

[10] By virtue of Clause 28(e) in the Main Contract, any amount of

interim or final payment due to each Nominated Sub-contractor
shall be paid by the Appellant direct to the Respondent and such

4
[2019] 1 LNS 1121 Legal Network Series

payment shall be deemed to be payment to the Contractor by the

Appellant. Under Clause 28(g) in the Main Contract, nothing in
Clause 28 nor anything else in the Main Contract shall render
the Appellant in any way liable to the Respondent.

[11] Subsequently the Contractor appointed the Respondent as one of

the Nominated Sub-contractors for the said Project under the
scope of “Cadangan Kerja-Kerja Membekal, Menghantar,
Memasang, Menguji Terima dan Mentauliah Sistem Pendingin
Hawa dan Pengudaraan Mekanikal, Sistem Pencegahan
Kebakaran, Sistem Kawalan Bangunan dan Kerja -Kerja
Berkaitan untuk Pembangunan Bangunan Tambahan Bagi Ibu
Pejabat Polis Kontinjen Kuala Lumpur (IPK KL) serta
komponennya di atas Lot PT 112, Seksyen 56, Mukim Bandar
Kuala Lumpur untuk Tetuan Polis Diraja Malaysia ’ („said Scope
of Work‟) by way of a Letter of Award dated 24.10.2009.

[12] The Contractor and the Respondent executed the Conditions of

Sub- Contract PWD 203N Rev. 10/83 following the Form To Be
Used For Nominated Sub-Contractors Where The Main Contract
Is Based Upon Form PWD. 203 or 203A on 30.10.2010 („Sub-
contract‟) together with an Addendum to the said Conditions of
Contract („Addendum‟).

[13] The whole of Clause 30 in the Sub-contract was substituted vide

Item no. 10 in the Addendum where effectively, the amount
certified as due to the Respondent in any Interim Certificate
issued by the S.O. in accordance with the relevant provisions in
the Main Contract, shall be paid by the Appellant direct to the
Respondent and nothing in Clause 30 nor anything else in the
Sub-contract shall render the Appellant in any way liable to the
Respondent.

5
[2019] 1 LNS 1121 Legal Network Series

[14] Following from the above mentioned contractual provisions, the

Appellant has since made payments directly to the Respondent.

[15] On 28.4.2014, the Contractor was ordered to be wound up by the

Kuala Lumpur High Court upon the petition of CRBC (M)
Holdings Sdn Bhd („CRBC‟).

[16] Subsequently on 26.5.2014, the Appellant terminated the

Contractor‟s employment pursuant to Clause 51(b) of the Main
Contract which provides for the determination of the
Contractor‟s employment if it has a winding up order made
against it.

[17] On 3.9.2014, the Appellant had obtained the consent of the

Official Receiver to release payments directly to the Nominated
Sub- Contractors including the Respondent.

[18] On 2.4.2015, a Consent Order was recorded in the Kuala Lumpur

High Court (Commercial Division) between CRBC and the
Contractor wherein one of the terms is that Baltasar bin Maskor
is to be appointed as the Private Liquidators for the Contractor
(„Liquidator‟). The Liquidator had affirmed an Affidavit In
Reply („AIR‟) on behalf of D4 in respect of the Respondent‟s O.
14 application in the court below.

[19] By a letter dated 29.5.2015, the Liquidator had informed the

Appellant that he has no objection for the Appellant to make
payment directly to the Nominated Sub-contractors, including
the Respondent, to ensure that the Nominated Sub-contractors
will continue to carry out the repair works to defects at the
Project site.

[20] The parties do not dispute the fact that between the period from
15.10.2010 until 8.6.2015, the Appellant had made 39 progress

6
[2019] 1 LNS 1121 Legal Network Series

payments directly to the Respondent. As such, the Respondent

contended that a total sum of RM10,389,469.55 has been paid
while on the part of the Appellant, it was pleaded in its Defence
that the amount is RM10,390,567.19.

[21] Thereafter, vide a letter dated 13.4.2017, the Liquidator

instructed the Appellant to release all outstanding payments due
from the Project including payments to all of the Nominated
Sub-contractors to the Liquidator under the name “Mitisa
Holdings Sdn Bhd (In Liquidation)”.

[22] The judgment sum of RM531,441.12 is payment for Interim

Progress Claim („IPC‟) No. 65 (Penultimate Claim) which the
Appellant had paid to D4 in accordance with the Liquidator‟s
instruction as aforesaid. The Appellant informed the Respondent
of the same in a letter dated 12.5.2017 and requested the
Respondent to liaise directly with D4 for the payment.

[23] The Respondent alleged that the Appellant‟s action in paying the
amount of RM531,441.12 to D4 is in breach of the Sub-contract.
In paragraph 13 of the SoC, the Respondent stated that the
Appellant together with its Chief Financial Officer (2 nd
Defendant) and Senior General Manager, Tender and Contract
Division (3 rd Defendant) should have complied with the express
provisions in the Sub-contract as amended by the Addendum as
regards direct payment being made to the Respondent instead of
following the instructions of the Liquidator.

[24] It is also a pleaded fact in the SoC that there is mala fide in that
the 2 nd and 3 rd Defendants had conspired and/or colluded with
the Contractor so that the payment in dispute is released to the
Liquidator instead of to the Respondent as provided under the
Sub-contract. The Appellant and the 2 nd and 3 rd Defendants
vehemently deny this accusation in their Defence.

7
[2019] 1 LNS 1121 Legal Network Series

[25] D4 raised the following in its Defence:

(a) that the Addendum cannot bind the Appellant since it was
entered into by the Contractor and the Respondent;

(b) that with the Contractor being wound up, it was no longer
the situation where the Appellant can make payment to the
Respondent directly on behalf of the Contractor;

(c) that in the absence of an express or implied trust, all

Nominated Sub-contractors, including the Respondent, are
D4‟s unsecured creditors and are entitled to such monies
which are available to be divided between the entire pool
of unsecured creditors on a pari passu basis; and

(d) that it reserves its right to make the necessary application

for a transfer of the proceedings before the winding up
court which is more suited to deal with the issues herein.

DECISION OF THE SCJ

[26] In delivering a brief judgment, the SCJ‟s justification for her

decision can be seen in these four paragraphs:

“[22] Defendan 1 mengatakan bahawa mereka tidak terikat

dengan terma-terma di perenggan 10 Addendum
tersebut. Namun begitu atas dasar apa pembayaran -
pembayaran dahulu dibuat kepada Plaintif.
Bukankah ianya mengikut apa yang diniatkan oleh
perenggan 10 Addendum itu.

[23] Defendan 1 masih membuat bayaran kepada Plaintif

walaupun selepas penggulungan Defendan 4
(Defendan 4 digulungkan pada 28.4.2014) dan

8
[2019] 1 LNS 1121 Legal Network Series

bayaran terakhir diterima Plaintif adalah pada

8.6.2015.

[24] Defendan 1 tidak boleh kini mengelak untuk membuat

bayaran atas alasan perenggan 10 Addendum itu
tidak mengikat mereka sedangkan tindakan Defendan
1 membuat bayaran terus kepada Plaintif
menunjukkan sebaliknya.

[25] Kesimpulannya setelah Mahkamah membaca

affidavit- affidavit yang difailkan dan hujjah piha k-
pihak, Mahkamah memutuskan bahawa tiada isu -isu
untuk dibicarakan yang ditimbulkan oleh Defendan -
defendan bagi menentang permohonan Plaintif disini.
isu-isu yang ditimbulkan oleh Defendan-defendan
adalah lebih bersifat satu fikiran kemudian kerana
tindakan mereka sebelum surat pelikuidasi Defendan
4 dikeluarkan adalah berlawanan dengan apa yang
Defendan 1 katakan kini iaitu perenggan 10
Addendum itu tidak mengikat mereka.”.

[27] In essence, the SCJ concluded that there are no triable issues
befitting the need for a trial because the Appellant had made
previous payments directly to the Respondent based on the
intention as reflected in paragraph 10 of the Addendum and such
payments continued even after the Contractor was wound up.
Therefore, the Appellant cannot now avoid payment on the
grounds that paragraph 10 of the Addendum does not bind the
Appellant. The SCJ took the view that the issues raised by the
Appellant and the other Defendants are an afterthought.

9
[2019] 1 LNS 1121 Legal Network Series

THE APPELLANT’S SUBMISSIONS

[28] Learned counsel for the Appellant, Mr. Wong Hok Mun
submitted that the SCJ erred in her reasoning by failing to take
into account the following facts:

(a) direct payments by the Appellant to the Respondent is not

pursuant to Clause 10 of the Addendum but is as provided
in Clause 28(e) of the Main Contract;

(b) the express provision in Clause 28(g) of the Main Contract

and Clause 10 of the Addendum that nothing in the Main
Contract and Sub-contract, respectively, shall render the
Appellant in any way liable to the Respondent; and

(c) the payments made directly to the Respondent are in

accordance with the consent and/or instructions of the
Official Receiver and then the Liquidator.

[29] It was further submitted that –

(a) the Sub-Contract and the Addendum entered between the

Main Contractor and the Defendant cannot give rise to any
privity of contract between the Appellant and the
Respondent, and thus Clause 10 of the Addendum does not
bind the Appellant;

(b) it is clear from Clause 28(e) of the Main Contract that any
payments made by the Appellant to the Respondent were
actually payments to the Main Contractor but were paid to
the Respondent pursuant to the Main Contractor‟s
instruction in the said Clause; and

(c) by reason of the lack nexus between the Appellant and the
Respondent, the Appellant cannot have any liability

10
[2019] 1 LNS 1121 Legal Network Series

whether in the manner pleaded or otherwise. Moreover, the

Appellant was acting in accordance with, not only the
instructions of the Official Receiver and the Liquidator,
but also the law, specifically section 472 and Part I of
Twelfth Schedule of the Companies Act 2016 [Act 777]
(„CA 2016‟).

THE RESPONDENT’S SUBMISSIONS

[30] On the issue of privity of contract, the Respondent‟s counsel

argued that the Sub-contract between the Contractor and the
Respondent is a tripartite agreement between the Contractor, the
Appellant and the Respondent as the Sub-contract affects the
Appellant as a party who would stand to benefit. Relying on
cases such as Pembinaan Juta Mekar Sdn Bhd v. SAP Holding
Berhad & Anor [2014] 1 LNS 314; Bond M & E (KL) Sdn Bhd v.
Isyoda (M) Sdn Bhd and Brampton Holdings Sdn Bhd (Third
Party) [2017] 1 LNS 259; and Sigma Elevator (M) Sdn Bhd v.
Isyoda (M) Sdn Bhd & Anor [2016] 10 MLJ 635, the Respondent
contended that there exists a contractual relationship between
the Appellant and the Respondent.

[31] Next, it was submitted that the Appellant had, from the
inception, made direct payments to the Respondent and these
add up to 39 times in the total sum of RM10,390,567.19. After
the Contractor was wound up, the Appellant made four direct
payments to the Respondent for IPC No. 36, 37, 38 and 39 based
on the instructions of the Official Assignee. The disputed sum is
alleged to be for IPC No. 40 for works completed by the
Respondent up to March 2017. However, the Liquidator issued
the instruction vide letter dated 13.4.2017 for payment to be
made to D4. This letter, says the Respondent, was not copied to

11
[2019] 1 LNS 1121 Legal Network Series

the Respondent, was done surreptitiously and is unconscionable

as it was designed to hijack the payment for IPC No. 40 after the
Respondent had completed the said Scope of Work.

[32] Against this background, and applying the decision of the

Federal Court in Boustead Trading (1985) Sdn. Bhd. v. Arab -
Malaysian Merchant Bank Berhad [1995] 4 CLJ 283, Mr.
Harjinder Singh Sandhu submitted that the Appellant‟s attempt
to defend the claim on the ground that it is not a party to the
Addendum must be regarded as unconscionable and inequitable
conduct and ought to operate as an estoppel against the
Appellant.

[33] The Respondent additionally contended that the issue of undue

preference does not arise since the Official Receiver was
statutorily empowered under section 486 CA 2016 to instruct
payments to be made directly to the Respondent. Such payments
do not form part of the assets of the Contractor by operation of
law. By the same token, the pari passu rule does not apply.

[34] It was finally submitted that the statutory provisions and cases
cited by the Appellant which relate to privity of contract
(Tractors Malaysia Bhd v. Kumpulan Pembinaan Malaysia Sdn.
Bhd. [1979] 1 M.L.J. 129; Joo Yee Construction Pte. Ltd. v.
Diethelm Industries Pte. Ltd. & Ors. [1990] 3 CLJ (Rep) 655;
Syarikat Ong Yoke Lin Sdn Bhd v. Giant Cash & Carry Sdn Bhd
& Ors [2000] 4 CLJ 733; Artic Building and Civil Engineering
Sdn Bhd v. Ahmad Zaki Sdn Bhd & Ors [2009] 9 MLJ 328); and
Mersing Construction & Engineering Sdn Bhd v. Kejuruteraan
Bintai Kindenko Sdn. Bhd. & 3 Ors [2010] MLJU 1686), the
undue preference principle and pari passu rule (The Annotated
Malaysian Companies Act 2016, pp 625 and 685-687, Sweet &
Maxwell Asia and Thomson Reuters) are clearly distinguishable

12
[2019] 1 LNS 1121 Legal Network Series

and inapplicable because they do not involve a scenario where

the payments were made on the instructions of a liquidator for
the benefit of a company which has been wound-up.

[35] In sum, the Respondent submitted that there was no error on the
part of the SCJ in granting summary judgment against the
Appellant since it has no defence on the merits.

D4’S SUBMISSIONS

[36] Volume 1 (Part A) RoA contain the Order by the SCJ on

20.9.2018 allowing leave to D4 to intervene in the proceedings
and to be added as a Defendant in the suit, D4‟s Defence and
D4‟s AIR affirmed by the Liquidator on 16.10.2018. On the
hearing date of this appeal, learned counsel for D4 informed the
Court that basically D4 supports the Appellant‟s appeal for
reasons as set out in the written submissions in the O. 14
application together with the authorities in the BoA.

THE LEGAL PRINCIPLES ON AN APPLICATION FOR

SUMMARY JUDGMENT

[37] O. 14, r. 1(1) RoC 2012 provides the procedure for an

application for summary judgement in these words:

“Application by plaintiff for summary judgment (O. 14, r. 1)

1. (1) Where in an action to which this rule applies a

statement of claim has been served on a defendant and that
defendant has entered an appearance in the action, the plaintiff
may, on the ground that the defendant has no defence to a claim
included in the writ, or to a particular part of such a claim, or

13
[2019] 1 LNS 1121 Legal Network Series

has no defence to such a claim or part thereof except as to the

amount of any damages claimed, apply to the Court for
judgment against that defendant.”.

[38] The law surrounding an O. 14 application is well settled with an

abundance of reported and unreported decisions written on the
applicable legal principles. In this case, the Appellant sought to
rely on the judgments in Pertubuhan Keselamatan Sosial v. Chin
Chee Kuang & Ors. [1991] 3 CLJ (Rep) 445 and Aseambankers
Malaysia Berhad & 3 Ors v. Teoh Chyn Choon & Anor [2014] 1
LNS 827 while the Respondent cited the authorities of HSBC
Bank Malaysia Bhd (Formerly Known As Hong Kong Bank
Malaysia Bhd) v. LH Timber Products Sdn Bhd (Formerly
Known As Ho Lim Sawmill Sdn Bhd) & Ors [2005] 6 MLJ 625;
Azlin bin Khalid v. Mohamad Njib Ishak and other appeals
[2017] 6 MLJ 537; Syarikat Kerjasama Serbaguna Tunas Muda
Sungai Ara v. Ghazali Bin Ibrahim [1985] 2 MLJ 225; Abdul
Rahim Abdul Hamid & Ors v. Perdana Merchant Bankers Bhd &
Ors [2000] 2 CLJ 457 and Malayan Insurance (M) Sdn Bhd v.
Asia Hotel Sdn Bhd [1987] 2 MLJ 183.

[39] Both parties alluded to the decision in Bank Negara Malaysia v.

Mohd Ismail & Ors [1992] 1 MLJ 400; [1992] 1 CLJ Rep 14 as
referred to in some of the authorities as above stated where the
Supreme Court held that the general principles for an O. 14
application are that the plaintiff has to satisfy the court that the
defendant plainly and obviously has no defence to the plaintiff‟s
claim or part of the plaintiff‟s claim. If the plaintiff is able to
satisfy the court, then summary judgment should be entered in
the plaintiff‟s favor. On the other hand, if the defendant can
show that there is a serious conflict of material facts as
disclosed in the opposing affidavits, or there is otherwise a
triable issue or there is an important and difficult point of law

14
[2019] 1 LNS 1121 Legal Network Series

requiring further and mature consideration at the trial, then

summary judgment should be refused.

[40] Basically, the only issue before the SCJ in hearing the
Respondent‟s application under O. 14 RoC 2012 is whether there
are triable issues meriting a full trial for its determination. If the
Appellant had succeeded in raising even one triable issue, it will
not be a fit case and proper case to order summary judgment. It
is only in plain and obvious cases where there are no issues to
be tried should recourse be had to the O. 14 procedure. A triable
issue is an assertion that not only has been raised and is denied
or disputed, but is one upon which there is some evidence that is
not equivocal or lacking in precision, or is not inconsistent with
undisputed contemporary documents or other statements by the
same deponent, or is not inherently improbable in itself, to
support it: see South East Asia Insurance Bhd v. Kerajaan
Malaysia [1998] 1 CLJ 1045 and Perwira Affin Merchant Bank
Bhd v. Dato’ Soh Chee Wen [1999] 1 LNS 170; [2003] 3 MLJ
555.

[41] It is notable that the SCJ did not refer to a single case, not just
concerning the legal principles surrounding an application under
O. 14 RoC 2012, but throughout her Grounds of Judgment
(„GoJ‟), even though the written submissions by the Appellant
and the Respondent were certainly not devoid of the relevant
authorities for each proposition put forth by them respectively.
It is only in the penultimate paragraph of the SCJ‟s GoJ that she
said “… Mahkamah memutuskan bahawa tiada isu-isu untuk
dibicarakan yang ditimbulkan oleh Defendan -defendan bagi
menentang permohonan Plaintif disini.”. Under the
circumstances, I am unable to make a determination as to
whether the SCJ is well appraised of the law on summary
judgment.

15
[2019] 1 LNS 1121 Legal Network Series

EVALUATION AND DECISION OF THE COURT

[42] The terms and conditions governing the relationship between the
Contractor and the Appellant is stipulated in the Main Contract
whilst that between the Appellant and the Respondent is
contained in the Sub-contract and Addendum.

[43] The relevant paragraphs under Clause 28 of the Main Contract

for the purposes of this appeal are as follows:

“28. Nominated Sub-contractors and/or Nominated

Suppliers

(e) The S.O. in issuing Interim Certificates under

Clause 47 or the Final Certificate under
Clause 48 hereof shall state separately the
amount of interim or final payment due to
each Nominated Sub-contractor or Nominated
Supplier which amount subject to Clause 28
(f) hereof, shall be paid by the Government
direct to the Nominated Sub- Contractor or
Nominated Supplier. The amount paid by the
Government direct to the Nominated Sub-
Contractor or Nominated Supplier shall be
deemed to a payment to the Contractor by the
Government under and by virtue of this
Contract.

(f) Subject to the relevant provisions in the sub -

contract (Form PWD 203N or Form PWD
203P as the case may be), the Contractor shall
be entitled to be paid and the Government may

16
[2019] 1 LNS 1121 Legal Network Series

pay to the Contractor out of any money

otherwise due to a Nominated Sub-Contractor
or Nominated Supplier:-

(i) any amount which the Government or

the S.O. on its behalf in exercise of any
right under this Contract has deducted
from monies due to the Contractor and
such deduction is in respect of some act
or default solely of the Nominated Sub-
contractor or Nominated Supplier, his
servants or agents;

(ii) any amount agreed by the Nominated

Sub-contractor or Nominated Supplier as
due to the Contractor, or any amount
awarded in arbitration or litigation in
favour of the Contractor which arises
out of or under the sub-contract; and

(iii) the amount of any claim for loss and/or

expense actually incurred by the
Contractor by reason of any breach or
failure to observe the provisions of the
sub-contract by the Nominated Sub-
contractor or Nominated Supplier.

Any amount paid to the Contractor in accordance

with this Clause shall be deemed to be a payment to
the Nominated Sub-contractor or Nominated
Supplier under the sub-contract.

(g) Nothing in this Clause nor anything else

contained in this Contract shall render the

17
[2019] 1 LNS 1121 Legal Network Series

Government in any way liable to any

Nominated Sub-Contractor or Nominated
Supplier.”.

[44] The pertinent provision in the Sub-contract is Clause 30, which

by virtue of Item No. 10 in the Addendum, reads as follows:

“PAYMENT TO NOMINATED SUB-CONTRACTOR

Subject to Clause 33 hereof, the amount certified as due to

the Nominated Sub-Contractor in any Interim Certificate
Issued by the S.O. In accordance with the relevant
provisions In the Main Contract shall within the period for
honouring payment certificates stipulated in the Main
Contract be paid by the Government direct to the
Nominated Sub-Contractor. Nothing in this Clause nor
anything else contained in this Sub-contract shall render
the Government In any way liable to the Nomina ted Sub-
Contractor.”.

[45] Apart from the contractual terms, there are four key
correspondence in the RoA Volume 2 (Part B). The first is the
letter dated 3.9.2014 from the Insolvency Department, Federal
Territory Branch, Kuala Lumpur to the Appellant in reply to the
Appellant‟s letter dated 10.7.2014 which states, inter alia, as
follows:

“…

2. Untuk makluman tuan, pihak Pegawai Penerima

tidak ada bantahan terhadap permohonan tuan untuk
membuat pembayaran terus kepada subkontraktor yang
dilantik (NSC) dengan syarat semua jumlah yang
sepatutnya dibayar kepada syarikat Mitisa Holdings Sdn

18
[2019] 1 LNS 1121 Legal Network Series

Bhd sepertimana jumlah Profit & Attendance (P&A) di

dalam kontrak diantara subkontraktor yang dilantik (NSC)
dan Mitisa Holdings Sdn Bhd dibayar kepada Pegawai
Penerima sebagai Pelikuidasi dalam masa 14 hari dari
tarikh penerimaan surat, dalam bentuk bank deraf atas
nama Ketua Pengarah Insolvensi (KPI).

…”.

[46] The second letter is dated 29.5.2015 from D4 to the Appellant

where reference was made to the meeting held at the Appellant‟s
office on 21.5.2015 and to the Appellant‟s letter dated 25.5.2015
and it goes on to state that –

“We have noted the following companies are the nominated

subcontractors (“NSC”) which are involved in various
scope of works for the Project:-

Company Scope of Work

1. Portneka Sdn Bhd Mechanical Services 2. …

3. …

4. …

We have noted that all payments to the NSC shall be paid

directly by your office to the respective NSCs. In ensuring
that they will continue to carry out the repair works to
defects at the Project site, we have no objection to
payment made directly to them by your office.

…”.

[47] The third letter is dated 13.4.2017 from D4 to the Appellant

which reads -

19
[2019] 1 LNS 1121 Legal Network Series

“Reference is made to the meeting with your Encik Shahill

Ishak and Mr Bradley See from our office on 10 April 2017
with regards to the above.

We herewith instruct that all outstanding payments due

from the Project including payments to ALL of the
nominated subcontractors should be paid to us under the
name “Mitisa Holdings Sdn Bhd (In Liquidation)”.

Your adherence to the above is highly appreciated.

Please do not hesitate to contact our office should you

require further clarification.”.

[48] The fourth letter is dated 12.5.2017 where the Appellant

informed the Respondent the following:

“…

We wish to inform that our consultant has recommended

payment for IPC No. 65 (Penultimate Claim) which
includes payment to your company amounting to
RM531,441.12.

We wish to notify that we have receive the instruction

letter issued by the Boardroom Advisory Sdn Bhd (Mitisa’s
Liquidator) dated 13 April 2017, all outstanding payment
due from the project including payment to all nominated
subcontractors should be paid to Mitisa Holdings Sdn.
Bhd. (In Liquidation).

As such you are requested to liaise directly to Mitisa’s

Liquidator for the payment.

…”.

20
[2019] 1 LNS 1121 Legal Network Series

[49] Besides the above quoted correspondence, D4 had written to the

Respondent on 3.11.2017 in response to the Respondent‟s letter
dated 23.10.2017 to advise the following:

“…

Having examined through the contract documents provided

by your goodself and various discussions with our
solicitor, please be informed that we have no objection to
your request of direct payment from as the owner of the
Project, Pembinaan BLT Sdn Bhd.

However, please be advised that we were guided by our

solicitor that the principle of Pari-Passu applies for all
the amount received by us into liquidation account of
MITISA. Therefore, distribution to any single or group of
unsecured creditors from the account shall not be in
priority over the other unsecured creditors.

Your right as Nominated Sub-Contractor (“NSC”) is only

limited to the making of request to the owner of the Project
for direct payment. If no such request is made or the
request is denied by the owner of the Project, you are in
the same position as the non-NSC, therefore, in a
liquidation scenario, is merely an unsecured creditor.

…”.

[50] From the GoJ, the SCJ appears to have concluded that there are
no triable issues in the suit due to the past conduct of the
Appellant in making payments directly to the Respondent even
after the Contractor had been wound-up. There is no express
statement in the GoJ to the effect that the SCJ has made a
positive finding of an estoppel by convention within the

21
[2019] 1 LNS 1121 Legal Network Series

meaning as expounded by the Federal Court in Boustead Trading

(supra). The closest hint would again be in the penultimate
paragraph in the SCJ‟s GoJ where she says that “… tindakan
mereka sebelum surat pelikuidasi Defendan 4 dikeluarkan
adalah berlawanan dengan apa yang Defendan 1 katakan kini
iaitu perenggan 10 Addendum itu tidak mengikat mereka.”.

[51] Now, there is no doubt whatsoever that the Main Contract was
made between the Contractor and the Appellant, and the Sub-
contract and the Addendum were made between the Appellant
and the Respondent. There is equally no doubt that the Main
Contract and the Sub-contract are in the P.W.D. Form 203A
(Rev. 10/83) and Form 203N (Rev. 10/83), respectively. The
direct payment scheme utilising these standard forms are
explained by the learned authors Datuk Sundra Rajoo and Ir
Harbans Singh KS in “Construction Law in Malaysia”, Sweet &
Maxwell Asia, 2012 at p 292 as follows:

“The direct payment scheme is employed predominantly in

public sector contracts using the JKR 203N (Rev1/2010)
and JKR 203P (Rev1/2010) Forms for main contract works
employing the JKR 203 and 203A (Rev1/2010) Forms of
Conditions of Contract. The employer has no implied
right to pay the subcontractor direct (see JA Milestone &
Sons Ltd (in liquidation) v. Yates Castle Brewery Ltd
[1938] 2 All ER 439).

Direct payment can only be effected with the express

agreement of the main contractor, this being realised
pursuant to an express term in the main contract (see
clause 61.0 of the JKR Form 203 & 203A (Rev1/2010); the
said payment being generally restricted to only nominated
subcontractors.

22
[2019] 1 LNS 1121 Legal Network Series

Under the said scheme, although the amount due to the

subcontractor is included in the Interim and/or Final
Certificate to the main contractor, such payment is not
made by the employer to the latter but direct to the
subcontractor concerned; the main contractor being paid
only the relevant profit and attendance. It is said the
primary purpose for the adoption of the said scheme is for
the reduction of the risk to the employer and the
subcontractor concerned in regard to the main
contractor’s failure in making the relevant payments.

However, in the process, this may create a number of

problems of its own for the employer. Notwithstanding the
incorporation of any express disclaimer clauses in the
main contract and/or the subcontract, by paying the
subcontractor direct it may reinforce an implied
collateral contract between the employer a nd the
subcontractor and/or give rise to the creation of proximity
akin to Junior Books Ltd v. Veitchi Co Ltd [1982] 21 BLR
66 not discounting, in addition, the breach of the relevant
insolvency laws in situations where either party is
insolvent (see Joo Yee Construction Pte Ltd v. Diethelm
Industries Pte Ltd & Ors [1990] 2 MLJ 66).

…”.

[emphasis added]

[52] The above excerpt from the textbook lends support to the
Appellant‟s submission that the provision which allows direct
payment to be made by the Appellant to the Respondent is in
fact Clause 28(e) of the Main Contract. When such payments are
made, they shall be deemed to be payments to the Contractor by
the Appellant under and by virtue of the Main Contract.

23
[2019] 1 LNS 1121 Legal Network Series

[53] Clause 30 in the Sub-contract, as wholly substituted vide Item

No. 10 in the Addendum, reflects the agreed arrangement where
it involves Nominated Sub-contractors such as the Respondent,
in relation to the amounts certified as due to the Respondent in
any Interim Certificate issued by the S.O. in accordance with the
relevant provisions in the Main Contract, whereby direct
payments by the Appellant to the Respondent are equally
permissible.

[54] In this respect, to echo the judgment of LP Thean J in Joo Yee

Construction Pte. Ltd. [1990] 3 CLJ (Rep) 655 at p 665, “The
main contract was made between the Government and the
plaintiff. All the work to be carried out and materials and goods
to be supplied under the main contract were to be carried out
and supplied by the plaintiff or caused and procured to be done
by it, and, correspondingly, all moneys to be paid for such
works done and materials and goods supplied were and are
payable to the plaintiff under the main contract. Any payment of
such moneys to persons other than the plaintiff, can on ly be
made with the consent or on the authority of the plaintiff, and
Clause 20(e) of the main contract operates as an authority from
the plaintiff to the Government to effect such payment direct to
the nominated sub-contractors.”.

[55] Therefore, Clause 28(e) of the Main Contract evinces the

express agreement of the Contractor to the direct payment
scheme. Clause 30 in the Sub-contract as substituted vide Item
no. 10 in the Addendum is to complete the direct payment
arrangement as between the Contractor and the Respondent as
one of the Nominated Sub-contractors. Although there is no
privity of contract between the Appellant and the Respondent,
there may well be an implied collateral contract as opined by the
learned textbook writers.

24
[2019] 1 LNS 1121 Legal Network Series

[56] I pause here to note that this Court does recognise that there
exists a difference in the wordings of Clause 28(e) of the Main
Contract with Clause 20(e) in Joo Yee Construction Pte. Ltd.
where the latter –

(a) contains a clear statement that there is no privity of

contract in any way between the Government and the
nominated sub- contractors; and

(b) the Government is under no obligation to make any

payment at all to any of the nominated sub-contractors
though it may elect to do so if it so wishes.

For better appreciation of the distinction between the drafting of

the contractual terms, Clause 20(e) in Joo Yee‟s case is set out
in full below:

“Before any such certificate is issued to the contractor he

shall if requested by the superintending officer furnish to
him reasonable proof that all nominated sub-contractors’
accounts included in previous certificates have been duly
discharged; in default whereof the Government may pay
the same upon a certificate of the superintending officer
and deduct the amount thereof from any sums due to the
contractor. Upon a certificate of the superintending
officer, direct payments may also be made by the
Government to the nominated sub-contractors, if a
petition has been presented to the Court to wind up or to
make bankrupt the contractor, or a receiver has been
appointed to manage the affairs of the contractor, and
the amount so paid shall be deducted from any sums due
to the contractor. The exercise of this power shall not
create privity of contract as between Government and the
nominated sub-contractor.”.

25
[2019] 1 LNS 1121 Legal Network Series

[emphasis added]

[57] In Joo Yee‟s case, the plaintiff, Joo Yee Construction Company
Pte. Ltd. was wound-up pursuant to a court order on 10.2.1989.
Prior to that, on 12.9.1989, the plaintiff entered into a building
contract with the Government of Singapore for the construction
of a Blood Transfusion Services/ Department of Scientific
Services Complex at the General Hospital, Singapore.
International Development and Consultancy Corporation Pte.
Ltd. (“Indeco”) was appointed by the Government as the agent
for the purpose of administering the main contract, and is the
superintending officer as defined in the main contract. The 1 st to
4 th defendants are the nominated sub-contractors for the
development.

[58] The liquidators of the plaintiff applied by way of Originating

Summons for a determination of the question as to whether upon
the true construction of Clause 20(e) of the main contract, any
direct payment made pursuant to the said provision by the
Government (through the Ministry of Health) to the four
defendants would, having regard to the winding up order being
made against the plaintiff, be in contravention of section 329 of
the Companies Act (Cap. 50). However, LP Thean J opined that
the true issue, which was conceded by counsel for all the
parties, is whether any direct payment to be made by the
Government to the nominated sub-contractors pursuant to Clause
20(e) of the main contract contravenes the combined operation
of subsections 280(1) on “Settlement of list of contributories
and application of assets” and 327(2) on “Proof of debts” of the
Companies Act. The equivalent provisions in the Malaysian
legislation are subsections 244(1) and 291(2) of the Companies
Act 1965 [Act 125] („CA 1965‟) and subsection 489(1) CA 2016

26
[2019] 1 LNS 1121 Legal Network Series

(see too, Part IV, Division 2, Subdivision 2 CA 2016 on “Proof

and Ranking of Claims”).

[59] His Lordship then undertook an extensive review of cases from

across the globe, namely England, Australia and South Africa
i.e. In re Wilkinson ex parte Fowler [1905] 2 KB 713; Re Tout
and Finch, Ltd. [1954] 1 All ER 127; Re C.G. Monkhouse Pty.
Ltd. (in liquidation) and The Companies Act [1968] 88 WN (Pt.
2) (N.S.W.) 238; British Eagle International Airlines Ltd. v.
Compagnie Nationale Air France [1975] 2 All ER 390; and
Administrator, Natal v. Magill, Grant & Nell (Pty.) (In
Liquidation) [1969] 1 SALA 660. The courts in these cases were
confronted with the same issue in dealing with the terms and
conditions in the respective building contracts, except for the
British Eagle International Airlines Ltd. case which involved a
clearing house arrangement set up by the International Air
Transport Association.

[60] Following an examination of the ratio decidendi in the aforesaid

cases, LP Thean J concluded that “… if the Government elects to
make payment under Clause 20(e) and in consequence deduct
these amounts from moneys due or payable to the plaintiff, it in
effect is distributing to the unsecured creditors of the plaintiff
sums of money which would otherwise be paid to the plaintiff
and form part of the general assets of the plaintiff available for
distribution among all its creditors pari passu. On this analysis,
clearly the operation of such a contractual provision in the
liquidation of the plaintiff would infringe the insolvency law
providing for distribution of the insolvent’s property pari passu
among its creditors; the operation of that clause would amount
to a “contracting out” of the provision of such insolvency law.
On the authority of British Eagle such “contracting out” is
contrary to public policy and the liquidator is entitled, and

27
[2019] 1 LNS 1121 Legal Network Series

indeed is obliged, to disregard it. … If Clause 20(e) of the main

contract is invoked it would in the circumstances contravene the
combined operation of s. 280(1) and 327(2 ) of the Companies
Act; the liquidator is not bound by that clause, and consequently
any payment made thereunder to the sub- contractors is void as
against him.”.

[61] Likewise, I would say that the real issue for determination by
the SCJ in the suit is whether the four direct payments made by
the Appellant to the Respondent subsequent to the winding-up
order against the Contractor, and the direct payment for the sum
of RM531,441.12, which is currently being claimed from the
Appellant, have contravened or will contravene the CA 1965 or
CA 2016. If the answer to the poser is in the affirmative, the
previous payments made directly to the Respondent cannot
operate as an estoppel against the Appellant and the present
claim must necessarily fail.

[62] In so far as Malaysian cases on the issue, I return to pp 293-294

in the textbook “Construction Law in Malaysia” where the
learned authors said, “... As to the question whether such direct
payment following the main contractor’s default is effective in
an insolvency situation against the main contractor ’s
liquidator, the answer is unclear at the moment with
conflicting decisions of the court (see B Mullan & Sons
(Contractors) Ltd v. Ross & Anor [1995] High Court of
Northern Island, Chancery Division, and At torney General of
Singapore v. Joo Yee Construction [1993] 1 SLR 272).”.

[63] Since the publication of the said textbook, Lee Swee Seng J
(now JCA) in CT Indah Construction Sdn Bhd v. BHL Gemilang
Sdn Bhd [2018] 1 LNS 380 had occasion to consider the
question as to whether section 30 of the Construction Industry

28
[2019] 1 LNS 1121 Legal Network Series

Payment and Adjudication Act 2012 („CIPAA‟) is subject to the

rules in the winding up regime under CA 1965 or CA 2016. Joo
Yee‟s case; Attorney General of Singapore v. Joo Yee
Construction (supra); In re Wilkinson ex parte Fowler (supra);
Re Tout and Finch, Ltd (supra); British Eagle International
Airlines Ltd. (supra); and B Mullan & Sons (Contractors) Ltd v.
Ross [1996] 54 ConLR 163 (decision of the Northern Ireland
Court of Appeal) were referred to by His Lordship in the course
of the deliberations where ultimately it was held, inter alia, that
–

“[52] In the absence of a non obstante clause and in the

light of the legion of authorities that do not follow Glow
Heating Limited (supra), I would say that the provision of
section 30 of the CIPAA is subject to the rules prohibiting
preferential payment to unsecured creditors under the
insolvency regime under the Companies Act 1965 or even
the Companies Act 2016.

[112] The Malaysian Courts have followed the Northern

Ireland’s Court of Appeal’s case of B Mullan & Sons
Contractors Ltd (supra). …

[114] For completeness this is not a case where the

Plaintiff had mounted the argument that the money owing
by the Defendant to BHL Builders is trust money and so
carved out and immune from the application of the pari
passu principle and not subject to the insolvency regime.
At any rate it has not been argued that the monies were
retention sum and I doubt it would succeed even if the

29
[2019] 1 LNS 1121 Legal Network Series

argument were run. See Qimonda Malaysia Sdn Bhd (In

Liquidation) v. Sediabena Sdn Bhd & Anor [2012] 3 MLJ
422, a decision of the Court of Appeal that held that
retention sum could be trust money and the contrary Court
of Appeal case of Pembinaan Lagenda Unggul Sdn Bhd
(dalam penggulungan voluntari pemiutang-pemiutang) v.
Geohan Sdn Bhd and Another Appeal [2018] MLJU 196
which held on the facts that it is not trust money.

Pronouncement

[115] In the light of wealth of authorities from the

commonwealth on the issue of direct payment from a
principal which would not be allowed to circumvent the
pari passu principle in the prohibition against
preferential payment under the insolvency regime, I was
constrained and indeed impelled to dismiss the Plaintiff ’s
application in Enclosure 1.

[116] The Plaintiff’s prayer for a declaration of a direct

payment of the adjudicated amount under section 30 of the
CIPAA, to be made by the Defendant to the Plaintiff when
BHL Builders, the party against whom the Adjudication
Decision had been made, was already in liquidation, would
thus stand dismissed.

…”.

[emphasis added]

[64] In the case of Pembinaan Lagenda Unggul Sdn Bhd (Dalam

Penggulungan Voluntari Pemiutang-Pemiutang) v. Geohan Sdn
Bhd and Another Appeal [2018] MLJU 196; [2018] 1 LNS 172,
the Court of Appeal had analysed the legal conundrum

30
[2019] 1 LNS 1121 Legal Network Series

concerning retention monies, namely whether such monies

comprise trust monies which are available to the sub-contractors
as beneficiaries of those monies, in priority to other unsecured
creditors; and whether such monies comprise a part of the
general assets of the main contractor available to unsecured
creditors on a pari passu basis. Nallini Pathmanathan JCA (now
FCJ) in delivering the judgment of the Court concluded, inter
alia, that no trusts subsists in favour of the sub-contractors and
in the absence of such a trust, it cannot be argued that a trust
was created or implied prior to liquidation and that therefore the
sub- contractors are entitled to priority in preference to other
unsecured creditors. This, the Court held, would run awry of the
pari passu principle which is the cornerstone of insolvency law.

[65] The provisions in the CA 2016 referred to by Mr. Wong Hok

Mun are section 472 on the avoidance of dispositions of
property or certain attachment, section 527 on the priorities as
to payments of unsecured debts in a winding up and Part I of the
Twelfth Schedule on Powers of Liquidator in Winding Up by
Court. Subsection 527(2) provides that “The debts in each class
specified in subsection (1) shall rank in the order specified but
debts of the same class shall rank pari passu and shall be paid
in full, unless the property of the company is insufficient to meet
the debts, in which case the payment shall be reduced and the
rate of reduction shall be in equal proportion.”. It is this
principle of pari passu that the solicitors for D4 had apparently
rendered advice to their client as explained in the letter dated
3.11.2017 from D4 to the Respondent. In my considered view,
the Appellant has amply shown that there is an important point
of law requiring further and mature consideration at the trial and
the SCJ‟s decision in allowing summary judgment to be entered
against the Appellant is plainly wrong.

31
[2019] 1 LNS 1121 Legal Network Series

[66] Moreover, in so far as liability is concerned, both Clause 28(g)

of the Main Contract and Clause 30 in the Sub-contract read
with Item No. 10 in the Addendum unequivocally provide that
nothing in those Clauses nor anything else contained in the Main
Contract or Sub- contract shall render the Appellant in any way
liable to the Nominated Sub-Contractor, which would include
the Respondent. Unfortunately, the SCJ did not allude to these
provisions in her GoJ, specifically as to whether this term, as it
appears in the Sub-contract, is to be enforced, and if otherwise,
the reasons to justify its non-observance.

[67] In so far as the decision of the decision of the Court of Appeal

in Brightvite Sdn Bhd v. Pantai Towers Management
Corporation & Another Appeal [2018] 4 MLRA 457 which was
cited by Mr. Harjinder Singh to support his submission that the
filing of the proof of debt form against the Contractor for the
retention sum does not operate as an estoppel against recovery
of the disputed sum from the Appellant, suffice for me to say
that I agree with the Appellant‟s counsel that the said decision
can be distinguished based on its facts. The Court of Appeal
took into account, inter alia, the express provisions of
subsections 45(5) and 45(6) in the Strata Titles Act 1985 [Act
318] in pronouncing the decision whereas the factual matrix in
this suit involves a different set of factors for consideration
altogether.

[68] In the upshot, I am inclined to favor the view that appellate

intervention is necessary in this case because the SCJ failed to
consider –

(a) the legal consequences of the Contractor now being under

liquidation and the applicability of the statutory provisions
in CA 1965 or CA 2016, particularly vis-à-vis the

32
[2019] 1 LNS 1121 Legal Network Series

Liquidator‟s instruction in the letter dated 13.4.2017 and

the subsequent compliance by the Appellant;

(b) Clause 28(g) of the Main Contract and Clause 30 in the

Sub- contract as substituted by Item No. 10 in the
Addendum which clearly provides that the Appellant shall
not in any way be liable to the Nominated Sub-contractor
such as the Respondent in this case; and

(c) in light of the answers to the foregoing, whether the

Appellant is legally obligated to pay the disputed sum
directly to the Respondent.

CONCLUSION

[69] With respect, the SCJ failed to clinically examine the pleadings
and Affidavits and to analyse the legal issues raised in the
application before her. Had a more thorough enquiry been
conducted, the SCJ would have found that there is at least one
meritorious defence which had been raised by the Appellant.

[70] Based on all of the above considerations, this is not a plain and
obvious case which is suitable for summary judgment to be
recorded. Hence, the Appellant‟s appeal is allowed with an order
that a different Sessions Court Judge is to preside at the full trial
of the suit.

Dated: 15 AUGUST 2019

(ALIZA SULAIMAN)
Judicial Commissioner
High Court
Kuala Lumpur

33
[2019] 1 LNS 1121 Legal Network Series

COUNSEL:

For the appellant - Wong Hok Mun & Koh Pei Siah; M/s Azim, Tunku
Farik & Wong
Advocates & Solicitors
Unit 5-03, 5 th Floor
Wisma Badan Peguam Malaysia 2, Lebuh Pasar Besar
50050 Kuala Lumpur

For the respondent - Harjinder Singh Sandhu, Sukhwinder Singh &

Fatin Izyan Mazlan; M/s Akberdin & Co
Advocates & Solicitors No. AAG 6
Jalan Plumbum AA7/AA
Pusat Komersial Seksyen
7 40000 Shah Alam Selangor
Darul Ehsan

Case(s) referred to:

Pembinaan Juta Mekar Sdn Bhd v. SAP Holding Berhad & Anor
[2014] 1 LNS 314

Bond M & E (KL) Sdn Bhd v. Isyoda (M) Sdn Bhd and Brampton
Holdings Sdn Bhd (Third Party) [2017] 1 LNS 259

Sigma Elevator (M) Sdn Bhd v. Isyoda (M) Sdn Bhd & Anor [2016] 10
MLJ 635

Boustead Trading [1985] Sdn. Bhd. v. Arab -Malaysian Merchant Bank

Berhad [1995] 4 CLJ 283

Tractors Malaysia Bhd v. Kumpulan Pembinaan Malaysia Sdn. Bhd.

[1979] 1 M.L.J. 129

34
[2019] 1 LNS 1121 Legal Network Series

Joo Yee Construction Pte. Ltd. v. Diethelm Industries Pte. Ltd. & Ors.
[1990] 3 CLJ (Rep) 655

Syarikat Ong Yoke Lin Sdn Bhd v. Giant Cash & Carry Sdn Bhd & Ors
[2000] 4 CLJ 733

Artic Building and Civil Engineering Sdn Bhd v. Ahmad Zaki Sdn Bhd
& Ors [2009] 9 MLJ 328

Mersing Construction & Engineering Sdn Bhd v. Kejuruteraan Bintai

Kindenko Sdn. Bhd. & 3 Ors [2010] MLJU 1686

Pertubuhan Keselamatan Sosial v. Chin Chee Kuang & Ors. [1991] 3

CLJ (Rep) 445

Aseambankers Malaysia Berhad & 3 Ors v. Teoh Chyn Choon & Anor
[2014] 1 LNS 827

HSBC Bank Malaysia Bhd (Formerly Known As Hong Kong Bank

Malaysia Bhd) v. LH Timber Products Sdn Bhd (Formerly Known As
Ho Lim Sawmill Sdn Bhd) & Ors [2005] 6 MLJ 625

Azlin bin Khalid v. Mohamad Njib Ishak and other appeals [2017] 6
MLJ 537

Syarikat Kerjasama Serbaguna Tunas Muda Sungai Ara v. Ghazali

Bin Ibrahim [1985] 2 MLJ 225

Abdul Rahim Abdul Hamid & Ors v. Perdana Merchant Bankers Bhd
& Ors [2000] 2 CLJ 457

Malayan Insurance (M) Sdn Bhd v. Asia Hotel Sdn Bhd [1987] 2 MLJ
183

Bank Negara Malaysia v. Mohd Ismail & Ors [1992] 1 MLJ 400;
[1992] 1 CLJ Rep 14

35
[2019] 1 LNS 1121 Legal Network Series

South East Asia Insurance Bhd v. Kerajaan Malaysia [1998] 1 CLJ

1045

Perwira Affin Merchant Bank Bhd v. Dato' Soh Chee Wen [1999] 1
LNS 170; [2003] 3 MLJ 555

Joo Yee Construction Pte. Ltd. [1990] 3 CLJ (Rep) 655

In re Wilkinson ex parte Fowler [1905] 2 KB 713

Re Tout and Finch, Ltd. [1954] 1 All ER 127

Re C.G. Monkhouse Pty. Ltd. (in liquidation) and The Companies Act
[1968] 88 WN (Pt. 2) (N.S.W.) 238

British Eagle International Airlines Ltd. v. Compagnie Nationale Air

France [1975] 2 All ER 390

Administrator, Natal v. Magill, Grant & Nell (Pty.) (In Liquidation)

[1969] 1 SALA 660.

Attorney General of Singapore v. Joo Yee Construction [1993] 1 SLR

272

CT Indah Construction Sdn Bhd v. BHL Gemilang Sdn Bhd [2018] 1

LNS 380

B Mullan & Sons (Contractors) Ltd v. Ross [1996] 54 ConLR 163

Qimonda Malaysia Sdn Bhd (In Liquidation) v. Sediabena Sdn Bhd &
Anor [2012] 3 MLJ 422

Pembinaan Lagenda Unggul Sdn Bhd (dalam penggulungan voluntari

pemiutang-pemiutang) v. Geohan Sdn Bhd and Another Appeal [2018]
MLJU 196

36
[2019] 1 LNS 1121 Legal Network Series

Pembinaan Lagenda Unggul Sdn Bhd (Dalam Penggulungan Voluntari

Pemiutang-Pemiutang) v. Geohan Sdn Bhd and Another Appea l
[2018] MLJU 196; [2018] 1 LNS 172

Brightvite Sdn Bhd v. Pantai Towers Management Corporation &

Another Appeal [2018] 4 MLRA 457

Legislation referred to:

Companies Act 2016, ss. 472, 486, 527, Twelfth Schedule

Companies Act 1965, ss. 280(1), 327(2), 329

Construction Industry Payment and Adjudication Act 2012, s. 30

Rules of Court 2012, O. 14 r. 1(1)

37