BINA PURI HOLDING BERHAD & SATU LAGI NATIONAL HOUSING AUTHORITY & DUA LAGI

BINA PURI HOLDING BERHAD & SATU LAGI NATIONAL HOUSING AUTHORITY & DUA LAGI

The application for interlocutory injunction was dismissed because the Plaintiffs failed to show serious triable issues sufficient to restrain payment: the Letters of Suretyship/Guarantee legally obliged payment, the Thai Central Administrative Court had adjudged the claim, the unconscionability test did not operate to restrain payout after adjudication, damages were an adequate remedy, and principles of comity and public policy precluded granting an anti-enforcement injunction affecting a foreign judgment; the proper forum for relief was the Thai courts.

Citation
wa-22c-82-10/2019 (Mahkamah Tinggi)
Parties
Plaintiff (first Plaintiff): BINA PURI HOLDING BERHAD; Plaintiff (second Plaintiff): BINA PURI (THAILAND) COMPANY LIMITED; Defendant (first Defendant): NATIONAL HOUSING AUTHORITY; Defendant (second Defendant): RHB BANK BERHAD; Defendant (third Defendant): EXPORT-IMPORT BANK OF MALAYSIA BERHAD
Court
High Court
Jurisdiction
Malaysia
Judgment Date
12 November 2019
Case Number
wa-22c-82-10/2019 (Mahkamah Tinggi)
Procedural Posture
Civil Injunction (interlocutory) / Interlocutory Application (inter Partes) Heard and Dismissed
Outcome
Application dismissed.
Legal Topics
Interlocutory Injunction, On Demand Bank Guarantees and Performance Bonds, Recognition and Enforcement of Foreign Judgments, Comity of Nations, Unconscionability in Performance Bonds, Abuse of Process/foreign Forum
Source Language
Malay/English
Civil Procedure Banking Law Contract Law Conflict of Laws International Commercial Law Public International/comity Interlocutory Injunction On Demand Bank Guarantees and Performance Bonds +4 more

Case Brief

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Parties

BINA PURI HOLDING BERHAD

Plaintiff (first Plaintiff)

BINA PURI (THAILAND) COMPANY LIMITED

Plaintiff (second Plaintiff)

NATIONAL HOUSING AUTHORITY

Defendant (first Defendant)

RHB BANK BERHAD

Defendant (second Defendant)

EXPORT-IMPORT BANK OF MALAYSIA BERHAD

Defendant (third Defendant)

Procedural Posture

Civil Injunction (interlocutory) / Interlocutory Application (inter Partes) Heard and Dismissed

Legal Issues

  1. 1 Whether the Second Defendant was entitled to demand and pay out under the Letters of Suretyship/Guarantee absent registration or enforcement of the Thai judgment in Malaysia
  2. 2 Whether the payout could be restrained as wrongful or unconscionable pending appeal in Thailand
  3. 3 Whether the Letters of Suretyship/Guarantee covered interest and the full sums demanded

Ratio Decidendi

The application for interlocutory injunction was dismissed because the Plaintiffs failed to show serious triable issues sufficient to restrain payment: the Letters of Suretyship/Guarantee legally obliged payment, the Thai Central Administrative Court had adjudged the claim, the unconscionability test did not operate to restrain payout after adjudication, damages were an adequate remedy, and principles of comity and public policy precluded granting an anti-enforcement injunction affecting a foreign judgment; the proper forum for relief was the Thai courts.

Court Disposition

Application dismissed.

Orders

  • Application dismissed with costs of RM10000.00 to be paid by the Plaintiffs to the Second Defendant; costs subject to 4% allocator.