ETEC E&C (M) SDN. BHD. DINDINGS POULTRY PROCESSING SDN. BHD.

ETEC E&C (M) SDN. BHD. DINDINGS POULTRY PROCESSING SDN. BHD.

Plaintiff failed to establish a strong prima facie case of unconscionable conduct by the defendant to justify restraining a demand on the unconditional performance guarantee; the matters relied on by plaintiff are contractual disputes properly addressed by the Engineer and arbitration; accordingly the injunctions and declarations sought are dismissed and costs awarded to the defendant.

Citation
WA-24C-21-01/2020 (Mahkamah Tinggi)
Parties
PLAINTIFF: ETEC E&C (M) SDN. BHD.; DEFENDANT: DINDINGS POULTRY PROCESSING SDN. BHD.
Court
High Court
Jurisdiction
Malaysia
Judgment Date
28 August 2020
Case Number
WA-24C-21-01/2020 (Mahkamah Tinggi)
Procedural Posture
Originating Summons / Hearing on Interlocutory Applications for Injunction and Declaration; Judgment on Applications
Outcome
Both applications (encls.1 and 3) dismissed; ad interim injunction not sustained
Legal Topics
Performance Bond, Unconscionability, Extension of Time, Liquidated and Ascertained Damages, Practical Completion, Certification, Partial Possession, Termination, Adequacy of Damages, Engineer Determinations
Source Language
Malay/English
Construction Law Contract Law Bank Guarantees Arbitration Injunctions Civil Procedure Remedies Performance Bond +9 more

Case Brief

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Parties

ETEC E&C (M) SDN. BHD.

PLAINTIFF

DINDINGS POULTRY PROCESSING SDN. BHD.

DEFENDANT

Procedural Posture

Originating Summons / Hearing on Interlocutory Applications for Injunction and Declaration; Judgment on Applications

Legal Issues

  1. 1 Whether a demand on the performance guarantee would be unconscionable and should be restrained
  2. 2 Whether the plaintiff was entitled to additional extensions of time and whether liquidated and ascertained damages were wrongfully imposed
  3. 3 Whether the defendant interfered with the engineer's certification process

Ratio Decidendi

Plaintiff failed to establish a strong prima facie case of unconscionable conduct by the defendant to justify restraining a demand on the unconditional performance guarantee; the matters relied on by plaintiff are contractual disputes properly addressed by the Engineer and arbitration; accordingly the injunctions and declarations sought are dismissed and costs awarded to the defendant.

Court Disposition

Both applications (encls.1 and 3) dismissed; ad interim injunction not sustained

Orders

  • Applications in encls.1 and 3 dismissed
  • Costs awarded to Defendant in the sum of RM15,000.00