EVERSENDAI CONSTRUCTIONS (M) SDN. BHD. SAMSUNG C&T CORPORATION UEM CONSTRUCTION JV SDN. BHD.

EVERSENDAI CONSTRUCTIONS (M) SDN. BHD. SAMSUNG C&T CORPORATION UEM CONSTRUCTION JV SDN. BHD.

No material change of circumstances was established because HSBC confirmed it would maintain the status quo and preserve the bank guarantee monies pending final disposal of disputes despite the expiry date, the plaintiff could not practically extend the guarantee as the defendant had already called it, and there was no contractual obligation to provide further security; accordingly the injunction should not be discharged.

Citation
WA-24C-156-08/2022 (Mahkamah Tinggi)
Parties
Plaintiff: Eversendai Constructions (M) Sdn Bhd; Defendant: Samsung C&T Corporation UEM Construction JV Sdn Bhd
Court
High Court
Jurisdiction
Malaysia
Judgment Date
7 September 2023
Case Number
WA-24C-156-08/2022 (Mahkamah Tinggi)
Procedural Posture
Originating Summons / Application to Vary/discharge Injunction (liberty to Apply)
Outcome
Defendant's application dismissed
Legal Topics
Injunctions, Bank Guarantee, Performance Security, Change of Circumstances, Construction Contracts, CIPAA
Source Language
Malay/English
Civil Construction Commercial Arbitration Banking/guarantees Injunctions Bank Guarantee Performance Security +3 more

Case Brief

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Parties

Eversendai Constructions (M) Sdn Bhd

Plaintiff

Samsung C&T Corporation UEM Construction JV Sdn Bhd

Defendant

Procedural Posture

Originating Summons / Application to Vary/discharge Injunction (liberty to Apply)

Legal Issues

  1. 1 Whether there has been a material change of circumstances since the Injunction Order to justify discharge of the injunction restraining payment under the bank guarantee
  2. 2 Whether the plaintiff breached any obligation to maintain or extend the performance security and whether that affects the injunction
  3. 3 Whether the guarantor bank's position that it will maintain the status quo post‑expiry negates the need to extend the bank guarantee

Ratio Decidendi

No material change of circumstances was established because HSBC confirmed it would maintain the status quo and preserve the bank guarantee monies pending final disposal of disputes despite the expiry date, the plaintiff could not practically extend the guarantee as the defendant had already called it, and there was no contractual obligation to provide further security; accordingly the injunction should not be discharged.

Court Disposition

Defendant's application dismissed

Orders

  • Defendant's application to discharge the Injunction Order dismissed with no order as to costs
  • Defendant permitted to make a demand on the Bank Guarantee by 25.9.2023 (last day to demand)