GAMMERLITE SDN BHD 1. ) JAMBATAN KEDUA SDN BHD 2. ) CIMB BANK BERHAD

GAMMERLITE SDN BHD 1. ) JAMBATAN KEDUA SDN BHD 2. ) CIMB BANK BERHAD

The performance bond was properly construed as an irrevocable on‑demand unconditional guarantee; the plaintiff failed to establish the high threshold of a strong prima facie case of unconscionability; the contractual provisions relied on by the plaintiff (including timing of Certificate of Completion) did not preclude D1 from validly making the written demand; consequently the demand lawfully triggered the bond and injunctive relief was refused.

Citation
WA-24C-22-02/2023 (Mahkamah Tinggi)
Parties
Plaintiff: Gammerlite Sdn Bhd; 1st Defendant: Jambatan Kedua Sdn Bhd; 2nd Defendant: CIMB Bank Berhad
Court
High Court
Jurisdiction
Malaysia
Judgment Date
5 July 2024
Case Number
WA-24C-22-02/2023 (Mahkamah Tinggi)
Procedural Posture
Originating Summons / Judgment
Outcome
Enclosure 1 and Enclosure 2 dismissed with costs; injunction discharged
Legal Topics
Performance Bond, On Demand Guarantee, Liquidated Damages, Unconscionability, Injunction, Adequacy of Damages, Adjudication Award Enforcement
Source Language
Malay/English
Construction Law Contract Law Banking and Finance Adjudication (cipaa) Equitable Remedies Performance Bond On Demand Guarantee Liquidated Damages +4 more

Case Brief

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Parties

Gammerlite Sdn Bhd

Plaintiff

Jambatan Kedua Sdn Bhd

1st Defendant

CIMB Bank Berhad

2nd Defendant

Procedural Posture

Originating Summons / Judgment

Legal Issues

  1. 1 Whether the demand on the performance bond was unlawful or unconscionable
  2. 2 Whether the performance bond was an on‑demand unconditional guarantee
  3. 3 Whether issuance of Certificate of Completion was a prerequisite to calling the bond

Ratio Decidendi

The performance bond was properly construed as an irrevocable on‑demand unconditional guarantee; the plaintiff failed to establish the high threshold of a strong prima facie case of unconscionability; the contractual provisions relied on by the plaintiff (including timing of Certificate of Completion) did not preclude D1 from validly making the written demand; consequently the demand lawfully triggered the bond and injunctive relief was refused.

Court Disposition

Enclosure 1 and Enclosure 2 dismissed with costs; injunction discharged

Orders

  • Enclosure 1 and Enclosure 2 dismissed with costs.