GANDAHAN SDN. BHD. (Co. No.: 20010102139/557155-X) GIGATECH ENGINEERING SDN. BHD. (Co. No.: 200001015988/518595-T)

GANDAHAN SDN. BHD. (Co. No.: 20010102139/557155-X) GIGATECH ENGINEERING SDN. BHD. (Co. No.: 200001015988/518595-T)

Defendant failed to discharge its burden to show any triable issues across all six project claims: documentary confirmations (invoices, receipts, PPCs, signed letters) and absence of contemporaneous objections estopped the defendant; alleged back-to-back conditional payment is not a defence because clause either does not make payment conditional or is void under CIPAA s35; allegations of delay and back charges unsupported and pleaded after-action are implausible; accordingly summary judgment entered for plaintiff for the claimed sums and the defendant's counterclaim is struck out as frivolous/abuse of process.

Citation
BA-22C-25-07/2021 (Mahkamah Tinggi)
Parties
PLAINTIFF: GANDAHAN SDN. BHD.; DEFENDANT: GIGATECH ENGINEERING SDN. BHD.
Court
High Court
Jurisdiction
Malaysia
Judgment Date
23 September 2021
Case Number
BA-22C-25-07/2021 (Mahkamah Tinggi)
Procedural Posture
Civil Suit for Recovery of Contract Sums and Related Claims in Construction Sub Contract; Counterclaim for Liquidated Damages and Back Charges / Pre Trial Applications: Summary Judgment (o 14) and Strike Out of Counterclaim (o 18)
Outcome
Enc. 7 allowed — summary judgment for Plaintiff; Enc. 8 allowed — Counterclaim struck out; no stay of execution; costs to Plaintiff
Legal Topics
Summary Judgment, Strike Out, Liquidated and Ascertained Damages, Estoppel, Conditional Payment / CIPAA S35, Back to Back Payment Clause, Counterclaim as Abuse of Process, Mitigation of Loss, Contra Proferentem
Source Language
Malay/English
Contract Law Construction Law Civil Procedure Equity (estoppel) Summary Judgment Strike Out Liquidated and Ascertained Damages Estoppel +5 more

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Parties

GANDAHAN SDN. BHD.

PLAINTIFF

GIGATECH ENGINEERING SDN. BHD.

DEFENDANT

Procedural Posture

Civil Suit for Recovery of Contract Sums and Related Claims in Construction Sub Contract; Counterclaim for Liquidated Damages and Back Charges / Pre Trial Applications: Summary Judgment (o 14) and Strike Out of Counterclaim (o 18)

Legal Issues

  1. 1 Whether defendant raised any triable issues to resist plaintiff's summary judgment application for six project claims
  2. 2 Whether defendant's counterclaim for LAD and back charges disclosed a plausible triable case or was frivolous/abuse of process
  3. 3 Whether back-to-back payment clause renders defendant's payment obligation conditional and is void under CIPAA s35

Ratio Decidendi

Defendant failed to discharge its burden to show any triable issues across all six project claims: documentary confirmations (invoices, receipts, PPCs, signed letters) and absence of contemporaneous objections estopped the defendant; alleged back-to-back conditional payment is not a defence because clause either does not make payment conditional or is void under CIPAA s35; allegations of delay and back charges unsupported and pleaded after-action are implausible; accordingly summary judgment entered for plaintiff for the claimed sums and the defendant's counterclaim is struck out as frivolous/abuse of process.

Court Disposition

Enc. 7 allowed — summary judgment for Plaintiff; Enc. 8 allowed — Counterclaim struck out; no stay of execution; costs to Plaintiff

Orders

  • Summary judgment entered for Plaintiff for RM819958.06
  • Counterclaim by Defendant struck out as frivolous and an abuse of process