MALAYAN BANKING BERHAD 1. ) HO HUP CONSTRUCTION COMPANY BERHAD 2. ) SENI KENANGA SDN BHD 3. ) HJ SAID BINAAN SDN BHD

MALAYAN BANKING BERHAD 1. ) HO HUP CONSTRUCTION COMPANY BERHAD 2. ) SENI KENANGA SDN BHD 3. ) HJ SAID BINAAN SDN BHD

The Deed of Assignment and the NACI satisfied s.4(3) CLA: they constituted a written absolute assignment with express notice to the debtor, thereby transferring the legal right to the proceeds and the plaintiff’s right to sue the 1st defendant in its own name; the NACI bound the 1st defendant (and estoppel applied because of prior compliance); the evidence did not support genuine termination of the JV nor the existence of LAD and back charges sufficient to extinguish the proceeds; the Letter of Undertaking constituted an admission of debt and was binding and could not be unilaterally revoked to defeat the assignment; accordingly the plaintiff’s claim for PC 41 and PC 42 and related sums...

Citation
WA-22NCC-112-03/2019 (Mahkamah Tinggi)
Parties
Plaintiff: Malayan Banking Berhad; 1st Defendant: Ho Hup Construction Company Berhad; 2nd Defendant: Seni Kenanga Sdn Bhd; 3rd Defendant (in Liquidation): HJ Said Binaan Sdn Bhd (In Liquidation)
Court
High Court
Jurisdiction
Malaysia
Judgment Date
21 February 2024
Case Number
WA-22NCC-112-03/2019 (Mahkamah Tinggi)
Procedural Posture
Commercial Dispute — Banking/contract (assignment of Contract Proceeds) / Judgment After Full Trial
Outcome
Plaintiff's claim substantially allowed; 1st defendant's counterclaim dismissed
Legal Topics
Assignment of Debt, Notice of Assignment, Letter of Undertaking, Liquidated and Ascertained Damages (lad), Payment Certificates, Estoppel, Set Off
Source Language
Malay/English
Contract Law Banking Law Equity and Trusts Civil Procedure Company Law Assignment of Debt Notice of Assignment Letter of Undertaking +4 more

Case Brief

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Parties

Malayan Banking Berhad

Plaintiff

Ho Hup Construction Company Berhad

1st Defendant

Seni Kenanga Sdn Bhd

2nd Defendant

HJ Said Binaan Sdn Bhd (In Liquidation)

3rd Defendant (in Liquidation)

Procedural Posture

Commercial Dispute — Banking/contract (assignment of Contract Proceeds) / Judgment After Full Trial

Legal Issues

  1. 1 Whether an absolute legal assignment of the contract proceeds to the bank was created
  2. 2 Whether the 1st defendant was obliged to pay the sums under payment certificates PC 41 and PC 42 into the designated account
  3. 3 Whether the Letter of Undertaking is binding on the 1st defendant

Ratio Decidendi

The Deed of Assignment and the NACI satisfied s.4(3) CLA: they constituted a written absolute assignment with express notice to the debtor, thereby transferring the legal right to the proceeds and the plaintiff’s right to sue the 1st defendant in its own name; the NACI bound the 1st defendant (and estoppel applied because of prior compliance); the evidence did not support genuine termination of the JV nor the existence of LAD and back charges sufficient to extinguish the proceeds; the Letter of Undertaking constituted an admission of debt and was binding and could not be unilaterally revoked to defeat the assignment; accordingly the plaintiff’s claim for PC 41 and PC 42 and related sums...

Court Disposition

Plaintiff's claim substantially allowed; 1st defendant's counterclaim dismissed

Orders

  • 1. Orders that the 1st and 2nd defendants jointly and severally pay into the designated account the sum of RM4,000,486.82 under PC 41
  • 2. Orders that the 1st and 2nd defendants jointly and severally pay into the designated account the sum of RM9,500,348.16 under PC 42