MALAYAN BANKING BERHAD 1. DSE CONSTRUCTION SDN BHD 2. HO HUP CONSTRUCTION COMPANY BERHAD

MALAYAN BANKING BERHAD 1. DSE CONSTRUCTION SDN BHD 2. HO HUP CONSTRUCTION COMPANY BERHAD

The application to strike out was dismissed because the Plaintiff's pleaded case against the 2nd Defendant raised serious triable issues of fact and law (including whether the 2nd Defendant caused or procured diversion of contract proceeds and whether it breached onerous undertakings) that could not be resolved on affidavit; the claim was not obviously unsustainable or an abuse of process.

Citation
WA-22NCC-185-05/2020 (Mahkamah Tinggi)
Parties
Plaintiff: Malayan Banking Berhad; 1st Defendant: DSE Construction Sdn. Bhd.; 2nd Defendant: Ho Hup Construction Company Berhad
Court
High Court
Jurisdiction
Malaysia
Judgment Date
2 October 2020
Case Number
WA-22NCC-185-05/2020 (Mahkamah Tinggi)
Procedural Posture
Banking Facilities and Security Dispute / Interlocutory Strike Out Application Under Order 18 Rule 19(1)(b)/(d) Rules of Court 2012
Outcome
Application dismissed
Legal Topics
Letter of Undertaking, Assignment of Contract Proceeds, Striking Out for Frivolous or Vexatious Claims, Abuse of Process, Escrow Arrangements, Subcontract/payment Certificates
Source Language
Malay/English
Contract Banking and Finance Civil Procedure Security Law Letter of Undertaking Assignment of Contract Proceeds Striking Out for Frivolous or Vexatious Claims Abuse of Process +2 more

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Parties

Malayan Banking Berhad

Plaintiff

DSE Construction Sdn. Bhd.

1st Defendant

Ho Hup Construction Company Berhad

2nd Defendant

Procedural Posture

Banking Facilities and Security Dispute / Interlocutory Strike Out Application Under Order 18 Rule 19(1)(b)/(d) Rules of Court 2012

Legal Issues

  1. 1 Whether the Plaintiff's claim against the 2nd Defendant is scandalous, frivolous or vexatious or otherwise an abuse of process under Order 18 Rule 19(1)(b)/(d) ROC
  2. 2 Whether the 2nd Defendant could have caused, procured or instructed the Awarder to divert contract proceeds in breach of the Joint Letter of Undertaking and related security documents
  3. 3 Whether disputes of material fact preclude summary disposal by strike out

Ratio Decidendi

The application to strike out was dismissed because the Plaintiff's pleaded case against the 2nd Defendant raised serious triable issues of fact and law (including whether the 2nd Defendant caused or procured diversion of contract proceeds and whether it breached onerous undertakings) that could not be resolved on affidavit; the claim was not obviously unsustainable or an abuse of process.

Court Disposition

Application dismissed

Orders

  • Application dismissed
  • Costs of RM7000 to be paid by the 2nd Defendant to the Plaintiff