1. ) BA-24C-36-05/2020 SN AKMIDA HOLDINGS SDN. BHD. (Co. No.: 128700-W) 2. ) BA-24C-41-05/2020 SN AKMIDA HOLDINGS SDN. BHD. (Co. No.: 128700-W) MTD CONSTRUCTION SDN. BHD. (Co. No.: 56681-P)

IN THE HIGH COURT OF MALAYA AT SHAH ALAM IN THE STATE OF SELANGOR DARUL EHSAN, MALAYSIA ORIGINATING SUMMONS NO: BA-24C-36-05/2020 BETWEEN SN AKMIDA HOLDINGS SDN. BHD. (Co. No.: 128700-W) … PLAINTIFF AND MTD CONSTRUCTION SDN. BHD. (Co. No.: 56681-P) … DEFENDANT (HEARD TOGETHER WITH) IN THE HIGH COURT OF MALAYA AT SHAH ALAM IN THE STATE OF SELANGOR DARUL EHSAN, MALAYSIA ORIGINATING SUMMONS NO: BA-24C-41-05/2020 BETWEEN SN AKMIDA HOLDINGS SDN. BHD. (Co. No.: 128700-W) … PLAINTIFF AND MTD CONSTRUCTION SDN. BHD. (Co. No.: 56681-P) … DEFENDANT JUDGMENT (2 Originating Summonses) A. Introduction 1. In these two originating summonses (OS), the plaintiff company (Plaintiff) has applied for, among others, interim injunctions pursuant to s 11(1)(a) of the Arbitration Act 2005 (AA) to restrain the defendant company (Defendant) from making demand or from receiving proceeds under two bank guarantees issued by the Plaintiff to the Defendant (2 BG’s). The novel feature of these 2 OS is that the Plaintiff relies on the 1 enforcement of the Prevention and Control of Infectious Diseases (Measures Within Infected Local Areas) Regulations 2020 [P.U. (A) 91/2020] (PCIDR) as an event of “force majeure” to support the contention that the Defendant’s calls on the 2 BG’s (Defendant’s 2 Calls) are “unconscionable”. B. Background 2. This case concerns construction works (Works) of two “Mass Rapid Transit” stations known as “Package S208: Construction and Completion of Elevated Stations and Other Associated Works at Equine Park and Taman Putra Permai” (Project) where - (1) Mass Rapid Transit Corporation Sdn. Bhd. (MRT) is the owner and employer of the Project; (2) MMC Gamuda KVMRT (PDP SSP) Sdn. Bhd. is the Project’s “Project Delivery Partner” (PDP); (3) the Plaintiff is the “Works Package Contractor” for the Project; and (4) the Defendant is the Project’s Nominated Sub-Contractor (NSC). 3. The Project is worth RM219,700,000.00 [Value (Project)]. 4. “Form of Sub-Contract For [NSC]” dated 22.12.2017 was signed by the Plaintiff and Defendant (Sub-Contract). 5. Regarding the 2 BG’s - (1) clause 25.1 Sub-Contract has provided for the Plaintiff to provide a “Performance Bond” (PB) equivalent to 5% of the Value (Project) to the Defendant. Consequently, the Plaintiff has caused Alliance Islamic Bank Bhd. (Bank) to issue a PB dated 8.3.2018 for a sum of RM10,985,000.00 in favour of the Defendant; and 2 (2) pursuant to clause 26.1 Sub-Contract, the Plaintiff has procured an “Advance Payment Guarantee” dated 29.3.2018 from the Bank for a sum of RM7,505,000.00 in favour of the Defendant. 6. Clause 38(c) Sub-Contract [Clause 38(c)] has provided for any dispute between the Plaintiff and Defendant to be referred to arbitration. 7. The Defendant sent a letter dated 8.5.2020 to the Plaintiff [Defendant’s Letter (8.5.2020)] which terminated the Sub-Contract on the ground that the Plaintiff had breached the Sub-Contract (Termination). 8. The Defendant’s 2 Calls had been made by way of the Defendant’s letters dated 6.5.2020 and 12.5.2020 to the Bank. C. Proceedings 9. In these 2 OS, the Plaintiff has prayed for the following relief, among others: (1) an injunction to restrain the Defendant from - (a) making any call on the 2 BG’s; and (b) receiving any of the proceeds of the 2 BG’s from the Bank - until the disposal of the arbitration between the Plaintiff and Defendant regarding their dispute concerning the Sub-Contract (Arbitration); and (2) general and special damages to be paid by the Defendant to the Plaintiff (Plaintiff’s Prayer For Damages). 10. In view of the Defendant’s 2 Calls, on two certificates of urgency (certified by the Plaintiff’s learned counsel), the Plaintiff has applied for two ex parte interlocutory injunctions to restrain the Defendant from making any call on the 2 BG’s or from receiving any proceeds from the 2 BG’s until the disposal of the 2 OS (Plaintiff’s 2 Ex Parte Applications). 3 11. I granted the Plaintiff’s 2 Ex Parte Applications so as to preserve the status quo and to ensure the integrity of the 2 OS (2 Ex Parte Injunctions). The 2 Ex Parte Injunctions had been given based on an undertaking of the Plaintiff to pay damages to the Defendant for any loss which might be suffered by the Defendant due to the 2 Ex Parte Injunctions in the event the 2 OS were subsequently dismissed (Plaintiff’s Undertaking). 12. When the Defendant’s learned counsel first appeared for the hearing of the 2 OS and Plaintiff’s two inter partes applications for interlocutory injunctions (Plaintiff’s 2 Inter Partes Applications) - (1) both the Plaintiff and Defendant consented that the 2 OS should be heard and decided together by this court; and (2) premised on the Plaintiff’s Undertaking, I granted two ad interim injunctions to restrain the Plaintiff regarding the 2 BG’s pending the disposal of the 2 OS and the Plaintiff’s 2 Inter Partes Applications (2 Ad Interim Injunctions). 13. When I gave my oral decision regarding the 2 OS - (1) the Plaintiff’s 2 Inter Partes Applications have become redundant. Hence, I strike out the Plaintiff’s 2 Inter Partes Applications with no liberty to file afresh and with no order as to costs; and (2) the 2 Ad Interim Injunctions lapse. 14. I take the opportunity to state that the Plaintiff should have filed one OS in respect of the Defendant’s 2 Calls. My reasons are as follows: (1) the Defendant’s 2 Calls involve the same facts and issues to be decided by this court. Hence, one OS should have been filed with regard to the Defendant’s 2 Calls; (2) even if the Defendant’s 2 Calls concern different facts and different issues to be decided by the court, O 7 r 3(1) of the Rules of Court 2012 (RC) allows the 4 Plaintiff to file one OS which refers different questions to be answered by the court. I reproduce below O 7 r 3(1) RC - “Contents of originating summons O 7 r 3(1) Every originating summons shall include a statement of the questions on which the plaintiff seeks the determination or direction of the Court or, as the case may be, a concise statement of the relief or remedy claimed in the proceedings begun by the originating summons with sufficient particulars to identify the cause or causes of action in respect of which the plaintiff claims that relief or remedy.” (emphasis added). It is to be noted that by reason of O 1A and O 2 r 1(2) RC, in administering RC, including O 7 r 3(1) RC, the court “shall” have regard to the overriding interest of justice and not the technical non-compliance with RC; (3) precious time, effort and costs are saved if only one OS is instituted by the Plaintiff; and (4) if 2 OS are filed, there is a possibility that these 2 OS may be heard separately and such an event may further delay the disposal of the 2 OS This Suit. D. Issues 15. In these 2 OS, the court will determine the following questions: (1) whether the court can allow Plaintiff’s Prayer For Damages under s 11(1) AA; and (2) should the court exercise its discretion under s 11(1)(a) AA to grant two interim injunctions to restrain the Defendant regarding the 2 BG’s pending the disposal of the Arbitration (2 Interim Injunctions)? This issue concerns the following matters - 5 (a) does the Plaintiff have a valid and arguable case against the Defendant in respect of the Termination?; (b) whether the Defendant’s 2 Calls are “unconscionable” as follows - (i) the Plaintiff has a “seriously arguable case that the only realistic inference” is the Defendant’s 2 Calls are unconscionable; (ii) the Plaintiff has adduced a “strong prima facie case” that the Defendant’s 2 Calls are unconscionable; or (iii) the events and/or the Defendant’s conduct with regard to the Sub- Contract, Termination and Defendant’s 2 Calls are of such a degree which can “prick the conscience of a reasonable and sensible person”. In deciding the above question - (bi) can the Plaintiff rely on the enforcement of PCIDR?; and (bii) whether the Plaintiff can invoke the “force majeure” provision in clause 41 Sub-Contract (Clause 41); and (c) is the “balance of convenience” or “balance of justice” in favour of the grant of the 2 Interim Injunctions? E. Scope of court’s power under s 11(1) AA 16. Sections 8 and 11(1) AA provide as follows: “Extent of court intervention 8. No court shall intervene in matters governed by [AA] except where so provided in [AA]. Arbitration agreement and interim measures by High Court 6 11(1) A party may, before or during arbitral proceedings, apply to a High Court for any interim measure and the High Court may make the following orders for the party to - (a) maintain or restore the status quo pending the determination of the dispute; (b) take action that would prevent or refrain from taking action that is likely to cause current or imminent harm or prejudice to the arbitral process; (c) provide a means of preserving assets out of which a subsequent award may be satisfied, whether by way of arrest of property or bail or other security pursuant to the admiralty jurisdiction of the High Court; (d) preserve evidence that may be relevant and material to the resolution of the dispute; or (e) provide security for the costs of the dispute.” (emphasis added). 17. Section 8 AA provides for a “minimalist” approach by the courts (Minimalist Approach) - please refer to a judgment of the Court of Appeal by David Wong JCA (as he then was) in Capping Corp Ltd & Ors v Aquawalk Sdn Bhd & Ors [2013] 6 MLJ 579, at 588-589. In accordance with the Minimalist Approach - (1) the Plaintiff has to satisfy the court that s 11(1) AA applies in these 2 OS; and (2) the court cannot invoke O 92 r 4 RC, its inherent jurisdiction or inherent power. 18. It is decided in KNM Process Systems Sdn Bhd v Cypark Sdn Bhd [2020] 10 MLJ 321, at [30] and [31], as follows: 7 “[30] Firstly, the present s 11(1)(a) to (e) AA [Present s 11(1) AA] is worded differently from s 44 AA (UK). Hence, UK cases on s 44 AA (UK) have to be read with caution with regard to the Present s 11(1) AA. [31] Regarding the Present s 11(1) AA, I am of the following view: (1) the court had wide powers under the Previous s 11(1) AA, especially in its paragraph (h) (the court could award “an interim injunction or any other interim measure”). In contradistinction to the Previous s 11(1) AA, the court’s power to grant interim measures pursuant to the Present s 11(1) AA is confined to any one or more of its paragraphs (a) to (e). In other words, the scope of the court’s power under the Present s 11(1) AA is narrower as compared to its power pursuant to the Previous s 11(1) AA. As such, Malaysian cases decided under the Previous s 11(1) AA may not necessarily apply to the Present s 11(1) AA; (2) the use of the word “may” in the Present s 11(1) AA clearly shows that the court has a discretion to grant any interim measure under s 11(1)(a) to (e) AA. Needless to say, from the view point of the stare decisis doctrine, the court’s decision on the exercise or non-exercise of its discretion under the Present s 11(1) AA does not constitute a binding legal precedent; (3) as expressly provided in the Present s 11(1) AA, the court may grant interim measures “before or during arbitral proceedings”; (4) according to s 11(3) AA, the court may grant interim measures pursuant to the Present s 11(1) AA before or during an “international arbitration” [as understood in s 2(1)(a) to (c), s 2(2)(a)(i) and (ii) AA]; (5) the court cannot decide on the merits of the dispute between the parties under the Present s 11(1) AA because the parties have agreed in their “arbitration agreement” [as understood in 8 ss 2(1) and 9(1) to (5) AA] that all legal and factual issues which arise from their dispute shall only be decided by the “arbitral tribunal” [as defined in s 2(1) AA]. This is fortified by s 11(2) AA which provides that where a party applies to court for any interim measure after an arbitral tribunal has made a finding of fact, the court “shall” treat the factual finding as “conclusive’ for the purposes of the application under the Present s 11(1) AA. Although the court cannot decide on the merits of a dispute under the Present s 11(1) AA, in deciding an application under the Present s 11(1) AA, the court has to assess the evidence and decide the following two matters [Court’s Decision (Interim Measure)] - (a) whether an applicant for interim measure has met the requirements for seeking the interim measure as laid down in s 11(1)(a) to (e) AA; and (b) whether the court should exercise its discretion to grant the interim measure sought for. The reasons and reasoning of the Court’s Decision (Interim Measure) do not bind the arbitral tribunal in any manner. Nor are parties bound or estopped in the arbitral proceedings by the reasons and reasoning of the Court’s Decision (Interim Measure); (6) based on the words “interim measure” in the Present s 11(1) AA, the court may only grant interim measure and not permanent or final relief. This is understandable because since the arbitral tribunal is the sole arbiter of the dispute between the parties [please refer to the above sub-paragraph (5)], final relief should only be given by the arbitral tribunal in the form of a Final Award and not by the court; 9 (7) an applicant for interim measure under the Present s 11(1) AA has the legal and evidential burden to satisfy the court to exercise its discretionary power to grant any interim measure under s 11(1)(a) to (e) AA; and (8) after the court has granted any interim measure under the Present s 11(1) AA, parties may apply to court to vary or discharge the interim measure if there is a subsequent and material change of relevant circumstances (Subsequent Event). In Bumi Armada Navigation, at [47(d) and (e)], I have given examples of a Subsequent Event for the court to vary or discharge the interim measure.” (emphasis added). F. Can court grant damages under s 11(1) AA? 19. As explained in KNM Process Systems, the court has no power under s 11(1) AA to grant permanent or final relief. As agreed by the Plaintiff and Defendant in Clause 38(c), only the arbitral tribunal in the Arbitration can grant permanent or final relief (which includes damages). Accordingly, the Plaintiff’s Prayer For Damages in the 2 OS must be refused pursuant to s 11(1) AA. G. Whether court should grant interim injunction regarding BG 20. Regarding the court’s discretionary power under s 11(1) AA to grant interim injunctions regarding BG’s, I cite KNM Process Systems, at [32], as follows: “[32] I am of the following opinion regarding the question of whether a party to an arbitration agreement (X) may apply to court for an interim injunction to restrain a beneficiary of a BG (Y) from making a call on the BG or from receiving any proceeds from the BG pending the commencement and disposal of an arbitration between X and Y (Interim Injunction): 10 (1) the court has a discretion under s 11(1)(a) and/or (b) AA to grant the Interim Injunction in any one or more of the following three circumstances (3 Circumstances) - (a) the Interim Injunction is granted pursuant to s 11(1)(a) AA to “maintain” the status quo pending the disposal of the arbitration; (b) the Interim Injunction is ordered under s 11(1)(a) AA to “restore” the status quo pending the disposal of the arbitration; or (c) by reason of the second limb of s 11(1)(b) AA [Section 11(1)(b) (2nd Limb)], Y is refrained by the Interim Injunction from “taking action that is likely to cause current or imminent harm or prejudice to the arbitral process”; and (2) X has the burden to satisfy the court of the following eight matters (8 Matters) when X applies for an Interim Injunction against Y (X’s Application) - (a) X has a valid and arguable cause of action against Y (X’s Cause of Action). X is only required to show to the court a valid and arguable X’s Cause of Action because only the arbitral tribunal can finally decide on the existence of X’s Cause of Action - please see the above sub-paragraph 31(5). The Present s 11(1) AA does not expressly require a valid and arguable X’s Cause of Action as a condition for X’s Application. However, such a requirement is necessarily implied in the Present s 11(1) AA. This is because if there is no valid and arguable X’s Cause of Action, X has no right to commence arbitral proceedings against Y. In such a case, X’s Application is frivolous, vexatious and/or 11 constitutes an abuse of court process for which Y can apply to the court to strike out X’s Application; (b) the existence of one or more of the 3 Circumstances; (c) there are four possible grounds for X to challenge Y’s call on a BG (Y’s Call), namely - (i) Y’s Call is fraudulent (1st Ground); (ii) Y’s Call is unconscionable (2nd Ground); (iii) Y’s Call is contrary to the contract between X and Y (3rd Ground); and/or (iv) Y’s Call does not comply with the BG (4th Ground). If X relies on the 1st and 2nd Grounds (1st Two Grounds), X has to satisfy the court by applying one of the following two tests, namely - (ci) X has a “seriously arguable case that the only realistic inference” is Y’s Call is fraudulent or unconscionable; or (cii) X has adduced a “strong prima facie case” that Y’s Call is fraudulent or unconscionable. There is a third test if X is relying on the 2nd Ground, namely X must satisfy the court that the “events or conduct are of such degree such as to prick the conscience of a reasonable and sensible” person. The above three tests (3 Tests) have been laid down by the Federal Court in a judgment delivered by Abdull Hamid Embong FCJ in Sumatec Engineering and Construction 12 Sdn Bhd v Malaysian Refining Co Sdn Bhd [2012] 4 MLJ 1, at [33], [36] and [39], as follows - “[33] It would seem from the modern authorities we have read, that in the case of on demand letters of guarantee or performance bonds the courts are now more willing to look beyond the fraud exception and consider unconscionability as a separate and independent ground to allow for a restraining order on the beneficiary. … [36] We are also in agreement with Mohamad Ariff bin Md Yusof JC in the case of Focal Asia Sdn Bhd when he expressed this opinion on these two exceptions and the test to be applied: If there is clear evidence of fraud in the underlying contract, or unconscionability, the court can interfere. In these two situations, the integrity and autonomy of the document will not be compromised, since the paying bank will not be directly prevented from acting on the document. It is the beneficiary that is prevented from making a call on the document on these grounds. Nonetheless, the evidence allowing intervention by the court must be clear. I accept the test of 'seriously arguable that the only realistic inference is fraud' as good law in an interlocutory application such as the present. … 13 [39] We are of the considered view that the 'seriously arguable and realistic inference' test as used by the learned judicial commissioner in Focal Asia is equally applicable to the extended exception of unconscionability. That test therefore needs to be applied to the relevant material facts before the court. The same test which results in a 'strong prima facie case' was utilised by the Court of Appeal at the intermediate appeal stage. And the Court of Appeal said this of the required burden now rested on the shoulder of Sumatec: As in the case of fraud, to establish 'unconscionability' there must be placed before the court manifest or strong evidence of some degree in respect of the alleged unconscionable conduct complained of, not a bare assertion. Hence, the respondent has to satisfy the threshold of a seriously arguable case that the only realistic inference is the existence of 'unconscionability' which would basically mean establishing a strong prima facie case. In other words, the respondent has to place sufficient evidence before the court so as to enable the court to be satisfied, not necessarily beyond reasonable doubt, that a case of 'unconscionability' being committed by the beneficiary (the appellant) has been established to an 14 extent sufficient for the court to be minded to order injunction sought. This additional ground of 'unconscionability' should only be allowed with circumspect where events or conduct are of such degree such as to prick the conscience of a reasonable and sensible man. We are in agreement with those propositions.” (emphasis added). If X relies on the 3rd and 4th Grounds, X should adduce a “strong prima facie case” to support those two grounds; (d) the remedy of damages is not an adequate remedy for X; (e) the “balance of convenience” or the “balance of justice” lies in favour of the grant of the Interim Injunction; (f) X has provided an undertaking to court to pay damages to Y if the Final Award is in Y’s favour and if Y has suffered any loss due to the Interim Injunction (Undertaking). In exceptional circumstances, the court has a discretion to exempt X from furnishing the Undertaking; (g) X has complied with all the procedural requirements as laid down in O 29 r 1 RC; and (h) there is no policy or equitable consideration which militates against the grant of the Interim Injunction.” (emphasis added). 15 G(1). Does s 11(1)(a) AA apply in 2 OS? 21. I am of the view that the Plaintiff can rely on either one of the following two circumstances as stipulated in s 11(1)(a) AA: (1) the 2 Interim Injunctions may be granted under the first limb of s 11(1)(a) AA to “maintain” the status quo pending the disposal of the Arbitration (1st Limb); or (2) the 2 Interim Injunctions may be given pursuant to the second limb of s 11(1)(a) AA to “restore” the status quo pending the disposal of the Arbitration (2nd Limb) because the Defendant’s 2 Calls have already been made on the Bank. G(2). Whether Plaintiff has arguable cause of action against Defendant regarding Termination 22. One of the conditions for the court to grant the 2 Interim Injunctions is that the Plaintiff should satisfy the court that the Plaintiff has a valid and arguable cause of action with respect to the Termination - please refer to KNM Process Systems. 23. I accept the submission by the Defendant’s learned counsel that the Plaintiff has no arguable cause of action that the Termination is unlawful. On this ground alone, these 2 OS are dismissed with costs. This decision is premised on the following evidence and reasons: (1) there was a substantial delay in the Works performed by the Plaintiff (Plaintiff’s Works Delay) as evidenced by the following documents - (a) PDP’s letter dated 7.1.2020 to the Defendant [PDP’s Letter (7.1.20202)] had complained about the Plaintiff’s Works Delay. PDP’s Letter (7.1.2020) had not been exhibited in the Plaintiff’s first affidavit filed in support of the 2 OS (Plaintiff’s 1st Affidavit) but was instead exhibited in the Defendant’s affidavit which opposed the 2 OS; (b) Plaintiff’s letter dated 13.1.2020 to the Defendant [Plaintiff’s Letter (13.1.2020)] had, among others, admitted the Plaintiff’s Works Delay and proposed a “Recovery Work Program”. The Plaintiff’s 1st Affidavit did not 16 exhibit the Plaintiff’s Letter (13.1.2020) which was signed by the Plaintiff’s “Chief Operating Officer” (COO); (c) “Interim Certificate” no. 38 issued by the PDP showed that until 25.3.2020, the Plaintiff had only completed Works of a total value of RM29,388,137.56 which consisted of about 13.37% of the Value (Project); and (d) the Plaintiff prepared a “WEEKLY REPORT: WEEK 17, PERIOD ENDING: 26 APRIL 2020” which stated that there had been a delay of 182 days in respect of the Plaintiff’s Works; (2) the Plaintiff had sent a letter dated 18.12.2019 to the Defendant which stated that, among others, the Plaintiff consented to the engagement of Irama Duta Sdn. Bhd. (IDSB) to “execute all outstanding substructure works at MSPR area” on behalf of the Plaintiff [Plaintiff’s Letter (18.12.2019)]. The Plaintiff’s Letter (18.12.2019) was signed by the Plaintiff’s COO and constituted an admission that the Plaintiff could not fulfil the Sub-Contract and required IDSB to perform the Works in place of the Plaintiff; (3) the following letters from the Plaintiff to the Defendant (all signed by the Plaintiff’s COO) had requested for the Defendant to pay the Plaintiff’s “General Workers”, suppliers and sub-contractors [Payments To Plaintiff’s Creditors] - (a) Plaintiff’s Letter (13.1.2020); and (b) Plaintiff’s letters dated 12.2.2020, 17.2.2020 and 18.2.2020 to the Defendant; (4) the Payments To Plaintiff’s Creditors were supported by the Plaintiff’s own “Payment Vouchers” and the Defendant’s invoices; and (5) the following letters support the Termination - 17 (a) the Defendant’s letter dated 16.1.2020 to the Plaintiff which, among others, requested for the Plaintiff’s Works Delay to be rectified by the Plaintiff; (b) the Defendant’s letter dated 17.3.2020 to PDP which applied for PDP’s consent for the Termination; (c) PDP gave consent for the Termination in PDP’s letter dated 17.3.2020 to the Defendant; and (d) the Defendant’s Letter (8.5.2020). G(3). Are Defendant’s 2 Calls unconscionable? 24. Premised on the evidence and reasons stated in the above paragraph 23, I am of the view that the Defendant’s 2 Calls are not unconscionable as follows: (1) the Plaintiff has no “seriously arguable case that the only realistic inference” is the Defendant’s 2 Calls are unconscionable; (2) the Plaintiff has not adduced a “strong prima facie case” that the Defendant’s 2 Calls are unconscionable; and (3) the events and/or the Defendant’s conduct with regard to the Sub-Contract, Termination and Defendant’s 2 Calls are not of such a degree which can “prick the conscience of a reasonable and sensible person”. 25. The Plaintiff has attempted to rely on PCIDR as follows: (1) the enforcement of PCIDR was a reason why the Plaintiff could not perform the Works; and (2) it was unconscionable for the Defendant’s 2 Calls to be made in view of the enforcement of PCIDR and its three extensions thereafter. 26. I am not able to accept the Plaintiff’s reliance on PCIDR because the Plaintiff’s Works Delay had occurred way before the enforcement of PCIDR (18.3.2020) - please refer 18 to the documentary evidence explained in the above paragraph 23(1). Furthermore, the Plaintiff has admitted in the Plaintiff’s Letter (18.12.2019) that IDSB should be allowed by the Defendant to take over the Works from the Plaintiff. The Plaintiff’s reliance on PCIDR to support the unconscionability of the Defendant’s 2 Calls, is clearly an afterthought. 27. The Plaintiff’s learned counsel contends that the enforcement of PCIDR constitutes an “Event of Force Majeure” within the meaning of Clause 41. Hence, according to the Plaintiff’s learned counsel, it is unconscionable for the Defendant’s 2 Calls to be made when an “Event of Force Majeure” has occurred. I am not able to accede to this submission. My reasons are as follows: (1) Clause 41(a) has provided as follows - “Neither the [Plaintiff] nor the [Defendant] shall be in default of its obligations under this Sub-Contract (or any part of them), other than the payment obligations as a result of the occurrence of an Event of Force Majeure. An “Event of Force Majeure” shall mean: (i) outbreak of war, hostilities (whether declared or not), invasion, act of foreign enemies; (ii) insurrection, revolution, rebellion, military or usurped power, civil war, terrorism; (iii) ionizing radiation, or contamination by radio-activity from any nuclear fuel, or from any nuclear waste from the combustion of nuclear fuel, radio-active toxic explosion, or other hazardous properties of any explosive nuclear assembly or nuclear components thereof; (iv) pressure waves caused by aircraft or other aerial devices travelling at sonic or supersonic speeds; or 19 (v) riot, strike, commotion or disorder, unless solely restricted to employees of the [Defendant] or its personnel, servants or agents; or (vi) any operation of forces of nature, other than climatic or weather conditions of the consequences of either of them, against which a skilled, experienced and competent contractor could not have expected to have taken precaution.” (emphasis added). In my view, the enforcement of PCIDR does not constitute an “Event of Force Majeure” within the meaning of Clause 41(a)(i) to (vi); and (2) even if it is assumed that an “Event of Force Majeure” under Clause 41(a) has occurred by way of the enforcement of PCIDR, Clause 41(d) has expressly provided that the “Event of Force Majeure” shall not affect the rights and liabilities of the Plaintiff and Defendant which have accrued before the enforcement of PCIDR on 18.3.2020. As explained in the above paragraphs 23 and 26, the Plaintiff has breached the Sub-Contract before the enforcement of PCIDR. G(4). Where does balance of convenience lie? 28. According to the Supreme Court’s judgment delivered by Mohd. Jemuri Serjan CJ (Borneo) in Alor Janggus Soon Seng Trading Sdn Bhd & Ors v Sey Hoe Sdn Bhd & Ors [1995] 1 MLJ 241, at 270-271, where the balance of convenience lies depends on which proposed court order carries a lower risk of injustice. 29. I have no hesitation to find that the balance of justice lies against the grant of the 2 Interim Injunctions because - (1) if the 2 Interim Injunctions are not granted - (a) if the Plaintiff is successful at the Arbitration, a substantial sum of damages can be awarded in the Arbitration in favour of the Plaintiff against 20 the Defendant. This is because the Value (Project) is RM219,700,000.00. It is thus clear that even if the court dismisses the 2 OS, the amount of damages to be awarded in the Arbitration to the Plaintiff is an adequate remedy for the Plaintiff; and (b) the Defendant can only receive a total sum of RM18,490,000.00 (Total Guaranteed Sum) from the Bank for the 2 BG’s. The Total Guaranteed Sum which is “lost” by the Plaintiff (if the 2 OS are dismissed) can be easily recovered by the Plaintiff if the Plaintiff is successful at the Arbitration. It is clear from the above reasons that there is only a low risk of injustice to the Plaintiff if the court refuses the 2 OS; and (2) if this court has granted the 2 Interim Injunctions, such an order will carry a much higher risk of injustice to the Defendant as follows - (a) due to the Plaintiff’s Works Delay, the Defendant may be liable to MRT for a substantial amount of damages which will exceed the Total Guaranteed Sum; and (b) the Defendant’s good reputation as a reliable construction company may be irreparably damaged and this will adversely affect the Defendant’s ability to procure construction projects in the future. H. Whether Defendant’s 2 Calls had complied with Sub-Contract 30. I am satisfied that the Defendant’s 2 Calls have complied with the Sub-Contract. This is because as required by clauses 25.2(a) and 26.7 of the Sub-Contract, before the Defendant’s 2 Calls are made, the Defendant has obtained PDP’s certificate regarding the default of the Plaintiff’s obligations under the Sub-Contract. 31. During the oral submission of the 2 OS, the Defendant’s learned counsel has drawn my attention to a judgment of Lim Chong Fong J in the High Court case of SN Akmida Holdings Sdn Bhd v Ahmad Zaki Sdn Bhd [2020] 4 CLJ 564 (Ahmad 21 Zaki’s Case). I accept the contention of the Defendant’s learned counsel that Ahmad Zaki’s Case, at [42], can be easily distinguished from this case because the calls on the bank guarantees in Ahmad Zaki’s Case have not complied with the sub- contract in question (the defendant company in Ahmad Zaki’s Case had failed to obtain PDP’s certificates that the plaintiff company had breached its obligations under the sub-contract). I. Has Plaintiff discharged burden for court to exercise discretion to grant 2 Interim Injunctions? 32. As explained in the above Parts G(2) to G(4) and H, I have no hesitation to find that the Plaintiff has failed to discharge the onus to satisfy the court to exercise its discretion under the 1st and/or 2nd Limb to grant the 2 Interim Injunctions. J. Court’s decision 33. Premised on the above evidence and reasons, the following order is made: (1) the 2 OS are dismissed with costs to be paid by the Plaintiff to the Defendant; (2) the Court Registrar shall assess all loss which the Defendant has suffered arising from the 2 Ex Parte Injunctions and 2 Ad Interim Injunctions (Assessed Damages); and (3) the Plaintiff shall pay the Assessed Damages to the Defendant. 34. I end this judgment with the following remarks: (1) in deciding these 2 OS (This Decision), the court did not conduct a trial based on affidavits filed in the 2 OS. As such, no finding of fact is made by the court in This Decision; and (2) the integrity of the Arbitration is maintained at all times. The Plaintiff and Defendant are at liberty to conduct their cases at the Arbitration as they see fit without being constrained in any manner by This Decision. In other words, This 22 Decision does not trigger the application of issue estoppel doctrine to bar the Plaintiff and Defendant in the Arbitration. WONG KIAN KHEONG Judge High Court of Malaya Shah Alam, Selangor Darul Ehsan DATE: 16 NOVEMBER 2020 Counsel for Plaintiff: Encik Yusman Bin Mohd Badar & Encik Muhammad Nazmi Bin Hanafi (Messrs Chambers of Yusman Azlin Anwar) Counsel for Defendant: Mr. Kuhendran A/L Thanapalasingam, Mr. Daniel Lau Hsien Yuong Ms. Jasmeeth Kaur A/P Jaswinder Singh (Messrs Zul Rafique & Partners) 23