STARKE MARINE SDN. BHD. 1. ) DEL SOL OFFSHORE SDN BHDUNG ENG HUAT (No. SYARIKAT : 1001796-U) 2. ) AHMAD FAIZAL BIN OTHMAN (NO.K/P : 800913-03-5431) 3. ) BAZALANUL’ AZAM BIN YUSOF (No. K/P : 750306-14-5097) 4. ) KHAIRUL ARIF BIN AHMAD KHALIL

STARKE MARINE SDN. BHD. 1. ) DEL SOL OFFSHORE SDN BHDUNG ENG HUAT (No. SYARIKAT : 1001796-U) 2. ) AHMAD FAIZAL BIN OTHMAN (NO.K/P : 800913-03-5431) 3. ) BAZALANUL’ AZAM BIN YUSOF (No. K/P : 750306-14-5097) 4. ) KHAIRUL ARIF BIN AHMAD KHALIL

The court held the 21.10.2019 letter was explicitly marked 'without prejudice' and therefore inadmissible under Section 23 Evidence Act 1950; its use in the plaintiff's supporting affidavit was scandalous and an abuse of process. Further, the plaintiff's claim for the disputed amounts arose from work outside the original scope and was subject to item 4.3 (payment only after Petronas paid), making the claim premature and subject to contractual dispute resolution. Accordingly, respondents' application to expunge the letter and related affidavit passages was allowed with costs RM5,000.

Citation
WA-22NCVC-917-12/2019 (Mahkamah Tinggi)
Parties
Appellant/plaintiff: STARKE MARINE SDN BHD; Respondent/defendant: DEL SOL OFFSHORE SDN BHD; Respondent/defendant: AHMAD FAIZAL BIN OTHMAN; Respondent/defendant: BAZALANUL' AZAM BIN YUSOF; Respondent/defendant: KHAIRUL ARIF BIN AHMAD KHALIL; Respondent/defendant: NURUL ASMAT BINTI CHE AYUB
Court
High Court
Jurisdiction
Malaysia
Judgment Date
3 March 2020
Case Number
WA-22NCVC-917-12/2019 (Mahkamah Tinggi)
Procedural Posture
Civil Appeal / Appeal From High Court Judgment (challenge to Order to Expunge Document and Strike Affidavit Paragraphs)
Outcome
Respondents' application allowed; without-prejudice letter (21.10.2019) expunged from court record; specified paragraphs of plaintiff's affidavit struck out; costs awarded to respondents.
Legal Topics
Without Prejudice Rule, Expunge Document, Abuse of Process, Contingent Payment Obligations, Dispute Resolution/clause 20
Source Language
Malay/English
Contract Law Civil Procedure Evidence Law Without Prejudice Rule Expunge Document Abuse of Process Contingent Payment Obligations Dispute Resolution/clause 20

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 3 Authorities cited 3 Party arguments 2 Amounts and remedies 5
Sign in to unlock

Parties

STARKE MARINE SDN BHD

Appellant/plaintiff

DEL SOL OFFSHORE SDN BHD

Respondent/defendant

AHMAD FAIZAL BIN OTHMAN

Respondent/defendant

BAZALANUL' AZAM BIN YUSOF

Respondent/defendant

KHAIRUL ARIF BIN AHMAD KHALIL

Respondent/defendant

NURUL ASMAT BINTI CHE AYUB

Respondent/defendant

Procedural Posture

Civil Appeal / Appeal From High Court Judgment (challenge to Order to Expunge Document and Strike Affidavit Paragraphs)

Legal Issues

  1. 1 Whether a letter marked 'without prejudice' is admissible in evidence or should be expunged from court record
  2. 2 Whether reliance on that letter in the plaintiff's affidavit constituted scandal or abuse of process
  3. 3 Whether payment obligation under the partnership agreement (item 4.3) was conditional on owner (Petronas) payment making plaintiff's claim premature

Ratio Decidendi

The court held the 21.10.2019 letter was explicitly marked 'without prejudice' and therefore inadmissible under Section 23 Evidence Act 1950; its use in the plaintiff's supporting affidavit was scandalous and an abuse of process. Further, the plaintiff's claim for the disputed amounts arose from work outside the original scope and was subject to item 4.3 (payment only after Petronas paid), making the claim premature and subject to contractual dispute resolution. Accordingly, respondents' application to expunge the letter and related affidavit passages was allowed with costs RM5,000.

Court Disposition

Respondents' application allowed; without-prejudice letter (21.10.2019) expunged from court record; specified paragraphs of plaintiff's affidavit struck out; costs awarded to respondents.

Orders

  • Letter dated 21.10.2019 (Annexure A / H-6) expunged from the court files
  • Paragraphs 12, 13 and 14(a), 14(b) and 14(d) of the Plaintiff's Supporting Affidavit struck out