A performance bond can be enforced if allegations of unconscionable conduct are not substantiated by compelling evidence.

[1] By an Ex-Parte Notice of Application (Enclosure 2), the Plaintiff, on 19 April 2019, obtained an injunction to restrain the Defendant from receiving the full sum or any part of the Performance Bond No T80717IBG1031704 in the sum of RM6,815,000.00 issued by AmBank (M) Berhad ('AmBank') on behalf of the Plaintiff in favour of the Defendant dated 9 June 2017 ('said Bond') pending the disposal of the Originating Summons ('OS'; Enclosure 1). An ad interim Order was made at the case management on 2 May 2019 to extend the injunction.

[2] Subsequently, by a Notice of Application dated 7 May 2019 (Enclosure 18), the Plaintiff applied for leave pursuant to O 20, rr 5 and 7 of the Rules of 2012 ('RoC 2012') and/ or the inherent powers of the Court to amend encls 1 and 2 by substituting for the words " Section 11 (1)(h) of the Arbitration Act 2005 ", the words " Sections 11 (1)(a) and 19J of the " in the intitulement of encls 1 and 2 and all consequential papers filed by the parties.

[3] Enclosures 1 and 18 were heard together on 30 May 2019. The Court, having considered the oral submissions by learned counsels representing both parties, and the Affidavits and written submissions filed herein, ordered that-

(a) the Plaintiff's application in encl 18 is allowed with cost of RM5,000.00 to be borne by the Plaintiff; and

(b) the Plaintiff's application in encl 1 is dismissed with cost of RM15,000.00 to be borne by the Plaintiff.

[4] The Plaintiff has since filed a Notice of Appeal against the decision in respect of encl 1. The reasons in full for the same are set out in these grounds.

The Cause Papers

[5] The relevant affidavits in relation to the OS are as follows:

(a) the Plaintiff's Affidavit in Support ('AIS') of encls 1 and 2 affirmed by Law Jing Yi, the Plaintiff's Senior Finance Manager on 19 April 2019 (Enclosure 4);

(b) the Defendant's Affidavit in Reply ('AIR') affirmed by Lam Wee Yeow, Director of Pan Logistics Investments Pte Ltd on 29 April 2019 (Enclosure 13; the said company is incorporated in Singapore and is a subsidiary of Pan Asia Logistics Investments Holdings Pte Ltd which owns the Defendant);

(c) the Plaintiff's AIR affirmed on 8 May 2019 (Enclosure 21);

(d) the Defendant's AIR II affirmed on 15 May 2019 (Enclosure 23); and

(e) the Plaintiff's AIR No 2 affirmed on 23 May 2019 (Enclosure 27).

The Defendant's Additional Affidavit affirmed on 29 May 2019 (encl 33) was withdrawn on the date of hearing.

Salient Background Facts

[6] The facts leading up to the dispute are set out in the Plaintiff's AIS in encl 4 and summarised in the Defendant's submission.

[7] The Plaintiff is in the business of construction of buildings, infrastructure and structural design; engineering and industrialised building system consultant; and trading of engineering and construction material. Meanwhile the Defendant engages in logistics and real estate property development for leasing.

[8] Pursuant to a Letter of Award dated 14 February 2017 ('LoA'), the Defendant appointed the Plaintiff as its contractor to carry out the main building works known as "Cadangan Meroboh Dan Membina Semula Perindustrian yang mengandungi:- i) 1 Unit Gudang Sesebuah 2 Tingkat Berserta Pejabat 3 Tingkat dan Tempat Letak Kereta Berbumbung Di Aras Bumbung; ii) 2 Unit Pondok Pengawal; iii) 1 Unit Pencawang Elektrik; iv) 1 Unit Kebuk Sampah; v) 1 Unit Rumah Pam dan vi) 5 Unit Pondok Rehat Di Atas Lot DW1 dan DW2 (Sebahagian PTD 2423), Jalan Tanjung A/2, Pelabuhan Tanjung Pelepas, Mukim Tanjung Kupang, Daerah Johor Bahru, Johor Darul Takzim ('said Project') for the original contract sum of RM136,300,000.00.

[9] The parties have adopted the PAM Contract 2006 (Without Quantities) standard form of contra