The court established that a trust exists for the benefit of Qingjian regarding the garnished debt, invalidating the assignment of the debt due to procedural flaws.

JUDGMENT

(Enclosure 123)

Nadzarin Wok Nordin J:

[1] Enclosure 123 is an Appeal filed by the Third Party therein, Qingjian Holding Group (Malaysia) Sdn Bhd ("Qingjian") in Civil Appeal No: WA-37G-57-07/2020 (Appeal 57) against the decision of the learned Senior Assistant Registrar ("SAR") given on 21 December 2022 which ordered Qinjian to immediately pay HSL Ground Engineering Sdn Bhd, the Judgment Creditors ("JC") the sum of RM2,340,844.47 and costs of RM5,000.00.

[2] Enclosure 47 is another appeal filed by Qingjian under Civil Appeal No: 37G-206-09/2021 (OS 206), the Third Party therein against the decision of the learned Senior Assistant registrar ("SAR") given on 6 March 2023 under encl 26 with costs which inter alia dismissed Qinjian's application to intervene in the said OS 206 and set aside the Order Absolute dated 4 October 2022 against Triterra Metropolis Sdn Bhd ("Triterra") for the sum of RM465,727.61.

[3] Qinjian had submitted in Appeal 57 that the JC, HSL Ground Engineering Sdn Bhd ("HSL"), had wrongfully applied for the Garnishee Application against Civil Tech Resources Sdn Bhd ("CTR") the JD, on the ground that the monies owed by the 3rd Garnishee, Triterra to CTR were held on trust by Triterra on behalf of Qingjian, and as such the monies garnished by HSL belongs to Qingjian and ought not to be garnished by HSL.

[4] In the midst of the Appeal herein being heard by this Court , the Court of Appeal had on 20 May 2024 affirmed part of the High Court Order (OS 871 Order) under Originating Summons No: WA-24NCVC-871-04/2021 (OS 871) that the Consent Judgments, as stated in this Court 's grounds below, and which formed part of the issue at the Court of Appeal, were set aside but the said Appellate Court had ordered that the issue and status as to the true nature of the monies garnished herein be determined in this proceedings. Thus to surmise, the Court of Appeal had only set aside the part of the OS 871 Order pertaining to the issue that there was no assignment.

[5] For the record, Qingjian had attempted to filed in a Third Party Supplementary Submission dated 13 August 2024 together with a Supplementary Bundle of Authorities vide their solicitors Vin Cheng & Co's letter dated 13 August 2024 in both matters. These documents were objected to by the solicitors for the JC on the grounds that they were filed after this Court had heard the parties orally on 2 July 2024.

[6] I have in the circumstances decided not to refer to the aforesaid documents as it was filed without leave of this Court and after oral submissions had concluded where Qingjian through their lawyers were given ample opportunity to submit on their appeal. To allow Qingjian to rely on these newly filed documents would be prejudicial to the JC and amount to giving Qingjian a second bite at the cherry.

Background

[7] This Garnishee suit is based on 2 judgment sums (including associated allocator fees) obtained by the JC against the Main Con.

[8] The garnished debt (the "Debt") is an amount owing by Triterra to CTR under a building main contract between them.

a) The Main Contract is evidenced by a Letter of Award dated 22 May 2017 from Triterra to CTR in relation to the project known as "Site Clearance, Earthworks, Bored Pile, Contiguous Bored Pile And Basement Construction For Cadangan Pembangunan 2 Blok Bangunan Perdagangan Berstrata Yang Mengandungi I) Menara A42 Tingkat Pejabat (356 Unit)II) Menara B 30 Tingkat Pejabat (132 Unit) Di Atas 8 Tingkat Podium Tempat Letak Kereta Serta 1 Tingkat Aras Bawah Tanah Dan 2 Tingkat Besmen Letak Kereta Dan M&E Di Atas Lot 68313, Jalan Dutamas 2, Mukim Batu, Wilayah Kuala Lumpur Untuk Tetuan Triterra Metropolis Sdn Bhd (formerly known as Keystone Impetus Sdn Bhd)".

[9] The Order to Show Cause was granted on 6 August 2020 (Encl 4), and served on Triterra on 27 August 2020.

[10] After the Garnishee Show Cause Order, while the Garnishee Proceedings were ongoing and unknown to the Judgment Creditor at that time:

a) CTR ha