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2022 MarsdenLR 2431
HIGH COURT MALAYA KUALA LUMPUR
AMONA RANHILL CONSORTIUM SDN BHD & ANOR – Appellant
Versus
EXPORT IMPORT BANK OF MALAYSIA BERHAD – Respondent
[Civil Suit No: WA-22NCvC-238-04/2019]
Summary dismissal of claims requires plain and obvious cases, and factual disputes cannot be resolved without a proper hearing.
Headnote:(A) Rules of 2012 – Order 18 Rule 19 – Striking out pleadings – Application to strike out plaintiff's Statement of Claim on grounds of being frivolous and vexatious – Applicable principles examined, requiring plain and obvious cases for striking out – Court declined to dismiss as case not plain or obvious – Costs awarded to defendant. (Paras 22, 30, 31)
Facts of the case: The 1st plaintiff entered into contracts with Libyan authorities for constructing housing units and later engaged the defendant for funding. Disputes arose over the debt and control of the Sinking Fund Account.
Findings of Court: Court cannot decide on limitation without hearing parties; claims are not evident as barred by limitation. Claims against defendant's obligations also require full examination before dismissal.
Issues: Whether plaintiffs' claims are barred by limitation and whether there was any contractual obligation on the defendant's part.
Ratio Decidendi: The court concluded that it was not a case suitable for summary dismissal under O 18 r 19, emphasizing the need for a proper hearing to resolve factual disputes and evaluate the nature of the claims.
Result: Application dismissed with costs of RM3,000.00.
JUDGMENT
(Enclosure 28)
Introduction
[1] The defendant is applying, by way of encl 28, for an Order to strike out the plaintiff's Statement of Claim under O 18 r 19 of the Rules of 2012.
[2] This application is heard together with the defendant's summary judgment application under O 14 of the Rules of 2012.
Background Facts
[3] The 1st plaintiff entered into an agreement with the Department of Project Execution (Housing and Public Utilities) of Libya on 22 August 2006 to construct 40,000 housing units in Tripoli and Benghazi, Libya. On 18 December 2006, the 1st plaintiff entered into a contract ("the HFPA Contract") with the Housing and Facilities Projects Execution Authority of Libya ("HFPA") for the construction of an initial 10,000 housing units in Tajura ("the Works").
[4] In order to meet the requirements of the HFPA Contract, including but not limited to procuring the performance bond and advance payment as required under the HFPA Contract ("the Bonds") and securing the funding to perform the Works, the 1st plaintiff approached the defendant in 2006 to obtain the necessary funding facilities. As per a letter dated 23 February 2007, the defendant informed the 1st plaintiff that it had approved the LD86,130,000.00 'Line of Bond Facility'.
[5] The purpose of this facility was to procure the Bonds required under the HFPA Contract. The 1st plaintiff agreed to the terms of the letter dated 23 February 2007 by an acknowledgement on the Facility Letter.
[6] The 1st plaintiff and the defendant executed a Facility Agreement on 22 March 2007. Under the Facility Agreement, cl 2.2 specifies that the defendant will provide the Facility as a line of Bond Facility combining Performance Bonds, Advance Payment Bonds, and Warranty Bonds in the maximum amount of LD86,130,000.00.
[7] In addition to the above, a sinking fund comprising a deposit of 2.5% of each remittance of the Contract Proceeds (up to a USD equivalent to LD11.484 million being collected) was to be transferred from the Project Escrow Account (including the Advance Payments) into an account ("the Sinking Fund Account") opened with Sahara Bank, Tripoli ("Sahara Bank"). The Sinking Fund Account was to be held as security for the Facility and it has also been alleged that this account was controlled by the defendant at all material times. Under the Facility Agreement, the Sinking Fund Account credit balance is referred to as the 'Case Collateral'.
[8] The plaintiffs state that pursuant to cl 9.4 of the Deed of Assignment of the Project Escrow Account, the balance Advance Payments and the Contract Proceeds after deduction of Sinking Fund deposits shall be released to the 1st plaintiff in accordance with the project cash-flow and upon submission of the relevant supporting document to the satisfaction of the defendant.
[9] Additionally, the 1st plaintiff was required to execute the Deed of Assignment of Sinking Fund Account in accordance with cl 7.1(e) of the Facility Agreement. The Sinking Fund Assignment I was executed on 22 March 2007.
[10] The Plaintiffs state that pursuant to the aforementioned agreements and/or deeds the defendant had absolute and/or complete control of the monies payable under the HFPA Contract the 1st Plaintiff received for work done, the Retention Monies, the insurance policies as the 1st plaintiff had agreed to absolutely assign all rights and interests thereto to the defendant.
[11] By a letter dated 17 April 2007, the solicitors for the defendant issued a letter confirming that all security documentation has been completed, the search reports and approvals have been obtained and that the corporate documents and the condition precedents have been met and further that the 1st plaintiff has complied with all relevant terms and conditions as set out in the letter dated 23 February 2007 issued by the Defendant.
[12] In April 2007, the bonds required under the HFPA Contract were obtained.
[13] After the 1 st plaintiff commenced the Works accord
