The doctrine of res judicata bars relitigation of claims adjudicated in prior arbitration, and inordinate delay by the Plaintiff constituted laches, justifying the strikeout of the Civil Suit.

(Enclosure 73)

Introduction

[1] The Defendant has via its Notice of Application in encl 73 (Enclosure 73) applied for various orders in accordance with O 14 A and/or Order 33 r 5 and/or Order 18 r 19 (1)(a), (b), (c) and/or (d) of the Rules of Court 2012 on inter alia whether res judicata exists in the Civil Suit ("CS") before this Court and specifically on the following Questions of law:

1.1 Question 1

Whether the Final Award under the 1st Arbitration create any obligation on the Defendant to deliver the Equipment to the Plaintiff upon the payment of the Arbitration Sum awarded?

And if this Honorable Court answers Question 1 in the negative against the Plaintiff and in favour of the Defendant, that the following order be granted:

i. That the Plaintiff's Writ and Statement of Claim be Struct Out.

1.2 Question 2

Whether the Plaintiff is estopped of and/or waived and/or abandoned its rights to pursue this action?

1.3 Question 3

Whether the Defendant is entitled to rely on the defence of Laches under s 32 of the Limitation Act 1953 ?

1.4 Question 4

Whether the Defendant is entitled to rely on the Doctrine of Election and the Principles of Res Judicata?

1.5 Question 5

Whether this is a fit and proper case to be dismissed for want of prosecution in light of the Plaintiff's inordinate and inexcusable delay (to prosecute) which has gravely prejudiced the Defendant in the conduct of its defence?

1.6 Question 6

Whether this is a fit and proper case to be dismissed for want of prosecution in light of the Plaintiff's contumelious conduct of abusing Court process?

[2] The grounds in support of encl 73 are as follows:

a) Grounds in Support of the Application for Disposal of Case on Point of Law

i. The questions posed are suitable for determination without full trial of the action; and

ii. Such determination will finally determine or dispose of the entire cause or matter of any claim or issue in the Plaintiff's claim against the Defendant.

b) Grounds in Support of the Application to Strike out the Pleadings

i. The Plaintiff has no reasonable cause of action against the Defendant;

ii. The Plaintiff's conduct / suit is frivolous and/or vexatious to the Defendant;

iii. The Plaintiff's action / suit was intentionally filed and maintained to prejudice and embarrass the Defendant; and

iv. The Plaintiff's action / suit is an abuse of the Court process.

Brief Background

[3] The Plaintiff and MetEx had entered into a Build, Lease and Transfer Agreement dated 1 November 2010 ("the BLT Agreement").

[4] Pursuant to the BLT Agreement, the Plaintiff was to design, build, equip, test and commission facility for the production of propanediol ("PDO") for MetEx on a parcel of the Plaintiff's land held under PTD 171839, Mukim Jelutong, Daerah Johor Bharu.

[5] Pursuant to the BLT Agreement, the Plaintiff had appointed the Defendant as the main contractor under the EPCC Contract dated 21 June 2011 ("Engineering, procurement, Construction and Commissioning Contract") ["the EPCC Contract"] to carry out the engineering, procurement, construction and commissioning of a biotechnology facility to produce PDO ("the Project").

[6] In accordance to the provisions of the EPCC Contract, MetEx was appointed as the Project Manager and as the Plaintiff's representative to supervise and manage the Project.

[7] Premised upon the terms and conditions of the EPCC Contract, the Project Manager acting within its authority had on