(LAMPIRAN 44)

This is an application by the Defendant under Order 23 Rules of the High Court 1980 for security for costs to be furnished by the Plaintiff.

This matter has a somewhat checquered history, not least since it involves allegations of fraud, misrepresentation and a host of other disputes of a contentious nature, and perhaps compounded by the Plaintiff being a foreigner.

The facts as may briefly be recounted appear [2] to be that the Plaintiff is ordinarily resident outside the Court's jurisdiction. He was appointed by the Defendant to be its Project Manager for the purpose of securing the local installation contract (the contract) for the Sungai Piah Hydro-Electric Project with Bharat Heavy Electricals Ltd (BHEL) of India.

By a letter dated 17/7/1986 the Defendant confirmed in writing, its verbal agreement to pay the Plaintiff a sum of RM200,000 for his work and efforts in securing the local installation contract and it was expressly agreed that the sum of RM200,000 becomes payable to the Plaintiff either upon the formal execution of the said contract or upon the formal award of the same to Defendant by BHEL. The contract was duly awarded to the Defendant on or about 30/12/1987.

Despite repeated demands and requests for payment and the Defendant's alleged assurance to pay, the Defendant had refused to make any payment to the Plaintiff.

The Defendant's refusal to pay stemmed from [3] the Defendant's chagrin with the Plaintiff. The Defendant alleged that the Plaintiff had acted in breach of its fiduciary duty in entering into the contract, knowing that the Defendant would suffer a loss. The Defendant contended that the actual costs that would be incurred taking into account the actual duration of the project and manpower needed would be in excess of the profit to be derived by the Defendant from the said contract.

The Defendant further contended that it is an implied term of the agreement between the Plaintiff and the Defendant that the Plaintiff would not subordinate the interest of the Defendant to those of himself. By doing so, the Plaintiff was in breach of his fiduciary duty. Thus by reason of the said breach by the Plaintiff the Defendant contends that the agreement is consequently repudiated.

The application made by the Defendant for security for costs under Order 23 was filed way back in 1988. However before that could be disposed off, the Plaintiff had applied for summary judgment under Order 14. The Defendant had apparently sought for their application for security for costs to be heard [4] earlier, but this was not to be, when the SAR proceeded to hear the Plaintiff's application for summary judgment and allowed the application, but without hearing the Defendant's application for security for costs.

The Defendant's appeal on this order was dismissed by the Judge in Chambers. The security for costs was also not referred to by the Judge in Chambers.

A stay was granted and the Defendant proceeded to appeal the Judge's decision to the Federal Court. The Plaintiff meanwhile applied to the Shah Alam High Court to wind up the Defendant's company.

The Federal Court did not descend into the merits of the appeal (of Order 14) but allowed the Defendant's leave to resist the Plaintiff's claim conditional upon the claim amount being deposited.

The Plaintiff argued that the Defendant had been guilty of laches in this applcation, but this was countered by the Defendant who claimed that the delay was only 3 months (where their application for [5] security for costs filed in 1988 never got off the ground, there being other applications in between).

The Plaintiff's further contention that the Defendant appeared to be disinterested in this suit can be met by the argument that the various applications (Order 14 and the winding up) had taken up the parties' time and expense.

The Defendant placed emphasis that the original amount asked for in their application for security for costs in 1988 was RM45,000 and that thi