Introduction

There were two enclosures that came up for arguments. Enclosure 8 was on injunction while enclosure 16 was in regard to a stay pending reference to arbitration. It must be borne in mind that even if the dispute at hand was referred to arbitration, the issue of an injunction and the question of conspiracy can only be decided by the High Court in its role as the court of first instance. The parties were amenable that enclosure 8 be heard first. [2] But in my considered view both these two enclosures ought to be considered together because the facts were somewhat related to one another. But out of deference to the parties, I will deal with enclosure 8 first. I must now narrate the facts that led to the filing of these two enclosures.

Facts of the case

The plaintiff was appointed as the main contractor to build commercial offices and apartments on Lot numbers 151, 152 and 157, section 87A, Jalan Tun Razak, Kuala Lumpur which was popularly known as the "Marinara" building (hereinafter referred to as "the building"). The chairman of the first defendant - Pekeliling Triangle Sdn Bhd, is in the person of Madam Marina Yusoff and that perhaps explains the name of the building. The plaintiff was employed by the first defendant pursuant to a contract made between the first defendant and the plaintiff on March 16, 1995 (see exhibit "PK 1" of enclosure 7 at page 22 to page 28 thereof). In short, the first defendant was the employer in respect of the construction of the building under the contract. While the plaintiff was the employee of the first defendant or the contractor of the building. The second defendant - Jurubena Bertiga International Sdn Bhd, on the other hand, was the architect of the building. It must be pointed out that the third defendant, Globe [3] Security Services Sdn Bhd, was the servant or agent of the first defendant. Security guards in uniform, working for the third defendant, were deployed to enter the site of the building in order to warn the plaintiff to vacate the building. It was an intrusion - a trespass which the plaintiff was most unhappy about. Some of the security guards were armed. The material terms of the contract may, inter alia, be stated in these ways :

"(a) That the plaintiff shall finance the construction of the building and the plaintiff would only be paid by the first defendant the contract sum of RM110 million and the financing costs of RM12,770,000.00 making an aggregate of RM122,770,000.00 and such payment would be made upon the issuance of the certificate of practical completion by the second defendant.

(b) That the total sum of RM122,770,000.00 will be paid by the first defendant's banker, namely, Bank Bumiputra Malaysia Berhad, pursuant to an irrevocable bank guarantee (see exhibit "PK 2" of enclosure 7).

(c) That the second defendant shall issue the interim certificates for the purpose of certifying the value of the works executed or completed by the plaintiff.

(d) That in the event that no certificate of completion is issued, the first defendant will make payment to the plaintiff upon the basis of interim certificates issued by the second defendant.

(e) That the first defendant may terminate the contract if the plaintiff without reasonable cause wholly suspend the carrying out of the contract works before completion of the project or if the plaintiff fails to proceed regularly and diligently with the contract works or if the plaintiff refuses or persistently neglects to comply with the written notice from the second defendant requiring the plaintiff to remove the defective work or improper material or goods and that by such refusal or neglect, the contract works are materially affected."

[4]

It must be pointed out that under the contract as per exhibit "PK 1" of enclosure 7 and under the irrevocable bank guarantee as per exhibit "PK 2" of enclosure 7, references were made to Chew Piau Berhad. Fortunately, in the course of their submissions, the parties agreed