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2021 MarsdenLR 3661
SESSIONS COURT SHAH ALAM
MODERN ASSOCIATED ENGINEERING SDN BHD – Appellant
Versus
BARTEC SERVICES & ENGINEERING SDN BHD (ENCL 10) – Respondent
[Writ Summons No: BA-B52NCC-40-03/2021]
The court dismissed the defendant's striking out application, highlighting that the contracting parties' identity and other issues require resolution through trial.
Headnote:(A) O 18 r 19 Rules of the High Court 1980 – Dismissal of claims – The court dismissed the defendant's application to strike out the plaintiff's claim on grounds of being scandalous, frivolous, and vexatious, as well as an abuse of process – The defendant represented the supply of an EHT system critical for KBC’s operations – The issue lies in whether the contract was entered into with the plaintiff or Bartec Sg – The court found that a conflict of evidence warranted a trial to discern the true contracting parties. (Paras 2, 28, 39, 45)
Facts of the case: The plaintiff contracted the defendant to supply an EHT system to KBC after successfully bidding. The defendant alleged it simply facilitated the sale, claiming the real contract was with Bartec Sg.
Findings of Court: The application to strike out was deemed inappropriate as there were triable issues regarding the contracting parties.
Issues: The main issues were whether the plaintiff’s claim constituted an abuse of process and whether the claims should be dismissed as frivolous or vexatious.
Ratio Decidendi: The court emphasized the necessity of a trial for resolving evidentiary conflicts, maintaining that a claim cannot be dismissed solely based on assertions without valid grounds. (Paras 41, 44)
Result: Defendant's application dismissed with costs.
JUDGMENT
(Enclosure 10 - Defendant's Application For Striking Out And For Stay)
Introduction
[1] This is defendant's application for striking out and for stay made pursuant to notice of application dated 3 June 2021 ("enclosure 10").
[2] Having examined the application by the defendant and considered the submissions by both parties, the court decided that the defendant's application for striking out and for stay were to be dismissed with costs.
[3] Dissatisfied with the decision by the court, the defendant filed an appeal to the High court. Following are grounds of decision in dismissing the defendant's application with costs.
Facts Of The Case
[4] Kemaman Bitumen Company Sdn Bhd ("KBC") is a company that operates a refinery at Kemaman, Terengganu that process amongst others, asphalt (or bitumen).
[5] KBC desired to acquire a new Electrical Heat Tracing ("EHT") system to be installed at its refinery to heat up and maintain the temperature of its pipes at specified temperature in order to allow bitumen to flow and not clog up pipes connecting KBC's refinery and the ships that deliver the bitumen.
[6] KBC invited bids from contractors to supply the EHT System and the plaintiff was successful in securing the bid and the contract to supply the EHT System to KBC.
[7] In tendering for the bid and in its contract with the KBC, the plaintiff has stated that it will be acquiring the Bartec's brand of EHT System from the defendant in order to fulfill KBC's requirements.
[8] One of KBC's main requirement was that the EHT system must be able to heat up and/or maintain temperature at 120 degree Celsius at the Marine Loading Arm and at 130 degree Celsius on the 800 meter 10 inch transfer line within 72 hours.
[9] The plaintiff's scope of work for the KBC's contract includes the detail engineering design, supply of materials, installation and maintenance of the entire EHT system.
[10] The defendant is a supplier of the Bartec brand of EHT system in Malaysia. The defendant represented to the plaintiff that Bartec is one of the world leaders in the manufacturing, engineering, design and contracting company of electrical heat tracing systems and that it also has the complete design, engineering and installation expertise for EHT systems
[11] The plaintiff desired to bid for and fulfill KBC's Contract by acquiring the EHT system from the defendant and has informed the defendant of the said intention.
[12] The defendant and the plaintiff agreed that the defendant will cause to be supplied to the plaintiff, the engineering and/or design documentation for the EHT System for the KBC's bid and upon securing KBC's Contract, the plaintiff will acquire the EHT System from the defendant which shall include the engineering and/or design of the EHT system and supply of materials to fulfill the requirements and specifications of KBC.
[13] The plaintiff had informed the defendant of KBC's requirements and specifications in particular the specification that the EHT System must be able to heat up and/or maintain temperature at 120 degree Celsius at the Marine Loading Arm and at 130 degree Celsius on the 800 meter 10 inch transfer line within 72 hours.
[14] Upon securing KBC's Contract and being issued KBC's letter of award dated 9 May 2017, the plaintiff proceeded to issue to and place with the defendant, purchase order dated 1 June 2017 for a total amount of USD39,000-00 to acquire the EHT System from the defendant which includes the supply of engineering and/or design for the EHT system and the supply of materials. Installation and Testing and Commissioning of the EHT System for KBC were to be handled by the plaintiff.
[15] The plaintiff had entered into the contract with the defendant for the purchase of the EHT System in reliance on the defendant's representations which amongst others were that it has the skills and technical expertise to engineer and/or design, manufacture and supply a EHT System as required by KBC and that the defendant's EHT System is abl
