Mohd Noor Ahmad JCA:

[1] The case is related to the construction of commercial and apartment complex on lot numbers 151, 152 and 157, s 87A, Jalan Tun Razak Kuala Lumpur known as the "Marinara" building (the building). The proceedings in the High Court are concerned with two enclosures. Enclosure (8) is in respect of injunctions and encl (16) is in connection with a stay pending reference to arbitration. On encl (16), the learned judge dismissed with cost the defendants' application for stay of the writ action filed by the plaintiff and all the other proceedings therein pending reference to arbitration. With regard to encl (8) the learned judge granted the injunctions sought for by the plaintiff with costs and made certain orders relating thereto.

[2] Briefly, by the injunctions and the orders the 3rd defendant, its employees or agents were restrained from entering the project site without any written consent of the plaintiff and that the 3rd defendant, its employees or agents were required to vacate the project site (prayer (a)), and that the 1st and 2nd defendants were restrained from proceeding with their conspiracy to injure the plaintiff's rights and interests in the project and to prevent the plaintiff from completing the project, including the issuance of any notice of termination in pursuance of the conspiracy (prayer (b)). Further, a professional consultant's company by the name of Messrs Symonds Travers Morgan (Malaysia) Sdn Bhd (STM) was appointed by the Court to proceed to the project site and inspect and examine the works that have been completed by the plaintiff and report its findings to the Court in regard to the completion of the works. In the event STM was of the view that the construction of the building had reached practical completion, the 2nd defendant was ordered to issue the certificate of practical completion (the CPC) immediately and failing which a certificate signed by the senior assistant registrar shall for all purposes be accepted as the CPC. And further, the plaintiff was ordered to carry out the works relating to the major shortcomings as listed in the relevant documents and to complete the works on or before 30 June 2001 and thereafter to report such completion to the Court on 30 June 2001 at 11am by submitting a report, to be signed by a qualified architect recognized by the Pertubuhan Akitek Malaysia.

[3] The defendants appealed. We allowed the appeal with costs here and below, and set aside the injunctions and the orders, and granted a stay of the writ action and the relevant proceedings therein pending arbitration. We reserved the issue of cost payable to STM for the work done pursuant to the order of the learned judge, if any and if not amicably resolved. We now give our reasons.

[4] To summarize the facts of the case, under a contract made between the 1st defendant and the plaintiff on 16 March 1995, the plaintiff was employed to construct the building. It was a lump sum contract in the value of RM110 million. The payment was guaranteed by an irrevocable bank guarantee issued by Bank Bumiputra Malaysia Bhd in favour of the plaintiff. The bank guarantee has the value of RM122.77 million inclusive of the financing cost in the sum of RM12.77 million. The payment would be made upon the issuance of the CPC by the 2nd defendant, the architect of the building. The plaintiff was given possession of the site on 16 March 1995 and the date for completion stipulated by the contract was 15 September 1997. The plaintiff failed to meet the target date for completion and subsequently the date for completion was extended from time to time, the last of which was March 2000. In between the extended periods, the 2nd defendant issued several notices in writing to the plaintiff under cl 25 of the Conditions of Contract requiring the plaintiff to proceed regularly and diligently with the works, failing which the 1st defendant might exercise its right to determine the plaintiff's employment under the contra