JUDGMENT

The Appeal

This is an appeal by the defendant against the decision of the learned Deputy Registrar striking out its counterclaim.

Background

By an agreement made on 18.7.96 (Exh. STS1) between the plaintiff and the defendant, the plaintiff undertook to carry out and complete building works comprising 20 units of factory building belonging to the defendant. The contract price was RM15,200,000.00.

When the defendant failed to pay the plaintiff 4 payments certificates totaling RM4,710,280.74, the plaintiff filed the present action on 2.12.97 to recover the payment, to which the defendant entered an unconditional appearance. On 15.1.98 the defendant applied for a stay of further proceedings pending reference to arbitrator under s 6 of the Arbitration Act 1952 . In the meantime on 22.1.98 the plaintiff applied for a summary judgment. The application for stay was refused by the learned judge. The appeal by the defendant was dismissed by the Court of Appeal on 16.11.98.

Following the dismissal of the appeal, the defendant filed its defence and counterclaim on 3.12.98. The counterclaim against the plaintiff is for the sum of RM 15,760,000,00 for the failure to complete the works in acco