Zulkefli Makinudin JCA:

[1] This is an appeal by the plaintiff against the decision of the High Court at Kuala Lumpur in dismissing the plaintiff's application for an order that the plaintiff be given leave pursuant to s. 263(2) of the Companies Act 1965 ("the Act") to proceed with its counter-claim against the defendant in Kuala Lumpur High Court Civil Suit No. S5-22-77-2004 ("the S5 Suit").

Background Facts

[2] The relevant background facts of the case are as follows:

[3] The plaintiff is a development company engaged in the development project of a complex known as Galaxy Ampang, of which the defendant as the main contractor was responsible for the building construction thereof, having taken over the contract from the previous contractor.

[4] The matters relating to the works in question are contained in those documents known as the Letter of Intent dated 18 May 1996, the Supplementary Letter of Award dated 29 August 1997, a new Letter of Award dated 29 August 1997 and another Letter of Award dated 1 September 1999. The defendant's action in the S5 Suit was filed pursuant to the failure of the plaintiff and the defendant to effect the Final Settlement Agreement dated 13