Abdul Kadir Sulaiman JCA:

[1] This is an appeal by the plaintiff against the decision of the learned judge in the High Court below given on 15 July 1999 dismissing its claim against both the respondents who were the defendant and the third party, respectively, and allowing the counterclaim of the defendant, AQ-Pacific Wide Sdn Bhd The third party is a ship forwarder appointed by the plaintiff for purpose of shipping the subject matter of the contract between the plaintiff and the defendant from Malaysia to Libya. The written judgment of the learned judge is to be found at pp 33 to 52 of the Record of Appeal. We completed hearing the submissions of parties on the appeal on 30 July 2003 and accordingly reserved our decision on the matter. We now give our decision on the appeal with our grounds.

[2] Having considered the records and the submissions by the counsel for the parties, both orally and in writing, we decide to dismiss the appeal with costs to both respondents and we, accordingly, affirm the decision of the learned judge. Herewith are our grounds for coming to that decision.

[3] The learned judge has produced a well reasoned judgment and had in detail given the background facts leading to the suit initiated by the plaintiff against both the defendant and the third party. We need not repeat it here except to mention that initially, the defendant had a principal contract with a trade organization in Libya, known as Jamahiriya National Oil Well Fluid and Equipment, (hereinafter referred to as "JOWFE"), to supply certain specified equipment manufactured in Malaysia. For the supply of the equipment to JOWFE, the defendant entered into a contract with the plaintiff for the manufacture and supply of the equipment at the price of RM2,348,445, C&F from Malaysia port to Benghazi port in Libya with specific condition of no transshipment of the equipment on its way from Malaysia to Libya. The defendant paid 40% of the contract price to the plaintiff and in exchange for which the plaintiff furnished a bank guarantee. The contract between the plaintiff and the defendant, however, did not go through as expected, as the plaintiff was not able to ship the equipment under the C&F arrangement until further notice. The defendant applied for specific performance of the contract. On 8 January 1993 the High Court granted the order sought.

[4] Following the order of the Court, the plaintiff and the defendant worked out a compromise with the plaintiff agreeing to ship the equipment in its then existing state of completion. For this purpose, they entered into what is called an amended contract on 11 January 1993. It is upon this amended contract that the dispute again arose which results in the decision of the learned judge as earlier mentioned.

[5] The following are the terms of the amended contract between the plaintiff and the defendant:

(a) The defendant will accept the 8 vessels and 8 agitators in the present condition and state of completion.

(b) The plaintiff will arrange to pack as soon as possible under he defendant's supervision and prepare all relevant documentations for shipment on a C&F basis at the revised price of RM1,523,000. Shipping documentations is to satisfy the defendant's LC stipulations. (The defendant's LC stipulation is the one given by JOWFE in favour of the defendant in respect of the principal contract between the defendant and JOWFE prohibiting transhipment of the equipment)

(c) Free access shall be allowed to defendant's representatives to the plaintiff's premises through normal channels and the plaintiff shall provide all necessary assistance for inspection and verification.

(d) The defendant will advance payment of RM1,000,000 in exchange for a bank guarantee to be provided by the plaintiff by Saturday, 16 January 1993. The defendant shall call upon the guarantee in the event the plaintiff refuses to perform this amended agreement. The guarantee is to be valid for 90 days from the date of issue.

(e) Also by Saturday