RK Nathan JC:

The defendant filed an application to strike out the plaintiff's claim by way of Encl. 5. The learned Senior Assistant Registrar (SAR) dismissed the said application; hence this appeal before me.

Background Facts

The plaintiff is the owner and developer of 3 middle-cost apartment blocks at Lot PT4, Jalan Berhala, Section 72, Wilayah Persekutuan (the project). Pembinaan Gedong Sdn. Bhd. (Gedong) was engaged as turnkey contractor and Ingeback (Malaysia) Sdn. Bhd. (Ingeback) was engaged as the subcontractor for the project. The defendant entered into a Performance Bond on 14 December 1987 with the plaintiff and Gedong to guarantee the due performance of the said construction by Ingeback for the sum of RM29,849,443 (the Performance Bond). Based on this, Gedong entered into a Building Contract with Ingeback on 24 March 1988 for the construction of the project. Meanwhile, Gedong entered into a Deed of Assignment with the plaintiff on 28 June 1988 whereby Gedong absolutely assigned its rights to receive from the defendant, all monies payable under the Performance Bond. Ingeback however breached the provisions of the Building Contract and defaulted in its various ob