Acceptance of a third party's payment does not discharge a debtor's obligation unless agreed; an unconditional refund reinstates the original debt.

Atan Mustaffa Yussof Ahmad JC:

[1] The trial of this action concerns the plaintiff's claim for a debt under a charterparty of vessels between the plaintiff as disponent owners of the vessels and the defendant as charterers of the vessel. Arising from the facts of the case, the defendant also has a counterclaim against the plaintiff for damages for loss of charterparty fees and hire of the Vessels founded on the tort of conspiracy to injure by lawful means.

Background Facts

[2] The plaintiff and the defendant started a business relationship sometime in 2016 when the defendant would approach the plaintiff to hire barges on a trip rate basis to transport quarry products from the defendant's quarry operations in Terengganu to the defendant's customers' sites. At this time, the plaintiff was known as 'Smart Work Co-ordinating Sdn Bhd". The plaintiff's name was changed subsequently to "TM Global Marine Sdn Bhd" on 7 October 2018.

[3] In September 2017, the defendant was invited by KP Port Services Sdn Bhd ("KPPS") to quote for the hire of a Floating Crane for Kuantan Port. The plaintiff informed the defendant of vessels that were available and suitable for this purpose, namely the FC Sumber and Barge TC Sumber Power VIII. At this time, the CEO of KPPS was Dato Haji Khasbullah Bin A Kadir ("Dato Haji Khasbullah").

[4] The plaintiff agreed to time charter these vessels from the owner of the vessels and then onward time charter them to the defendant. The defendant would in turn charter the vessels to KPPS.

[5] By a Letter of Award dated 16 March 2018, KPPS granted the contract to the defendant and the defendant entered into back-to-back charterparties with the plaintiff and KPPS for the charter of the said vessels. The defendant continued to charter the vessels to KPPS for approximately one month but by 25 April 2018, the charterparties had to be mutually terminated as the vessel size and capacity was not suitable to perform the required job. It was agreed for the defendant to source for more suitable vessels with greater capacity.

[6] The plaintiff had ready and available vessels for the job, ie the Floating Crane Barge, "Toll Suralaya" and Tugboat, "Whale 7" (together referred as "the Vessels") and offered the Vessels to the defendant which was accepted by the defendant. The defendant in turn offered the Vessels to KPPS who agreed to take up these alternative vessels.

[7] KPPS then issued a Letter of Award to the defendant on 14 May 2018 ("the KPPS Contract"). On 18 May 2018, the plaintiff and the defendant entered into 2 back-to-back charterparties for the hire of the Vessels which are:

(a) BIMCO Supplytime 2017 Time Charter Party For Offshore Support Vessels between Smart Work Co-Ordinating Sdn Bhd and Thermatek Sdn Bhd dated 17 May 2018 ("the TM Global- Thermatek Charterparty"); and

(b) BIMCO Supplytime 2017 Time Charter Party For Offshore Support Vessels between Thermatek Sdn Bhd and KP Port Sevices Sdn Bhd dated 18 May 2018 ("the Thermatek-KPPS Charterparty").

[8] The charter under the TM Global-Thermatek Charterparty was for a minimum charter period of three months beginning 18 May 2018 to 17 August 2018 at a charter hire on the Vessels on terms and conditions thereunder. The Vessels were delivered to the defendant on 18 May 2018 in Batam, Indonesia, and thereafter mobilised to Kuantan Port and performed the KPPS Contract.

[9] On 1 July 2018 Dato Hj Khasbullah was replaced by a Mr Wong Soon Fah ("MrWong") who held the position of CEO/Executive Director.

[10] The plaintiff sent an email on 27 July 2018 to KPPS which was copied to the defendant, requesting "an appointment with you and member of your staffs & Encik Roslan from Thermatek Sdn Bhd on Monday 30 July 2018". "En Roslan" here refers to En Roslan bin Hasan ("En Roslan"), a director of the defendant who was the defendant's witness (DW1) for the trial. The venue stated for the meeting was KPPS's office and the items for discussion stated in the email, which were related to the T