A court hearing a summary judgment application must determine whether triable issues exist; bare allegations of fraud or misrepresentation without supporting evidence are insufficient to resist summary judgment.

Introduction

[1] "Ten pots nine covers, cannot mislead people."

[2] This is a famous Chinese saying, origins obscure, that means that the truth will always come out, as it's impossible to completely conceal something when there are inconsistencies or gaps. Such is the case before me.

[3] The plaintiff applied for summary judgment against the defendant pursuant to for the sum of RM 71,400,000.00 with interest and costs. [See Notice of Application dated 18 August 2023 in encl 7].

[4] The plaintiff's claim is premised on non-payment of the said sum of RM 71,400,000.00 which was due pursuant to cl 3.1 of a settlement agreement dated 9 December 2022 between the parties. The settlement agreement can be seen in the Plaintiff's Affidavit in Support, encl 8, Exhibit "P-1" pages 14 to 62.

[5] The defendant alleges there are triable issues "as the Defendant has pleaded that the entire premise of the Plaintiff's claim of RM71.00 [sic] Guaranteed Sum was subject to, amongst others, fraud / fraudulent misrepresentation perpetrated by the Plaintiff themselves", unquote. [See the Defendant's Written Submissions dated 28 October 2024 encl 51 at para 5].

[6] On 21 November 2024, I allowed the summary judgment with costs of RM 5,000.00 subject to allocatur.

[7] On 19 December 2024, the defendant has appealed to the Court of Appeal. These are my Grounds of Judgment for my decision.

Facts Of The Case

[8] The following facts are undisputed and are gleaned from the Plaintiff's Written Submissions dated 28 October 2024 [Enclosure 49] and the Defendant's Written Submissions dated 28 October 2024 [Enclosure 51].

The Construction Contract

[9] The defendant is the developer of a high-rise development project in the Kuala Lumpur city centre at Jalan Conlay called the 8 Conlay Project ("8 Conlay Project").

[10] The defendant appointed the plaintiff as its main contractor to carry out construction works for the 8 Conlay Project.

[11] The plaintiff's job was to construct three (3) high-rise towers and a retail podium for the total contract price of RM 1.428 billion. Towers A and B are luxury branded residences, whilst Tower C will be the five-star Kempinski Hotel Kuala Lumpur. The parties adopted the PAM 2006 Standard Form of Building Contract.

Disputes Arose

[12] During the course of the construction, various disputes arose between the parties which were referred to arbitration under the AIAC Fast Track Arbitration Rules 2018 in accordance with the terms of the construction contract.

Settlement Agreement

[13] However, prior to the release of the final award in the arbitration, parties entered into a settlement agreement dated 9 December 2022. As stated earlier, the settlement agreement can be seen in the Plaintiff's Affidavit in Support Enclosure 8, Exhibit "P-1" from pp 14 to 62.

[14] Clause 3.1 of the settlement agreement provides that within 30 days from the Effective Date, as defined, (ie on or before 8 January 2023), the defendant shall pay the plaintiff the sum of RM 71,400,000.00.

[15] Under cl 3.3 of the settlement agreement, the defendant's parent company KSK Group Berhad ("KSK"), is to provide and did provide a Corporate Guarantee No 1 dated 30 December 2022 ("CG1") in the amount of RM 71,400,000 to the plaintiff as security for the defendant's payment obligation under cl 3.1. [See CG1 at the Plaintiff's Affidavit in Support encl 8, Exhibit "P-2" from pages 63 to 65].

Breach Of The Settlement Agreement For Non-Payment Of The RM 71,400,000.00

[16] The defendant failed to pay the plaintiff the sum of RM 71,400,000.