JUDGMENT

Nadzarin Wok Nordin J:

(Enclosure 1)

Introduction

[1] In the Originating Summons ("OS") before this Court , the plaintiff has applied for the following orders pursuant to s 41 of the Specific Relief Act 1950 and the inherent jurisdiction of this Court :

1.1 a declaration that the Performance Bond Sum of RM5,346,550.00 ("Performance Bond Sum") which has been deposited by the plaintiff with the defendant is trust property

1.2 a declaration that the defendant is responsible as a constructive trustee for the said Performance Bond Sum

1.3 an order that the defendant or liquidator return the Performance Bond Sum together with interest of RM1,865,433.30 calculated from the Adjudication Award till the date of the claim in 10 days from the date of this Order

1.4 costs in the Companies Winding Up Application No WA-228PW-619-12/2022

1.5 costs for the appeal in Appeal No W-02(a)-1942-11/2023

1.6 costs

[2] The grounds in support of the OS are inter alia

a. The refusal of the defendant to return the Performance Bond Sum as decided by the Adjudication Proceedings and recognized by both the High Court and Federal Court is unconscionable and will result in unjust enrichment if the defendant continues to withhold and keep the Performance Bond Sum

b. A constructive trust has arisen and the defendant has become a trustee and the Performance Bond Sum is held as the subject matter of trust by the defendant for the plaintiff

c. the Performance Bond Sum including interest has not and is not part of the assets of the defendant's as it is part of a trust asset which must be returned to the plaintiff

d. the defendant/Liquidator is responsible as trustee to return the sum received from the plaintiff wherein the defendant/ Liquidator does not have any legal right to retain the sums

Background Facts

[3] The Defendant and the plaintiff had entered into a formal contract (EPCC Contract) on 21 June 2011 where the defendant appointed the plaintiff as a subcontractor to carry out the engineering, procurement, construction and commissioning works of a facility to produce PDO (propanediol) ("Work") on a piece of land located at the defendant's biotechnology park in the district of Johor Bahru for the sum of RM106,931,000.00.

[4] On 15 March 2013, the defendant terminated the plaintiff and both parties referred their dispute to arbitration.

[5] After the conclusion of the Arbitration proceedings and upon hearing the parties, the Arbitral Tribunal consisting of 3 senior Arbitrators on 2 February 2015 delivered the Final Award in which it unanimously decided in favour of the plaintiff (i.e that the termination by the defendant had been unlawful).

[6] The Plaintiff thereafter filed an Enforcement Application on 20 September 2017 to recognize and enforce the Final Award as a judgment of the Court . The High Court allowed the plaintiff's Enforcement Application on 25 June 2018. The Defendant was ordered to, inter alia:

(i) Pay a total of RM6,559,440.37 ("Arbitration Sum");

(ii) Interest of 5% per annum over the Arbitration Sum computed from the date of the Final Arbitration Award i.e 2 May 2015 until full settlement;

(iii) Arbitration Costs of RM290,374.92; and

(iv) Court Costs of RM5,000.00.

[7] The Defendant appealed to the Court of Appeal against the above-stated High Court decision and the Court of Appeal allowed the defendant's appeal on 14 January 2019 (" Court of Appeal Order") and set aside the High Court 's Decision, and the Panel imposed the condition that the Arbitration Sum be deposited with the plaintiff's solicitors within fourteen (14) days from the date of the Court of Appeal order.

[8] The Plaintiff being dissatisfied with the Court of Appeal's decision to reverse the High Court Order applied for leave to appeal to the Federal Court and the plaintiff obtained leave to appeal to the Federal Court on 6 January 2020.

[9] The Federal Court on 10 November 2021 unanimously set aside the Court of Appeal's decision and reinstated the High Court