LIM BENG CHOON J

The sole question posed to this court is whether the plaintiff was entitled to discontinue this action commenced by it against the first defendant thereby depriving the first defendant the rights allegedly already accrued to it in its summons to set aside the injunction obtained by the plaintiff on 4 March 1988.

In order to understand the issues which give rise to the aforesaid question it is necessary to refer briefly to the history of the proceedings leading to the application of the first defendant to set aside the said injunction.

On 7 July 1987 the plaintiff instituted an earlier suit dated 7 July 1987(‘the first suit’) naming Marplan Sdn Bhd as the sole defendant. The plaintiff was a specialist sub-contractor appointed by the defendant who in turn was the nominated sub-contractor of the contractor Bina Goodyear Sdn Bhd for the construction of the Selangor State Mosque at Shah Alam. The plaintiff had completed all works and the architect Jurubena Bertiga International has issued some progress payment certificates to Bina Goodyear Sdn Bhd and the plaintiff therefore claimed the money due to them under the certificates. Simultaneously with the filing of the first suit, the plaintiff also applied and obtained an interim injunction by which Bina Goodyear Sdn Bhd was restrained from paying all moneys that were due or became due and payable to Marplan Sdn Bhd up to the sum of $2,754,895.50. The injunction order appears in the appeal record of the Supreme Court of MalaysiA(Appellate Jurisdiction) Civil Appeal No 502 of 1988(hereinafter referred to as ‘the appeal record’) at p 16. On 15 July 1987 Marplan Sdn Bhd applied by way of summons-in-chambers to set aside the injunction of 7 July 1987 and also to stay the proceedings pursuant to s 6 of the Arbitration Act 1952 the appeal on the ground that the High Court had no power to grant an injunction to restrain Bina Goodyear Sdn Bhd from paying out the moneys when it was not a party to the action. Thereafter on 14 March 1988 the plaintiff filed a notice of discontinuance of the first suit and at the same time commenced this suit naming Marplan Sdn Bhd as the first defendant, Bina Goodyear Sdn Bhd as the second defendant and Jurubena Bertiga International as the third defendant. The reliefs sought as against the first defendant was payment of $2,754.595.50 for works done under the specialist sub-contract and as against the second defendant an order directing it to pay the plaintiff directly all sums certified by the third defendant and finally as against the third defendant an order directing them to value and certify all amounts due from the first defendant to the plaintiff under progress payment certificate Nos 40 to 44. Again on the same day the plaintiff applied by way of ex parte summons-in-chambers for an injunction directing that the funds in the banks of the second defendant and due to the first defendant for works executed in respect of the state mosque Shah Alam up to the sum of $2,754,595.50 be preserved in the second defendant’s custody pending further order of this court (see encl 3 of the court file). This court granted the injunction prayed for subject to the usual undertaking to abide by any order the court should make as to damages (see encl 5). It is not disputed that the notice of discontinuance dated 14 March 1988 was served on the solicitors for the first defendant only on 31 March 1988. It was also on the same date that solicitors for the first defendant was informed of the institution of this suit. On 4 April 1988 the first defendant through its solicitors wrote a letter to the solicitors of the plaintiff objecting to the discontinuance of the first suit and the commencement of this suit prior to the service of the notice of discontinuance on them (see p 51 of the appeal record). The first defendant thereupon filed an application by way of summons-in-chambers on 15 April 1988 to set aside and/or to strike out the plaintiff’s notice of discontinuan