JUDGMENT

Low Hop Bing J:

Appeal

This is an appeal in encl. (83) filed by appellant-defendant 4 ( & D4 & ) against the decision of the learned registrar who had on 25 July 2003 dismissed with costs D4's application in enclosure (26) seeking to strike out the plaintiff's writ and statement of claim, under Rules of the High Court 1980, O. 18 r. 19 (1)(a), (b) or (d) in that it discloses no reasonable cause of action, is scandalous, frivolous or vexatious or is otherwise an abuse of the process of the court respectively.

D4 has entered unconditional appearance.

A reference hereinafter to an order or a rule is a reference to that order or rule in the Rules of the High Court 1980 unless otherwise stated.

Factual Background

The plaintiff has commenced this action pursuant to a power of attorney given to him as attorney for his principal, DYMM Tuanku Ja'afar Ibni Almarhum Tuanku Abdul Rahman, Yang Di Pertuan Besar Negeri Sembilan Darul Khusus ( & the principal & ) who has authorised the plaintiff to commence this action against all the four defendants who are referred to respectively as D1, 2, 3 and 4.

Where relevant, the plaintiff's statement of claim avers that:

1. D1 is a limited liability company incorporated in the United States of America and having its office in Detroit, to produce activated tyre rubber. It has been set up by one Patrick A Moran (D2) who is also its chief executive officer, brain, mind, will and alter ego.

2. The principal together with four other Malaysian participants have agreed to pick up 25% interest in D1.

3. D2 has now claimed that the principal and the other Malaysian participants have not fully contributed towards the purchase of the 25% interest and their stake is now reduced to 7.35%.

4. D2 represented that D1 would require banking facilities which were obtainable from D3 in Stamford, Connecticut to finance D1's plant in Detroit, and that for this purpose a letter of credit in the sum of US1 million was needed.

5. D2 made representations to and sought this letter of credit from the principal and the other Malaysian participants, but as the other Malaysian participants were not in a position to establish it, it fell upon the principal to do so by letter dated 5 February 1999 addressed to the Seremban branch of Standard Chartered Bank Malaysia Bhd (D4).

6. On 12 February 1999, D4 established in favour of D3 a conditional standby letter of credit bearing No. 312010325732-A ( & the SLC & ) in the amount of US1 million for a duration of 24 months on the terms and conditions therein stated. A copy of the SLC was given to the principal but the & Uniform Customs and Practice for Documentary Credit 1993 Revision & was not extended to nor the contents made known to the principal or the plaintiff.

7. By letter dated 15 February 1999, D4 required the principal to execute, and the principal did execute, security in the form of a letter of set-off over a fixed deposit in the sum of RM4,180,000 ( & the fixed deposit & ) deposited by the principal with D4.

8. Thereafter, neither D1 nor D2 notified the principal of any progress or development in respect of D1's plant, although the principal was led to believe and verily believed that there had been no disbursements yet by D3 of the approved banking facilities to D1.

9. The principal, being apprehensive at the lack of progress on D1's project and his exposure therein, by letter dated 6 April 1999 asked for the SLC to be suspended.

10. The plaintiff personally discussed the principal's concern with the relevant officer of D4 who advised that the SLC could not be revoked except with the consent of D3 as beneficiary, but suggested that a message be sent to D3 giving notice of intention to suspend the SLC.

11. However, the plaintiff insisted that D4 as the establishing bank should notify D3 of the principal's intention to rescind the SLC, which D4 by telex transmission dated 16 April 1999 gave notice of rescission ( & the notice of rescission & ).

12. The principal was