Judgment of the Court

1. This appeal concerns the propriety of questions of law formulated pursuant to section 96(a) of the Courts of Judicature Act 1964 in a civil appeal to this Court.

2. On 19 March 2007, this Court allowed the appellant's application for leave to appeal against the Court of Appeal's decision of 28 March 2006 based on the following questions:

(i) Whether the building contract entered into between Dataran Rentas (the appellant) as the employer and the BMC Construction (the respondent) as the contractor in pursuance of the letter of award dated 29 July 1997 is illegal under the provisions of the Lembaga Pembangunan Industri Pembinaan Malaysia Act, 1994 (LPIPM Act).

(ii) Whether the respondent is entitled to present a winding up petition on the basis of the architect certificates or enforce payment of the architect certificates issued in respect of the building contract entered into between the appellant as the employer and the respondent as the contractor in pursuance of the letter of award dated 29 July 1997.

3. The facts of the case are that by a letter of award dated 29 July 1997 the appellant awarded a building contract to the respondent. Pursuant to the letter of award, it was agreed that the terms and conditions of contract are as per the PAM standard Form Contract 1969 Edition (without Quantities) (RAM Conditions) wherein Clause 30(1) of the RAM Conditions read with the Appendix, the appellant was contractually obliged to pay the respondents the amount due under the Interim Certificates within thirty days. The appellant failed to pay four interim certificates (certificates No. 5 to 8) amounting to RM173,096.18 within the time stated under Clause 30(1) of the PAM Conditions. As a result the respondents filed a winding-up petition in the High Court against the appellant. The appellant was accordingly wound up that led to the appeal to the Court of Appeal which dismissed the appeal.

4. At the conclusion of submissions of learned counsel from both sides on 4 November 2008, we declined to answer the questions posed as they do not come within the ambit of section 96(a) of the Courts of Judicature Act 1964 (the Act). In the result we did not consider the merits of the appeal and ordered that the appeal be dismissed with costs. The deposit be paid to the respondent towards its taxed costs.

5. For ease of reference, it is perhaps necessary to be reminded of the requirements of section 96(a) of the Act which states as follows:

"Subject to any rules regulating the proceedings of the Federal Court in respect of appeals from the Court of Appeal, an appeal shall lie from the Court of Appeal to the Federal Court with the leave of the Federal Court:-

(a) from any judgment or order of the Court of Appeal in respect of any civil cause or matter decided by the High Court in the exercise of its original jurisdiction involving a question of general principle decided for the first time or a question of importance upon which further argument and a decision of the Federal Court would be to public advantage; or

(b) ...."

6. To come within the ambit of section 96(a) of the Act, the applicant must, apart from satisfying this Court that the judgment of the Court of Appeal is in respect of any civil matter decided by the High Court in the exercise of its original jurisdiction involving a question of general principle decided for the first time or a question of importance upon which further argument and a decision of the Federal Court would be to public advantage, frame the question in such a manner as to incorporate a point of law the answer to which has the effect of reversing the judgment of the Court of Appeal. In this regard Augustine Paul FCJ, in delivering the recent judgment of this Court in Joceline Tan Poh Choo & Ors v. V Muthusamy [2009] 1 CLJ 650; [2008] 6 MLJ 621, said at para 17 pp 632 to 633:

"This would depend .... on the nature and manner in which the question for appeal is framed. It must be so couched as to incor