Teknik Cekap Sdn Bhd

- vs -

Villa Genting Development Sdn Bhd

Judgment

Abdul Malik lshak J

1. This was an application by the plaintiff by way of a summons-in-chambers as seen in Encl 52 for an order that the defendant, its agents and its servants deposit the sum of RM1,706,001.50 being the first moiety of the retention sum into a separate bank account until the conclusion of this trial and action. In support of the application, the plaintiff affirmed two affidavits through Rahiman Bustaman as seen in Encl 51 which was affirmed on December 24, 1999 and as seen in Encl 60 that was affirmed on April 7, 1999. The defendant responded and filed two affidavits by way of a reply through M Angeline Raj: one affirmed on March 27, 2000 as seen in Encl 62 and the other affirmed on April 21, 2000 as seen in Encl 61. In short, the defendant contested Encl 52.

2. The plaintiffs application in Encl 52 was more in the nature of an interim preservation of property as envisaged in Order 29 r 2(1) of the Rules of the High Court 1980 ("RHC") which states as follows:

   On the application of any party to a cause or matter the Court may make an order for the detention, custody or preservation of any property which is the subject-matter of the cause or matter, or as to which any question may arise therein, or for the inspection of any such property in the possession of a party to the cause or matter.

3. Basically, the attractive feature of this rule is to provide for the preservation of property (Chaplin v Barnett (1912)28 TLR 256; Nicholas v Gan Realty Sdn Bhd [1970] 2 MLJ 89; and Tan Lay Soon v Kam Mah Theatre Sdn Bhd [1992] 1 AMR 3 0) and the power of the court to act under this rule comes from its inherent jurisdiction with the ultimate motive of advancing and promoting a fair trial (SvS, W v Official Solicitor [1970] 3 All ER 107). Either the plaintiff or the defendant is entitled to seek the assistance of this rule. If the sum of money is identifiable, then the process of preservation under this rule may be resorted to. Indeed this rule may be invoked to preserve an identifiable sum of money that arises from any criminal activity (West Mercia Constabulary v Wagener [1981] 3 All ER 378 and Chief Constable of Kent v V [1982] 2 All ER 36). So long as the money can be preserved, this rule may be vigorously resorted to (Polini v Gray [1879] 12 ChD 438).

   FACTS OF THE CASE

4. By a contract dated April 12, 1994, the defendant appointed the plaintiff as the main contractor in respect of the construction of the defendant's resort apartment on Lot PT 11386, HS(D) 10563 Genting Highlands, Pahang Darul Makmur comprising of 688 units inclusive of two levels of commercial podiums, three levels of car parks and other external works (hereinafter referred to as "the said works"). The defendant appointed Messrs Gerak Reka Akitek Sdn as the architect for the said works. The salient features of the contract may compendiously be stated in these words:

   1. the architect would issue monthly certificates of payments stating the amount due to the plaintiff from the defendant and the plaintiff would be entitled to the payment stated therein within twenty one (21) days from the date wherein the respective certificates were presented to the defendant;

   2. the amount stated as due under the monthly certificates of payments would be the value of the work done and 75% of the materials and goods delivered by the plaintiff less 5% thereof which may be retained by the defendant as the retention fund;

   3. Upon practical completion of the said works, the architect would issue a certificate of practical completion together with a certificate for the release of one moiety of the retention fund and the plaintiff would then be entitled to the payment of the moiety within 21 days from the preservation of the certificate of practical completion to the defendant.

5. It seemed that the plaintiff, in accordance with the terms of the contract,