Syarikat Air Melaka Berhad

[2020] MLRHU 57 v. Sunpower Malaysia Manufacturing Sdn Bhd pg 1

SYARIKAT AIR MELAKA BERHAD

v.
SUNPOWER MALAYSIA MANUFACTURING SDN BHD

High Court Malaya, Melaka

Ahmad Nasfy Yasin J
[Civil Suit No: MA-22NCVC11-02/2018]
13 January 2020

Case(s) referred to:

A-G of Duchy of Lancaster v. London and North Western Rly Co [1892] 3 Ch
274 (refd)
Bandar Builder; Hubbuck & Sons v. Wilkinson, Heywood and Clark [1899] 1 QB
86 (refd)
Bandar Builder Sdn Bhd & 2 Ors v. United Malayan Banking Corporation Bhd
[1993] 1 MLRA 611; [1993] 3 MLJ 36; [1993] 4 CLJ 7; [1993] 2 AMR 1969 (refd)
Crystal Realty Sdn Bhd v. Wary Holdings Sdn Bhd [2000] 5 MLRH 745 (refd)
Mega Mayang M & E Sdn Bhd v. Utama Lodge Sdn Bhd and another appeal
[2018] MLRAU 506 (refd)
Pertamina v. Kartika Ratna Thahir & Ors [1982] 1 MLRH 669; [1983] 1 MLJ 136
(refd)
Seruan Gemilang Makmur Sdn Bhd v. Kerajaan Negeri Pahang Darul Makmur &
Anor [2016] 2 MLRA 263; [2016] 3 MLJ 1; [2016] 3 CLJ 1; [2016] 2 AMR 795
(refd)
Syarikat Binaan Utara Jaya (a firm) v. Koperasi Serbaguna Sungai Glugor Bhd
[2008] 2 MLRA 809; [2009] 2 MLJ 546; [2009] 1 CLJ 786 (refd)
Tanjung Teras Sdn Bhd v. Kerajaan Malaysia [2015] MLRAU 468; [2015] 9 CLJ
1002 (refd)

Legislation referred to:

Contracts Act 1950, s 71
Limitation Act 1953, s 6(1)(d)
Rules Of Court 2012, O 18 r 19(1), O 41 r 5
Limitation Act 1953, s 6(1)(a)

Counsel:
For the plaintiff: M/s Bell & Lee
For the defendant: M/s Chee Siah Le Kee & Partners

[Dismissed the application Encl 7 with costs.]

JUDGMENT

Ahmad Nasfy Yasin J:

Introduction
 Syarikat Air Melaka Berhad
pg 2 v. Sunpower Malaysia Manufacturing Sdn Bhd [2020] MLRHU 57

[1] In encl 7 (the Application) the Defendant applied to strike out the Plaintiff's
Writ of Summons and Statement of Claim under O 18 r 19(1) Rules of Court
2012 ("ROC 2012") anchored on what the Defendant strenuously argued a
claim that is barred by limitation and ultra vires the relevant statute. The
Plaintiff as is expected assiduously resisted the Application.

Cause Papers/Affidavits

[2] The parties wasted no efforts in fling rival affidavits. By way of preliminary
observation, it could be stated that the Application herein involves complex set
of facts, in the sense that there are no common grounds; that almost all the
facts are interpreted differently by the respective party and there are multitude
of documents.

[3] For convenience the cause papers relevant to the Application are as follows
but I must also state for clarification that the Plaintiff, in response to one of the
affidavits filed by the Defendant, had files another application, in encl 20,
dated 16 October 2018, essentially to strike out certain part of the averments in
the Defendant's affidavit dated 7 May 2018 on the basis that the averments
contained hearsay evidence. That application was made under O 41 r 5 ROC
2012. Enclosure 20 was allowed in part and I had dealt with that separately
and given my reasons for arriving at the decision.

(a) the Plaintiff's Writ of Summons dated 12 February 2018

(hereinafter referred to as "The Writ";

(b) the Plaintiff's Statement of Claim dated 12 February 2018

(hereinafter referred to as "the Statement of Claim");

(c) the Defendant's Statement of Defence dated 8 May 2018

(hereinafter referred to as "the Defence");

(d) the Defendant's Notice of Application dated 7 May 2018 for the
striking out (hereinafter referred to as the "Defendant's Striking Out
Application or the Application");

(e) the Defendant's Affidavit in Support (AIS) affirmed by Roslawanis

binti Husani on 7 May 2018 to support the Defendant's Striking Out
Application (hereinafter referred to as the "Defendant's AIS for
Striking Out");

(f) the Defendant's 1st Affidavit in Reply (AIR) affirmed by Datuk Ir

Mohd Khalid Bin Nasir on 8 August 2018 to oppose the Defendant's
Striking Out Application (hereinafter referred to as the "Plaintiff's 1st
AIR for Striking Out");

(g) the Defendant's 1st Affidavit in Reply (AIR) affirmed by

Roslawanis binti Husani on 12 September 2018 (hereinafter referred to
as the "Defendant's 1st AIR for Striking Out");
 Syarikat Air Melaka Berhad
[2020] MLRHU 57 v. Sunpower Malaysia Manufacturing Sdn Bhd pg 3

(h) the Plaintiff's 2nd Affidavit in Reply (AIR) affirmed by Datuk Ir

Mohd Khalid Bin Nsir on 17 August 2018 (hereinafter referred to as
the "Plaintiff's 2nd AIR for Striking Out");

(i) the Plaintiff's Notice of Application dated 16 October 2018 applying

for the expungement of hearsay evidence (hereinafter referred to as the
"Plaintiff's Application to Expunge Hearsay Evidence");

(j) the Plaintiff's Affidavit in Support (AIS) affirmed by Datuk Ir Mohd

Khalid bin Nasir on 17 January 2018 to support the Plaintiff's
Application to Expunge Hearsay Evidence (hereinafter referred to as
the "Plaintiff's AIS to Expunge Hearsay Evidence");

(k) the Defendant's 2nd Affidavit in Reply (AIR) affirmed by

Roslawanis Binti Husani on 14 November 2018 to support the
Defendant's Striking Out Application (hereinafter referred to as the
"Defendant's 2nd AIR for Striking Out");

(l) the Defendant's 1st Affidavit in Reply (AIR) affirmed by

Roslawanis Binti Husani on 14 November 2018 to oppose the
Plaintiff's Application to Expunge Hearsay Evidence (hereinafter
referred to as the "Defendant's 1st AIR for to Expunge Hearsay
Evidence");

(m) the Plaintiff's 3rd Affidavit in reply (AIR) affirmed by Datuk Ir

Mohd Khalid bin Nasir on 4 December 2018 to oppose the
Defendant's Striking Out Application (hereinafter referred to as the
"Plaintiff's 3rd AIR for Striking Out"); and

(n) the Plaintiff's 1st Affidavit in Reply (AIR) affirmed by Datuk Ir

Mohd Khalid Bin Nasir on 4 December 2018 to support the Plaintiff's
Application to Expunge Hearsay Evidence (hereinafter referred to as
the "Plaintiff's 1st AIR to Expunge Hearsay Evidence").

Background Fact.

[4] Before I proceed to determine the merits of the Application it is necessary

to advert to the facts, only so far as they are relevant to the Application. I may
begin with the Defendant. It is a company engaged in solar manufacturing. It
wanted to build a factory in Malaysia. So, it searched for a best location.
According to the Defendant it received offers from various state government
and was attracted by the offer or special incentives offered by the State of
Melaka after discussions with the Melaka State Government, Invest Melaka
and The Malaysia Industrial Development Authority ("MIDA"). One of the
incentives that attracted the Defendant to locate in Melaka was a favourable
water tariff, so Defendant states.

[5] The Defendant eventually chooses a site that is located in Rembia

Industrial Area, Alor Gajah, Melaka. The factory is known as World Solar
 Syarikat Air Melaka Berhad
pg 4 v. Sunpower Malaysia Manufacturing Sdn Bhd [2020] MLRHU 57

Valley. For the purposes of its factory, the Defendant needed a supply of both
raw water and treated water.

[6] The Plaintiff has pleaded that the State Government of Melaka had agreed
on 21 January 2008 to provide raw water and treated water at "special water
tariff" to the Defendant. Those rates were to be applicable for 10 years.
Permission was also given for the Defendant to carry out its own drilling
within the factory area to procure raw water.

[7] Central to the Application are the questions (1) whether the Plaintiff is
entitled in law to charge the costs of building of certain infrastructure to 5 the
Defendant and (2) whether the claim are barred by limitation.

Defendant's Submission

[8] The Plaintiff pleads that it claims is for "Payment for the Plaintiff's
Services" in para 16 as a claim under Enactment 20/1971 (repealed on 1 July
2006), Enactment 10/2002 and Water Services Industry Act 2006 (WASIA),
as well as is Enactment 9/2014. As regards to the last Enactment of 9/2014 it
would appear that it has no relevance to the claim as first, the Enactment came
into force well after the Plaintiff had agreed to supply both treated and raw
water to the Defendant in December 2007. Secondly, the requirement for
supply of water was initiated and agreed in December 2007. At that time, the
applicable legislation was only Enactment 10/2002. Enactment 20/1971 is
also irrelevant as it was repealed on 1 July 2006. This case relates to events
that commenced in 2007.

[9] The Defendant submits that the Plaintiff's claim for each part of the works
are barred by limitation pursuant to s 6(1)(d) of the Limitation Act 1953, ie
actions to recover any sum recoverable by virtue of any written law other than
a penalty or forfeiture or of a sum by way of penalty or forfeiture shall not be
brought after the expiration of 6 years from the date on which the cause of
action accrued. Even if the Plaintiff is entitled to bring its alternative claims
against the Defendant, those alternative claims, are also barred by limitation
pursuant to s 6(1)(a) of the Limitation Act 1953, ie actions founded on a
contract or on tort shall not be brought after the expiration of 6 years on which
the cause of action accrued. Where a suit is brought outside the limitation
period, it can be struck out on the ground that it is frivolous and vexatious
(limb (b) of O 18 r 19(1)) and an abuse of process (limb (d) of O 18 r 19(1)).

[10] The Defendant also contended that that Plaintiff's pleaded alternative
claims against the Defendant, namely is not sustainable for the following
reasons:-

(a) Implied contract - where there was no agreement by the Defendant

to pay for the costs of infrastructure built by the Plaintiff. The Plaintiff
also has no power to enter into any contract that is not authorised by
statute.

(b) Section 71 of the Contracts Act; where it is a pre-condition to the

 Syarikat Air Melaka Berhad
[2020] MLRHU 57 v. Sunpower Malaysia Manufacturing Sdn Bhd pg 5

application of s 71 that the act of "doing anything for another person"

is a lawful act. In this case, it is unlawful for the Plaintiff to pass on the
cost of building the water infrastructure to the Defendant. In the case
of raw water, the Plaintiff is not authorised by Enactment 10/2002 to
charge for the cost of building infrastructure. In the case of treated
water, the Plaintiff is not authorised by WASIA to charge for the cost
of building infrastructure (the public mains). The Plaintiff is statutorily
obligated to provide the infrastructure at its own cost. It cannot be
denied that the Plaintiff's demands are ultra vires both Enactment
10/2002 and WASIA. They cannot now contend that they did not
intend to build the water infrastructure gratuitously or, as they persist
in saying - "for free".

(c) Restitution/ unjust enrichment; and Defendant is under no legal

obligation to pay for the construction of this water infrastructure in
respect of raw water or treated water. The Plaintiff's demand for the
cost of building public mains for raw water is ultra vires Enactment
10/2002. The Plaintiff's demand for the cost of building public mains
for treated water is ultra vires WASIA. By law, any payment that is
received as a result of an ultra vires demand is recoverable by the
payee. As a consequence, that means that no payment should be made
in the first place.

(d) Quantum meruit; where the principle has no application in this

case. This principle applies only where a contract with no fixed scale
of remuneration has been partly performed. The law then permits
recovery of a reasonable sum representing the value of work done. In
this case, there was no contract between the Defendant and the
Plaintiff for the Defendant to pay for the costs of constructing the
public mains. In fact, it is the Plaintiff's responsibility to provide the
infrastructure at their own cost.

Plaintiff's Submission

[11] The Defendant's contention that the Minister does not have any power to
make regulations that allow for the imposition of capital contribution based on
water demand as provided under the 2014 Regulations but instead must only
be in relation to connection to public mains and consequently the 2014
Regulations in this context ultra vires WASIA was totally an ultra vires
argument.

[12] On issue of limitation, the Plaintiff right may have had arisen before the
infrastructure works were awarded to contractors because the costs would
have been fixed by that time. Defendant further contends in para 60 of
Defendant's Submissions that since Plaintiff's position is that each request
constituted fresh request, then Plaintiff's own pleading shows that each alleged
request was separate and distinct. It is submitted that the above statement by
Defendant is a clear example of misapplication and misapprehension of the
established principles of law. The Plaintiff will demonstrate that each time
Defendant had substantially changed its positions and stands, it would amount
 Syarikat Air Melaka Berhad
pg 6 v. Sunpower Malaysia Manufacturing Sdn Bhd [2020] MLRHU 57

to a new request. Consequently, the change would then reset the limitation
period. Therefore, this Civil Suit is filed well within the limitation period.

[13] On issue of unjust enrichment, the Plaintiff has also brought the claim of
unjust enrichment against Defendant. It is submitted that all the works that
were carried out are essentially done pursuant to statutory duties imposed by
statutes, enactments and/or subsidiary legislations.

[14] On the issue of s 71 of the Contracts Act, the Plaintiff submitted that s 71
ought to be construed widely and should therefore be applied in this case.
With respect to the first requirement that the acts 'must be lawful', all the
works that were carried out are essentially done pursuant to statutory duties
imposed by statutes, enactments and/or subsidiary legislations. Besides,
claims pursuant to s 71 of Contracts Act 1950 fall within the scope of s 6(1)(d)
of the Limitation Act. As such, the limitation period applicable is 6 years.
Therefore, the accrual of action pursuant to statutory claims within s 6(1)(d) of
the Limitation Act 1950.

[15] On issue of quantum meruit, it is contended by the Plaintiff that there is a

misconception in understanding the law on quantum meruit on Defendant's
part. Since the Plaintiff have established that the Plaintiff has fulfilled the
requirements under s 71 of the Contracts Act, it follows that Plaintiff's claim
based on quantum meruit basis is also similarly established. The Plaintiff's
position is strong because the actual costs of both the Raw Water
Infrastructure Package and the Treated Water Infrastructure Package are
RM49,781,390-97, as the same are based on the Final Certificates and
Statements of Final Account. As such, it is submitted that in the alternative or
in addition to the statutory claims, the Plaintiff's claim based on the quantum
meruit basis ought to be allowed by this Court.

Finding Of Court

[16] I had in the preceding paragraphs outlined what in essence is the claim as
well as the underlying defence in resisting the claim. The application before
me is one of a striking out application only where the role of the court in
determining the application is rather trite. The principles of law in relation to
striking out application are clear that only in plain and obvious cases should
recourse be had to the summary process under O 18 r 19. As long as the
statement of claim on the particulars discloses some cause of action, or raise
some question fit to be decided by a judge, the mere fact that the case is weak
and is not likely to succeed is no ground for striking it out (see Bandar Builder
Sdn Bhd & 2 Ors v. United Malayan Banking Corporation Bhd [1993] 1 MLRA
611; [1993] 3 MLJ 36; [1993] 4 CLJ 7; [1993] 2 AMR 1969, Pertamina v.
Kartika Ratna Thahir & Ors [1982] 1 MLRH 669; [1983] 1 MLJ 136). In
Seruan Gemilang Makmur Sdn Bhd v. Kerajaan Negeri Pahang Darul Makmur &
Anor [2016] 2 MLRA 263; [2016] 3 MLJ 1; [2016] 3 CLJ 1; [2016] 2 AMR
795 the relevant principles are that thus:

"OUR JUDGMENT: PRINCIPLE FOR STRIKING OUT

 Syarikat Air Melaka Berhad
[2020] MLRHU 57 v. Sunpower Malaysia Manufacturing Sdn Bhd pg 7

[24] The appeal before us relates to an application to strike out

pleading summarily under O 18 r 19 of the ROC on the ground that
paras 22-29 of the respondents' statement of claim are scandalous,
frivolous or vexatious, or is an abuse of the process of the court.

[25] The principles for striking out pleadings pursuant to O 18 r 19 of

the ROC are well settled. It is only in a plain and obvious case that
recourse should be had to the summary process under this rule; and
this summary process can only be adopted when it can clearly be seen
that a claim on the face of it is obviously unsustainable (see Bandar
Builder; Hubbuck & Sons v. Wilkinson, Heywood and Clark [1899] 1 QB
86; A-G of Duchy of Lancaster v. London and North Western Rly Co
[1892] 3 Ch 274).

[26] The tests for striking out application under O 18 r 19 of the ROC,
as adopted by the Supreme Court in Bandar Builder are, inter alia, as
follows:

(a) it is only in plain and obvious cases that recourse should be

had to the summary process under the rule;

(b) this summary procedure can only be adopted when it can

be clearly seen that a claim or answer is on the face of it
'obviously unsustainable' [Emphasis added];

(c) it cannot be exercised by a minute examination of the

documents and facts of the case in order to see whether the
party has a cause of action or a defence; and

(d) if there is a point of law which requires serious discussion,

an objection should be taken on the pleadings and the point
set down for argument under O 33 r 3 of the ROC; and

(e) the court must be satisfied that there is no reasonable cause

of action or that the claims are frivolous or vexatious or that
the defences raised are not arguable.

[27] The Court of Appeal, in Sivarasa Rasiah & Ors v. Che Hamzah
Che Ismail & Ors [2012] 1 MLRA 255; [2012] 1 MLJ 473; [2012] 1
CLJ 75, had adopted the well settled principle of striking out in the
following passage:

A striking out order should not be made summarily by the

court if there is issue of law that requires lengthy argument
and mature consideration. It should also not be made if there
is issue of fact that is capable of resolution only after taking
viva voce evidence during trial, (see Lai Yoke Ngan & Anor v.
Chin Teck Kwee & Anor [1997] 1 MLRA 284; [1997] 2 MLJ
565; [1997] 3 CLJ 305; [1997] 3 AMR 2458 (Federal Court))...
 Syarikat Air Melaka Berhad
pg 8 v. Sunpower Malaysia Manufacturing Sdn Bhd [2020] MLRHU 57

[28] The basic test for striking out as laid down by the Supreme Court
in Bandar Builder is that the claim on the face of it must be 'obviously
unsustainable'. The stress is not only on the word 'unsustainable' but
also on the word 'obviously' ie the degree of unsustainability must
appear on the face of the claim without having to go into lengthy and
mature consideration in detail. If one has to go into lengthy and
mature consideration in detail of the issues of law and/or fact, then
the matter is not appropriate to be struck out summarily. It must be
determined at trial.

[29] The established rule on this point is that the court should not
examine the evidence in this summary proceedings in such a way as to
amount to conducting a trial on the conflicting affidavit evidence. As
rightly said by Lord Diplock in the House of Lords in American
Cyanamid Co v. Ethicon Ltd [1975] AC 396 at p 407:

... The court no doubt must be satisfied that the claim is not
frivolous or vexatious; in other words, that there is a serious
question to be tried.

It is no part of the court's function at this stage of the litigation

to try to resolve conflicts of evidence on affidavit as to facts on
which the claims of either party may ultimately depend nor to
decide difficult questions of law which call for detailed
argument and mature considerations. These are matters to be
dealt with at the trial...

[30] This passage was cited with approval by the Privy Council in a
Malaysian case of Eng Mee Yong & Ors v. Letchumanan [1979] 1
MLRA 143; [1979] 2 MLJ 212.

[17] I have given anxious consideration to the issues raised by the parties
which include:-

(i) The relevancy of Enactment 9/2014;

(ii) The limitation;

(iii) the sustainability of the alternative claims made by the Plaintiff

against the Defendant;

(iv) The implied contract issue

(v) The applicability of s 71 of the Contracts Act;

(vi) The restitution/ unjust enrichment; and

(vii) the quantum meruit issue;

 Syarikat Air Melaka Berhad
[2020] MLRHU 57 v. Sunpower Malaysia Manufacturing Sdn Bhd pg 9

[18] At this juncture it is my considered opinion and I so hold that the legal
issues are connected and intertwine with the facts that are hotly contested and
thus this is not a suitable case for this Court to exercise its power to strike out
the claim. In short, this is not straightforward case where the Court could be
satisfied to hold that the claim is obviously unsustainable. The Plaintiff thus
should not be prevented from having its day in court to prove its case.

[19] The Defendant had raised a pertinent issue of the claim being ultra vires
the statutes. This argument at first blush appears to be a straightforward
argument but having studied the affidavits, this issue cannot be decided in
vacuum. It is again connected to the facts and that it is complex legal issue
where a decision could be taken upon a mature argument after finding of facts
are made. It will involve a study of the developments in the various
Enactments and Regulations and the interplay between the Enactments and
WASIA and the regulations made thereunder.

[20] I should perhaps add that the alternative claims though contended by the
Defendant as being barred by limitation period, had however raised to certain
issue in relation to one's duty and liability where the evidence of the witness
through full trial should be heard and decided by this Court. Furthermore,
there are many other issues raised by the Plaintiff that warrant a full trial
through calling of the witness to decide on the Defendant's' duties and
liabilities. The example can be seen in several paragraphs stated in the
Plaintiff's Statement of Claims as follows:

(i) In para 42 of the Plaintiff's Statement of Claims; on the "no

waiver/exemption under the law", where Plaintiff claims that "the
Defendant is liable and under legal duty in accordance the relevant
and applicable laws/enactments/ statues to make Payment for the
Plaintiff's services".

(ii) In para 60.2 of the Plaintiff's Statement of Claims; on the issue of

"TREATED WATER", where Plaintiff claims that "at the same time,
the Plaintiff had the responsibilities to ensure that the water pressure
could be maintained so that it would not affect or disturb all other
consumers in the surrounding area".

(iii) In para 197 of the Plaintiff's Statement of Claims; on the issue of

"THE TOTAL COST PAID, INCURRED AND/OR BORNE BY
THE PLAINTIFF FOR THE TREATED WATER
INFRASTRUCTURE PACKAGE AND THE RAW WATER
INFRASTRUCTURE PACKAGE" where Plaintiff claims the total
amount of "RM49,784,761.14" which definitely required proofs by
documentary and/or oral evidence during the full trial to justify the
amount.

(iv) In para 212 of the Plaintiff's Statement of Claims; on the issue of

"THE DEFENDANT'S FAILURE TO MAKE THE PAYMENT"
where Plaintiff claims that "however, until the filing of this Statement
 Syarikat Air Melaka Berhad
pg 10 v. Sunpower Malaysia Manufacturing Sdn Bhd [2020] MLRHU 57

of Claim, the Defendant has failed, refused and/or negligent to make

payment of the Plaintiff's Bills.

[21] On this issue of implied contract, I find that the question whether there is
an implied contract should be determined in full trial - see Kondisi Utama Sdn
Bhd v. Baltic Agencies Pte Ltd and another appeal [2019] 1 MLRA 1; [2019] 1
MLJ 181; [2018] 9 CLJ 561 where the following passages are instructive:-

[74] The Court of Appeal held that 'these contracts are contracts
implied in fact. A contract implied in fact is not expressed by the
parties, but rather suggested from the facts and circumstances that
indicate a mutual intention to contract. Circumstances exist that,
according to the ordinary course of dealing and common
understanding, demonstrate such an intent that is sufficient to support
a finding of implied contract. We found this to be the case based on
the evidence before the court'. The Court of Appeal quoted the
following passage from Chitty's on Contract:

Agreement is not a mental state, but an act, and as an act, is a

matter of inference from conduct. The parties are to be judged
not by what in in their minds but by what they have said or
written or done.

[75] Was the Court of Appeal correct in making the finding that
implied contracts subsisted between the parties? Unfortunately in their
broad grounds the Court of Appeal did not explain the reasons for
their finding. Therefore, we need to examine the relevant oral and
documentary evidence, in particular the conduct of the parties, in
order to answer that question.

...

[105] The question we need to answer, as we have stated earlier, is

whether the Court of Appeal was correct in its findings that an implied
contract had been made partly in writing (based on the letters
mentioned above) and partly by conduct and/or performance between
Baltic and Kondisi and between EPIC and the unincorporated JV.

...

[128] Based on our analysis above, we are unanimous in our view that
a contract had come into existence between EPIC and the informal
joint venture partnership of Kondisi and Baltic. That joint venture
clearly existed and EPIC and Kondisi had clearly admitted its
existence by the actions taken by Ramli and Amarjeet.

[129] We also find that the evidence shows that EPIC had breached
that contract by offering Kondisi the contract by the letter dated 16
October 2011 and Kondisi had breached its joint venture agreement
with Baltic by accepting that offer on 17 October 2011 and
 Syarikat Air Melaka Berhad
[2020] MLRHU 57 v. Sunpower Malaysia Manufacturing Sdn Bhd pg 11

subsequently choosing to utilise the KSE vessels procured by Baltic

and keeping Baltic out of the works.

[22] On quantum meruit, the cases of Mega Mayang M & E Sdn Bhd v. Utama
Lodge Sdn Bhd and another appeal [2018] MLRAU 506, Tanjung Teras Sdn Bhd
v. Kerajaan Malaysia [2015] MLRAU 468; [2015] 9 CLJ 1002 and Syarikat
Binaan Utara Jaya (a firm) v. Koperasi Serbaguna Sungai Glugor Bhd [2008] 2
MLRA 809; [2009] 2 MLJ 546; [2009] 1 CLJ 786 are relevant and in the latter
case the foilIwing observation is pertinent:-

[40] However, there may be a quantum meruit claim in the following

situations:

(a) when there is an express agreement to pay a reasonable

sum;

(b) when no price is fixed (thus, if the contractor does work

under a contract express or implied and no price is fixed by
the contract, the contractor is entitled to be paid a reasonable
sum for his labour and the materials supplied (Moffatt v.
Andrew Laurie & Anor [1855] ER 139;; 15 CB 583 Turriff
Construction Ltd and Turriff Ltd v. Regalia Knitting Mills Ltd
[1972] 9 BLR 20; 222 EG 169; [1972] EGD 257; and Holland
Hannen & Cubitts (Northern) Ltd v. Welsh Health Technical
Services Organisation & Ors [1981] 18 BLR 80);

(c) in a quasi-contract situation (a classic example would be

when work is carried out while negotiations as to the terms of
the contract are proceeding but agreement is not reached upon
essential terms, the contractor is entitled to be paid a
reasonable sum for the work carried out (Trollope & Colls Ltd
and Holland & Hannen and Cubitts Ltd, Trading as Nuclear
Civil Constructors (a firm) v. Atomic Power Constructions Ltd
[1963] 1 WLR 333; and Peter Lind & Co Ltd v. Mersey Docks
and Harbour Board [1972] 2 Lloyd's Rep 234);

[41]... A claim in quantum meruit would be made on the basis that the
respondent employer had derived a benefit from the work done by the
appellant contractor and; if this is so, a reasonable remuneration has to
be paid to the contractor...

[48]... The court explained that quantum meruit, though contractual in

origin, had given rise to another form of action founded upon what
was known, in 1957 when the case was being determined, as quasi
contract. In quasi-contractual instances of the application of quantum
meruit, the court looked at the facts and then ascertained from them
whether or not a promise to pay should be implied, irrespective of the
actual views or intention of the parties at the time when the work was
done and the services rendered.
 Syarikat Air Melaka Berhad
pg 12 v. Sunpower Malaysia Manufacturing Sdn Bhd [2020] MLRHU 57

[23] In Crystal Realty Sdn Bhd v. Wary Holdings Sdn Bhd [2000] 5 MLRH 745
the Court held

So, the question is not when the valuation reports were made but
when the cause of action arose and that was when the Plaintiff had
performed the works upon which he claimed quantum meruit.

[24] It can also be seen from one of the defences mounted by the Defendant is
that there is purported representation that no payment will be due from the
Defendant.

[25] A careful study of the Defendant's affidavit affirmed by Roslawanis, a

communication manager of the Defendant, shows, at this juncture that there is
doubt as to whether such representation was made, and if made, the type and
extent of the representation and to whom the representation was made. I must
also hasten to add there is no other material evidence either orally or in writing
adduced at this stage to support the Defendant's position on the alleged
representation.

[26] These questions remained unanswered at this stage and the proper place
for unraveling these issues will be the trial.

Conclusion

[27] In conclusion this Court holds that the Plaintiff's claim as disclosed in the
Writ and Statement of Claim is not 'on the face of it obviously unsustainable'
or that this is a case where on the face of it is suitable to be struck out under O
18 r 19 of the ROC 2012.

[28] I also hold that there are issues of facts or law and mixed of facts and law
that could be resolved upon a full trial.

[29] Wherefore I am of this considered view that the Application is encl 7 be

dismissed with costs.

[30] I so order.