MTD ACPI wishes to announce that on 7 July 2020, the Plaintiff has filed a Notice of Appeal to a Judge in Chambers against the entire decision delivered by the Shah Alam High Court on 25 June 2020 with respect to the assessment of damages for the Shah Alam High Court Civil Suit No. 22-1026-2009 (“Suit”) in favour of MTD ACPI.

The Suit is in relation to a claim for compensation for the termination of a sub-contract dated 13 November 2003 for the ‘Design, Construction, Completion and Commissioning of Road Bridge, Rail Bridge and Associated Works at Johor Bahru, Johor – Package: Road Bridge – Land Approach (RSB 03)’ entered into between the Plaintiff and the Defendants (“Sub-Contract”) which forms part of the contract dated 1 August 2003 entered into between the Plaintiff and the Government of Malaysia (“Government”) for the ‘Design, Construction, Completion and Commissioning of Gerbang Selatan Bersepadu Road Bridge, Rail Bridge and Associated Works at Johor Bahru, Johor’ (“Main Contract”).

The dispute arose when the Main Contract was repudiated by the Government on 12 April 2006 whereupon, the Government had ordered the Plaintiff to submit its claims for works done inclusive of the claims of any third parties aggrieved by the termination. Consequent to the Plaintiff’s final claim to the Government dated 8 September 2006, the Government made an ex gratia payment of RM 154,999,999.00 to the Plaintiff to cover the whole extent of the claims from the third parties claimed vide the Plaintiff (inclusive of MTD ACPI’s claim).

On 3 July 2009, the Plaintiff had initiated the Suit against the Defendants, seeking for, inter alia, the following:-

(a) a declaration that the Plaintiff and Defendants have reached a mutual termination of the Sub-Contract on 15 February 2006;

(b) a declaration that the Defendants’ request for mediation dated 24 April 2009 is invalid;

(c) a declaration that the conditions of the Sub-Contract including Clause 35 cannot be enforced after the mutual termination of the Sub-Contract on 15 February 2006;

(d) an injunction order to stop the Defendants from initiating mediation and arbitration proceedings until further order from the Court and until the disposal of the Plaintiff’s claims; and

(e) general damages, interest, costs and other relief deemed fit by the Court.

MTD ACPI in return filed its counterclaim on 16 April 2010 against the Plaintiff for the following:-

(a) damages in the amount of RM21,551,065.43, or as assessed by the Court;

(b) further or alternatively:-

     (i) an order that the Plaintiff account to MTD ACPI for all moneys received by it from the Government in respect of MTD ACPI’s works;

     (ii) an order that the Plaintiff pay to MTD ACPI all sums found to be due to MTD ACPI; and

(c) costs and other relief deemed fit by the Court.

On 24 November 2015, the Court had dismissed the Plaintiff’s claims against MTD ACPI with costs of RM100,000.00 and the damages to be paid to MTD ACPI are to be assessed by the Court (“Order”).

The Plaintiff had on 28 December 2015 filed its notice of appeal against the Order dated 24 November 2015 to the Court of Appeal and on 2 August 2017, the Court of Appeal had dismissed the Plaintiff’s appeal with costs of RM20,000.00. 

On 30 August 2017, the Plaintiff had filed a notice of motion for leave to appeal to the Federal Court against the Order dated 2 August 2017 and on 30 January 2018, the Federal Court had dismissed the Plaintiff’s notice of motion for leave to appeal to the Federal Court with costs of RM10,000.00.

Following the dismissal of the Plaintiff’s appeal at the Court of Appeal and notice of motion for leave to appeal to the Federal Court, the Court had directed for the assessment of damages proceedings. Parties had on 26 April 2019 filed and exchanged affidavits in respect of the assessment of damages and on 22 November 2019 filed and exchanged written submissions for assessment of damages.

On 25 June 2020, the Court had delivered its decision with respect to the assessment of damages (“Assessment Order”), as follows:-

(a) the Plaintiff to pay MTD ACPI the full sum claimed by the Plaintiff on behalf of MTD ACPI from the Government, i.e. RM 11,919,680.80 (“Judgment Sum”);

(b) the Plaintiff to pay MTD ACPI interest at 5% per annum on the Judgment Sum, from the date of the filing of the writ i.e. 3 July 2009 until full payment thereof; and

(c) the Plaintiff to pay MTD ACPI the costs of the assessment of damages as well as the costs for interrogatories, in the sum of RM10,000.

MTD ACPI has instructed its solicitors to file an appeal against paragraph (b) of the Assessment Order which awards interest from the date of the filing of the writ, as opposed to the date the Plaintiff received the ex-gratia payment from the Government.

There is no financial and operational impact of the Assessment Order on the Group, until the disposal of the Plaintiff’s appeal against the Assessment Order and the payment is received.

MTD ACPI will make further announcement as and when there is any material development on the above matter.

This announcement is dated 9 July 2020.