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SK M&E Bersekutu Sdn Bhd V Pembinaan Legenda Unggul Sdn

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SK M&E Bersekutu Sdn Bhd V Pembinaan Legenda Unggul Sdn SK M&E Bersekutu Sdn Bhd v Pembinaan Legenda Unggul Sdn Bhd (in creditors’ voluntary liquidation) and another appeal [2019] MLJU 211 Malayan Law Journal Unreported FEDERAL COURT (PUTRAJAYA) RICHARD MALANJUM CJ, AHMAD MAAROP PCA, AZAHAR MOHAMED, ROHANA YUSUF AND ZAWAWI SALLEH FFCJ CIVIL APPEAL NOS 02(f)-130-11 OF 2017(W) AND 02(f)-131-11 OF 2017(W) 12 March 2019 Lim Wai Loon (Rohan Arasoo and Teoh Yen Yee with him) (Harold & Lam Partnership) for the appellant. Chong Hooi Yin (Muhammad Iqram bin Zulkupri with him) (Azman Davidson & Co) for the respondent. Richard Malanjum CJ: JUDGMENT OF THE COURTINTRODUCTION [1]The present appeals arise out of common issues of law in relation to actions brought by two different plaintiffs against the same defendant. The cases related to these appeals were heard together before the first instance court and the Court of Appeal. Each court rendered one judgment respectively. Thus, the appeals before us are Appeal No. 130 and Appeal No. 131 again heard together due to the common issues of law involved. Appeal No. 130 [2]The Appellant in Appeal No. 130 (plaintiff at the High Court) was the Respondent’s (defendant at the High Court) sub-contractor for a mixed development project in Sungai Buloh, Selangor for the sum of RM9,789,815.00. Pursuant to Clause 16.3 of the Sub-Contract between the parties, a sum of RM489,490.75 was retained by the Respondent as retention monies. The retention monies were to be released by the Respondent to the Appellant in two tranches: firstly, upon the issuance of the Certificate of Practical Completion (“CPC”) of the Main Contract and secondly, upon the expiry of the Defect Liability Period (“DLP”). [3]Although the CPC was issued on 30.05.2013 and the DLP lapsed on 30.8.2015, the Respondent did not release the first and the second tranches of the retention monies to the Appellant. Appeal No. 131 [4]The Appellant in Appeal No. 131 (plaintiff at the High Court) was engaged as the Respondent’s (defendant at the High Court) sub-contractor for a project in Johor for the sum of RM17,734,455,55. As in Appeal No. 130, Clause 16.3 of the Sub-Contract between the Appellant and Respondent in Appeal No. 131 provided for a sum of RM886,723.00 to be retained as retention monies where the first moiety was to be released by the Respondent upon the issuance of the CPC and the second moiety was to be released upon the issuance of the Certificate of Making Good Defects (“CMGD”) of the Main Contract Works. [5]For Appeal No. 131, the retention monies were never released to the Appellant as well. [6]On 2.11.2015, a creditors’ meeting was held and a special resolution was passed for the voluntary winding up of the Respondent. Page 2 of 8 SK M&E Bersekutu Sdn Bhd v Pembinaan Legenda Unggul Sdn Bhd (in creditors’ voluntary liquidation) and another appeal .... [7]Based on the statement of affairs on the Respondent as at 8.10.2015: (i) the total debt owed to the unsecured creditors of the Respondent was RM91,878,716.62; (ii) the estimated net realisable value of the assets of the Respondent was RM18,857,298.00 with cash at bank at RM547,786.00; (iii) the Respondent’s liabilities exceeded assets by RM73,019,479; (iv) there are about 250 creditors, out of which around 128 are creditors claiming retention sums; and (v) the total amount owed to creditors for retention monies was RM8,230,087.61. This included the total amount of retention sums owed to the two Appellants in the present appeals. [8]The Respondent did not open any bank account for the retention monies including those for the Appellants in these appeals. For convenience, in this Judgment both the Appellants in these two appeals are collectively referred to as the Appellants. BEFORE THE HIGH COURT [9]As alluded to above, the Appellants respectively instituted an action at the High Court seeking leave to commence and proceed with court, arbitration and/or adjudication proceedings against the Respondent and for the Respondent to be ordered to preserve the retention sums in a separate account pending the final determination of the arbitration and/or adjudication proceedings. [10]Relying on the Court of Appeal decision in Qimonda Malaysia Sdn Bhd (in liquidation) v Sediabena Sdn Bhd & Anor [2012] 3 MLJ 422, the High Court held that the retention sums were being held on trust by the Respondent. The basis of such finding was that while there was no express clause providing for the creation of a trust over the retention monies, a trust could still arise due to the fact that there was a provision for the release of the retention monies upon any rectification work on any defect completed and since no notice was received from the Respondent of any defect. Thus, the High Court granted the reliefs sought for by the Appellants. BEFORE THE COURT OF APPEAL [11]On appeal, the Court of Appeal reversed the High Court decision. It held that there could be no trust because of the lack of an express clause or clear conduct from the parties as well as the retention monies were never segregated. [12]The Court of Appeal took the view that a trust cannot be implied purely from the nature and purpose of retention monies per se, and that the concept of a trust is not inherent in the use of the word “deductions”. It went on to hold that most construction contracts do not operate via a trust, unless otherwise expressly stated, but at the level of contract and debt: (See: Farepak Food and Gifts Ltd (in Administration) [2006] EWHC 3272 (Ch)). A mere debt is a chose in action and does not confer any beneficial right in retention monies on the basis of trust. [13]The Court of Appeal went on to distinguish between these appeals and that of the decided cases, both local and foreign, based on the facts (See: Rayack Construction Ltd v Lampeter Meat Co Ltd (1979) 12 BLR 30, Mac- Jordan Construction Ltd v Brookmount Erostin Ltd (in receivership) [1994] CLC 581, Kumpulan Liziz Sdn Bhd v Pembinaan OCK Sdn Bhd [2003] 4 CLJ 709). In those cases, there was an express clause in the contracts providing for the employers to hold the retention monies on trust for the contractors in a fiduciary capacity. But where there is no such or similar provision, a trust ought not to be construed as subsisting and more so when the conduct of parties does not lend itself to such an inference. The Court of Appeal also observed that there is no general proposition of law in a building contract that retention monies are, as a rule, held by way of trust between an employer and a contractor. [14]While the Court of Appeal accepted the principle that a trust may exist without the necessity of having to use express words relating to trusts to create it (see: Re Kayford Ltd [1975] 1 All ER 604), it affirmed the principle that a trust fund may not come into existence just because a contractual clause provides so. Indeed it was pointed out by the Court of Appeal that there was a clear difference between an intention to create a trust and the creation of a valid trust. Thus, Clause 16.3 and the relevant provisions in the Appendix related to the said Clause could at best be said to have created a contractual obligation on the part of the employer to retain the monies in favour of the Page 3 of 8 SK M&E Bersekutu Sdn Bhd v Pembinaan Legenda Unggul Sdn Bhd (in creditors’ voluntary liquidation) and another appeal .... sub-contractor and to release them when the conditions have been satisfied. Any failure by the employer to comply with such obligation would be a contractual default. [15]Another principle of law mentioned by the Court of Appeal is that traditionally under the law of equity and trusts, property must be separately identifiable in order to infer a trust so that there would be a tangible subject matter upon which the trust could be impressed. [16]And it was suggested by the Court of Appeal that there should be set up a statutory mechanism for retention monies to be kept separately on trust for sub-contractors to ensure the protection of their interest, similar to what has been introduced in other jurisdictions. ISSUES BEFORE THIS COURTThe Leave Questions [17]On 26.10.2017, this Court granted leave to appeal in relation to the following questions of law: (i) Where a building contract provides that a certain percentage of the certified sum for work done by a contractor is to be retained by the employer until the conditions for the release of the sum retained (“retention sum”) are met: (a) is it implied by law that the retention sum is to be held in trust by the employer for the benefit of the contractor; or (b) is it a matter of construction (interpretation of contract) whether or not the retention sum is to be held in trust by the employer for the benefit of the contractor? (ii) Where in a building contract there exists an agreement (whether arising by implication of law or upon construction of the contract) that the retention sum is to be held in trust by the employer for the benefit of the contractor, can the trust of the retention sum be constituted without the employer first appropriating and setting aside the money as a separate trust fund? THE APPELLANTS’ SUBMISSION [18]The Appellants assert that: (i) in a construction contract retention monies are trust monies held by an employer in a fiduciary capacity, as trustee for the benefit of the contractor.
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