In Ng Chin Chai (as public officer and Honorary Secretary of the Badminton Association of Malaysia) v Inter-Sports Marketing Sdn Bhd & Anor [2013] 9 MLJ 633 (“Ng Chin Chai”), the learned High Court judge stated the following in passing:

“The decision of the Federal Court in Suwiri Sdn Bhd v Government of the State of Sabah has been followed by the Court of Appeal in various cases such as Woolley Development Sdn Bhd v Stadco Sdn Bhd(No 1) [2011] 6 MLJ 111; [2010] 7 CLJ 73 and Ngan & Ngan Holdings & Anor v Central Mercantile Corp (M) Sdn Bhd [2010] 1 MLJ 822; [2010] 3 CLJ 818.”[1]

            [“Impugned Statement”]

The Impugned Statement, can be broken down as follows:

Proposition: The Federal Court’s decision in Suwiri Sdn Bhd v Government of the State of Sabah (“Suwiri”) has been followed by the Court of Appeal in various cases [“Impugned Proposition”]; and

Supporting Case Law: Woolley Development Sdn Bhd v Stadco Sdn Bhd(No 1) [2011] 6 MLJ 111; [2010] 7 CLJ 73 (“Woolley Development”) and Ngan & Ngan Holdings & Anor v Central Mercantile Corp (M) Sdn Bhd [2010] 1 MLJ 822; [2010] 3 CLJ 818 (“Ngan & Ngan Holdings”) [“Impugned Supporting Case Law”]

Impugned Proposition

At the time of the learned High Court judge’s Grounds of Judgment in Ng Chin Chai, namely 11th March 2013, the Impugned Proposition was inaccurate.

The earliest reported Court of Appeal decision in the Current Law Journal and Malayan Law Journal which adopted Suwiri was Pengarah Jabatan Perhutanan Negeri Selangor Darul Ehsan & Anor v Syarikat Sebati Sdn Bhd [2017] 4 CLJ 101 [“Syarikat Sebati”] on 7th December 2016:

 “In our view, the draft agreement in law cannot be construed as a contract without execution as well as evidence that it has been executed as per the requirement of GCA 1949. (See Suwiri Sdn Bhd v. Government of the State of Sabah [2008] 1 CLJ 123).”[2]

From the time Suwiri was decided (i.e. 21st August 2007) until the present day, Suwiri has not received widespread adoption based on reported Court of Appeal decisions.[3]

A rarity other than Syarikat Sebati would be Glomac Alliance Sdn Bhd v Nordin bin Md Zain [2023] 3 MLJ 393 whereby the Court of Appeal made reference to Suwiri:

“The Federal Court in the case of Suwiri Sdn Bhd v Government of the State ofSabah [2008] 1 MLJ 743 also held that:

“[10] The doctrine of privity of contract is that as a general rule, a contract cannot confer rights or impose obligations on strangers to it, i.e persons who are not parties to it.”[4]

Impugned Supporting Case Law

With all due respect to the learned High Court judge, the Impugned Supporting Case Law are inaccurate.

The Court of Appeal judges in Woolley Development and Ngan & Ngan Holdings made no reference to Suwiri, and hence could not have followed Suwiri.

The following are the cases referred to by the Court of Appeal in Woolley Development:

Meanwhile, the cases referred to by the Court of Appeal in Ngan & Ngan Holdings are as follows:

In light of all of the above, the Impugned Statement should be treated cautiously.


[1] Ng Chin Chai (as public officer and Honorary Secretary of the Badminton Association of Malaysia) v Inter-Sports Marketing Sdn Bhd & Anor [2013] 9 MLJ 633 (HC), at para 103

[2] Pengarah Jabatan Perhutanan Negeri Selangor Darul Ehsan & Anor v Syarikat Sebati Sdn Bhd [2017] 4 CLJ 101 (CA), at para 11

[3] In Kerajaan Negeri Selangor dan satu lagi lwn MACH 8 Sdn Bhd [2022] 5 MLJ 168, the Court of Appeal distinguished Suwiri from the facts of the case before it (see para 27)

[4] Glomac Alliance Sdn Bhd v Nordin bin Md Zain [2023] 3 MLJ 393 (CA), at para 37