Ahmad Norazli Yais Bin Razali v Transwater Api Sdn Bhd (BA-22NCvC-406-09/2019)

Purchase Order No: HQAF00065 dated 5.1.2017; and 3

Purchase Order No: HQAF00168 dated 14.6.2017. 4 5 [8] PO No: HQAF00065 is for the following services : 6 i. to supply, deliver, install, test and commission shelter as below 7 specification Panel Materials and Sizes 3 :- 8 a) Trailer Cabin registration including Professional 9 Engineer endorsement and JPJ, Puspakom approval; 10 b) Shelter size 5000mm (L) x 23000mm (W) x 2300mm 11

(H); 12 c) Vacuum epoxy laminated shelter panels, using 13 aluminium face skins separated by structural foam; 14 d) Insulated panel of 50mm colourband for outside surface; 15 e) Chassis shall be steel box section galvanized steel; 16 f) Shelter Wrap body sticker; 17 g) Trailer Chassis must be equipped with lift jack that can 18 support on 3 tons’ load; 19 h) Trailer Chassis wiring for lamp and signal; 20 i) The supplied skids and lift/tie-down rings facilitate 21 handling by crane; 22 j) Air conditioner 2.0 HP 6; 23 k) Seated 18; 24 l) Roof Guard Rail (24” high) with access ladder; 25 m) Overheard cabinet (above workbench); 26 n) Workbench (including 1 unit Office Chair); 27 o) Display unit LED Green technology smart TV 42” 28 industrial PC HDMI/VGA 3; 29 p) Gas cylinder Cage including the cylinder safety strap 1 and bracket; 2 q) Fluorescence light 9; 3 r) Outdoor light 3; 4 s) Analyse Rack incoming supply; 5 t) Electrical wiring complete with outlet socket 27; 6 u) Industrial plug (wall mounted) for incoming supply 3; 7 8 ii. To supply and install Signboard 3; 9 10 iii. To supply, deliver, install, test and commission Telescopic 11 Tower for Meteorology 10mm (4 colum) 3 :- 12 a) With lightning arrester; 13 b) Wired rope/guy wire include fastener; 14 c) 35m guy wire for net sensor tower include fastener; 15 d) Approx. extended height – 35 ft include fastener; 16 e) Rising system; crank assembly; 17 f) Approx. weight : 74 lbs; 18 19 iv. Test and commissioning 3. 20 21 [9] The Defendant revised and reduced the scope of work found in PO 22 No. HQAF00065 and issued PO HQAF00168. Hence the total sum under 23 PO No: HQAF00168 came to an aggregate of RM2,318,644.00. 24 25 [10] The Plaintiffs undertook the delivery and installations as agreed and 26 consequently issued 5 invoices to the Defendant. 27 28 [11] The 5 invoices relied on by the Plaintiffs for their claim before this 1 Court is tabulated as follows below : 2 3

6/12/2016 Invoice No. 1

6/2/2017 Invoice No. 2

7/4/2017 Invoice No. 3

6/7/2017 Invoice No. 4

4/2/2018 Invoice No. 5 RM71,762.00 Total RM2,086,779.60 4 [12] It is an admitted fact between the parties that the Defendant has 5 fully paid the sum of RM577,533.70 and RM276,283.70 billed under 6 Invoice No. 1 and No. 2 respectively. These 2 invoices are not an issue in 7 this trial. 8 9 [13] It is common ground that the Defendant has paid the sum of 10 RM917,849.60 under Invoice No. 3. The payment was made in 3 11 installments in the following manner : 12 13 Date Amount Evidence 1. 14/6/2017 RM450,000.00 Bundle B1 p 83 2. 20/7/2017 RM317,849.60 Bundle B1 p 84 3. 3/8/2019 RM150,000.00 Bundle B1 p 85 14 [14] There is a balance of RM11,468.30 that is due and owing. The 15 Defendant believes that the sum of RM11,468.30 ought to be set off from 16 the losses the Defendant alleged it suffered in their Counterclaim. 17 [15] As for Invoice No. 4, it is not disputed that the Defendant had paid 1 RM469,000.00 directly to A-Plus Manufacturing Sdn Bhd. A-Plus 2 Manufacturing Sdn Bhd is the Plaintiff’s contractor who built the cabins. 3 The payments were made pursuant to two Letters of Undertaking issued 4 by the Plaintiffs dated 17 October 2017 and 24 November 2017. 5 6 [16] Evidence of the payment made to A-Plus Manufacturing Sdn Bhd 7 was conceded by the Plaintiffs’ main witness, Encik Ahmad Khairul Anuar 8 b Mohamed Nor (PW 1) when he was under cross-examination. This 9 evidence is found at p 61 of the NOP dated 6.12.2021 Encl 95) 10 11 “MR : Kita beralih kepada invois yang keempat. Kalau jumlah yang 12 harus dibayar, sepertimana yang dituntut adalah RM508,164.00 dan 13 Plaintif telah bersetuju, mengakui bahawa mereka telahpun, mereka 14 menerima penolakan RM469,000 daripada RM508,164 betul? 15 Khairul : Betul. 16 17 MR : Maka, apakah baki yang kena dibayar berdasarkan tuntutan 18 Plaintif bawah invois keempat? 19 Khairul : Sepatutnya amaunnya akan berubahlah. 20 21 MR : Ya lah, berapa 22 Khairul : Saya tak dapat kira sekaranglah pada Tuan. 23 24 MR : Ok saya tolak. Saya membantu kamu. 25 Khairul : OK 26 27 MR : RM508,164 tolak RM469,000 adalah RM39,164. 28 Khairul : Ya. 29 30 MR : Betul? 31 Khairul : Betul.” 32 [17] PW 1 agreed that the sum of RM469,000.00 ought to be deducted 1 from RM508,164.00 leaving the balance owing as RM39,164. The 2 Defendant has contended that the sum of RM39,164.00 ought to be set 3 off from the alleged losses suffered by the Defendant in their 4 Counterclaim. 5 6 [18] Quite apart from the above, the Plaintiffs have imposed a 10% 7 weekly interest on the balance sum owing for Invoice No. 4. The 8 Defendant has argued that the 10% weekly interest was unilaterally 9 imposed without the Defendant’s consent or knowledge. 10 11 [19] This 10% weekly interest forms part of the main crux of the Plaintiffs 12 claim. In this instant civil suit, the Plaintiff has claimed for Invoice No 4 as 13 follows : 14 15 Invois Jumlah Bayaran Diterima Faedah pada kadar 10% seminggu setakat 19/9/2019 Jumlah tertunggak Invois Ke 4 508,164.00 5,742,253.20 (tidak berbayar selama 113 minggu dari 20/7/2017 6,250,417.20 16 [20] It will be seen from the table above that at 10% weekly interest or 17 520% per annum, the Plaintiffs claim against the Defendant on the total 18 sum of Invoice No. 4 of RM508,164.00 spirals up to an exponential figure 1 of RM6,250,417.20. 2 3 [21] Next is in regard to Invoice No. 5 which is for an amount of 4 RM71,762.00. PW 1 made reference to this amount when he was under 5 cross-examination. He explained that this amount was pertaining to the 6 claim for the last cabin unit installed at USM Penang. 7 8 The Counterclaim 9 [22] The Counterclaim filed by the Defendant deals with the losses 10 allegedly suffered arising from the delay in delivery of the cabins as well 11 as for expenses incurred to repair and rectify defective workmanship on 12 the part of the Plaintiffs in particular the flooring and roofs of the cabins 13 causing severe leakage problems when it rained. 14 15 [23] The Defendant’s counterclaim against the Plaintiffs are tabulated 16 below as follows : 17

Kos pembaikan dan pembelian barang untuk kerja pembaikkan RM3,977.80 2. Kos pembaikan untuk roof defect & steel structure untuk 27 unit cabin RM261,900.00 3. Kos pembaikan untuk cabin floor RM46,400.00 4. Kelewatan faedah 10% setahun untuk kabin mobil bawah PO HQAF00065 RM45,537.60 5. Variable charges

Reporting Charges RM65,700.00 Jumlah RM452,015.40 18 The Plaintiffs’ Position 1 [24] As highlighted earlier the Plaintiffs are not disputing the fact that the 2 Defendant had paid in full for the sum billed in Invoice No. 1 and No 2 and 3 part of the amount billed in Invoice No. 3. 4 5 [25] The Plaintiffs point out that the Defendant had failed to pay up for 6 the 10% interest charged being late payment for Invoice No. 4. The 7 Plaintiffs have alleged that delivery and installation of the cabins had been 8 fully completed in accordance to the terms of the PO as agreed. 9 10 [26] The Plaintiffs state that they have addressed the Defendant’s 11 dissatisfaction with the late delivery and installation of the cabins as well 12 as the alleged defective workmanship which they do not admit to. 13 14 The Defendant’s Position 15 [27] As highlighted earlier the Defendant disputes the amount claimed 16 by the Plaintiffs and secondly has raised a Counterclaim as a defence and 17 set-off against the Plaintiff’s quantification of the balance sum due and 18 owing. 19 20 Invoice No 3 21 [28] With reference to the table in Para 13, the Defendant asserts that it 22 has paid the sum of RM917,849.60 for Invoice No. 3 thus leaving a 23 balance of RM11,468.30 still unpaid. The Defendant asserts that the 24 balance sum of RM11,468.30 ought to be set off from the losses suffered 25 by the Defendant in their Counterclaim. 26 27 28 29 Invoice No 4 1 [29] The Defendant asserts that it had paid RM469,000 directly to A-Plus 2 Manufacturing Sdn Bhd and thus it is only owing the sum of RM39,164 3 still outstanding. The Defendant has submitted that the sum of RM39,164 4 ought to be set off from the losses suffered by the Defendant in their 5 Counterclaim. 6 7 [30] The Defendant has objected strongly to the weekly interest of 10% 8 that was unilaterally imposed by the Plaintiffs without their consent or 9 knowledge. It was argued that the disputed 10% weekly interest was 10 never a term of the contract between the Plaintiffs and the Defendant. 11 12 [31] After considering the facts of the case and the defences relied on by 13 the Plaintiffs in the counterclaim and the Defendant in the main claim, this 14 court has framed the following issues for deliberation which this Court 15 considers is pivotal to arriving to its decision in this case. 16 17 Invoice No. 5 18 [32] The Defendant has contended that the Plaintiffs have no basis to 19 claim the sum of RM71,762 as the Defendant had already paid that 20 amount under the Letters of Undertaking directly to its manufacturer, A- 21 Plus Manufacturing Sdn Bhd. 22 23 The Trial 24 [33] At the trial the Plaintiffs led evidence through 3 whilst the Defendant 25 called 6 witness. The particulars of the witnesses are shown below : 26 27 28 Witness Name Designation SP 1 Ahmad Khairul Anuar b Mohd Nor Project Manager & Consultant for Plaintiff SP 2 Mohd Zahir 2nd Plaintiff SP 3 Alex @ Chew Huat Chiang Managing Director (A-Plus Manufacturing Sdn Bhd) SD 1 Wong Kim Chew Senior Technical Engineer for Pakar Scieno SD 2 Azam b Abdullah Operations Manager (Air Division) SD 3 Kevin Ong Managing Director (Advanced Industrial Solutions Sdn Bhd) SD 4 Mohd Nazri b Hassan Pengurus (Arah Masyur Enterprise) SD 5 Hasnur Izwan b Hassan Basri Technical Manager (Transwater API) SD 6 Dr. Abdul Rani Abdullah Chief Executive Officer (Pakar Scieno) 1 Issues 2 [34] In the ensuing part of this judgment, this court will structure its 3 deliberations around the issues listed out below. 4 5

whether the Defendant owed the Plaintiff the sums claimed 6 individually in the 5 Invoices issued pursuant to PO No. 7 HQAF000168; 8 9

(ii) Whether the Plaintiffs are entitled to charge interest at 10% 1 per week for late payment in Invoice No. 4; 2 3

(iii) Whether the leakages in the cabins were caused by the 4 Defendant; 5 6

(iv) Whether the Defendant has proven their Counterclaim against 7 the Plaintiff; 8 9

Whether the Defendant can set off their claim for outstanding 10 payments for repair works through their counterclaim. 11 12 Decision of the Court 13 [35] It is a well settled principle of the law that the Plaintiff bears the legal 14 and evidential burden to prove on a balance of probabilities of establishing 15 a case against the Defendant throughout the trial. Similarly where there is 16 a counterclaim it is the duty of the Defendant to prove the Counterclaim 17 on a balance of probabilities. 18 19 [36] Under sections 101, 102, 103 and 106 of the Evidence Act 1950 it 20 is provided that whoever desires any court to give judgment as to any legal 21 right or right or liability, dependent on the existence of facts which he 22 asserts, must prove that those facts exist. The burden of proof lies on that 23 person who would fail if no evidence at all were given on either side. The 24 burden of proof as to any particular fact lies on that person who wishes 25 the court in its existence, unless it is provided by any law that the proof of 26 that fact shall lie on any particular person. When any fact is especially 27 within the knowledge of any person the burden of proving that fact is upon 28 him. Clarity on this issue is found in the case of Letchumanan Chettiar 29 Alagappan @ L Allagappan (as executor to SL Alameloo Achi alias 1 Sona Lena Alamelo Acho, deceased) & Anor v Secure Plantation Sdn 2 Bhd [2017] 5 CLJ 418. Here the Federal Court explained in the following 3 manner : 4 5 "[56] Thus, a plaintiff has both the burden of proof as well as the 6 initial onus of proof. In Britestone Pte Ltd v. Smith & Associates Far 7 East, Ltd [2007] 4 SLR 855, the Singapore Court of Appeal per VK Rajah 8 JCA, delivering the judgment of the court, explained that at the start of 9 the plaintiff's case the burden of proof and the onus of proof coincide: 10 ... at the start of the plaintiff's case, the legal burden of proving the 11 existence of any relevant fact that the plaintiff must prove and the 12 evidential burden of some (not inherently incredible) evidence of the 13 existence of such fact coincide. Upon adduction of that evidence, the 14 evidential burden shifts to the defendant, as the case may be, to adduce 15 some evidence in rebuttal. If no evidence in rebuttal is adduced, the 16 court may conclude from the evidence of the defendant. If, on the other 17 hand, evidence in rebuttal is adduced, the evidential burden shifts back 18 to the plaintiff. If, ultimately, the evidential burden comes to rest on the 19 defendant, the legal burden of proof of the relevant fact would have been 20 discharged by the plaintiff. The legal burden of proof - a permanent and 21 enduring burden - does not shift. A party who has the legal burden of 22 proof on any issue must discharge it throughout. Sometimes, the legal 23 burden is spoken of, inaccurately, as 'shifting'; but what is truly meant is 24 that another issue has been engaged, on which the opposite party hears 25 the legal burden of proof. 26 [57] The rule is that 'the onus of proof of any particular fact lies on 27 the party who alleges it, not on him who denies it; et incumbit 28 probation qui decit, non qui negat, Actori incibit probation... The plaintiff 29 is bound in the first instance, to show a prima facie case, and if he 30 leaves it imperfect, the court will not assist him. Hence the maxim 31 Potior est condition defendantis. A plaintiff cannot obviously advantage 32 himself by the weakness of the defence. A plaintiff's case must stand or 33 fall upon the evidence adduced by him. When, however, the defendant, 1 or either litigant party, instead of denying what is alleged against him, 2 relies on some new matter which, if true, is an answer to it, the burden 3 of proof changes sides; and he, in his turn, is bound to show a prima 4 facie case at least and, if he leaves it imperfect, the court will not assist 5 him. Reus excipendo fit actor' (Woodroffe and Amir Ali, Vol 3 at pp 3190- 6 3191).” (Emphasis added) 7 8 [37] Bearing all the above in mind I now move on to deal with the issues 9 that were raised. The Plaintiffs claim that they have completed the works 10 as agreed under the PO but they have not received the full payment from 11 the Defendant 12 13 Amount in dispute in Invoice No. 3 14 [38] The documentary evidence confirm that the Defendant had paid the 15 sum of RM917,849.60 to the Plaintiff under Invoice No. 3. This sum 16 consists of RM450,000 paid on 14.6.2017, RM317,849.60 on 20.7.2017 17 and RM150,000 on 3.8.2019. Since the claim in Invoice No. 3 is for 18 RM929,317.90, there is a sum of RM11,468.30 still outstanding. 19 20 Amount in dispute in Invoice No. 4 21 [39] The amount claimed for Invoice No. 4 is RM508,164.00. From the 22 evidence adduced through oral testimony of witnesses and examination 23 of the contemporaneous documents I accept and note that the Defendant 24 had indeed made a direct payment to the Plaintiff’s contractor for the sum 25 of RM469,000.00. Therefore, there is a balance of RM39,164.00 owed to 26 the Plaintiffs. The Defendant has submitted that this sum ought to be set 27 off from the alleged losses suffered by the Defendant in their 28 Counterclaim. This argument remains to be seen if indeed the Defendant 29 is successful in proving its Counterclaim. 30 Whether the Plaintiffs are entitled to charge interest at 10% per week 1 for late payment 2 [40] The bone of contention regarding Invoice No. 4 is the eyebrow 3 raising weekly interest that was imposed by the Plaintiffs which the 4 Defendant submits was unilaterally imposed without the consent or 5 knowledge of the Defendant. 6 7 [41] When calculated at 10% per week, the Plaintiffs stand to claim from 8 the Defendant an astronomical 520% per annum on the total sum of 9 Invoice No. 4. It will therefore be from the initial amount owed at 10 RM39,164.00 to snowball into the sum of RM6,250,417.20. The Plaintiffs 11 justify their right to impose that interest rate because they claim that the 12 actions of the Defendant in failing to make payments within the time frame 13 and manner agreed pursuant to the payment terms on the POs have 14 caused the works to be delayed and that led to the Plaintiffs being unable 15 to complete the project within the stipulated period, especially so in this 16 case when it involved work carried out by subcontractors such as the 17 Plaintiffs, where payment is required to be paid in advance in order to 18 carry out the remaining part of the work. The Plaintiffs assert that they had 19 generously given a credit period of 14 days failing which a penalty interest 20 of 10% per week for late payment would be imposed. The Plaintiffs have 21 pointed out that the Defendant’s representative Encik Hasnur Izwan (DW 22 5) signed the said Invoice on 6.7.2017 and hence the Defendant cannot 23 claim to be unaware of the interest penalty imposed in that Invoice. 24 25 [42] As noted the Plaintiffs relied on a number of cases such as in 26 Perangsang Dagang Sdn Bhd v Tanjung Teras Sdn Bhd & Ors [2008] 27 2 CLJ 199, Woon Hoe Kan & Sons Sdn Bhd v Bandar Raya 28 Developments Bhd [1973] 1 LNS 176 and Boustead Trading (1985) 29 Sdn Bhd v Arab Malaysian Merchant Bank Bhd [1995] 3 MLJ 331. 1 While this Court appreciated the views expressed in these cases, it must 2 be emphasized that the facts and circumstances of those cases differed 3 vastly from the case presently before this court. There is no doubt and 4 truth to the view that the imposition of interest on overdue accounts is in 5 fact common practise in cases involving goods sold and delivered. In 6 those cases, the defendants had not shown any whisper of protest to the 7 charging of such interest and hence they rightly were estopped form so 8 doing after action is filed. 9 10 [43] The difference here in the instant case is that the disputed 10% 11 weekly interest was never an agreed term of the contract between the 12 Plaintiffs and the Defendant. In fact, it was never even a term of the 13 contract. It is also pertinent to observe that this unilaterally imposed term 14 of 10% weekly interest is absent in Invoice No. 1, Invoice No. 2, Invoice 15 No. 3 and Invoice No. 5 issued by the Plaintiffs. Even the Plaintiffs’ own 16 witness i.e. PW 1 admitted during cross-examination that the 10% weekly 17 interest was never a term of the contract and of its absence in all the other 18 Invoices. Quite pertinently PW 1 went so far as to admit that the 10% 19 weekly interest was unilaterally inserted into Invoice No. 4 after the terms 20 of the contract had been discussed and concluded and the work had been 21 done. 22 23 [44] I am minded to refer to the case of Agromate (M) Sdn Bhd v Felcra 24 Niaga Sdn Bhd [2020] MLJU 1311 where the learned Judge held that :- 25 26 “With respect, I do not think that the Plaintiff can unilaterally 27 impose a term imposing late payment interest into its contract with 28 the Defendant after the conclusion of the contract between the 29 Plaintiff and the Defendant. There is no evidence to suggest that 1 the Defendant had accepted the term on the imposition of late 2 payment interest that was imposed unilaterally post the contract 3 vide the Plaintiff’s invoices and Delivery Orders. In particular the 4 Defendant had not paid any late payment interests to the Plaintiff under 5 any of these Invoices during the entire period from 2016 until May 2018. 6 The Plaintiff also did not issue any invoices for any late payment interest 7 during the said period. 8 … 9 [15] The only documents that the Plaintiff could rely upon are the 10 Invoices and Delivery Orders which were only issued to the 11 Defendant after the conclusion of the contract. These documents 12 were only issued either at the time the goods were delivered or 13 some time thereafter. Such a term stated in the Invoices and 14 Delivery Orders after the conclusion of the sale contract 15 constitutes a unilateral term imposed by the Plaintiff which surely 16 cannot bind the Defendant unless accepted.” 17 18 [45] Learned counsel for the Defendant was not far off the mark when 19 he pointed out that even moneylenders did not charge such an exhorbitant 20 rate as that imposed by the Plaintiffs. 21 22 [46] In my respectful view the imposition of late payment interest at 10% 23 per week is unreasonable, untenable and without merit and not allowed in 24 any written law. It is beyond basis or justification that a sum that was 25 initially owing at RM39,164.00 can balloon up to RM6,250,417.20. I would 26 hold, to put it mildly the rate charged is unjustified, arbitrary and an 27 unconscionable act to say the least. The Plaintiffs had no right to 28 unilaterally impose and charge this late payment interest. The Plaintiffs 29 had never informed the Defendant at the time when the goods and 30 services were ordered that late payment interest would be imposed. While 31 the Plaintiffs have justified their actions by stating that the Defendant had 1 signed the Invoice which contained the late payment interest penalty, it is 2 also trite that the claimant cannot impose late payment interest unless it 3 has been made known to and agreed by the buyer prior to the transaction. 4 I am in agreement with the Defendant’s contention that the Transwater 5 API business chop on the Invoice in question was merely an 6 acknowledgement of receipt of the invoice and did not signify an 7 agreement to the insertion of the 10% weekly interest. 8 9 [47] In light of the above reasons this Court finds the insertion of the 10 weekly interest is invalid and would dismiss the Plaintiffs’ prayers for 10% 11 interest weekly on the sum of RM508,164.00. The Court accepts that the 12 correct sum still owing under Invoice No. 4 is RM39,164.00 and it remains 13 to be seen whether this amount ought to be set off from the alleged losses 14 suffered by the Defendant in their counterclaim. 15 16 Amount in dispute in Invoice No. 5 17 [48] Invoice No. 5 is for the sum of RM71,762.00. The Plaintiffs have 18 conceded that Invoice No. 5 is the claim for the last cabin unit installed in 19 USM Penang. 20 21 [49] It was contended that the Plaintiffs had no basis to claim the sum of 22 RM71,762.00 as the Defendant had already paid for the said cabin under 23 the Letters of Undertaking directly to A-Plus Manufacturing Sdn Bhd. This 24 was put to the Plaintiffs’ witness during the trial and he did not vehemently 25 disagree to that challenge. PW 1 testified on this issue and under cross- 26 examination he conceded to the following : 27 “MR : Maka kamu mengesahkan di sini, kepada Mahkamah yang 1 mulia ini bahawa invois kelima itu, wang yang kena dibayar kepada A- 2 Plus Manufacturing oleh Plaintif telahpun dibayar oleh Defendan. 3 Khairul : Dibayar amaun yang jumlah… 4 Khairul : Ok, I say its committed, yes.” 5 (extracted from P 75 NOP dated 6.12.2021) 6 7 [50] It is further noted that there are 2 conflicting tax Invoices issued by 8 the Plaintiff on the same date in regard to the USM cabin. There was no 9 evidence adduced of its service on the Defendant. Neither of these tax 10 Invoices were received or acknowledged by the Defendant. Both invoices 11 were not signed by any of the Defendant’s employees. 12 13 [51] A perusal of these invoices will show that one was issued under 04- 14 D and another was issued under 04-E. Interestingly enough the tax 15 Invoice 04-E has the unilateral imposition of the 10% interest per week 16

There’s a gap when you join these 2 compartment. So in order to 29 close the gap, they use a L shape angle bar to close it. That’s correct. 30 You can prevent leak because if you don’t close it, water will go in 31 through the gap. Now, refer to the picture 71. This is a L shape angle 32 bar but the problem is the L shape angle bar, now we refer to picture 33

Picture 140 show the water ponding on the rooftop. Picture 141, 34 on the picture 141 we can see the angle bar, the thickness of the 1 angle bar is slightly higher than the surface of the rooftop. Its 2 exactly the …its about more than 5 mm I can see from here. When 3 the angle bar is higher than the surface of the rooftop, its 4 automatically it become an obstacle to prevent water falling down 5 from the roof whenever there is a rainy season, whenever water 6 accumulate on the rooftop. So, this is the main reason why the 7 water keeps on ponding on the surface of the rooftop. And now the 8 next scenario is how the water going in to the station. Refer to picture 9

That is a safety hand rail. This is a safety hand rail installed by PAY 10 themselves. 11 Wong : Now you can see? This is the safety hand rail surrounding the 12 cabin rooftop as we how in the engineering diagram. So, what Pay did, 13 they do the installation, correct they do the installation, the problem is, 14 they install of the safety hand rail directly into the surface of the 15 …directly install the stand on the fibre glass. 16 Wong : Ok. When install the safety railing on the surface of the fibre 17 glass sheet, when they drill the hole directly into the cabin, they drill the 18 hole from the picture 141, you can see clearly its drill the hole directly 19 into the surface in order to secure the safety hand rail. And from the 20 engineering view of this, it wont stop water from getting in to it 21 because there is no sealant on the screw as will and I don’t see any 22 water able to flow out from the surface once you put in the safety 23 hand rail. 24 Wong : Because of this action putting the safety hand rail on the 25 surface, the end result causing all the cabin wall either left or right, 26 we have leak issue directly. There’s water mark coming down on the 27 wall. There’s a lot of pictures proving it. But there’s no one, even one 28 single picture proven that water leakage in the middle of our sample inlet 29 manifold caused by this…our installation because Yang Arif under the 30 sample inlet manifold where we install all kinds of sophisticated 31 analytical equipment, analyse date, (inaudible), sensor, all are 32 underneath the air sample inlet manifold. If the water going in form the 33 air sample manifold, its definitely going to jeopardise my system 34 cause my system basically I using electricity to operate. If water 1 drop on my analyser, it will short-circuit and we have electrical 2 hazard and we have to shut down the system. And it’s the down 3 time for the …for PSTW where we can’t produce quality data to the 4 Government if we shut down the equipment due to water leakage. 5 That’s all Yang Arif.” 6 7 [59] I find the explanation and reasons to support the explanation to be 8 believable, credible and probable. On top of that, the contemporaneous 9 documents such as the photographs referred to and shown by SD1 in his 10 evidence aforesaid lead me to the irresistible inference that it is more 11 probable than not that the cause of the water leakages and puddling of 12 water on the rooftop was caused by the L shape angle bar that was 13 installed higher than the surface of the rooftop and the absence of sealant 14 on the holes drilled to install the safety bar railing. It is not disputed that 15 these works were carried out by none other than the Plaintiffs. 16 17 [60] This finding is strengthened yet further by the contents of the 18 WhatsApp messages (Exhibit D5) sent by PW 1 to the Defendant in a 19 series of exchanges. In these WhatsApp messages PW 1 clearly 20 acknowledged and admitted that the cause of the leakages was due to 21 the gap arising from work which had not been carried out in a proper 22 manner. An excerpt of the WhatsApp messages is reproduced down 23 below : 24 25 “27 February 2017, 16:04:49, Khairul, 26 TTDQ leaking kt tepi tu tak seal lagi 27 27 February 2017, 16:05:23, Khairul, 28 Ada satu gap itu kena seal”. 29 (The photograph of the gap can be seen at p 107 Exh D5) 30 [61] What can be gleaned from these WhatsApp messages is the 1 voluntary admission from the Plaintiffs’ witness that these leakages at the 2 cabins existed even before the installation of the air inlet manifold. 3 Reference is made to the following WhatsApp messages between DW 5 4 and the Plaintiffs 5 6 “23 February 2017 DW 5, hasnur, 7 16:58:33 Air masuk kat pintu 8 16:58:44 Ari tu dah bgtau kena buat awning 9 16:58:52 Sbb air mmg bole masuk ikut pintu 10 16:59:05 Kat alex pun dah cakap pasang awning 11 March 2017 Fariq TW, 12 17:17:05 Smt Melaka 13 17:18:18 Bocor 14 17:18:47 Dr smlm…until now tade action…mintak segera k…musim 15 hujan ni 16 17:59:06 Bocor after pasang railing 17 31 March 2017 DW 5, Hasnur, 18 17:48:32 Nak bgtau aku g kabin shah alam smlm…ade bocor lagi 19 17:48:40 Meleleh ikut dinding 20 6 April 2017, DW 5, Hasnur, 21 11:12:28 Nie bocor ke apa zam 22 11:12:36 Dapat report dari engineer kat site 23 11:14:43 Minta rectify dengan kadar segera 24 19:04:34 Cabin Balok bocor ikut lubang aircond 25 15 April 2017 DW 5, Hasnur 26 15:37:08 Cabin Klang …teruk bocornya 27 16:00:23 Minta repair dengan kadar segera 28 16 April 2017 DW 5, Hasnur 29 15:48:53 Cabin Segamat bocor 30 15:48:58 Minta tindakan segera 31 23 April 2017 DW 5, Hasnur, 32 19:59:53 Salam…aircond shah alam blom repair lagi…dah banjir sbb 1 aircond bocor 2 19:59:59 Perlukan tindakan segera 3 20:00:22 Dah lama lapor kebocoran tapi blom ade tindakan 4 20:00:41 Mohon tindakan segera. 5 31 May 2017 Fariq TW, 6 20:30:34 Sekolah Tinggi Melaka 7 1) Kabin bocor 8 2) Bean kabin berkarat 9 3) Compressor case tidak di cat. 10 Temerloh 11 Lampu tak menyala 12 Lantai atas kabin retak 13 11 June 2017, PW 5 Hasnur 14 11:05:24 Bumbung cabin stesyen Kluang dah jadi swimming 15 pool…penuh dengan air bertakung…rujuk video yang diambil 16 11:13:58 Kesan yang korang tampal nie pun dah merekah 17 11:14:12 Pastu isu swimming pool nie kene resolve jugak 18 11:14:33 Satu baldi besar gak kumpul air atas ni 19 11:16:41 Masalahnya air bertakung sampai ke tepi…bukan kat tengah 20 saja 21 11:17:02 Maksudnya air ka tatas bumbung nie tak bole nak pg memana 22 11:17:40 Pastu satu lagi isu…kabin lain ikat ketam takde isu surface 23 pecah 24 19 June 2017, SD 5 Hasnur- 25 15:02:33 Cabin Segamat bocor 26 15:02:40 Teruj bocor nie 27 15:02:45 Perlukan tindakan segera 28 29 June 2017, Fariq TW- 29 16:41:04 Salam…cabin Segamat leak…air masuk ikut rivet.” 30 31 [62] It is more than obvious that the leakages at the cabins existed even 32 before the installation of the air inlet. This is evident in the WhatsApp 33 conversations on 23 February 2017, 28 March 2017, 31 March 2017, 6 1 April 2017, 15 April 2017, 16 April 2017, 23 April 2017, 31 May 2017, 11 2 June 2017, 19 June 2017 and 29 June 2017. The contents of the 3 WhatsApp clearly attest to the fact that the leakages were a recurrent 4 issue even from the beginning of the installation of the cabins. It also 5 showed that the leakages were occurring at the sides, at the aircond hole 6 and at the gap on the top of the cabins and not in the centre of the roof of 7 the cabin as maintained by the Plaintiffs. 8 9 The Defendant’s Counterclaim 10 [63] The Defendant filed a counterclaim against the Plaintiff for the 11 losses suffered by them arising from the delay in delivery of the cabins 12 and defective workmanship including defective floors and roofs of the 13 cabins that were delivered to the designated sites. 14 15 [64] The Plaintiffs do not accept that they owe the Defendant any sums 16 of money or payment for the same reasons they filed their claim against 17 the Defendant in the first place. 18 19 [65] The Plaintiffs’ position is that the delay in delivery of the cabins were 20 due and caused by the Defendant who had failed to prepare the site for 21 the delivery of the cabins. The evidence and the documents do not 22 support the Plaintiffs’ arguments. 23 24 [66] An examination of the contemporaneous WhatsApp conversations 25 between SP 1 and SD 5 clearly showed that from the very beginning there 26 was a delay in the delivery of cabins by the Plaintiffs. The WhatsApp 27 conversations are produced below for reference : 28 29 “8 Februari 2011 1 07:35:44 Hasnur : Hari ini dah 8/2 di mana sepatutnya cabin akan 2 dihantar sebanyak 2 unit…minta update status terkini 3 7:39:09 Zam Zam : cabin structure dah siap 6 dgn lagi 2 spot weld, 4 tunggu PU sampai hari ini as epr NIC bagi tau ari tu aje…mat dan aku 5 still commit dengan date delivery worst scenario is aku maybe send out 6 5 unit together before 12/2… sebab other item dah ada dah. 7 12 February 2017 8 13:59:02 Hasnur : As salam Khairul & Zam…any update on the 9 delivery of cabin…seperti yang dijanjikan sebelum ini cabin akan ready 10 deliver to site by 12/2…please update to us ASAP 11 18:40:12 Hasnur : Mengikut jadual penghantaran yang diberikan 12 dahulu…by 13/2 sudah 7 unit cabin telah siap (lengkap dan sedia untuk 13 dihantar…bagaimana dengan jadual penghantaran mengikut keadaan 14 terkini 15 18:41:29 Hasnur: 8/2 - 2 unit 16 10/2 - 2 unit 17 11/2 - 1 unit 18 13/2 - 2 unit 19 Tolak setakat 13/2 sepatutnya 7 unit 20 18:41:58 : Esok akan meningkat kepada 9 unit sepatutnya PAY telah 21 hantar cabin ke site. 22 18:42:18 Hasnur : Minta penjelasan dari pihak PAY 23 18:45:43 Khairul : We will cover back the delay unit by increase your 24 production.” 25 26 [67] It is undeniable that SP 1 admitted in the WhatsApp conversation as 27 demonstrated above that there was a delay by the Plaintiffs in the delivery 28 of the cabins. Given the above the court finds that the Plaintiff has failed 29 to show proof that the delay of the delivery of the cabins were caused by 30 the Defendant. 31 [68] The tabulated format of the Defendant’s Counterclaim can be seen 1 in Para 23 above. 2 3 [69] This Court finds that the Defendant has failed to prove the costs 4 incurred for Items 1, 5 and 6 of the said table and therefore these sums 5 are not allowed. 6 7 [70] The costs for Items 2, 3 and 4 were proven on a balance of 8 probabilities. Items 2, 3 and 4 are the direct consequence of the failure to 9 perform and default of the Plaintiffs and they must compensate the 10 Defendant for the losses and expenses incurred. 11 12 Item 2: Cost of Repairing the roof defects and Steel Structures of 27 13 cabins 14 [71] It is undisputed that the Plaintiffs were under a contractual obligation 15 to comply with the specifications in the contractual drawings pertaining to 16 the construction of the cabins. According to the plan and specifications 17 therein the roof of the cabins was to be built with Galvanised Iron Sheets 18 (GI sheet). However, the Plaintiffs built the cabin roofs with fibre sheet 19 instead. The Defendant has asserted that the fibre sheet besides it not 20 being the specified material was unsuitable and contributed to the 21 leakages on the cabin roof when it rained. More importantly installing the 22 cabin roofs with fibre sheet was in breach of the specifications required by 23 the Department of Environment. 24 25 [72] The Defendant’s witness, DW 2 is a Service Engineer at Transwater 26 API with the dual post of Operations Manager at Pakar Scieno TW Sdn 27 Bhd and was tasked to provide a comprehensive report on defects 28 detected in all the cabins commissioned by the Plaintiffs. In his report 29 found in p 1 – 146 B4 DW 2 identified the defects on the roof and safety 1 railings and the subsequent repair works that were carried out by third 2 party contractors. DW 2 also explained why the Defendant had no 3 alternative but to employ third party contractors to undertake the repair 4 works. He said under re-examination : 5 6 “…laporan saya pada B4, adalah banyak berkenaan dengan rooftop 7 bocor, railing yang bermasalah dan lantai yang rosak. Ok, berkenaan 8 dengan punch list “action taken” tetapi masalah-masalah berkenaan 9 railing, rooftop, ladder yang berkarat dan lantai tidak diselesaikan 10 sepenuhnya dengan baik. Jadi pihak Pakar Scieno terpaksa melantik 11 segera kontraktor-kontraktor seperti Arah Masyur dan AIS untuk 12 menyelesaikan masalah-masalah ini segera supaya tidak dikenakan 13 tindakan oleh pihak Jabatan Alam Sekitar.” 14 15 [73] Due to the delay in delivery, there was a time constraint and Pakar 16 Scieno who was answerable to the Department of Environment contracted 17 with a third party contractor to rectify all the defects on the cabin roof and 18 replace the safety hand railings. 19 20 [74] Despite the Plaintiffs’ denials the evidence of payment made to 21 Advance Industrial Solutions for the repair of the rooftop of the 27 units of 22 cabin have been confirmed by DW 3 its Managing Director together with 23 the relevant documentary evidence such as the Purchase Order and 24 payment invoices. 25 26 [75] The Plaintiffs must reimburse the Defendant the sum of RM261,900 27 which is the cost incurred to repair the roof defects and steel structures of 28 all the 27 cabins. The Plaintiffs acknowledged that they were contracted 29 to comply with the specifications in the drawings as shown in p 1 of bundle 30 B6. Had this specification been complied with then the rooftop structure 1 would not have suffered leakages when it rained. Pakar Scieno had no 2 other option but to engage Advance Industrial Solutions to repair the 3 rooftops as it had to urgently fulfil the requirements set down by the DOE. 4 Pakar Scieno had in turn issued a Notice of Demand to the Defendant to 5 reimburse the sum of RM261,900 for the repair of the rooftops of all the 6 27 units of cabins. The Plaintiffs are therefore liable to reimburse the 7 Defendant for this sum. 8 9 Item 3 Costs of Repairing the Cabin Floor 10 [76] The purchase order no. PO HQAF000 168 issued to the Plaintiffs 11 specified that the floors of the cabins are to be made with marine plywood. 12 The Defendant was issued with a Notice of Demand by Pakar Scenio to 13 reimburse the sum of RM46,400 for the repair of the cabin floors. Arah 14 Masyur Enterprise was commissioned to repair the defective floors of the 15 cabin and Encik Mohd Nazri b Hassan (DW XXX) testified under oath that 16 he had been paid for the works and repairs carried out. The Court accepts 17 the Defendant’s contentions that had the Plaintiff complied strictly with the 18 specifications set out in the Purchase Order, there would have been no 19 necessity or reason to incur the costs of RM46,400. The Plaintiff is 20 therefore liable to the Defendant for this sum. 21 22 Item 4 Late Interest of 10% p.a. for mobile cabin under PO 23 HQAF00065 24 [77] The Defendant had ordered 3 units of mobile cabin from the Plaintiff 25 and these were to be delivered not later than 10.3.2017. The evidence 26 before the court established that the Plaintiff had only delivered one unit 27 of mobile cabin on 5.10.2017 and two remaining units on 15.11.2017. 28 [78] It is a term and condition prescribed in the Purchase Order and 1 within the general terms and conditions attached to the Purchase Order 2 that liquidated ascertained damages for delay shall be charged at the rate 3 of 0.5% per week or a maximum penalty of 10% p.a. 4 5 [79] The court accepts that there was a delay of 35 weeks between 6 March 2017 until the date of delivery of the last mobile cabin in November 7

The Defendant has claimed for the sum of RM45,537.60 being 8 penalty for late delivery. Since the total contract sum under the Purchase 9 Order HQAF00065 is RM455,376.00, the maximum penalty allowable 10 from the total contract sum of RM455,376.00 at 10% would amount to 11 RM45,537.60. It is abundantly clear to this Court that the Defendant is 12 entitled to such interest and is justified in claiming for that sum due to the 13 delay caused by the Plaintiffs. 14 15 Conclusion 16 [80] Upon evaluating all the evidence, it is the finding of this Court that 17 the Plaintiff had succeeded on a balance of probabilities in proving a part 18 of its claim in the sum of RM50,632.30. At the same time this Court is 19 satisfied and makes the finding that the Defendant is successful on a 20 balance of probabilities in proving its defence of set-off in its counterclaim 21 against the Plaintiffs. 22 23 [81] As stated earlier the Defendant owes the Plaintiff the sum of 24 RM50,632.30. The Defendant has successfully proven its counterclaim in 25 the sum of RM353,837.60. I therefore agree with the Defendant’s 26 submission that it has the right to set off the sum of RM50,632.30 towards 27 settlement of the amount owing by the Plaintiffs to the Defendant as these 28 claims arose from the same transaction and as a direct result or 1 consequence of the default of the other party. 2 3 [82] Moreover this defence was specifically raised by the Defendant in 4 paragraph 8(v) of its Statement of Defence. The Defendant is justified to 5 set off the amount of RM50,632.30 from the sums owing as follows : 6 RM353,837.60 - RM50,632.30 = RM303,205.30 7 8 [83] In the premises after considering the Plaintiffs’ claim and the 9 Defendant’s counterclaim the Court orders that the Plaintiffs shall pay the 10 Defendant the sum of RM303,205.30. 11 12 Dated 4 February 2024. 13 14 15 16 17 (JULIE LACK) 18 Judge 19 High Court of Malaya 20 Shah Alam, Selangor Darul Ehsan 21 22 23 24 25 26 27 28 29 Counsel 1 For the Plaintiffs : 2 Mohaji Bin Selamat 3 (MESSRS. MOHAJI, HAZURY & ISMAIL) 4 5 For the Defendant : 6 Manian Raju 7 (MESSRS. MANIAN RAJU & ASSOCIATES) 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29