1. ) Ak Bina Trading & Services v Perbadanan Pengurusan Mont' Kiara Bayu (WA-12BC-18-10/2022)

AK BINA TRADING & SERVICES (Registration No.: 002543002-V)

AHMAD KHIR BIN SERAJUDDIN (Trading under the name and style of

YAMSESNI BINTI ISKANDAR DZULKANAIN (Trading under the name and style of AK Bina Trading & Services) ... APPELLANTS AND PERBADANAN PENGURUSAN MONT’ KIARA BAYU (Registration No.: PTG/WP.20/1/1713) ... RESPONDENT IN THE SESSIONS COURT AT KUALA LUMPUR IN THE FEDERAL TERRITORY OF KUALA LUMPUR, MALAYSIA CIVIL SUIT NO.: WA-A52NCVC-95-02/2021 BETWEEN PERBADANAN PENGURUSAN MONT’ KIARA BAYU (Registration No.: PTG/WP.20/1/1713) ... PLAINTIFF

AK BINA TRADING & SERVICES (Registration No.: 002543002-V)

AHMAD KHIR BIN SERAJUDDIN (Trading under the name and style of

YAMSESNI BINTI ISKANDAR DZULKANAIN (Trading under the name and style of AK Bina Trading & Services) ... DEFENDANTS GROUNDS OF JUDGMENT INTRODUCTION [1] There were two appeals before this Court viz. Civil Appeal No.: WA- 12BC-13-09/2022 ('Appeal No. 13') by Perbadanan Pengurusan Mont’ Kiara Bayu, the Plaintiff in Sessions Court Civil Suit No.: WA-A52NCVC-95-02/2021 and Civil Appeal No.: WA-12BC-18-10/2022; ('Appeal No. 18') by AK Bina Trading & Services, Ahmad Khir Bin Serajuddin and Yamsesni Binti Iskandar Dzulkanain (both trading under the name and style of AK Bina Trading & Services), the Defendants in the said suit. The appeals arose from the decision of the learned Sessions Court Judge (‘SCJ’) on 30.6.2022 after a full trial over a dispute regarding the execution and completion of upgrading of the guard house at Mont' Kiara Bayu Condominium ('Condominium'). [2] After hearing both appeals, I allowed the Plaintiff's appeal in Appeal No. 13 in its entirety while the Defendants' appeal in Appeal No. 18 was allowed in part whereby the order in sub-paras (i)(b), (c) and (d) of the judgment dated 30.6.2022 ('Said Judgment') was set aside. [3] Based on the Notice of Appeal dated 29.8.2023, the Plaintiff is appealing against part of my decision in allowing the Defendants' appeal by setting aside the order in sub-paras (i)(b) to (d) of the Said Judgment. As such, the issues to be addressed in this judgment are whether the trial court was plainly wrong in making the order for the Defendants to indemnify or to pay the Plaintiff all costs or costs arising from the demolition of the roof and the related structures and the construction of a new roof and related structures, and the professional costs for the appointment of engineers, architects and geo-technicians and any professional appointments in relation to the construction of a new roof and related structures. [4] For convenience, the parties shall be referred to as they were in the Sessions Court. BACKGROUND FACTS [5] The Plaintiff is a Management Corporation incorporated under the Strata Titles Act 1985 [Act 318]/ Strata Management Act 2013 [Act 757]. [6] The 1st Defendant ('D1') is a partnership carrying out business in, among others, civil and structural engineering and consultancy. The 2nd Defendant ('D2') and the 3rd Defendant ('D3') are partners trading under the name and style of D1. [7] By a Letter of Award dated 1.11.2019 ('LoA'), the Plaintiff confirmed the award to D1 for the execution and completion of upgrading of the guard house ('Works') at the Condominium in accordance with the quotation submitted on 13.9.2019 for the contract sum of RM240,500.00. [8] The payment term is – “ • 50% upon start work, • 30% upon 60% work progress, • 15% upon completion work and • 5% retention sum for 6 months after job completion.” while the commencement date of the Works is 11.11.2019 and the completion date is 1.1.2020. [9] In accepting the terms and conditions of the LoA on 13.11.2019, D2 warranted, on behalf of D1, that D1 has the necessary qualified professional expertise and requirements/ license to carry out the Works and shall be bound by the LoA. [10] D1 commenced the Works on 11.11.2019. On 27.12.2019, D1 wrote to the Plaintiff to apply for an extension of time ('EoT') from 2.1.2020 to 15.1.2020 to complete the Works due to the rainy season in December 2019. [11] The Plaintiff did not give a written reply on D1's application for EoT. However, in the Reply to the Defence (D1) and Reply to the Amended Defence (D2 and D3), the Plaintiff admitted the Defendants' statements about sending the application for EoT and that in the 27.12.2019 letter, the delay in the Works was said to be attributable to the weather conditions. It is an agreed fact that the Plaintiff had agreed to the EoT (see para 9 of the Agreed Facts). [12] Further, the parties agreed that –

the Plaintiff has paid the Defendants the sum of RM120,250.00 on 13.11.2019 as 50% Deposit, RM72,150.00 on 17.12.2019 as 30% Progress Payment and RM24,050.00 on 12.3.2020 as 10% Progress Payment. The total payments amounted to RM216,450.00 (see para 10 of the Agreed Facts); and

immediately after the Works were completed in March 2020, the Plaintiff discovered water ponding and stagnant without flow on the roof (see para 12 of the Agreed Facts). [13] The first joint inspection of the roof cover was conducted on 6.5.2020. D1 then wrote to the Plaintiff on 13.5.2020 to inform that, as a result of the joint inspection, "Water ponding and stagnant without flow. Roof cover is curved causes water stagnant. Not proper joint causes water leaking to below. Water stagnant causes water mark at above roof." (collectively referred to as the 'Roof Issues') was discovered. D1 provided its proposal to rectify the Roof Issues together with the design proposals. [14] A second joint inspection took place on 14.5.2020. This event, the correspondence which ensued between the Plaintiff and D1, the action plan to mitigate the Roof Issues and the Plaintiff's complaints about D1's handling of the Roof Issues and the failure to carry out rectification works were captured in the Plaintiff's letter to D1 dated 19.6.2020. [15] The parties met on 25.6.2020 and, on 13.7.2020, D1 wrote to the Plaintiff proposing two options as follows:

the Plaintiff to release payment to D1 for D1 to mobilise workers and material to start rectification works at the site; and

D1 to arrange the roof specialist to solve the Roof Issues and the Plaintiff to pay directly to the sub-contractor within the cost balance held by the Plaintiff. D1 will bear any extra charges by the sub-contractor. [16] Another meeting was held on 24.7.2020 and this time, the Plaintiff recorded the discussions at the meeting in its letter to D1 dated 10.8.2020 whereby D1 was required, among others, to carry out the defect rectification works after Hari Raya Haji without fail and to provide the As-Built Drawing before 15.8.2020. [17] However, in D1's letter to P dated 17.8.2020, D1 said that it cannot complete the work as per the Plaintiff's schedule and informed that it will withdraw itself and the balance monies with the Plaintiff will be regarded as compensation. [18] The Plaintiff conveyed that it was not agreeable to D1's withdrawal and will hold D1 responsible for "any consequences, damages to the common property and demands which may arise out of the poorly constructed guard house." (see the Plaintiff's letter to D1 dated 3.11.2020). [19] Subsequently, the Plaintiff had appointed the following experts to assess the defects in the Works:

Perjas Consultants (see the evidence of Ir. Haridas a/l P.K. Nambiar (PW3) and the Engineering Opinion, Expert Report, Preliminary Report and Final Report on the deterioration of the roof problem at the Condominium dated 4.11.2020, 16.11.202,

RK Geotechnique Sdn Bhd; and

Sang QS Consult (see the evidence of Sr Lim Kok Sang (PW4) and the Expert Opinion on, among others, upgrading of the guard house dated 18.11.2020). [20] Basically, the experts opined that the Defendants had used poor quality material in the construction of the Works and the structure should be demolished immediately as it endangered the safety of the Condominium's residents. The Plaintiff then engaged Everest Resources Sdn Bhd ('ERSB') to demolish the roof truss and the roof covering. [21] The Plaintiff's cause of action against the Defendants was essentially for breach of the express and implied terms of the LoA, the Sale of Goods Act 1957 [Act 382] and the Consumer Protection Act 1999 [Act 599] as the construction of the Works was not of merchantable quality and not fit for its purpose and the Defendants have failed to carry out rectification works as represented and guaranteed to the Plaintiff. [22] Among the reliefs claimed by the Plaintiff against the Defendants jointly and severally in para 49 of the Amended Statement of Claim ('SoC') dated 7.5.2021 are as follows: "a) Suatu Deklarasi bahawa Defendan-Defendan telah melanggar kontrak; b) Suatu Perintah bahawa Defendan-Defendan menanggungrugi/membayar Plaintif segala kos dan/atau kos berbangkit daripada pembinaan bumbung yang baru dan struktur yang berkaitan; c) Suatu Perintah bahawa Defendan-Defendan menanggungrugi/membayar Plaintif kos profesional bagi lantikan Jurutera, Arkitek dan Geoteknik dan mana-mana lantikan profesional berhubung dengan pembinaan bumbung yang baru dan struktur yang berkaitan; d) Suatu Perintah bahawa Defendan-Defendan menanggungrugi/membayar Plaintif segala kos dan/atau kos berbangkit daripada perobohan/pembuangan bumbung dan struktur yang berkaitan; e) Secara alternatif, Suatu Perintah untuk Defendan-Defendan memulang balik ("refund") RM216,450.00 kepada Defendan-Defendan sebagai jumlah yang dibayar dibawah Kontrak tersebut;

Suatu Perintah bahawa Defendan-Defendan menanggungrugi/membayar Plaintif sekiranya Plaintif didapati bertanggungjawab oleh pihak berkuasa tempatan bagi apa-apa ketidakpatuhan peraturan dan undang-undang berhubung dengan pembinaan bumbung tersebut oleh Defendan-Defendan;

Suatu Perintah bahawa Plaintif berhak melucutkan ("forfeit") baki bayaran RM24,050.00, yang mana bersamaan baki 10% daripada nilai kontrak bagi mengurangkan kerugian yang dialami oleh Plaintif;

Gantirugi khas berjumlah RM16,000.00 sebagai bayaran yang dibayar kepada Perjas Consultants;

Gantirugi khas berjumlah RM16,500.00 sebagai bayaran yang dibayar kepada Everbest [sic] Resources

Gantirugi khas dibayar kepada Sang QS Consult bagi penilaian yang dibuat terhadap kerja-kerja binaan bumbung tersebut;

Gantirugi am; …". [23] The Defendants counterclaimed for the outstanding sum of RM24,050.00 as at 14.4.2021 for the completed Works with interest and costs. DECISION OF THE SESSIONS COURT [24] After hearing the evidence at the trial, the SCJ allowed the Plaintiff's claim against the Defendants and granted the prayers in subparas 49(a) to (d), (f) and (h) to (k) of the Amended SoC. [25] The SCJ further allowed the Defendants' counterclaim against the Plaintiff for the sum of RM24,050.00 as at 14.4.2021 with interest at the rate of 5% per annum from the date of judgment until full settlement. [26] The Plaintiff was aggrieved with the SCJ's decision in allowing the Defendants' counterclaim against the Plaintiff with costs of RM10,000.00 while the Defendants appealed against part of the SCJ's decision where he allowed the Plaintiff's claim with costs of RM10,000.00. [27] After having considered the Record of Appeal and the oral and written submissions of the parties including the clarifications by the learned counsels representing the Plaintiff and the Defendants, this Court had, on 31.7.2023, pronounced that the SCJ –

did not err in fact and/ or law when he found that the Defendants has breached the contract;

erred when he allowed the Defendants' counterclaim against the Plaintiff for the sum of RM24,050.00 with interest and cost; and

erred when he allowed the prayers in sub-paras 49(b), (c) and

in the Amended SoC, and as a result –

the Plaintiff's appeal in Appeal No. 13 was allowed; and

(ii) the Defendants' appeal in Appeal No. 18 was allowed in part whereby the order in sub-paras (i)(b), (c) and (d) of the Said Judgment was set aside. [28] In addition, this Court decided that –

it was not inclined to make an order for the alternative relief sought by the Plaintiff in the court below and nor to remit the matter for assessment of damages;

for clarity, the amount of special damages in sub-para (i)(j) of the judgment is RM8,904.00 and the order for interest in sub-para

(i)(l) should be interest at the rate of 5% per annum on the total sum of general damages and special damages from the date of judgment (30.6.2022) until the date of full settlement;

the order in sub-para (iii) of the judgment for costs of RM10,000.00 to be paid by the Defendants to the Plaintiff was upheld; and

there be no order as to costs of the appeal. THE MEMORANDUM OF APPEAL [29] Based on paras 1 and 2 of the Memorandum of Appeal for Appeal No. 18, the Defendants' grounds of appeal are that the SCJ had erred in fact and law when he allowed the Plaintiff's claim against the

without considering the evidence of the witnesses, the documentary evidence and the submissions by the Defendants, and failed to make a finding, on the balance of probabilities, that the Plaintiff's claim should be dismissed; and

in respect of prayers (b), (c) and (d) in para 49 of the Amended SoC, without taking into consideration the fact that the Plaintiff has failed to prove the amount of costs as claimed from the oral and documentary evidence adduced and has not pleaded in the alternative for such costs to be assessed by the court. THE LEGAL PRINCIPLES ON APPELLATE INTERVENTION [30] It is settled law that an appellate court will not intervene with the decision of a trial court unless the trial court is shown to be plainly wrong in arriving at its decision. A plainly wrong decision happens when the trial court is guilty of no, or insufficient, judicial appreciation of evidence. If, in arriving at the decision, it could not reasonably be explained or justified and the decision of the trial court is one which no reasonable judge could have reached, the decision is susceptible to appellate intervention. The plainly wrong test is not intended to be used by the appellate court as a means to substitute its own decision for that of the trial court on the facts (see Ng Hoo Kui & Anor v Wendy Tan Lee Peng (administratrix for the estate of Tan Ewe Kwang, deceased) & Ors [2020] 12 MLJ 67 (FC) at pp 81 - 96 especially paras 62 - 78). ANALYSIS & FINDINGS OF THE COURT 1ST ISSUE: WHETHER THE TRIAL COURT WAS PLAINLY WRONG IN MAKING

ON INDEMNITY BY DEFENDANTS TO THE PLAINTIFF IN SUB-PARAS (i)(b), (c) AND (d) OF THE JUDGMENT [31] The ensuing discussion is in respect of the order by the trial court for the Defendants to indemnify the Plaintiff for all costs or costs arising from the demolition of the roof and the related structures and the construction of a new roof and related structures, and the professional costs for the appointment of engineers, architects and geo-technicians and any professional appointments in relation to the construction of a new roof and related structures. - The Parties' Submissions [32] The Defendants submitted that they should not be liable for the costs of constructing a new roof and structures as the Plaintiff had failed to specifically prove the alleged loss in the form of costs to contract a new contractor to build a new guardhouse. [33] It was further submitted that the Plaintiff failed to specifically plead the amount of special damages in prayers (b), (c) and (d) of para 49 of the Amended SoC ('Said Prayers'). As no evidence or invoices on the re-construction of the roof was produced at the trial, it is unjust and a misdirection by the SCJ to order the Defendants to bear the liabilities without any scrutiny by the court on its rightful amount. [34] The Plaintiff acknowledged that the nature of its claim under the Said Prayers is not a claim for special damages based on any specific figures, but the Plaintiff is seeking for an indemnity order against the Defendants as, at the date of the trial, the Plaintiff has not appointed a third party to build a new roof structure on the Plaintiff's premises and is in the midst of obtaining quotations from third parties for the work. [35] Ms. Rasvinder Kaur emphasised that the SCJ has given due and fair consideration to the salient evidence presented before the court and to the fact that the oral and documentary evidence by the Plaintiff's witnesses on damages incurred and the works to be undertaken by the third party was never challenged by the Defendants. - The Findings by the Court [36] The SCJ's findings on the issue of liability can be found in paras 129 - 140 of his Grounds of Judgment ('GoJ'). It is evident that the SCJ did not discuss each prayer in para 49 of the Amended SoC and no analysis or views on the same were provided. In other words, there is no reasoning or justification in the GoJ when the SCJ made the order on indemnity as per the Said Prayers. [37] Firstly, it must be appreciated that a contract may give rise to several distinct causes of action. The right to sue for damages for breach of contract is a distinct cause of action to that of right to sue for indemnity provided that the agreement entered into is one of a contractual relationship as ordinarily understood in law and not a contract of indemnity simpliciter. The right to indemnity must be distinguished from the right to damages. A right to indemnity is given by the original contract whereas a right to damages arises in consequence of the breach of that contract. It is therefore a matter of construction on the nature of the relationship created as a result of the contract (see Malayan Banking Bhd v Basarudin bin Ahmad Khan [2007] 1 MLJ 613 (FC) at paras 10 - 12, pp 619 - 620). [38] It was further held in the same judgment by the apex court that: "[14] … The traditional view is that damages for a breach of contract committed by the defendant are compensation to the claimant for the damage, loss or injury suffered through that breach (see Chitty on Contracts Vol 1 (29th Ed) para 26-001). This is the common law right arising from the breach of a contract and it is not the subject of the contract. In other words, it need not be provided for in the contract (see the judgment of Fry LJ in Birmingham and District Land Company v London and North Western Railway Company). This right is contained in s 74(1) of the Contracts Act 1950 … [15] By contrast, indemnity is a right which has to be provided for in the original bargain between the parties. It is a formal legal acceptance of responsibility for damage or loss. Indemnity springs from contract express or implied (see P Ramanatha Aiyur’s The Law Lexicon (2nd Ed)). As stated earlier indemnity and damages as incidence to breach of contract or tortious act are not synonymous but distinct. …". [39] Secondly, in the present case, there is no express provision in the LoA on any indemnity by D1 to the Plaintiff and nor did the Plaintiff plead that such indemnity arises from the contract, express or implied. What can be found in the LoA are –

Clause 3 on the Defects Liability Period ('DLP') as follows: "3.1 The Defects Liability Periods for the Works shall be 6 months from the Date of Handover.

3.2 Handover shall mean joint inspection to be carried out and accepted by Mont’ Kiara Bayu Management Corporation and the management office of Mont’ Kiara Bayu." [based on the Record of Appeal, on 10.2.2020, D1 sent a letter to the Plaintiff to inform that the Works were completed on the same date and that the Plaintiff wished to handover the same to the Plaintiff. D1 also "… put in record to undertaking all the defects highlight by Management to be complete in Defects Liability Periods.". Following the clarification by the Plaintiff's counsel at the hearing of the appeal, the parties accepted that the Works were completed on 10.2.2020 and that the DLP commenced from that date rather than from the Date of Handover as stipulated in Clause 3.1 of the LoA (see too, para 9 of the Agreed Facts)]; and

Clause 8.4 which states, among others, that: "8.4 The Contract Sum shall include the following at no additional cost: - i. All necessary protection to your own works and of which you shall exercise due care and take all necessary measures in the course of your work to prevent damage to the completed works and existing works of other trades, including all rectification and reinstatement works with or without the Employer's instruction. … iv. Provision for making arrangement to jointly inspect your completed works and verify the completion of works according to specification prior the commencement of other subsequent trade works by others. You shall arrange and carry out timely scheduled level to level rectification works. Should there be any delay in the handing over of the completed levels to us, we reserve the right to engage on our own, other parties to carry out any remedial works required and the cost shall be deducted from any payment due or to become due to you. v. All cost for rectification / touch up works for the defects before handing over shall be borne by you. The method of rectification of defects and samples of the rectification proposal must be approved before proceeding. …" Clause 8.4(v) of the LoA governs rectification costs for defects before the handing over of the Works. The parties agreed that the Works were handed over by D1 to the Plaintiff on 10.2.2020. The above quoted provisions do not amount to an agreement by the Defendants to indemnify the Plaintiff for the costs as set out in the Said Prayers. [40] In BPI International Finance Ltd (formerly known as Ayala Finance (HK) Ltd) v Tengku Abdullah Ibni Sultan Abu Bakar [2009] 4 MLJ 821, the Court of Appeal referred to Malayan Banking Berhad (supra) and then said that: "[20] Rights of indemnity may arise from contract, express or implied, from an obligation resulting from the relation of the parties or by statue. Whether in any particular case any right of indemnity arises, and the extent of any such indemnity, will depend upon the terms of the contract or statue in question, or the nature of the relationship (see Halsbury’s Laws of Malaysia Vol 16, at paras 270.190 and 270.191). [21] In Telfair Shipping Corporation v Inersea Carriers SA [1985] 1 WLR 553, Neill J, upon analysis of the authorities referred to therein, identified ‘at least three ways in which a person A who has become liable to B may be able to obtain redress from C’. The first way is by an action for damages for breach of contract; the second way is by a claim of an express indemnity; and the third way is under an implied indemnity. [22] On the right to an implied indemnity, in JH Rayner (Mincing Lane) Ltd v Department of Trade And Industry & Ors and related appeals [1990] 2 AC 418, Lord Oliver said at p 520: It is quite clear from the authorities which have been drawn to Your Lordship’s attention as establishing or supporting the general principle of indemnity which the appellants rely that indemnity is not an automatic consequence of a request to do an act. Such a right of indemnity arises only where the circumstances justify the implication of a contract to indemnify … [23] From the authorities aforesaid, it can be seen that there are many ways in which a right of indemnity may arise. As such, in our view, in order to maintain a claim for indemnity as in the present case, the respondent not only has to plead that the appellant was in breach of its contractual duty or its duty of care to him but also the cause or causes of action for such an indemnity, ie whether founded on an express or implied contract, or on an implied indemnity arising from the relationship between the parties.". [41] The Plaintiff did not plead that an indemnity arises from the express provisions of the LoA or that it can be implied. In the absence of any express indemnity in the LoA, the foundation upon which the order on indemnity by the Defendants to the Plaintiff in sub-paras (i)(b), (c) and

of the Said Judgment can be made has not been established. In failing to address his mind to these matters, the SCJ's decision in making the order could not reasonably be explained and is one which no reasonable judge could have reached. This clearly warrants appellate intervention. 2ND ISSUE: WHETHER THE TRIAL COURT WAS PLAINLY WRONG IN MAKING ORDER ON PAYMENT BY DEFENDANTS TO THE PLAINTIFF IN SUB-PARAS (i)(b), (c) AND (d) OF THE JUDGMENT [42] The 2nd Issue deals with the order by the trial court for the Defendants to pay the Plaintiff for all costs or costs arising from the demolition of the roof and the related structures and the construction of a new roof and related structures, and the professional costs for the appointment of engineers, architects and geo-technicians and any professional appointments in relation to the construction of a new roof and related structures. Like the 1st Issue, no justification can be found in the GoJ for this order. [43] In so far as the costs for the demolition of the roof and the related structures is concerned, the trial court had allowed the Plaintiff's claim for special damages in the sum of RM16,500.00 as prayed in subpara 49(i) of the Amended SoC. This amount is for ERSB's services in demolishing the roof truss and roof covering on 14.1.2021 (see the testimonies by Teo Sin Ghee, Director at Aegis Engineering Sdn Bhd (PW5) and Sathhiya Seelan, the sole proprietor of ERSB (PW6) and the invoices issued by ERSB and the Plaintiff's payment vouchers dated 7.1.2021, 14.4.2021 and 12.8.2021). Therefore, the order for the Defendants to pay the Plaintiff as prayed in subpara 49(d) of the Amended SoC is superfluous. [44] In regard to the prayers in subparas 49(b) and (c) of the Amended SoC, the Plaintiff relied on the case of Zulkiflee Bin SM Anwar Ulhaque & Anor v Arikrishna Apparau & Ors [2014] 3 MLJ 553 where the Court of Appeal held that, with the omnibus prayer for "such relief as the court deems fit", the court may, if the facts and circumstances of the case warrant, make an appropriate order to grant relief though not pleaded but would do justice between the parties. [45] The Plaintiff also cited the decisions in Dr Mohd Adnan bin Sulaiman & Anor v Kumpulan Perubatan (Johor) Sdn Bhd [2013] 10 MLJ 781 and Lianbang Ventures Sdn. Bhd v Jurukur Perunding Services Sdn Bhd [2020] MLJU 1234 to support the proposition that loss or damages need not be calculated to a point of mathematical certainty and the fact that damages cannot be assessed with certainty does not relieve the wrong doer of the necessity of paying damages. [46] Ms. Rasvinder argued that the SCJ had rightfully decided that the Plaintiff is entitled to the reliefs in subparas 49(b) and (c) of the Amended SoC for the Defendants to pay the Plaintiff for all damages to be incurred in rebuilding the structures. The learned counsel also submitted that this Court is empowered to remit the matter for assessment of damages or to consider the alternative relief pleaded for an order that the Defendants refund the sum of RM216,450.00 being the amount which was paid by the Plaintiff to the Defendants pursuant to the LoA. [47] In my analysis, the Amended SoC clearly shows that the Plaintiff did not plead the quantum that the Defendants have to pay to the Plaintiff –

for the construction of a new roof and related structures; and

for the professional costs for the appointment of engineers, architects and geo-technicians and any professional appointments in relation to the construction of a new roof and related structures. [48] If the Plaintiff has not carried out the rectification works or made the appointments of the consultants as at the date of filing of the Writ, the Plaintiff can produce quotations for these costs (see the decision of this Court in Lucksoon Metal Works Sdn Bhd v Propel Synergy Sdn Bhd (Civil Suit No.: WA-22C-43-06/2020 especially at para 62). [49] I was not inclined to make an order for the alternative relief sought by the Plaintiff in the court below and nor to remit the matter to the SCJ for assessment of damages because –

the SCJ was not plainly wrong in refusing to allow the alternative relief for the Defendants to refund the sum of RM216,450.00 as the Plaintiff's claim was essentially premised on there being a valid contract and that the Defendants have breached the contract. The Plaintiff did not plead that the contract is void and as a result, the Defendants is bound to restore the advantage which they have received under the contract to the Plaintiff (see s 66 of the Contracts Act 1950);

based on the prayers in para 49 of the Amended SoC, the Plaintiff is aware of the differences between a claim for general damages and special damages. For example, in subpara 49(k) of the Amended SoC, the Plaintiff pleaded for general damages and the SCJ awarded general damages of RM50,000.00 for breach of contract, which this Court has affirmed. The Plaintiff did not seek the costs of rectification works and costs for the professional appointments as general damages to be assessed by the court. This would in fact be inappropriate as such costs should be claimed as special damages with the amounts sought pleaded in para 49 of the Amended SoC; and

there was no application by any of the parties or all the parties, and nor was there any order by the SCJ, for a bifurcated trial on liability and on assessment of damages (see RCB Marketing Sdn Bhd v Milano Marketing Sdn Bhd [2022] 11 MLJ 635 for the legal principles on the bifurcation of trials). It was therefore incumbent on the parties to produce the necessary evidence to prove liability to pay damages and the quantum of damages. The Plaintiff's failure in adducing any evidence as to the actual or estimated costs for the rectification works and costs for the professional appointments is at its own peril. [50] In sum, appellate intervention is justified in respect of the 2nd Issue. CONCLUSION [51] For the reasons as discussed above, I allowed the Defendants' appeal by setting aside the order in sub-paras (i)(b) to (d) of the Said Judgment. As for costs, since the Plaintiff's appeal was allowed and the Defendants' appeal was allowed in part, no order was made as to costs for both appeals. Dated: 27 September 2023 (ALIZA SULAIMAN) Judge Construction Court 2 High Court Kuala Lumpur Counsels/ Solicitors: For the Appellants: Norazalina Binti Hairuddin Messrs. Amir Khusyairi & Associates Advocates & Solicitors Suite 13A-13, Plaza Azalea Persiaran Bandaraya, Seksyen 14 40000 Shah Alam Selangor For the Respondent: Rasvinder Kaur Sodhi (Dheebak Kumaran a/l Jayakumaran with him) Messrs. Rasvin Sodhi & Co. Advocates & Solicitors Suite 01-07, 1st Floor, Menara TKKS No. 206 Jalan Segambut 51200 Kuala Lumpur Cases and legislation referred to in the submissions by learned counsels and in the Grounds of Judgment: Cases: Ah Long v Dr S Underwood [1983] CLJ Rep 300 Asia Pasific Information Services Sdn Bhd v Cycle & Carriage Bintang Bhd & Anor [2010] 6 CLJ 681 Berjaya Times Square Sdn Bhd v M-Concept Sdn Bhd [2010] 1 CLJ 269 BPI International Finance Ltd (formerly known as Ayala Finance (HK) Ltd) v Tengku Abdullah Ibni Sultan Abu Bakar [2009] 4 MLJ 821 Dr Mohd Adnan bin Sulaiman & Anor v Kumpulan Perubatan (Johor) Sdn Bhd [2013] 10 MLJ 781 Dua Residency Management Corporation v Edisi Utama Sdn Bhd & Anor [2021] MLJU 140 Gan Yook Chin (P) & Anor v Lee Ing Chin @ Lee Teck Seng & Ors [2005] 2 MLJ 1 Global Mix Sdn Bhd v Wong Brothers Building Construction Sdn Bhd [2015] 1 LNS 1562 Global Mix Sdn Bhd v Wong Brothers Building Construction Sdn Bhd [2015] MLJU 616 Golden Vale Gold Range & Country Club Sdn Bhd v Hong Huat Enterprise Sdn Bhd (Airport Auto Centre Sdn Bhd & Anor, third party and another appeal) [2008] 4 MLJ 839 GPR Construction Sdn Bhd v Sri Ternak Properties Sdn Bhd [2021] MLJU 1838 KC Leong Holdings Sdn Bhd v Datin Moh Bee Ling [2015] 7 MLJ 10 Komala Devi a/p M Perumal v Bandar Eco-Setia Sdn Bhd & Anor [2016] MLJU 719 Kumpulan Darul Ehsan Bhd v Mastika Lagenda Sdn Bhd [2017] 4 MLJ 561 Lau Hee Teah v Hargill Engineering Sdn Bhd & Anor [1979] 1 LNS 40 Lexobumi Sdn Bhd v SK M&E Bersekutu Sdn Bhd [2017] 11 MLJ 570 Lucksoon Metal Works Sdn Bhd v Propel Synergy Sdn Bhd (WA-22C-43- 06/2020) Maju Puncakbumi Sdn Bhd v Ch'ng Han Keong [2019] 1 LNS 1703 Malayan Banking Bhd v Basarudin bin Ahmad Khan [2007] 1 MLJ 613 (FC) Ng Hoo Kui & Anor v Wendy Tan Lee Peng (administratrix for the estate of Tan Ewe Kwang, deceased) & Ors [2020] 12 MLJ 67 (FC) Sivalingam A/L Periasamy v Periasamy & Anor [1995] 3 MLJ 395 Temurun Dinamik Sdn Bhd v Kerajaan Malaysia [2018] 1 LNS 343 UMW Toyota Motor Sdn Bhd & Anor v Allan Chong Teck Khin & Anor [2021] 3 MLJ 107 Wong Swee Chin v Public Prosecutor [1980] 1 LNS 138 YSE Engineering Sdn Bhd v OS Seafood Industries Sdn Bhd [2018] MLJU 1451 Legislation: Contracts Act 1950, ss 40 & 66 Evidence Act 1950, s 59