1. ) BA-12BC-2-02/2020 v 1. ) Twin H Engineering Sdn. Bhd. (Co. No.: 961851-W) (BA-12BC-2-02/2020 & BA-12BC-3-02/2020)

This judgment will refer to parties as they are in the Sessions Court (SC).

The defendant company (Defendant) is a sub-contractor of a construction project in Shah Alam, Selangor Darul Ehsan (Project).

The Defendant appointed the plaintiff company (Plaintiff) to provide for, among others, construction of pilecap, lift pit, basement beam and slab as well as a retaining 2 wall (Works) regarding a part of the Project (Contract). The Contract was provided in the following documents:

“Works Order” dated 16.12.2016;

“Bill of Quantities”; and

“Terms and Conditions” (TC).

During the progress of the Works, the Plaintiff had submitted to the Defendant the following “Progress Claims” (PC) for various amounts:

“PC no. 1” dated 29.7.2016 for a sum of RM6,650.00;

“PC no. 2” dated 1.9.2016 for a sum of RM23,206.72;

“PC no. 2” dated 12.10.2016 for a sum of RM26,520.02;

“PC no. 3” dated 1.10.2016 for a sum of RM26,520.02;

“PC no. 4” dated 1.11.2016 for a sum of RM41,954.53;

“PC no. 5” dated 1.12.2016 for a sum of RM30,623.13;

“PC no. 5” dated 30.12.2016 for a sum of RM185,850.00;

“PC no. 6” dated 14.2.2017 for a sum of RM160,494.37;

“PC no. 7” dated 4.3.2017 for a sum of RM343,833.32;

“PC no. 8” dated 27.3.2017 for a sum of RM710,821.18;

“PC no. 8” dated 13.4.2017 for a sum of RM757,017.90;

PC entitled “Penultimate Claim” dated 26.4.2017 for a sum of RM568,785.46 (PC no. 9); and

“PC no. 10” dated 21.11.2017 for a sum of RM154,766.74. 3

The Defendant had issued to the Plaintiff the following “Sub-Contractor Interim

IPC no. 1;

IPC no. 2 dated 30.9.2016;

IPC no. 3 dated 31.10.2016;

IPC no. 4 dated 30.11.2016;

IPC no. 5 dated 31.12.2016;

IPC no. 6 dated 28.2.2017;

IPC no. 7 dated 31.3.2017;

IPC no. 7a dated 31.3.2017;

IPC no. 8 dated 30.4.2017; and

IPC no. 8a dated 30.4.2017. For the above IPC’s, the Defendant had certified that a total sum of RM1,556,504.06 was due from the Defendant to the Plaintiff for the Works (Defendant’s Total Certified Sum). The Defendant’s Total Certified Sum consisted of -

a total payment of RM1,485,939.37 by the Defendant to the Plaintiff [Defendant’s Payments (IPC’s)]; and

an amount of RM70,564.69 is held by the Defendant pursuant to the Contract as a “retention sum” (Retention Sum).

The Plaintiff alleged that the Works had been completed by the Plaintiff on 15.4.2017 but the Defendant had not issued any IPC for PC no. 10. Nor had the Defendant paid to the Plaintiff the sum of RM154,766.74 as stated in PC no. 10 (Plaintiff’s Claimed Sum). 4

On 26.6.2018, the Plaintiff’s solicitors sent a demand for the Defendant to pay the Plaintiff’s Claimed Sum [Plaintiff’s Demand (26.6.2018)]. There was however no reply by the Defendant to the Plaintiff’s Demand (26.6.2018).

The Defendant issued a draft IPC no. 9 dated 3.7.2018 [Draft IPC no. 9]. The Draft IPC no. 9 was sent by the Defendant to the Plaintiff by way of an email dated 4.7.2018 from the Defendant [Defendant’s Email (4.7.2018)]. According to the Draft IPC no. 9, among others, the value of the Works performed by the Plaintiff was RM1,535,533.32. The Defendant’s Email (4.7.2018) stated that the Draft IPC no. 9 was based on the Defendant’s measurement of the Works.

On 11.7.2018, the Defendant issued a “Statement of Sub-Contractor Final Account” (Defendant’s Final Account). According to the Defendant’s Final Account, the Plaintiff had only completed the Works for a total amount of RM1,511,418.74.

The Defendant sent a letter dated 19.7.2018 to the Plaintiff which had complained that the surface of the concrete slab after the Plaintiff’s rectification work, was “very rough and unacceptable” by the Defendant’s client [Defendant’s Letter (19.7.2018)].

By way of a letter dated 20.7.2018 [Plaintiff’s Letter (20.7.2018)], the Plaintiff denied the allegation in the Defendant’s Letter (19.7.2018) that the Works was defective.

The Defendant sent a letter dated 24.10.2018 to the Plaintiff [Defendant’s Letter (24.10.2018)]. According to the Defendant’s Letter (24.10.2018), among others -

the Plaintiff had not responded to the Defendant’s Final Account; and

premised on TC 3, all quantities were provisional and subject to re-measurement of actual works done. Hence, the Defendant requested the Plaintiff to submit “final measurement detail” to support the Plaintiff’s “dispute, if any” regarding the Defendant’s Final Account.

The Defendant issued IPC no. 9 on 18.1.2019 which purportedly certified the value of the Works performed by the Plaintiff to be RM1,520,557.20 (1st IPC no. 9). However, 5 on 23.1.2019, the Defendant sent another IPC no. 9 which stated that the Plaintiff had only completed the Works in a sum of RM1,566,544.40 (2nd IPC no. 9).

On 1.2.2019, the Defendant sent a letter to the Plaintiff [Defendant’s Letter (1.2.2019)] which stated as follows, among others (with grammatical and typographical errors): “… We have make [sic] adjustment of quantity based on actual measured workdone [sic] in your [sic] Interim Certificate No. 9. However, in the event you do not agree with our measurement of quantity, please submit to us your detail [sic] measurements and supporting documents for our assessment. In addition, please supersede [sic] our Interim Certificate dated 18 January 2019.” B. Legal proceedings and subsequent invoice issued by Defendant

On 28.2.2019, the Plaintiff filed an action against the Defendant in SC (This Action) and prayed for the following relief, among others, in the Statement of Claim (SOC):

a declaration that the Defendant held a sum of RM70,564.69 as the Retention Sum [Plaintiff’s Prayer (Declaration)];

the Defendant shall pay the Plaintiff’s Claimed Sum to the Plaintiff for the balance of the Works which had been completed by the Plaintiff; and

interest at the rate of 5% per annum on the Plaintiff’s Claimed Sum from the date of judgment until full settlement of the Plaintiff’s Claimed Sum.

The Defendant filed its defence in This Action on 16.4.2019. On 3.7.2019, the Defendant issued an invoice [Defendant’s Invoice (3.7.2019)] which claimed for “back charges” regarding the Defendant’s rectification of purported defects in the Works in a sum of RM26,998.40 (Defendant’s Rectification Cost). 6

The Defendant applied for and obtained leave of SC to amend its defence to include a defence of set-off based on the Defendant’s Invoice (3.7.2019).

At the trial of This Action -

three witnesses were called by the Plaintiff to support This Action, namely -

Mr. Chin Boon Wah, the Plaintiff’s Project Manager;

Ms. Hoo Wei Shi (SP2), a director of the Plaintiff; and

Mr. Chin Yu Swee, the Plaintiff’s Managing Director; and

Mr. Foong Ker Shing (SD1), an Assistant Contract Manager of the Defendant, was the sole witness for the Defendant.

After a trial of This Action, on 31.1.2020, the learned Sessions Court Judge, Tuan Ahmad Azhari Bin Abdul Hamid (SCJ), adjudged as follows, among others (SC’s

the Defendant shall pay the Plaintiff’s Claimed Sum;

interest at the rate of 5% per annum on the Plaintiff’s Claimed Sum from the date of judgment until full settlement of the Plaintiff’s Claimed Sum shall be paid by the Defendant to the Plaintiff (Post-Judgment Interest);

the Plaintiff’s Prayer (Declaration) was refused [SC’s Dismissal (Declaration)]; and

costs of RM10,000.00 shall be paid by the Defendant to the Plaintiff.

The Defendant filed appeal no. BA-12BC-2-02/2020 to the High Court against part of SC’s Judgment which adjudged, among others, the Defendant to pay the Plaintiff’s Claimed Sum (Defendant’s Appeal).

The Plaintiff lodged appeal no. BA-12BC-3-02/2020 to the High Court (Plaintiff’s Appeal) regarding SC’s Dismissal (Declaration). 7

Both the Plaintiff and Defendant agreed for the Plaintiff’s Appeal and Defendant’s Appeal (collectively referred in this judgment as the “2 Appeals”) to be decided together by this court as the 2 Appeals arose from a trial of This Action.

These 2 Appeals raise the following questions:

whether the learned SCJ had committed “plain errors” in making the following findings of fact -

the Plaintiff had completed the Works (SC’s 1st Factual Finding) - paragraph 17 of SC’s Grounds of Judgment (GOJ);

the Defendant was estopped from relying on TC 20 (SC’s 2nd Factual Finding) - paragraphs 22 to 25 GOJ;

the Plaintiff had proven that the Defendant should pay the Plaintiff’s Claimed Sum (SC’s 3rd Factual Finding) - paragraphs 26 to 30 GOJ; and

the Defendant’s Rectification Cost could not be claimed (SC’s 4th Factual Finding) - paragraph 31 GOJ; and

did the Plaintiff fulfill O 18 rr 7(1) and 12(1) of the Rules of Court 2012 (RC) by pleading material facts in the SOC to support the Plaintiff’s claim for the Defendant’s return of the Retention Sum? If the answer to this question is “yes” -

was the Plaintiff entitled to a return of the Retention Sum?; and

despite the Plaintiff’s Prayer (Declaration), whether the court can order the Defendant to return the Retention Sum to the Plaintiff pursuant to -

the High Court’s appellate powers under s 29 read with s 69(1), (4) and (5) of the Courts of Judicature Act 1964 (CJA); and/or 8

(ii) the Plaintiff’s prayer in sub-paragraph 22(e) SOC for any other relief which the court considers “appropriate and fit” (sesuai dan patut) [Plaintiff’s General Prayer (Relief)]. D. Whether appellate court should set aside trial court’s findings of fact

It is trite law that an appellate court should not intervene regarding a trial court’s findings of fact unless there is a “plain error” by the trial court which has caused an injustice and which warrants an appellate intervention - please see the judgment of Steve Shim CJ (Sabah & Sarawak) in the Federal Court case of Gan Yook Chin & Anor v Lee Ing Chin & Ors [2004] 4 CLJ 309, at 317-321. This is because an appellate court (unlike a trial court) has no audio-visual advantage -

to listen to the oral evidence of witnesses given at the trial; and

to assess the demeanour of witnesses. D(1). Did SC commit “plain error” in making factual findings?

I am of the view that there is no plain error regarding SC’s 1st and 3rd Factual Findings. This is because SC’s 1st and 3rd Factual Findings are supported by the following evidence and reasons:

SP2 had prepared all the PC’s which had been sent to the Defendant;

the Defendant had not denied any of the PC’s;

IPC nos. 1 to 8a had been sent by the Defendant to the Plaintiff;

the Defendant’s Payments (IPC’s) had been made;

the Defendant did not deny the Plaintiff’s Demand (26.6.2018). The effect of the Defendant’s failure to deny Plaintiff’s Demand (26.6.2018) has been explained by Gopal Sri Ram JCA (as he then was) in the Court of Appeal case of David Wong Hon Leong v Noorazman bin bin Adnan [1995] 4 CLJ 155, at 159, as follows - 9 “During argument, we registered our surprise at the learned Judge’s reluctance to enter judgment for this sum of RM100,000. After all, the appellant had failed to respond to the letter of 17 December. If there had never been an agreement as alleged, it is reasonable to expect a prompt and vigorous denial. But, as we have pointed out, there was no response whatsoever from the appellant. In this context, we recall to mind the following passage in the judgment of Edgar Joseph Jr. J. in Tan Cheng Hock v. Chan Thean Soo [1987] 2 MLJ 479-487: In Wiedemann v. Walpole [1891] 2 Q.B. 534, 537 an action for breach of promise of marriage, it was held, that the mere fact that the defendant did not answer letters written to him by the plaintiff in which she stated that he had promised to marry her, was no evidence corroborating the plaintiff’s testimony in support of such promise. Lord Esher M.R., in his judgment, remarked, Here, we have only to see whether the mere fact of not answering the letters, with nothing else for us to consider is any evidence in corroboration of the promise.’ (Emphasis added). Earlier, in his judgment, he said, ‘Now there are cases - business and mercantile cases in which the Courts have taken notice that, in the ordinary course of business, if one man of business states in a letter to another that he has agreed to do certain things, the person who receives that letter 10 must answer it if he means to dispute the fact that he did so agree.” (emphasis added). The above judgment in David Wong Hon Leong has been followed by Hasan Lah JCA (as he then was) in the Court of Appeal in Jetara Sdn Bhd v Maju Holdings Sdn Bhd [2007] 3 CLJ 41, at 55;

in view of the evidence and reasons stated in the above sub-paragraphs (1) to

(5), the Defendant is estopped from denying the Plaintiff’s valuation of the Works in the PC’s. In the Federal Court case of Usima Sdn Bhd v Lee Hor Fong (trading under the name and style of Pembinaan LH Fong) [2017] 5 MLJ 273, at [50], Balia Yusof FCJ has applied the equitable doctrine of estoppel in a dispute regarding a construction contract;

the evidence adduced by SD1 on behalf of the Defendant was not credible. This is due to the following evidence and reasons -

the Defendant claimed to have measured the value of Works performed by the Plaintiff but inexplicably, the following different quantifications of the value of the Works had been made by the Defendant -

Draft IPC no. 9 (dated 3.7.2018) stated that the value of the Works completed by the Plaintiff was RM1,535,533.32 (Defendant’s 1st Measurement). The Defendant’s Email (4.7.2018) (to which was attached Draft IPC no. 9) stated that the Draft IPC no. 9 was prepared based on the Defendant’s own measurement of the Works;

(ii) eight days after the Defendant’s issuance of Draft IPC no. 9, on 11.7.2018, the Defendant’s Final Account was sent to the Plaintiff. According to the Defendant’s Final Account, the Plaintiff had only completed the Works for a total amount of RM1,511,418.74 (Defendant’s 2nd Measurement). The Defendant did not furnish any 11 reason for the difference between the Defendant’s 1st and 2nd Measurements;

(iii) on 18.1.2019, after a period of more than 6 months from the date of the the Defendant’s Final Account, the Defendant issued the 1st IPC no. 9 which purportedly certified that the value of the Works done by the Plaintiff was RM1,520,557.20 (Defendant’s 3rd Measurement). No explanation was given regarding the inconsistent valuations in the Defendant’s 1st to 3rd Measurements. Nor was any reason given by the Defendant on why the Defendant’s Final Account was not “final”; and

(iv) 5 days after the Defendant’s issuance of the 1st IPC no. 9, the Defendant issued the 2nd IPC no. 9 (23.1.2019) which allegedly certified that the value of the Works performed by the Plaintiff was RM1,566,544.40 (Defendant’s 4th Measurement). There was no explanation by the Defendant why all the the Defendant’s 1st to 4th Measurements were different; and

despite the fact that all the Defendant’s 1st to 4th Measurements had different quantifications of the Works by the Defendant and after a period of more than 1 year and 2 months (from the date of PC no. 10 dated 21.11.2017), the Defendant’s Letter (1.2.2019) had the audacity to state that the Defendant had actually measured the Works completed by the Plaintiff and 1st IPC no. 9 was “superseded” by the 2nd IPC no. 9!; and

the Defendant sought to rely on TC 3 which provided as follows, among others - “All quantities are provisional and subject to re-measurement of actual work done. …” (emphasis added). It is clear that TC 3 did not require a joint measurement of the Works by both the Plaintiff and Defendant. So long as the Works of the Plaintiff had been 12 actually measured by the Defendant, the learned SCJ could decide whether to accept as a fact the Plaintiff’s measurement of the Works (based on the PC’s) or the Defendant’s quantification of the Works. In this case, the learned SCJ had found as a fact that the value of the Works was stated in the PC’s (including PC no. 10). As explained in the above sub-paragraphs (1) to (6),

(7)(a) and (b), there is no plain error regarding SC’s 1st and 3rd Factual Findings.

TC 20 stated as follows: “The [Plaintiff] shall submit monthly progress claim of his work done to reach [Defendant’s] head office not later than 25th day of each month supported with details of workdone [sic] duly verified by [Defendant’s] representative and consultants. All payments shall be subjected to a retention sum of 10% of the certified value of workdone [sic] up to a limit of 5% of Sub-Contract Sum or Revised Sub-Contract Sum whichever is higher. Payment term is Thirty (30) days upon certification of your work by the Consultant. The [Plaintiff] is required to submit a tax invoice within 7 days from the date of approved subcon [sic] payment certificate.” (emphasis added).

There is no plain error by the learned SCJ in making SC’s 2nd Factual Finding. This is because the following evidence and reasons clearly show that the Defendant is estopped from relying on the application of TC 20 in this case:

the Defendant did not object to the PC’s on the ground that TC 20 had been breached by the Plaintiff;

the Defendant had issued IPC nos. 1 to 8a in response to PC nos. 1 to 9. If the Defendant had intended to invoke TC 20, the Defendant should not have issued IPC nos. 1 to 8a; 13

notwithstanding the Plaintiff’s non-compliance with TC 20, the Defendant’s Payments (IPC’s) had been made with regard to IPC nos. 1 to 8a; and

the Defendant did not reply to the Plaintiff’s Demand (26.6.2018) and aver that the Plaintiff had breached TC 20.

This court accepts the submission by the Plaintiff’s learned counsel that the learned SCJ did not make any plain error regarding SC’s 4th Factual Finding. The Defendant’s Rectification Cost could not be set off against the Plaintiff’s Claimed Sum as explained below:

according to SP2, the Plaintiff had rectified all the defects in the Works (Defects) at the Plaintiff’s own cost of RM130,292.50. Thereafter, the Plaintiff’s Letter (20.7.2018) had made it clear that the Works performed by the Defendant were not defective. Despite the Plaintiff’s Letter (20.7.2018), the Defendant’s Invoice (3.7.2019) was only issued after the Plaintiff’s Demand (26.6.2018) and after the filing of This Action by the Plaintiff. Accordingly, the Defendant’s Rectification Cost clearly constituted an afterthought to stifle unlawfully This Action;

in Lianmark Sdn Bhd v Al-Ambia Sdn [2020] AMEJ 279, at [51], I have explained when a party in a construction contract may claim for cost of rectification of defective works - “[51] When a party (S) alleges defective construction works by another party (T), the following steps should be taken by S to ensure that S is able to claim successfully from T regarding the defects:

S should give notice to T which should contain the following matters -

a list of defects - please refer to Iso Technic Electrical. As explained by Lim Chong Fong JC (as he then was) in the High Court in KC Leong Holdings Sdn Bhd v 14 Datin Moh Bee Ling [2015] 7 MLJ 10, at [64], preferably, S should provide photographs (which contain the dates the photographs are taken) depicting the defects in question; and

T should be given a reasonable period of time to remedy the defects [Time Period (Rectification)];

if -

T fails to rectify the defects; or

T’s rectification works do not comply with the agreement S has a duty to mitigate S’s loss due to the defects (S’s Duty To Mitigate) by taking reasonable steps -

to appoint “rectification contractors” by eg. calling tenders or alternative quotations - please see KC Leong Holdings, at [65]. Exorbitant rectification contractors should be avoided by S; and

(ii) to ensure that rectification works are done in accordance with the contract (Agreed Works) and should not be an “improvement”, “addition” or “modification” of the Agreed Works (Improvement/Addition/Modification). In other words, S should not exploit the defects by attempting to get an Improvement/Addition/Modification; and

if the rectification works include any Improvement/Addition/Modification, S should make the necessary deduction or adjustment regarding the value of the rectification works to be claimed from T.” 15 (emphasis added). No evidence had been adduced by the Defendant to show that the Defendant had taken reasonable steps to mitigate the Defendant’s loss due to the Defects. Nor was there any proof that the Defendant’s Rectification Cost did not include any improvement, addition or modification of the Works; and

as explained in the above sub-paragraphs 25(7), SD1’s evidence was not credible. E. Did SOC plead material facts to support Plaintiff’s claim for return of Retention Sum?

The Defendant’s learned counsel had contended that the Plaintiff did not plead in the SOC for the Defendant’s return of the Retention Sum to the Plaintiff.

I reproduce below O 18 rr 7(1) and 12(1) RC: “O 18 r 7(1) Subject to the provisions of this rule and rules 10, 11 and 12, every pleading shall contain, and contain only, a statement in a summary form of the material facts on which the party pleading relies for his claim or defence, as the case may be, but not the evidence by which those facts are to be proved, and the statement shall be as brief as the nature of the case admits. O 18 r 12(1) Subject to paragraph (2), every pleading shall contain the necessary particulars of any claim, …” (emphasis added).

It is decided in Mohamad Bin S. Ahmad & Ors v Lembaga Pengelola Dewan Bahasa dan Pustaka [2019] 9 MLJ 315, at [12(1)], as follows: “[12] I am of the following view: 16

a plaintiff is mandatorily required by O 18 rr 7(1) and 12(1) RC (2 Provisions) to plead necessary particulars of the cause(s) of action relied on by the plaintiff against the defendant (Mandatory Requirement). This Mandatory Requirement is clear from the word “shall” employed in the 2 Provisions. The Mandatory Requirement is in the interest of justice - to inform a defendant of the cause(s) of action pleaded by the plaintiff against the defendant and this will in turn enable the defendant to make adequate preparation to defend the suit; …” (emphasis added).

I have perused the SOC and I am satisfied that the Plaintiff has complied with O 18 rr 7(1) and 12(1) RC to plead the following material facts to support the Plaintiff’s claim for the Defendant’s return of the Retention Sum:

the Plaintiff had completed the Works - paragraphs 8 and 9 SOC;

PC’s had been submitted by the Plaintiff to the Defendant - paragraphs 10 to 12 SOC;

the Defendant had issued IPC’s to the Plaintiff - paragraph 13 SOC; and

the Defendant had failed to pay the Plaintiff’s Claimed Sum - paragraphs 14 to 21 SOC. It is clear from paragraphs 8 to 21 SOC that upon the completion of the Works by the Plaintiff, the Plaintiff should be entitled to a return of the Retention Sum from the Defendant. The Defendant cannot now allege to have been caught by surprise that the Plaintiff has not pleaded “a summary form of the material facts” which “shall be as brief as the nature of the case admits” [within the meaning of O 18 r 7(1) RC] for the Defendant’s return of the Retention Sum.

There is a second reason why I cannot accede to the above submission by the Defendant’s learned counsel. In accordance with O 1A and O 2 r 1(2) RC, all the 17 rules in RC [including O 18 rr 7(1) and 12(1) RC] should be administered by the court with regard to the “overriding interest of justice and not only to the technical non-compliance” with RC. O 1A and O 2 r 1(2) RC provide as follows: “Regard shall be to justice O 1A In administering these Rules, the Court or a Judge shall have regard to the overriding interest of justice and not only to the technical non-compliance with these Rules. O 2 r 1(2) These Rules are a procedural code and subject to the overriding objective of enabling the Court to deal with cases justly. The parties are required to assist the Court to achieve this overriding objective.” (emphasis added).

Lastly, the SC had rejected the Defendant’s defence of set-off regarding the Defendant’s Rectification Cost - please refer to SC’s 4th Factual Finding. If I have accepted the above contention of the Defendant’s learned counsel, the Defendant would have been unjustly enriched to the value of the Retention Sum - please refer to Lianmark, at [46]. F. Did SC err regarding Retention Sum?

In paragraph 33 GOJ, the learned SCJ gave the following reason for SC’s Dismissal (Declaration): “[33] In not making the said declaration the court is [sic] agrees with the defendant’s submission that, in brief, the defendant states that pursuant to IPC No. 10, the retention sum has been certified to be released and that the only reason IPC No. 10 has not been paid was due to the plaintiff [sic] refusal to issue any tax invoice. The defendant’ witness has explained that in the absence of any tax invoice, payment could not be processed.” 18 (emphasis added).

Firstly, the requirement for the Plaintiff to issue a tax invoice was provided in TC 20. In SC’s 2nd Factual Finding, the learned SCJ had correctly decided that the Defendant was estopped from relying on TC 20 - please refer to the above paragraph

If the Defendant was estopped from invoking TC 20, how could the Defendant rely on TC 20 to resist the Plaintiff’s claim for the return of the Retention Sum? Furthermore, if the Plaintiff was entitled to the Retention Sum, the issuance of a tax invoice by the Plaintiff for the Defendant’s return of the Retention Sum, was a mere formality. As such, there is clearly a plain error of fact on the part of the learned SCJ when the learned SCJ refused the Plaintiff’s Prayer (Declaration). I am of the view that SC’s Dismissal (Declaration) will unjustly enrich the Defendant with regard to the Retention Sum. G. Whether court can order Defendant’s return of Retenton Sum

The Defendant’s learned counsel had contended that the Plaintiff only applied for a declaration regarding the Retention Sum and not for an order for the Defendant’s return of the Retention Sum to the Plaintiff. Hence, according to the Defendant’s learned counsel, the court should not order the Defendant to return the Retention Sum to the Plaintiff.

Firstly, when the High Court decides an appeal from a subordinate court, the High Court has very wide powers under ss 29, 69(1), (4) and (5) CJA. I reproduce below ss 29, 69(1), (4) and (5) CJA - “Civil appeals to be by way of re-hearing 29. All civil appeals from a subordinate court shall be by way of re-hearing, and the High Court shall have the like powers and jurisdiction on the hearing of appeals as the Court of Appeal has on the hearing of appeals from the High Court. 69(1) Appeals to the Court of Appeal shall be by way of re-hearing, and in relation to such appeals the Court of Appeal shall have all the 19 powers and duties, as to amendment or otherwise, of the High Court, together with full discretionary power to receive further evidence by oral examination in court, by affidavit, or by deposition taken before an examiner or commissioner. …

The Court of Appeal may draw inferences of fact, and give any judgment, and make any order which ought to have been given or made, and make such further or other orders as the case requires.

The powers aforesaid may be exercised notwithstanding that the notice of appeal relates only to part of the decision, and the powers may also be exercised in favour of all or any of the respondents or parties although the respondents or parties have not appealed from or complained of the decision.” (emphasis added). In deciding the Plaintiff’s Appeal, notwithstanding the Plaintiff’s failure to pray specifically in the SOC for the Defendant’s return of the Retention Sum, the High Court has the power to order the Defendant to return the Retention Sum to the Plaintiff pursuant to ss 29, 69(1), (4) and (5) CJA.

Secondly, the court may order the Defendant’s return of the Retention Sum under the Plaintiff’s General Prayer (Relief). I have decided in Syarikat Faiza Sdn Bhd & Anor v Faiz Rice Sdn Bhd & Anor [2019] 7 MLJ 175, at [128], as follows: “[128] Firstly, the 2 SOC’s have prayed for “further and/or other relief” as the court deems fit and proper (General Prayer For Relief). The following appellate cases have decided that the court may grant any remedy in the interest of justice pursuant to a General Prayer For Relief: 20

Salleh Abas FJ’s (as he then was) judgment in the Federal Court case of Lim Eng Kay v Jaafar Mohamed Said [1982] CLJ (Rep) 190, at 198;

the Court of Appeal’s decision delivered by Gopal Sri Ram JCA (as he then was) in Tan Tek Seng @ Tan Chee Meng v Suruhanjaya Perkhidmatan Pendidikan & Anor [1996] 2 CLJ 771, at 814-815;

the majority judgment in the Court of Appeal given by Zainun Ali JCA (as she then was) in Pentadbir Tanah Daerah Pontian & Ors v Ossons Ventures Sdn Bhd [2009] 6 CLJ 713, at 723-724; and

Abdul Aziz Abd. Rahim JCA’s judgment in the Court of Appeal case of Zulkiflee bin SM Anwar Ulhaque & Anor v Arikrishna Apparau & Ors [2014] 3 MLJ 553, at paragraph 64.” (emphasis added). The above judgment in Syarikat Faiza has been affirmed on appeal to the Court of Appeal.

In this case, the Plaintiff is entitled to the Defendant’s return of the Retention Sum (please refer to the above paragraph 36). If this court does not order the Defendant to return the Retention Sum to the Plaintiff, there will be an injustice to the Plaintiff and the Defendant will be unjustly enriched in respect of the Retention Sum.

Premised on the above evidence and reasons -

the Defendant’s Appeal is dismissed;

the Plaintiff’s Appeal is allowed;

SC’s Judgment regarding the Plaintiff’s Claimed Sum to be paid by the Defendant with Post-Judgment Interest, is affirmed; 21

SC’s Dismissal (Declaration) is set aside and the Defendant is ordered to return the Retention Sum to the Plaintiff with interest at the rate of 5% per annum on the Retention Sum from the date of SC’s Judgment until the date of return of the Retention Sum; and

the Defendant shall pay to the Plaintiff a sum of RM10,000.00 as costs of the 2 Appeals (Costs Sum) with interest on the Costs Sum from the date of the High Court’s decision (4.8.2020) until full payment of the Costs Sum. WONG KIAN KHEONG Judge High Court of Malaya Shah Alam, Selangor Darul Ehsan DATE: 22 APRIL 2021 Counsel for Appellant: Ms. Wong Li-Wei & Ms. Mak Kit Teng (Messrs Sanjay Mohan) Counsel for Respondent: Mr. Reeve Lim Chun Loong (Messrs Lim, Wong & Co)