1. ) Eco Hijau Semula Sdn Bhd v Mohd Najeib Bin Ahmad Walat (berniaga sebagai Pemilik Tunggal di bawah nama dan gaya 'Triple A Aura Resources') (BA-22C-17-06/2020)

ECO HIJAU SEMULA SDN. BHD. (Co. No.: 900237-T)

GREENBIO TECHNOLOGY SDN. BHD. (Co. No.: 868712-M) … PLAINTIFFS AND MOHD NAJEIB BIN AHMAD WALAT (NRIC. No.: 800307-14-5075) (Trading as a sole proprietor under the name of “Triple A Aura Resources”) … DEFENDANT JUDGMENT (After trial)

This case demonstrates the efficacy of post-trial case management (Post-Trial CM) by which learned counsel of all parties agree to -

Post-Trial Agreed Facts (Post-Trial AF); and

Post-Trial Agreed Issues (Post-Trial AI) so as to -

save time, effort and costs of all parties; and

assist the court in making a post-trial decision (Post-Trial Decision).

Mr. Ng Hee Sin (SP3) and Mr. Ng Hee Chye (Hee Chye) are brothers who are the common directors and shareholders of the first plaintiff company (1st Plaintiff) and second plaintiff company (2nd Plaintiff). In this judgment, the 1st Plaintiff and 2nd Plaintiff shall be referred collectively as the “Plaintiffs”.

The defendant (Defendant) is the sole proprietor of “Triple A Aura Resources” (TAAR). As explained in HT Maltec Consultants v Malaysian Resources Corporation Bhd [2015] 5 AMR 607, at [17], the Registration of Businesses Act 1956 (RBA) does not confer legal personality on any business which is registered under RBA as a sole proprietorship or partnership. Accordingly -

the Defendant is personally responsible in law for TAAR’s admissions, acts, omission, documents and debts; and

the Defendant cannot hide behind the business registration of TAAR pursuant to RBA.

The Defendant approached SP3 and Hee Chye to assist the Defendant to secure the following two projects (2 Projects) from Majlis Bandaraya

to design, build, install and complete a bridge to Pulau Undan in Tasik Barat, Taman Tasik Shah Alam (1st Project); and S/N JuvrXvuvDkCW/s7uIpgdSA

to design, build, install and complete a “Landscape Musical Fountain” at Tanjung area and part of Tasik Barat, Taman Tasik Shah Alam (2nd Project).

For the 2 Projects -

on 11.7.2019 -

MBSA held a pre-tender visit of the site of the 2 Projects (Site) for potential bidders who wished to tender for the 2 Projects (Pre-Tender Site Visit); and

together with the Defendant, SP3 and Hee Chye participated in the Pre-Tender Site Visit - please refer to paragraph 1 Post-Trial AF;

the 2nd Plaintiff engaged a company in the People’s Republic of China, “Guangzhou Migo Import and Export Company” (GMIE), to procure materials for the 2 Projects [Procurement (2 Projects)]. Consequently, GMIE issued a price quotation dated 10.8.2019 for the Procurement (2 Projects) [GMIE’s Price Quotation (10.8.2019)];

the Plaintiffs issued four price quotations to TAAR, all dated 14.8.2019 [Plaintiffs’ 4 Price Quotations (14.8.2019)] - paragraph 2 Post-Trial AF;

the Plaintiffs prepared for TAAR conceptual drawing, proposed design elements, animation, samples, work plan, schedule and idea S/N JuvrXvuvDkCW/s7uIpgdSA for TAAR (Plaintiffs’ Pre-Tender Works) - paragraph 3 Post-Trial AF; and

Bills of Quantities (BQs) for the 2 Projects had been prepared by the Plaintiffs for TAAR - paragraph 4 Post-Trial AF.

By way of two letters, both dated 29.10.2019, MBSA had awarded the 2 Projects to TAAR [2 Main Contracts (MBSA/TAAR)] as follows:

the first Main Contract (MBSA/TAAR) concerned the 1st Project [1st Main Contract (MBSA/TAAR)]. The value of the 1st Main Contract (MBSA/TAAR) was RM2,496,547.00; and

the 2nd Project was provided in the second Main Contract (MBSA/TAAR) [2nd Main Contract (MBSA/TAAR)]. The 2nd Main Contract (MBSA/TAAR) was worth RM1,968,146.00 - paragraph 6 Post-Trial AF.

TAAR issued -

one Letter of Award (LA) dated 5.11.2019 to the 1st Plaintiff regarding the 1st Project [LA (1st Plaintiff, 5.11.2019)]; and

one LA dated 5.11.2019 to the 2nd Plaintiff in respect of the 2nd Project [LA (2nd Plaintiff, 5.11.2019)] - paragraph 7 Post-Trial AF. This judgment shall refer to the LA (1st Plaintiff, 5.11.2019) and LA (2nd Plaintiff, 5.11.2019) collectively as the “2 LAs (5.11.2019)”. S/N JuvrXvuvDkCW/s7uIpgdSA

As there were errors in the 2 LAs (5.11.2019), on 7.11.2019 TAAR issued the following four LAs [4 LAs (7.11.2019)]:

two LAs to the 1st Plaintiff concerning the 2 Projects [2 LAs (1st Plaintiff, 7.11.2019)]; and

two LAs to the 2nd Plaintiff regarding the 2 Projects [2 LAs (2nd Plaintiff, 7.11.2019)] - paragraphs 8 to 10 PTAF.

TAAR issued four Purchase Orders (4 POs) as follows:

two POs were issued to the 1st Plaintiff with regard to the 2 Projects; and

two POs were issued to the 2nd Plaintiff in respect of the 2 Projects - paragraph 11 Post-Trial AF.

After the issuance of 4 POs -

the Plaintiffs commenced various works for the 2 Projects (Plaintiffs’ Works);

the 1st Plaintiff had lent a total sum of RM25,000.00 to the Defendant for the latter’s use for the 2 Projects [1st Plaintiff’s Loan];

the 2nd Plaintiff appointed GMIE to perform works for the 2 Projects. GMIE had issued to the 2nd Plaintiff two invoices dated 19.12.2019 and 15.4.2021 (GMIE’s 2 Invoices); and S/N JuvrXvuvDkCW/s7uIpgdSA

the Plaintiffs attended meetings with MBSA together with the Defendant on 11.11.2019, 18.11.2019, 19.11.2019, 19.12.2019 and 6.1.2020 [5 Meetings (MBSA/Plaintiffs/Defendant)] - paragraphs 13 and 15 Post-Trial AF.

On 6.1.2020 -

at a meeting held with MBSA, the Defendant informed the Plaintiffs that he would be terminating the appointment of the Plaintiffs under the 4 LAs (7.11.2019) - paragraph 15 Post-Trial AF; and

TAAF sent the following four letters to the Plaintiffs, all dated 5.1.2020 (Defendant’s 4 Termination Letters) -

two letters which terminated the appointment of the 1st Plaintiff with regard to the 2 Projects [Defendant’s 2 Termination Letters (1st Plaintiff)]; and

two letters which terminated the appointment of the 2nd Plaintiff in respect of the 2 Projects [Defendant’s 2 Termination Letters (2nd Plaintiff)] - which terminated the appointment of the Plaintiffs under the 4 LAs (7.11.2019) - paragraph 16 Post-Trial AF.

The following five invoices had been issued by the Plaintiffs to TAAF (Plaintiffs’ 5 Invoices):

the 1st Plaintiff had issued four invoices to TAAF totaling RM890,621.87 (1st Plaintiff’s 4 Invoices) as follows - S/N JuvrXvuvDkCW/s7uIpgdSA

two invoices dated 17.1.2020 (which amounted to RM63,263.40 [(1st Plaintiff’s 2 Invoices (17.1.2020)]; and

two invoices dated 21.1.2020; and

one invoice dated 8.1.2020 for a sum of RM111,000.00 had been issued by the 2nd Plaintiff to TAAF - paragraphs 20 and 21 Post-Trial AF.

The 1st Plaintiff’s then solicitors, Messrs “Stephen & Co”, issued a letter dated 13.1.2020 to TAAR [1st Plaintiff’s Demand (13.1.2020)] which demanded, among others, that the Defendant’s 2 Termination Letters (1st Plaintiff) be retracted within 24 hours from the date of the 1st Plaintiff’s Demand (13.1.2020) - paragraph 18 Post-Trial AF.

TAAR denied the contents of the 1st Plaintiff’s Demand (13.1.2020) by way of a letter dated 17.2.2020 [TAAR’s Letter (17.2.2020)] - paragraph 22 Post-Trial AF. TAAR’s Letter (17.2.2020) stated as follows, among others:

the contract between TAAR and the 1st Plaintiff was based on the 1st Main Contract/TAAR - paragraph 2;

all the terms in the LA (1st Plaintiff, 5.11.2019) and 2 LAs (1st Plaintiff, 7.11.2019) “remain applicable and supplement one another” - paragraph 3; and S/N JuvrXvuvDkCW/s7uIpgdSA

TAAR maintained its position as stated in the Defendant’s 2 Termination Letters (1st Plaintiff) and would “vigorously defend any action” brought by the 1st Plaintiff - paragraph 11.

The Defendant met with SP3 on 21.2.2020, 23.2.2020 and 28.2.2020 and informed SP3 that the Defendant intended to withdraw the Defendant’s Termination (4 LAs) [3 Meetings (Defendant/SP3)] - paragraph 23 Post-Trial AF.

As part payment for the 1st Plaintiff’s 4 Invoices, the Defendant issued a cheque dated 2.4.2020 to the 1st Plaintiff for a sum of RM66,000.00 [Defendant’s Cheque (2.4.2020)] - paragraph 24 Post-Trial AF. The Defendant’s Cheque (2.4.2020) was however dishonoured.

The Plaintiffs instructed their present solicitors to issue the following demands to the Defendant:

demand dated 20.4.2020 which alleged that, among others, the Defendant’s 2 Termination Letters (1st Plaintiff) was wrongful [1st Plaintiff’s Demand (20.4.2020)] - paragraph 25 Post-Trial AF; and

demand dated 20.4.2020 which alleged that, among others, the Defendant’s 2 Termination Letters (2nd Plaintiff) was wrongful [2nd Plaintiff’s Demand (20.4.2020)] - paragraph 26 Post-Trial AF. There was no response by the Defendant to the 1st Plaintiff’s Demand (20.4.2020) and 2nd Plaintiff’s Demand (20.4.2020) [referred collectively in this judgment as the “Plaintiffs 2 Demands (20.4.2020)”].

In view of the Defendant’s 4 Termination Letters -

the Plaintiffs kept the final drawings for the 2 Projects from the Defendant [Plaintiffs’ Final Drawings (2 Projects)]; and

the Plaintiffs’ Final Drawings (2 Projects) were tendered at the trial of this suit (Trial) by SP3 as exhibits P1 and P2. - paragraph 29 Post-Trial AF.

The Defendant admitted that he owed 1st Plaintiff a total sum of RM63,263.40 as stated in the 1st Plaintiff’s 2 Invoices (17.1.2020) - paragraph 30 Post-Trial AF.

The Plaintiffs had claimed from the Defendant for, among others, the following monetary remedies (Plaintiffs’ Claim):

the return of the 1st Plaintiff’s Loan (RM25,000.00) by the Defendant;

the value of the Plaintiffs’ Works as follows -

a sum of RM890,621.87 shall be paid by the Defendant to the 1st Plaintiff for the works performed by the 1st Plaintiff for the Defendant (1st Plaintiffs’ Works) pursuant to the 2 LAs (1st Plaintiff, 7.11.2019); and

the Defendant shall be liable for a sum of RM111,000.00 to the 2nd Plaintiff for the works completed by the 2nd Plaintiff for the S/N JuvrXvuvDkCW/s7uIpgdSA Defendant (2nd Plaintiffs’ Works) pursuant to the 2 LAs (2nd Plaintiff, 7.11.2019); and

the Defendant shall pay for the loss of profit suffered by the Plaintiffs as a result of the unlawful Defendant’s 4 Termination Letters [Loss of Profit (Plaintiffs)].

The following three witnesses testified for the Plaintiffs:

Puan Khairunnisa Bt. Mohd. Zaini (SP1), MBSA’s landscape architect;

Sr. Lim Kok Sang (SP2), a consultant quantity surveyor (QS); and

SP3.

SP1 gave the following evidence, among others:

SP1 was responsible for landscape development in Shah Alam and was involved in the 2 Projects;

the Plaintiffs were the Defendant’s consultants and suppliers who were present at -

the Pre-Tender Site Visit; and

meetings with MBSA regarding the 2 Projects (MBSA Meetings). SP1 had met SP3 and Hee Chye at three or four

for the purpose of the 2 Projects, MBSA had created a “WhatsApp Chat Group” which included the Defendant, SP3 and Hee Chye S/N JuvrXvuvDkCW/s7uIpgdSA (MBSA’S WhatsApp Chat Group). SP1 confirmed the contents of all the messages exchanged in MBSA’S WhatsApp Chat Group (MBSA’S WhatsApp Chat Group Messages).

According to SP3, among others -

as the Defendant had no expertise, experience and resources to bid for and complete the 2 Projects, the Defendant represented to SP3 and Hee Chye that if the Defendant secured the 2 Projects from MBSA, the Defendant would appoint the Plaintiff as sub-contractors for the 2 Projects (Defendant’s Representation);

based on the Defendant’s Representation -

the Plaintiffs attended the Pre-Tender Site Visit;

the Plaintiffs’ Pre-Tender Works were done;

the 2nd Plaintiff obtained GMIE’s Price Quotation; and

the Plaintiffs’ 4 Price Quotations and BQ’s were prepared for the Defendant;

after the issuance of the 4 LAs (7.11.2019) -

TAAR issued 4 POs to the Plaintiffs;

the 1st Plaintiff’s Loan was made to the Defendant;

the 2nd Plaintiff had appointed GMIE to perform works for the 2nd Project and GMIE’s 2 Invoices had been issued to the 2nd

the Plaintiffs’ Works were done. The Plaintiffs have relied on two “Progress Reports” which contain details and photographs of the Plaintiffs’ Works (2 Progress Reports); and

the Plaintiffs attended 5 Meetings (MBSA/Plaintiffs/Defendant);

the Defendant’s Termination (4 LAs) were wrongfully made;

the Defendant did not pay for the 5 Invoices (Plaintiffs);

the Defendant’s Cheque (2.4.2020) was not honoured;

the Defendant did not deny the Plaintiff’s 2 Demands (20.4.2020); and

as a result of the unlawful Defendant’s Termination (4 LAs), the Plaintiffs suffered Loss of Profit (Plaintiffs). For this claim, SP3 relied on SP2’s expert opinion as contained in SP2’s report dated 5.8.2021 (SP2’s Expert Opinion). At the Trial, SP3 had adduced the following documentary evidence, among others -

WhatsApp messages between SP3 and the Defendant from 12.7.2019 to 25.10.2019 [WhatsApp Messages (SP3/Defendant)];

(ii) MBSA’S WhatsApp Chat Group Messages; and

(iii) the Plaintiffs’ Final Drawings (2 Projects).

SP2 testified as follows, among others:

SP2 is a QS who is registered with, among others, the following professional bodies -

Board of Quantity Surveyors Malaysia;

Fellow of Royal Institution of Surveyors Malaysia; and

Fellow of Royal Institution of Chartered Surveyors United

SP2 has more than 20 years of work experience with regard to building and civil engineering works in Malaysia, Ireland and the United Arab Emirates;

with regard to the Loss of Profit (Plaintiffs), SP2’s Expert Opinion is as follows -

the 1st Plaintiff suffered loss of profit which amounted to RM1,067,028.51 [Loss of Profit (1st Plaintiff)]. The Loss of Profit (1st Plaintiff) consisted of the following sums -

the 1st Plaintiff suffered loss of profit in a sum of RM625,597.85 for the 1st Project; and

(ii) with regard to the 2nd Project, the 1st Plaintiff suffered loss of profit of RM441,430.66; and

a sum of RM103,460.84 constituted loss of profit which had been suffered by the 2nd Plaintiff [Loss of Profit (2nd Plaintiff)]. The Loss of Profit (2nd Plaintiff) was computed as follows -

the 2nd Plaintiff suffered loss of profit in an amount of RM40,560.84 for the 1st Project; and

(ii) loss of profit of RM62,900.00 was suffered by the Plaintiff regarding the 2nd Project. C(2). Defendant’s case

The Defendant resisted the Plaintiffs’ Claim by way of the following testimony, among others:

the Defendant claimed to have been involved in, among others, renovation of private homes and work regarding electrical wiring, roofs and land clearing;

the Defendant’s Representation was denied. In fact, the Defendant alleged that SP3 voluntarily assisted the Defendant to bid for the 2 Projects;

the Plaintiffs did not accept the 2 LAs (5.11.2019) and 4 LAs (7.11.2019). Nor were there execution of formal agreements between the Plaintiffs and Defendant for the 2 Projects;

the Plaintiffs did not comply with the conditions stipulated in the 2 LAs (5.11.2019);

the Defendant’s 4 Termination Letters were valid;

the Defendant disputed -

the value of the Plaintiffs’ Works; and

Loss of Profit (Plaintiffs); and

after the Defendant’s 4 Termination Letters, the Defendant completed the 2 Projects with the consultancy services of a “water features specialist” named AS Engineering Sdn. Bhd. D. Post-Trial AF and Post-Trial AI

After the conclusion of every trial, I conduct Post-Trial CM as follows:

parties are given a specific time period (generally not more than two weeks) by the court to prepare notes of evidence (NOE). The court must ensure that there is no delay in the preparation of NOE because any delay in the preparation of NOE can only delay the filing of parties’ written submission (WS) and this in turn will cause a delay in the delivery of the Post-Trial Decision;

during the preparation of NOE, learned counsel are directed by court to draft Post-Trial AF and Post-Trial AI. Parties have already adduced all evidence to support their case at the trial (Evidence). Consequently, there is nothing to prevent learned counsel from drafting Post-Trial AF and Post-Trial AI based on the Evidence;

a party (X) may decide -

not to draft Post-Trial AF and/or Post-Trial AI; or

not to agree to Post-Trial AF and/or Post-Trial AI. S/N JuvrXvuvDkCW/s7uIpgdSA X’s conduct in respect of Post-Trial AF and/or Post-Trial AI [X’s Conduct (Trial)] may be considered by the court under O 59 r 8(b) of the Rules of Court 2012 (RC) when the court determines the amount of costs to be awarded after the delivery of Post-Trial Decision [Costs (Quantum)]. I reproduce below O 59 r 8(b) RC - “O 59 r 8 Special matters to be taken into account in exercising discretion The Court in exercising its discretion as to costs shall, to such extent, if any, as may be appropriate in the circumstances, take into account - …

the conduct of all the parties, including conduct before and during the proceedings; …” (emphasis added). By reason of O 59 r 8(b) RC -

if X agrees to Post-Trial AF and Post-Trial AI, X’s Conduct constitutes a reason in favour of X when court determines

(ii) if X does not draft and/or agree to Post-Trial AF and Post-Trial AI, the court may consider X’s Conduct against X when Costs (Quantum) is determined by court;

after parties have submitted a draft Post-Trial AF and Post-Trial AI to court - S/N JuvrXvuvDkCW/s7uIpgdSA

the court cannot compel parties to amend, withdraw and/or add to the contents of Post-Trial AF. This is understandable because parties can only agree to Post-Trial AF on their own volition; and

the court should consider the draft Post-Trial AI with learned counsel in the Post-Trial CM [Court’s Discussion (Draft Post-Trial AI)]. In the Court’s Discussion (Draft Post-Trial AI) -

the court should assist learned counsel by clarifying and/or “refining” question(s) of law and/or fact to be presented to court in the Post-Trial AI (which will be subsequently decided by the court);

(ii) if the court is of the view that there is/are relevant question(s) of fact and/or law which has/have not been presented in the draft Post-Trial AI [Additional Question(s)], in the interest of justice, the court should include the Additional Question(s) in the Post-Trial AI. By the court’s inclusion of Additional Question(s) in the Post-Trial AI, learned counsel can address the Additional Question(s) in the WS and parties would then have been accorded their right of hearing in respect of the Additional Question(s); and

(iii) if a party insists on a particular issue(s) to be included in the Post-Trial AI and this/these issue(s) is/are objected to by the adverse party [Non-Agreed Issue(s)], the court should nevertheless allow the Non-Agreed Issue(s) to be S/N JuvrXvuvDkCW/s7uIpgdSA included in the Post-Trial AI. This is because firstly, in the interest of justice, learned counsel should be given the latitude to pose to the court any issue(s), including Non-Agreed Issue(s), as learned counsel thinks fit. Secondly, it is pre-mature during the Court’s Discussion (Draft Post-Trial AI) to decide on the relevancy of any question, including Non-Agreed Issue(s). In other words, during the Court’s Discussion (Draft Post-Trial AI), it is not prudent for the court to reject Non-Agreed Issue(s) in the Post-Trial AI. Thirdly, it is better for the court to err on the side of caution and include the Non-Agreed Issue(s) in the Post-Trial AI. Lastly, as explained in sub-paragraph 28(3) below, the court is not bound in any manner by Post-Trial AI, including Non-Agreed Issue(s). There is therefore no risk of injustice if the Non-Agreed Issue(s) is/are included in the Post-Trial AI. It is to be emphasized that the Court’s Discussion (Draft Post-Trial AI) should not be unduly delayed and should be completed before the preparation of NOE. If there is inordinate delay in the Court’s Discussion (Draft Post-Trial AI), this will consequently delay the filing of WS and delivery of Post-Trial Decision; and

after parties have agreed to Post-Trial AF and Post-Trial AI -

the court may give directions for parties to file and serve WS; and

the court may fix a date for the delivery of Post-Trial Decision.

There are many reasons for the court to direct parties to draft Post-Trial AF and Post-Trial AI. Firstly, as explained in the above sub-paragraphs 1(a) and (b), Post-Trial AF and Post-Trial AI assist parties and court by ensuring an expeditious and economical disposal of the case. Secondly, without Post-Trial AF and Post-Trial AI, valuable time, effort and costs of parties may be wasted when learned counsel include the following matters in their WS:

in WS, parties may dispute fact(s) which has/have already been proved at the trial (which can form the subject matter of Post-Trial AF); and/or

submission may be made in the WS on issue(s) of fact and/or law which is/are not relevant to the case [Irrelevant Issue(s)]. In view of the above reasons for Post-Trial AF and Post-Trial AI, WS should only be prepared by learned counsel after Post-Trial AI have been agreed by parties.

If Post-Trial AF and/or Post-Trial AI have been agreed by parties -

the Post-Trial AF and Post-Trial AI should supersede the Pre-Trial Agreed Facts (Pre-Trial AF) and Pre-Trial Agreed Issues (Pre-Trial AI) which have been previously agreed by parties before the commencement of trial pursuant to O 34 r 2(2)(j) and (k) RC respectively. Generally - S/N JuvrXvuvDkCW/s7uIpgdSA

Post-Trial AF should be longer than Pre-Trial AF because there may be more agreed facts between the parties which emerge from the Evidence; and

Post-Trial AI should not be as lengthy as Pre-Trial AI because many questions in Pre-Trial AI may not be relevant after the trial in question;

parties are barred by Post-Trial AF from denying the truth of the contents of Post-Trial AF. I can foresee the possibility of a party (Y) who applies to court to amend or withdraw a certain “agreed fact” in Post-Trial AF (Y’s Application) on the ground that the “agreed fact” has been disputed by Y at the trial in question. In such an instance, the court can simply decide Y’s Application based solely on the Evidence; and

ideally, by way of the Court’s Discussion (Post-Trial AI) [please refer to the above sub-paragraph 26(4)(b)], all relevant issues of fact and law to be determined by court in the case, should be stated in the Post-Trial AI. Having said that, notwithstanding the Court’s Discussion (Post-Trial AI), the court is not bound in any manner by Post-Trial AI. Firstly, the court may decide that a particular issue stated in the Post-Trial AI may not be relevant or may not have arisen in the case. Secondly, if there is/are relevant question(s) of fact and/or law which has/have not been presented to court in Post-Trial AI and/or WS, in accordance with the second rule of natural justice, the court should pose such question(s) to all learned counsel before making the S/N JuvrXvuvDkCW/s7uIpgdSA Post-Trial Decision - please refer to Tan Kang Hai v Slimming Sanctuary Sdn Bhd [2016] 5 MLRH 651, at [11(2)]. In this manner, learned counsel can assist court by making the necessary submission to court in the WS on such question(s) and fulfil their duties to court and their clients. E. Issues

The following questions arise in this case:

was the 1st Plaintiff’s Loan made to the Defendant?;

can the Defendant rely on the 2 LAs (5.11.2019) to resist the Plaintiff’s Claim?;

did the 4 LAs (7.11.2019) constitute contracts between the Defendant and Plaintiffs? This depends on whether the Plaintiffs had accepted the 4 LAs (7.11.2019) by their conduct within the meaning of s 2(b) read with s 7(a) and (b) of the Contracts Act 1950 (CA); and

if the 4 LAs (7.11.2019) constituted contracts between the Defendant and Plaintiffs -

whether the Defendant’s 4 Termination Letters were lawful; and

if the Defendant’s 4 Termination Letters were unlawful and had breached the 4 LAs (7.11.2019), can the Plaintiffs claim from the Defendant pursuant to s 74(1) CA -

value of works done by the Plaintiffs under the 4 LAs (7.11.2019); and

(ii) Loss of Profit (Plaintiffs)? F. Findings of fact F(1). Credibility of witnesses

Firstly, I accept SP1’s evidence because SP1 is an independent witness without any interest in the outcome of this suit.

I find as a fact that SP3 is a credible witness due to the following evidence and reasons:

SP3’s testimony is supported by the following documents -

WhatsApp Messages (SP3/Defendant). Firstly, WhatsApp messages constitute contemporaneous documentary evidence to which the court may attach weight - please refer to Syarikat Faiza Sdn Bhd & Anor v Faiz Rice Sdn Bhd & Anor and another case [2019] 7 MLJ 175, at [23(1)] and [23(2)]. Secondly, during cross-examination, the Defendant had admitted that the WhatsApp Messages (SP3/Defendant) had indeed been made;

MBSA’S WhatsApp Chat Group Messages;

GMIE’s Price Quotation (10.8.2019);

Plaintiffs’ 4 Price Quotations (14.8.2019);

Plaintiffs’ Pre-Tender Works;

BQs;

4 LAs (7.11.2019) issued by the Defendant;

the Defendant’s 4 POs;

GMIE’s 2 Invoices;

Plaintiffs’ 5 Invoices;

Defendant’s Cheque (2.4.2020);

Plaintiffs’ Final Drawings (2 Projects);

the audio recording of the 3 Meetings (Defendant-SP3) [Audio

transcripts of the Audio Recording (3 Meetings) [Transcript (3 Meetings)]. It is trite law that when there is a conflict between oral and documentary evidence, especially contemporaneous documents, the court should accept the contents of documents in preference to self-serving testimony - please see the judgment of Chang Min Tat FJ the Federal Court case of Tindok Besar Estate Sdn Bhd v Tinjar Co [1979] 2 MLJ 229, at 234; and

the conduct of a party is relevant under s 8(2) of the Evidence Act 1950 (EA). Section 8(2) provides as follows - S/N JuvrXvuvDkCW/s7uIpgdSA “The conduct of any party, or of any agent to any party, to any suit or proceeding in reference to that suit or proceeding, or in reference to any fact in issue therein or relevant thereto, and the conduct of any person an offence against whom is the subject of any proceeding, is relevant if the conduct influences or is influenced by any fact in issue or relevant fact, and whether it was previous or subsequent thereto.” (emphasis added). The following conduct of SP3 supports his veracity -

Pre-Tender Site Visit;

the 1st Plaintiff’s Loan was given to the Defendant;

5 Meetings (MBSA/Plaintiffs/Defendant); and

3 Meetings (Defendant/SP3).

This court makes a factual finding that the Defendant is not a reliable witness. This finding of fact is premised on the following evidence and reasons:

the documents stated in the above sub-paragraphs 27(1)(a) to (n), in particular -

WhatsApp Messages (SP3/Defendant);

4 LAs (7.11.2019) issued by the Defendant;

the Defendant’s 4 POs;

Defendant’s Cheque (2.4.2020) which was subsequently dishonoured by the Defendant himself;

Audio Recording (3 Meetings); and

Transcript (3 Meetings) - undermine, if not destroy, the Defendant’s credibility;

the Defendant gave sworn evidence that the Defendant’s Representation was not made. However, as explained in paragraph 33 below, such a testimony by the Defendant cannot be accepted by the court;

during cross-examination by the Plaintiffs’ learned counsel, Mr. Long Chay Jo, the Defendant admitted the following matters -

the Plaintiffs had assisted the Defendant in, among others, the preparation of the Pre-Tender Works (Defendant’s 1st Admission). The Defendant’s 1st Admission was stated in the

the Defendant did not request in the WhatsApp Messages (SP3/Defendant) for -

the Plaintiffs to accept in writing the 4 LAs (7.11.2019) issued by the Defendant; and

(ii) the Plaintiffs to prepare two formal agreements to be executed by the Defendant and Plaintiffs regarding the 2 Projects; and

at the 3 Meetings (Defendant-SP3), the Defendant requested for the Plaintiffs to continue with the 2 Projects (Defendant’s 2nd Admission). The Defendant’s 2nd Admission is proven by the Audio Recording (3 Meetings) and Transcript (3 Meetings). Before the commencement of Trial, during pre-trial case management, the Plaintiffs’ solicitors had handed to the Defendant’s solicitors, among others, the Audio Recording (3 Meetings) and Transcript (3 Meetings). The Defendant’s solicitors had marked the Audio Recording (3 Meetings) and Transcript (3 Meetings) as “Part B” documents pursuant to O 34 r 2(2)(e)(i) RC. Consequently -

the authenticity of the Audio Recording (3 Meetings) and Transcript (3 Meetings) is not disputed by the Defendant;

(ii) the Audio Recording (3 Meetings) and Transcript (3 Meetings) are admissible as evidence in this case; and

(iii) the court may attach weight to the Audio Recording (3 Meetings) and Transcript (3 Meetings) in the interest of justice; and

the following conduct by the Defendant shows that his testimony cannot be believed - S/N JuvrXvuvDkCW/s7uIpgdSA

the Defendant allowed the Plaintiffs to attend -

Pre-Tender Site Visit; and

(ii) 5 Meetings (MBSA/Plaintiffs/Defendant);

the Defendant did not inform SP1 and/or MBSA that there was no relationship between the Defendant and Plaintiffs. Nor did the Defendant disabuse SP1 of her impression that the Plaintiffs were the Defendant’s consultants and suppliers;

notwithstanding the issuance of the Defendant’s Termination (4 LAs), the Defendant did not request SP1 to remove SP3 and

the Defendant did not deny or object to the following documents which were against him -

Plaintiffs’ 5 Invoices; and

(ii) Plaintiff’s 2 Demands (20.4.2020). F(2). Whether Defendant’s Representation had been made

I have no hesitation to make a finding of fact that on a balance of probabilities, the Defendant’s Representation had indeed been made to the Plaintiffs. The following evidence and reasons support this factual finding:

during cross-examination, the Defendant admitted that before he started business with TAAR on 31.1.2017 (when TAAR was S/N JuvrXvuvDkCW/s7uIpgdSA registered as a sole proprietorship under RBA), he was an officer with the Malaysian Anti-Corruption Commission (MACC). The Defendant further admitted under cross-examination that prior to the 2 Main Contracts (MBSA/TAAR), the Defendant had not been awarded any construction contract which was similar in nature and value as the 2 Projects. It is therefore clear that the Defendant did not have the necessary expertise, experience, track record and financial resources to bid for, let alone complete, the 2 Projects; and

the Plaintiffs are not charitable institutions. If the Defendant’s Representation had not been made, the Plaintiffs would not have expended much time, effort and money to do the following matters -

the Pre-Tender Site Visit would not have been made;

GMIE’s Price Quotation (10.8.2019) would not have been obtained;

Plaintiffs’ 4 Price Quotations (14.8.2019) would not have been issued to the Defendant;

Plaintiffs’ Pre-Tender Works would not have been performed for the Defendant;

the Plaintiffs would not have prepared BQs for the Defendant;

the 1st Plaintiff’s Loan would not have been advanced to the

the Plaintiffs would not have attended 5 Meetings (MBSA/Plaintiffs/Defendant);

GMIE would not have been appointed and GMIE’s 2 Invoices would not have been issued;

the Plaintiffs’ 5 Invoices would not have been sent to the

the Plaintiffs’ Final Drawings (2 Projects) would not have been prepared; and

SP3 would not have met the Defendant in the 3 Meetings (Defendant-SP3). G. Was 1st Plaintiff’s Loan given to Defendant?

This court finds as a fact that on a balance of probabilities the 1st Plaintiff’s Loan had been made to the Defendant because of the following evidence and reasons:

the 1st Plaintiff’s Loan was advanced to the Defendant by way of the following three tranches -

a sum of RM10,000.00 was advanced in cash by the 1st Plaintiff to the Defendant on 11.11.2019;

the 1st Plaintiff lent RM5,000.00 to the Defendant by way of a bank transfer on 18.11.2019. This tranche is proven when the 1st Plaintiff adduced a bank transfer confirmation which showed a bank transfer of RM5,000.00 to the Defendant on 18.11.2019; and

on 23.12.2019, the 1st Plaintiff gave a cash advance of RM10,000.00 to the Defendant. The 1st Plaintiff’s Loan was evidenced by three WhatsApp

SP3’s oral evidence regarding the 1st Plaintiff’s Loan was not challenged during SP3’s cross-examination by the Defendant’s learned counsel, Encik Muhammad Azwar Bin Abdul Manab. As such, SP3’s testimony in respect of the 1st Plaintiff’s Loan, is deemed to be accepted by the Defendant - please refer to the judgment of the Federal Court delivered by Raja Azlan Shah CJ (Malaya) (as His Majesty then was) in Wong Swee Chin v Public Prosecutor [1981] 1 MLJ 212, at 213. H. Can Defendant rely on 2 LAs (5.11.2019)?

I reproduce below ss 2(a), (b) and 7 CA: “s 2 Interpretation In [CA] the following words and expressions are used in the following senses, unless a contrary intention appears from the context:

when one person signifies to another his willingness to do or to abstain from doing anything, with a view to obtaining the assent of that other to the act or abstinence, he is said to make a proposal;

when the person to whom the proposal is made signifies his assent thereto, the proposal is said to be accepted: a proposal, when accepted, becomes a promise; S/N JuvrXvuvDkCW/s7uIpgdSA … s 7 Acceptance must be absolute In order to convert a proposal into a promise the acceptance must -

be absolute and unqualified;

be expressed in some usual and reasonable manner, unless the proposal prescribes the manner in which it is to be accepted. If the proposal prescribes a manner in which it is to be accepted, and the acceptance is not made in that manner, the proposer may, within a reasonable time after the acceptance is communicated to him, insist that his proposal shall be accepted in the prescribed manner, and not otherwise; but, if he fails to do so, he accepts the acceptance.” (emphasis added).

Encik Muhammad Azwar has relied on the 2 LAs (5.11.2019) to resist the Plaintiff’s Claim. I am of the view that the Defendant cannot rely on the 2 LAs (5.11.2019). My reasons are as follows:

the 2 LAs (5.11.2019) constituted “proposals” (popularly known as “offers”) within the meaning of s 2(a) CA. The Defendant’s proposals in the 2 LAs (5.11.2019) were superseded by his new proposals in the 4 LAs (7.11.2019). In this regard, I rely on the following judgment of Dyson LJ (as he then was) in United Kingdom’s Court of Appeal in Pickfords Ltd v Celestica Ltd [2003] EWCA Civ 1741, at [17] to [19] - “[17] What is the position where A makes an offer to B and then makes a later offer to B? By making the later offer, does A withdraw the earlier one? That is the first question that arises in S/N JuvrXvuvDkCW/s7uIpgdSA this case. No authority has been cited to us in which this question has been considered. In my judgment it must depend on the nature of the two offers and the circumstances in which they are made. Take a simple case where A asks B, a decorator, to quote for the painting of his house. Suppose, further, that B quotes A a figure of £200 per day, plus materials. Before deciding whether to instruct B to proceed, A decides to ask B to provide a fixed price quotation. B provides a fixed price quotation of £1500. In those circumstances B's later quotation does not, without more, amount to a withdrawal of the first offer. It is produced at the request of A so that A can decide which of the two quotations to accept. That is the basis upon which the second quotation is sought and provided. [18] In such a case, in my judgment, something more than the mere submission of the second quotation is required to indicate that A has withdrawn the first offer. The two offers are inconsistent with each other only in the sense that they cannot both be accepted. But the question is not whether both offers can be accepted, but whether the making of the second offer clearly indicates an intention on the part of the offeror to withdraw the first offer. [19] That simple case is, however, very different from what happened here. It is true that there are no findings of fact as to the circumstances which gave rise to the second offer. The substantial differences between the two offers in this case went far beyond a mere difference in price which could have been explained as consistent with two alternative offers both being on the table for the defendant to choose which to accept. In the absence of any findings of fact as to the circumstances which gave rise to the second offer, I would hold that the second offer did supersede and revoke the first offer.” S/N JuvrXvuvDkCW/s7uIpgdSA (emphasis added);

the Plaintiffs did not “accept” the Defendant’s proposals in the 2 LAs (5.11.2019) as understood in s 2(b) read with s 7(a) and (b) CA;

the 4 POs (issued by the Defendant) had referred to the 4 LAs (7.11.2019) and not to the 2 LAs (5.11.2019). It is thus clear that the Defendant’s reliance on the 2 LAs (5.11.2019) is a mere afterthought to defeat unlawfully the Plaintiff’s Claim; and

in paragraphs 7 to 10 Post-Trial AF, the Defendant has admitted that there were errors in the 2 LAs (5.11.2019) and upon the request of the Plaintiffs, the Defendant had issued the 4 LAs (7.11.2019). I. Whether 4 LAs (7.11.2019) constituted contracts between Defendant and Plaintiffs

I accept Mr. Long’s submission that the 4 LAs (7.11.2019) constituted agreements between the Defendant and Plaintiffs with regard to the 2 Projects. The following evidence and reasons underpin this decision:

the 4 LAs (7.11.2019) fell within the definition of “proposal” in s 2(a) CA;

the 4 LAs (7.11.2019) did not prescribe the manner for the Plaintiffs to accept the 4 LAs (7.11.2019). Accordingly, the Plaintiffs were entitled under s 7(b) CA to accept the 4 LAs (7.11.2019) in “some usual and reasonable manner”. One usual and reasonable manner for a person (Z) to accept a proposal is by way of Z’s conduct - please refer to the judgment of Kamaludin Md. Said JCA in the S/N JuvrXvuvDkCW/s7uIpgdSA Court of Appeal case of Genneva Malaysia Sdn Bhd v Tio Jit Hong & Ors [2020] 6 MLJ 703, at [50];

in accordance with s 2(b) read with s 7(b) CA, the Plaintiffs had accepted the 4 LAs (7.11.2019) by their conduct as follows -

the Plaintiffs’ Works were carried out

GMIE had been appointed by the 2nd Plaintiff to perform works for the 2nd Project;

the Plaintiffs’ attendance in 5 Meetings (MBSA/Plaintiffs/Defendant);

Plaintiffs’ 5 Invoices had been issued to the Defendant; and

Plaintiffs’ Final Drawings (2 Projects) had been prepared [Plaintiffs’ Acceptance (4 LAs)]; and

the Plaintiffs’ Acceptance (4 LAs) was “absolute and unqualified” within the meaning of s 7(a) CA.

This court decides that the Defendant is estopped from denying the fact that the 4 LAs (7.11.2019) constituted agreements between the Defendant and Plaintiffs in respect of the 2 Projects. Firstly, in the Federal Court case of Boustead Trading (1985) Sdn Bhd v Arab-Malaysian Merchant Bank Bhd [1995] 4 CLJ 283, at 294 and 295, Gopal Sri Ram JCA (as he then was) has decided that the doctrine of equitable estoppel has a wide application and may support a plaintiff’s S/N JuvrXvuvDkCW/s7uIpgdSA cause of action against a defendant. The estoppel doctrine is embodied in our s 115 EA which reads as follows: “When one person has by his declaration, act or omission intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, otherwise than but for that belief he would have acted, neither he nor his representative in interest shall be allowed in any suit or proceeding between himself and that person or his representative in interest to deny the truth of that thing.” (emphasis added). 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 invoked the equitable doctrine of estoppel in a dispute regarding a construction contract. The following conduct of the Defendant, in my view, estops the Defendant from disputing the fact that the 4 LAs (7.11.2019) constituted agreements between the Defendant and Plaintiffs regarding the 2

the Defendant had issued 4 POs to the Plaintiffs. The 4 POs were not withdrawn by the Defendant at any time. Nor did the Defendant allege that the 4 POs had been erroneously issued by the Defendant;

the Defendant did not deny the Plaintiffs’ 5 Invoices; S/N JuvrXvuvDkCW/s7uIpgdSA

if there were no contracts between the Plaintiffs and Defendant, the Defendant’s Cheque (2.4.2020) would not had been issued in the first place;

the Defendant communicated with SP3 regarding the 2 Projects in WhatsApp Messages (SP3/Defendant);

the Defendant would not have attended the 3 Meetings (Defendant/SP3) and would not have made the Defendant’s 2nd Admission - please refer to the above sub-paragraph 32(3)(c); and

the Defendant did not deny the Plaintiffs’ 2 Demands (20.4.2020). J. Were Defendant’s 4 Termination Letters lawful?

I have no hesitation to decide that the Defendant’s 4 Termination Letters were not valid because -

the first and second paragraphs in the Defendant’s 4 Termination Letters had wrongfully referred to the 2 LAs (5.11.2019). As explained in the above paragraph 36, the 2 LAs (5.11.2019) did not constitute contracts between the Defendant and Plaintiffs with regard to the 2 Projects. On the contrary, the 4 LAs (7.11.2019) formed the agreements between the Defendant and Plaintiffs in respect of the 2 Projects - please refer to the above paragraph 37. If the 2 LAs (5.11.2019) were indeed the two contracts between the Defendant and Plaintiffs regarding the 2 Projects, the Defendant would have issued two (not four) letters to terminate the 2 LAs (5.11.2019); and S/N JuvrXvuvDkCW/s7uIpgdSA

according to paragraph 3 of the Defendant’s 4 Termination Letters, the Plaintiffs had failed to prepare written agreements for the execution of all parties within the stipulated time period (Paragraph 3). The Defendant’s 4 Termination Letters did not however state what was the stipulated time period. Paragraph 3 is unlawful for the following reasons -

there is nothing in CA which requires an agreement to be in writing;

the 4 LAs (7.11.2019) did not stipulate that the 4 LAs (7.11.2019) were subject to a condition precedent, namely, the parties must execute a written contract before the 4 LAs could be lawfully accepted by the Plaintiffs;

as explained in the above sub-paragraphs 37(2) and (3), the Plaintiffs had accepted the 4 LAs (7.11.2019) by their conduct; and

the Defendant is estopped from asserting that there should be written agreements between the Defendant and Plaintiffs in respect of the 2 Projects - please refer to the above paragraph 38.

The unlawful Defendant’s 4 Termination Letters meant that the Defendant had breached the 4 LAs (7.11.2019) [Defendant’s 4 Breaches (4 LAs)]. S/N JuvrXvuvDkCW/s7uIpgdSA K. Can Plaintiff claim damages for Defendant’s 4 Breaches (4 LAs)?

Section 74(1) CA states as follows: ““Compensation for loss or damage caused by breach of contract 74(1) CA When a contract has been broken, the party who suffers by the breach is entitled to receive, from the party who has broken the contract, compensation for any loss or damage caused to him thereby, which naturally arose in the usual course of things from the breach, or which the parties knew, when they made the contract, to be likely to result from the breach of it.” (emphasis added).

The scope of s 74(1) CA has been explained in Jambatan Merah Sdn Bhd (in liquidation) v Public Bank Bhd [2016] 1 CLJ 811, at [46], as follows: “[46] Even if the Plaintiff has suffered any loss or damage due to the Defendant’s Breach (Alleged Loss), the Plaintiff must prove that the Alleged Loss is claimable and is not too remote under either one or both the limbs of s 74(1) CA (1950) as follows:

the Alleged Loss “naturally arose in the usual course of things” from the Defendant’s Breach within the meaning of the first limb of s 74(1) CA (1950); and/or

both the Plaintiff and Defendant “knew, when they made the contract” that the Alleged Loss was “likely to result from the breach” of the Defendant’s Breach as understood in the second limb of s 74(1) CA (1950).” (emphasis added).

To claim successfully for -

the value of the Plaintiffs’ Works [Value (Plaintiffs’ Works)]; and

Loss of Profit (Plaintiffs) (Plaintiffs’ 2 Heads of Claim) the Plaintiffs have the burden to prove the following two matters cumulatively -

the Plaintiffs’ 2 Heads of Claim are not too remote to be recoverable in law under either one of the following two limbs of s 74(1) CA -

the Plaintiffs’ 2 Heads of Claim “naturally arose in the usual course of things” from the Defendant’s 4 Breaches (4 LAs) within the meaning of the first limb of s 74(1) CA [1st Limb (Section 74 CA)]; or

(ii) the Plaintiffs and Defendant knew when they entered into the 4 LAs (7.11.2019) that the Plaintiffs’ 2 Heads of Claim were “likely to result” from the Defendant’s 4 Breaches (4 LAs) as understood in the second limb of s 74(1) CA [2nd Limb (Section 74 CA)]; and

the quantum of the Plaintiffs’ 2 Heads of Claim [Quantum (Plaintiffs’ Claim)]. S/N JuvrXvuvDkCW/s7uIpgdSA K(1). Whether Plaintiffs’ 2 Heads of Claim are too remote in law to be claimed under s 74(1) CA

I am of the following view:

the Value (Plaintiffs’ Works) fulfils the 1st Limb (Section 74 CA) because the Value (Plaintiffs’ Works) “naturally arose in the usual course of things” from the Defendant’s 4 Breaches (4 LAs). If otherwise, despite the unlawful Defendant’s 4 Termination Letters, the Defendant would be unjustly enriched by the Value (Plaintiffs’ Works); and

the Loss of Profit (Plaintiffs) falls under the 2nd Limb (Section 74 CA), ie., the Plaintiffs and Defendant knew when they entered into the 4 LAs (7.11.2019) that the Loss of Profit (Plaintiffs) was “likely to result” from the Defendant’s 4 Breaches (4 LAs). This decision is premised on the following reasons -

the 4 LAs (7.11.2019) were commercial contracts;

the Plaintiffs are not charitable institutions and did not accept the 4 LAs (7.11.2019) for any altruistic purpose;

the Defendant did not resign from MACC and register TAAR for any philanthropic reason; and

the Plaintiffs and Defendant had knowingly entered into the 4 LAs (7.11.2019) with a view to attain profit. S/N JuvrXvuvDkCW/s7uIpgdSA K(2). Can Plaintiff recover Quantum (Plaintiffs’ Claim)?

Firstly, this court decides that the Plaintiffs have discharged the onus to prove the Value (Plaintiffs’ Works) based on the following evidence and reasons:

the following documents evidence the Value (Plaintiffs’ Works) -

Defendant’s 4 POs;

Plaintiffs’ 5 Invoices; and

2 Progress Reports;

the Value (Plaintiffs’ Works) had been stated in the Plaintiffs’ 2 Demands (20.4.2020) and the Defendant did not deny the Value (Plaintiffs’ Works) in the Plaintiffs’ 2 Demands (20.4.2020). The following two appellate decisions have decided that in a commercial transaction, there is an implied admission that a party (T) owes a sum of money if T does not deny a letter requesting for T to repay that sum -

Gopal Sri Ram JCA (as he then was) has delivered the following judgment of the Court of Appeal in David Wong Hon Leong v Noorazman bin bin Adnan [1995] 4 CLJ 155, at 159 - “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 S/N JuvrXvuvDkCW/s7uIpgdSA 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 must answer it if he means to dispute the fact that he did so agree.” (emphasis added); and

David Wong Hon Leong has been approved in the following judgment of Azahar Mohamed FCJ (as he then was) in the Federal Court case of Dream Property Sdn Bhd v Atlas Housing Sdn Bhd [2015] 2 MLJ 441, at [62] - “[62] … It is the ordinary nature of businessman to immediately refute any proposition injurious to him contained in letters and not to let it stands (see Wong Hon Leong David v Noorazman bin Adnan [1995] 3 MLJ 283; [1995] 4 CLJ 155).” (emphasis added); and

the Defendant did not adduce any evidence that the Plaintiffs’ Works had not been performed in this case. Nor did the Defendant tender any evidence to prove that the Plaintiffs’ Works were defective. Consequently, the Defendant could not dispute the Value (Plaintiffs’ Works).

Premised on the evidence and reasons expressed in the above paragraph 45, this court adjudges that the Defendant shall pay the following judgment sums to the Plaintiffs:

a sum of RM890,621.87 shall be paid by the Defendant to the 1st Plaintiff for the 1st Plaintiff’s Works [Value (1st Plaintiff’s Works)]; and

the Defendant shall pay to the 2nd Plaintiff an amount of RM111,000.00 for the 2nd Plaintiff’s Works [Value (2nd Plaintiff’s Works)]. S/N JuvrXvuvDkCW/s7uIpgdSA

Regarding Loss of Profit (Plaintiffs) -

it is decided in Era Kemuncak Jaya (M) Sdn Bhd v Tenaga Switchgear Sdn Bhd [2022] 1 MLRH 208, at [37], as follows: “[37] Secondly, I am of the view that the court can decide the following three questions (3 Questions) in this case without the assistance of any expert testimony:

the Issue (Breach of Contract);

the Issue (Remoteness of Damage) under s 74(1) [Contracts Act 1950]; and

the Issue (Quantum of Damages). I acknowledge that there may be exceptional cases when the 3 Questions involve a highly technical matter which is beyond the competence of the court. In such exceptional matters, an expert’s opinion may assist the court to decide the 3 Questions. In this case, the 3 Questions did not concern any highly technical matter which necessitated the Defendant to adduce any expert view. Regrettably, SD5’s Opinion on the 3 Questions unnecessarily protracted the trial and escalated the costs incurred in this case.” (emphasis added). Premised on Era Kemuncak Jaya, the court may decide on the quantum of Loss of Profit (Plaintiffs) [Quantum (Plaintiffs’ Loss of Profit)] without SP2’s Expert Opinion; S/N JuvrXvuvDkCW/s7uIpgdSA

SP3 had given evidence regarding the Quantum (Plaintiffs’ Loss of Profit) [SP3’s Evidence (Plaintiffs’ Loss of Profit)]. As explained in the above paragraph 31, SP3 is an honest witness. I therefore accept SP3’s Evidence (Plaintiffs’ Loss of Profit); and

the Defendant had testified that he had completed the 2 Main Contracts (MSBA/TAAR). Hence, the Defendant was able to adduce evidence on how much profit or loss that he had derived or suffered from the completion of the 2 Projects. However, the Defendant did not tender any evidence to rebut SP3’s Evidence (Plaintiffs’ Loss of Profit). In any event, this court has made a finding of fact that the Defendant is not a credible witness - please refer to the above paragraph 32.

Premised on SP3’s Evidence (Plaintiffs’ Loss of Profit), this court adjudges the following amounts of Loss of Profit (Plaintiffs) to be paid by the Defendant to the Plaintiffs:

the Defendant shall pay to the 1st Plaintiff a sum of RM1,067,028.51 as Loss of Profit (1st Plaintiff) [Sum (1st Plaintiff’s Loss of Profit)]; and

a sum of RM103,460.84 shall be paid by the Defendant to the 2nd Plaintiff as Loss of Profit (2nd Plaintiff) [Sum (2nd Plaintiff’s Loss of Profit)]. S/N JuvrXvuvDkCW/s7uIpgdSA L. Whether Plaintiffs can claim interest on sums adjudged to be paid by Defendant to Plaintiffs

I reproduce below s 11 of the Civil Law Act 1956 (CLA) and O 42 r 12 RC: “s 11 CLA Power of Courts to award interest on debts and damages In any proceedings tried in any Court for the recovery of any debt or damages, the Court may, if it thinks fit, order that there shall be included in the sum for which judgment is given interest as such rate as it thinks fit on the whole or any part of the debt or damages for the whole or any part of the period between the date when the cause of action arose and the date of the judgment: Provided that nothing in this section -

shall authorize the giving of interest upon interest;

shall apply in relation to any debt upon which interest is payable as of right whether by virtue of any agreement or otherwise; or

shall affect the damages recoverable for the dishonour of a bill of exchange. O 42 r 12 RC Interest on judgment debts Subject to rule 12A, except when it has been otherwise agreed between the parties, every judgment debt shall carry interest at such rate as the Chief Justice may from time to time determine or at such other rate not exceeding the rate aforesaid as the Court determines, such interest to be calculated from the date of judgment until the judgment is satisfied.” (emphasis added).

The court has the following discretionary power to award interest on a judgment sum:

by virtue of s 11 CLA, the court may award pre-judgment interest on any judgment sum “at such rate as it thinks fit on the whole or any part of the debt or damages for the whole or any part of the period … between the date when the cause of action arose and the date of judgment” - please refer to the judgment of Raja Azlan Shah FJ (as His Majesty then was) in the Federal Court in Lim Kar Bee v Abdul Latif bin Ismail [1978] 1 MLJ 109, at 120; and

according to O 42 r 12 RC, the court may order a judgment debtor to pay to the judgment creditor post-judgment interest at the rate of 5% per annum (pa) on a judgment sum from the date of the oral decision of the case until full payment of the judgment sum.

This court exercises its discretion to order the Defendant to pay to the Plaintiffs interest on the following judgment sums:

the 1st Plaintiff’s Demand (20.4.2020) gave the Defendant 14 days from the date of the 1st Plaintiff’s Demand (20.4.2020) to repay the 1st Plaintiff’s Loan. As such, I exercise my discretion under s 11 CLA and O 42 r 12 RC to order the Defendant to pay to the 1st Plaintiff interest at the rate of 5% pa on an amount of RM25,000.00 from 5.5.2020 [after the lapse of 14 days as stated in the 1st Plaintiff’s Demand (20.4.2020)] until the Defendant’s full payment of the said amount; and S/N JuvrXvuvDkCW/s7uIpgdSA

the Defendant’s 4 Breaches (4 LAs) occurred on 5.1.2020. As such, the Plaintiffs’ causes of action for the Defendant’s 4 Breaches (4 LAs) arose on 5.1.2020. Consequently, pursuant to s 11 CLA and O 42 r 12 RC this court awards interest at the rate of 5% pa on -

Value (1st Plaintiff’s Works);

Value (2nd Plaintiff’s Works);

Sum (1st Plaintiff’s Loss of Profit); and

Sum (2nd Plaintiff’s Loss of Profit) (4 Judgment Sums) from 5.1.2020 until the Defendant’s full payment of the 4 Judgment Sums. M. Costs

By reason of O 59 rr 2(2), 3(2), 16(2), (3), 19(1) and (2) RC, I have ordered the Defendant to pay costs to the Plaintiffs on a standard basis.

In the Plaintiffs’ Bill of Costs, the Plaintiffs have claimed a sum of RM50,000.00 as “Getting Up” (GU). I exercise my discretion to award an amount of RM40,000.00 as GU due to the following reasons:

in this case, the Defendant had agreed to Post-Trial AF and Post-Trial AI [Defendant’s Conduct (Post-Trial AF and Post-Trial AI)]. The Defendant’s Conduct (Post-Trial AF and Post-Trial AI), according to O 59 r 8(b) RC [please refer to the above sub-S/N JuvrXvuvDkCW/s7uIpgdSA paragraph 26(3)(i)], reduces the amount of GU. This is because the Defendant’s Conduct (Post-Trial AF and Post-Trial AI) -

had saved time, effort and costs of all learned counsel in this case; and

has assisted me to decide this case;

the high amount of the Plaintiffs’ Claim is relevant according to O 59 r 16(1)(f) RC;

this case involved many documents - please refer to O 59 r 16(1)(c) RC; and

this case is important to the Plaintiffs - please see to O 59 r 16(1)(e) RC. N. Conclusion

Premised on the above evidence and reasons, this court adjudges as follows:

the Defendant shall pay the following judgment sums to the Plaintiffs -

a sum of RM25,000.00 shall be paid to the 1st Plaintiff (so as to repay the 1st Plaintiff’s Loan); and

4 Judgment Sums - please refer to the above sub-paragraphs 46(1), (2), 48(1) and (2);

interest shall be paid to the Plaintiffs by the Defendant on the above judgment sums as explained in the above paragraphs 51(1) and (2); and

costs of this suit shall be paid by the Defendant to the Plaintiffs - please see the above paragraph 53.

In closing, it is hoped that Post-Trial CM should be utilized in all cases so as to expedite the delivery of Post-Trial Decisions as well as to minimize time, effort and costs of parties. DATE: 1 JULY 2023 WONG KIAN KHEONG Judge Court of Appeal, Malaysia Counsel for Plaintiffs: Mr. Long Chay Jo, Mr. Tang Choon Hao, Mr. Thomas Lee Ming Zhang, Ms. Lydia Chong Nien Chee & Ms. Callie Koay Kai Lih (Messrs Munhoe) Counsel for Defendant: Encik Muhammad Azwar Bin Abdul Manab, Encik Muhammad Azrul Haziq Bin Khairullah & Cik Nor Aziah Binti Harun (Messrs Azwar & Partners)