Lee Boong Hong @ Ng Boong Hong v Wh Electrical Marketing (M) Sdn Bhd (WA-22C-83-08/2020)

LEE BOONG HONG @ NG BOONG HONG [trading as the sole proprietor under the name and style of “Top Form Renovation & Construction (001121309-K)”]

WONG CHEE LEONG [trading as the sole proprietor under the name and style of “Igo 37 Archo Gallery (002564045-D)”] ... PLAINTIFFS AND WH ELECTRICAL MARKETING (M) SDN BHD (Company No.: 200601014263 (734014-W)) ... DEFENDANT AND NG WEI SIANG [trading as the sole proprietor under the name and style of “Franco Alex Associates (002734167-T)”] ... THIRD PARTY GROUNDS OF JUDGMENT INTRODUCTION [1] This suit involves a claim by the Plaintiffs for amounts purportedly owed by the Defendant to them for the construction works carried out and services rendered and goods delivered for the construction of the Defendant’s shop cum office located in Kuala Lumpur. [2] The Defendant counterclaimed for declaratory and monetary reliefs, among others, that the Plaintiffs’ claim amounts to an abuse of the process of the Court and damages for loss of earning capacity, abuse of the process of the Court and breach of contract or negligence. [3] In the course of the court proceedings, the Defendant issued a Third-Party Notice seeking indemnity against the Third Party in the event judgment is entered against the Defendant for any sum. [4] Upon consideration of the pleadings, the oral and documentary evidence and the submissions of the parties, I had dismissed the Plaintiffs’ claim against the Defendant and allowed the Defendant’s counterclaim against the Plaintiffs in part whereby the Plaintiffs are to jointly and severally pay the Defendant the sum of RM351,000.00 as late penalty with interest at the rate of 5% per annum from the date of judgment until full settlement. [5] The Plaintiffs are dissatisfied with my decision and are pursuing their right of appeal. These are my full grounds of judgment. BACKGROUND FACTS [6] The 1st Plaintiff (‘P1’) is an individual trading as a sole proprietor under the name and style known as Top Form Renovation & Construction (‘Top Form’) having its principal place of business at No. 2, Jalan SS5A/9, Taman Kelana Jaya, 47301 Petaling Jaya, Selangor. [7] The 2nd Plaintiff (‘P2’) is also an individual trading as a sole proprietor under the name and style known as IGO 37 ARCHO GALLERY (‘IGO 37’). Its principal place of business is at Lot 657B, Jalan 27, Jalan Sungai Besi, Salak Selatan Baru, 57100 Kuala Lumpur. [8] The Defendant is a limited private company incorporated in Malaysia with a registered address at 138-3 (Suite 1), Jalan Radin Anum 1, Sri Petaling, 57000 Kuala Lumpur. Its business address is at No. 100, Jalan Radin Anum 1, Bandar Baru Sri Petaling, 57000 Kuala Lumpur. [9] The Third Party is the sole proprietor of Franco Alex Associate (‘FAA’). The principal place of business is at 100-5 (Garden Unit), Jalan Radin Anum, Bandar Baru Sri Petaling, 57000 Kuala Lumpur. The business registration and start date is 29.10.2017 while the business expiry date is 28.1.2020. [10] On 1.3.2016, the Defendant issued a Letter of Award to Top Form for the “Proposed 2 units 3 Storey Shop Lot at No. 100 and No. 102, Jalan Radin Anum, Sri Petaling, Kuala Lumpur, Package 1: Structure Buildings (Contract No. PJSB/DBKL/BGN/1601)” for the contract sum of RM1,692,358.00 (‘1st LoA’). [11] On 1.4.2017, the Defendant issued another LoA to Top Form for “Cadangan Tambahan Dan Perubahan (serta Menambah 2 Tingkat) Pada 1 Unit Pejabat / Kedai 2 Tingkat Yang Sedia Ada Di Atas Lot No. 102, Jalan Radin Anum 1, Bandar Baru Sri Petaling, Mukim Petaling, Kuala Lumpur, Package 2 & 2A: Structure Buildings & ID Works (Contract No. PJSB/DBKL/BGN/1601 – VO Works For 4th & 5th Floor Works)” for the contract sum of RM1,764,428.00 (‘2nd LoA’). [12] P1 was responsible for the civil and structural building works under the 1st LoA and 2nd LoA (‘Works’). [13] The completion date for the 1st LoA is 31.12.2016 and for the 2nd LoA is 31.7.2017. [14] On 8.11.2016, the Defendant and IGO 37 entered into a Consultation Contract for Architect services. [15] It is an agreed fact between the Plaintiffs and the Defendant that, based on the Consultation Contract, –

the consideration of the contract was RM48,000.00;

additional payments will be made to P2 by the Defendant for the additional works to be carried out by P2 for the whole project; and

it shall define all the obligations of P2 and the Defendant for the whole project. [16] In addition, it was agreed that the Defendant had paid a total sum of RM2,880,123.12 to the Plaintiffs i.e. a sum of RM2,826,723.12 for the Works to P1 and a sum of RM53,400.00 under the Consultation Contract to P2. [17] P1 and P2 each lodged police reports on 5.1.2018 (‘Police Reports’) stating that they had dealt with the Defendant’s consultant named Choo Cheng Kong (‘CCK’) in respect of the project awarded under the 1st LoA and 2nd LoA and that there was only an oral agreement between them on the basis of mutual trust. After the works were completed, it was claimed by –

P1 that CCK only paid P1 the sum of RM2,826,724.64 and a sum of RM755,031.64 was still outstanding; and

P2 that CCK only paid P1 the sum of RM80,000.00 and a sum of RM270,000.00 was still outstanding. P1 and P2 stated that the reason for lodging the police report is to claim for the balance amount that is outstanding to them, respectively. [18] The Plaintiffs’ solicitors sent a Notice of Demand dated 27.11.2018 to the Defendant for the sum of RM1,212,594.59. [19] On 11.12.2018, the Plaintiffs had filed a Writ of Summons and a Statement of Claim (‘SoC’) in Civil Suit No. WA-22NCvC-820-12/2018 (‘Suit 820’) in the Kuala Lumpur High Court. On 12.6.2020, the Plaintiffs filed a Notice of Application to discontinue or withdraw Suit 820 with liberty to file afresh. On 24.8.2020, the High Court allowed the Plaintiffs application with liberty to file afresh and costs of RM10,000.00 to be paid by the Plaintiffs to the Defendant within one months from the date of the Order. [20] The current suit was filed by the Plaintiffs on 26.8.2020. [21] On 21.6.2021, the Third Party lodged a police report denying that CCK had acted on behalf of the Third Party. [22] Among the Agreed Facts between the Defendant and the Third Party are that –

the Defendant did not appoint or authorise the Third Party to enter into any oral agreement with the Plaintiffs to the exclusion of the Defendant and nor to manage and implement the 1st LoA and 2nd LoA and the renovation works. The Defendant appointed

CCK represented and acted on behalf of P2 in the 1st LoA and 2nd LoA and the renovation works. THE PLAINTIFF’S CASE [23] The Plaintiffs claimed that they have completed the Works and rendered the services and delivered the goods under the Consultation Contract to the Defendant by end of October 2017. The Defendant had re-opened operation of its business around November 2017. [24] Although the Plaintiffs had demanded payment of the outstanding sum, the Defendant has refused to do so. Therefore, the reliefs sought by the Plaintiffs in this action are, in the main, for –

the outstanding sum of RM1,159,194.59 with interest thereon at the rate of 5% per annum calculated from 1.1.2018 until full payment; and

alternatively, damages to be assessed by the Court with interest thereon. THE DEFENDANT’S CASE [25] The Defendant alleged that it has fully settled the contract sum under the 1st LoA whilst for the 2nd LoA, the contract sum was initially agreed at RM1,764,428.00 but this was subsequently varied to RM1,605,550.00. The Defendant claimed that it has paid the sum of RM1,187,765.12 under the 2nd LoA. [26] The total contract value for the 1st LoA and 2nd LoA is RM 3,297,908.00, out of which, the Defendant has paid the sum of RM2,826,723.12. [27] A meeting was held on 12.7.2017 wherein P1 agreed that it will be liable for late penalty in the sum of RM2,700.00 per day for any delay in handing over the Works. A minute was prepared and signed by P1 (‘12.7.2017 Minute’). [28] There was a delay of 55 days in handing over the works under the 1st LoA and a delay of 75 days under the 2nd LoA. Hence, there is a sum of RM351,000.00 owed by P1 to the Defendant as penalty for late delivery. [29] The Defendant took the position that it has made payments to third party contractors that should have been paid by P1 as they were contracted by P1 for the 1st LoA and 2nd LoA. The amount paid by the Defendant to third party contractors is RM1,104,148.04. [30] Further, the Defendant appointed FAA to oversee and manage the Works. A Letter of Appointment dated 6.4.2016 was executed for this purpose. [31] It was the Plaintiffs’ pleaded position in Suit 820 that all the instructions for the Works come from FAA. Hence, the Defendant contended that the Plaintiffs’ cause of action, if at all, should be directed to FAA. This is underscored by the police report dated 5.1.2018 lodged by the Plaintiffs. [32] As a direct cause of the Plaintiffs commencing Suit 820, the Defendant has suffered losses. The Defendant is a customer of RHB Bank Berhad (‘RHB’). RHB had refused to approve a drawdown for the Defendant in the sum of RM2 million by citing Suit 820 as a reason for the same. [33] Ultimately, the Plaintiffs applied for leave to discontinue Suit 820 with liberty to file afresh and this was allowed by the High Court on 24.8.2020. [34] The Defendant counterclaimed against the Plaintiffs for, among others, –

a declaration that –

the Plaintiffs’ claim amounts to an abuse of the process of the Court; and

(ii) P1 to pay a sum of RM 351,000.00 as penalty for the delay;

judgment in the sum of RM1,104,148.04 or such other sum proven to have been paid by the Defendant to other parties which ought to have been paid by P1;

judgment for the sum of RM1 million as damages for loss of earning capacity; and

damages to be assessed for –

an abuse of the process of the Court; and

(ii) breach of contract by P1 and/ or negligence by P1. [35] Against the Third Party, the Defendant sought to be indemnified against the entire claim brought by the Plaintiffs or any judgment obtained by the Plaintiffs against the Defendant. THE TRIAL & AGREED ISSUES TO BE TRIED [36] The trial was held for 10 days. Three witnesses testified for the Plaintiffs whilst the Defendant called three witnesses. The third party appeared in person to testify at the trial. [37] The particulars of the witnesses are shown below: Witness Name Designation PW1 Mr. Lee Boong Hong @ Ng Boong Hong Sole proprietor, Top Form Renovation & Construction PW2 Mr. Wong Chee Leong Sole Proprietor, Igo 37 Archo Gallery PW3 Mr. Krishnakumar a/l Paramanandan Civil & Structural Engineer, Pro Jurutek Sdn Bhd (‘PJSB’) DW1 Mr. Chai Jah Ween Defendant’s Director and shareholder DW2 Mr. Loganathan a/l Ramamurty Director and shareholder, SAJ Electrical Sdn Bhd DW3 Mr. Yeow Tow Guan Director and shareholder, Dong Yang Elevator (M) Sdn Bhd TPW1 Mr. Ng Wei Siang Sole proprietor, Franco Alex Associate [38] DW2 gave evidence on 4.1.2023. On the next day of continued trial, the Defendant’s counsel made an oral application to expunge DW2’s evidence on the ground that DW2 is part of the Group Chat created by the Plaintiff’s counsel during the pendency of Suit 820. [39] After hearing the counsels for the Plaintiffs and the Defendant, directions were given for the counsels to file written submissions supported by case authorities regarding the Defendant’s application. The Court fixed 24.2.3023 as the date for a ruling to be made on the application. [40] However, on 13.1.2013, the Plaintiffs’ counsel sent a letter to the Court indicating the Plaintiffs’ agreement for DW2’s evidence to be expunged. The case was called up for case management on 18.1.2023 and by agreement of the parties, DW2’s evidence was expunged. [41] The Agreed Issues To Be Tried (‘ITBT’) for the trial are as follows: “(A) Between the Plaintiffs and the Defendant

Whether the Plaintiffs have sued the right party?

Whether the Plaintiffs’ claim is one based solely on the Letters of Award dated 1.3.2016 and 1.4.2017 and the Consultant Agreement dated 8.11.2016?

Whether there is any delay for the said Construction Works to be carried out by the First Plaintiff and the said Services and Goods delivered by the Second Plaintiff to the Defendant respectively in completion of the whole rebuild project?

3.1. If this is answered in the affirmative, who is responsible for the delay?

Whether the Defendant had ordered the Second Plaintiff to do additional metal and carpentry works pursuant to the Consultant Agreement dated 8.11.2016?

Whether the Defendant is indebted to the Plaintiffs in the sum of RM1,159,194.59 as the balance sum to be paid for the said Construction Works and the said Services rendered and Goods delivered?

Whether the Defendant had satisfied its obligations under the Consultant Agreement dated 8.11.2016?

Whether the Defendant had instructed the Plaintiffs for the matters arising from the Letters of Award and the Consultant Agreement?

Whether the Defendant’s has proven its Counterclaim against the Plaintiffs for the following:

8.1. the sum of RM351,000.00 against the 1st Plaintiff as penalty for late delivery and/or completion;

8.2. the sum of RM1,104,148.04 or such other sums that is to be paid by the Defendant to others parties which ought to have been paid by the 1st Plaintiff?

8.3. the sum of RM1,000,000.00 against the Plaintiffs for loss of corporate opportunity?

8.4. an order for damages to be assessed for abuse of court process and breach of contract and negligence by the 1st Plaintiff?

(B) Between the Defendant and the 3rd Party 14 1. Whether Choo Cheng Kong (“CCK”) acted as agent and/or representative for the “Franco Alex Associates” (“FAA”) in connection with the Letter of Award dated 01.03.2016 (“LA1”), Letter of Award dated 01.04.2017 (“LA2”) and the renovation works?

Whether 3rd Party was involved in the LA1 and LA2 or the renovation works?

Whether the Defendant ought to have brought an action against CCK instead of the 3rd Party?

Whether the Defendant is entitled to indemnity and/or contribution from the 3rd Party in the amount claimed by the Plaintiffs, in the event the Plaintiffs claim is made out?”.

(A) Between the Plaintiffs and the Defendant 1st Issue: Whether the Plaintiffs have sued the right party [42] The Defendant contended that, based on the Police Reports and PW1’s and PW2’s evidence in court, the true culprit is CCK. The evidence meant was in cross-examination when –

PW1 testified that –

the consultant referred to in the Police Reports is FAA as per paragraph 3.13 of the Amended Reply To Defence &

(ii) the amount claimed by PW1 is not based on the 1st LoA or 2nd LoA;

(iii) the amount owed is premised on a verbal agreement between P1 and FAA;

(iv) when P1 dealt with CCK, it dealt with FAA;

between 5.1.2018 and 27.11.2018, P1 wrongly formed the conclusion that since FAA was not registered, P1 could not hold FAA liable;

(vi) his police report does not state that the Defendant owes P1 any sums; and

(vii) the real culprit is CCK and not the Defendant; and

PW2 said that –

Franco Choo Cheng Kong is actually FAA;

(ii) P2's complaint in his police report was actually against CCK;

(iii) the reason why the police report was lodged was due to CCK having cheated P2; and

(iv) the real culprit is CCK and not the Defendant. [43] It was further contended by the Defendant that PW1 and PW2 did not offer any explanation on the gap between the date the Police Reports were lodged (5.1.2018) and the issuance of the Notice of Demand to the Defendant (27.11.2018) and thereafter the filing of Suit 820 only to withdraw with liberty to file afresh and subsequently the filing of the instant suit. [44] The Defendant took the position that there is sufficient evidence to conclude that its pleading in paragraph 20.1 of the Amended Defence and Counterclaim that “the Plaintiff’s cause of action is against FAA and not against the Defendant” is borne out. Tis is underscored by PW1 when he testified that Franco, referring to CCK, and FAA are the same person whereby when CCK came to observe the construction works, CCK told PW1 that he is the boss of FAA. [45] In rebutting the Defendant’s contentions, the Plaintiffs relied on the documentary evidence, namely, the 1st LoA, 2nd LoA and Consultation Contract and TPW1’s Witness Statement where he stated that he is not aware of the documents in the Common Bundle of Documents (‘CBoD’) and he was pulled in by CCK to do touch up works after the project was completed at the end of October 2017. [46] In my considered view, although there is evidence that the Plaintiffs initial grievance was against CCK, the fact remains that the Plaintiffs have sued the Defendant in this action. The Defendant itself submitted that the 1st Issue should be answered in the affirmative. There is no persuasive reason for the Court to hold otherwise. [47] Therefore, the 1st Issue was answered in the affirmative as per the Plaintiffs’ and the Defendant’s written submissions. 2nd Issue: Whether the Plaintiffs’ claim is one based solely on the 1st LoA and 2nd LoA and the Consultation Contract [48] Again, the Plaintiffs and the Defendant took the same position in their written submissions that the 2nd Issue should be answered in the negative. [49] For the Plaintiffs, Mr. LH Yau submitted that the 1st LoA, 2nd LoA and Consultation Contract constitute the main agreements between the Plaintiffs and the Defendant, the existence of which has been agreed in the Agreed Facts. Apart from these documents, there is other evidence such as photographs, quotations, purchase orders, invoices, payment vouches and statements of account to support the Plaintiffs’ claims. [50] To the Defendant, its admission in the Agreed Facts only goes so far as accepting the existence of the 1st LoA, 2nd LoA and Consultation Contract. However, when cross-examined, PW1 said that he does not know the contents of the 1st LoA and had never seen the SoC before he gave evidence in court. It was alleged that the Plaintiffs had taken inconsistent positions in their pleadings by relying on the 1st LoA, 2nd LoA and Consultation Contract and at the same time stating in paragraph 7 of the SoC that “The Plaintiffs had completed the said Construction Works and the said Services and Goods delivered according to the Defendant’s order and specification. The Defendant had never in any occasion disputed the said Construction Works and the said Services and Goods delivered from the perspective of quality and quantity until this action initiated against the Defendant. In facts, the Defendant had made few part payments amounting to RM2,826,723.12 and RM53,400.00 respectively to the First Plaintiff and the Second Plaintiff from time to time for the said Construction Works and the said Services and Goods delivered.”. [51] Therefore, the 2nd Issue was answered in the negative as per the Plaintiffs’ and the Defendant’s written submissions. 3rd Issue: Whether there is any delay for the Works to be carried out by P1, and the services and goods delivered by P2 to the Defendant, respectively, in completion of the whole project. If this is answered in the affirmative, who is responsible for the delay? 19 8th Issue: Whether the Defendant has proven its counterclaim against the Plaintiffs for the sum of RM351,000.00 against P1 as penalty for late delivery and/ or completion [52] The 3rd Issue and the Defendant’s counterclaim under Issue 8.1 of the ITBT are related and shall be addressed together. [53] Clause 4.2 in the 1st LoA provides that: “4.2 The Completion period for the whole of this Contract is ten (10) months 26 days, including all Sundays, Festivals, Public Holidays, mobilization, surcharge and surcharge removal period, hence the Completion Date for this Contract shall be 31th December 2016.”. [54] The Plaintiffs submitted that P1 had completed the works under the 1st LoA in August 2016 as supported by P1’s Tax Invoice dated 17.8.2016 for the 3rd floor works RC Ground Slab, RC Column and RC Ground beam in the sum of RM341,278.98 where payment in the sum of RM353,529.61 was made by the Defendant (pp 115 and 176, B2). [55] In respect of the 2nd LoA, Clauses 4.1 and 4.2 in read as follows: “4.1 Date of Commencement of this contract shall be the Date of Site Possession which will be 07th April 2017 and;

4.2 The Completion period for the whole of this Contract is Four (4) months, including all Sundays, Festivals, Public Holidays, mobilization, surcharge removal period, hence the Completion Date for this Contract shall be 31th July 2017.”. [56] The Plaintiffs contended that P1 had completed the same ahead of the execution of the 2nd LoA as evidenced by Interim Certificate 11 for the period ending 6.4.2017 (p 206, B2). According to PW1, he did not read the 2nd LoA and was not aware of Clause 4.1 as quoted above. [57] It was further contended by the Plaintiffs that possession of the whole new building was handed to the Defendant at the end of October 2017 and the Defendant resumed its business in early November 2017. The delay in the handover of the new building was said to be attributed to the delay in the internal renovation works which was caused by the Defendant. In particular –

CJ Koh Architect and PJSB who were initially appointed by the Defendant for the project had resigned and left the project around

during cross-examination, DW1 testified that the Defendant had appointed CCK to take over the project management from CJ Koh Architect and PJSB in October 2016 and that CCK was his agent and DW1 was the principal in this project. CCK acted as agent on behalf of the Defendant to deal with all the contractors in the project;

all instructions came from the Defendant via CCK orally, without any proper drawings, plans or documents;

CCK failed to carry out the responsibilities entrusted to him by the Defendant. He had attitude problems i.e. did not produce the work schedule for all the contractors, was always late in weekly meetings, failed to turn up at the site for works and did not brief the Defendant, regarding the progress of the works from time to time; and

DW1 monitored the whole process himself and was aware of the progress of the Works at the site as he was based in his temporary office next door and he would come and inspect the work progress whenever he was free. [58] Firstly, the Plaintiffs’ submission that P1 had completed the Works under the 1st LoA in August 2016 and the 2nd LoA in April 2017 is at odds with their pleadings and the evidence. This is because –

in paragraph 8 of the SoC, it was pleaded that the Works were completed at the end of October 2017. Then, in paragraph 3.19 of the Amended Reply To Defence & Defence to Counterclaim, the Plaintiffs pleaded that the structural building up to 5 storeys was completed on 8.6.2017;

in the Plaintiffs’ solicitors’ Letter of Demand dated 27.11.2018, the Plaintiffs had instructed the solicitor that “… they have constructed new buildings, supplied goods, sprayed and fixed metal works and provided carpentry works … between March 2016 to December 2017, …”. The Defendant’s solicitors replied on 7.12.2018, among others, that the works under the 1st LoA were only completed in 25.10.2017 while the works under the 2nd LoA were stopped. Thereafter, there was no further correspondence from the Plaintiffs or their solicitors to counter the statement in the Defendant’s solicitors’ letter; and

in PW1’s Witness Statement, he stated that the works under the 1st LoA was completed on 17.8.2016 whilst the works to complete the additional 2 storeys was in May 2017 and for the structural building for the 5 storeys was on 10.5.2017 (see the answers to Questions 40, 41, 45 and 64 in WS-PW1). [59] When confronted with his testimony that there five different dates of completion have been given, PW1 in cross-examination agreed that he himself is not sure when the works under the 1st LoA and 2nd LoA were completed. [60] Secondly, the burden of proof lies on P1 to prove the completion dates of the works under the 1st LoA and 2nd LoA and that these are within the contractual completion period [see ss 101 and 103 of the Evidence Act 1950 [Act 56] (‘EA 1950’)]. However, it is my finding that P1 has failed to discharge this burden of proof. My reasonings are as follows. [61] The 12.7.2017 Minute shows that PW1, PW2 and DW1 were among the attendees of the meeting which was to discuss the completion date for the Works. The 12.7.2017 Minute which was signed by, among others, PW1, PW2 and DW1, states the following: “1. Completion date of 1st Floor No. 100 & No. 102 The completion date of renovation will be on or before 31 August 2017. Except for 2 Directors room and smoking Area which will be discussed later.

Completion date of 2nd Floor No. 100 & No. 102 for WH Lighting Sdn Bhd The completion date of renovation will be on or before 11 August 2017 so that WH lighting Sdn Bhd can start operate their business.

Fine on Late Completion All the Main Contractor and Sub-contractor who attend the minute meeting today will be fine RM2,700.00 (Ringgit Malaysia TWO THOUSAND SEVEN HUNDRED ONLY) per day start from the due date of completion as agreed. (Refer Note 1 and 2)

Daily Onsite and Weekly Meeting Architect-Fransco will be onsite every day 10 a.m. except for Sunday. Whereas, all the Main Contractor, Sub-contractor and architect weekly meeting will be held on every Saturday morning 10 a.m to discuss on the progress of Renovation.

Fine on Architect-Choo Cheng Kong (Fransco) who absent on the daily onsite and weekly meeting The penalty will be RM 1,000.00 … per day for the absent on daily onsite and weekly meeting.”. [62] In his Witness Statement, PW1 stated that he was forced to agree and sign the 12.7.2017 Minute as the Defendant threatened not to release the progressive claims to P1 if he did dot sign the same. PW2 gave the same answer to Question 56 in WS-PW2, except that the threat was allegedly made to all the contractors who attended the meeting. [63] PW1, under cross-examination, admitted that the Defendant did not bring the 12.7.2017 Minute before the meeting started and PW1 was not asked to sign it then and there on 12.7.2017. PW1 testified that if he did not agree to the 12.7.2017 Minute, he could have refused to sign it. He further testified that the fact that payment was subsequently made by the Defendant, whereby the Plaintiffs’ counsel submitted that a large sum of RM618,154.10 was disbursed on 31.7.2017, does not show that PW1 was forced to sign the 12.7.2017 Minute. Basically, it is not PW1’s evidence that the contents of the 12.7.2017 Minute are untrue. [64] In cross-examination, PW2 admitted that he signed the 12.7.2017 Minute willingly and his answer to Question 56 in WS-PW2 is not true. [65] No question was put to DW1 in cross-examination that PW1 and PW2 were forced to sign the 12.7.2017 Minute. [66] As regards CCK’s role as to the delay, in the Amended Reply To Defence & Defence to Counterclaim, the Plaintiffs pleaded, among others, that: “3.19 The structural building of the said Premises up to 5 storeys were completed by the Plaintiffs on 8/6/2017 but the fixture, furniture, metal works and interior design of the said Premises and other additional works (hereinafter referred to as “the said Additional Works”) could not be carried out at the material time due to CCK, which was appointed by the Defendant, failed to produce and come out the requisite plans for the said Additional Works.

3.20 CCK gave only oral instructions to the Plaintiffs each day on the construction site to execute the said Additional Works after the completion of the structure of the building on 8/6/2017. This had caused the delay of the progress of the works to be carried out by the Plaintiffs after 8/6/2017. It also indicated that the incompetency and unprofessional of CCK in this matter and caused difficulty in all the process of works need to be carried out by the Plaintiffs. CCK was not only incompetent and unprofessional but also depicted bad working attitude due to his frequent absenteeism and always late in present to the construction site. 26 3.21 The event stated in paragraph 3.20 above also collaborate with the reasons why the Defendant had forced CCK to manage the said Construction Works by signing the said Minute of Meeting which consisted the penalty clause specifically imposed on him who was always absent or late turn up at the construction site which caused delay for the works need to be carried our because the Plaintiffs could not obtain the delay oral instructions from CCK.

3.22 Hence, if there is any delay, was caused by CCK who was incompetent and unprofessional. CCK did not produce and come out a single plan in his works as a manager and architect in this matter. This has surprised the Plaintiffs.”. [67] In the Consultation Contract, the Defendant and P2 agreed that P2 will provide the Architects services described in the Contract and in the attached Exhibit A (this Exhibit was not in the CBoD) which shall include all architectural and engineering services in connection with the shell and core design for the buildings under the 1st LoA and 2nd LoA. [68] The Consultation Agreement was signed by CCK on behalf of P2 as the “Consultant”. Hence, P2 allowed CCK to act as its representative for purposes of the Consultation Agreement. [69] The services agreed under the Consultation Contract are as follows: “Construction Documents Phase: Services provided by Architect in Construction Documents Phase of the construction include: a. Preparing documents drawings setting forth the detailed requirements based on the approved Design Development Documents. b. Advising Client on construction cost. c. Helping Client for approval of governmental authorities. Bidding or Negotiation Phase: Consultant, following the Clients approval of the construction documents assist the Client in obtaining bids or negotiated proposals and assist in awarding and preparing contracts for the project. Construction Phase-Administration of the Construction Contract: Engineer shall provide general conditions for construction. Architects service commences with the award of the Contract and terminates at the issuance to the Client, of the final certificate for payment. Architect shall not have control over or charge of and shall not be responsible for construction means and methods, techniques, sequences or procedures or for safety precautions and programs in connection with work, since they are contractors' responsibility. Engineer can inspect and reject work if not compiled with project. ADDITIONAL SERVICES. Consultants shall provide additional services in connection with the planning and design of the project. Project representation beyond basic services, selecting project representatives, evaluating substitution by contractor, providing serviced due to changes in project, revision of documents. …” [70] The above quoted part of the Consultation Contract was shown to PW2 during cross-examination and he admitted that all the necessary drawings were to be prepared by P2. [71] In his Witness Statement, PW2 stated, among others, that: “52. Q: Did you worked based on any plans or drawings for your works before? No, not a single plan or drawing from the Defendant.

Is this the efficient way to work from your past experience? No.

Can you explain why? It is not efficient at all because it did not have any plan or drawing to guide our workers for the works to be carried out, our workers did not know what the Defendant wanted exactly therefore we needed to communicate with the Defendant constantly to avoid the works did not comply with the Defendant's requirements. This would definitely slow down the progress of the works. The progress of the works were further delay when Choo Cheng Kong (Franco) was absent from the site quite often at the material time. Therefore I had to seize the opportunities to re-confirm the requirement for works with Mr. Calvin Chai every morning when he was doing his daily inspection at the site.”. [72] In cross-examination, PW2 admitted that the above answers are not true. [73] By the letter dated 6.4.2016 titled “Contractual of Building Consultant Engagement”, DW1 had offered to CCK to be the Building Consultant for the construction of Nos. 100 and 102, Jalan Radin Anum 1, Bandar Baru Seri Petaling, Kuala Lumpur with the fee of RM10,000.00 one-off payment to be made upon the building being fully completed. The services are “Providing consulting, supervisory and advisory on the building in construction for No.100 & No.102. with closely monitoring the budget and ensure all the progress on track.”. In cross-examination, DW1 testified that he had given the Defendant’s letterhead to CCK to prepare the letter of offer which was accepted and signed by CCK on the same date. [74] In his Witness Statement, PW2 also stated the following: “65. Q: What was the position of Choo Cheng Kong (Franco) in this project? He was the representative from the Defendant in this project, all the Defendant's instructions were channeled to all the contractors through Choo Cheng Kong (Franco) as well as all our claims for all the works done were processed by Choo Cheng Kong (Franco) too.

How about Choo Cheng Kong (Franco) who signed the Consultation Contract (Please refer to p. 85, BOD - PART B Jilid No. 1) on behalf of your company and he represented himself as the architect from Igo 37 Archo Gallery in the minute of meeting dated 12/7/2017 (Please refer to p. 31 91-92, BOD - PART B Jilid No. 1), did you aware of all these documents? Yes.

Did you authorise Choo Cheng Kong (Franco) to sign the said Consultation Contract on behalf of your company at the material time? And how you authorised him for the same? Yes, by way of oral authorisation.”. [75] PW2 confirmed under cross-examination that there was no problem on the method of instructions being done by way of oral communication. [76] Based on the documents, CCK was appointed by the Defendant vide the Contractual of Building Consultant Engagement dated 6.4.2016. During this time, PJSB was still the Architect as it withdrew only on 25.10.2016. The Consultation Contract was then executed on 8.11.2016 where P2 was to prepare the documents drawings setting forth the detailed requirements based on the approved Design Development Documents. [77] Under cross-examination, DW1 testified that CCK was the Defendant's agent and the Defendant was CCK’s principal. Hence, CCK’s scope of authority is limited by the terms under the “Contractual of Building Consultant Engagement”. The Defendant cannot be held accountable for any actions done by CCK as representative of P2. [78] In Butterworths Common Law Series, The Law of Contract, Fourth Edition, Lexis Nexis at p 1408, the effect of limitation of authority was explained in these terms: “6.123 Where a principal, in conferring authority upon his agent to act on his behalf imposes conditions or limitations on its exercise, no act done by the agent in excess of the conditional or limited authority is treated as the act of principal as regards such persons as have or ought to have notice of such excess of authority, or have had notice of an irregularity placing them upon inquiry as to whether the agent’s authority was being exceeded. …”. [79] The Plaintiffs did not establish what were the instructions of CCK and/ or FAA that came directly from the Defendant that supported their allegations in this suit. It was never put to DW1 that it was the actions of CCK in a given situation that resulted in the delay. [80] In Suit 820, the Plaintiffs had subpoenaed CCK as a witness but they did not do so for this suit. Instead, the Plaintiffs sought to shift the blame on the Defendant for not calling CCK. In my considered view, in the light of the Plaintiffs’ pleadings and stance taken at the trial, the onus to call CCK as a witness lies on the Plaintiffs, and not on the Defendant. By failing to do so, there is merit to the Defendant’s submission that the presumption under s 114(g) of the EA 1950 should be invoked against the Plaintiffs. [81] The juxtaposed positions taken by the Plaintiffs is obvious; on the one hand it was submitted that P1 was doing work at such a fast rate that it was completed even before the documentation was prepared and at the same time, it was contended that there was delay in handing over due to the change in Architect appointed for the renovation works. The Plaintiffs had no answer to the fact that, under the Consultation Contract, P2 was obligated to prepare all the necessary drawings. P2 failed to carry out this obligation. Therefore, the Defendant was not responsible for the delay. [82] In addition to there being delay in the completion of the Works, the evidence given by DW1 and DW2 (that as at January 2017, the 5th floor looked far from complete as there was no roof top and only the wall frame and some cementing could be seen and by the end of 2017, there was a roof slab but the railing was not completed) as well as the photographs (in B4, especially at pp 85 and 86 which were taken on 11.5.2022) establish that there has also been abandonment of the works by P1 under the 2nd LoA as the 5th floor was not completed. [83] In the Amended Reply To Defence & Defence to Counterclaim, the Plaintiffs pleaded that the Defendant never raised the issue that the 5th floor was not completed either orally or in writing to P1 prior to the filing of Suit 820 and only on 4.7.2022 is misconceived. The Defendant’s solicitors’ letter dated 7.12.2018 had put across the Defendant’s stance that the works under the 2nd LoA had stopped on 25.10.2017. The Plaintiffs did not, at any time, challenge the accuracy of this statement. Such failure is detrimental to the Plaintiffs (see Aik Ming (M) Sdn Bhd & Ors v. Chang Ching Chuen & Ors and another appeal [1995] 3 CLJ 639). [84] No evidence was led by the Plaintiffs to substantiate their submission that possession of the whole new building was handed to the Defendant at the end of October 2017 and the Defendant resumed its business in early November 2017. [85] Premised on the foregoing reasons, the Court is satisfied that, as regards the 3rd Issue, the evidence adduced at the trial proves there is delay in the completion of the Works and services and that the Plaintiffs are responsible for the delay. [86] Turning to the 8th Issue on the Defendant’s counterclaim for the sum of RM351,000.00 against P1, the basis for the claim is the 12.7.2017 Minute as alluded to earlier. In this regard, the counterclaim in itself is a demand for the sum of RM351,000.00 as penalty for late delivery or completion (see WH Electrical Marketing (M) Sdn Bhd v. Kenwingston Sdn Bhd [2022] 1 LNS 2001). [87] The calculation is RM2,700.00 per day starting from the due date for completion of the Works i.e. 31.8.2017 for the 1st LoA and 11.8.2017 for the 2nd LoA, until 25.10.2017. [88] The Plaintiffs did not challenge the manner in which the sum of RM351,000.00 was calculated or to contend that the sum of RM2,700.00 per day is unreasonable. It was merely submitted that the late delivery penalty in the sum of RM351,000.00 is not an issue as the delay was caused by the Defendant. [89] In the upshot, the 8th Issue is answered in the affirmative; the Defendant has proven its counterclaim against P1 and P2 for the sum of RM351,000.00 as late penalty. 4th Issue: Whether the Defendant had ordered P2 to do additional metal and carpentry works pursuant to the Consultation Contract 6th Issue: Whether the Defendant had satisfied its obligations under the Consultation Contract [90] The Plaintiffs’ and the Defendant’s submissions in relation to the 4th Issue and 6th Issue are similar and these will be addressed together. [91] In paragraph 14 of the Amended Reply To Defence & Defence to Counterclaim, the Plaintiffs pleaded that: “The Second Plaintiff denies paragraph 14 of the Amended Defence and states that there is an outstanding sum of RM269,333.00 still not settled by the Defendant until to date. In fact, the Defendant had made part payment to the Second Plaintiff for RM35,400.00 based on the said Consultant Agreement and also RM18,000.00 for the carpentry works as part of the additional works which had been completed by the Second Plaintiff. The Defendant had paid a total sum of part payment for RM 53,400.00 to the Second Plaintiff to date. There is an outstanding amount of RM12,600.00 in the said Consultant Agreement still due and owing to the Second Plaintiff as at to date.”. [92] Mr. LH Yau submitted for P2 that the contract sum for the Consultation Contract is RM48,000.00 but the Defendant has paid the total sum of RM53,400.00 as evidenced by the Payment Vouchers issued by the Defendant to P2 dated 9.11.2016, 11.5.2017, 19.6.2017, 2.8.2017 and 1.12.2017 (at pp 9 -13, B3). It is P2’s case that the instructions to carry out carpentry, metal and spraying works (‘Additional Works’) came from the Defendant and that the Additional Works were completed. [93] In WS-PW2, it was explained that PW2 was in charge for the paint spraying, metal and carpentry works and interior and exterior fittings for the new building after the civil and structural works were completed by P1 while the documentation work such as plans, drawings, calculation of the construction cost and submission for approval to the relevant authorities were CCK’s responsibilities. [94] PW2 further stated that –

the sum of RM48,000.00 as provided in the Consultation Contract was only for the documentation work;

the major difference in the Payment Vouchers at pp 9 -13, B3 is that the first three Payment Vouchers are addressed to P2 and attention to CCK while the other two Payment Vouchers are addressed to P2 and attention to PW2;

the total value for Additional Works done for the Defendant is RM334,733.00;

the Defendant has yet to settle the balance of RM12,600.00 from the contract value of RM48,000.00, and the sum of RM274,733.00 for the Additional Works which were completed at the end of October 2017; and

the Summary at p 73, B3 shows that the Defendant had paid the sum of RM60,000.00 through P1 because the payment came from the insurance company for the Defendant’s insurance claim for its burned down building. [95] P2 relied on its Final Claim dated 16.12.2017 (pp 68 - 72, B3) to substantiate the calculation of the amount owing to P2 in the sum of RM274,733.00. A Summary was prepared by P2 (p 73, B3) as follows: “SUMMARY 1) Bill no. 1 - spray paint work : RM 110,652.00 2) Bill no. 2 – carpentry work : RM 224,081.00 Total : RM 334,733.00 Part payment from WH : RM 60,000.00 TOTAL OUTSTANDING : RM 274,733.00” [96] P2 claimed that the Defendant was still owing RM12,600.00 as DW1 had confirmed in cross examination that part payment of RM18,000.00 was meant as deposit for the furniture. The computation (in RM) is as follows: Contract sum under the Consultation Contract 48,000.00 (p 82, B2) Part payments 35,400.00 - (pp 9 - 11, B3) 12,600.00 [97] DW1 did not dispute that P2 carried out the carpentry, metal and spraying works but it was alleged that P2 was appointed by P1 and whatever work done by P2 will be covered under the item for ID Works in the sum of RM629,786.00 (see Clause 1.2(d) of the 2nd LoA). It was further alleged that the Defendant has settled the amount owed to P2 under the Consultation Contract in the sum of RM53,400.00. [98] Firstly, it is observed that PW2’s evidence that the total sum which has yet to be paid by the Defendant to P2 is RM287,333.00 is contrary to P2’s pleadings that the total amount is RM269,333.00. [99] Based on the scope of services under the Consultation Contract as quoted in paragraph 69 above, it is apparent that it is different from the description of works in P2’s Final Claim (at pp 68 - 72, B3) which is to carry out spray paint and carpentry works. PW2 himself testified that the services under the Consultation Contract relate to documentation work by CCK. Therefore, the second part of the question for the 4th Issue i.e. “pursuant to the Consultation Contract” must be answered in the negative. [100] As for the first part of the question for the 4th Issue on whether the Defendant had ordered P2 to do additional metal and carpentry works, based on the Payment Vouchers issued by the Defendant to P2 dated 2.8.2017 and 1.12.2017 (at pp 12 and 13, B3), the Defendant has made payments for furniture deposit to P2 in the sum of RM18,000.00. In cross-examination, DW1 confirmed that he had paid the said amount to P2. Hence, to that extent, the Defendant had placed the order for furniture with P2. [101] With regards to the 6th Issue, the evidence adduced at the trial does not prove otherwise. [102] Basically, P2 has not discharged the burden of proving, on a balance of probabilities, that there is an outstanding sum of RM269,333.00 as pleaded. 5th Issue: Whether the Defendant is indebted to the Plaintiffs in the sum of RM1,159,194.59 as the balance sum to be paid for the Works and the services rendered and goods delivered [103] Mr. LH Yau submitted for the Plaintiffs that the 5th Issue should be answered in the affirmative as the Plaintiffs have proven the sum of RM1,159,194.59 based on the documentary evidence in the CBoD but the amount has to be adjusted according to the witnesses’ evidence. [104] The computation of the said amount (in RM) is as follows: Amount owing to P1 937,861.59 Amount owing to P2 274,733.00 + 1,212,594.59 Less payment to P2 by the Defendant 53,400.00 - 1,159,194.59 [105] P1 relied on its Final Claim Nos. 1 and 2 dated 16.12.2017 (pp 58 - 66, B3) to substantiate the calculation of the amount owing to P1 as shown above. A Summary was prepared by P1 (p 67, B3) as follows: “SUMMARY 1) Bill no. 1 : RM 1,858,380.00 2) Bill no. 2 : RM 1,521,389.12 3) payment to IGO 37 ARCHO GALLERY : RM 60,000.00 4) payment to L & K Aluminium & Glass trading : RM 183,601.64 Total : RM 3,623,370.76 Part payment from WH : RM 2,826,723.12 : RM 796,647.64 Total 5% retention sum : RM 142,213.95 TOTAL OUTSTANDING : RM 937,861.59” [106] P1 submitted that part of the payment of RM183,601.64 was parked under P1’s claim as confirmed by PW1 during PW1 re-examination. The Defendant had admitted part of the outstanding amount of RM462,356.00 (RM1,764,428.00 - RM1,302,072.00) in its letter of reply to the Plaintiffs' solicitors dated 7.12.2018. [107] During re-examination, PW1 also confirmed that payment of RM133,000.00 was not meant to this project, but rather it was for another project at Lot 3578, Jalan Sg Besi. [108] Similarly, and as alluded to under the 4th Issue, P2 relied on its Final Claim dated 16.12.2017 to corroborate the sum of RM274,733.00 which it claimed is owing by the Defendant. [109] The Plaintiffs contended that they had forwarded the Final Claims to the Defendant but the Defendant refused to make payment to the Plaintiffs. [110] It was further contended that, based on the evidence, the total amount owed by the Defendant is RM1,304,794.59 (RM1,159,194.59 + RM133,000.00 + RM12,600.00). [111] The Plaintiffs relied largely on the Final Claims as evidence to support their respective claims and the same were seriously challenged by both the Defendant and the Third Party. [112] The provisions in the 1st LoA and 2nd LoA which are relevant to the current discussion are as follows: “3.0 FIRM PRICE CONTRACT

3.1 All prices and rates in this contract are firm and shall not be subjected to any adjustments due to fluctuation in the cost of wages or any expanses payable to workers, fuel, construction plants, materials or good prices, fees, charges, currency exchange rates, taxes, import duties or any other duties, expenditure arising out of any change in the legislation or other new laws.

8.0

8.1 You are required to submit for distribution three (3) sets of the final As Built Drawings together with the softcopy in 3 Dimensional AutoCAD formats and one

set of reduced size properly bound of the completed works duly endorsed by the approved Licensed Surveyor not later than a month from the issuance of the Certificate of Practical Completion. …

10.1 Monthly progress claim shall be submitted together with all the necessary supporting documents by 25th of each month.

10.2 Payment Certificate shall be made monthly, based on works properly executed and 75% of the value of materials on site (excluding formwork material or any materials for temporary works) to be certified by us, subject to a retention of ten (10) percent of the value of works executed up to a maximum of five (5) percent of the Adjusted Contract Sum.

10.3 No Certification shall be made for any materials stored off site.

10.4 Half of the Retention Sum shall be released after the issuance of Certificate of Practical Completion and upon the submission and approval or endorsement of as-built drawings and other pertinent documents as stated in the Contract and the balance of the Retention Sum shall be released after the issuance of Certificate of Making Good Defects.

10.5 Period of Honouring of Payment shall be thirty

days from the approval date of Payment Certificates by the Architect/S.O.

10.6 Payment for provisional items shall be based on re-measurements quantified according to the as- built drawings endorsed by your licensed surveyor and approved by our Consulting Architect/Engineer upon completion of infrastructure works. …”. [113] When cross-examined, PW1 acknowledged that Clause 10 does not envisage a situation where a Final Claim issued by P1 and P2 is conclusive proof of any sums allegedly owed or outstanding to them. [114] Mr Paveendeep submitted for the Defendant that a distinction has to be drawn between a final claim and a final certificate. A final certificate is conclusive with respect to the actual value of works carried out by a contractor in a project as it has been independently valued, quantified or certified by the consultants. Since there is no Final Certificate in the present case, the Court will thus have to consider the circumstances under which it was not issued (see Pembinaan Juta Mekar Sdn Bhd v Sap Holdings Bhd (previously known as Shah Alam Properties Bhd) & Anor [2014] 11 MLJ 821 at paragraphs 21 and 36 - 38). [115] In his Witness Statement, PW1 stated that there are two versions of the Final Claim where the 1st Version, which was handed to the Defendant’s accountant, Yong May Kuan, is not the same as the 2nd Version that P1 was relying upon at the trial (see the answers to Questions 4 - 6 in WS-PW1). [116] As for PW2, his evidence on the Final Claim was that he met DW1 together with PW1 around December 2017 to hand over PW2’s final invoice for the additional works. However, DW1 refused to acknowledge receipt of the final invoice and asked PW1 and PW2 to deal with CCK. PW2 then met with CCK and tried to hand over PW2’s Final Claim for the additional works but CCK refused to acknowledge receipt and to process the same. PW2 admitted under cross-examination that the Final Claim was only prepared after the filing of this suit. [117] Moreover, as provided under Clause 3.1 of the 1st LoA and 2nd LoA, the contracts are firm price contracts, however according to Clause 10.6, payment by the Defendant to P1 for provisional items shall be based on re-measurements quantified according to the as-built drawings endorsed by P1’s licensed surveyor and approved by the Defendant’s Consulting Architect or Engineer upon completion of the infrastructure works. [118] In so far as the requirement to submit the final As-Built Drawings under Clause 8.1 as highlighted in the Defendant’s submission, the time frame to do so is not later than one month from the issuance of the Certificate of Practical Completion (‘CPC’). Clause 10.4 also alludes to the release of half of the retention sum after the issuance of the CPC and upon the submission and approval or endorsement of the as-built drawings and other pertinent documents as stated in the contract while the other half of the retention sum shall be released after issuance of the Certificate of Making Good Defects (‘CMGD’). There is no evidence of a CPC and CMGD being issued for the 1st LoA while for the 2nd LoA, and as contended by the Defendant, the Works had stopped. [119] When cross-examined, PW1 admitted that P1 did not submit the final As-Built Drawings as required under Clause 8.1. In fact, no As-Built Drawings were ever submitted by P1. In the context of Clauses 10.4 and 10.6 of the 1st LoA and 2nd LoA, the following excerpt from Law and Practice of Construction Law in Malaysia, Sweet & Maxwell, 2021, General Editor Lim Chong Fong and a team of expert contributors at p 324, is insightful: “[10.104] One of the most important types of documents required by the employer in taking over completed works is as-built drawings. It is especially of importance in contracts where quantities are provisional subject to a remeasurement upon completion for the purposes of final account and final certification. [10.105] Given that as-built drawings require careful attention to detail to provide an exact rendering of the completed works, a practical approach would be for the contractor to track and log progress and/or changes from the initial drawings as they appear throughout construction. The construction contract would usually prescribe the level of detail required covering the nature, type and number of the drawings. A draft set of such as-built drawings may be procured from the contractor in some instances before certifying completion with the final set submitted after the completion milestone. [10.106] The timeline for the contractor to provide such submissions may also be stipulated in the contract documents, or in the absence of a timeline, before the completion date (as the PAM Contract provides). A default or failure to submit these documents or records where it is precondition to certification of completion may result in a rejection of completion and refusal by the employer to take over the works. Any default or negligence on the contractor on the sufficiency and adequacy of such records may lead to a possible liability under breach of contract and/or tort, even extending during the limitation period for mistakes, inconsistencies or amendments due to improved works or safety matters.”. [120] Apart from the non-submission of the As-Built Drawings for approval by the Defendant’s Consulting Architect, I find that the Plaintiffs did not prove, on a balance of probabilities, the actual value of work done for the 1st LoA and 2nd LoA. [121] In his evidence, PW1 –

admitted that he does not know how the sum of RM1,159,194.59 as pleaded in the SoC was arrived at and that the actual value of work done under the 2nd LoA based on Interim Certificate 12 for the period ending 10.5.2017 (p 204, B2) is RM602,532.70; and

agreed that the actual value of work done under the 1st LoA is indicated at the 4th and 6th columns of Interim Certificates 11, 12 and 13 for the period ending 6.4.2017, 10.5.2017 and 8.6.2017, respectively (pp 202, 204 and 206, B2) which show the amount of RM1,369,514.44. [122] During the trial, the Defendant had submitted a Table of Payment under the 1st LoA as exhibit “D4” which shows that prior to the 2nd LoA, a total sum of RM1,553,862.75 was paid under the 1st LoA. This was countered by P1 in exhibit “P5” where it was contended that only RM776,081.00 was paid. [123] The Defendant asserted that, based on PW1’s admissions under cross-examination, the actual value of work done for the 1st LoA and 2nd LoA was only RM1,972,047.14 and it is an agreed fact that the Defendant paid P1 a sum of RM2,880,123.12 for the 1st LoA and 2nd LoA. [124] I have carefully scrutinised the oral and documentary evidence and the submissions by the parties, including the Schedules (encls. 177, 178 and 182), but I am unable to arrive at any conclusion as to the actual value of work done for the 1st LoA and 2nd LoA. This is largely due to the haphazard way in which the Plaintiffs had presented the evidence at the trial. Mr. LH Yau attempted to salvage the situation by asking leading questions during the re-examination of PW1, which naturally led to several objections by Mr. Paveendeep. The objections were allowed by the Court as it was obvious that Mr. LH Yau was posing questions which should have been in WS-PW1. [125] Just before the re-examination of PW1, the Court had to deal with the letters written by the learned counsels regarding the Plaintiffs’ application to file a second Witness Statement for PW2. Mr. LH Yau said that he was instructed to do so by his client so that evidence may be given on the alleged conspiracy for payment not to be made to the Plaintiffs. Ultimately, the application was not allowed as the Plaintiffs’ counsel had informed the Court during the pre-trial case management that the issue of conspiracy will not be pursued and hence, it was not included in the ITBT. Even at the point of time when the clarification session was held, Mr. LH Yau said that there is an error in the Witness Statements and Notes of Evidence whereby the Final Claim was actually issued in December 2017 and the follow-up was done in January 2018. [126] In Dekon Sdn Bhd v. Pembinaan Asas Klasik [2017] 1 LNS 888, the contractor’s final claim for the value of work done was based on its own calculations and the court held that the plaintiff had not adduced any cogent evidence to prove, on a balance of probabilities, the actual value of the works it had allegedly carried out other than the unilateral calculation it had submitted. [127] Similarly, here, the Plaintiff has failed to prove, on a balance of probabilities, that the sum of RM1,159,194.59 is owed by the Defendant to the Plaintiffs. [128] In the Defendant’s Submissions After Trial, it was contended that P1 was paid more than the actual value of the work done for the 1st LoA and 2nd LoA and therefore P1 has been unjustly enriched in the sum of RM908,075.98 (RM2,880.123.12 – RM1,92,047.14). This amount was corrected by the Defendant’s counsel following the clarification session as RM854,675.98 (RM2,826,723.12 – RM1,92,047.14) as the sum paid by the Defendant which should be computed is to P1 only. [129] The Defendant relied on Gurbachan Singh Bagawan Singh & Ors v. Vellasamy Pennusamy & Other Appeals [2015] 1 CLJ 719 and Gan Seng Kee v. Yap Yok Lan [2015] 1 LNS 493 in arguing that no objections were taken by the Plaintiffs’ counsel when PW1 was cross-examined on the documentary evidence as to the actual value of work done for the 1st LoA. [130] It was further contended that the ingredients alluded in Dream Property Sdn Bhd v. Atlas Housing Sdn Bhd [2015] 2 CLJ 453 are satisfied in that P1 has been enriched, there was enrichment of P1 at the Defendant's expense, the retention of the benefit by P1 was unjust, and there is no conceivable defence available to extinguish or reduce P1’s liability to make full restitution of RM908,075.98. [131] The Defendant urged the Court to consider the matter from the wide-angle lens of justice that it will be unconscionable to allow P1 to retain the money paid at the Defendant’s expense when P1 had not done any work to lay claim to the additional sum of RM908,075.98 and to make an order against P1 for restitution of the said sum. [132] I was not inclined to make such order in the circumstances of this case where the Defendant’s claim on the ground of unjust enrichment and for the relief of restitution were not pleaded in the Amended Defence and Counterclaim and the Defendant has not proven, on a balance of probabilities, the actual value of work done for the 1st LoA and 2nd LoA is in the sum as per its submission. 7th Issue: Whether the Defendant had instructed the Plaintiffs for the matters arising from the 1st LoA and 2nd LoA and the Consultation Contract [133] The Court agrees with the Defendant that, in view of the findings in respect of the 5th Issue, there is no necessity for the Court to make a determination on the 7th Issue. 8th Issue: Whether the Defendant has proven its counterclaim against the Plaintiffs for –

the sum of RM1,104,148.04 or such other sums that is to be paid by the Defendant to others parties which ought to have been paid by P1

the sum of RM1,000,000.00 against the Plaintiffs for loss of corporate opportunity

an order for damages to be assessed for abuse of court process and breach of contract and negligence by P1 [134] As the 8th Issue (a) to (c) above was answered in the negative, it would not be a live issue in the Plaintiffs’ appeal. [135] In summary, under the 8th Issue (a), the Defendant prayed for the sum of RM1,104,148.04 being the sums paid by the Defendant as an advance to be claimed back from P1. However, after a full deliberation of the evidence and submissions by the parties, I was of the considered view that the Defendant has not discharged the burden of proving that the said sum or any other sum was paid by the Defendant to the various sub-contractors as an advance payment which P1 has to repay to the Defendant. [136] In respect of 8th Issue (b), the Defendant contended that the existence of the claim by the Plaintiffs, first in Suit 820 and followed by the current suit, had resulted in RHB refusing to drawdown the sum of RM1,000,000.00 until the suit is settled. [137] One of the reasons for dismissing the Defendant’s counterclaim was that the Defendant did not call Chong Kar Kean, the sole owner of L & K Aluminium & Glass Trading, and Brian Chin Wooi Luen and Chai Yong Soon, the RHB officers as witnesses even though their names are included in the List of Witnesses (encl. 119; Chong Kar Kean’s Witness Statement was filed as encl. 131). As the Defendant did not offer a valid and reasonable reason for not calling these persons as witnesses, the Plaintiffs had rightfully invoked s. 114(g) of the EA 1950 for an adverse inference to be drawn against the Defendant. [138] As regards 8th Issue (c), the Defendant alleged that the Plaintiffs lacked the legal and factual foundation to mount a claim against the Defendant. The Plaintiffs made a calculated decision to sue the Defendant as opposed to CCK since in their mind it will be easier to sue the owner of the project. It was submitted that, from the List of Dates and Events in ANNEXURE A to the Defendant’s Submissions After Trial, it is evident that the moment leave was granted to commence third party proceedings in Suit 820, the Plaintiffs applied to withdraw the suit with liberty to file afresh. The fact that the application was allowed does not hinder the Defendant from mounting a cause of action on abuse of process as particularised in paragraph 33 of the Amended Defence and Counterclaim. [139] Again, after consideration of the evidence and submissions before the Court, I was not convinced that the Defendant has established its claim for damages for abuse of court process and breach of contract and negligence by P1. [140] For the sake of completeness, I shall now briefly address the Plaintiffs’ alternative claim in paragraph 13 of the SoC for “… damages from the Defendant for the said Construction Works and the said Services and Goods delivered which had been completed by the Plaintiffs according to the principle of quantum meruit and/or pursuant to Section 71 of the Contracts Act 1950.”. [141] It is a trite legal principle that, in order to establish a claim under s 71 of the CA 1950, four conditions must be satisfied, namely the doing of the act or the delivery of the thing referred to in the statutory provision must be –

lawful;

be done for another person;

not be intended to be done gratuitously; and

such that the other person enjoys the benefit of the act or the delivery (see Siow Wong Fatt v. Susur Rotan Mining Ltd & Anor [1967] 2 MLJ 118, which was followed by this Court in Global Explorer Sdn Bhd v JEKS BMC Sdn Bhd & Anor [2024] 2 AMR 157, Pembinaan Jaya Zira Sdn Bhd v Majlis Amanah Rakyat [2024] MLJU 1568, and Axventure Sdn Bhd v Pembinaan Jaya Zira Sdn Bhd [2024] MLJU 2201. [142] In the instant suit, the Plaintiffs did not plead any facts and particulars to establish that the four conditions as above mentioned are fulfilled and neither was any issue included in the ITBT in respect of this alternative claim. Therefore, the Plaintiffs are taken to have abandoned their claim based on quantum meruit or s 71 of the CA 1950.

(B) Between the Defendant and the Third Party [143] As the Plaintiffs’ claim against the Defendant is dismissed, there is no necessity for the Defendant to seek the indemnity against the Third Party. CONCLUSION [144] Premised on the foregoing reasons, the Plaintiffs’ claim against the Defendant was dismissed and the Defendant’s counterclaim was allowed in part, namely, the sum of RM351,000.00 as late penalty with interest at the rate of 5% per annum from the date of judgment until full settlement. The Defendant’s claim against the Third Party was dismissed. [145] On the issue of costs, Mr. Paveendeep prayed for RM50,000.00 as costs to be paid by the Plaintiff to the Defendant in view of the duration of the trial and for the same amount of costs to be paid by the Plaintiffs to the Third Party. [146] Speaking for the Third Party, Mr. CW Beh sought costs of RM250,000.00 from the Defendant on the authority of Positive Well Marketing Sdn Bhd v OKA Concrete Industries Sdn Bhd [2014] 10 MLJ 385 (referred to in Amtrustee Bhd & Ors v Aldwich Bhd & Ors [2018] MLJU 245). [147] Mr. LH Yau prayed that costs to be paid by the Plaintiffs to the Defendant be in the sum of RM20,000.00 only. The learned counsel submitted that the Third Party was brought in unnecessarily by the Defendant and thus, costs should be borne by the Defendant. [148] As Mr. Paveendeep informed the Court that he has case authorities to support his argument for costs of the third-party proceedings to be borne by the Plaintiffs, the Defendant’s and the Plaintiffs’ counsels were directed to file written submissions on the matter and the decision on costs was adjourned to another date. [149] After having considered the Bundles of Authorities in encls. 185 – 187, which included O. 59 of the Rules of Court 2012 and the local case of Syarikat Duasama Sdn Bhd v Abdul Aziz Bin Ibrahim (T/A Radiant Star Enterprise) & Other Proceedings [2018] MLJU 5 as well as several cases from the United Kingdom and Australia, which were further submitted upon orally by Mr. LH Yau (the learned counsel prayed for costs in the sum of RM10,000.00 to be paid to the Defendant because only 14.2% of the Defendant’s counterclaim was allowed) and Mr. Paveendeep, I was unable to agree with Mr. LH Yau’s submission that the Defendant ought to bear the costs for the third-party proceedings. In my opinion, it is reasonable for the Defendant to lay out the background to this suit by pleading the facts about Suit 820 and the Police Reports. It is inevitable for the Defendant to bring in the Third Party for purposes of the pleaded defence against the Plaintiffs’ claim. [150] Therefore, the Plaintiffs were ordered to pay costs of RM50,000.00 to the Defendant and RM20,000.00 directly to the Third Party. Dated: 10 February 2025 (ALIZA SULAIMAN) Judge High Court in Malaya Kuala Lumpur Counsels/Solicitors: For the Plaintiffs: Yau Lap Ho Messrs. Yau Lap Ho & Co. Advocates & Solicitors 72-2, 2nd Floor Jalan SS2/72 47300 Petaling Jaya Selangor For the Defendant: Pavendeep Singh (Hanis Adiba Binti Halizan with him) Messrs. Paven & Co. Advocates & Solicitors 26-6, Menara 1 MK Jalan Mont’ Kiara Mont’ Kiara 50480 Kuala Lumpur For the Third Party: Beh Chee Wei Messrs. Beh & Co. Advocates & Solicitors B-2-3, Block B, Kuchai Exchange No. 43, Jalan Kuchai Maju 13 Kuchai Entrepreneurs Park 58200 Kuala Lumpur Cases, legislation and other sources referred to in the submissions by learned counsels and in the Grounds of Judgment: Cases referred to: Abdul Ghafur bin Mohd Ibrahim v Pengarah, Hospital Kepala Batas & Anor [2010] 6 MLJ 181 Aik Ming (M) Sdn Bhd & Ors v. Chang Ching Chuen & Ors and another appeal [1995] 3 CLJ 639 Ambikamurali a/p PV Govindan v Kannan Deban a/l PV Govindan and another appeal [2021] 4 MLJ 459 Amtrustee Bhd & Ors v Aldwich Bhd & Ors [2018] MLJU 245 Arci Enterprise v. Selinsing Mining Sdn Bhd & Ors [2007] 1 CLJ 12 Axventure Sdn Bhd v Pembinaan Jaya Zira Sdn Bhd [2024] MLJU 2201 Bachy Soletanche (Malaysia) Sdn Bhd v. Kin Hup Seng Construction Sdn Bhd [2000] MLJU 700 Chia Siew Hock v Chia Seow Gim & Anor [2021] 5 MLJ 51 Conweld Engineering Sdn Bhd & Ors v. Goh Swee Boh & Anor [2023] 1 CLJ 323 Cubics Electronics Sdn Bhd (in liquidation) v. Mars Telecommunications Sdn Bhd [2019] 2 CLJ 723 Dato’ Hew Hoi Lam @ Kew Hoi Lam v. Michigan Properties (M) Sdn Bhd [2016] 1 LNS 1537 David Wong Hon Leong v. Noorazman bin Adnan [1995] 4 CLJ 155 Dekon Sdn Bhd v. Pembinaan Asas Klasik [2017] 1 LNS 888 Dream Property Sdn Bhd v. Atlas Housing Sdn Bhd [2015] 2 CLJ 453 Edginton v Clark and Another, Macassey and Another (Third Party) [1964] 1 QB 367 Eversendai Construction (M) Sdn Bhd & Anor v Savithri A/P Vello [2022] MLJU 2205 Express Newspapers Plc v. News (UK) Ltd And Others [1990] 3 All ER 376 Gan Seng Kee v. Yap Yok Lan [2015] 1 LNS 493 Global Explorer Sdn Bhd v JEKS BMC Sdn Bhd & Anor [2024] 2 AMR 157 Gradco Pty Ltd v Buckingham, Ronald Frederick, QBE Insurance (Australia) Ltd and Motor Accident Insurance Board [2012] TASSC 69 Gurbachan Singh Bagawan Singh & Ors v. Vellasamy Pennusamy & Other Appeals [2015] 1 CLJ 719 Hosier & Dickman Ltd v. P & M Kaye Ltd [1971] 1 All ER 301 HT Maltec Consultants v. Malaysian Resources Corporation Bhd & Ors [2015] 1 LNS 68 Jardine One Solution (2001) Sdn Bhd v Teknologi Majusama AZ Sdn Bhd and Anor and Ahmad bin Ismail and Others (Third Party) [2010] MLJU 482 Kanta a/l Rasalingam v. Shamsunnisa @ Shamsun Nabar bt M.A. Abdul Jabbar & Ors [2017] 7 CLJ 423 KEU Control Engineering Sdn Bhd v Toh Sie Ban [2014] 11 MLJ 835 Lai Yoke Ngan & Anor v. Chin Teck Kwee & Anor [1997] 3 CLJ 305 Lee Chee Keong v. Fadason Holdings Sdn Bhd & Other Appeals [2017] 7 CLJ 295 Lim Eng Kay v. Jaafar Mohamed Said [1982] CLJ (Rep) 190 Majlis Bandaraya Petaling Jata v. Digital Viva Sdn Bhd & Anor [2020] 3 CLJ 520 Messrs Albert Ding, Lee & Partners v Cho Chooi Mei [2020] 10 MLJ 180 MIFSUD v ICT Pty Ltd [1997] 7 Tas R 148 Murugan v. Lew Chu Cheong [1980] 2 MLJ 139 New Kok Ann Realty Sdn Bhd v. Development & Commercial Bank Ltd., New Herbrides (in liquidation) [1987] 2 MLJ 57 Noraini Mohamed Hadi v. Pembangunan Tanah Dan Perumahan Sdn Bhd & Another Appeal [2021] 3 CLJ 518 Peak Hua Industries Bhd v. Peak Hua Holdings Bhd & Ors [2005] 6 MLJ 266 Pembinaan Jaya Zira Sdn Bhd v Majlis Amanah Rakyat [2024] MLJU 1568 Pembinaan Juta Mekar Sdn Bhd v Sap Holdings Bhd (previously known as Shah Alam Properties Bhd) & Anor [2014] 11 MLJ 821 Positive Well Marketing Sdn Bhd v OKA Concrete Industries Sdn Bhd [2014] 10 MLJ 385 Public Bank Bhd v. Mahacity Sdn Bhd & Anor [2016] 6 CLJ 925 Raffles Town Club Pte Ltd v Lim Eng Hock Peter and others [2011] 1 SLR 582 Seloga Jaya Sdn Bhd v. UEM Genisys Sdn Bhd [2010] 3 MLJ 721 Sinar Wang Sdn Bhd v. Ng Kee Seng [2004] 3 CLJ 679 Siow Wong Fatt v. Susur Rotan Mining Ltd & Anor [1967] 2 MLJ 118 Syarikat Duasama Sdn Bhd v Abdul Aziz Bin Ibrahim (T/A Radiant Star Enterprise) & Other Proceedings [2018] MLJU 5 Synergy Promenade Sdn Bhd & Anor v. Federal Land Development Authority & Anor [2022] MLRHU 703 Tan Poh Yee V. Tan Boon Thien & Other Appeals [2018] 2 MLRA 514 Tanjung Teras Sdn Bhd v Kerajaan Malaysia [2015] MLJU 2161 Techbay Sdn Bhd & Ors v. Medicbilt Sdn Bhd and Another Appeal [2019] 1 LNS 361 The Tanjong Pagar Dock Company Limited v The Russian Volunteer Fleet and The Union Insurance Society of Canton Limited [1902] 1 LNS 17 Thomas v Times Book Company Limited, COX (Third Party) and Cleverdon (Fourth Party) [1966] 1 WLR 911 Tindok Besar Estate Sdn Bhd v. Tinjar Co [1979] 2 MLJ 229 Wahbunga Realty Sdn Bhd & Ors v. Dato' Sri Andrew Kam Tai Yeow & Other Appeals [2022] MLRAU 291 WH Electrical Marketing (M) Sdn Bhd v. Kenwingston Sdn Bhd [2022] 1 LNS 2001 YK Fung Securities Sdn Bhd v. James Capel (Far East) Ltd [1997] 4 CLJ 300 Zulpadli Mohammed v. Bank Pertanian Malaysia [2011] 1 LNS 1853 Legislation referred to: Contracts Act 1950, s 71 Evidence Act 1950, ss 101, 102, 103, 114, 138 & 142 Registration of Business Act 1956, s 8 Rules of Court 2012, O. 15, r. 2(2) & O. Other sources referred to: Andrew Grubb, Michael Furmston, John N. Adams, Robert Bradgate, Roger Brownsword, J. W. Carter, Malcolm Clarke, Roger Halson, Elizabeth MacDonald, G. J. Tolhurst, Butterworths Common Law Series, The Law of Contract (Fourth Edition), LexisNexis, 2010 Lim Chong Fong, Law and Practice of Construction Law in Malaysia, Sweet & Maxwell, 2021 SC Sarkar, Law of Evidence, 2nd Edition, Lexis Nexis, 2019