1. ) Pa Konkrit Sdn Bhd v 1. ) Eco World Trading Sdn Bhd (WA-22C-58-09/2016 & WA-22C-47-03/2017)

ECO TROPICS DEVELOPMENT SDN BHD

ECO BUSINESS PARK 1 DEVELOPMENT SDN BHD

PAMIR DEVELOPMENT SDN BHD

KALSARI JAYA SDN BHD

SIACON TECHNOLOGY SDN BHD

GEAMIN CONSTRUCTION SDN BHD

HWA HIN SDN BHD (COMPANY NO.: 99354-M) ... PLAINTIFFS AND PA KONKRIT SDN BHD (COMPANY NO.: 559438-X) ... DEFENDANT 3 THE JUDGMENT OF Y.A. LEE SWEE SENG [1] Essentially the issue that arose in this case is whether the cracks that had appeared in the structural works of a developer in their development projects were caused by the ready-mixed concrete (“RMC”) of Grade 25 (“G25”) supplied by the Plaintiff but not complying with the specifications contractually agreed. [2] The concrete supplier said they had complied with the prescribed Slump Test and Cube Test. They further argued that the Core Test, which the supplier failed, is not applicable to the supply of the RMC and that any results arising from the Core Test are not relevant as contractually it was not provided for and is only relevant to the developer and contractors to determine if the failure in the cracks are attributable to poor workmanship in the laying, concreting and curing of the RMC laid, which is outside the supplier’s control. Parties [3] The Plaintiff here in Suit WA-22C-58-09/2016 (“the 2016 Suit”) is PA Konkrit Sdn Bhd (“PA Konkrit”). They are in the business of supplying RMC manufactured in their its batching plant. They had supplied RMC of G25 to the Defendant, Eco World Trading Sdn Bhd (“Eco World Trading”). The Defendant is the trading arm of Eco World Development Berhad, a public listed company involved in property development. [4] Eco Tropics Development Sdn Bhd and Eco Business Park 1 Development Sdn Bhd are the developers of a housing project called Eco 4 Tropics Projects and a commercial development called Eco Business Park 1 Project (“EBP1 Project”) respectively. Problems [5] The Defendant had entered into two contracts with the Plaintiff for the supply of RMC for the following projects: a) Letter of Acceptance for Contract No. ETDSB/GEN/C051/15 Eco Tropics Development dated 29.6.2015 (“Eco Tropics LOA”); and b) Letter of Acceptance for Contract No. EBP1 SB/Misc/C005/13 Eco Business Park Development dated 24.10.2013 (“EBP1 LOA”) which was novated vide Novation letter Ref No. EBP1/Misc/C005/PAK.15-002 dated 20.3.2015. [6] The RMC was physically delivered to the construction sites of the following Main Contractors who were undertaking the construction in the respective projects:

(A) Eco Tropics Projects

Pamir Development Sdn Bhd (“Pamir”)

Kalsari Jaya Sdn Bhd (“Kalsari”)

Siacon Techonology Sdn Bhd (“Siacon”)

Geamin Construction Sdn Bhd (“Geamin”)

Fook Yu Electrical & Building Construction Sdn Bhd (“Fook Yu”)

(B) EBP1 Project

Hwa Hin Sdn Bhd (“Hwa Hin”)

Pamir Development Sdn Bhd (“Pamir”) 5 [7] The Defendant had been paying the Plaintiff for the supply of the RMC of over RM4 million for there was no dispute on the quantity and price. It was when cracks began to appear in the structural works of the development projects of their related companies that the Defendant stopped making payments. Pleadings [8] The Plaintiff claimed against the Defendant for the balance of RMC supplied to the Defendant for the sum of RM6,468,766.60. They contended that the supply of RMC had complied with the specifications as per Appendix 1 to the Eco Tropics LOA and EBP1 LOA for both the development Projects. [9] Most of the RMC supplied under the Eco Tropics LOA and EBP1 LOA is of Grade G25 and that represented the subject matter of the dispute here. By Grade G25 is meant that the minimum strength of the RMC is 25 N/mm2. The Plaintiff further argued that the RMC supplied had undergone successfully the Slump Test and Cube Tests as referred to contractually in the LOAs. [10] On the other hand the Defendant contended that when cracks were discovered between February and May 2016 in the Eco Tropics Project and EBP1 Project, Core Tests were conducted on the insitu core samples and arising from the Core Tests, the Defendant claimed that: a) the Core test did not correspond to the Cube Test results; b) that the Plaintiff did not conform to the condition or specifications under Eco Tropics LOA and EBP1 LOA; c) that the RMC supplied was not RMC of G25 and not what the 6 Defendant had bargained for; and d) were not fit for the purpose for which it was required and/or of merchantable quality. [11] The Defendant argued that the LOAs had referred in the Appendix to the relevant British Standard BS 8110 which incorporated Core Test into the specifications stipulated. [12] The Defendant further pleaded that the Plaintiff had swapped the Sample Cubes of the actual sample with the purported Sample Cubes sent to laboratories for compressive strength tests. They further alleged that the Plaintiff had tampered with and/or interfered, inter-meddled and/or otherwise manipulated the entire process of the Cube Test. [13] The Plaintiff replied that the Cube Test was following the prescribed procedure of random sampling as prescribed and practised and the tests were done by independent laboratories of the Defendant’s choice, which results were not objected to by the Defendant until the cracks appeared. [14] The Plaintiff vigorously denied any form of deceit or fraud committed by them with respect to the Cube Test results and further argued that the Core Test, which they are said to have failed, had nothing to do with the supply of the RMC which had met the requirements of the contract. The Plaintiff argued that there are elements of workmanship that may affect the structural strength of the RMC such as the human intervention of the construction workers working on the process of laying, concreting and curing the RMC on the formworks prepared, all of which processes are outside of the hands of the Plaintiff as supplier of the RMC. 7 Preliminaries [15] Parties agreed that the Court should hear this claim first in the 2016 Suit and in the event that the Plaintiff is found liable for the cracks in contractually supplying the RMC not in accordance with the specifications stipulated, then this Court will proceed to hear another related suit filed in Suit No. WA-22C-47-03/2017 (“the 2017 Suit”). [16] The 2016 Suit is linked to the 2017 Suit in that parties agreed that if the Court should decide the 2016 Suit in favour of PA Konkrit’s claim for the price of the balance RMC delivered then the claims of Eco Tropics Development Sdn Bhd and Eco Business Park 1 Development Sdn Bhd and 5 other Contractors against PA Konkrit in the 2017 Suit would be dismissed. [17] Conversely if the Court were to dismiss the PA Konkrit’s claim here than correspondingly Eco Tropics Development Sdn Bhd and Eco Business Park 1 Development Sdn Bhd and 5 other Contractors in the 2017 Suit would still have to be proved because there is there a claim for negligence and the tort of deceit and fraudulent misrepresentation but that the evidence in this case would be used in that 2017 Suit and proceedings. [18] In this 2016 Suit the Plaintiff called the following as their witnesses a. Chew Fatt Kin, the General Manager of the Plaintiff was called as the first witness [PW1]; b. Hong Mun Fatt, the Operations Manager of the Plaintiff in charge of the batching plant [PW2]; c. Chew Kok Hu, the site supervisor of the Plaintiff in the batching plant [PW3]; d. Ng Kong Choo, the site supervisor of the Plaintiff in the 8 batching plant [PW4]; e. Foo Kee Ken, the civil engineer with laboratory, Big I Sdn Bhd [PW5]; f. Koo Kean Siang, the civil engineer with laboratory, Geolab (M) Sdn Bhd [PW6]; g. Dr Tan Kuang Leong, an independent expert called to testify and give his opinion on the RMC produced by Plaintiff [PW7]. [19] The Defendant called the following as their witnesses: a. Ling Tien Heng, the Defendant’s General Manager from South Region called as the first witness [DW1]; b. Lee Wei Sheng, the civil structural engineer from Jurutera JRK Sdn Bhd, EBPI Project [DW2]; c. Jerry Chua Kuo Shing, the civil structural engineer from KH Goh & Associates Sdn Bhd, Eco Tropics Tropics Project [DW3]; d. Koh Chun Min, the civil structural engineer from TLK Sdn Bhd, Eco Tropics Project [DW4]; e. Thum Yee Kun, the Project Director from Hwa Hin Sdn Bhd, EBP1 Project [DW5]; f. Victor Oh Guan Chong, the Senior Project Manager, Pamir Development Sdn Bhd, Eco Tropics and EBP1 Project [DW6]; g. Cheng Leok, Managing Director of Kalsari Sdn Bhd, Eco Tropics Project [DW7]; h. Dr Kribanandan Gurusamy Naidu, Expert Witness called by the Defendant [DW8]; i. Kong Jung Sing, Managing Director of Geamin Construction, 9 Eco Tropics Project [DW9]; and j. Kassim Bin Yaakub, Associate Director Cum Test Engineer in Test Sdn Bhd [DW10]. [20] Learned counsel for the Plaintiff cautioned that it is not the Defendant’s case in this 2016 Suit that there is negligence on the part of the Plaintiff. [21] The Defendant is not alleging that the Plaintiff had failed to exercise due and reasonable care and was negligent in preparing Cube Samples and sending them for Cube Tests. [22] As can be seen from the Defence filed, the Defendant’s case was that there was a deliberate act on the part of the Plaintiff in manipulating, tampering and/or swapping the Cube Samples; fraud or fraudulent misrepresentation as the case may be of the Cube Test results. [23] At the end of the day two versions stare at the Court for its determination. One is whether the Plaintiff had indeed supplied RMC of Grade G25 according to the specifications with Cube Test results of a low Standard Deviation (“SD”) which though “challenging to achieve but practically possible”, independently tested by certified laboratories of the Defendant’s choice. That would be consistent with the Plaintiff’s version that the subsequent cracks in the structures are due to external factors not within the Plaintiff’s control including but not limited to the contractor’s workmanship. [24] Two is the Defendant’s version that the Plaintiff concocted the Cube Test results by sending cube samples pre-prepared in a controlled environment to the independent laboratories to be tested. This explains the “practically impossible” low SD as tested by the independent labs. This is 10 done purely to meet the Cube Test. The Plaintiff then supplied RMC of an inferior quality to the Defendant not of Grade G25 which resulted in cracks appearing and all the Core Tests to fail. [25] In the light of the evidence presented this Court had to decide which of the 2 versions is more probable. Whether the Plaintiff had proved the balance sum outstanding of RM6,468,766.60 for the RMC supplied and delivered to the Defendant [26] The Plaintiff had pleaded and claimed in Amended Statement of Claim for a sum of RM6,468,766.60 only being the agreed price for the RMC supplied and delivered to the Defendant from the months of December 2015 to May 2016. [27] The Defendant has raised a dispute as to the quantum of the Plaintiff’s Claim in its Written Submissions and that based on the Plaintiff’s tax invoices and delivery orders as produced, the Plaintiff’s claim must only be confined to the sum of RM3,625,216.23. The Defendant had also claimed that the Plaintiff has not led any evidence on the Statement of Accounts in Bundle C20. [28] Perhaps after 24 days of trial, learned counsel for the Defendant might have forgotten that he had agreed during the cross-examination of DW 1 by the Plaintiff that Parties had agreed that there was no issue on the quantity of RMC supplied and delivered and hence no dispute on the price and balance sum outstanding. [29] The only issue was the quality of the RMC supplied and delivered. It was whether the RMC had met the specifications stipulated and whether the Defendant had a complete Defence of set-off in that the RMC supplied 11 had failed the Core Test and that the cracks in the buildings could be attributed to the Plaintiff’s RMC. [30] The interchange between Counsel and the Court in the NOE dated 4.1.2018 at pg 40-41 is reproduced below to refresh memory: “LEU … So my question to you is that, there’s no dispute on the quantity supplied and/or the prices. You agree? You’re merely disputing because of the quality, that’s what you mentioned in here. You – is that correct? That’s the agreed facts, isn’t it. You know, you agreed what. Sorry? There’s no problem on quantity and prices. Ya, that’s not the issue, we’re only talking about quality. LEU Quality, ya. But it was referred to one of the cross because you refer to one invoice, remember? I can put here parties agreed. That is a separate matter of course. But we don’t take the issue of quantity or pricing. Parties agreed. No dispute on quantity or pricing, only quality. LEU Yes. No, sorry. Don’t dispute on quantity or pricing, only quality. Ya. So forget about the question. It’s part of agreed facts. ” (emphasis added) 12 N.B. LEU - counsel for Plaintiff - counsel for Defendant - Judge [31] Having agreed that the balance outstanding is part of agreed facts learned counsel for the Defendant cannot now raise in their submissions that the Plaintiff’s invoices could only add up to RM3,625,216.23. [32] The Defendant had not through any of their witnesses disputed the amount of the Plaintiff’s claim nor deny receiving the Plaintiff’s Statement of Accounts in C20. What the Defendant had disputed was the quality of the RMC and that of course would have to be considered below. In fact the whole trial was conducted with the focus on the quality and the results of the relevant tests and not on the quantity or the agreed price for the quantities. That was the whole thrust and tenor of the Defendant’s Defence and conduct of it. [33] At paragraph 4 of the Defendant’s Main submission it was placed and positioned the Defendant’s premise as follows: “4. At the conclusion of Trial, it was mutually agreed that the main issue for determination in this Trial is the question of whether the concrete failure encountered in the EBP1 and Eco Tropic Projects was caused by defective concrete supplied by the Plaintiff or by the workmanship of the contractors engaged for the construction and development of EBP1 and Eco Tropics.” [34] The Defendant is now estopped from resurrecting as an issue a matter that had already been agreed upon. In any event a general denial for a claim for goods sold and delivered is never sufficient and the Defendant must descend to specifics as to whether it was quantity or 13 quality as in not in compliance with specifications that is in dispute. See Huo Heng Oil Co. (E.M.) Sdn Bhd v Tang Tiew Yong [1987] 1 MLJ 139. Here the Defendant was seeking to negative the debt not on the ground of the quantity not delivered but on the ground of defective quality and not according to the specifications which arose way after supply and delivery. [35] Silence and the absence of protestations would also raise an inference that where quantity and price are concerned there was nothing wrong. In Poratha Corporation v Technofit Sdn Bhd [2018] MLJU 470 it was observed as follows: “[25] The need for contemporaneous protests if the contents of the invoices for work done are being disputed during the period of subsistence of the contract in question have been raised in a number of cases. Failure to detail the sum disputed and the reasons there for may give rise to estoppel against the party that had by design or default chosen to placidly hold its peace. [26] In the case of Besteel Berhad v Pembangunan Ladang Hassan Sdn Bhd [2010] 1 LNS 923, the High Court held as follows at page 32 to 34: “The Defendant must realize that if it is of the view that there is dispute as to the works executed by the plaintiff, it must express its displeasure or protest at the earliest opportunity. Silence in this case is definitely not golden…” [36] The observation of the Court of Appeal in David Wong Hon Leong v Noorazman bin Adnan [1995] 4 CLJ 155 at 159 below holds true: “During argument, we registered our surprise at the learned Judge’s reluctance to enter judgment for this sum of RM100,000.00. After all, 14 the appellant had failed to respond to the letter of 17 December. If there had never been an agreement as alleged, it is reasonable to expect a prompt and vigorous denial. But, as we have pointed out, there was no response whatsoever from the appellant. In this context, we recall to mind the following passage in the judgment of Edgar Joseph Jr. J in Tan Cheng Hock v Chan Thean Soo [1986] 1 LNS 42; [1987] 2 MLJ 479: In Wiedemann v Walpole [1891] 2 QB 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 MR, 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. (The emphasis is ours.)” 15 [37] The Statement of Accounts bears the following alert: “Any discrepancy in this statement must be reported to us in writing within 10 days.” [38] There was no such discrepancy reported or dispute as to the Statement of Account reported. The Plaintiff further relied on the case of Syarikat Tan Thian Song Sdn Bhd v Syarikat Siaw Teck Hwa Realty & Development Sdn Bhd [1983] CLJ (Rep) 878 which observed as follows: “[5] The defendant has filed a statement of defence and took out a counterclaim in respect of certain amounts which they claim they are entitled for the hire of vibrator compactors and the overcharging for the hire of certain vehicles. [6] I think there is a short answer to this dispute. In effect the terms of the contract between the parties called for there to be an account-stated between the parties every month, the account-stated to come about by the plaintiff delivering a statement of account, the defendant having 2 weeks within which to query the accounts. The law is that in the event of non-query an account-stated came into existence which creates an estoppel against the defendant from querying the accounts thereafter. There are situations, for example if there is fraud, when a query may be permitted but on the facts of this case, in my opinion, no such situation exists. Particularly as the defendants were on notice in October of the lorries not being loaded to the specific capacity and they thereafter continuing with the system of issuing of delivery receipts acknowledging even the quantum of earth, I think that the defendants have waived any right to complain that they may have had and cannot now be heard to rake up 16 what was settled by way of the account-stated.” (emphasis added) [39] In fact a reading of paragraph 7(a) and (b) of the Defence will show that the Defendant had prevaricated when they pleaded that out of the RM6,468,766.60 that is allegedly due to the Plaintiff, RM4,715,581.72 had come from the Eco Tropics Project and the remaining sum of RM1,753,184.88 can only be due to RMC supplied and delivered for the EBP1 Project. [40] PW 1 had also stated in Q&A 11 of his Witness Statement marked PW1-WS that “the statement of accounts were also raised and sent to the defendant” referencing to pages 1-21 of Bundle C20. This fact however was not cross examined by the Defendant. Failure to cross examine PW1 on this can only be deemed as an admission as to the amounts owed to the Plaintiff. See the case of Wong Swee Chin v Public Prosecutor [1981] 1 MLJ 212 at 213. [41] I agree that the Defendant is now estopped from disputing the actual sum owed to the Plaintiff where the quantity and price are concerned but are at liberty to lead evidence on the Defence of the RMC not complying with specification or that the relevant test results had been manipulated and that the RMC was not of the requisite compressive strength resulting in cracks appearing in the slabs, structures or walls. [42] I find that the Plaintiff had proved on a balance of probabilities the balance sum outstanding of RM6,468,766.60 for the RMC supplied and delivered where quantity and pricing is concerned. 17 Whether the Plaintiff had supplied and delivered RMC in accordance with the specifications as stated in the respective Letters of Acceptance (“LOAs”) [43] The EBP1 LOA provided for the supply and delivery of RMC including the setting up a batching plant at the construction site. The key conditions for the supply and delivery of RMC are in Clauses 9 and 21 of the EBP1 LOA as follows:

Clause 9 states that if the RMC fails to meet the requirement of BS8110 : 1985, the Defendant shall take all necessary action to remedy the situation and all cost incurred shall be borne by the Defendant, and

Clause 21 provides that the RMC supply rates shall be firmed for 1 year and the rates are inclusive of slump test, preparation of cube and testing (except for independent lab testing), based on 60 days credit/payment terms upon receipt of monthly invoice/statement(s) duly endorsed by Building Contractor and comply to consultant’s concrete work specification [Refer to Appendix I] for both options as below: Option A: Based on setting-up batching plant at individual site, firm price basis for a duration of a year (12 months); Option B: Supply from Supplier’s existing available/ commercial plant, firm price basis for a duration of a year (12 months); [44] Attachment A to the EBP1 LOA shows the rates of Options A and B and under the description, it states the Ready Mix Concrete (Based on 28 days strength) for Normal Mix etc. Appendix 1 to the EBP1 LOA states the 18 Design Mix Concrete Test Compliance for supply and delivery of RMC which is referred to in Clause 21 of EBP1 LOA. [45] The Design Mix Concrete Test Compliance stated in Appendix 1 for Concrete Grade G25 is as per page 22 of Bundle A. The proposed location for setting up the various batching plants are also shown in the layout plans attached to EBP1 LOA. [46] The Eco Tropics LOA issued by the Defendant to the Plaintiff is similar to the terms of the EBP1 LOA as follows:

Clause 5: All concrete supply shall comply to the consultants concrete work specification (refer to Appendix 1)

Clause 6: The concrete supply rate confirmed shall be inclusive of slump test, preparation of cube and testing (except for independent lab testing). The rates are shown at pages 26, 30 & 31 Bundle A

Clauses 10 and 11 stipulates the need to meet the requirement of BS 8110 : 1985 [47] As can be seen the tests expressly referred to are the Slump Test and the Cube Test. The Core Test is not mentioned though the Defendant said it is mentioned by incorporation since the LOAs incorporated the BS 8110:1985. This shall be examined shortly. [48] There is merit in the Plaintiff’s contention that the specification does not cover placement, consolidation, curing, leveling or protection of the concrete and all other related concreting works after delivery to the Defendant’s construction sites as after delivery the RMC would be outside the control of the Plaintiff and the element of workmanship would have 19 come in for the processes of placement, consolidation, compaction, curing, leveling or protection of the RMC. [49] From the EBP1 LOA and Eco Tropics LOA, though various grades of RMC were listed to be supplied but from the delivery orders and invoices only G25 Normal Mix [slump 75 + 25mm] were ordered. [50] The Plaintiff through their witnesses explained the process of supply of the RMC as follows:

After the batching plant was set up, the Defendant required the Plaintiff to submit “Design Mix” specifications of various grades of RMC in compliance with the required concrete characteristic strength which was approved by the Consultant. The Plaintiff complied with this requirement as shown in Appendix 1 – Design Mix Concrete Test Compliance attached to EBP1 LOA and Eco Tropics LOA as follows: Concrete Grade Crushing Strength(N/mm2) Limits of Dry Aggregate To Cement Ratio by Weight Normal Mix Work Test Max Min Min. Cement Content Kg/m3 Max Free Water/ Cement Ratio 7 Days 28 Days

The Defendant also required the Plaintiff to submit all the testing certificates of raw materials including calibration certificates of the PO batching plants and the Cube Testing machine. The calibrations were personally witnessed by PW 1.

Thereafter the Defendant required the Plaintiff to carry out the required “Trial Mixes” of the RMC as directed by the Defendant. The “Trial Mixes” were witnessed and approved by the Defendant and the Project Consultants. The Trial Mix is to determine the characteristic strength at 7 days and 28 days.

The results of the ‘Trial Mixes” are shown at pages 152-166 Bundle C21.

The characteristic strength is that determined from Cube Test at 7 days and 28 days. [51] I agree with the Plaintiff that the tests that determine the strength and integrity of RMC are the Slump Test and the Cube Test. Once the RMC is delivered to the Defendant, the Plaintiff has no more control over the concrete, workmanship, placement, consolidation, compaction and vibration. It follows logically and reasonably that the Plaintiff’s scope of work ended at the stage of delivery of RMC to the Defendant. [52] Testing of RMC shall be done in accordance to BS 8110:1985 and compliance will be based on the Cube Test compressive strength results only. BS 8110: Part One, 1985 has been provided by Dr Tan Kuang Leong, PW-7, the Plaintiff’s expert witness in his second report - Expert Affidavit (No. 2) in Enclosure 83. Under Section Six of BS 8110 Part One (Page 102 Enclosure 83), it is stated that concrete shall be specified, produced and tested for compliance with BS 5328. 21 [53] Under BS 5328, RMC is defined as concrete mix in a stationary mixer or in a truck-mixer and supplied to the purchaser in the fresh condition either at the site or into the purchaser’s vehicles. [54] I agree with learned counsel for the Plaintiff that by definition, RMC is a concrete mixed and supplied in fresh condition and not as in situ concrete. DW 1, Lim Tien Heng the Defendant’s General Manager for the Southern Region has concurred and agreed to this during cross examination. [55] The sampling and testing of RMC is laid down in BS 5328 and this appears at pages 250 and 251 of Enclosure 83 under : Clause 15.2 For the assessment of strength, a sample shall be taken from a randomly selected batch of concrete by taking a number of increments in accordance with BS 1881. The samples, whenever practicable, shall be taken at the point of discharge from the mixer or in the case of ready-mixed concrete at the point of discharge from the delivery vehicle. Two test specimens shall be prepared from the sample and both the specimens shall be cured as follows:

for 28 days; [56] I agree with the Plaintiff that the relevant tests under BS 8110:1985 read with BS:5328 for RMC is the Cube Test and the Slump Test. All the insitu tests such as the Core Test and Windsor Probe are applicable for the testing of concrete cores after placements were carried out to determine as to why the reinforced concrete failed when it already passed the Cube Test. [57] The fact that the Core Test is prescribed in BS 8110:Part 2 1985 where there are visible defects to the concrete structure so as to determine 22 the cause of the defects does not mean that the Plaintiff is automatically liable the moment the RMC failed the Core Test or the moment cracks are discovered in the concrete structure. [58] To agree with the Defendant’s stand that the RMC supplied must also pass the Core Test would mean that the Plaintiff must guarantee that there would be no cracks in the concrete structures no matter how bad the workmanship in the laying, concreting, compacting and curing of the RMC in the formwork may be, even after passing the strength test under the prescribed Cube Test. That is not the term of the contract. [59] I am satisfied that the workability of the RMC is determined by the Slump Test and the strength of the RMC by the Cube Test at 28 days as prescribed. The RMC that were supplied and delivered had passed all the Slump and Cube tests accordingly. The Defendant’s independent third party laboratory testing had certified and confirmed that the supplied concrete were of designed strength. See for the EBP1 Project the following:

Bundle B8 - pages 1 to 254 – Geolab

Bundle B9 - pages 355 to 533 – Geolab

Bundle B10 - pages 1 to 319 – Geolab

Bundle C1 - pages 1 to 220 -Big I. See for the Eco Tropics Project the following:

Bundle C2 - pages 1 to 226 - Big I

Bundle C3 - pages 1 to 270 - Big I

Bundle C4 - pages 1 to 260 - Big I

Bundle C5 - pages 1 to 208 - Big I

Bundle C6 - pages 209 to 416 - Big I 23

Bundle C7 - pages 1 to 210 - Big I. [60] In fact there is no dispute that the RMC supplied had cleared both the Slump Test as well as the Cube Test. Both the Slump and Cube testings were carried out as instructed by the Defendant and the Consultant Engineer on site where the RMC were delivered to the Defendant. Any supply that did not meet the requirement was rejected. The Slump Tests were carried out by the Plaintiff at the point of discharge of the RMC on all the batches of RMC that were supplied. The Slump Tests were witnessed by the contractors and some of them were recorded in the Delivery Orders. Failure of the Slump Tests will result in the RMC to be rejected by the contractors. After the Slump Tests have been conducted and the workability is met (at 75 +/- 25mm), the Plaintiff will proceed to make standard sized Sample Cubes at the construction sites which were usually witnessed by the representatives of the contractors or representatives of the Defendant. The Cube Tests were carried out by independent labs and it was never disputed by the Defendant or their contractors. [61] Whilst the Core Test is referred to in the BS 8110:1985, it is in the context of further in-situ tests to be carried out by the Defendant to determine why after placement, the RMC had failed in that cracks had later begun to appear. The failure may be attributable to a whole hosts of factors or a combination of them such as the workmanship, placement, curing, formwork, compaction/vibration, leveling and all other concreting works. [62] The Plaintiff referred to and relied on the case of Valley Concrete

Ltd v Western Caissons Ltd (1987) AJ 1417 Alberta Court of Queen’s Bench. In this case the plaintiff (Valley Concrete) made a claim against the defendant (Western Caissons Ltd) in which the defendant was 24 the piling subcontractor. The defendant claimed that the cement supplied by Valley did not meet the specifications stipulated requiring considerable remedial work on the part of the defendant and filed a counter claim. The concrete supplied was to meet a 28 day strength test requirement pursuant to the C.S.A standards (para 34 of judgment) starting at para 17.4 of LAN3- A23.1-M77 (para 42 of judgment). However coring for insitu testing was conducted pursuant to 17.6.1 of the C.S.A standards to test the strength of concrete in place. It had nothing to do with the strength of cement as supplied to the site. [Para 60 and 62 of judgment] [63] The Learned Judge Lomas at paragraph 65 stated as follows: [65] I agree that the only basis set out in the C.S.A standards for acceptance or rejection of concrete supplied by a concrete supplier is as specific in 17.4 of the C.S.A standards, entitled “Strength Tests”. There is no basis for rejecting the cement based upon field cured samples or upon the testing of cores taken from in situ cured cement and at paragraph 67 and 68 the learned judged noted :- [66] Section 17.6 of the C.S.A standards deals with failure of the tests to meet requirements. 17.6.1 states in part: If the result of tests indicate that the concrete is not of the specified quality, the Authority shall have the right to require one or more of the following: ...............

That cores be drilled from the portions of the structure in question and tested in accordance with CSA Test - Method A23-2-14C, obtaining and Testing Drill cores for Compressive Strength Testing. 25 A note to the paragraphs state: Concrete in the area represented by the core tests may be considered structurally adequate… [67] In my opinion the tests referred to in s.17.6.1. deal with an engineering determination of the structural adequacy of the in situ cement do not deal with the strength of the cement as supplied by the supplier. [68] As stated by Mr Gurjar, two separate issues have been mixed in the evidence of this trial. Firstly, whether the concrete as delivered met on MPa 28-day requirement. That can only be judged by proper testing in accordance with C.S.A standards. Secondly, whether the concrete in the structure is adequate. He stated that cores can be taken to make some judgments of that factor. That test has nothing to do with the quality of the concrete as supplied. To do otherwise would penalize the cement supplier for environmental conditions that have occurred after the delivery of his cement.” (emphasis added) [64] Learned counsel for the Plaintiff also referred to Global Mix Sdn Bhd v Wong Brothers Building Construction Sdn Bhd [2015] MLJU 616, where the Plaintiff claimed for monies due for the supply and delivery of ready mixed concrete for construction of condominiums. The claim was disputed basically on the ground that the materials delivered did not meet the agreed specifications. There was also a counter claim for rectifications. [65] In allowing the Plaintiff’s claim, Mary Lim J (as she then was) had dealt with the issue of whether there are any relevant or applicable specifications, particularly as to the desired characteristic strength. The 26 Court noted that there was a provision in the Letter of Acceptance at clause 9.4 which stated as follows: “9.4 Concrete Tests Concrete test cube shall be made, cured and tested and the results recorded, in accordance with the recommendations of B.S 1881, unless specification modified in subsequent clauses of the Specification. The workability of the concrete shall be determined and checked when directed by means of a slump test or a compaction factor test using the appropriate apparatus and methods as described in Parts 1 and 2 of B.S 1881 and at clause 19.2 which concerns compliance with specific requirements relating to strength of the concrete: The characteristic strength of concrete is that at 28 days cube strength below which not more than 5% of the test results may be expected to fall.” [66] The learned Judge in allowing the Plaintiff’s claim held as follows: “[63] ... Compliance with the specific characteristic strength shall be judged by test made on cubes at an age of 28 days unless there is evidence, satisfactory to the Architect, that a particular testing regime is capable of predicting the strength at 28 days of concrete tested at an earlier age, when compliance may be based on the results of such test alone ...... [67] It is apparent that Section C of the Specifications covers the whole spectrum of works in the project that has anything to do with concrete. It is equally apparent that the Plaintiff is not involved in 27 every aspect of the concrete works. It is only involved in designing and setting up a batching plant to supply ready mixed concrete; and to supply and deliver ready mixed concrete. [68] The evidence is clear from especially the letter of acceptance that the parties had agreed on the supply and delivery of ready mixed concrete of Grades 15; 25; 30; 35; 40 and 50 Normal with 75 +/-25 mm granite. In addition, these various grades of concrete must achieve characteristic strength (N/mm2) found in clause 12 of Section C. From the several specifications in Section C, it is clear that the determination of the relevant characteristic strength is by means of the cube tests at 28 days clause 12. Further, the cube tests are to be conducted in the manner described in clauses 9.4 and 19.2; that is, after making the cubes, the cubes have to be cured and aged to 28 days. It is the testing of such cubes at 28 days that will determine whether the relevant designed characteristic strengths as prescribed in clause 12 have been met.” (emphasis added) [67] The Learned Judge further held that other then the Slump Test and the Cube Test, the Load Test or Core Test as is the term used here, cannot be implied as part of the specification. Her Ladyship opined as follows: “[69] It is clear from all this documentary evidence that emanated primarily from the Defendant that the agreement between the parties is that the concrete or ready mixed concrete supplied by the Plaintiff must meet the designed characteristic strengths as determined by cube tests at 28 days. This specific requirement cannot extend to include the requirement that the load tests in clause 9.6 must also be met. Quite apart from the fact that there is no express inclusions of 28 this requirement, this specification cannot be implied because the subject matter of the sub-contractor is the supply and delivery of the concrete ready mixed concrete. There is no evidence that the Plaintiff’s scope of work extends beyond supply and delivery of the ready mixed concrete to the project site. [70] Furthermore, PW1 testified that the Plaintiff is not involved in the construction of reinforced concrete structures. The responsibility of placing ready mixed concrete into concrete structures and reinforcing belongs to the Defendant as the main contractor. PW1 explained that the quality of the reinforced concrete structures is highly dependent on the in situ conditions, procedures and workmanship during the placement of the ready mixed concrete by the Defendant at all material time. [71] I have no hesitation in accepting PW1’s testimony in this regard. PW1 has 30 years relevant experience and that experience was obvious from his testimony. He testified with confidence and maturity. The Plaintiff is a specialist in the supply of ready mixed concrete and this must have weighed with the Defendant in selecting the Plaintiff for the sub-contract works. Hence, when construing and applying Section C, the relevant scope of the Plaintiff’s works must be taken into proper consideration. There is furthermore, no evidence of any other scope of work that the Plaintiff is involved in other than as described by PW1. [74] The Plaintiff may be aware that the particular delivery or batch of ready mixed concrete that it is supplying is intended for the 29 construction of a particular feature, say slabs or columns or walls; but that in itself does not render the Plaintiff responsible for ensuring that the ready mixed concrete supplied meets the tests prescribed for determining the strengths of the structures. This is especially the case where the parties had already agreed on the particular tests the Plaintiff is expected to meet. There is peppered in the letter of acceptance, the letter of offer and the Specifications that the Plaintiff was to supply and deliver ready mixed concrete in accordance with BS 5328 Parts 3 & 4, 1990 and BS: 8110 Part 1 : 1985 and that the testing of the ready mixed concrete will be in accordance with BS 1881:1993. The Plaintiff correspondingly warranted or guaranteed that the ready mixed concrete that it will supply would be in accordance with the same standards.” (emphasis added) [68] The Learned Judge had considered the intention of the parties as regards to the requirement of conducting test on completed parts of the structures when she held: “[76] I cannot agree with the Defendant that the load tests as mentioned in clause 9.6 equally applies to the ready mixed concrete here as it is a test conducted on completed parts of the structures. If the parties intended this test to apply to the ready mixed concrete supplied by the Plaintiff, it would be reasonable to say that such an inclusion or mention would be made. Since the parties had identified only the slump tests and cube tests but not the load tests, such express provision is adequate to dislodge any argument that the parties also intended for the application of load test. There is no 30 room for any inference of such intention given the express terms and the facts.” (emphasis added) [69] Whilst each case is decided based on its own particular and peculiar facts, where the terms are almost similar, this Court would be inclined to follow where the principles applied are sound and reasonable. [70] The relevant terms of EBP1 LOA are as follows:

Clause 21 states that concrete supply rates shall be fixed for a year and that rate is inclusive of slump test, preparation of cube and testing (except for independent lab testing and comply to consultant’s concrete work specification (Refer to Appendix 1).

Appendix 1 as produced in the Design Mix Concrete Test Compliance refers to crushing strength for 7 days and 28 days for G25 and other grades. This refers to Cube Test.

Clauses 8 and 9 stipulate that concrete shall meet the requirement of BS 8110: 1985. For supply of RMC, the relevant section in BS 8110 which governs the sampling and testing is Section Six which stipulates that only slump test and cube tests are required to determine the compressive strength of fresh RMC supplied by the Plaintiff. [71] Likewise for the Eco Tropics LOA the relevant terms are as follows:

Clause 6 (l) states that concrete supply shall be inclusive of slump test, preparation of cube and testing (except for independent lab testing).

Clause 5 states that all concrete supply shall comply to the Consultant’s concrete work specification (refer Appendix 1). 31

Appendix 1 as produced in the Design Mix Concrete Test Compliance refers to crushing strength of 7 days and 28 days for G25 and other grades. This refers to cube test.

Clauses 10 & 11 stipulate that concrete shall meet the requirement of BS 8110: 1985. The sampling and testing for supply of RMC is governed by Section Six. [72] The Defendant had at paragraph 9 of the Defence pleaded that the Plaintiff had breached the condition as stated in the EBP1 LOA and Eco Tropics LOA thus the Defendant is not obliged to pay the sum of RM6,468,766.60. Specifically the Defendant pleaded that the Plaintiff had failed to supply and deliver RMC in compliance with :

Appendix 1 to both the EBP1 LOA and Eco Tropics LOA;

requirements and standard of BS 8110 : 1985 and; and

with a minimum strength of 25 N/mm2. [73] Following the sound reasoning in the Global Mix case (supra) based on similar terms and conditions both with reference to the BS 8110:1985, I have no doubt that the only tests required for the Plaintiff to clear in the supply of the RMC are the Slump Tests and the Cube Tests and that whatever may be the results of the Core Tests or Load Test, that is for the Defendant’s further investigation into the strength of the RMC after laying, concreting, curing, compacting and also the necessary steps to be taken with respect to formwork whether it be for use in concrete slabs, columns or walls. These are all outside the Plaintiff’s control and scope of supply and delivery of the RMC. [74] The Plaintiff’s absence during the conduct of the Core Tests by the laboratories does not give rise to any adverse inference for the Plaintiff’s 32 stand was that irrespective of the Core Test results, their contractual commitment was that the RMC supplied must pass the Slump Test and the Cube Test. The RMC supplied as stated did pass the Slump Test and the Cube Test. [75] The Defendant also took umbrage with the Plaintiff dropping the idea of carrying out the Petrographic Test and instead had indicated that they would be looking into a commercial resolution of the dispute. However that did not materialize as parties could not agree and I do not think that any conversation made with a view to resolving disputes should be held against the party seeking an amicable resolution to maintain business relationship and goodwill. [76] PW 1, the General Manager of the Plaintiff, in his testimony [PW1- WS] had testified that the strength of the in situ concrete (reinforce concrete) is highly dependent on in situ conditions, the procedures adopted and the workmanship by the Defendant/contractors during placement of the RMC at all materials times. The Defendant’s witnesses had agreed that workmanship, inclusive of curing and casting of concrete is the responsibility of contractors and is outside of the scope of the Plaintiff. It is a fact that if the Sample Cubes failed the Cube Test, the Plaintiff would be fully responsible for such failure as the preparation of such cubes is that of the Plaintiff. However when the Core Tests (Load Tests) or in situ tests fail to achieve the compressive strength then such failure includes an additional element of workmanship or concreting, compacting and curing works of the contractors, something which is post Cube Testing. [77] DW 8 Dr Kriban, the Defendant’s expert witness, said that from the Core Test conducted on the concrete there is no evidence of excessive 33 voidage in that there are no wide gaps in the solid concrete, hence generally workmanship is good. His view was that curing affects durability of the concrete but not the strength. However that conclusion is not supported by literature on the subject. In fact literature on the subject suggest a close correlation between proper curing and strength of the concrete. [78] An article by the Concrete Countertop Institute under Curing: How Exactly Does It Work? at www.concretecountertopinstitute.com/curing-how-exactly-does-it-work/ pages 1-3/6 explains the process of curing this way: “Adding water to portland cement starts a chemical reaction called hydration. As hydration proceeds over time, the portland cement and water are transformed into beneficial calcium silicate hydrate compounds. These compounds are the glue that hold the aggregates together, creating the hard, solid material we know as concrete. There are other compounds that form during the hydration process, but they are not responsible for strength. Curing is the process of maintaining moisture levels inside cast concrete so that hydration can continue. As long as free moisture and unhydrated cement exist inside the concrete, the strength, hardness and density will gradually increase. Practically speaking, curing is simply the process of keeping the hardened concrete moist so that it can continue to gain strength. When concrete is mixed, all the water needed for full hydration is present in the mix design. Often contractors add more to the concrete than needed for hydration, to make the concrete more workable. This 34 extra water is called water of convenience. This extra water causes the cement particles to be too far apart to knit together into a strong matrix. It results in a longer set time and lower strength.” (emphasis added) [79] The article further stated at pg 4/6 as follows on strength from proper curing of concrete is concerned: “Strength is often the focus, because it’s the obvious property that has to be developed in order for the concrete to be stripped, handled and processed. Concrete that is too weak will crack, chip or be too soft to process with diamond tooling. But insufficient curing can also lead to other problems, such as curling and cracking. If curing stops too soon, the moisture in the concrete can evaporate. If the concrete hasn’t gained enough strength to resist the forces generated during drying, the cement paste can shrink, which leads to cracking and possibly curling.” (emphasis added) [80] In an article published by PCA America’s Cement Manufacturers under ‘Role of Concrete Curing’ by Jerzy Z Zemajtis at www.cement.org/learn/concrete-technology/concrete-construction/curing-in-construction, it was opined that: “Curing plays an important role on strength development and durability of concrete. Properly cured concrete has an adequate amount of moisture for continued hydration and development of strength, volume stability, resistance to freezing and thawing, and abrasion and scaling resistance.” 35 [81] From the Core Test results taken by the Defendant it can also be seen, as analyzed by the Plaintiff that though the Cube Test results were fairly consistent at around 30n/mm2, the Core Tests results ranges from 4.38% to 67.7% of failures. The reasonable inference is that there are different levels of workmanship among the Bangladeshi workers from the different contractors for different parts of the 2 projects. [82] To fault the Plaintiff on account of the Core Tests which RMC is said to have failed would be to hoist onto the Plaintiff the responsibility of workmanship after the concrete had been delivered to site. That is beyond the control of the Plaintiff and to put it crudely but categorically, none of the Plaintiff’s business and for which they certainly cannot be made liable. [83] I would echo the words that fell from the lips of Justice Mary Lim (now JCA) in Global Mix case (supra) as follows: “[81] It is important to note that the Defendant had pleaded that the sum claimed is not due because the Plaintiff is alleged to be in breach of the requirements of the sub contract. It was specifically pleaded that the Plaintiff is in breach because the Ready Mixed Concrete or the concrete that is supplied failed to meet the characteristic strength required under the Specifications. Since such strengths are determined by means of cube tests and slump test, and not load tests, then it is enough if the Plaintiff shows that those tests were met. [82] From the evidence before me, the Plaintiff has in fact proved that it has met the slump and cube tests which in fact, the Defendant does not dispute. These are the only tests relevant to the Plaintiff’s scope of works. In the circumstances, the Court finds 36 that the Plaintiff had supplied and delivered ready mixed concrete of the various grades ordered by the Defendant and that those supplies passed the requisite tests prescribed under the main contract.” (emphasis added). Whether the Plaintiff had fraudulent represented to the Defendant Cube Test results in that these were concocted or manipulated by sending Cubes produced in a controlled environment for testing [84] To begin with there was no direct evidence of this as in no witnesses came forward to say that they saw the fraudulent acts committed. What the Defendant sought to do was to ask this Court to infer fraud or fraudulent misrepresentation from the testimony of their expert witness Dr Kriban that the Cube Test results from their own independent lab testings are too good to be true because of an unusually low SD in the test results. [85] To appreciate the improbability of this allegation an understanding of how the Cube Test is done is important. PW1 had testified that the Sample Cubes would be demoulded the next day after passing the Slump Test and brought to the Plaintiff’s batching plant located at the construction sites to be cured for seven (7) days and twenty eight (28) days. The contractors or the Defendant is fully responsible to collect the Sample Cubes which had been cured for seven (7) days and twenty-eight (28) days from the Plaintiff’s batching plants and to send them to an independent third party lab for Cube Testing which is to be witnessed by the Defendant or their representatives. [86] However, according to the Plaintiff, the Contractors or the Defendant’s representatives had failed to discharge their duties and failed 37 to collect the Cube samples from the Plaintiff’s batching plant and as the timing of such tests are important to ensure its accuracy, the Plaintiff was left to send the Cube Samples to the independent lab for Cube Testing. The Defendant’s version here is that the Plaintiff lacked moulds and the manpower to prepare the Cube sampling and so finally it was left to the Plaintiff to send the Cube samplings to the designated independent labs for testing. [87] However there was not a single letter of protest from the Defendant on this so-called unacceptable mode of handling the Cube Samples for sending to the labs for testing and at any rate, the Defendant had acquiesced to this method. [88] In the absence of cogent evidence of sending controlled samples and not contemporaneous samples for testing, I would not be inclined to infer cheating. Here the testimony of the Civil Engineers from two independent test laboratories i.e Big I Sdn Bhd and Geolab (M) Sdn Bhd in PW 5 and PW 6 are important. PW 5 from Big I Sdn Bhd testified that there was identification on the Sample Cubes received by Big I for Cube Testing namely, the company who supplied the concrete, the contractor, the project, the date of casting and date of testing. [89] The Cube Samples are identified from the stickers plastered on the concrete cube. The condition of the stickers can vary but were generally in good condition. PW5 certified that the Cube Test reports are based on the job sheets despite the testing not been witnessed by a consultant. [90] When put under cross-examination that there was cheating involved, PW5 a Civil Engineer himself, employed by Big I Sdn Bhd scoffed at the suggestion as follows: 38 “I mean, why should they go and cheat, set out to cheat this kind of thing, this one is all happening before. You’ll not know that there is going to have failure kind of thing. I mean normally people will cheat, they know already they are going to fail, something like that, then they set out to do the cheating you know.” (See NOE 25.10.2017 at pg 45). [91] As for PW6 from Geolab, he testified that Geolab is an ISO certified company where the methods of testing are in accordance with their own SOP. The Cube Testing reports were witnessed by 2 persons, one from the RMC supplier and another one is the client who ordered the RMC from. There is no good reason for me to reject the report as a valid report because they are an independent testing body and most of reports are witnessed. [92] I can accept the testimony of PW 5 and PW 6 that though they did not carry out the tests personally but rather relied on the independent laboratories’ technicians to do the tests with an additional competent and accredited person, I am satisfied that PW5 and PW6 had followed their company’s SOP in so certifying. The results tested by these two completely independent laboratories produced not dissimilar results from each other. Just because the Defendant’s representative or consultant were not there to witness the testing because they chose not to, does not invalidate or make the results unreliable. [93] These results were furnished to the Defendant and its consultants with no objections as to its certification or it not having been witnessed. [94] PW2, the site supervisor of the Plaintiff’s batching plant in the EBP1 Project, further testified that the Defendant’s Supervisors were supposed to 39 collect the Cube Test results from the independent laboratories but did not do so and as such, the Cube Tests were collected by the Plaintiff and subsequently forwarded to the Defendant’s contractors and there was no dispute let alone rejection of the said results by the contractors and their consultants. The contractors and the consultant had more than ample opportunity to evaluate the results. This was an entirely transparent process for which if there was anything suspicious with the results, the contractors or their consultants could have reverted to the Plaintiff and queried the Plaintiff. [95] If the results were too good to be true then the Defendant, the contractors and the consultants would have noticed them for SD is not rocket science but a statistical method to show how the results of the Cube Test vary in terms of their range and deviation from the mean. [96] Much had been said about the free water-cement ratio which did not meet the requirement stipulated in that the minimum ratio had been exceeded. As that is not the main plank of the experts’ evidence, I would not want to be bogged down with it other than to say that at the end of the day, irrespective of the water-cement ratio, the sample cured at 28 days must pass the Cube Test. Suffice to say that I am not convinced on the balance of probabilities that the water-cement ratio had not been complied with as even before the Cube Test was proceeded with the cement mix must satisfy the Slump Test. [97] I am satisfied that any errors in the water-cement ratio would be corrected and tuned at the Slump Check Bay. The process of adding water at the slump check bay as final adjustment is a normal batching process as explained by the Plaintiff. The water is added progressively. There is a 40 counter meter at the Slump Check Bay to check that the water-cement ratio is not exceeded. After that, a Slump Test will be carried out on each load of RMC to determine the workability. Only when the Slump Test passes will RMC be discharged at site. Any concern with respect to moisture content of sand is allayed with the measurement by a speedy meter. A similar process is conducted to cater for rainfall in the final adjustment at the Slump Check Bay. [98] The Slump Test from literature in the subject that is freely available is a means of assessing the consistency of fresh concrete. It is used, indirectly, as a means of checking whether the correct amount of water had been added to the mix. The website concrete.org.uk on Slump Test explained it this way: “The steel slump cone is placed on a solid, impermeable, level base and filled with fresh concrete .....The cone is carefully lifted up, leaving a heap of concrete that settles or ‘slumps slightly’. The upturned slump cone is placed on the base to act as a reference, and the difference in level between its top and the top of the concrete is measured and recorded to the nearest 10mm to give the slump of the concrete. When the cone is removed, the slump may take one of three forms. In a true slump the concrete simply subsides, keeping more or less to shape. In a shear slump the top portion of the concrete shears off and slips sideways. In a collapse slump the concrete collapses completely. Only a true slump is of any use in the test....” (emphasis added) 41 [99] Much criticism was also leveled at the auto batching system of the Plaintiff having failed for some 3 months during the process of producing the RMC and so a switch was made to the manual system. As explained by PW1 once the auto batching systems fail, to avoid the stoppage of the production, manual batching will be switched on and it is guided by a batching card. It would therefore not produce inaccurate records. The batching card will have all the details of the design mix, and the quantity of each material required for the different size load. [100] I do not see the manual method as yielding an inaccurate result for if that be the case, then RMC produced before the advent of the auto batching system would be more prone to errors. However buildings have been constructed with RMC for many years now and there is no study produced by the Defendant to show a higher incident of cracks appearing in the concrete structures of buildings prior to the introduction of auto batching. [101] A safe analogy would be the accuracy of manual calculation done as opposed to that done by electronic calculator. Surely one cannot say that the manual method is more prone to error but only that the manual method is slower. [102] PW3 who is the site supervisor of the Plaintiff’s batching plant in EBP1 Project and PW4, the site supervisor in the Eco Tropic Project were cross examined as to the failure of the batching plants systems in which PW3 testified that batching plant systems vary from one company to another, some companies do manual batching but the Plaintiff’s system is automatic batching which would revert to manual batching if there is any problem. 42 [103] As explained by PW 3 the Slump Check Bay is beside or adjacent to the batching plant. The purpose of the Slump Check Bay is for final adjustment of water, so that they water-cement ratio is not exceeded. Water is added at the Slump Check Bay to achieve the final result. [104] This is a case where the Defendant had capitalized on the non-functioning of the auto batching system for a few months to the fullest but I am more than satisfied that whenever an auto batching system was not functioning, it was replaced by a manual batching method which does not prove to be inferior in any way. [105] At any rate in spite of the manual batching method, all the Cube Test Samples taken and tested both when the auto batching system was in operation and when the manual batching system was in operation had passed the Cube Test. [106] Where then is the evidence that the Plaintiff had swapped the cube samples, tampered with, interfered, inter-meddled and/or otherwise manipulated the entire process of the Cube Test? It remains a theory that had not been proved. [107] It would be opportune to consider in greater detail the Defence as pleaded:

The Defendant first pleaded that the Plaintiff ought to supply the RMC in accordance with the terms of the EBP1 LOA and Eco Tropics LOA and in compliance with the specifications as per Appendix 1 and the requirements and standard of BS 8110:1985

The Defendant then pleaded the process of the preparation and delivery of Cube Samples to the Defendant’s Main Contractors 43 who will randomly pick the Sample Cube for purpose of Cube Testing to determine the compressive strength. It is the pleading of the Defendant that the entire conduct of the Cube Tests were at all material times (i) undertaken by the Plaintiff’s representation and (ii) within the sole control and/or influence of the Plaintiff. The Defendant admitted that the packing/preparation of the Sample Cubes were for the most part conducted in the presence of the representatives of both the Eco Tropics and EBP1 Main Contractors save that the Defendant or its representatives were never present during any of these packing / preparation stages.

It was subsequently pleaded that the Sample Cubes which were prepared and randomly picked by the contractors were brought back to the batching plants for curing for 7 days and 28 days before sending to the labs for Cube Testing. The results of the Cube Tests appear to be positive and hence there was no reason for any parties to be suspicious or doubtful about the quality of the RMC.

Cracks were discovered between Feb and April 2016 on several units and thereafter between April and May 2016 Core Tests were conducted. The Defendant also pleaded that in or about May 2016 Pamir had also managed to obtain some Sample Cubes that were being cured in the Plaintiff’s dry batching plant in the construction site of the EBP1 Project for independent cube tests.

From the core tests conducted post the delivery of RMC 44 supplied by the Plaintiff and the independent cube test done, the Defendant discovered that both the tests (i) did not correspond to the results of the cube test conducted by the Plaintiff, (ii) did not conform to the condition or specification under EBP1 LOA and Eco Tropics LOA (iii) not of RMC G25 (iv) not for the purpose for which it was required and or (v) not good and/or merchantable quality. [108] The Defendant then went on to plead the following for which the Defendant had not led any evidence:

the Plaintiff’s employee(s) and/or representative(s) had in preparing the sample cubes for the Cube Tests, overpacked the said sample cubes so as to misrepresent the actual compressive strength of the RMC that were supplied and delivered;

(ii) the Plaintiff’s employee(s) and/or representative(s) had swapped the sample cubes that were prepared on site with concrete cubes that were actually of grade G25 sometime between transporting the said sample cubes back to the Plaintiff’s dry batching plants for curing and sending the purported sample cubes to Geolab for the compressive strength tests; and/or

(iii) the Plaintiff’s employee(s) and/or representatives(s) had tampered with, interfered, inter-meddled and/or otherwise manipulated the entire process of the Cube Tests or any stage thereof including but not limited to the procurement of the results of the Cube Tests from Geolab throughout the period 45 during which the RMC were supplied and delivered of any part thereof. [109] Clearly the Defendant from the language used is saying that the Plaintiff had defrauded them where the Cube Test results are concerned. It must be stated here that the particulars of fraud are woefully lacking and what is pleaded is just broad generalities. [110] Order 18 rule 12 of the Rules of Court 2012 requires that every pleading shall contain the necessary particulars of any claim, defence or other matter pleaded including, without prejudice to the generality of the foregoing words: “particulars of any misrepresentation, fraud, breach of trust, wilful default or undue influence on which the party pleading relies.” [111] The case of Rokiah Bt Suhaili v Emly Batu ak Bagang & Ors [2014] 7 MLJ 452, cited by the Plaintiff illustrates the point. The High Court in dismissing the plaintiff’s Claim ruled that: [11] ... Order 18 r12(2) provides that particulars of fraud or misrepresentation must be given in the pleading. In my view, the three paragraphs directed against the third and fourth defendants are general averments only which are singularly lacking in particulars. The rationale for particulars where fraud is alleged was given in the case of John Wallingford v The Directors of the Mutual Society (1880) 5 AC 685 (folld) where Lord Blackburn said as follows in this passage (cited with approval by Zakaria Yatim J in Malaysia French Bank Bhd v Abdullah Bin Mohd Yusof & Ors [1991] 2 MLJ 475): “I think that when the affidavits are brought forward to raise the defence they must, if I may use the expression, condescend upon particulars, It is not enough to swear, “I say I owe the man 46 nothing”, D doubtless, if it was true, that you owed the man nothing, as you swear, that would be a good defence. But that is not enough. You must satisfy the judge that here is reasonable ground of saying so. So again, if you swear that there was fraud, that will not do. It is difficult to define it, but you must give such an extent of definite facts pointing to the fraud as to satisfy the judge that those are facts which make it reasonable that you should be allowed to raise that defence. And in like manner as to illegally, and every other defence that might be mentioned. [12] The above passage also found its way into Mallal’s Supreme Court Practice, where it is stated (at pp204-205) of the 4th Ed that: Particulars of fraud must be pleaded, A general allegation of fraud, however strong the words used, where there is no statement of circumstances relied on as constituting the alleged fraud, is insufficient even to amount to an averment of fraud of which any court ought to take notice John Wallingford v The Directors of the Mutual Society and the Official Liquidator thereof (1879-80) 5 App Case 685 at pp 697, 701 and 709.” [112] The words used by DW1 in his witness statement DW1-WS that “the Plaintiff could have easily swapped the same cubes” is different from what was pleaded in that “the Plaintiff’s employee had swapped the sample cubes”. It is a mere conjecture or speculation though DW 1 refused to agree to that. [113] I am conscious of the fact that the standard of proof for fraud in civil cases is now on a balance of probabilities as decided in the Federal Court 47 case of Sinnaiyah & Sons Bhd v Damai Setia Sdn Bhd [2015] 5 MLJ 1. Be that as it may, the Defendant had failed to adduce any cogent evidence to prove that the Plaintiff has swapped the Cube Samples or tampered with or otherwise manipulated the entire process of Cube Testing, as required under Section 101 of the Evidence Act 1950. [114] It is too far-fetched for the Defendant to suggest that the Cube Samples had been swapped with those that had been prepared under controlled environment. It is a case where the Defendant had pitched themselves to the high standard of proving that the Plaintiff had started off to cheat the Defendant. However the modus operandi suggested by the Defendant does not make sense. It is not a case where cracks could be traceable to every batch of the RMC that had been supplied but only to the later batches. [115] The Sample Cubes once cured to 7 or 28 days as the case may be, are immediately taken to the lab for testing. How would the Plaintiff know from visual examination which Cube Samples to choose? Mind you these are not Cube Samples that could be pre-tested because the moment the test is conducted by application of increasing pressure to the Cube Samples, the Cubes would have been crushed after the Test is completed. How would the Plaintiff from visual examination be able to separate the ones that are likely to meet the Test from the ones likely to fail the Test? [116] Neither does it make sense for the Plaintiff to dent their own reputation by producing Sample Cubes in a controlled environment and then keeping them for a period of time even longer than 28 days and then sending them for testing when a controlled environment would require much more cunning skill than a normal environment and to what purpose 48 when the expertise if available could be easily and naturally employed RMC with the proper Grade G25?! [117] It cannot be over-emphasized that the Core Test/Windsor Probe Test or other in situ tests were conducted on the completed structures and the Plaintiff had no control over the other environmental factors such as the in situ site conditions, procedures, workmanship and all other related concreting works during the placement of the RMC by the workers of the contractors. The contemporaneous evidence, and more candid as a result, from the consultants not unfamiliar with such failures in RMC, was that they had written to support the Plaintiff’s contention that the contractor’s workmanship could be an issue. Some of them are listed as follows:

Consultant Jurutera JKR Sdn Bhd in a report (undated pg 118- 119 Bundle C9) pertaining to the 84 commercial units constructed by Hwa Hin had indicated there are presence of popouts ranging from 2mm to 10mm observed on test specimen and the test locations where core specimens were extracted. Muds and yellowish color also found on core specimens extracted from pilecon structure. Carbonation depth reports generally indicate poor concrete durability extracted found on in situ concrete.

Letter from Jurutera JKR to Hwa Hin dated 22.4.2016 whereby the consultant wrote that they shall not accept any structure concretes works completed not according to contract specification and Design requirements.

Letter from Jurutera JKR Hwa Hin on the poor concreting works

Letter from Consultant KH Goh & Associates to Kalsari Jaya 49 Sdn Bhd dated 10.5.2016 whereby the consultant believed the cracks has to be related to the workmanship of the contractor workers.

Letter from KH Goh & Associates to Kalsari Jaya Sdn Bhd dated 18.7.2016 whereby the consultant believed the workmanship of the contract may have contributed to the overall quality of the Concrete.

Letter from KH Goh & Associates to Siacon Technology Sdn Bhd dated 10.5.2016 [Page 18 Bundle C 18] whereby the consultant informed the contractor that the cause of the cracks have to be related to workmanship of the workers.

Core tests results conducted by other RMC Supplier i.e Megamix also indicated that 50% of the core test failed.

Letter from Jurutera JKR to Hwa Hin dated 23.8.2016 posing issue on concreting works.

Even for core tests conducted by the Defendant as shown in Dr Kribanandan’s Expert Affidavit No.1, Vol 3 [Enclosure 53], the results show that cores taken from other concrete suppliers such as Buildcon Concrete and MegaMix Concrete also failed the Core Tests. [118] All that the Core Test results show is that the RMC had not met the required strength but it does not mean that the quality of RMC supplied by the Plaintiff is below the compressive strength of Grade G25. The fact that all the Cube Samples taken had shown that the compressive strength had been met must mean that there are other factors such as the concreting, compacting, curing, leveling and workmanship which could have caused 50 the failure of the Core Test. The element of causation has not been established as coming from the failure of the RMC to meet the compressive strength for there had been human intervention in the different processes carried out with respect to the laying, concreting, curing, vibration of the RMC, the formwork used, the external factors like moisture, rain and temperature all of which combined to take the matters out of the hands of the RMC Supplier and all of which bore the finger prints and thumb prints of the contractors and their workers. [119] Fortunately for me, my learned predecessors had grappled with this self-same issue before me and their incisive analysis had made my job a tad easier, always conscious of course that no two cases are exactly the same. [120] In Schaeffer v Can-Am Ready Mixed Concrete Ltd (2001) SJ No. 259 cited by Mary Lim J (now JCA) in Global Mix (supra) at paragraph 86 it was observed as follows: “[86] .....the claim was dismissed because it was not established that the handling of the concrete by the contractor influenced the ultimate strength of the concrete. The Court found that the mixing of concrete materials in appropriate proportions was only one though very important factor in a combination of factors ultimately contributing to the strength of the concrete. There was several variables all potentially impacting upon the ultimate strength of the concrete. The Court could not single out blame.” (emphasis added). [121] In MSE Concrete Sdn Bhd v Noble Energy Construction Sdn Bhd [2012] LNS 1058, Nallini Pathmanathan J (now FCJ) considered the evidence that an important component determining the strength of the 51 concrete was the mode of compacting and curing. The process of compacting could therefore affect the strength and thereby the grade of the concrete. The Learned Judge took into consideration that DW2’s evidence in that respect was consistent with that of PW 1. DW2, when asked why the test report of the Cube Test was not consistent with that of the CETU test on the hardened concrete, explained that this could also be due to the contribution of other factors such as the consolidating or compacting of the concrete procedure not being followed properly. [122] The Court there in fact considered that there was no evidence before the Court as to why or what precisely had caused the hairline cracks and deterioration in the concrete that the Defendant complained of. The Court further observed as follows: a. In the absence of such evidence it is not possible to conclude with any degree of certainty that the cracks and faults in the construction were caused by the alleged deficient quality of the ready mixed concrete supplied by the Plaintiff. In fact the evidence of PW-1 and DW-2 as referred to above suggested that the deterioration or faults could have arisen from the techniques employed in the hardening and compacting process. Failures in these processes could, they testified result in the concrete not reaching the desired grade contracted for; b. In summary therefore, it could not be concluded definitively on a balance of probabilities that the faults and defects in the construction were due to the supply of ready mixed concrete which was below the quality contracted to be supplied. c. In Maxking Concrete Co Ltd v China Civil-Road & Bridge 52 Joint Venture [2007] HKCU 785, the Court had to deal with the question of whether the concrete supplied was of the requisite quality and to establish the cause of reason for the defects in the core piles used in a reclamation and drainage contract, the Court found it important and relevant to examine how the concrete was handled. At para 54 it is stated thus: [54] The fact that honeycombs and voids existed in some of the cores does not necessarily mean that the concrete supplied by Ken On was defective. After delivery to the site, the concrete was handled by various people such as staff and employees of the JV’s contractors. The manner and workmanship of placing the concrete could just as well have caused the defects found in the cores. And having looked at the relevant evidence, the Court concluded: [69] I conclude, therefore that the JV had failed to prove on a balance of probabilities that the concrete supplied by Ken On was defective or that the problems encountered by it were caused by any problems in the concrete supplied by Ken On. [123] Whilst DW 8 Dr Kriban had stated at page 40 of his Expert Report [Enclosure 77] that during the walk through he found that the general level of workmanship associated with construction was considered good, he had not carried out any full investigation and evaluation of the supply records, reports and observation on site during the placement of the RMC by the Defendant’s contractors which, I agree with the Plaintiff, would have been a 53 more accurate assessment of the workmanship of the workers. DW8 had agreed that he was not on site during the construction. Both the experts had agreed that the handling of the concrete by the contractor including pouring, placing, curing, compacting and vibrating can influence the ultimate strength of the concrete. A walk through of the construction site post concrete cracks without any forensic investigation is inadequate for the Defendant to establish that the cracks were caused by the Plaintiff supplying RMC not complying with the required characteristic strength and to correspondingly rule out the workmanship of the contractors consisting mainly of Bangladeshi workers, was not the cause of the cracks appearing in the concrete. [124] In fact without the concrete placement records before the Court, the Defendant’s contention of generally good workmanship in laying, concreting and curing the RMC remained pure conjecture. This is more so when considering section 106 Evidence Act 1950 which reads: “When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.” [125] The knowledge of the quality of workmanship in the laying, concreting, curing and leveling of the RMC is especially within the knowledge of the Defendant and they must produce the concrete placement records to satisfy the Court that their workmanship was not a problem leading to the cracks in the concrete structure. [126] As submitted by the Plaintiff In Maxking Concrete Co Ltd (supra), the Court was able to analyze the workmanship of the contractors by looking at the analysis of Concrete Placement Records and came to a conclusion that the analysis of the samples of piles showed a significant 54 correlation between lack of/insufficient tremie immersion and the existence of imperfections and/or defects in the concrete cores. [127] There is overall no evidence whatsoever pointing towards the Plaintiff manipulating and tampering with the Cube Test results or fabricating and faking the results or fraudulently misrepresenting the results to the Defendant. Whether a low Standard Deviation in the Cube Test would justify a reasonable inference of manipulating and tampering with the Cube Test results or fabricating and faking the results [128] It was the evidence of DW8 Dr Kriban, the Defendant’s expert witness that stated in his report in Enclosure 77 the SD for the Cube Test results ranging from 0.6 to 2 MPa is too good to be true. [129] However such an important matter as this which would in effect be saying that the Cube Test is at best unreliable and at worst, fabricated and a fraudulent misrepresent to the Defendant, must be pleaded with sufficient degree of particularity. [130] Under O18 r 7 (1) of the ROC 2012 it is provided that :

Subject to the provisions of this rule and rules 10, 11 and 12, every pleading shall contain, and contain only, a statement in a summary form of the material facts on which the party pleading relies for his claim or defence, as the case may be, but not the evidence by which those facts are to be proved, and the statement shall be as brief as the nature of the case admits. [131] The Federal Court in Samuel Naik Siang Ting v Public Bank Bhd [2015] 6 MLJ 1 speaking through Ramly Ali FCJ observed that: 55 “[29] It is a cardinal rule in civil litigation that parties are bound by their pleadings and are not allowed to adduce facts and issues which they have not pleaded (see State Government of Perak v Muniandy [1986] 1 MLJ 490; and Anuat Bin Mat Amin v Abdullah Bin Zain [1989] 3 MLJ 313. In Blay v Pollard & Morris [1930] 1KB 628 Scrutton LJ ruled that ‘Cases must be decided on the issues on the record; and if it is desired to raise other issues there must be pleaded on the record by amendment’. [30] The Supreme Court in Lee Ah Chor v Southern Bank Bhd [1991] 1MLJ 428 had also emphasized the importance of pleadings and ruled that when a vital issue was not raised in the pleadings it could not be allowed to be argued and to succeed on appeal [see also Ambank (M) Bhd (formerly known as Arab-Malaysia Bank Bhd) v Luqman Kamil Bin Mohd Don [2012] 3 MLJ 1 (FC) [31] On the same issue, HRH Raja Azlan Shah FJ (as HRH then was) in The Chartered Bank v Yong Chan [1974] 1MLJ 157, had also pointed out that as ‘the trial judge had decided on an issue which was not raised in the pleadings, the judgment must be set aside and new trial ordered’ (see also Haji Mohamed Dom v Sakiman [1956] 1 MLJ 45; and Kiaw Aik Hang Co Ltd v Tan Tien Choy [1964] 1 MLJ 99] [132] In Ambank (M) Bhd (formerly known as Arab-Malaysia Bank Bhd) v Luqman Kamil Bin Mohd Don [2012] 3 MLJ 1, the Federal Court again emphasized the importance of pleading. In dismissing the appeal of the Plaintiff the Federal Court found that “Since the contingent liability of the defendant and the material facts, which were vital to support it, were not 56 pleaded by the plaintiff in its statement of claim, the Plaintiff could not allowed to argue these points and obtain judgment on them. (see paras 19- 21 & 28).” [133] Having not raised this material allegation of facts in their Defence, the Plaintiff was obviously not required to raise this in their Reply to the Defence. [134] There is therefore merit in the Plaintiff’s submission that the Defendant cannot be heard to argue that the Cube Test previously conducted by the Plaintiff is not possible to achieve the consistently low SD and hence this evidence of a low SD cannot be admitted as evidence to support the Cube Test results had been tampered with. [135] Even assuming for a moment that this evidence of low SD can be admitted as evidence, this Court cannot rule out the fact that, in the absence of evidence of tampering, interference or manipulation with the test results, the low SD is still achievable if proper quality control is there in the batching of the various ingredients of soil and moisture, aggregates, cement and water. [136] Dr Kriban had produced an article from a Concrete Magazine in UK marked “D2” to support his view. However the article was based on 1970 data stated as follows: “On the basis of 1970 data they observe that SD less than 2 MPa or more than 8.5 MPa were rare, and that 60% of the time the value was between 4 and 6 MPa”. (emphasis added) [137] Clearly these observation were made before the widespread incorporation of statistically-based factory production control system for 57 ready-mixed concrete and among British Ready Mixed Concrete Association. [138] Like all industries that had moved in tandem with advancement in automation and computerization one cannot rely on 1970 data with a different environment and climate condition to generate something for application in 2017. As pointed out even if the computerization system had broken down at one stage, that does not mean that quality cannot be had from manual batching. Otherwise concrete slabs, columns and walls before the advent of computerization would be suspect compared to the ones produced after computerization. [139] DW8 himself admitted that there were no articles in the Malaysia context to review the SD and to study its impact on the concrete cube strength in Malaysia. [140] Surely if SD is the approved practice for Cube Test of this nature, the independent laboratories would have used that to verify if the Cube Test results were reliable. SD is also not part of the terms or conditions for compliance in the EBP1 LOA and Eco Tropics LOA and certainly not part of the BS 8110 : Part 2 :1985. [141] The Court should be slow to make an inference of fraud in Cube Test results in the absence of cogent evidence other than by way of inference, unless the inference to be made is the only reasonable and logical one. Here a low SD is consistent with a good quality control of production such that the Sample Test Cubes are of quite consistent strength one with the other. [142] There is also another danger of making the inference of fraud in the results and it is that one must believe that by just mere physical inspection 58 with the naked eye, one is able to pick up Sample Cubes for testing which would invariably have a consistently good result where test strength is concerned and that these results would have a low SD. [143] To determine the strength of a particular concrete, one will first have to get it crushed and tested and I would agree with the Plaintiff that it is inherently impossible for the Plaintiff to have pre-made or swapped the Cube Samples with such degree of consistency and low SD. That even Dr Kriban himself had to confess is “a hell of a lot of effort!” under cross-examination. [144] There would also be a need to conspire with the Engineers from the test laboratories but that was not what was pleaded by the Defendant and indeed it does not make sense because these laboratories were selected by the Defendant themselves and paid by them. [145] There was also the suggestion that the testers from the 2 laboratories nominated by the Defendant had been paid by the Plaintiff to compromise and cheat on the Cube Test results. This is not pleaded by the Defendant and at any rate, the 2 laboratories were the ones who subsequently did the Core Test for the Defendant. Again this is pure conjecture and speculation and there is no evidence produced of any police reports being lodged. [146] The probabilities of the inferences must be tested especially when there is more than one inference possible, some favorable to the Plaintiff and others not. In the absence of cogent evidence our Courts are slow to make inference. [147] Our Supreme Court in Sundram v Arujunan & Anor [1994] 3 MLJ 361 at pages 370-371 had considered the situation where inference may be applied: 59 “When, as here there is no direct testimony as to how a collision had occurred and the plaintiff is left with no alternative but to rely on inferences, the general guidance given by Lord Loreburn in Owners of Swansea Vale v Rice [1912] AC 237 [at p 239] is worth bearing in mind: What you want is to weigh probabilities, if there be proof of facts sufficient to enable you to have some foothold or ground for comparing and balancing probabilities as their respective value, the one against the other. In Jones v Great Western Railway (1930) 144 LT 194 at p 202, Lord Macmillan explained the meaning of an inference and its effect in law, thus “An inference in the legal sense is a deduction from the evidence, and if it is a reasonable deduction it may have the validity of proof” The question therefore arises, what is a reasonable inference? The answer to this question is provided by Lord Wright in Caswell v Powell Duffryn Associates Collieries Ltd [1940] AC 152 at pp 169- 179: “Inference must be carefully distinguished from conjecture or speculation. There can be no inference unless there are objective facts from which to infer the other facts which it is sought to establish. In some cases the other facts can be inferred with as much practical certainty as if they had actually been observed. In other cases the inference does not go beyond reasonable probability. But if there are no positive proved facts from which the inference can be made, the method 60 of inference fails and what is left is mere speculation or conjecture.” In the present case, we are of the view that in the words of Lord Wright in Coswell’s case -- there were no objective facts from which it could be inferred, as a matter of reasonable probability, that the plaintiff had sustained the head injury as a result of falling to the ground following the prior collision with the other motor cycle. We accept, however that upon the evidence, it was possible that he had sustained the head injury in that way. It was equally possible that he had not (emphasis added). So there was insufficient evidence to connect the head injury with the other motor cycle. In this context, we are reminded of the words of Suffian FJ (as he then was) in Guan Soon Tin Mining Co v Wong Fook Kum [1969] 1 MLJ 99 at p 103 col 2E-F. There was no positive proof, as there was in the Granby case [1923] 87 JP 105; 21 LGR 329 that the discharge from the defendant’s mine had anything to do with the death of the fish; there was only a possibility. (Emphasis supplied) With respect, it would, therefore, be a pure conjecture or a mere guess, to say that the plaintiff’s head injury had been caused as a result of his falling to the ground following the prior collision with the other motor cycle. And, it is axiomatic that the court is not entitled to guess.” (emphasis added). [148] The Plaintiff’s Expert Witness in Dr Tan Kuang Leong, PW7, had at paragraph 3.0 of his Report, Enclosure 83 given his opinion on the low SD. He had stated that to achieve an excellent SD i.e less then 2.8, it requires a 61 good quality control system involving the quantity of raw materials, efficiency of plant production and testing accuracy. He opined that although it exceptionally happened in construction, it is practically possible with the quality control system in place. [149] He had noted the various factors which probably contributes to low SD listed down from 3(a) to (e) among others include: a) In the concrete production, the concrete batching is mainly at low grade @G25; b) Concrete produced in daily production is mostly single grade @G25N; c) Raw materials used such as cement, aggregate, sand and admixture in production are solely from single source suppliers; d) Strategic logistic. The short distance from plant to site location is within 2km. In terms of time, it takes approximately 10 to 15 minutes. e) Low variance of raw materials is particularly the main ingredient such as weightage of cement is within about 1.5% in according to computerised batching system @ Auto Batch System. The relevant batching record is presented in Appendix F. [150] The Defendant had leveled criticism at Dr Tan’s explanation by stating that he had only analyzed the batching record from the EBP1 Project and not from the Eco Tropics Project. I do not think that would materially affect his postulations above. The Defendant also sought to debunk his theory that as only a single grade G25 RMC was supplied it was easier to achieve consistency. The Defendant states that there were actually 7 grades of concrete supplied but then again parties had agreed 62 that the main bulk of the RMC was Grade G25 and not the other grades that did not give problems. [151] There was also much ado about the excessive water added to the concrete mix but these had been overtaken by the Slump Test which measures workability. If there is too much water the RMC would have failed the Slump Test and would have been rejected at the Slump Bay and the problem nipped in the bud. [152] To summarize, to accept Dr Kriban’s allegation that the low SD could only be achieved in a closed and controlled production environment of which the Plaintiff’s batching Plant is not, would require this Court to believe that there must be a way of discerning with the naked eye by mere visual inspection which Sample Cubes for testing would yield consistently excellent compressive strength results and that is virtually impossible for no one can see into the Cube Samples to know their strength before testing, much less the consistency of their strength with one another. [153] It would alternatively require the Plaintiff to get the lab technicians to conspire to produce fabricated results but these engineers from the 2 test laboratories had come to testify and they had rejected any sinister suggestion of results tampering and manipulation. [154] Weighing all that against the reasonable explanation of the Plaintiff’s Expert as to why there is here a low SD, I must dismiss Dr Kriban’s suggestion of fabrication and fraud as a mere speculation devoid of any merits altogether. [155] It must not be forgotten that SD is just a statistical tool to show how a set of results differ from one another in terms of the mean results. 63 [156] It has been explained this way: Standard deviation is a number used to tell how measurements for a group are spread out from the average (mean), or expected value. A low standard deviation means that most of the numbers are very close to the average. A high standard deviation means that the numbers are spread out. (Source: Simple English Wikipedia) [157] To get an idea of the spread of a group of numbers, the standard deviation and the mean absolute deviation are both probably useful. ... The best reason for choosing the standard deviation is that its value is simply related to the very important concept, variance. Standard deviation is the square root of variance. (Source: https://www.quora.com). [158] I also find this explanation useful: Statistical quality control is important because it uses statistical methods to monitor the quality of a product. This type of auditing maximizes manufacturing productivity and minimizes errors associated with human judgement. Statistical quality control relies on statistics and data reports to assess quality and is therefore an efficient means to evaluate a manufactured product. Statistical quality control helps maintain the consistency of how a product is made. Statistical quality control methods can include cause-and-effect analysis, check/tally sheets, histograms, Pareto and scatter analyses, data stratification, defect maps, events logs, progress centers and randomization. Graphical charts and graphs, the part of statistical process control that monitors the manufacturing process, help decipher the statistics and data from quality control reports. One important method of statistical quality 64 control is acceptance sampling. In acceptance sampling, a sample of a product is randomly taken to determine whether or not to continue making the product. If the percentage of "good" or acceptable product is higher than "bad" or defective product in the sample, the product is approved as is and manufacturing continues. If not, the product is rejected and production stops. Any evaluation process that involves samples and human judgement usually assumes a margin of error. With statistical quality control, human error is reduced. (Source: reference.com). [159] There is thus no magic in SD and certainly not a forensic tool to detect fake or fabricated results unless the sampling is fake. [160] I agree with the Plaintiff that there was no iota of evidence from the Defendant or DW8 that the concrete was produced in a closed totally controlled environment. This is not a case where the Plaintiff knew that their Cube Test would fail, and so the Plaintiff ventured to produce RMC in a totally controlled environment as suggested by DW8. One cannot help but wonder why would the Plaintiff go through “a hell of a lot of effort” to pre-produce RMC just to satisfy the Cube Tests, and then subsequently in a deliberate act supply RMC of an inferior quality to the Defendant, knowing full well that the inferior quality of RMC will be found out eventually. It simply does not add up! To seriously suggest that would be to enter the realm of incredulity where suspicion and conjecture become the order of the day! Cogent evidence substantiating one’s proposition is thrown overboard. 65 Pronouncement [161] I had therefore allowed the Plaintiff’s claim of RM6,468,766.60 with interest at 5% per annum from date of statement of claim to realization. [162] As agreed the claim in the 2017 Suit where Eco Tropics Development Sdn Bhd and Eco Business Park 1 Development Sdn Bhd and 5 other Contractors are the Plaintiffs against PA Konkrit as the Defendant would stand dismissed in the light of the above decision. [163] Where costs is concerned, a single costs in the 2016 Suit would be sufficient and after hearing the parties, the Court granted the successful Plaintiff costs of RM200,000.00. [164] Allocator to be paid before extraction of judgment of the Court. Dated: 25 January 2019. - signed - LEE SWEE SENG Judge Construction Court High Court of Malaya Kuala Lumpur 66 For the Plaintiff in : WA-22C-58-09/2016 : Low Eu Thuan and Jeremy Low Jian Min and Defendant in : (Messrs Cheong Wai Meng & Van Buerle) WA-22C-47-03/2017 : For the Defendant in : WA-22C-58-09/2016 : Wong Guo Bin and Tan Shu Ying and Plaintiff in : (Messrs Izral Partnership) WA-22C-47-03/2017 : Date of Decision: 17 August 2018.