Abdul Aziz Bin Husain v (1) Arkitek Seniformasi Sdn. Bhd. (Q-02(NCVC)(W)-1363-06/2018)

(a) Did the Defendant appoint 2nd, 3rd, 4th Plaintiffs as its consultants for the ICATS project;

(b) The scope of the consultancy services to be provided;

(c) Whether the consultancy services to be perform were subject to budget constraints, approval of change of title conditions and procurement procedures;

(d) Was there any breach by the Plaintiffs in providing the consultancy services; and

(e) Whether the Plaintiffs were entitled to the fees charged. [12] Regarding the first issue, the Defendant submitted that 2nd, 3rd and 4th Plaintiffs were not appointed by them as the consultants. Instead, they were appointed by the 1st Plaintiff as their sub-consultants. The Court referred to the LOE that made no mention of who would appoint the 2nd, 3rd and 4th Plaintiffs to be part of the project. The learned judge made a finding of fact that the 2nd, 3rd and 4th Plaintiffs were appointed as a team for the project by the Defendant to provide the consultancy services to the Defendant. The LOE did not state that the 2nd, 3rd and 4th Plaintiffs were the sub-consultants of the 1st Plaintiff and to be appointed by the 1st Plaintiff as its sub-consultants. Rayuan Sivil No: Q-02(NCVC)(W)-1363-06/2018 7 [13] The learned trial judge as well made a further finding of fact that the 2nd, 3rd and 4th Plaintiffs had attended meetings, prepared design drawings and specifications, prepared the cost estimates and had corresponded with the relevant authorities in respect of their scope of works on behalf of the Defendant. Hence, based on the evidence, the Defendant had in fact appointed the 1st Plaintiff as its lead consultant and the 2nd, 3rd and 4th Plaintiffs as its consultants for the ICATS project. [14] The learned trial judge then went on to consider the second and the third issues together as they were interrelated. The second issue on the scope of the consultancy services to be provided and the third issue on whether the consultancy services to be performed were subject to the budget constraints, approval of change of title conditions and procurement procedures. The Defendant contended that the Plaintiffs were in breach of its duty by proceeding and continuing to carry out the works without first obtaining approval from the Lands and Surveys Department on the change of land status, failing to obtain approval from the State Planning Authority from the Defendant to proceed with the works. The Defendant alleged that the Plaintiffs had jumped the gun and therefore not entitled to the fees. [15] Learned trial judge however commented that if the allegations by the Defendant were true, why then the Defendant did not claim for damages for the alleged breaches on the ground of breach of duty of care. Instead, the Defendant just counter-claimed against the 1st Plaintiff for an indemnity in the event they were held liable in respect of the 2nd, 3rd and 4th Plaintiffs’ claim. Rayuan Sivil No: Q-02(NCVC)(W)-1363-06/2018 8 [16] Learned trial judge after referring to the LOE, held that it did not set out that the Plaintiffs were responsible to apply and obtain those approvals before they could commence works or the relevant phase of works. Apart from the LOE, the parties also did not produce or exhibit any other letter or document setting out the terms, conditions or instructions on when the works were to be commenced or done. These instructions if any were given and agreed to during the meeting attended by the Defendant and Plaintiffs. The Defendant did not plead that they relied on these verbal instructions. No minutes of the meetings or any correspondence to confirm any such instructions. The Defendant did not provide any evidence that the Plaintiffs had contravened or breached such instructions, if any, given to the Plaintiffs. Based on that, learned trial judge found that the consultancy services to be provided by the Plaintiffs were not subjected to budget constraint, approval of change to the land title condition and/or procurement procedure as contended by the Defendant. [17] On the issue of whether there was any breach by the Plaintiffs in providing the consultancy services, the learned trial judge finding was in the negative. The learned trial judge’s reason was that although the sale and purchase agreement between Housing Development Corporation (HDC) and PPKS Ilmu Sdn Bhd was signed, it was rescinded via a Deed of Mutual Rescission and Release dated 25.11.2014 and that the ICATS project on the land did not materialise. Based on the evidence, learned trial judge held that the Plaintiffs did not breach the terms and conditions of the LOE or any breach of duty as contended by the Defendant. The Plaintiffs had instead provided the consultancy services to the Defendant and had rightly submitted their bills for their respective works done. Rayuan Sivil No: Q-02(NCVC)(W)-1363-06/2018 9 [18] On the final issue as to whether the Plaintiffs were entitled to the fees charged, learned trial charge was of the view that since the bills had been submitted to the Defendant for payment and the Defendant did not challenge the bills as being unreasonable or wrong, the Court found that the Plaintiffs had proved their case against the Defendant. The learned trial judge allowed the Plaintiffs’ claim for the sum of RM1,904,346.98 with interest at the rate of 4% per annum from 18.1.2017 until full realisation. Learned trial judge however rejected Plaintiffs claim for the penalty on late payment of 5% per annum as it was not provided for in the LOE. Learned trial judge allowed cost of RM30,000 to the Plaintiffs jointly subject to payment of an allocatur fees. Our Decision [19] Although the Memorandum of Appeal contains several grounds of appeal, before us, learned counsel for the Defendant canvassed the following five (5) grounds only:

(a) Fundamental terms and/or mandatory requirement for approval from appropriate authorities and the Defendant;

(b) Appointment of 2nd, 3rd and 4th Plaintiffs as sub-consultant by the 1st Plaintiff;

(c) Plaintiffs as a team of professional consultant owed duty of care and contractual obligations towards the Defendant;

(d) No final and approved probable construction cost for the whole project; and Rayuan Sivil No: Q-02(NCVC)(W)-1363-06/2018 10

(e) 1st Plaintiff was in clear breach. [20] Regarding the first issue, learned counsel for the Defendant cited clause 1.1.1 and clause 1.1.2 of the LOE on requirement to get approval from appropriate authorities and the Defendant before any work on the design development phase to be commenced or developed by the consultants. Under clause 3.3 of the LOE, the first Plaintiff as lead consultant must obtain authority from the Defendant before starting any phase of the services. Counsel for the Defendant submitted that the Defendant’s Chairman (DW4) at the preliminary meeting had instructed the Plaintiffs not to start any work until the land was transferred to the Defendant and the status of the land changed from residential to commercial use for construction of the proposed campus. Instead, the Plaintiffs proceeded to carry out the works until tender documents stage. Learned counsel submitted that the Plaintiffs were in breach of the fundamental terms and the express instruction of the Defendant’s Chairman. [21] On the second issue, learned counsel for the Defendant submitted that was responsible to appoint the 2nd, 3rd and 4th Plaintiffs as sub-consultants of the project. The evidence by PW4 was clear on this. The instructions for the 2nd, 3rd and 4th Plaintiffs to commence work came from the 1st Plaintiff. Therefore, if the defendant were to be held liable to the 2nd, 3rd and 4th Plaintiffs, the 1st Plaintiff should indemnity the Defendant for this. [22] On the third issue, learned counsel submitted that the Plaintiffs as a team of professional consultants owed a duty of care and contractual obligations to the Defendant. Action of the Plaintiffs in proceeding with the Rayuan Sivil No: Q-02(NCVC)(W)-1363-06/2018 11 works was a blatant disregard for the terms and conditions of the LOE and the specific instruction from the Chairman of the Defendant. As they were in breach of the fundamental terms of the LOE and was negligent in discharging their professional duties and skill expected of the profession, the Plaintiffs were not entitled to get their payments. Learned counsel relied on Swamy v. Matthews & Anor [1968] 1 MLJ 138. [23] On the fourth issue regarding no final and approved construction cost for the project, the proposed project did not kick-off and was abandoned. The invoices by the Plaintiffs were merely based on the preliminary estimates of RM89,417,474.00 which was a wrong estimate which should be around RM30 million. Therefore, learned counsel submitted that if at all the Plaintiffs were entitled to certain portion of the fees (which is denied), it should only be allowed a nominal sum of around 7% which comes to about RM79,800.00 only. [24] On the final issue, learned counsel submitted that the Plaintiffs was in clear breach therefore they are not entitle to any sum. Their claims should be dismissed and the Defendant’s counter claim be allowed with costs. [25] The principle of law in an appeal is well settled. In China Airlines Ltd v. Maltran Air Corp. Sdn Bhd & Another Appeal [1996] 3 CLJ 163 where the Federal Court at page 175 said: “In the light of the above findings of the learned Judge, a fundamental question of principle arises, which is, whether in the circumstances of the case, this Court can interfere with the findings of fact of the Court below. It is a settled principle of law that in an appeal, where facts have to be Rayuan Sivil No: Q-02(NCVC)(W)-1363-06/2018 12 reviewed, it is undesirable that the findings of the Court below should be disturbed by a Court of appeal unless it appears that those findings are clearly wrong, and more especially that it is undesirable to do so where the conclusions reached must to a large extent depend on the credibility of the witnesses and the impression formed by a Court which has seen them and can Judge their honesty and accuracy (Crofter Harris Tweed Co. v. Veitch) [1942] 1 All ERE 142 HL per Lord Porter at p. 167. However, the authority for the above proposition is the speech of Lord Thankerton in Watt or Thomas v. Thomas [1947] AC 484, particularly the following passage (at p. 487-8): I. Where a question of fact has been tried by Judge without a jury, and there is no question of misdirection of himself by the Judge, an appellate Court which is disposed to come to a different conclusion on the printed evidence, should not do so unless it is satisfied that any advantage enjoyed by the trial Judge by reason of having seen and heard the witnesses, could not be sufficient to explain or justify the trial Judge’s conclusion; II. The appellate Court may take the view that, without having seen or heard the witnesses, it is not in a position to come to any satisfactory conclusion on the printed evidence; III. The appellate Court, either because the reasons given by the trial Judge are not satisfactory, or because it unmistakably so appears from the evidence, may be satisfied that he has not taken proper advantage of his having seen and heard the witnesses, and the matter will then become at large for the appellate Court. On the other hand, there is a clear authority also from the House of Lords and followed by the Privy Council, which says that a distinction can be drawn between finding of a specific fact which depends upon the credibility of witnesses and finding of fact which depends upon inferences Rayuan Sivil No: Q-02(NCVC)(W)-1363-06/2018 13 drawn from other facts. In the latter case, an appellate Court will more readily interfere with the trial Judge’s findings of fact and form an independent opinion than in the case of the former.” [26] This Court through the judgement of Abdul Wahab Patail JCA in Perembun (M) Sdn Bhd v. Conlay Construction Sdn Bhd [2012] 1 LNS 1416 had explained the principle at great length merits reproduction as follows: “[4] Both parties began their submissions with the clear understanding that an appellate court will be slow to interfere with the findings of facts and judicial appreciation of the facts in the trial judge. They cited this court in SivalingamPeriasamy v. Periasamy & Anor [1996] 4 CLJ 545; [1995] 3 MLJ 395 CA; [1996] 4 CLJ 545 CA. This general principle was adopted by this court in Lee Ing Chin & Ors. V. Gan Yook Chin & Anor [2003] 2 CLJ 19 and other cases. It is clear it is a general principle and that there are exceptions when appellate intervention is necessary to ensure justice is done. In the cases regularly cited, the terms “intervene” and “interfere” are used interchangeably. A more precise use of terminology would remove much unnecessary confusion and argument. It is more precise to say that an appellate court will intervene to correct an injustice when it is shown to have occurred in the trial court, but it would be an interference otherwise. [5] The following from the dissenting speech of Lord Pearce in Onnasis & Anor v. Vergottis [1968] 2 Lloyds Rep 403, 430 was quoted in Sivalingam (supra) as containing a valuable reminder: The function of a Court of Appeal is to set aside a judgment that should not be allowed to stand because it occasions a substantial wrong or a miscarriage of justice. That wrong or miscarriage of justice may consist of a judgment in favour of the wrong party. It may Rayuan Sivil No: Q-02(NCVC)(W)-1363-06/2018 14 also consist of a failure in the judicial process to which both parties are entitled as of right, namely, the weighing of their respective cases and contentions. Such failure may constitute a wrong or miscarriage of justice even though it may appear that the appellant may in the end fail to secure a judgment in his favour: But the fact that the right party seems to have succeeded in the Court below will naturally make a Court of Appeal extremely reluctant to interfere, and it would only do so in the rarest cases. Such matters are questions of degree. [6] This court in Sivalingam (supra) quoted Lord Atkin’s dissent in “The Eurymedon” [1943] 73 LLL Rep 217 where he said: … It is, in my opinion, a mistake to suppose that the decision of this House in the Hontestroom, [1927] AC 37, laid down as a proposition of law that an appellate tribunal must in all cases accept the findings of a trial Judge where he purports to base these on his belief in the credibility of particular witnesses. No Court can so restrict its statutory jurisdiction; and in these days, where civil cases involving important questions of credit and reputation and even of liberty are determined by a Judge alone, it is of great importance that the full jurisdiction should be maintained. [7] There is almost no limit to the range within which cases in court may vary. At one end there are cases that involve solely questions of law, and no facts are disputed. On the other there are cases that involve no law but all the facts are disputed. Within these cases there may be cases with disputed facts that involve solely interpretation and inferences leading to a conclusion on a finding on the disputed fact, and there may be other cases with disputed facts that involve solely oral evidence and the finding depends entirely upon an assessment of the credibility of witnesses who testified and were tested before the trial judge. Rayuan Sivil No: Q-02(NCVC)(W)-1363-06/2018 15 [8] Hence, the proper approach is that if (a) it is shown that the judgment cannot be explained or justified by the special advantage enjoyed by the trial judge by reason of having seen and heard the witnesses testify and being tested before him, and (b) an injustice is demonstrated to have been occasioned by any error by the trial judge, for example:

(a) the judgment is based upon a wrong premise of fact or of law;

(b) there was insufficient judicial appreciation by the trial judge of the evidence of circumstances placed before him;

(c) the trial judge has completely overlooked the inherent probabilities of the case;

(d) that the course of events affirmed by the trial judge could not have occurred;

(e) the trial judge had made an unwarranted deduction based on faulty judicial reasoning from admitted or established facts; or

(f) the trial judge had so fundamentally misdirected himself that one may safely say that no reasonable court which had properly directed itself and asked the correct questions would have arrived at the same conclusion; an appellate court will intervene to rectify that error so that injustice is not occasioned. [9] Thus, an appellate court cannot simply substitute the decision of the trial court with one of its own on any ground at will. Section 53 of the Courts of Judicature Act 1964 provides that except by leave of the Court of Appeal, an appellant is limited to the grounds set out in his memorandum of appeal. Hence, although r. 5 of the Rules of the Court of Rayuan Sivil No: Q-02(NCVC)(W)-1363-06/2018 16 Appeal 1994 provides that appeals to the Court of Appeal shall be by way of rehearing, that is limited by r. 18: Rule 18, Memorandum of appeal

(a) the Defendant themselves had failed to substantiate their case by producing Hj Baharudin who could easily deny giving instructions for the Plaintiffs to proceed up until tender stage but instead had opted not to produce him for an obvious reason;

(b) the DW4 during the second meeting with him did not question how the Quantity Surveyor had arrived at RM80 million total project cost, that the Quantity Surveyor had to consider all ‘detailed drawings’ by all the Plaintiffs and that ‘detailed drawings’ stage is a stage where all the consultants had provided their respective input into the drawings and it is no longer conceptual stage but instead, DW4 only requested the Plaintiffs to reduce the cost by 20%. If authorities were a big deal to the Defendant, DW4 would have rejected outright the presentation provided by the Quantity Surveyor; and

(c) the Defendant attempted to orchestrate their case by contending that it is their instruction that the Plaintiffs should only render their services for a full campus at a budget of RM30 million when DW4 Rayuan Sivil No: Q-02(NCVC)(W)-1363-06/2018 19 knew that construction of the same is not possible and a budget of RM30 million could only be utilised to construct the first stage of the campus meanwhile the whole project cost is RM80 million. [34] For the reasons above stated, we find no merit in the appeal. We also find that the learned trial judge did not commit any appealable error which warrants our intervention. Therefore, we dismissed the appeal with costs of RM10,000.00 subject to payment of allocatur fees. Decision of the High Court was affirmed. Dated: 3 January 2020. signed (KAMARDIN BIN HASHIM) Judge Court of Appeal Malaysia Counsel For the Appellant: Wejok Tomik Silas Ling Chia Yu Messrs. Gala & Tomik Advocates No. 16, Crookshank Road 93000 Kuching Sarawak Rayuan Sivil No: Q-02(NCVC)(W)-1363-06/2018 20 For the Second Respondents: Fathmawathy Morshidi Nurul Shuhada Hashim Messrs. Hamzah & Ong Advocates Lot 13321-13323, Lot 5-7, 2nd Floor Riveredge Commercial Centre Jalan Tun Abdul Rahman Yaakub 93050 Kuching Sarawak