Ah Soon Construction Sdn Bhd v Simas-D Sdn. Bhd. (BA-22C-48-12/2021)

The Defendant being the employer appointed the Plaintiff as the main contractor for projects and works through a Letter of Award dated 14.3.2016 (LOA).

This suit was filed by the Plaintiff against the Defendant to claim for late payment interest, balance payment for the variation works done and in protest of the Liquidated Ascertain Damages (LAD) imposed by the Defendant due to the delay in completion of the Plaintiff’s works. S/N 53qqyt5mESoP6qESJpdWg **Note : Serial number will be used to verify the originality of this document via eFILING portal 2

The Plaintiff as the main contractor was appointed by the Defendant for the construction of : "MAIN BUILDING AND EXTERNAL WORKS FOR PROPOSED DEVELOPMENT OF A 10-STOREY APARTMENT CONTAINING A) 158 RESIDENTIAL UNITS: - i. 10 TYPE A UNITS ii. 28 UNIT TYPE A1 iii. 40 TYPE B UNITS iv. 80 UNIT TYPE B1 B) 6 FLOORS OF PARKING C) PUBLIC FACILITIES AND SERVICES ON THE GROUND FLOOR WHICH CONTAIN: - i. 1 KINDERGARTEN UNIT ii. 1 MUSOLAH UNIT iii. 1 LAUNDRY SHOP UNIT iv. 2 SHOP UNIT v. 1 CONTROL ROOM UNIT vi. 1 ELECTRICAL SUBSTITUTION UNIT, LEVEL 1 CONTAINING: i. 1 MANAGEMENT OFFICE UNIT, FLOOR 5 CONTAINING: i. 1 MULTIPURPOSE ROOM UNIT, FLOOR 6 CONTAINING: - i.1 HALL UNIT ii. 1 READING & IT ROOM UNIT iii. SWIMMING POOL & WADING POOL UNIT iv. 1 UNIT PAVILLION v. GAZEBO UNIT vi. 1 UNIT SPORTS PAVILLION 2 FLOORS CONTAINING GYM, YOGA DECK AND MATERNITY ROOM vii. SKY TERRACE, FLOOR 10 CONTAINING; - i. SKY TERRACE, FLOOR 14 CONTAINING: - i. SKY TERRACE D) 1 UNIT OF GUARD'S HOUSING AND GATE DOOR E) 1 ROOM UNIT 'SPIRAL WASTE BIN' S/N 53qqyt5mESoP6qESJpdWg **Note : Serial number will be used to verify the originality of this document via eFILING portal 3 ON LOT PT 133441, PERSIARAN KEMUNING PRIMA, SECTION 32, 40460 SHAH ALAM, SELANGOR DARUL EHSAN, FOR TETUAN SIMAS-D SDN BHD (hereinafter referred to as " The Said Project"

Based on the LOA, the contract sum is a firm price of RM55,300,000.00 excluding the Goods and Services Tax (GST) and for a duration of 20 months from 1.4.2016 being the commencement date and the completion date had been set as 30.11.2017. LAD is calculated at RM15,000.00 per day.

In the LOA, the amount to be held as retention sum which is also the Performance Bond is RM2,765,000.00. The deduction for Performance Bond is as per the schedule given in Annexure A of the LOA.

Certificate of Practical Completion (CPC) for the said Project was issued on 1.6.2018 and the Defect Liability Period was till 30.5.2020 (being 24 months from the issuance of CPC). The Certificate of Making Good Defects was issued on 17.12.2020. S/N 53qqyt5mESoP6qESJpdWg **Note : Serial number will be used to verify the originality of this document via eFILING portal 4

During the course of its work, the Plaintiff issued to the Defendant Progressive Certificates No. 1 to No. 30 (from the date of Progressive Certificate No. 1 dated 23.6.2016 until the date of Final Certificate No. 30 dated 22.1.2021) for the works done by it.

The Defendant had made the final payment to the Plaintiff in accordance to the Final Certificate No. 30 dated 22.1.2021 for the sum of RM1,382,500.00. This sum was paid to the Plaintiff on 8.2.2021 by the Defendant. C. PLAINTIFF’S CASE I. Late Payment Interest

The payments made by the Defendant for each and every progressive certificate had been beyond 21 days from the date of each certificate issued. As such, the Plaintiff is entitled to claim for late payment interest at the rate of Base Lending Rate (BLR) + 1% on the sum due for each certificate. S/N 53qqyt5mESoP6qESJpdWg **Note : Serial number will be used to verify the originality of this document via eFILING portal 5

The late payment interest claimed by the Plaintiff is made pursuant to Clause 30.1 and Clause 30.17 of the Agreement and Conditions of PAM Contract 2006 (with Quantities): "30.0 Certificates and Payment " "30.1 The Contractor shall submit a payment application at the Interim Claim Interval stated in the Appendix with complete details and particulars as required by the Architect and Quantity Surveyor, to enable them to consider and ascertain the amount to be included in an Interim Certificate. Upon receipt of the Contractor's details and particulars, the Architect after having received the payment valuation from the Quantity Surveyor shall, within twenty-one

Days from the date of receipt of the Contractor's application, issue an Interim Certificate to the Employer with a copy to the Contractor, and the Employer shall thereafter pay the amount certified to the Contractor within the Period of Honoring Certificates. Any failure by the Contractor to submit a payment application shall be deemed to be a waiver of his contractual entitlement for that Interim Certificate, and the Architect may or may not issue an Interim Certificate under the circumstances. After the issuance of the Certificate of Practical Completion, Interim Certificates shall be issued as and when further amounts are ascertained by the Architect and Quantity Surveyor as payable to the Contractor by the Employer" S/N 53qqyt5mESoP6qESJpdWg "30.17. Interest " "If the Employer fails to pay the Contractor the amount due on any certificate (less any Liquidated Damages and set-off which the Employer is expressly entitled to make under the Contract) after the Period of Honoring Certificates, or the Contractor owes a debt or fails to pay any sum due and owing to the Employer within twenty-one (21) Days after receipt of written notification by the Employer of such debt or amount owed, a simple interest based on the Maybank Base Lending Rate plus one (1) percent shall be payable by the defaulting party on such outstanding amount until the date payment is made" [11] The brief statement of progressive/payment certificate and the payment received from the Defendant is as shown below:- SIMAS CERTIFICATE & PAYMENT BLR+1 2020 0.067 2016 0.077 2018 0.079 CERTIFICATE NO DATE CERTIFICAT E INV DATE AMOUNT (RM) INCLUSIVE GST DUE DATE PAYMENT DATE DAYS Interest CHECK NO AMOUNT (RM) CERT 1 23.06.2016 6/23/2016 1,170,014.39 22.07.2016 8/23/2016 32 7,064.90 MBB029656 1,053,386.39 21/11/2016 122 2,710.41 MBB 031706 106,000.00 1,628.00 9,000.00 CERT 2 28.07.2016 28/7/2016 589,524.24 27.08.2016 8/9/2016 12 1,482.69 MBB 029850 589,524.24 CERT 3 26.08.2016 8/26/2016 721,324.91 25.09.2016 10/10/2016 15 2,267.73 MBB 030147 721,324.91 KETTLE 4 29.09.2016 29/9/2016 1,188,227.30 28.10.2016 2/11/2016 5 1,178.41 MBB 031504 1,124,500.30 63,727.00 S/N 53qqyt5mESoP6qESJpdWg CERT 5 24.10.2016 24/10/2016 517,902.97 23.11.2016 1/12/2016 8 868.37 MBB 031821 517,902.97 CERT 6 28.11.2016 28/11/2016 1,270,849.33 27.12.2016 6/1/2017 10 2,663.56 MBB 032269 1,270,849.33 CERT 7 30.12.2016 30/12/2016 1,512,817.55 29.01.2017 1/3/2017 31 9,829.17 MBB 032596 1,512,817.55 CERT 8 25.01.2017 25/1/2017 1,694,047.45 24.02.2017 30/3/2017 34 6,384.13 MBB 0333479 895,889.48 4/17/2017 52 8,698.83 MBB 033071 798,157.97 CERT 9 08.03.2017 8/3/2017 1,536,913.50 07.04.2017 5/17/2017 40 4,191.78 MBB 033610 500,000.00 29/5/2017 52 2,982.17 MBB 033819 273,628.26 29/5/2017 52 3,269.59 RHB 000051 300,000.00 6/14/2017 68 5,177.56 MBB 039559 363,285.24 6/14/2017 68 1,425.21 RHB 000052 100,000.00 CERT 10 06.04.2017 6/4/2017 1,022,017.62 05.05.2017 6/19/2017 45 9,639.17 MBB 034012 1,022,017.62 CERT 11 11.05.2017 11/5/2017 1,815,906.65 10.06.2017 7/7/2017 27 6,881.91 MBB 034278 1,216,121.16 31,863.50 7/24/2017 44 5,237.33 MBB 034454 567,921.99 CERT 12 31.05.2017 5/31/2017 1,717,773.38 30.06.2017 2/8/2017 33 9,337.61 MBB 034594 1,350,060.50 8/22/2017 53 3,907.66 MBB 034845 351,781.13 15,931.75 CERT 13 30.06.2017 6/30/2017 1,953,674.55 29.07.2017 8/22/2017 24 9,426.56 MBB 034845 1,874,015.80 79,658.75 CERT 14 26.07.2017 26/7/2017 2,254,123.03 25.08.2017 1,210.00 9/18/2017 24 12,012.77 MBB 035167 2,388,160.41 CERT 15 29.08.2017 8/29/2017 3,545,123.30 28.09.2017 1,000.00 13/10/2017 15 11,142.14 MBB 035495 3,544,123.30 CERT 16 03.10.2017 3/10/2017 3,480,262.96 02.11.2017 27/11/2017 25 18,235.62 MBB 035992 3,480,262.96 CERT 17 01.11.2017 1/11/2017 3,695,996.93 30.11.2017 26/12/2017 26 20,140.65 MBB 036423 3,695,996.93 CERT 18 17.11.2017 17/11/2017 4,848,503.89 16.12.2017 29/1/2018 44 46,173.70 MBB 036990 4,848,503.89 S/N 53qqyt5mESoP6qESJpdWg FIRST RELEASE 2.5% RETENTION CERT 19 02.01.2018 2/1/2018 2,932,476.62 01.02.2018 7/3/2018 34 7,358.90 MBB 037285 1,000,000.00 21/3/2018 48 14,544.66 MBB 039588 1,400,000.00 4/16/2018 74 8,528.38 MBB 037884 532,476.62 CERT 20 18.01.2018 18/1/2018 4,133,667.21 17.02.2018 3/5/2018 75 16,232.88 MBB 038134 1,000,000.00 8/6/2018 111 75,285.28 MBB 038455 3,133,667.21 CERT 21 16.02.2018 2/16/2018 2,708,397.65 18.03.2018 11/6/2018 85 49,827.10 MBB 038454 2,708,397.65 CERT 22 17.03.2018 3/17/2018 1,431,446.32 16.04.2018 30/7/2018 105 31,501.62 MBB 038690 1,431,446.32 CERT 23 16.04.2018 4/16/2018 482,203.37 15.05.2018 8/24/2018 101 10,541.10 MBB 038794 482,203.37 CERT 24 16.05.2018 5/16/2018 469,523.85 15.06.2018 20/9/2018 97 9,857.43 MBB 039014 469,523.85 CERT 25 15.06.2018 6/18/2018 113,628.44 17.07.2018 20/9/2018 65 1,598.58 MBB 039014 113,628.44 CERT 26 15.06.2018 1/7/2018 1,465,450.00 30.07.2018 24,648.26 26/10/2018 88 27,442.34 MBB 039226 1,440,801.74 CERT 27 16.07.2018 7/16/2018 600,101.21 15.08.2018 22/11/2018 99 12,858.61 MBB 039536 600,101.21 PERFORMANCE BOND + WPRK DONE Gst not included RM82,950.00 CERT 28 10.12.2018 30/8/2018 2,993,494.93 29.09.2018 2/1/2019 95 36,877.20 MBB 386026 1,793,494.93 2/1/2019 95 24,673.97 MBB 039959 1,200,000.00 CERT 29 31.12.2019 31/12/2019 321,682.32 30.01.2020 5/19/2020 110 6,495.34 PBB058012 321,682.32 CERT 30 22.01.2021 26/1/2021 1,382,500.00 25.02.2021 9/2/2021 PBB58018 1,142,112.88 545,953.03 S/N 53qqyt5mESoP6qESJpdWg [12] As shown in the brief statement hereinabove, based on the progressive / final certificates issued, there is a total delay of 2243 days (from progressive certificate No.1 to No.29) in payment by the Defendant. Interest calculated at the rate of BLR + 1% would amount to RM 545,953.03. This is the amount claimed by the Plaintiff from the Defendant for late payment interest. II. Strengthening Works – Levels 2 and 6 [13] The Plaintiff was advised via a letter dated 14.7.2017 by Perunding TAC (Civil Structural & Geotechnical Engineering Consultants) (Perunding TAC) to carry out 25 numbers of coring tests for Level 2 on 12 slab areas and 13 transfer beams due to cracks discovered on them. [14] The Plaintiff via its letter dated 11.8.2017 presented the core test results by Revelation Soil Testing Lab where 6/25 samples taken had tested below 40Mpa design strength and as such needed strengthening works on the affected transfer beams. S/N 53qqyt5mESoP6qESJpdWg [15] Perunding Tac had via letter dated 14.8.2017 informed the Plaintiff regarding the drawings for strengthening works of the affected transfer beams at Level 2 and via letter dated 30.8.2017, the Superintendent Officer (SO) had instructed the Plaintiff to start the strengthening works at Level 2 on 3.9.2017. [16] The Plaintiff had written to the SO on 6.9.2017 to explain: i. the dispute over the 2nd floor beam in-situ concrete strength; ii. the distribution of concrete core location predetermined by Perunding Tac; and iii. Perunding Tac’s under provision in the original design. [17] The Plaintiff was directed by the Engineer (Ir. Tan Ah Chai) via letter dated 8.11.2017 to carry out the strengthening works in accordance to “drawing for strengthening works at Level 2 transfer beams”. [18] Through the Plaintiff’s letter dated 6.9.2017, the Plaintiff had also requested for an extension of time from the SO pursuant to Clause 23.1(a) of the PAM Contract 2006 (with Quantities) as the completion date was set on 30.11.2017. S/N 53qqyt5mESoP6qESJpdWg [19] Perunding Tac had via letter dated 12.1.2018, instructed the Plaintiff to conduct coring test on beams and slabs at Level 6 and to carry out strengthening works on the beams at Level 6. [20] The Plaintiff had via its letter dated 7.2.2018 presented the coring test results and on 9.2.2018 and Perunding Tac had emailed to the Plaintiff the ‘revised drawings’ for purpose of carrying out the strengthening works at Level 6 on the affected transfer beams. [21] Consequentially, the Plaintiff had presented the Bill of Quantities (BQ) on 28.10.2017 for a sum of RM248,955.00 for the strengthening works on the affected transfer beams at Level 2 by DK-QS Sdn. Bhd. The amount of RM221,430.00 was recorded as VO No. 13 and was claimed under Progressive Claim No. 27 by the Plaintiff. [22] As for the strengthening works carried out at Level 6, the Plaintiff had based its claim on the invoice issued by SY Concrete Repair & Strengthening Sdn. Bhd. for a sum of RM114,792.59. This sum was recorded as VO No. 25 and claimed under Progressive Claim No. 27 for a sum of RM120,144.20 by the Plaintiff. S/N 53qqyt5mESoP6qESJpdWg [23] In carrying out the strengthening works on the transfer beams at both Level 2 and Level 6, the Plaintiff had incurred cost of: i. RM221,430.00 by TWC Engineering Specialities Sdn. Bhd. for Level 2; and ii. RM120,144.20 by SY Concrete Repair & Strengthening Sdn. Bhd. for Level 6. [24] The Defendant had however only paid to the Plaintiff for both these works a total sum of RM45,787.10, being: i. RM29,682.00 for strengthening works done at Level 2; and ii. RM16,105.10 for strengthening works done at Level 6. [25] The Plaintiff denies having agreed to receive from the Defendant a sum of RM45,787.10 as final sum for the total works done pursuant to the VOs (i.e. total sum of RM341,574.29). As such, the Plaintiff through this suit claims for the balance of RM295,784.10 for the total strengthening works carried out for both Level 2 and Level 6. S/N 53qqyt5mESoP6qESJpdWg III. Liquidated Ascertained Damages (LAD) [26] The plaintiff has through the following letters as listed below, applied for the required EOT from T.O. Hew Akitek : - i. A letter dated 28.7.2016 for EOT No.1 for 49 days citing, among other reasons, that the site handover for the project was actually done on 3.5.2016 (instead of 1.4.2016), thus delaying the commencement of the works. ii. A letter dated 16.12.2017 (with relevant attached documents) for EOT No.2 for 90 days, citing, among other reasons, the need to fulfil additional works and Variation Orders (V.O.) as per instructions from the architect, engineer, on-site instructions, and verbal instructions onsite. iii. Letters dated 10.1.2018 and 17.1.2018 respectively for EOT No.3 for 15 days, 20 days, and 53 days respectively, citing, among other reasons, the need to provide and submit relevant documents as per instructions from the architect and engineer. iv. A letter dated 23.1.2018 (with 'work progress' documents) for EOT No.4 for 47 days, citing, among other reasons, the need for "strengthening works" to fulfil additional works and S/N 53qqyt5mESoP6qESJpdWg Variation Orders (V.O.) as per instructions from the consulting engineer TAC Consulting Sdn Bhd. v. A letter dated 29.1.2018 for EOT, citing, among other reasons, the need to provide and submit relevant documents to the architect as per the architect's instruction on 12.1.2018. vi. A letter dated 1.3.2018 for EOT No.5 requesting an additional 46 days to complete the works, citing, among other reasons, the need to fulfil additional works and Variation Orders (V.O.) as per instructions from the engineer regarding "strengthening works" at Level 6 of the project site. vii. A letter dated 1.3.2018 for an appeal for EOT No.4 due to the inadequacy of the granted 14 days to complete the "strengthening works". viii. A letter dated 14.3.2018 for EOT No.6 for 21 days, citing, among other reasons, the need to complete "plumbing and sanitary flushing test" works. ix. A letter dated 5.4.2018 for EOT No.7, citing, among other reasons, the need to complete "water meter installation" works. A rejection letter from T.O. Hew Architects dated S/N 53qqyt5mESoP6qESJpdWg

24.4.2018 stated that "water meter installation" could be carried out after CPC (Certificate of Practical Completion). x. A letter dated 10.4.2018 for a reassessment for EOT No.6. xi. A letter dated 11.4.2018 for an appeal for EOT No.4 due to, among other reasons, the lack of explanatory deductions in the extension granted. xii. Plaintiff's letters dated 4.5.2018, 23.5.2018 (with attached "site diary"), and 11.6.2018 ("chronology of events/documents") each for review and reassessment for EOT No.7 until 10.5.2018, citing, among other reasons, the need to complete "water meter installation" on-site. xiii. A letter dated 12.6.2018 for EOT No.8 for 14 days to carry out additional and abandoned works. [27] Based on the Plaintiff’s request for EOT, there were 21 days which the Architect did not approve for EOT and via a letter dated 26.5.2018, it was conveyed to the Plaintiff by the Architect that the completion date upon considering all the EOT was on 10.5.2018 i.e. being the deadline given via EOT No. 8. S/N 53qqyt5mESoP6qESJpdWg [28] A Certificate of Non-Completion (CNC) was issued and consequently, LAD would be imposed on the Plaintiff at RM15,000.00 per day from May 11, 2018, until the Certificate of Practical Completion (CPC) date on June 1, 2018. [29] It remains the Plaintiff’s contention that due to the non-approval of EOT, the CNC and the imposition of the LAD on the Plaintiff was improper, given the fact that the delay was not caused by the Plaintiff. [30] The Plaintiff further asserts that based on all the circumstances all EOTs that have been requested by the Plaintiff are fair assessment in view of work required and commensurate with the work required to be completed/corrected and were reasonable at all material times. [31] Based on the Architect’s calculation where 21 days were said to be the Plaintiff’s delay, the total LAD imposed by the Defendant on the Plaintiff was RM315,000.00 which was set-off from the Final Certificate. [32] The payments made by the Defendant to the Plaintiff included all progressive certificate payments except for the Final Certificate where the LAD sum of RM315,000.00 was set-off from Retention Sum of S/N 53qqyt5mESoP6qESJpdWg RM1,382,500.00 and only a sum of RM1,142,112.88 was paid to the Plaintiff on 8.2.2021. [33] Through this suit the Plaintiff seeks to recover the following: i. RM 545,953.03 being the late payment interests; ii. RM315,000.00 being the LAD imposed; iii. RM295,787.10 being the unpaid balance sum incurred for the strengthening works done at level 2 and level 6; and iv. Interests at 5% p.a. on the total of (i), (ii) and (iii) above. D. DEFENDANT’S CASE [34] the Defendant states that although the commencement date is stated as 3.5.2016 in the minutes of the meeting, the Letter of Award states that the commencement date is 1.4.2016. [35] It is the Defendant’s contention that Clause 30.1 and Clause 30.17 of the PAM Contract 2006 referred to by the Plaintiff on the issue of late payment interest are not applicable to the Plaintiff. S/N 53qqyt5mESoP6qESJpdWg [36] The Defendant reiterates that all issues on the outstanding payment have been settled with the payment by the Defendant amounting to RM1,382,500.00 on 8.2.2021 which has been accepted by the Plaintiff without any objections. At all material times, and for almost 2 years before this the filing of this suit, the Plaintiff did not raise any claim for any interest on the late payment as alleged and as such, is an afterthought. [37] With regards to the issue of strengthening works at Levels 2 and 6, the Defendant reiterates that it was agreed that only an amount of RM45,787.10 should be paid as a full and final settlement of this issue, which had been accepted and signed by the representative of the Plaintiff, Sunny Ho, on behalf of the Plaintiff on 8.2.2021. [38] The Defendant further states that the Defendant has made the payment of RM1,382,500.00 to the Plaintiff based on the Final Certificate issued by the Architect. As such, the Defendant denies all the claims made by the Plaintiff through this suit and states that the said claims are an afterthought by the Plaintiff. S/N 53qqyt5mESoP6qESJpdWg E. ISSUES [39] Issues which have to be considered by this court arising from both parties’ case are as follows: i. Whether the Plaintiff is entitled for Late Payment Interest. ii. Whether the Plaintiff is entitled for the EOT requested. iii. Whether the Defendant is entitled to impose LAD on the Plaintiff and set off the same. iv. Whether the Plaintiff is entitled to receive the full sum incurred for the strengthening works at level 2 and level 6. F. FINDINGS OF THE COURT I. Whether the Plaintiff is entitled for Late Payment Interest of RM 545,953.03. [40] Based on the statement of progressive/payment certificate and the payment received as shown in paragraph 11 hereinabove, the Plaintiff attempted to shown the delay in making the payments to the Plaintiff by the Defendant. As per the statement, it was calculated that there are a total of 2243 days as days delayed by the Defendant in making the S/N 53qqyt5mESoP6qESJpdWg payments to the Plaintiff in accordance to each of the Progressive Certificates. [41] This claim is made by the Plaintiff pursuant to Clauses 30.1 and 30.17 of PAM Contract (with Quantity). Although it is the Defendant’s stand that these clauses are not applicable to the Plaintiff, the Defendant did not substantiate its objection. However, during trial, the Defendant had established that there are errors in the calculation of the number of days claimed by the Plaintiff as delayed by the Defendant, as submitted by the Defendant: “32.2. However, PW1 conceded under cross-examination that the 30 days calculated were wrong. PD: Baik kita rujuk yang pertama sekali no.1 cert 1, okay 30 hari ya? Alright. SP1: Erm. PD: 30 hari dari 3 Jun. sorry 23 Jun … 30 hari daripada 30 Jun,

23.6.2016 adalah sepatutnya 23.7.2016, betul? SP1: Betul. PD: Jadi, bukannya 22.7.2016 ya? SP1: Sorry can repeat? Boleh PP: Ask the question again please? S/N 53qqyt5mESoP6qESJpdWg PD: Sorry ya. Okay. So jadi kamu telah setuju dengan saya, 30 hari daripada 23 Jun adalah 23 Julai kamu setuju. SP1: Erm. PD: Jadi, berdasarkan Q& A 12 kamu, tarikh due date 22.7.2016 itu adalah salah setuju? SP1: Tidak setuju. PD: Tidak setuju, jadi macam mana kamu kira tarikh hari ini ya? Tarikh 30 hari ini ya? Adakah kamu menggunakan time and date calculator? SP1: Ya. PD: Ya kamu pakai time and date calculator tapi pengiraan salah, setuju? SP1: Ini ialah … Tidak setuju. PD: Tidak setuju, okay tak apa, saya akan go through, saya akan rujuk kepada beberapa cert. Okay. Seterusnya adalah cert no.4, 30 hari daripada 29.9.2016 sepatutnya 29.10.2016 setuju atau tidak? SP1: Setuju. PD: Dan seterusnya cert no. 6, 30 hari daripada 28.11.2016 sepatutnya 28.12.2016 setuju? SP1: Setuju. PD: Baik jadi setuju dengan saya berdasarkan pengiraan ini terdapat pengiraan yang salah bermaksud dakwaan Plaintif berkenaan jumlah hari lewat adalah tidak betul, setuju atau tidak? SP1: Tidak. S/N 53qqyt5mESoP6qESJpdWg PD: Dan seterusnya saya nak rujuk kepada cert no.10, 30 hari daripada 6.4.2017 sepatutnya 6.5.2017 setuju? 30 hari bukan satu bulan. SP1: Setuju. PD: Okay seterusnya, cert 13, 30 hari daripada 30.6.2017 sepatutnya 30 Julai YA: Okay. I think you can conclude it that it’s all one day lesser. PD: Yes, yes. YA: That’s all. PD: Yes. Thank you. PP: Yes, I concede.” [42] It was also established during cross examination of Yap Sze Qing (SP1) that the BLR used to calculate this claim has not been established or proven by the Plaintiff to be the BLR that was applicable at the time these progressive certificates were issued. [43] Furthermore, it was also established during trial that there were no claims/request/protest made against the Defendant for late payment interest and neither was there any reservation made to the Defendant that the Plaintiff will pursue to claim for late payment interest. S/N 53qqyt5mESoP6qESJpdWg [44] During cross examination of Ng Chi Wei (SD1), the Plaintiff’s counsel had put it to SD1 as follows which shows that the issue of late payment interest was an afterthought by the Plaintiff and that it was never intended to be claimed by the Plaintiff at the time the payments were made to it: “PP : I put it to you that because Simas-D had deducted RM315,000.00 from the final payment and reached the understanding with the Plaintiff, The Plaintiff is pursuing the claim for late payment interest on progress Payments? SD1 : I disagree. PP : Do you agree or disagree? SD1: Disagree… as mentioned they have not raised up any LPI since the first certificate until the end, so this LPI come to us when the Lawyer send us the letter only they raised up this issue to us and it was happened after two years.” [45] It is obvious that the claim for late payment interest arose only when the deduction of the LAD sum from the final payment was made by the Defendant. S/N 53qqyt5mESoP6qESJpdWg [46] SD1’s evidence in court during cross examination was that pursuant to Clause 30.17 there should be notice given by the Plaintiff to the Defendant if payment was delayed by the Defendant within 21 days from the due date of the payment. This was not done by the Plaintiff. [47] It is trite that special damages must be specifically pleaded and proven as guided by the Federal Court case of Ong Ah Long v Dr S Underwood [1983] 2 MLJ 324: “It is a well-established principle that special damages in contrast to general damages, have to be specifically pleaded and strictly proved. They are recoverable only where they can be included in the proper measure of damages and are not too remote (see Halsbury’s Laws of England 4th edition, volume 11 page 218 para 386). That in our view is the cardinal principle adopted by all courts both in England and this country. The same principle was adopted by Ong Hock Thye, F.J (as he then was) in Yee Hup Transport & Co. and Anor. v. Wong Kong (3) which was an appeal on quantum of damages. Quoting an expert from the judgment of Wilmer L.J. in IIkiw v. Samuels (4) he held that the general damages should not be awarded as though they were special damages properly pleaded and proved. Similarly Chang Min Tat, F.J. (as he then was) in Murtadza bin Mohamed Hassan v. Chong Swee Pian (5) applied the principle in IIkiw v. Samuels (supra) that special damages if pleaded as in that case could be recovered. The principle was also adopted S/N 53qqyt5mESoP6qESJpdWg by Mohamed Azmi, J. (as he then was) in Sam Wun Hoong v. Kader Ibramshah (6) in the Federal Court. The reason that special damages have to be specifically pleaded is to comply with its object which is to crystallise the issue and to enable both parties to prepare for trial (per Edmund Davies, L.J. in Domsalla v. Barr (7)). In special damages claims the exact loss must be pleaded where the precise amount of item of damages has become clear before the trial either because it has already occurred and so become crystallised or because it can be measured with complete accuracy (MacGregor on Damages 14th edition page 1012 para 1498). The purpose is to put defendants on their guard an tell them what they have to meet when the case comes on trial (per Cotton, L.J. in Phillips v. Phillips (8))”. [48] As errors in the Plaintiff’s calculation were established during trial in relation to the number of days delayed and the rates used to calculate the late payment interests, the sum/amount claimed by the Plaintiff under this heading was failed to be proven by the Plaintiff. [49] Therefore, on this issue, it is the court’s considered view that the Plaintiff has failed to discharge its burden to proof on a balance of probabilities that the special damages of RM545,953.03 was indeed owed to it by the Defendant as late payment interests. S/N 53qqyt5mESoP6qESJpdWg ii & iii. Whether the Plaintiff is entitled for the EOT requested and whether the Defendant is entitled to impose LAD on the Plaintiff and set off the same [50] Since, both these issues are interrelated, these issues will be considered together. [51] Although the Defendant had taken the stand that the site handover had taken place on 1.4.2016 but during the trial it was established that the handover of the site to the Plaintiff was indeed on 3.5.2016. Furthermore, it was also established that via EOT no. 1 & EOT no. 2, the Architect/SO in allowing these EOTs had considered the handover of the site as was done on 3.5.2016. Therefore, the issue of late handover of the site is a non-issue in this case. [52] Based on the facts given and the evidences produced in court via Ar Hew Tze Onn (SP4), being the Architect of the project, there are 21 days which had been declared by the Architect in the Final Certificate as days delayed. It was also established through SP4 that the Plaintiff had not raised any objections to these days which were certified as delayed days at that material time. S/N 53qqyt5mESoP6qESJpdWg “PD: And you agree with me that there were no complaint being raised by Ah Soon Construction in regards to final certificate issued by you? SP4 : Yes PD : Alright there was allegedly a 21 days LAD imposed as a results of an rejection EOT by you, would you agree with me that there was no written notice issued to you to contest this 21 days? SP4 : Yes. PD : Yes, now can I refer you to bundle B4 at pages 535, now this is payment certificate no. 29 dated 31st of December 2019 alright would you agree with me that based on this letter this certificate sorry this certificate you had already notified the main contractor Ah Soon Construction that the employer Simas-D the Defendant is entitled to deduct LAD of 21 days, correct? SP4 : Yes.” [53] Correspondingly, the Plaintiff had not produced any evidence to substantiate its objection against the 21 days calculated as delayed days where LAD was imposed on it by the Defendant. SP4 being the Plaintiff’s witness had only given evidence in relation to EOT No. 1 & EOT No. 2. There are no evidences produced to this court by the Plaintiff to show that the delay of 21 days ascertained by the Defendant were attributable to the Defendant and as such, the Defendant’s imposition of delay against the Plaintiff is unjust. Section 101 and S/N 53qqyt5mESoP6qESJpdWg Section 103 of the Evidence Act 1950 apply to the Plaintiff to prove that the delay was attributable to the Defendant: “Section 101 – Evidence Act 1950

Whoever desires any court to give judgment as to any legal right or liability, dependent on the existence of facts which he asserts, must prove that those facts exist. Section 103 – Evidence Act 1950 The burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.” [54] Based on the admission by SP1, the Defendant has also established that since there were no objections by the Plaintiff against the 21 days delay certified by the Architect and as such pursuant to Clause 30.4 of the PAM Contract 2006, the Defendant was entitled to set off the LAD sum of RM315,000.00 from the payment due to the Plaintiff: “PD : Hanya jika Arkitek mengesahkan terdapat kelewatan, setuju dengan saya selepas Arkitek mengesahkan terdapat kelewatan 21 hari, barulah jumlah RM315,000 tersebut boleh ditolak, boleh diset-off, ditolak dari jumlah akhir, setuju? S/N 53qqyt5mESoP6qESJpdWg SP1: Setuju. PD : Jadi saya cadangkan kepada En. Yap bahawa Ah Soon Construction tidak berhak untuk menuntut semula LAD untuk 21 hari tersebut daripada Defendan, setuju? SP1 : Setuju” [55] Hence, this court finds that the Plaintiff has failed to discharge its burden on a balance of probabilities that it is entitled for the 21 days EOT which was not approved and has also failed to establish that the Defendant was not entitled to impose the LAD of RM315,000.00 arising therefrom on the Plaintiff. As such, the Plaintiff’s claim for the LAD of RM315,000.00 is dismissed. iv. Whether the Plaintiff is entitled to receive the balance sum incurred for the strengthening works at Level 2 and Level 6? [56] It is the Plaintiff’s case that since instructions were given for the Plaintiff to carry out coring test at Levels 2 and 6 and following that test results, the Plaintiff was instructed to carry out the strengthening works for both the floors. As such, the Plaintiff is entitled for the entire costs S/N 53qqyt5mESoP6qESJpdWg incurred by it i.e. RM341,574.29 and not the sum paid by the Defendant to the Plaintiff being RM45,787.10. [57] The Defendant on the other hand had taken the stand that a sum of RM45,787.10 was paid to the Plaintiff as the agreed sum for the strengthening works done by the Plaintiff on both Level 2 and Level 6. Therefore, the Defendant does not owe the Plaintiff any sum as alleged by the Plaintiff. [58] During trial, the issue which had been raised was the issue pertaining to an incident which had taken place at Level 12 i.e. the Plaintiff was found to have added water to concrete. This practice that had been carried out by the Plaintiff had caused the Defendant to issue to the Plaintiff a warning letter dated 15.6.2017. Evidence was led to establish that due to adding water into concrete, it had caused cracks to appear. [59] According to the Defendant, due to that incident at Level 12 and due to the appearance of cracks at Level 2 and Level 6, the Plaintiff had been asked to carry out coring tests. Evidence was led to show that S/N 53qqyt5mESoP6qESJpdWg due to the Plaintiff’s workmanship problem the costs of the strengthening works is to be borne by the Plaintiff. [60] The Plaintiff had objected to the Defendant’s reliance on the issue relating to the “adding water to the concrete” incident as it was not pleaded by the Defendant. However, it is this court’s view that the Plaintiff’s objection to this incident cannot be accepted as the issue in relation to “adding water to concrete” was introduced to the court via the Plaintiff’s own 3rd witness i.e. SP3 (the project Engineer). [61] As evidence was given by SP3 on this issue, the Defendant was invited to cross examine on the same by the Plaintiff itself: “PD : Now based on your answer earlier would you agree with me that the quality of concrete used by Ah Soon was questionable? SP3 : Pardon? PD : Based on your answers in Q& A 9 and 16 poorer concrete would you agree with me that the quality of concrete being used by Ah Soon Construction the Plaintiff was questionable. SP3 : In what senses? PD : Okay, I said questionable because you agreed with me you discovered or knew that Ah Soon Construction was found to have added water to concretes, correct? S/N 53qqyt5mESoP6qESJpdWg SP3 : Fair. PP : My lady may I interject this line of questioning about quality of concrete is not part of the pleadings or the Defence addressing why they did not made payment for the strengthening works, so I might concerned whether this line of questioning relevant when it was not pleaded. PD : My lady it’s relevant simply because under the Q& A for this witness there was a question which regard to supposed to pay for this fee. So it’s part and parcel of the claims, we are addressing the claims. So that is a relevant question my lady.” [62] It was SP3’s evidence that the cracks were due to the quality of concrete and that the strengthening works which had to be done at Level 2 and Level 6 were due to the poor quality of concrete used by the Plaintiff. This evidence corresponds to the coring tests done on the slabs and the transfer beams at Level 2 and Level 6, where it was discovered that the strength of the concrete was lesser than the required measurement of 40Mpa. [63] Be that as it may, the issue here is the unpaid balance of the sum incurred by the Plaintiff for the strengthening works carried out pursuant to the instructions given by the Engineer to the Plaintiff. Although it is the Defendant’s argument that the Plaintiff is responsible for the cause of S/N 53qqyt5mESoP6qESJpdWg the cracks and as such should bear the costs of rectifying the same, this court finds that this line of argument is the Defendant’s afterthought on this issue. [64] Based on the documents and evidences before this court, the Defendant had failed to communicate to the Plaintiff that it has to bear the costs of the strengthening works instructed by it at Levels 2 and 6. The Defendant had also certified the sum incurred by the Plaintiff as VO in Progressive Certificates Nos. 13 and 27 respectively. None of the correspondences by the Defendant to the Plaintiff had indicated that due to the Plaintiff’s poor workmanship, the Plaintiff has to rectify the works by carrying out the said strengthening works. On the contrary, the Defendant had produced new drawings to the Plaintiff in relation to the strengthening works at Levels 2 and 6. [65] The Defendant had also in its own statement agreed to have allegedly even negotiated to pay a much lesser sum to the Plaintiff. Therefore, it is established that there was never an instance at that material time that the Plaintiff was intended to bear the costs of the strengthening works. In fact, it was referred to as “strengthening works” and not “rectification works”. S/N 53qqyt5mESoP6qESJpdWg There is also no evidence to show that the strengthening works were to be considered as rectification works as the normal processes in rectifying a defect were not applied in these circumstances. [66] It was also not denied by both parties that the Plaintiff had accepted the sum of RM45,787.10 without prejudice to claim for the balance. Therefore, the Defendant’s initial defence that the sum of RM45,787.10 was accepted by the Plaintiff based on an agreement between parties as full and final payment was not established by the Defendant. [67] Based on the foregoing, it is this court’s considered view that the Plaintiff has proven on a balance of probabilities that it is entitled for the balance of RM295,787.10 for the strengthening works carried out by it. Hence, this court allows the Plaintiff’s claim for the sum of RM295,787.10. G. CONCLUSION [68] In the upshot, this court orders as follows:

The Plaintiff’s prayer for a declaration that the rejection of the LAD for an amount of RM315,000.00 from the Final S/N 53qqyt5mESoP6qESJpdWg Certificate dated 22.1.2021 was without consent/agreement between the Defendant and the Plaintiff is therefore wrong and invalid in law is hereby dismissed;

The Plaintiff’s prayer for a declaration that the estimated 21 days late completion of the Works and the production of the CNC is wrong and invalid is hereby dismissed;

The Plaintiff’s prayer for the outstanding sum of RM 545,953.03 as interest charged for the late payment of the progressive certificates as in ‘Appendix A’ is hereby dismissed;

The Plaintiff’s prayer for an order that the Defendant still owes the Plaintiff a sum of RM295,787.10 for the remaining costs paid by the Plaintiff to TWC Engineering Specialties Sdn Bhd and SY Concrete Repair & Strengthening Sdn Bhd for the "strengthening works at Level 2 and 6" at the Project’s Site is hereby allowed;

The Plaintiff’s prayer for an order that the Defendant reimburse the Plaintiff for the rejection of the LAD for a sum of RM315,000.00 from the Final Certificate dated 22.1.2021 is hereby dismissed; S/N 53qqyt5mESoP6qESJpdWg

The Defendant is hereby ordered to pay the Plaintiff an interest at 5% per annum on the sum of RM295,787.10 to be calculated from the date of this Writ of Summons and until the Date of full settlement; and

Both parties to bear their own costs. SUMATHI A/P MURUGIAH Judicial Commissioner High Court of Malaya Shah Alam, Selangor Darul Ehsan DATE : 26 AUGUST 2024 Counsel for Ah Soon : Mr. Maurice Scully (Messrs. M Scully) Counsel for Simas-D : Mr. Chris YH Tan & Mr. Cheong Chun Shung (Messrs. J M Chong Vincent Chee & Co) S/N 53qqyt5mESoP6qESJpdWg