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

This assessment was directed by the Court of Appeal pursuant to its Order dated 8.8.2025 (“CoA Order”) for the late payment interest arising from the delayed payment of progressive certificates issued under the PAM Contract 2006 (With Quantities) entered into between the Plaintiff, Ah Soon Construction Sdn Bhd (“the Plaintiff”), and the Defendant, Simas-D Sdn Bhd (“the Defendant”).

The broad grounds of the Court of Appeal when unanimously allowed the appeal on 8.8.2025 had directed : “We therefore direct that the plaintiff’s entitlement to late payment interest be assessed by the High Court by first making the determination of the actual BLR rate and number of days late.”

The parties herein agreed that the assessment before this Court be undertaken by way of affidavit evidence.

Having considered the affidavits filed and the submissions of parties, this Court on 5.6.2026 determined the composition of the late payment interest in so far as :-

(i) the applicable Maybank BLR, as the necessary component of the contractual prescribed rate under the Contract was at 1% plus the Maybank BLR (“Prescribed Rate”); and

The formula for the late payment interest is a simple arithmetic equation : Interest = outstanding amount × 𝑃𝑟𝑒𝑠𝑐𝑟𝑖𝑏𝑒𝑑 𝑅𝑎𝑡𝑒× number of days overdue 365

Dissatisfied with my determination of the Prescribed Rate and the Relevant Dates, the Defendant promptly lodged an appeal.

It must be noted that, as at the date of this Grounds of Judgment, the parties have yet to submit the finalised computation of the late payment interest. Whilst this Court has determined the components required to calculate such interest, the exact quantum remains outstanding and has yet to be awarded by the Court. Until that exercise has been completed, the full monetary consequences of this decision cannot be precisely ascertained. Accordingly, any issue concerning the ultimate amount payable, or any consequential question arising from the final computation, falls to be determined only after the parties have submitted the requisite calculation to Court.

At this juncture, whether this appeal is premature and whether it can be sustained and/or maintained is beyond the purview of this Grounds of Judgment.

In any event, I append below my grounds in determining the Prescribed Rate and the Relevant Dates to calculate the number of days the Defendant has delayed in making the payment(s) to the Plaintiff. Background Facts

The Plaintiff was engaged by the Defendant as the main contractor for the construction project which forms the subject matter of the underlying action.

It is common ground that the contractual relationship between parties was governed by the PAM Contract 2006 (With Quantities) (“the Contract”).

The Plaintiff contends that the Defendant failed to pay the certified sums within the agreed period and as such claimed in this action, inter alia, simple interest at the Prescribed Rate (Maybank BLR plus 1%) on the outstanding certified sums until payment pursuant to Clause 30.17 of the Contract.

At the conclusion of the trial, on 5.7.2024, the Plaintiff’s claim for, inter alia, late payment interest was dismissed and the Plaintiff lodged an appeal to the Court of Appeal.

On 8.8.2025, the Court of Appeal unanimously allowed the appeal vide the CoA Order.

15.

(i) the Plaintiff’s Affidavit affirmed by Yap Sze Qing on 14.11.2025 (Enclosures 64- 67);

(v) the Defendant’s Affidavit in Reply (No. 2) affirmed by Ng Chi Wei on 15.5.2026 (Enclosure 74);

It is the Plaintiff’s case that:

(i) the Defendant delayed in the payment of each invoice that followed the progressive certificate, with the exception of Certificates No. 16 and 30, beyond the agreed period of payment, i.e 30 days;

The Plaintiff initially claimed late payment interest of RM545,953.03. Through its revised computation marked as Exhibit “Y-5” in its Affidavit at Enclosure 67, the Plaintiff subsequently quantified the interest at RM524,623.01. And finally through its Corrective Affidavit at Enclosure 79, the Plaintiff has since quantified late payment interest at RM525,482.26. Relevant Dates

Exhibit “Y-4” of Enclosures 65 and 66 particularised the due dates, payment dates, amounts paid, applicable rates and number of days of delay for each certificate, and exhibited the relevant certificates, invoices, payment vouchers and cheques to establish the Relevant Dates to calculate the late payment interest. Maybank BLR

Exhibit “Y-3” of Enclosure 64 was the historical data of the BLR of Maybank (“Maybank BLR”) obtained from website https://baserate.my/maybank/index.htm.

The Plaintiff also relied on an affidavit affirmed by Tan Wee Jiun, Enclosure 72, concerning the historical Maybank BLR where the Plaintiff’s Solicitor has deposed that:

(i) letters dated 21.1.2026 and 10.3.2026 were sent by the Plaintiff’s Solicitors to Maybank seeking confirmation of the rates as stated in “Y-3”, which remained unanswered;

It is the Defendant’s case that based on the terms of the CoA Order, the Plaintiff remained obliged to prove its quantum for late payment interest and to that end the Defendant contended that the Plaintiff has failed to :-

(i) prove the Maybank BLR as there was no formal confirmation from Maybank;

(v) the Plaintiff’s representatives sometimes failed to collect the cheques or requested the Defendant to hold them.

The Defendant produced Exhibit “NCW-2” in Enclosure 74 which is a schedule comparing the certificate dates, invoice dates, payment voucher dates, cheque dates and the dates on which some cheques were allegedly collected by the Plaintiff.

Hence it is the Defendant’s position that the Plaintiff is not entitled to any late payment interest. The Law

Unless stayed or set aside, that CoA Order remains binding on parties and this Court. Further as the Defendant’s application for leave to appeal to the Federal Court was dismissed on 12.2.2026, this Court has proceeded to assess the late payment interest claimed by the Plaintiff by determining first the Prescribed Rate and the Relevant Dates.

This, however, does not mean that the Plaintiff is relieved of its burden to prove the amount claimed. By virtue of s. 101 to s.103 of the Evidence Act 1950, the Plaintiff bears the legal burden of establishing the relevant certified amounts, contractual due dates, applicable rates, period of default and payment dates. The standard of proof is on a balance of probabilities.

A starting point in any civil claim would be the burden of proof imposed on the party advancing its claim. S. 101 Evidence Act 1950 :

Once the party has successfully proven the facts he asserted in his claim, the onus then shifts to the other party to prove why judgment should not be entered against the other party. S. 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.

The interplay between ss. 101- 103 Evidence Act 1950 was examined recently by the Federal Court in Live Capital Sdn Bhd v Pioneer Conglomerate Sdn Bhd (2025) 6 CLJ 855 where it was held as follows :- “[22] As for the burden of proof, we must say with all due respect that it was wrong for the Court of Appeal to have imposed such evidential burden of proof on the appellant. Before any burden legal or evidential shifted to the appellant, it must first be shown that the respondent had succeeded in establishing a prima facie case against the appellant. Should it fail to do so, the appellant need not even call evidence in answer to the respondent’s claim as the respondent would then have failed to discharge its legal and evidential burden under ss. 101 and 102 of the Evidence Act 1950 (‘the Evidence Act’) to prove its pleaded case that the RM7 million was an advance and not a commission. To paraphrase the Privy Council in Raja Chandranath Roy v. Ramjai Mazumdar 6 BLR 303, in that situation the appellant could say to the respondent: “It is wholly immaterial whether I prove my case or not. You have not proved yours.” [own emphasis]

In the case of Rosliza Ibrahim v Kerajaan Negeri Selangor & Anor (2021) 3 CLJ 301, the Federal Court had the opportunity to reiterate the following : “Therefore, to resolve the burden of proof issue, reading ss. 101, 102 and 103 of the Evidence Act 1950 together, the legal burden remains on the plaintiff to prove to some degree that there is merit in her claim that she is illegitimate. She does this by adducing evidence of doubt, on a balance of probabilities, as to whether Ibrahim and Yap Ah Mooi were married. Once sufficient evidence is established to that effect, the legal burden shifts to the defendants to establish affirmatively that the said persons were married as that is a fact which they assert in rebuttal.” Analysis and Findings

The relevant clause in the Contract with respect to the late payment interest is Clause 30.17 which is reproduced below :

The Court of Appeal has unequivocally found that the Plaintiff was in fact entitled to late payment interest and this Court is to assess such entitlement.

The mandate from the Court of Appeal was precise. This Court was tasked with quantifying the late payment interest based on:

(a) the actual number of days of delay, calculated from the contractual due date of each certificate until the date payment was made (“Relevant Dates”); and

(b) the actual Maybank BLR applicable on those corresponding dates, as Clause 30.17 of the Contract provides for interest to be calculated at 1% per annum above the Maybank BLR (“Prescribed Rate”).

Whilst the Defendant remains entitled to challenge the Prescribed Rate and the number of days payments were due based on the Relevant Dates, the Defendant cannot convert those issues of quantification into a collateral attempt to restore the complete dismissal of the claim.

As such, the issues before this Court are narrow and may be formulated as follows:

(i) whether on a balance of probabilities the Plaintiff has proven the applicable Maybank BLR;

(i) Whether the applicable Maybank BLR was proved

The Plaintiff produced the historical data of Maybank BLR, obtained from website https://baserate.my/maybank/index.htm, exhibited as Exhibit “Y-3” of Enclosure 64.

The Defendant objects to the Maybank BLR as appearing above on the basis that Maybank did not issue a formal letter confirming them.

I accept that the evidence may be less than ideal and could have been better presented. A written confirmation from Maybank or evidence from an appropriate bank officer would have placed the issue beyond doubt.

However, the question is whether the applicable rates were proven on a balance of probabilities.

In this case, the Plaintiff has shown :

(i) the historical data specified the Maybank’s BLR rates and their respective effective dates;

Other than questioning the accuracy of Maybank BLR, the Defendant :-

(i) did not produce any Maybank publication stating a different BLR rate;

In both its affidavit in reply, Enclosures 70 and 72, the Plaintiff contends that the Defendant has failed to produce any alternative Maybank BLR, expert report on the applicable BLR or alternative computation for the late payment interest.

While the absence of a formal bank confirmation goes to the weight of the Plaintiff’s evidence, it does not by itself establish that the rates are wrong. I am satisfied that the Plaintiff has obtained the Maybank BLR from the website that collates the various bank’s BLR, including that of Maybank which clearly stated the BLR of Maybank at the relevant and material dates.

Putting it another way, the Plaintiff has discharged its burden of proof to show the Maybank BLR, and by extension the Prescribed Rate, to be adopted in the calculation of the late payment interest.

The Defendant cannot merely assert that the rates may be inaccurate without identifying what the correct rates should be. In other words, the Defendant has failed to discharge the evidential burden placed on it to disprove the Maybank BLR.

On the evidence before this Court, I am satisfied that the rates as stated in Exhibit “Y-3” was Maybank BLR and that has been proved on a balance of probabilities.

As such, the Court adopts the following Maybank BLR in this assessment exercise : Effective Date

Maybank BLR

7.2016

6.65%

29.1.2018

6.9%

24.1.2020

6.4%

(a) Due dates

Clause 30.17 provides that interest becomes payable upon the expiry of the agreed period for payment. The invoice date is therefore not, by itself, the contractual trigger. The trigger is the non-payment after the agreed period of payment.

I accept that each invoice issued pursuant to the relevant certificate was stated to be payable within 30 days, and that the Defendant did not raise any dispute on this issue in its affidavits in reply vide Enclosures 69 and 74.

The relevant certificate, invoice and contractual payment period must be considered together. These supporting documents, namely the progress certificates, invoices, payment vouchers, cheques and bank deposit acknowledgement allocating each payment to the corresponding certificate, were exhibited as part of Exhibit “Y-4” contained Enclosures 66 and 67.

The Plaintiff’s entitlement to late payment interest stems from the Defendant’s delay in paying the invoices issued by the Plaintiff when they fell due, save and except for Certificate No.s 16 and 30.

The Defendant contends that some invoices were delivered after the dates appearing on them and that the payment period should commence from actual receipt.

To establish this contention, the Defendant could reasonably have produced the invoice(s) with the Defendant’s receipt acknowledgement which the Defendant has failed to do in its entirety.

No complete body of such contemporaneous evidence was produced by the Defendant. Exhibit “NCW-2” of Enclosure 74 is a retrospective schedule prepared by the Defendant for the purpose of the assessment. With no supporting documents attached to it, standing alone, it cannot prove the disputed dates and falls short as sufficient proof of the actual date of receipt of each invoice.

I find that the schedule prepared by the Defendant to be a self-serving document and of no probative value for the following reasons :-

(i) it was prepared by the Defendant for the purposes of the assessment and was not a contemporaneous document;

In ATM Development Sdn Bhd v Pembinaan Melima (M) Sdn Bhd (2026) CLJU 621, the High Court rejected documents prepared for the purpose of substantiating its claim when the same is uncorroborated : “[90] I am also unable to accept that all staff salaries and contributions are "losses" without proper evidence of how these relate to the Phase 2(A) Project's delay. With respect, the 8 pages of summary of staff salary at Bundle F, pgs. 94 -101 provided to this Court to substantiate the Plaintiff's claim fails to reach the threshold of the requirement of balance of probabilities. I further find such a document as a self serving document which has not been corroborated by any documentary evidence.” [own emphasis]

This Court has undertaken the task of ascertaining the Relevant Dates of the affected invoices from the Payment Certificates and Invoices produced by the Plaintiff in Enclosures 66 and 67 in this assessment proceedings which is tabulated at paragraph 67 below.

(b) Payment dates

The Defendant further contends that the Plaintiff used incorrect payment dates because some payment vouchers and cheques were prepared earlier but either taken later by the Plaintiff or the Plaintiff has requested the Defendant to hold these payments.

This allegation by the Defendant is not supported by:

(i) the identity of the Plaintiff’s representative who made the request;

(v) an acknowledgment of late collection; or

I find that the bare assertion that the Plaintiff sometimes requested the Defendant to hold its cheques, without evidence thereto, is insufficient to transfer responsibility for the delay to the Plaintiff.

Further, the internal preparation of a payment voucher does not constitute payment to the Plaintiff. Nor does the date appearing on a cheque necessarily prove the date upon which the cheque was delivered or made unconditionally available to the Plaintiff.

I therefore reject the contention that the voucher date or cheque date must automatically be adopted as the payment date for all the certificates.

As such, this Court adopts the payment date as the date the Plaintiff received the cheque(s) as evidenced in the Payment Voucher or in the absence of an acknowledgment, where the Payment Voucher was accompanied by a banker’s cheque bearing the following day’s date and the surrounding records show no later collection, I find on a balance of probabilities that delivery occurred on that date.

Having independently reviewed and computed the Relevant Dates against the corresponding dates of payment, I am satisfied that, in addition to Certificates Nos. 16 and 30, the Defendant effected payment in respect of Certificates Nos. 2, 3, 4 and 5 within the prescribed agreed period. Accordingly, no late payment interest is payable in respect of Certificates Nos. 2, 3, 4, 5, 16 and 30.

As elucidated at paragraph 4 above, after determining the Prescribed Rate and the Relevant Dates, parties were directed to calculate the late payment interest based on the Prescribed Rate and the number of days late (from the Relevant Dates) for the Court's determination.

However, parties have yet to revert on the said calculation to enable an assessment award to be made. Meanwhile, this appeal was lodged by the Defendant. Conclusion on Prescribed Rate and Relevant Dates

Based on the facts presented thus far, I find that:

(i) the applicable Maybank BLR plus 1% being the Prescribed Rate was proved on a balance of probabilities;

Accordingly, on 5.6.2026 this Court determined the applicable Prescribed Rate and the dates relevant for the calculation of number of days late as follows : - Cert. no 1: Prescribed Rate 7.65%, from 24.7.2016 to 16.8.2016 - Cert. no 1: Prescribed Rate 7.65%, from 24.7.2016 to 16.11.2016 - Cert. no 6: Prescribed Rate 7.65%, from 29.12.2016 to 6.1.2017 - Cert. no 7: Prescribed Rate 7.65%, from 30.1.2017 to 1.3.2017 - Cert. no 8: Prescribed Rate 7.65%, from 25.2.2017 to 29.3.2017 - Cert. no 8: Prescribed Rate 7.65%, from 25.2.2017 to 17.4.2017 - Cert. no 9: Prescribed Rate 7.65%, from 8.4.2017 to 16.5.2017 - Cert. no 9: Prescribed Rate 7.65%, from 8.4.2017 to 29.5.2017 - Cert. no 9: Prescribed Rate 7.65%, from 8.4.2017 to 29.5.2017 - Cert. no 9: Prescribed Rate 7.65%, from 8.4.2017 to 13.6.2017 - Cert. no 9: Prescribed Rate 7.65%, from 8.4.2017 to 13.6.2017 - Cert. no 10: Prescribed Rate 7.65%, from 7.5.2017 to 19.6.2017 - Cert. no 11: Prescribed Rate 7.65%, from 11.6.2017 to 7.7.2017 - Cert. no 11: Prescribed Rate 7.65%, from 11.6.2017 to 24.7.2017 - Cert. no 12: Prescribed Rate 7.65%, from 1.7.2017 to 2.8.2017 - Cert. no 12: Prescribed Rate 7.65%, from 1.7.2017 to 22.8.2017 - Cert. no 13: Prescribed Rate 7.65%, from 31.7.2017 to 23.8.2017 - Cert. no 14: Prescribed Rate 7.65%, from 26.8.2017 to 18.9.2017 - Cert. no 15: Prescribed Rate 7.65%, from 29.9.2017 to 13.10.2017 - Cert. no 17: Prescribed Rate 7.65%, from 2.12.2017 to 26.12.2017 - Cert. no 18: Prescribed Rate 7.65%, from 18.12.2017 to 29.1.2018 - Cert. no 19: Prescribed Rate 7.9%, from 2.2.2018 to 7.3.2018 - Cert. no 19: Prescribed Rate 7.9%, from 2.2.2018 to 21.3.2018 - Cert. no 19: Prescribed Rate 7.9%, from 2.2.2018 to 13.4.2018 - Cert. no 20: Prescribed Rate 7.9%, from 18.2.2018 to 3.5.2018 - Cert. no 20: Prescribed Rate 7.9%, from 18.2.2018 to 8.6.2018 - Cert. no 21: Prescribed Rate 7.9%, from 19.3.2018 to 11.6.2018 - Cert. no 22: Prescribed Rate 7.9%, from 17.4.2018 to 30.7.2018 - Cert. no 23: Prescribed Rate 7.9%, from 17.5.2018 to 24.8.2018 - Cert. no 24: Prescribed Rate 7.9%, from 16.6.2018 to 20.9.2018 - Cert. no 25: Prescribed Rate 7.9%, from 19.7.2018 to 20.9.2018 - Cert. no 26: Prescribed Rate 7.9%, from 17.8.2018 to 25.10.2018 - Cert. no 27: Prescribed Rate 7.9%, from 16.8.2018 to 22.11.2018 - Cert. no 28: Prescribed Rate 7.9%, from 30.9.2018 to 26.12.2018 - Cert. no 28: Prescribed Rate 7.9%, from 30.9.2018 to 26.12.2018 - Cert. no 29: Prescribed Rate 7.4%, from 31.1.2020 to 19.5.2020 For the avoidance of doubt, the appearance of multiple Relevant Dates in respect of certain Certificates does not denote multiple certificates or duplicate entries. Rather, it reflects the fact that the Defendant effected payment of those Certificates by way of more than one payment. Where only part of the certified amount was paid, the balance continued to remain outstanding and attracted a further Relevant Date corresponding to the subsequent payment made towards that outstanding balance. The late payment interest is therefore to be calculated separately for each payment by applying the Prescribed Rate to the corresponding portion of the certified amount for the period during which that portion remained outstanding.

At this juncture, the quantum of the late payment interest remains outstanding and has yet to be finalised by the parties. Only upon the completion of the computation of the late payment interest would parties' respective positions crystallise. It follows that the ultimate financial implications arising from the computation of the late payment interest have likewise yet to crystallise. In those circumstances, any question as to whether the present appeal remains sustainable, ought to be maintained, or is premature by reason of the eventual quantum falls outside the issues presently before this Court. Accordingly, I refrain from expressing any concluded view on those matters, as they lie beyond the proper scope of this Grounds of Judgment. Dated : 24th July 2026 t.t ………………………………………… Shahriza Zalina Binti Abdul Shukor Judicial Commissioner High Court of Malaya Shah Alam For the Plaintiff: Maurice Scully Tan Wee Jiun (M Scully) For the Defendant: Nur Syahirah bt Ramli (J M Chong Vincent Chee & Co.)