Atd Solution (M) Sdn Bhd v 1. ) Kementerian Pendidikan Malaysia (WA-21NCvC-108-10/2022)

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1 IN THE HIGH COURT AT MALAYA AT KUALA LUMPUR IN THE FEDERAL TERRITORY OF KUALA LUMPUR WRIT SUMMON NO: WA-21NCVC-108-10/2022 BETWEEN ATD SOLUTION (M) SDN BHD (Company No.: 844274-V) …PLAINTIFF AND 1) KEMENTERIAN PENDIDIKAN MALAYSIA 2) KERAJAAN MALAYSIA …DEFENDANTS 26/06/2024 16:42:45 WA-21NCvC-108-10/2022 Kand. 65

Lampiran

Lampiran 3-1 (Jadual Bayaran Pelanjutan)” [See Bundle B1 page 160 clause 7] [12] The plaintiff had completed and delivered its services for Phase 1 and Phase 2 whereby the 1st defendant had paid the sum of RM 904,816.00 for Phase 1 and RM 1,164,008.10 for Phase 2 from the contract value of RM 1,270,176.80 after deducting RM 106,168.70 as LAD for the delay in Phase 2 (which deduction is now disputed by the plaintiff). [13] Parties are also in dispute over the services rendered by the plaintiff for Phases 3 and 4 and the non-payments for Phases 3 and 4 by the 1st defendant. [14] The plaintiff filed a court suit against the defendants at the High Court before me. Court Pleadings The pleaded case of the plaintiff [15] The plaintiff claims against the two defendants for refund of LAD for Phase 2 of RM 106,168.70. No particulars were given though in paragraph 22 of the Statement of Claim. [16] The plaintiff pleaded that the plaintiff has completed Phases 3 and 4 by sending in the form of “softcopy” to the 1st defendant progressively from 05-01-2021 to 31-01-2021 before the end of the extended completion date of 31-01-2021 under the Additional Contract. [See Bundle A page 10 Statement of Claim paragraph 11]. [17] The plaintiff further pleaded that due to the Movement Control Order and lockdown the plaintiff could only send the “hardcopy” of the work done for Phases 3 and 4 to the 1st defendant on 01-11-2021. [See Bundle A page 10 Statement of Claim paragraph 12]. [18] As stated earlier, the plaintiff has dropped the claim for the performance bond sum of RM 180,136.40 as the 1st defendant did not forfeit the bond. [19] In summary, at the trial before me the plaintiff now claims against the two defendants for the sum of RM 1,178,462.00 for Phases 3 and 4 and for refund of LAD for Phase 2 of RM 106,168.70. [See Bundle A paragraph 22 of the Statement of Claim in PDF page 15]. The Pleaded Defence [20] The defendants pleaded that for the completion of Phases 3 and 4 the plaintiffs must send both the “softcopy” and the “hardcopy” of the work to the 1st defendant before the end of the extended completion date of 31-01-2021 under the Additional Contract. [See Bundle A Defence at pages 19 to 21 at paragraphs 6(b), 8(b) and 9]. [21] The defendants also pleaded that the plaintiff is in breach of contract as the hardcopy was only sent on 01-11-2021 after the deadline of 31- 01-2021 as Clause 1.1 of the Main Contract states that “Serahan” means submission in the form of softcopy and hardcopy (including designs, diagrams, details, plans, documentation and reports). [See Bundle A Defence at page 22 at paragraphs 11, 12 and 15]. [22] Clause 1.1 of the Main Contract can be seen in Bundle B1 at page 5. [23] The defendants further pleaded that the plaintiff is in breach of contract as the plaintiff failed to complete Phases 3 and 4. [See Bundle A Defence at page 25 at paragraph 15 (c)]. [24] In respect of the plaintiff’s claim for refund of RM 106,168.70 being LAD charged by the 1st defendant for Phase 2, the defendants contend they were entitled to charge for late submission by the plaintiff from 01-01- 2020 to 07-11-2020 when it was submitted after the deadline of 31-12- 2019. [See Witness Statement of Rubaizah binti Yatim Q and A 29]. The Trial Process [25] The plaintiff called 3 witnesses. They are - i. Siew Chin Kok (PW1) – General Manager ii. Irni binti Jasni (PW2) – Programme Manager iii. Hasan Ganny bin Hanif Francis (PW3) – Chief Enterprise Architect [26] The defendants called 2 witnesses. They are - i. Rubaizah binti Yatim (DW1) – Information Technology Officer from Project Management Office ii. Sarina binti Sabri (DW2) - Information Technology Officer from Project Management Office [27] The plaintiff filed Written Submissions in Enclosures No. 46, 54 and 58. The defendants filed Written Submissions in Enclosures No. 48, 51 and 60. The Issues to Be Tried [28] The plaintiff has filed the Agreed Issues to Be Tried dated 15-03-2023. [See Enclosure 14 Bundle D]. [29] However, based on counsel’s submissions the issues relevant to this trial are - i. Is the plaintiff entitled to claim RM 1,178,462.00 for Phases 3 and 4? ii. Was the plaintiff prevented from fulfilling its obligation under Phases 3 and 4 as it could only send the “hardcopy” of the services to the 1st defendant on 01-11-2021 due to Covid-19 which caused a lockdown? iii. Was the plaintiff prevented from fulfilling its obligation under Phases 3 and 4 as it could only send the “hardcopy” of the services to the 1st defendant on 01-11-2021 due to the delay by the 1st defendant to provide feedback? iv. Is the plaintiff entitled to claim for Phases 3 and 4 based on quantum meruit? v. Is the plaintiff entitled to claim for RM 106,168.70 being refund of LAD for Phase 2? [30] I will consider each issue one by one. Issue 1 - Is the plaintiff entitled to claim RM 1,178,462.00 for Phases 3 and 4? Pleaded case of the plaintiff First aspect - Plaintiff’s witnesses testified plaintiff has completed Phases 3 and 4 by sending in the form of “softcopy” [31] The first aspect of the plaintiff’s pleaded case is the assertion that the plaintiff has completed Phases 3 and 4 by sending in the form of “softcopy”. [See Bundle A page 10 Statement of Claim paragraph 11]. In other words, 100% of Phases 3 and 4 have been completed by way of “softcopy”. [32] In all three (3) witness statements filed on behalf of the plaintiff, all the plaintiff’s witnesses had stated that the plaintiff has completed Phases 3 and 4 by delivering the services progressively from 05-01-2021 to 31- 01-2021 in the form of softcopy - i. Witness Statement of Siew Chin Kok / PW1 in Enclosure 22 in Q and A 9. ii. Witness Statement of Irni binti Jasni / PW2 in Enclosure 23 in Q and A 9. iii. Witness Statement of Hasan Ganny / PW3 in Enclosure 24 in Q and A 9. Second aspect of the plaintiff pleaded case - due to the Movement Control Order and lockdown the plaintiff could only send the “hardcopy” of the services to the 1st defendant on 01-11-2021 [33] The second aspect of the plaintiff’s pleaded case is that due to the Movement Control Order and lockdown the plaintiff could only send the “hardcopy” of the services to the 1st defendant on 01-11-2021. [See Bundle A page 10 Statement of Claim at paragraph 12]. Departure from the first aspect of the pleaded case [34] The plaintiff’s stand prior to post-trial submissions to me on 22-04-2024 is that softcopy submission was done by the plaintiff on the last day of the contract i.e. on 31-01-2021 at 11pm and the hardcopy was submitted about 9 months later on 01-11-2021. Implied in this submission is that both softcopy and hardcopy refer to 100% completed work for Phases 3 and 4. [35] At the stage of post-trial oral submissions before me on 06-02-2024, I pressed plaintiff’s counsel to show proof the work was 100% completed. I directed parties to file further submission on this issue. [36] The plaintiff has now admitted in its subsequent Written Submissions No. 2 dated 08-03-2024 that the plaintiff had only completed partially the work for Phases 3 and 4 and now claimed for whatever portions they said have been done. They now said - i. For work Phase 3 Skop Kerja 4 - Landskap Arkitektur Sasaran, 96% was completed. ii. For work Phase 4 Skop Kerja 5 - Pengoperasioan Amalan EA, 69% was completed. iii. For work Phase 3 & 4 Skop kerja 6 - pengurusan perubahan, 27% was completed. iv. For work Phase 3 & 4 Skop kerja 7 - pengurusan projek 100% was completed. [See the plaintiff’s Written Submissions No. 2 dated 08-03-2024 Enclosure 46 at paragraph 11]. [37] This claim for partial work done amounting to RM 1,178,462.00 was earlier pleaded in the Statement of Claim as for the entire work that was done. [See Bundle A page 10 Statement of Claim paragraph 11]. It was never pleaded as a claim for work completed partially. [38] Further, as I have set out earlier above, in all three (3) witness statements filed on behalf of the plaintiff’, all the plaintiff’s witnesses had stated that the plaintiff has completed Phases 3 and 4 by delivering the services progressively from 05-01-2021 to 31-01-2021 by delivering it in the form of softcopy. [39] In my view the plaintiff has departed from its pleaded case of work completed 100% to partially completed in the various percentages I have set out above. Departure from the second aspect of the pleaded case [40] As stated earlier, the second aspect of the plaintiff’s pleaded case is that due to the Movement Control Order and lockdown the plaintiff could only send the hardcopy of the services to the 1st defendant on 01-11-2021. [See Bundle A page 10 Statement of Claim paragraph 12]. In other words, hardcopy for the 100 % work. [41] The submission now that the plaintiff is claiming for partial work done for the hardcopy is thus a departure from the pleaded case. Plaintiff not permitted to depart from its pleaded case [42] The defendants’ counsel Senior Federal Counsel Zulyana Binti Zollkapli objected forcefully to submit that the plaintiff is not permitted to depart from its pleaded case. I quote the objection below - “Plaintiff in the written submission dated 8.3.2024 submitted that they had completed 96% work for phase 3 and 4. However, despite of the claimed amount of RM1,178,462.00, the 96% percentage was not pleaded and how the calculation of 96% arrived was not made available before this Court during the trial by Plaintiff through any of the testimonies of their witnesses. Therefore, Defendants submit that the explanation on the 96% calculation given by the Plaintiff in their submission about the calculation is merely afterthought and should not be accepted by this Honourable Court. It is the duty of Plaintiff to tender the documentary evidence supported by explanation from their witness about the calculation during the trial, but not during the written submission stage. However, Plaintiff fails to do so.” [43] The defendants contend it is the duty of the plaintiff to tender the documentary evidence supported by explanation from their witnesses about the calculations during the trial and not during the written submission stage. To my mind there is much force in this submission. The defendants have been clearly prejudiced by their inability to challenge the alleged percentages of completion for Phases 3 and 4. [44] The prejudice is in two aspects. Firstly, the defendants have been prevented to answer the claim of various percentages of completion through their witnesses. Secondly counsel for the defendants did not have the opportunity to cross examine the plaintiff’s witnesses on this issue. [45] A case on point is Pembinaan SPK Sdn Bhd v Jalinan Waja Sdn Bhd [2014] 2 MLJ 322 where the Court of Appeal said - “(1) In deciding on his own accord to order damages to be assessed on quantum meruit basis for the sake of justice and fairness, the trial judge had downplayed the maxim ‘audi alteram partem’. To decide on an unpleaded claim was to deny the opposing party the valuable right to answer the claim. The problem in the instant case was compounded by the absence of material facts to support a quantum meruit claim. The claim was never expressly pleaded and was never part of the agreed facts, agreed issues or summary of the plaintiff ’s case which was wholly grounded on a claim for special and general damages (2) The claim for quantum meruit was a cause of action in itself, which was substantive in nature and therefore required express pleading and the adduction at trial of a sufficient foundation of facts derived from evidence tendered through witness testimony or relevant, cogent documentary evidence. By the same token, it was difficult to blandly accept that the ‘omnibus’ prayer of ‘further or other relief’ could supply the omission of an express pleading. Resort to the omnibus prayer only made sense if the main claim was not dismissed, since, after all, the prayer was for ‘further or other relief’”. [Emphasis added] [46] In the premises, I hold that the plaintiff is not allowed to depart from its pleaded case. [47] The next point I must consider is whether the plaintiff has proven its pleaded case. Sections 101 to 103 of the Evidence Act 1950 [48] The law on the burden of proof in Malaysia is governed by sections 101 to 103 of the Evidence Act 1950. These sections read- Burden of proof 101 (1) 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. (2) When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person. (a) A desires a court to give judgment that B shall be punished for a crime which A says B has committed. A must prove that B has committed the crime. (b) A desires a court to give judgment that he is entitled to certain land in the possession of B by reason of facts which he asserts and which B denies to be true. A must prove the existence of those facts. On whom burden of proof lies 102. The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side. (a) A sues B for land of which B is in possession, and which, as A asserts, was left to A by the will of C, B’s father. If no evidence were given on either side, B would be entitled to his possession. Therefore, the burden of proof is on A. (b) A sues B for money due on a bond. The execution of the bond is admitted, but B says that it was obtained by fraud, which A denies. If no evidence were given on either side, A would succeed as the bond is not disputed and the fraud is not proved. Therefore, the burden of proof is on B. Burden of proof as to particular fact 103. 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. (a) A prosecutes B for theft and wishes the court to believe that B admitted the theft to C. A must prove the admission. (b) B wishes the court to believe that at the time in question he was elsewhere. He must prove it. [49] There are three useful decisions of our courts on the construction of sections 101 and 102 of the Evidence Act. [50] The Supreme Court in Selvaduray v Chinniah [1939] MLJ 253 SC per Terrel Ag CJ said - "The burden of proof under section 102 of the Evidence Enactment is upon the person who would fail if no evidence at all were given on either side, and accordingly the Plaintiff must establish his case. If he fails to do so it will not avail him to turn around and say that the Defendant has not established his. The Defendant can say 'it is wholly immaterial whether I prove my case or not. You have not proved yours' (see the Judgment of the Privy Council in Raja Chandranath Roy v. Ramjai Mazumdar 6 Bengal Law Reports, page 303)." [51] The Federal Court in U Television Sdn Bhd and Tan Sri Dato Seri Vincent Tan Chee Yioun v Comintel Sdn Bhd [2017] 10 CLJ 580 FC per Zulkefli Ahmad Makinudin PCA said - 35) On the meaning and application of the term "burden of proof" section 101 of the Evidence Act 1950 ["the Act"] states that it is the burden to establish a case which rests throughout on the party who assert the affirmative of the issue. The "burden of proof" in section 102 of the Act is the burden to adduce evidence, to make out or rebut the claim. The "burden of proof" in section 102 of the Act shifts from one side to the other according to the weight of the evidence. [52] Because sections 101 and 102 both use the phrase “burden of proof”, some judgments in order to draw a distinction between sections 101 and 102 call the burden in section 101 as “burden of proof” and the burden in section 102 as “onus of proof’. [See U Television Sdn Bhd and Tan Sri Dato Seri Vincent Tan Chee Yioun v Comintel Sdn Bhd [2017] 10 CLJ 580 FC per Zulkefli Ahmad Makinudin PCA at [36]]. [53] The “burden of proof” in section 102 is also sometimes called the “evidential burden”. [See Cheong Heng Loong Goldsmiths (KL) Sdn Bhd & Anor v Capital Insurance Bhd [2004] 1 CLJ 357 CA per Gopal Sri Ram JCA]. [54] On “onus of proof’ this is what Zulkefli Ahmad Makinudin PCA said in U Television Sdn Bhd and Tan Sri Dato Seri Vincent Tan Chee Yioun v Comintel Sdn Bhd [2017] 10 CLJ 580 FC which bears setting out in extenso – [35] On the meaning and application of the term “burden of proof” s. 101 of the Evidence Act 1950 (“the Act”) states that it is the burden to establish a case which rests throughout on the party who assert the affirmative of the issue. The “burden of proof” in s. 102 of the Act is the burden to adduce evidence, to make out or rebut the claim. The “burden of proof” in s. 102 of the Act shifts from one side to the other according to the weight of the evidence. [36] In the Federal Court’s case of Letchumanan Chettiar Alagappan (As Executor To SL Alameloo Achi (Deceased)) & Anor v. Secure Plantation Sdn Bhd [2017] 5 CLJ 418 His Lordship Jeffrey Tan, FCJ cited with approval the principle laid down in the case of Ranchhodbhai v. Babuhai AIR 1982 Guj 308 as regards the “burden of proof” to establish a case which never shift and the shifting burden to adduce evidence in the context of ss. 101 and 102 of the Indian Evidence Act which are identical to ss. 101 and 102 of our Act as follows: It is also well to bear in mind that there is an essential distinction between ‘burden of proof’ and ‘onus of proof’; burden of proof lies upon the person who has to prove a fact and it never shifts, but the onus of proof shifts. Such a shifting of onus is a continuous process in the evaluation of evidence. [See Raghavamma v. Chenchamma, AIR 1964 SC 136]. Burden of proof has two distinct meanings, namely, (i) the burden of proof as a matter of law and pleadings, and (ii) the burden of proof as a matter of adducing evidence. Section 101 of the Evidence Act deals with the former and Section 102 of the Evidence Act with the latter. The first remains constant but the second shifts. In a claim application, therefore, the burden of proof, in the first sense, certainly lies on the claimant. If he examines himself and his witness, if any, and if the evidence, tested in the light of the principle as set out above, is found to be acceptable, the onus shifts on the tortfeasor to prove those circumstances, if any, which dislodge the assertions of the claimants. If the tortfeasor fails to prove before the Court any fact or circumstance which tends to affect the evidence led by the claimant, the claimant would be entitled to ask the Court to hold that he has established the case and, on that basis, to make a just award it would thus appear, that though the legal burden, - the burden as a matter of law and pleadings - remains constant on the claimant, the burden as a matter of adducing evidence changes often times as the trial of the claim petition progresses. [Emphasis added] [55] On “evidential burden” this is what Gopal Sri Ram JCA said in Cheong Heng Loong Goldsmiths (KL) Sdn Bhd & Anor v Capital Insurance Bhd [2004] 1 CLJ 357 CA at 367 – The law on the burden of proof in this case is governed by ss. and 102 of the Evidence Act 1950. In accordance with s. 101, the legal burden of establishing that there is money owing from the respondent to Chan lies on the appellant. However, in accordance with s. 102, the evidential burden may move back and forth from the appellant to the respondent and vice versa in the course of the trial. On this point, we find it sufficient to quote from Sarkar on Evidence, 15th edn, vol. 2, p. 1452: There is an essential distinction between the ‘burden of proof’ as a matter of law and pleading and as a matter of adducing evidence. The burden in the first sense is always constant but the burden in the sense of adducing evidence shifts from time to time having regard to the evidence adduced or the presumption of fact or law raised in favour of one or the other (Ajit Pd v. Nandini, A [1975] Or 184). If the prima facie case is not rebutted by cogent evidence and remains unanswered or the answer given does not create serious doubt in the mind of the court, then the burden of proof on the pleadings should be deemed to have been discharged (Mg Hmoot v. Offl Receiver, 14 R 704: A [1937] R 276; see also Bhola v. Bhagwat, 13 CPLR 159; Gangadin v. Bahoram, A [1937] N 230). The true test of onus in the case of ‘shifting’ has been thus put by Lord Hanworth MR: It appears to me that there can only be sufficient evidence to shift the onus from one side to the other if the evidence is sufficient prima facie to establish the case of the party on whom the onus lies. It is not merely a question of weighing feathers on the one side or the other, and of saying that if there were two feathers on one side and one on the other that would be sufficient to shift the onus. What is meant is, that in the first instance the party on whom the onus lies must prove his case sufficiently to justify a judgment in his favour if there is no other evidence. (Stoney v. Eastbourne R D Council [1927] 1 Ch 367, 397). [Emphasis added] Application of law to facts [56] So, has the plaintiff proven its pleaded case that the plaintiff is entitled to claim RM 1,178,462.00 for completing Phases 3 and 4? [57] The short answer is ‘No’ based on the admissions in post-trial submissions by the plaintiff. [58] As I have set out earlier, when pressed by me to show proof the work was 100% completed, the plaintiff admitted in its Written Submissions that the plaintiff had only completed partially the work for Phases 3 and 4 and now claimed for whatever portions they said have been done. [See Enclosure 46 the plaintiff’s Written Submissions No. 2 dated 08- 03-2024 at paragraph 11]. [59] In conclusion, I hold that issue (1) is answered in favour of the defendants. The plaintiff has not proven it completed Phases 3 and 4 and thus is not entitled to claim RM 1,178,462.00. Issue 2 - Was the plaintiff prevented from fulfilling its obligation under Phases 3 and 4 as it could only send the “hardcopy” of the services to the 1st defendant on 01-11-2021 due to Covid-19 which caused a lockdown? [60] There are two sub-issues. They are - i. Was the softcopy for the entire work for Phases 3 and 4 sent by the plaintiff? ii. Was the plaintiff prevented from sending the “hardcopy” of the services to the 1st defendant on 01-11-2021 due to Covid-19 which caused a lockdown in Malaysia? [61] I will consider each sub-issue one by one. Sub-issue 1 - Was the softcopy for the entire work for Phases 3 and 4 sent by the plaintiff? [62] The plaintiff has admitted in its Written Submissions that the plaintiff had only completed partially the work for Phases 3 and 4 and now claimed for whatever portions they said have been done. [See Enclosure 46 the plaintiff’s Written Submissions No. 2 dated 08-03- 2024 at paragraph 11]. [63] This would mean that the plaintiff failed to send the softcopy to the 1st defendant for the complete works which is contrary to their pleaded case. Sub-issue (1) is therefore answered against the plaintiff. Consequentially issue 2 is answered against the plaintiff without the need to consider sub-issue (2). [64] I will however still proceed to consider sub-issue 2 for completeness. Sub-issue 2 - Was the plaintiff prevented from sending the “hardcopy” of the services to the 1st defendant on 01-11-2021 due to Covid-19 which caused a lockdown in Malaysia? Background to Covid-19 lockdowns in Malaysia [65] Coronavirus disease 2019 (COVID-19) is an infectious disease caused by the coronavirus SARS-CoV-2 virus. The first known case was identified in Wuhan, China, in December 2019. The disease rapidly spread worldwide resulting in a pandemic. [66] The preventive measures adopted by governments worldwide to reduce the chances of infection included getting vaccinated, staying at home, wearing a mask in public, avoiding crowded places, keeping distance from others and washing hands with soap and water often. [67] To enforce these preventive measures governments worldwide imposed lockdowns ranging from stay-at-home orders, curfews, quarantines and cordons sanitaires. [68] In Malaysia lockdown was also imposed beginning on 18-03-2020 and were called Movement Control Order (in Malay: Perintah Kawalan Pergerakan), commonly referred to as MCO or PKP. Legislation to mitigate the impact of Covid-19 lockdowns on contractual obligations Temporary Measures for Reducing The Impact of Coronavirus Diseases 2019 (Covid-19) Act 2020 [69] The Movement Control Order resulted in parties to contracts unable to perform their contractual obligations through no fault of their own. The Malaysian government therefore had passed legislation to mitigate the Movement Control Order’s impact on contractual obligations. [70] The relevant act passed is the Temporary Measures for Reducing The Impact of Coronavirus Diseases 2019 (Covid-19) Act 2020. The part that deals with contractual obligations is Part II in particular sections 7, 10, and the Schedule which read as follows - Inability to perform contractual obligation 7. The inability of any party or parties to perform any contractual obligation arising from any of the categories of contracts specified in the Schedule to this Part due to the measures prescribed, made or taken under the Prevention and Control of Infectious Diseases Act 1988 [Act 342] to control or prevent the spread of COVID-19 shall not give rise to the other party or parties exercising his or their rights under the contract. … SCHEDULE [Section 7] LIST OF CATEGORIES OF CONTRACTS 1. Construction work contract or construction consultancy contract and any other contract related to the supply of construction material, equipment or workers in connection with a construction contract 2. Performance bond or equivalent that is granted pursuant to a construction contract or supply contract 3. Professional services contract 4. Lease or tenancy of non-residential immovable property 5. Event contract for the provision of any venue, accommodation, amenity, transport, entertainment, catering or other goods or services including, for any business meeting, incentive travel, conference, exhibition, sales event, concert, show, wedding, party or other social gathering or sporting event, for the participants, attendees, guests, patrons or spectators of such gathering or event 6. Contract by a tourism enterprise as defined under the Tourism Industry Act 1992 [ Act 482] and a contract for the promotion of tourism in Malaysia 7. Religious pilgrimage-related contract … Saving 10 Notwithstanding section 7, any contract terminated, any deposit or performance bond forfeited, any damages received, any legal proceedings, arbitration or mediation commenced, any judgment or award granted and any execution carried out for the period from 18 March 2020 until the date of publication of this Act shall be deemed to have been validly terminated, forfeited, received, commenced, granted or carried out. [Emphasis added] The legal burden on a contracting party seeking to be excused from his contractual obligation [71] In my view a contracting party seeking to be excused from his contractual obligation is required by section 7 read with the Schedule to Part II to show that - i. His contract is one of the categories of contracts specified in the Schedule to Part II; and ii. That he was unable to perform his contractual obligation due to the measures prescribed, made or taken under the Prevention and Control of Infectious Diseases Act 1988 to control or prevent the spread of COVID-19. [See Ravichanthiran Ganesan v Lee Kok Sun & Ors [2021] 1 LNS 1581 at [21] per Evrol Mariette Peters JC and SN Akmida Holdings Sdn Bhd v Kerajaan Malaysia [2021] 1 MLJU 2449 at [80] per Aliza Sulaiman J] [72] In Ravichanthiran Ganesan v Lee Kok Sun & Ors [2021] 1 LNS 1581 Evrol Mariette Peters JC observed: [21] … there are two aspects to section 7 of the Covid-19 Act that the Plaintiff was required to establish, namely, that a party was unable to perform the contractual obligation; and that such inability was due to the measures prescribed, made or taken under the Prevention and Control of Infectious Diseases Act 1988 to control or prevent the spread of COVID-19. [73] In SN Akmida Holdings Sdn Bhd v Kerajaan Malaysia [2021] 1 MLJU 2449 Aliza Sulaiman J said - [80] With respect, I do not think that a party can simply invoke s 7 of the Covid-19 Act just because the country is experiencing a pandemic and that there have been, and still are, MCO in force to curb the spread of the disease. The situation plaguing the nation, in general, and the Plaintiff as a contractor for the Project, in particular, does not relieve the Plaintiff from the burden of proving, on a balance of probabilities, that – (a) it is unable to perform any contractual obligation whereby the precise duty or duties under the contract should be specified; (b) the inability to perform the contractual obligation arises from one of the categories of contracts as listed in the Schedule to Part II of the Covid-19 Act; and (c) the inability to perform the contractual obligation is due to the measures prescribed, made or taken under Act 342 to control or prevent the spread of COVID-19. The precise measure as prescribed, made or taken under Act 342 must be identified and the nexus between the said measure and the Plaintiff’s inability to perform its contractual obligation(s) must be demonstrated. Hence, even if the Plaintiff has established that its contract with the Defendant falls under the said Item 1, the Plaintiff has clearly failed to prove elements (a) and (c) as outlined above to the satisfaction of this Court. Application to facts [74] The defendants opposed the right of the plaintiff to invoke section 7 of the Temporary Measures for Reducing the Impact of Coronavirus Diseases 2019 (Covid-19) Act 2020 on two grounds - i. Firstly, the defendants contend that the Main Contract is not one of the prescribed contracts in the Schedule to the Temporary Measures for Reducing the Impact of Coronavirus Diseases 2019 (Covid-19) Act 2020. The defendants cite in support a decision of the High Court in SN Akmida Holdings Sdn Bhd v Kerajaan Malaysia [2021] 1 MLJU 2449. Counsel has produced a copy of an order of the Court of Appeal that shows this decision was affirmed by the Court of Appeal and informed me that there are no written grounds from the Court of Appeal; and ii. Secondly, the defendants submit that the burden of proof lies on the plaintiff to show that the plaintiff was unable to serve the hardcopy due to the lockdown. The defendants contend, quote, “As pleaded by Plaintiff (Bundle A, page 34, para 19, “Plaintif juga menyatakan bahawa SOP yang dikeluarkan oleh Majlis Keselamatan Negara, Plaintif tidak dibenarkan beroperasi pada masa tersebut” shall be proved by the Plaintiff on balance of probabilities.” Unquote. [See Enclosure 60 defendants’ Written Submissions (2) at paragraphs 19 – 24] First ground that Government contracts are not included in the Schedule [75] On the first ground the defendants rely on SN Akmida Holdings Sdn Bhd v Kerajaan Malaysia [2021] 1 MLJU 2449 where Aliza Sulaiman J held at [78] that Government construction work contracts are not included in Item 1 of the Schedule, which states “Construction work contract or construction consultancy contract and any other contract related to the supply of construction material, equipment or workers in connection with a construction contract.”. Her ladyship decision was based on the fact that item 1 does not state “Government construction work contracts”. [76] Aliza Sulaiman J’s reasoning is as follows - [58] After having scrutinised the Covid-19 Act, it is evident that there is no express provision in the said Act which states that it is to apply to construction contracts and/ or construction work contracts entered into by the Government. This is in stark contrast to s 2 of the CIPAA which stipulates that the CIPAA “… applies to every construction contract made in writing relating to construction work carried out wholly or partly within the territory of Malaysia including a construction contract entered into by the Government.”. [59] The SFC had also given examples of other statutes which have expressly stated that the legislation is binding on the Government, namely: (a) Arbitration Act 2005 [Act 646] “Government is to be bound by the legislation 5. This Act shall apply to any arbitration to which the Federal Government or the Government of any component state of Malaysia is a party.”; (b) Electronic Commerce Act 2006 [Act 658] 2. “Application (1) Subject to section 3, this Act shall apply to any commercial transaction conducted through electronic means including commercial transactions by the Federal and State Governments.”; and (c) Audit Act 1957 [Act 62] “Short Title 1.(2) This Act shall apply to the audit of the accounts of the Federation, of the States and of such other public authorities and specified bodies as are subject to audit by the Auditor General.”. [60] In the absence of an express provision that “construction work contract” shall include contracts which are entered into by the Government as a party, the next question which arises for determination is whether the Covid-19 Act is applicable to such Government contracts by necessary implication. [61] In this respect, s 63 of Act 388 reads as follows: “Saving of rights of Yang di-Pertuan Agong and Government 63. No written law shall in any manner whatsoever affect the rights of the Yang di-Pertuan Agong or the Government unless it is expressly provided or it appears by necessary implication that the Yang di-Pertuan Agong or the Government, as the case may be, is to be bound thereby.”. [62] In The Province of Bombay v. The Municipal Corporation of the City of Bombay and Another [1947] A.C. 58, Lord Du Parcq in delivering the judgment of the Lords of the Judicial Committee of the Privy Council said: “The general principle to be applied in considering whether or not the Crown is bound by general words in a statute is not in doubt. The maxim of the law in early times was that no statute bound the Crown unless the Crown was expressly named therein, “Roy n’est lie par ascun statue si il ne soit expressement nosme.” But the rule so laid down is subject to at least one exception. The Crown may be bound, as has often been said, “by necessary implication.” If, that is to say, it is manifest from the very terms of the statute, that it was the intention of the legislature that the Crown should be bound, then the result is the same as if the Crown had been expressly named. It must then be inferred that the Crown, by assenting to the law, agreed to be bound by its provisions.”. [63] Apart from The Province of Bombay, the SFC had also cited the case authorities of Moore v Smith [1859] 5 Jur NS 892, Estate Trust Agencies (1927) Ltd v Sim Teng Chew [1948] 1 MLJ 20b, Lord Advocate v Dumbarton District Council [1990] 2 AC 580, Ong Bee Yam v Pengarah Hasil Dalam Negeri, Sarawak & Anor [2002] 3 MLJ 389 and R (on the application of Black) v Secretary of State for Justice [2017] UKSC 81 to support her argument that, in the absence of express words to say that the Government is bound, the general rule is that the Government is not bound by any statutory provision unless it can be construed or gathered from the terms of the relevant Act an intention to that effect. … [69] I have given careful consideration to the juxtaposed submissions by the parties and in my view, the real question which arises for determination in this case is whether item 1 in the list of categories of contracts as set out in the Schedule for purposes of s 7 of the Covid- 19 Act (‘said Item 1’) is applicable, by necessary implication, to construction work contracts which have been entered into by the Government as one of the parties to the same. … [72] In my view, there is nothing ambiguous about the words used in the said Item 1 and they should be given their natural and ordinary meaning whereby “Government construction works contract” is clearly not included. … [78] Based on my assessment of the affidavit evidence and submissions of the parties, it is my finding that if Parliament had intended to include Government construction work contracts in the said Item 1, it would have provided words to that effect in the Schedule to Part II of the Covid-19 Act. By not having done so, I am not prepared to hold that Government construction work contracts are meant to be covered by necessary implication. [Emphasis added] [77] Relying on Aliza Sulaiman J’s reasoning in SN Akmida Holdings Sdn Bhd v Kerajaan Malaysia [2021] 1 MLJU 2449 Senior Federal Counsel Zulyana Binti Zollkapli contends that, likewise, item “3 Professional services contract” does not apply to Government contracts in the absence of the word “Government”. [78] The plaintiff did not submit on this issue. In view of this non-submission and because this suit can be decided on other grounds, I will not venture to make a reasoned decision on this issue without the benefit of full submissions bearing in mind ‘fools rush in where angels fear to tread’. Second ground that the burden of proof lies on the plaintiff to show that the plaintiff was unable to serve the hardcopy due to the lockdown [79] The defendants contend that the plaintiff failed to show that the plaintiff was unable to serve the hardcopy due to the lockdown. [80] No evidence was led by the plaintiff on this. I therefore hold that the plaintiff has failed to show that the plaintiff was unable to serve the hardcopy due to the lockdown. Issue 3 - Was the plaintiff prevented from fulfilling its obligation under Phases 3 and 4 as it could only send the “hardcopy” of the services to the 1st defendant on 01-11-2021 due to the delay by the 1st defendant to provide feedback? [81] The plaintiff has admitted in its Written Submissions that the plaintiff had only completed partially the work for Phases 3 and 4 and now claimed for whatever portions they said have been done. [See Enclosure 46 the plaintiff’s Written Submissions No. 2 dated 08-03- 2024 at paragraph 11]. [82] This would mean that the plaintiff failed to send the ‘softcopy’ to the 1st defendant for the complete works. This issue is answered against the plaintiff. Issue 4 - Is the plaintiff entitled to claim for Phases 3 and 4 based on quantum meruit? [83] I next consider whether the plaintiff can claim under quantum meruit and its codification as section 71 of the Contracts Act 1950. [84] The defendants object to this claim because – i. The plaintiff did not plead quantum meruit in its Statement of Claim or Reply. Thus, the plaintiff is precluded from claiming based on quantum meruit. [See Pembinaan SPK Sdn Bhd v Jalinan Waja Sdn Bhd [2014] 2 MLJ 322 CA per Mohamad Ariff JCA]. ii. There cannot be a claim for quantum meruit if there is an existing contract between the parties to pay an agreed sum. This is because a claim under quantum meruit is based on quasi-contract. [See Syarikat Binaan Utara Jaya (a firm) v Koperasi Serbaguna Sungai Glugor Bhd [2009] 2 MLJ 546 CA, Bauer (Malaysia) Sdn Bhd v Hundred Vision Construction Sdn Bhd & Anor [2020] MLRHU 406 HC per Lee Swee Seng J , Lumbers & anor v W Cook Builders Pty Ltd (In Liq) 247 ALR 412; [2008] HCA 27 High Court of Australia and Barton v Morris and another (in place of Gwyn Jones, decd), [2023] AC 684 UK Supreme Court]. iii. The uncompleted work is of no use to the 1st defendant. The law on quantum meruit and section 71 of the Contracts Act 1950 [85] Section 71 of the Contracts Act 1950 provides as follows: "Where a person lawfully does anything for another person, or delivers anything to him, not intending to do so gratuitously, and such other person enjoys the benefit thereof, the latter is bound to make compensation to the former in respect of, or to restore, the thing so done or delivered." [86] Section 71 of the Contracts Act 1950 is the statutory embodiment of the common law principle of quantum meruit. [See Tanjung Teras Sdn Bhd v Kerajaan Malaysia [2015] MLRAU 468; [2015] 9 CLJ 1002 CA]. [87] Four conditions must be satisfied to establish a claim under section 71. The doing of the act or the delivery of the thing referred to in the section: a. Must be lawful. b. Must be done for another person. c. Must not be intended to be done gratuitously. d. Must be such that the other person enjoys the benefit of the act or the delivery. [See the Privy council’s decision in Siow Wong Fatt v Susur Rotan Mining Ltd & Anor [1967] 1 MLRA 53; [1967] 2 MLJ 118 which was followed in Usima Sdn Bhd v Lee Hor Fong (trading under the name and style of Pembinaan LH Fong) [2017] 5 MLRA 552; [2017] 5 MLJ 273; [2017] 9 CLJ 646; [2017] 6 AMR 652 FC and Bauer (Malaysia) Sdn Bhd v Hundred Vision Construction Sdn Bhd & Anor [2020] MLRHU 406 per Lee Swee Seng J]. Is quantum meruit pleaded in the Statement of Claim? The law [88] A claim in quantum meruit must be pleaded in the Statement of Claim. [See Pembinaan SPK Sdn Bhd v Jalinan Waja Sdn Bhd [2014] 2 MLJ 322 CA]. [89] This is what Mohamad Ariff JCA said in Pembinaan SPK Sdn Bhd v Jalinan Waja Sdn Bhd [2014] 2 MLJ 322 CA – [1] This was an appeal by the defendant from the decision of the High Court after a full trial whereby the learned judicial commissioner dismissed the plaintiffs claim for special and general damages, but nonetheless ordered that damages be assessed by the registrar on a quantum meruit basis in what appeared to be an exercise of the court’s discretion ‘to do justice to the party that deserves it though the pleadings may be less than elegantly worded.’ … … [6] We found the learned judicial commissioner had decided based on an unpleaded claim… [7] The High Court had decided to order an assessment of damages by the registrar based on an ‘omnibus’ prayer in the statement of claim, ie the claim for further and other relief, reflected in para 18(g) of the statement of claim, reading: ‘Lain-lain perintah yang difikirkan wajar, sesuai dan manfaat oleh Mahkamah Yang Mulia ini.’ This, in our judgment, was an error in the circumstances of this case. [8] The learned judicial commissioner also held that compensation could also be payable under s 71 of the Contracts Act 1950, if the basis of quantum merit and implied terms was not available. As for incorporating implied terms, we also agreed with the appellant’s submission that this too was not pleaded. [9] The judicial commissioner, in the exercise of his discretion, had therefore misapplied fundamental rules of pleadings. The issue of quantum meruit was raised only after the full hearing of the witnesses ended, coming up only at the close of the trial when the learned judicial commissioner requested parties to raise it during submission. [10] Thus, no evidence on the claim of quantum meruit was led, nor any evidence on the intention of the parties to support the inference of the implied term for reimbursement; the evidence led related to the respondent’s claims for special and general damages, which were in fact dismissed by the learned judge… … [22] To decide on an unpleaded claim is to deny the opposing party the valuable right to answer the claim by adducing such material facts at the trial as it might find necessary to forward to the court to advance its case against the claim. On the facts of this appeal, however, the problem was compounded by the absence of supporting material facts in relation to a quantum meruit claim. This claim was never expressly pleaded and was never part of the agreed facts or agreed issues. It never figured even in the summary of the plaintiff’s case, the plaintiff’s case was wholly grounded on a claim for special and general damages for breach of the cooperation agreement. … [27] In our view, a claim for quantum meruit here related to more than a claim based on the legal effects of pleaded material facts; it was a cause of action in itself, which was substantive in nature and therefore required express pleading and the adduction at trial of a sufficient foundation of facts derived from evidence tendered through witnesses’ testimony or relevant, cogent documentary evidence. It was too substantive to be subsumed under the blanket notion of it being based on material facts ‘writ large in the whole claim.’ By the same token, it was difficult to blandly accept that the ‘omnibus’ prayer of ‘further or other relief’ could supply the omission of an express pleading. Resort to the omnibus prayer would only make sense where the main claim was not dismissed, since after all this was for ‘further or other relief’. In our opinion, the decision of the Federal Court in Lim Eng Kay v Jaafar bin Mohamed Said, cannot be so liberally read as to countenance a major breach or misapplication of fundamental rules of pleadings and the proper role of the court in our adversarial system of civil justice. [28] There was likewise no basis for s 71 to be applied, especially in the face of clear contractual provisions which made the appointment of the respondent as process designer dependent on further agreement during the post-award stage. Section 71 cannot be interpreted as providing a relief not intended by the parties. To quote this provision for the sake of completeness: Where a person lawfully does anything for another person, or delivers anything to him, not intending to do so gratuitously, and such other person enjoys the benefit thereof, the latter is bound to make compensation to the former in respect of, or to restore, the thing so done or delivered. [Emphasis added] Application to facts [90] The plaintiff did not plead quantum meruit in its Statement of Claim or Reply. Based on settled law the plaintiff is thus precluded from claiming based on quantum meruit. The authority is Pembinaan SPK Sdn Bhd v Jalinan Waja Sdn Bhd [2014] 2 MLJ 322 CA per Mohamad Ariff JCA which I have set out above. Assuming the plaintiff did plead quantum meruit can the plaintiff claim under quantum meruit and its codification under section 71 of the Contracts Act 1950? [91] A second ground against the plaintiff claiming under quantum meruit and its codification under section 71 of the Contracts Act 1950 is that there cannot be a claim for quantum meruit if there is an existing contract between the parties to pay an agreed sum. This is because a claim under quantum meruit is based on quasi-contract. [See Syarikat Binaan Utara Jaya (a firm) v Koperasi Serbaguna Sungai Glugor Bhd [2009] 2 MLJ 546 CA, Bauer (Malaysia) Sdn Bhd v Hundred Vision Construction Sdn Bhd & Anor [2020] MLRHU 406 HC , Lumbers & anor v W Cook Builders Pty Ltd (In Liq) 247 ALR 412; [2008] HCA 27 High Court of Australia and Barton v Morris and another (in place of Gwyn Jones, decd), [2023] AC 684 UK Supreme Court]. [92] In Syarikat Binaan Utara Jaya (a firm) v Koperasi Serbaguna Sungai Glugor Bhd [2009] 2 MLJ 546 CA, Abdul Malik Ishak JCA did a useful review of the law on quantum meruit which bears reproduction in extenso - [39] According to the case of Gilbert & Partners (a firm) v Knight [1968] 2 All ER 248 (CA), a claim on a quantum meruit cannot arise if there is an existing contract between the parties to pay an agreed sum. The facts in Gilbert & Partners (a firm) v Knight may briefly be stated as follows. There, a surveyor agreed to prepare drawings, arrange tenders and supervise works pertaining to alteration, the cost of which he estimated at roughly £600, for a fee of £30. The employer ordered extra work which brought the total cost to £2,283 but the surveyor did not, while the work was going on, tell the employer that he would require further fees. The court held that the surveyor would be bound by the existing agreement to perform services for £30 and could not recover a reasonable sum on a new implied contract. [40] However, there may be a quantum meruit claim in the following situations: (a) when there is an express agreement to pay a reasonable sum; (b) when no price is fixed (thus, if the contractor does work under a contract express or implied and no price is fixed by the contract, the contractor is entitled to be paid a reasonable sum for his labour and the materials supplied (Moffatt v Andrew Laurie & Anor (1855) ER 139; 15 CB 583; Turriff Construction Ltd and Turriff Ltd v Regalia Knitting Mills Ltd (1972) 9 BLR 20; 222 EG 169; [1972] EGD 257; and Holland Hannen & Cubitts (Northern) Ltd v Welsh Health Technical Services Organisation & Ors (1981) 18 BLR 80); (c) in a quasi-contract situation (a classic example would be when work is carried out while negotiations as to the terms of the contract are proceeding but agreement is not reached upon essential terms, the contractor is entitled to be paid a reasonable sum for the work carried out (Trollope & Colls Ltd and Holland & Hannen and Cubitts Ltd, Trading as Nuclear Civil Constructors (a firm) v Atomic Power Constructions Ltd [1963] 1 WLR 333; and Peter Lind & Co Ltd v Mersey Docks and Harbour Board [1972] 2 Lloyd’s Rep 234); (d) when work is performed outside a contract (thus, in a situation where there is a contract for specified work but the contractor does work outside the contract at the employer’s request the contractor is entitled to be paid a reasonable sum for the work outside the contract on the basis of an implied contract (Alexander Thorn v The Mayor and Commonalty of London (1875–1876) LR 1 App Cas 120 at p 127 (HL); Parkinson (Sir Lindsay) & Co Ltd v Commissioners of Works [1949] 2 KB 632 (CA); Greenmast Shipping Co SA v Jean Lion Et Cie SA (The ‘Saronikos’) [1986] 2 Lloyd’s Rep 277; and Cana Construction Co v R [1974] SCR 1159; 37 DLR (3d) 418, Supreme Court of Canada); and (e) when work is done under a void contract (this envisages the situation where a contractor carries out work or renders services under a contract subsequently found to be void, the contractor is entitled to a quantum meruit for the work or services (Craven-Ellis v Canons Ltd [1936] 2 KB 403 (CA); and Rover International Ltd & Ors v Cannon Film Sales Ltd [1989] 1 WLR 912 (CA)). … [43] The term ‘quantum meruit’ is a Latin term. In Latin, it means ‘how much he desires. It is a common terminology in an action of general assumpsit to recover payment for the value of labour and services. [Emphasis added] [93] In Bauer (Malaysia) Sdn Bhd v Hundred Vision Construction Sdn Bhd & Anor [2020] MLRHU 406 Lee Swee Seng J when rejecting a claim based on quantum meruit said - [103] In Lumbers & anor v. W Cook Builders Pty Ltd (In Liq) 247 ALR 412; [2008] HCA 27, the High Court of Australia dismissed a claim for quantum meruit where there is a clear contractual relationship between the parties. [94] Another case stating the same principle is Barton v Morris and another (in place of Gwyn Jones, decd), [2023] AC 684 where the UK Supreme Court by a 3-2 majority said – 100 As to the quantum meruit claim, McCardie J said: “This point calls for attention, inasmuch as it raises a question of interest and importance to all agents who rely on the payment of commission as their means of income. I must point out that the commission note before me represented the result of discussion between the plaintiffs and the defendants. It embodied their bargain. They reduced their agreement to writing. There was no collateral arrangement whatsoever. The rights of the plaintiffs are to be found in the commission note alone, and so the parties intended. If this be so, then it follows … that the rule 'Expressum facit cessare tacitum' here applies. There is no scope on the present facts for the operation of the quantum meruit principle.” (pp 114– 115.) 101 McCardie J cited a number of Court of Appeal authorities supporting his analysis that a plaintiff cannot claim on a quantum meruit where they have chosen to tie themselves down by the express terms of an agreement. There, as in the present case, the contract covers the ground so far as concerns when Mr Barton is entitled to receive a commission for the introduction of the purchaser and there is no room for an unjust enrichment claim. 102 Carr LJ arrived at a similar conclusion nearly a century later at para 133 of Dargamo: “However, where the basis of the consideration is expressly and unconditionally spelt out on the face of a valid and subsisting contract, as here, there is no proper scope for inquiring into an alternative basis that is plainly contrary to the express basis freely agreed between the parties. … [Emphasis added] The uncompleted work is of no use to the 1st defendant [95] A further reason why a claim for quantum meruit is not appropriate is because the uncompleted work is of no use to the 1st defendant. [96] By a letter dated 17-12-2021 the 1st defendant informed the plaintiff their incomplete work cannot be used. [See Enclosure 19 Bundle B3 at page 1211 paragraphs (b) i and (c)]. The plaintiff has not produced any evidence to show otherwise. [97] I now consider issue 5. Issue 5 - Is the plaintiff entitled to claim for RM 106,168.70 being refund of LAD for Phase 2? [98] In the Statement of Claim the plaintiff did not furnish any particulars to support its claim for a refund. [99] In its written submissions the plaintiff contends the 307 days delay from 01-01-2020 till 07-11-2020 was contributed by the defendants themselves and it also due to the temporary lockdown measures imposed by the government at the material time. [See Enclosure 58 paragraphs 59 - 64]. [100] On the other hand, the defendants contend Phase 2 was only completed on 08-11-2020 when it was due on 31-12-2019. So, they were entitled to charge for late submission of Phase 2 by the plaintiff from 01-01-2020 to 07-11-2020 [See Witness Statement of Rubaizah binti Yatim at Q and A 29]. Alleged delay contributed by the 1st defendant [101] I have perused the documents. They do not support the plaintiff’s contention. In particular, by a letter dated 31-01-2020 from the plaintiff to the 1st defendant the plaintiff at paragraph 2 requested for extension of time to complete without being subjected to LAD. The plaintiff further stated at paragraph 3 they were unable to complete in time due to four reasons. [See Enclosure 19 Bundle B3 at page 999]. None of these reasons are the reasons now put forward to me. [102] The 1st defendant replied to the plaintiff by a letter dated 28-05-2020 agreeing to give extension of time to complete but subject to LAD. [See Enclosure 19 Bundle B3 at page 1069 at paragraph 4d]. [103] I find the plaintiff’s case lacking in credibility. Alleged delay due to the temporary lockdown measures imposed by the government at the material time [104] Part II of the Temporary Measures for Reducing the Impact of Coronavirus Diseases 2019 (Covid-19) Act 2020 which deals with the ‘inability to perform contractual obligation’ only came into force on 18- 03-2020. [See section 5 of the Act]. This was after the plaintiff had already breached the completion obligation for Phase 2 when it was due on 31-12-2019. [105] As a matter of law, the plaintiff cannot rely on Part II of the Temporary Measures for Reducing the Impact of Coronavirus Diseases 2019 (Covid-19) Act 2020 to excuse its ‘inability to perform contractual obligation’ if the breach had already occurred before the Act came into force on 18-03-2020. [See EUPE Bangsar South Development (JV) Sdn Bhd v Lam Sai Yih [2022] MLJU 2816 HC]. [106] In EUPE Bangsar South Development (JV) Sdn Bhd v Lam Sai Yih [2022] MLJU 2816 HC Mohd Nazlan Mohd Ghazali J said- [62] … the contractual date for the appellant to deliver vacant possession of the Unit to the respondent following PJD Regency was by 19 December 2018. As such, the LAD compensation for late delivery should be calculated from that contractual date of 19 December 2018 until the actual date vacant possession was delivered to the respondent, specifically on 26 June 2020. [63] This is the case even though it is not denied that the actual date when vacant possession of the said Unit was in fact delivered to the respondent on 26 June 2020 - a date within the exemption period stated in Section 35 of the Covid-19 Act. Vacant possession in this case it should be reiterated ought to have been delivered by 19 December 2018 which was even before the Covid-19 Act came into force and also well before the start of the said exemption period. [64] It bears emphasis that given that the contractual date for the appellant to deliver vacant possession fell (which the appellant was contractually obligated to honour) on a date which was way well before 18 March 2020 stipulated in Section 35 of the Covid-19 Act, the appellant surely cannot now seek to rely on the said provisions in the Covid-19 Act which do not at all help its case. [65] In my view, from the language of Section 35 of the Covid-19 Act, the exemption period would only assist a developer if the contractual delivery date is due on a date that falls during the said period. Not in a situation like presently where the developer has already failed to deliver as contracted by a date before the said exemption period. Although no authorities were cited by counsel, a similar interpretation on Section 35 of the Covid- 19 Act may be found in the decision of the High Court in Yap Heng Sang v Mammoth Empire Land Sdn Bhd [2021] 1 LNS 2149. [66] As such in my judgment, to adopt the interpretation ascribed by the appellant would also not promote the law as a true instrument of justice especially given the resounding judicial acknowledgment of the HDA and HDR being social legislation designed to protect homebuyers. The law also cannot allow the appellant to benefit from its own default…. … [68] Furthermore, since the delivery of the vacant possession date for the Unit was on 26 June 2020 which is before the implementation of the Covid-19 Act, it would only be right that the appellant not be allowed to gain unfair advantage from the implementation of the Covid-19 Act to deny the respondent’s full entitlement to the LAD attributed to the delay occasioned by the appellant. [69] The Sessions Court was therefore correct in answering the third question of law in the negative as Section 35(1) of the Covid- 19 Act cannot be read to exempt the appellant from paying the full LAD as compensation to the respondent for the late delivery of vacant possession of his Unit, which included the period of approximately 100 days from 18 March 2020 until the actual date of delivery of vacant possession on 26 June 2020, when its contractual obligation under the SPA was to deliver before the stated exemption period. [Emphasis added] [107] In conclusion, I dismiss the plaintiff’s claim for refund of LAD for Phase 2. [108] I thank counsel for the parties for their submissions which had greatly assisted me. Decision [109] For the reasons above, I dismiss the plaintiff’s suit with costs of RM 40,000. …………(signed)………….. Leong Wai Hong Judicial Commissioner High Court of Malaya Kuala Lumpur (NCVC 10) Dated: 05th June 2024 COUNSEL: 1) Yohini Nair a/p Baskaran for plaintiff. (Goik, Ramesh & Loo (Kuala Lumpur)) 2) Zulyana binti Zolkapli and Siti Norashikin Hassanor for defendant. (Jabatan Peguam Negara, Putrajaya (Putrajaya)) CASES REFERRED TO: 1) Ajit Pd v. Nandini A [1975] Or 184 2) Alexander Thorn v The Mayor and Commonalty of London (1875– 1876) LR 1 App Cas 120. 3) Barton v Morris and another (in place of Gwyn Jones, decd), [2023] AC 684. 4) Bauer (Malaysia) Sdn Bhd v Hundred Vision Construction Sdn Bhd & Anor [2020] MLRHU 406. 5) Bhola v. Bhagwat, 13 CPLR 159. 6) Cana Construction Co v R [1974] SCR 1159; 37 DLR (3d) 418. 7) Cheong Heng Loong Goldsmiths (KL) Sdn Bhd & Anor v Capital Insurance Bhd [2004] 1 CLJ 357 CA. 8) Craven-Ellis v Canons Ltd [1936] 2 KB 403 (CA). 9) Estate Trust Agencies (1927) Ltd v Sim Teng Chew [1948] 1 MLJ 20b. 10) EUPE Bangsar South Development (JV) Sdn Bhd v Lam Sai Yih [2022] MLJU 2816 HC 11) Gangadin v. Bahoram, A [1937] N 230. 12) Gilbert & Partners (a firm) v Knight [1968] 2 All ER 248 (CA). 13) Greenmast Shipping Co SA v Jean Lion Et Cie SA (The ‘Saronikos’) [1986]. 14) Holland Hannen & Cubitts (Northern) Ltd v Welsh Health Technical Services Organisation & Ors (1981) 18 BLR 80. 15) Letchumanan Chettiar Alagappan (As Executor To SL Alameloo Achi (Deceased)) & Anor v. Secure Plantation Sdn Bhd [2017] 5 CLJ 418. 16) Lim Eng Kay v Jaafar bin Mohamed Said [1982] CLJ rep 190 FC. 17) Lord Advocate v Dumbarton District Council [1990] 2 AC 580. 18) Lumbers & anor v W Cook Builders Pty Ltd (In Liq) 247 ALR 412; [2008] HCA 27. 19) Mg Hmoot v. Offl Receiver, 14 R 704: A [1937] R 276. 20) Moffatt v Andrew Laurie & Anor (1855) ER 139; 15 CB 583. 21) Moore v Smith [1859] 5 Jur NS 892. 22) Ong Bee Yam v Pengarah Hasil Dalam Negeri, Sarawak & Anor [2002] 3 MLJ 389. 23) Parkinson (Sir Lindsay) & Co Ltd v Commissioners of Works [1949] 2 KB 632 (CA). 24) Pembinaan SPK Sdn Bhd v Jalinan Waja Sdn Bhd [2014] 2 MLJ 322. 25) Peter Lind & Co Ltd v Mersey Docks and Harbour Board [1972]. 26) Raghavamma v. Chenchamma, AIR 1964 SC 136. 27) Raja Chandranath Roy v. Ramjai Mazumdar 6 Bengal Law Reports, page 303. 28) Ranchhodbhai v. Babuhai AIR 1982 Guj 308. 29) Ravichanthiran Ganesan v Lee Kok Sun & Ors [2021] 1 LNS 1581. 30) R (on the application of Black) v Secretary of State for Justice [2017] UKSC 81. 31) Rover International Ltd & Ors v Cannon Film Sales Ltd [1989] 1 WLR 912 (CA). 32) Selvaduray v Chinniah [1939] MLJ 253 SC. 33) Siow Wong Fatt v Susur Rotan Mining Ltd & Anor [1967] 1 MLRA 53; [1967] 2 MLJ 118. 34) SN Akmida Holdings Sdn Bhd v Kerajaan Malaysia [2021] 1 MLJU 2449. 35) Stoney v. Eastbourne R D Council [1927] 1 Ch 367, 397. 36) Syarikat Binaan Utara Jaya (a firm) v Koperasi Serbaguna Sungai Glugor Bhd [2009] 2 MLJ 546 CA. 37) Tanjung Teras Sdn Bhd v Kerajaan Malaysia [2015] MLRAU 468; [2015] 9 CLJ 1002 CA. 38) The Province of Bombay v. The Municipal Corporation of the City of Bombay and Another [1947] A.C. 58. 39) Turriff Construction Ltd and Turriff Ltd v Regalia Knitting Mills Ltd (1972) 9 BLR 20; 222 EG 169; [1972] EGD 257. 40) Trollope & Colls Ltd and Holland & Hannen and Cubitts Ltd, Trading as Nuclear Civil Constructors (a firm) v Atomic Power Constructions Ltd [1963] 1 WLR 333. 41) Usima Sdn Bhd v Lee Hor Fong (trading under the name and style of Pembinaan LH Fong) [2017] 5 MLRA 552; [2017] 5 MLJ 273; [2017] 9 CLJ 646; [2017] 6 AMR 652 FC. 42) U Television Sdn Bhd and Tan Sri Dato Seri Vincent Tan Chee Yioun v Comintel Sdn Bhd [2017] 10 CLJ 580 FC. 43) Yap Heng Sang v Mammoth Empire Land Sdn Bhd [2021] 1 LNS 2149. LEGISLATION REFERRED TO: 1) Arbitration Act 2005 [Act 646] 2) Audit Act 1957 [Act 62]. 3) Electronic Commerce Act 2006 [Act 658]. 4) Prevention and Control of Infectious Diseases Act 1988 [Act 342]. 5) Section 7 of the Temporary Measures for Reducing the Impact of Coronavirus Diseases 2019 (Covid-19) Act 2020. 6) Section 35 of the Temporary Measures for Reducing the Impact of Coronavirus Diseases 2019 (Covid-19) Act 2020. 7) Section 35(1) of the Temporary Measures for Reducing the Impact of Coronavirus Diseases 2019 (Covid-19) Act 2020. 8) Section 63 of Act 388. 9) Section 71 of the Contracts Act 1950. 10) Sections 101 of the Evidence Act 1950. 11) Sections 102 of the Evidence Act 1950. 12) Sections 103 of the Evidence Act 1950. 13) Sections 101 of the Indian Evidence Act. 14) Sections 102 of the Indian Evidence Act. 15) Tourism Industry Act 1992 [ Act 482]. LITERATURE REFERRED TO: 1) Sarkar on Evidence, 15th edn, vol. 2.