AVANT GARDE DESIGN BUILDER SDN BHD v 1. ) YIEW CARMEN (sebagai rakan kongsi satu perkongsian di bawah nama dan gaya DECALYCA DESIGN LAB) (WA-A72NCvC-333-01/2023)

LYDIA YEK ZONG MIN (AS A PARTNER OF DECALYCA DESIGN LAB) [Business Registration No.:202003161378 (SA0548899-V)] … DEFENDANTS

This is the grounds of judgment for the decision of this Court on 12.01.2024 in dismissing the Plaintiff’s claims and allowing the Defendants’ counterclaims.

Plaintiff is engaged in the business of building completion and interior design. 02/04/2024 15:03:54 WA-A72NCvC-333-01/2023 Kand. 40 The Defendants are partners of Decalyca Design Lab which is engaged in the business of interior design, house construction, graphic and brand design.

Around June 2022, Plaintiff has invited the Defendants to render design consultation services and drawings which includes construction and perspective drawings in respect of Plaintiff’s project in Sunway Sk8te City, Sunway Putra Mall.

The Defendants have issued a quotation dated 1.7.2022 amounting to RM30,000 for the works. 50% of the total amount shall be paid upon confirmation of the project and another 50% to be paid upon full completion of all Defendants’ works. The first 50% i.e. RM15,000 has been paid to the Defendants on 5.7.2022 and the Defendants have since commenced their works.

The Plaintiff claimed that the drawings submitted by the Defendants could not be used for the project because it contained grave errors and the Defendants have failed to amend the drawings despite multiple request by the Plaintiff.

Consequently, the Plaintiff through its solicitor terminated their contract via letter dated 20.10.2022 and demanded the Defendants to refund RM15,000.

The Defendants, on the other hand, via letter dated 30.11.2022 demanded for the payment of the balance of RM15,000 and RM3,000 for the AutoCad file.

Plaintiff commenced this proceeding against the Defendants for the payment of RM15,000 as well as for general, additional and exemplary damages.

Whereas the Defendants counterclaimed for the payment of the balance of RM15,000 and RM3,000 for the AutoCad file. ANALYSIS AND FINDINGS OF THIS COURT WHETHER THE DRAWINGS NOT IN ACCORDANCE WITH THE LISTS OF

The Plaintiff pleaded that the Defendants have failed and/or negligent in completing the works whereby the drawings prepared by the Defendants could not be used for the project because they contained grave errors among others – a. the drawings do not follow the scale that has been fixed and/or approved; b. the drawings do not correspond to the formula as required and fixed by the Plaintiff; and c. the drawings are not in accordance with the lists of material, layout plans and detailed plans fixed and/or agreed.

The Plaintiff pleaded, as a result, they have incurred extra costs by appointing another interior designer to redo the drawings.

It was submitted by the Plaintiff that the Defendants have failed to fulfil its obligations in completing the drawings for the Plaintiff as the drawings contained substantial and grave errors and such errors have been informed to the Defendants.

The Defendants’ defence are these: the Plaintiff has never at all material times complained, disputed and/or informed them of such errors until the letter of demand dated 20.10.2022; and the Defendants have completed the drawings as per Plaintiff’s and Sunway Sk8te City instructions and have requested feedbacks form the Plaintiff multiple times but Plaintiff has failed /neglected to respond. It was submitted that the Defendants have carried out their job and therefore are not obliged to return the RM15,000 to the Plaintiff.

During the trial, Plaintiff have called SP2 to give evidence. SP2 is the new designer appointed by the Plaintiff to redo the drawings. The drawings submitted by the Defendants were made of 40 pages (page 137-177 of Bundle B). Through this witness, the Plaintiff has managed to highlight a number of errors contained in the drawings prepared by the Defendants by referring to 16 pages out of 40 pages. I do not wish to reproduce that lengthy parts of SP2 testimony in here, however suffice to say that based on such evidences, this Court found that there are indeed errors committed by the Defendants in the drawings.

Further, based on the communications transpired between Plaintiff and Defendants via WhatsApp group dedicated for their engagement and SD1’s own testimony during cross examination, the errors have indeed been informed to the Defendants for rectification and Defendants have responded to Plaintiff’s comments and submitted amended file.

However, there was no documentary evidence at all before this Court that the drawings prepared by the Defendants were not according to the fixed/agreed scale, required formula, list of materials, layout plans, detailed plans as pleaded by the Plaintiff. Both of Plaintiff’s witnesses were merely stating that the drawings were not done according to scale, etc. but those statement were not corroborated. The Plaintiff did not tender any such scale, formula, list of materials, layout plans, and detailed plans. This Court has no way of finding out firstly, whether or not there was such fixed/agreed scale, required formula, list of materials, layout plans and detailed plans and secondly, whether the drawings actually done according to the fixed/agreed scale, required formula, list of materials, layout plans and detailed plans.

Furthermore, there was no sufficient evidence to support that the drawings were completely unusable and not accepted/approved by Sunway. The Plaintiff did not tender any letter or witness from Sunway to support such claim. The Plaintiff also did not tender any drawings prepared by the new designer i.e. SP2 to show the differences and discrepancies that so grave that would made the drawings prepared by the Defendants were completely unusable and SP2 had to redo the drawings from scratch.

Thus, this Court finds that there was no sufficient evidence to support that the errors/defects made by the Defendants in the drawings goes to the root of the contract. The Plaintiff has failed to discharge its burden in proving its claims. Hence, the Plaintiff has in fact wrongly terminated Defendants’ services and not entitled for the refund/return of RM15,000 and damages.

The quotation issued by the Defendants to the Plaintiff prescribed the total contract price is RM30,000 which to be paid by Plaintiff in stages as follows: a. Stage I - RM15,000 upon confirmation of the project/service; b. Stage II - RM15,000 upon completion of all works.

The works to be done by the Defendants in the quotation was as follows:

Based on the evidences, Plaintiff has prepared and submitted the drawings to the Plaintiff. Defendants have been revising and amending the drawings as per instructed by the Plaintiff. However, as a result of being wrongly terminated, Defendants were withheld from making further rectification to bring the drawing in accord with the Plaintiff’s request/specification/feedback. Therefore, Defendants are entitled to retain RM15,000 paid to them and claim for the remaining RM15,000. WHETHER THE DEFENDANTS ENTITLED FOR THE COST OF AUTOCAD

The Defendants sent the AutoCad file to the Plaintiff upon Plaintiff’s request. As can be seen from the quotation above, the submission of AutoCad file and its cost file were never part of the quotation. Plaintiff argued that the Defendants’ claim for RM3,000 for the AutoCad file is an afterthought because the Defendants never communicated to the Plaintiff that they would be charging for the AutoCad file. It was first raised by the Defendants when replying to the Plaintiff’s letter of demand.

This Court finds Plaintiff’s argument is untenable. On contrary, since the quotation was silent on the submission of AutoCad file and its charges, Plaintiff should have expected to pay for it when requesting it from the Defendants afterwards.

Based on the foregoing reasons, this Court made the orders as follows: a. Plaintiff’s claims are dismissed with costs; b. Defendants’ counterclaims for RM15,000 for completion of the drawings and RM3,000 for AutoCad file are allowed with costs; and c. Plaintiff to pay overall costs of RM4,000 to the Defendants. Dated 12.1.2024 Prepared by, signed Fatin binti Mohd Nor Magistrate Magistrate’s Court 3 (Civil) Kuala Lumpur For the Plaintiff: Saw Chia Hui from Lee Saw & Co.