Ba Urusbina (M) Sdn Bhd v 1. Lembaga Kemajuan Johor Tenggara (JA-22NCVC-188-12/2020)

LEMBAGA KEMAJUAN JOHOR TENGGARA

TENAGA NASIONAL BERHAD (COMPANY NO. : 200866-W) ... SECOND DEFENDANT  GROUNDS OF JUDGMENT  Before The Honourable Judicial Commissioner Ahmad Murad Bin Abdul Aziz 2 JUDGMENT [STRIKING OUT APPLICATION — ENCLOSURE 10 ] INTRODUCTION [1] This is Tenaga Nasional Berhad’s (“D2”) application in Enclosure 10 to strike out the Plaintiff’s writ and statement of claim (“SOC”) under Order 18 rule 19 of the Rules of Court 2012 (“ROC”). BACKGROUND FACTS [2] The Plaintiff is a contractor appointed by the First Defendant (“D1”) to carry out development of a housing project known as Taman Penawar Harmoni (“the Project”). [3] D1 had imposed liquidated and ascertained damages (“LAD charges”) on the Plaintiff for late delivery of the Project amounting to RM1,020,248.44. [4] The Plaintiff’s pleaded case against D2 is premised on alleged negligence by D2, which resulted in the delay of the supply of electricity to the Project. The particulars of the alleged negligence of both Defendants are found in paragraphs 19 to 28 of the SOC. Before The Honourable Judicial Commissioner Ahmad Murad Bin Abdul Aziz 3 [5] D2’s defence is that the delay in the supply of electricity for the Project was due to the failure and/or delay on the part of D1 and/or its contractor/consultant in respect of; a) submission of the required document and/or information for the purpose of connection charges; b) construction of two (2) substations in accordance with D2’s requirements prior to handover to D2. [6] The failure and/or delay in complying with the requirements by the applicant or its agents would ipso facto result in the delay of the supply of electricity for the Project. [7] D2 avers that it is apparent from the documentary evidence that the delay by the Plaintiff in the completion of the Project was not, in any way, caused by the actions or omission on the part of D2 and the evidence clearly shows that D2 had done all that was reasonably possible to ensure the timely supply of electricity to the Project. [8] The relevant chronology of events, as given by D2, are as follows: a) On 02.02.2017, there was a kick-off meeting involving D2, D1 and KR Associates (i.e. the mechanical and electrical (M&E) consultant for the said Project, which, according to the affidavit (Enclosure 26) by D1, was appointed by the Plaintiff) in respect of the supply of electricity. Before The Honourable Judicial Commissioner Ahmad Murad Bin Abdul Aziz 4 b) Pursuant to the meeting, it was agreed that the target date for the supply of electricity would be 30.04.2017 subject to the conditions that; i. Borang A (for the purpose of lease in respect of the substation site) be submitted on or before 09.02.2017; ii. that the substations be ready for handover to D2 on or by 09.02.2017. c) On 05.02.2017, prior to the intended handover, a site visit was conducted to ascertain the status of the substations; d) It was discovered that the substations were not constructed in accordance with D2’s specifications and requirements (see para 12(24-25) D2’s Defence). e) As a result, the substations could not be handed over to D2 by 09.02.2017; f) On 19.02.2017, KR Associates forwarded the Borang A to D2, which was duly executed by the Plaintiff; g) From 28.03.2017, D2 initiated installation works for the substations (where possible) in order to expedite the supply of Before The Honourable Judicial Commissioner Ahmad Murad Bin Abdul Aziz 5 electricity; h) Thereafter, on 01.08.2017, another site visit was conducted wherein visible defects were detected in respect of the Substation Penawar Harmoni No.2. Furthermore, the condition of the substations were found to be unsatisfactory and did not meet the requirements set by D2 and the Energy Commission; i) D2 instructed D1 that a re-assessment of the substations be conducted immediately in order to rectify the defects as the supply of electricity would only commence upon completion of the rectification work; j) On 07.08.2017, a Pre-commissioning Inspection and Testing (PIAT) test (“PIAT test”) was conducted on both substations wherein it was concluded that both substations had failed the test, rendering the same unsuitable for handover; k) Next, on 21.09.2017, D2 followed up with another inspection of the substations to ascertain whether the rectification work had been completed. However, the substations were still below the acceptable standard; l) On 28.09.2017, a second PIAT test was conducted on both substations wherein they were certified to have successfully passed the test. Thereafter, the substations were handed over to D2 and on or about 26.11.2017, D2 completed the installation of the electrical equipment including its ancillaries and cables. Before The Honourable Judicial Commissioner Ahmad Murad Bin Abdul Aziz 6 m) On 20.02.2018, D2 issued the Confirmation Letter to the Pengerang Local Authority in support of KR Associates’ Certificate of Completion and Compliances (“CCC”). D2’S SUBMISSION [9] The main grounds of the Plaintiff’s claim of negligence against D2 which can be gleaned from the Plaintiff’s SOC are:

Delay by D2 in the provision of connection charges;

(ii) Delay in the supply of electricity to the Project within two (2) months after payment of the connection charges; and

(iii) Delay in issuance of the Confirmation Letter in support of the CCC. CONNECTION CHARGES [10] [i] By way of explanation, D2 submits that a connection charge is the upfront payment made by consumers who require new electricity supply for their infrastructure project and the amount to be paid depends on the maximum demand requested by the customer. D2 would not have been able to calculate the connection charges until the requested documents had been submitted to D2. Before The Honourable Judicial Commissioner Ahmad Murad Bin Abdul Aziz 7 [ii] On the undisputed facts, KR Associates only forwarded the complete documents to D2 in February 2017 despite D2’s reminder to KR Associates dated 29.11.2016. Notwithstanding the failure to provide all the necessary documents by KR Associates, in order to expedite the supply of electricity, D2 provided the connection charges in January 2017. SUPPLY OF ELECTRICITY [11] D2 submits that the supply of electricity could only have been carried out after the substations had been completed in accordance with the specifications provided by D2. This fact is not denied by the Plaintiff. The target date of handover of the substations to D2, as decided by the parties at the kick-off meeting, was 09.02.2017. However despite various reminders and site visits by D2, the substations were not completed by the target date and even when completed, work was found to have not been according to specifications. (See item (d), (e), (h), (i), (j) and (k) of paragraph 8 above.) [12] The timeline for the handover of the substations to D2 was on or before 09.02.2017. However, the substations were only handed over to D2 on 28.09.2017, seven-and-a-half (7 1/2) months later. Before The Honourable Judicial Commissioner Ahmad Murad Bin Abdul Aziz 8 The substations were successfully energised and ready for supply of electricity on or around 26.11.2017, which was well within the two (2) month timeline from handover of the substations as agreed during the kick-off meeting on 02.02.2017. Since the substations (which was the responsibility of the Plaintiff and/or its agent KR Associates) were handed over to D2 on 28.09.2017, and successfully energised on 26.11.2017, the supply was within the two (2) month target as agreed by the parties at the kick-off meeting. CONFIRMATION LETTER IN SUPPORT OF THE CCC [13] It is axiomatic that D2 could only issue a letter of support after electricity supply had been connected and not otherwise. KR Associates submitted its application to D2 for the support letter on 13.02.2018 and D2 issued the letter about one (1) week later, on 20.02.2018. Thus, D2 submits that the Plaintiff’s allegations are contrary to the documentary evidence. PLAINTIFF’S SUBMISSION [14] The Plaintiff’s submission in Enclosure 20 is mainly a recapitulation of the principles governing an application to strike out a writ and SOC and the cases which enunciated the law on striking out. Before The Honourable Judicial Commissioner Ahmad Murad Bin Abdul Aziz 9 [15] Where it was expected that the Plaintiff would rebut the documentary evidence provided by the Defendants to show that the delay in completion of the Project and the supply of electricity were not caused by D2 but primarily by KR Associates — the M&E consultant appointed by the Plaintiff and therefore, the Plaintiff’s agent — the Plaintiff failed to do so. The Plaintiff’s submission also failed to descend into particulars and facts and is a very broad general allegation bereft of particulars or documentary evidence. [16] I reproduce verbatim the relevant paragraphs of the Plaintiff’s submission where it is supposed to rebut the grounds for striking out, as submitted by D2: [12] The Writ and the Statement of Claim, clearly disclosed a cause of action for negligence or had raised some questions fit to be decided by the court in a fair and just trial. [13] It should also be pointed out that throughout the whole cause papers filed, Second Defendant kept ‘blaming’ the First Defendant and/or its contractor i.e. the Plaintiff and a third party not to the suit i.e. KR Associates. Plaintiff humbly believes that such allegations does not disclosed a plain and obvious case which warrants the said Writ of Summon and Statement of Claim to be set aside. In other word, all parties in suit should go into a length and mature consideration in detail of the serious issues of law and/or fact in hand to determine the suit filed by Plaintiff to the Defendants. [14] Moreover, such allegations just further prove that the Plaintiff do have reasonable cause of actions against the Second Defendant. Even though there were no direct agreements/contract between Plaintiff and the Second Defendant, both parties were simultaneously involved in the development Before The Honourable Judicial Commissioner Ahmad Murad Bin Abdul Aziz 10 project under the First Defendant and each progress of work were determined between each parties involved, including between works done between Plaintiff and Second Defendant. Hence, there lies the professional duty of care between all parties to make the development completed on time. [15] Plaintiff also humbly believes that witnesses should be called for examinations and cross-examines for a thorough, just and fair trial as there are issues of facts that need to be scrutinized before this court, in which the Plaintiff believes that these issues cannot be summarily disposed of by way of affidavits in striking out the application. Even if the mere facts of the case is weak, which Plaintiff highly doubts, is still not a ground for the Writ of Summons and Statement of Claim to be struck out. [16] With such being stated, the Plaintiff humbly believes that evidences via documents would not be enough to proof burden in Court and witnesses must be called for a fair and just trial as the Plaintiff believes that the maker of such documents will give suffice and more professional answer to ease and guide the parties to understand and grasp more information and evidence in Court. [17] Such submissions, without reference to factual details to rebut the evidence and chronology of events, presented in D2’s affidavit in support and submission do not assist this Court in evaluating if the documentary evidence provided by D2 to support its application has been rebutted. Before The Honourable Judicial Commissioner Ahmad Murad Bin Abdul Aziz 11 THE PRINCIPLES GOVERNING AN APPLICATION TO STRIKE OUT WRITS AND SOC UNDER ORDER 18 RULE 19 OF THE ROC [18] His Lordship Justice Tun Abdul Majid Tun Hamzah in Tan Ah Lik @ Tan Teik Yong and others v Tan Ah Bah, PA-22-NCOC-102- 04/2019, succinctly explained the principles applicable in striking out pleadings as follows: “In Seruan Gemilang Makmur Sdn Bhd v Kerajaan Negeri Pahang Darul Makmur & Anor [2016] 3 MLJ 1, Ramly Ali FCJ, speaking for the Federal Court, stated as below: The tests for striking out applications under O 18 r 19 of the ROC, as adopted by the Supreme Court in Bandar Builder are, inter alia, as follows: a) it is only in plain and obvious cases that recourse should be had to the summary process under the rule; b) this summary procedure can only be adopted when it can be clearly seen that a claim or answer is on the face of it ‘obviously unsustainable’; c) it cannot be exercised by a minute examination of the documents and facts of the case in order to see whether the party has a cause of action or a defence; and d) if there is a point of law which requires serious discussion, an objection should be taken on the pleadings and the point set down for argument under O 33 r 3 of the ROC; and e) the court must be satisfied that there is no reasonable cause of action or that the claims are frivolous or vexatious or that the defences raised are not arguable. Before The Honourable Judicial Commissioner Ahmad Murad Bin Abdul Aziz 12 The Court of Appeal, in Sivarasa Rasiah & Ors v Che Hamzah Che Ismail & Ors [2012] 1 MLJ 473, had adopted the well settled principle of striking out in the following passage: A striking out order should not be made summarily by the court if there is issue of law that requires lengthy argument and mature consideration. It should also not be made if there is issue of fact that is capable of resolution only after taking viva voce evidence during trial, (see Lai Yoke Ngan & Anor v Chin Teck Kwee & Anor [1997] 2 MLJ 565 (Federal Court))… The basic test for striking out as laid down by the Supreme Court in Bandar Builder is that the claim on the face of it must be ‘obviously unsustainable’. The stress is not only on the word ‘unsustainable’ but also on the word ‘obviously’ i.e. the degree of unsustainability must appear on the face of the claim without having to go into lengthy and mature consideration in detail. If one has to go into lengthy and mature consideration in detail of the issues of law and/or fact, then the matter is not appropriate to be struck out summarily. It must be determined at trial.” FINDINGS BY THE COURT [19] I am in agreement with D2’s submission that the Plaintiff has failed to put forward any supporting documentary evidence in its affidavit in reply to substantiate its allegations of delay on the part of D2. [20] In the case of Suppuletchimi Karpaya v Palmco Bina Sdn Bhd, it was held that a Plaintiff faced with a striking out application must put all the relevant material facts and evidence before the court to satisfy the court that the claim is sustainable (at pp. 253 – 254): Before The Honourable Judicial Commissioner Ahmad Murad Bin Abdul Aziz 13 “... in applications under O. 18 r. 19 or O. 14, it is still incumbent upon the Court to determine whether issues could appropriately have been decided, without expense of a full trial with witnesses and expenditure of the Courts' invaluable time. No party in a proceeding is entitled to require the Court to accord them valuable time of several days open court viva voce trial only upon mere or bare assertions in their affidavits. The crucial question the Court would have to ask itself in applications under O. 14 or O. 18 r. 19(1)(a) to (d) is: Firstly, whether the piece or pieces of evidence essential to make out a reasonable prima facie cause of action or a prima facie triable issue of fact are of the nature such that they are adduceable by affidavit evidence; and secondly — if the answer to this question is in the positive — whether such essential prima facie evidence had been so adduced in the supporting affidavits. Such affidavits ought not to contain bare averments but must condescend or come definitely into particulars for serious argument such that they are sufficient to satisfy the Court that there is a reasonable prima facie cause of action or a triable issue or issues of fact or law in the defence as the case may be. In essence, prima facie evidence which are capable of being adduced by affidavit evidence ought to be so adduced even in summary proceedings.” [21] The Plaintiff relies solely on the chronology of events prepared by KR Associates i.e. its own M&E consultant to contend that there was a delay in the supply of electricity by D2. The said chronology was prepared and submitted to the Plaintiff on or about February 2018 and Before The Honourable Judicial Commissioner Ahmad Murad Bin Abdul Aziz 14 without any supporting documents. Furthermore, the averments in the chronology are contrary to the contemporaneous documents. Therefore, the chronology is of no probative value (see Ambank (M) Bhd v Sharikat Johor Tenggara Sdn Bhd). [22] Having considered the submissions by the parties and having read the relevant affidavits in support and in reply, I find that based on the chronology of events supported by documentary evidence, it is clear that the primary cause of the delay in supplying electricity to the Project was the non-completion of the substations within the agreed time frame, which was not the fault of D2. Thus, the Plaintiff’s claim against D2 is obviously unsustainable and no purpose would be served in allowing the Plaintiff’s claim against D2 to go for full trial. CONCLUSION [23] For the reasons aforesaid, I allow D2’s application with costs of RM3,000.00 subject to allocatur fees. Dated 7th March 2022 Signed, ………………………….. Ahmad Murad Bin Abdul Aziz Judicial Commissioner High Court of Malaya Before The Honourable Judicial Commissioner Ahmad Murad Bin Abdul Aziz 15 Johor Bahru Johor Darul Ta’zim Counsel / Solicitors: For the Plaintiff : Saddiqin Samad Messrs Maishi’ah, Jalidah & Associates Advocates & Solicitors No. 5, Tingkat 2, Jalan Durian Emas 2 Betaria Business Centre 70100 Seremban Negeri Sembilan Darul Khusus [Ref: MJA/zs/L/IND-BA/817/20] For the 1st Defendant : Zamri idrus Messrs Zamri Idrus & Co. Suite No. B3-6-6, Solaris Dutamas, No. 1, Jalan Dutamas 1 50480 Kuala Lumpur Wilayah Persekutuan For the 2nd Defendant: Leah Marie Samuel Messrs. Steven Thiru & Sudhar Partnership Advocates & Solicitors Unit A1-12-01, Arcoris Mont Kiara Jalan Kiara, 50480 Mont Kiara Before The Honourable Judicial Commissioner Ahmad Murad Bin Abdul Aziz 16 Kuala Lumpur [Ref: LMS/DN/DDM/TNB/BAUSB/01 [21-700]] Cases Referred to:  Tan Ah Lik @ Tan Teik Yong and others v Tan Ah Bah, PA-22-NCOC- 102-04/2019  Seruan Gemilang Makmur Sdn Bhd v Kerajaan Negeri Pahang Darul Makmur & Anor [2016] 3 MLJ 1  Sivarasa Rasiah & Ors v Che Hamzah Che Ismail & Ors [2012] 1 MLJ 473  Lai Yoke Ngan & Anor v Chin Teck Kwee & Anor [1997] 2 MLJ 565  Suppuletchimi Karpaya v Palmco Bina Sdn Bhd Legislation Referred to:  Order 18 rule 19 of the Rules of Court 2012  Rules of Court 2012 Hearing Date : 02.09.2021 Decision Date : 23.11.2021