Bestinet Sdn. Bhd. v 3B Ideation Sdn. Bhd. (WA-12BC-20-12/2022)

2.1 the learned Sessions Court Judge (“SCJ”) had been confused about the nature of the contract entered into by the parties Basic Background Facts [3]

5.2 advise Bestinet and provide the specifications required for the materials and various works in the Premises based upon 3B’s approved design to enable Bestinet to invite for tenders from contractors and suppliers;

5.3 supervise all the works carried out both by 3B’s own workers as well as any Nominated Sub Contractors (“NSC”) appointed by Bestinet in respect of the fit-out works at the Premises to ensure that all said materials and works were of the standard and quality expected by Bestinet and in accordance with 3B’s design and specifications;

5.4 hand over the Premises together with all approved drawings and plans upon due completion of the entire fit-out works and upon obtaining all requisite certifications and approvals from the relevant professionals and/or authorities on or before the scheduled completion. [6] As part of Bestinet’s overall renovation plans for the Premises, various subcontractors were appointed to carry out specific fit-out works for the Premises. Pursuant to this, 3B had also been appointed to carry out specific fit-out works amounting to RM3,510,329.90 as set out in the subsequent Quotations, Purchase Orders and Invoices issued between the parties. [7] The total contract sum payable by Bestinet to 3B for the entire scope of works that 3B was required to carry out amounted to RM5,400,419.90. [8] At all material times, Bestinet had dealt with 3B in good faith and had relied entirely on the representations by 3B or its officers that 3B would ensure that the renovation and fit-out works would be carried out in accordance with the levels of professionalism, quality and specifications expected by Bestinet in view that 3B is in the business of renovation works and interior design services. [9] 3B commenced work at the Premises in April 2018. However, as of March 2019 the works were still not completed. Bestinet had to move in to occupy a few floors in the Premises on 22.3.2019 although the works on the Premises were still ongoing as it had already been forced to vacate other offices where Bestinet used to operate from as notice of termination of those tenancies had already been given in reliance of 3B’s representations and assurances that the Premises would be ready for Bestinet’s occupation by March 2019. 3B agreed at trial that the defect liability period started on 1 April 2019 and was for a period of 6 months. 3B was also given additional extension of time to complete the outstanding works on or before 3.8.2019. [10] However, due to 3B’s obvious inability to complete the fit-out works in accordance with Bestinet’s requirements and satisfaction within the agreed time, on or about 29.4.2019, Bestinet had instructed 3B to put on hold the works on Level 5A and Level 7 of the Premises. Instead, 3B was asked to focus on completing the rectification of defective works and some selected works at the Ground Floor of the Premises. [11] On or about 13.6.2019, Bestinet engaged the services of the Quantity Surveyor (“the QS”) at a sum of RM55,120.00 to value the actual work duly completed by 3B. Bestinet had duly informed 3B of its decision to appoint the QS. [12] After carrying out an inspection of the works and having had discussions with Bestinet and 3B, the QS had done his assessment and valuation and thereafter issued the QS First Report, wherein the QS had certified that there was an overpayment of RM530,003.78 by Bestinet to 3B. [13] Bestinet had issued repeated requests and reminders for 3B to take the necessary action to complete rectification of the rejected and defective works, but 3B had refused to address these defective works themselves or with the NSCs, or to supervise the rectifications works but instead insisted that they would only do so upon payment of additional fees by Bestinet. [14]

16.1 The QS Second Report, in which he certified a sum of RM698,093.12 as the total recommended amount that Bestinet is entitled to claim from 3B for Rectification Works for the project that 3B failed, refused and/or neglected to complete.

16.2 The QS Third Report, wherein the QS certified that the amount payable for the variation orders claimed by 3B is only for a sum of RM141,006.00. [17] Based on the recommendations made in all three QS Reports, the total recommended amount to be paid by 3B to Bestinet is RM1,087,090.90. [18] On or around 3.7.2020, Bestinet discovered that there were three rectification works which required immediate attention at the Premises. Therefore, Bestinet gave notice to 3B on 3.7.2020 that they will proceed to carry out the rectification works and the costs incurred will be charged to 3B. The costs incurred for the said rectification works amounted to RM16,351.40. [19] On 13.7.2020, Bestinet’s solicitors issued a letter to 3B’s solicitors informing of the cost of the urgent subsequent rectification works. [20] 3B has refused/failed to pay the said sum for the overpayment and costs to complete the outstanding rectification works claimed by Bestinet as set out in the three QS Reports as well as for the cost of attending to several other urgent rectification works identified by Bestinet thereafter. [21]

10.12.201 8 0551 Ground Floor Renovation/ Works 395,508.00 Total 3,510,329.00 [33] In this respect, the SCJ had in his decision found that there were

33.1 2 separate contracts with the 1st Contract being for preliminary works for renovation and modification on the Appellant’s corporate office and that the 2nd Contract consisted of the aforesaid 16 PO’s and 2 quotations (Quotations) which were awarded by way of an open tender and direct award between the months of June 2018 and May 2019 and that the 2nd Contract was for the supply of goods to the Appellant’s premise;

33.2 the said 1st Contract and the 2nd Contract respectively had contained different payment terms and dates of delivery as well as different contractual obligations;

33.3 the said 1st Contract and the 2nd Contract could not be combined together. [34] After examining the Quotation dated 6.4.2018 which is issued by the Respondent to the Appellant for the grand total sum of RM 1,890,090.00 (“1st Contract”) and the 13.4.2018 PO (“2nd Contract”) and contrasted this with the testimonies of both the Appellant’s experts, Khairil Annuar bin Abdul Manaf and David Cheah Meng Yew respectively where both the said experts have testified at trial that the contract was a design and build contract, see RR 2(1) page 178 and page 412 respectively, I agree with the SCJ as I hold that there are in fact 2 contracts in this case as I find the nature of the works were different, that the respective contracts were awarded on different dates, there were different payment terms and different completion terms. There is thus no appealable error on this point Issue Of Design & Build & Alleged Interference [35] On the issue of whether the 1st Contract was a design and build contract, I have after looking at the evidence before the SCJ, do hold that the 1st Contract was a design and build contract as it contained the element of the Respondent having inter alia the responsibility for the design of the Project and to ensure that the design is fit for its purpose [36] It is in my view from the evidence at the trial that it is an undisputed fact that the Respondent had prepared the drawings for the project and undertook the works thereto. I also however find that there is evidence that the Appellant had interfered with the design with such evidence being seen through a letter dated 23.1.2019 from the Respondent to the Appellant which can be found at RR2 Jld Volume 9 at page 3182, which consisted of new works to the double door lifts at levels 1 to 6, reduction in the size and design of the meeting rooms form the approved layout and changes to the LAN room wall design at the said levels amongst others and another letter dated 1.3.2019 at the same bundle where there were substantial changes to design which was agreed by parties previously such as converting the workstation area to exhibition area and change of design in Level 7 layout. [37] I note that the SCJ had considered the evidence of one Dato Amin and was satisfied that the contract was not a normal design and build contract and that there were numerous and/or frequent interference by Appellant as to the original designs to which I agree with the SCJ after looking at the evidence before the SCJ. [38] I further find in this case that the Appellant had control over the design and dictated on numerous occasions to the Respondent how the design should be, which was contrary to the Appellant’s contention that the Respondent had made the changes to the design by themselves. I have also observed that the latter point was also not supported by any evidence provided to the SCJ. Thus, it is in my view wrong for the Appellant to blame the Respondent for any change in the original designs [39] I quote and respectfully adopt Mary Lim Thiam Suan J (as she then was) in Dama Design & Build Sdn Bhd v Universiti Pendidikan Sultan Idris (UPSI) [2017] MLJU 639 where Her Ladyship held in that case “[69] It should have been made expressly clear that the intent of the works was to conserve and preserve the building so that it may be conferred heritage status. This intent must be apparent from the Needs Statement, and not left for the contractor like the plaintiff to second guess. More so when the contract was to be executed by way of a design and build concept. A design can only be as proper as the idea and intent. The owner or employer cannot blame the contractor if the design is wrong as a result of the employer’s unclear directions of intent or need (emphasis mine). Where the contractor is required by reason such as the present, a variation order ought to be issued and the contractor allowed to claim consequently. [40] In the circumstances, I see no reasonable justification to interfere with the SCJ”s decision on this point. Scope And Role Of The Respondent [41] I now turn to what is the scope and role of the Respondent in the Project. After perusing the evidence before the SCJ, I do hold that it is undisputed there are also several Nominated Sub Contractors (NSC’s) totaling 12 in number which includes Ecco Construction Sdn Bhd, Temasya Plaster & Construction and Axis Jaya which were appointed by the Appellant for various specialized works [42] In the appeal and at the trial, the Appellant had contended that the Respondent was to be responsible for all works including the NSC’s and that the Respondent was to absorb the entire costs of rectification works carried out by them. [43] I find that the evidence before the SCJ through the testimony of SP4 (Dato Rathakirishnan a/l Vellasamy), as can be seen in the Notes of Proceedings (NOP) at RR2/2 confirms that the NSC’s were appointed by the Appellant and separate contracts were entered with them by the Appellant. The evidence further shows that direct payment were made by the Appellant to the NSC’s. [44] I note that the Appellant submits that the Respondent is the Project manager and had advised them before the release of any payment to NSC. After examining an email dated 14.11.2018 from the Respondent to the Appellant, at page 2997 RR2 (9), as well as the testimony of SD1 (Mohd Nazrin bin Abu Bakar), I find that no such arrangement had previously existed and that such an arrangement only arose due to an issue with other NSC’s before this, in particular Jetcool and Megafold. In this context I have observed that the 1st Contract, being the Purchase order issued by the Appellant to the Respondent had been in in operation since 13th April 2018, as seen in RR 2/8 and that it was only 7 months later that the arrangement for the Respondent to approve payments to the NSC was agreed to. [45] It is also my finding that there is no evidence before the SCJ of the Respondent being the Project Manager as contended by the Appellant and that the evidence through the testimony of SP1 (Khairil Annuar) at the NOP in RR2/1 shows that Respondent was to supervise the works of the NSC and that the Appellant’s said witness agreed that the Respondent was not paid any profit and attendance fee. It is only Contract 1 which was agreed to as being a design and build contract whilst contract 2 was for the supply of ‘barang’ in accordance with the tender issued. [46] I have also observed by perusing the Notes of Proceedings at RR292) at page 692, that the Respondent’s sole witness, SD1, Mohd Nazrin bin Abu Bakar (“Nazrin”) had at the trial testified that the Respondent would, for some of the NSC’s, have to supervise the quality of work were being done in accordance with the specifications and to call them for meetings as well as to coordinate their work. [47] Thus, I cannot agree with the Appellant’s suggestion that the NSC’s were under the Respondent’s responsibility as I find that the Respondent’s scope re the NSC’s was merely to supervise the quality of work and to ensure that the said NSC’s abide by the work programme and specifications laid out. This is also consonant with the fact that the said NSC’s were specialized contractors in their various areas of which the Respondent did not have the expertise nor experience to undertake such works of the NSC’s. The NSC’s were to do the works contracted to them as they thought fit and in the manner they thought best based on their expertise and experience. [48] As to the allegation that the Respondent had received a very high supervision fee, I find that the allegation is unsubstantiated as the said supervision fee, as seen in the PO/Contract 2 in RR2/8 page 2495, had included the licensing costs which included a document entitled “Summary of Payments Recommended to 3B Ideation Sdn Bhd”, issued by the QS involved, as shown in page 6 of the

Following from this, the SCJ had held that the said supervision fee included licensing costs by referring to the preliminaries in Bilangan 2 of the Bill of Quantities, the submission fees at Bilangan 3 and the procurement fees at Bilangan 11 2 of the Bill of Quantities. [49] Respectfully I hold once again after looking at the documents before the SCJ, that this Court will once again not disturb the findings of the SCJ on this matter as I hold that there is no error in the SCJ’s findings on this subject. Alleged Defects & Incomplete Works [50] The Appellant had submitted that they had adduced evidence of the rejected, defective and incomplete works which were discovered at the end of March 2019 and that the Respondent did not dispute this save that the Respondent contended that these defects were not their responsibility to remedy as the works were done by the NSC’s. [51] The Appellant had also submitted that they had adduced 2 expert reports, one by a QS and another by an Architect, which were appointed after the dispute arose, and the Respondent did not call any expert to rebut the Appellant’s expert reports. [52] This Court will now deal one by one with the alleged defects and incomplete works. Issue Of The Marbles [53] In this regard I will start with the marble floor and walls. To this the Appellant submits that the same was caused by poor workmanship in installing the marbles. [54] From the evidence of SP2 (David Cheah Ming Yew), which is contained in the various Property Inspection Reports at RR 2/12, the marbles were stated to have the following defects

54.1 staining 54.2 lippage 54.3 grouting; and 54.4 were hollow [55] I must state for the record that the Architect (“SP2”) was only appointed by the Appellant in June 2021 after the disputes had arose and the Respondent had left the premises, which meant that the Architect had only inspected the premises 2 years after the marble was installed. [56] In the evidence of SP2, as found in RR2/12 page 4399, SP2 had stated that the staining in the marbles were not caused by the Respondent but was in fact due to the marble itself which was shipped from China as well as to other factors beyond the control of the Respondent. [57] As to the chipped edges in the marble, the evidence shows that there was a Request For Instructions (“RFI”) from the Appellant, as found in page 2683 of RR 2/8, to make good all the marbles which were defective. [58] This RFI was issued by one Wan Ismafariza who the Appellant claimed was not authorized to issue such an RFI as Wan Ismafariza was alleged to be only a liason officer for the Appellant but the SCJ had found that Wan Ismafariza was from the evidence, the Project Manager and that the Respondent had at all material times reported all works to the said Wan Ismafariza. An example of this evidence to show such findings was the Minutes of Meeting dated 8.8.2018 at page 2822 of RR2/8. [59] From the SCJ’s findings it was also held by the SCJ that Wan Ismafariza had the necessary technical qualifications which according to the SCJ can be seen from the 7 RFQ’s. I have also noted that the SCJ had found that the Respondent had made good the defects but that the Appellant had insisted that this was not done and sought that the Respondent be held responsible for the rectification costs and the replacement of the defective marbles with new ones. [60] I have gone through all of the evidence above and I find no reason to disturb the findings of the SCJ. It is this Court’s view that the weight of the evidence of the Architect (“SP2”) report and his testimony in Court must be taken in light of the fact that his evidence is not a contemporaneous document or testimony but was made only after a period of 2 years from the date the Respondent had left the premises. [61] A lot of factors would or could have occurred during the said 2 years to which SP2 could not necessarily be able to testify to or confirm as SP2 was also not there when the marbles were initially delivered and installed. From my reading of the NOP at RR2(1) pages 368 to 371, this was also confirmed by SP2 under cross examination that inter alia there could be mishandling of the marble during transportation, handling and storage, issues of quality of the marble itself, and that the marble could be damaged after installation. [62] As a result thereto, the reports of SP2, which although uncontradicted by any expert report from the Respondent, cannot be taken as a conclusive report and this Court can only give little weight to it in determining the contents and conclusions reached at by SP2. [63] I have also noted that the Appellant had requested the Respondent to bear the costs of the marble polishing works which the Respondent claims were not part of their job scope but they had based on Dato Sri Amin’s request for the marbles to be ‘really shiny’ proceeded to obtain quotes from some vendors to do the said works. [64] After examining the evidence above, I do hold that once again, this Court will not disturb the findings of the SCJ on these points. [65] With regards the ‘lippages’, although I find that SD1/ Nazrin had agreed when cross examined that the lippage and grouting were the result of poor workmanship, it is this Court’s findings that the Appellant had relied on the QLASSIC standard when commenting on the lippages which I hold is not the compulsory standard and not the agreed standard in this case between the parties herein. The evidence shows that SP2 had also agreed under cross examination, see the NOP in RR2(1) at page 362, that the QLASSIC standard were neither compulsory nor mandatory and that there is nothing in the agreement between the parties that they were to be bound by the QLASSIC standard. [66] I will now consider the issue of the hollowness of the marbles. From the evidence at the trial, this issue only appeared to be raised in SP2’s report and was never an issue at any of the joint inspections carried out. The evidence at trial also shows that all works done for the project were jointly inspected by the Appellant’s and Respondent’s respective representatives and they had agreed to the installation of the marble. At the risk of repetition, the inspection carried out by SP2 on this point was only done 2 years after the Respondent had left the premises. As such I am unable to give much weight to this issue of the hollowness of the marbles. [67] SP2 had also testified that there was a risk of the marble tiles being detached from the floor but under cross examination SP2 had admitted that he did not see any such detachment. For this please refer to RR2(1) at page 366. [68] Accordingly, I am not able to accept the issue of the hollowness of the marbles as being a defect. The Wallpaper Issue [69] This Court will now turn to the wallpaper issue which the Appellant alleges the installation of the same was defective. For this SP2 had confirmed at trial that this was due to water seepage and not the fault of the contractor, as seen from the NOP at RR 2/7. I note that in the NOP, SP2 had testified that there were places where the wallpaper was found to be coming off from the wall, but with respect I find that the evidence in this respect is not a contemporaneous evidence of this happening at the time of the installation or even just immediately after the installation of the wallpaper. I therefore conclude that there is nothing on the issue of the installation of the wallpaper being defective for this Court to consider. [70] It was also alleged by the Appellant that the specifications of the wall paper were different from that of the PO. I have examined the evidence at trial on this point and agree with the SCJ that SP’s testimony on this was purely based on a quotation from Goodrich Global dated 27.9.2018 and that this was the initial quotation given. The evidence further shows that after the Goodrich Global quote was obtained, the Appellant had only issued to the Respondent a PO amounting to RM113,104.72 on 10.12.2018 as seen in RR2(6) page 2032 which I agree with the Respondent is evidence that the Appellant had agreed to a different specification for the wallpaper. [71] My finding on the agreement by the Appellant to a different specification for the wallpaper can be further corroborated by the payments made by the Appellant for the said wallpaper installed as seen in the payment for the tax invoices dated 28.12.2018 and 4.1.2019 respectively issued by the Respondent to the Appellant at RR2/8. [72] I therefore find and agree with the SCJ that the Respondent is not to be held responsible for the defects in the wallpaper. Alleged Defects On Stainless Steel, Ceiling And Door [73] After considering the Appellants allegations on the defects on stainless steel, ceiling and door, I find, after referring to the NOP at RR 2(1), that SP2 had in his evidence in Court agreed that these were the responsibilities of the Appellant’s NSC i.e Axis Jaya Furnishing and Temasya Plaster & Construction, which were the parties appointed by the Appellant to install the same. [74] Thus, the contention that the Respondent had not sufficiently supervised or adviced on the works carried out by the NSC are untenable as the Appellants own expert witness i.e SP2 had agreed that the responsibilities for the defects belonged with the aforesaid NSC’s. Timber Flooring [75] It was alleged thereafter by the Appellant that the timber flooring specifications were different from that specified and that the said timber floor installed had a ripple and uneven surface. [76] I agree that it is undisputed that the Respondent was responsible for the installation of the said timber flooring. [77] I have observed that one of the reasons for the change in the specifications of the timber flooring specifications was due to the delay in appointing the contractor which resulted in the stock for the original timber flooring of 18mm Burmese Ironwood specification no longer being available. This can be seen from the Critical Action Plan at page 3038 of RR 2/9 which shows that the contractor for the timber flooring was proposed by the Respondent to be appointed on 15.10.2018. I find that the evidence however shows that the Appellant only appointed the said contractor on 10.12.2018 which by that time allegedly resulted in the original timber flooring specified being out of stock. [78] The Respondent submits that the Appellant had through Dato Sri Amin agreed to the alternative specification or change of the timber flooring to that of Asian Teak Oak. After perusing the NOP, I however agree with the Appellant that the Respondent did not inform the Appellant nor had the Appellant agreed to the change of specification of the timber flooring. The evidence of acknowledgement by the Appellant of the invoices issued by the Respondent for the timber flooring installed, as shown in pages 2526 to 2528 of RR2/8 is in my view insufficient on a balance of probabilities to prove that the Appellant knew of the type of timber flooring which was eventually supplied and installed. [79] I also find that the evidence at trial shows that the said timber flooring installed did contain gaps between the floor slats as well as ripple appearances, dents and scratches as well as the timber flooring being uneven. [80] I therefore find that the SCJ had erred in his findings on the issue for the timber flooring and I award the sum of RM13,233.35 for the rectification works as per the QS Supplementary Report at RR2(4) page 1245. Carpet [81] As to the issue of the carpet and there being no ‘underlay’ when the carpets were installed, I have after reading the grounds of the learned SCJ found that there is no appealable error in his findings as the SCJ had assessed the evidence before him and found that amongst others

81.1 considered the evidence of SD1 on this issue and found that the Respondent was only required to lay and install the carpets without any ‘screeding’ or to ensure that the flooring was flat 81.2 the Respondent had never invoiced the Appellant for any underlay which based on a balance of probabilities showed that the Respondent did not ‘short change’ the Appellant 81.3 the Carpet was usable and that there were no defects in the Carpet itself [82] This Court after assessing the said evidence in the circumstances thus agrees with the said SCJ’s findings and will not disturb the findings of the SCJ on this matter. Electrical Works [83] As to the electrical works, it was the SCJ’s decision that the testimony of SP2 on this point could not be accepted as SP2 had not conducted a physical examination of the wiring which was allegedly uncompleted and /or not laid or properly done. [84] An examination of the NOP shows that SD1 had testified that the testing and commissioning of the electrical works was not completed. I accept, on a balance of probabilities the evidence of the QS that testing and commissioning is part of the M&E Works as well as the Appellant’s counsel’s contention that under the Electricity Supply Act 1990, testing and commissioning is the responsibility of the electrical contractor. [85] It was submitted by the Respondent’s counsel that the testing and commissioning of the M&E Works could not be done as the Appellant had stopped all works at level 5A and 7 of the building and thus the Respondent could not conduct the said testing and commissioning of the M&E Works as it is the industry practice that the same is only done once the works are completed and not in stages. With respect, I have found no evidence of this being shown to the SCJ and thus I am unable to accept the Respondent’s contention on this point. [86] I therefore accept that as the Respondent had failed to complete the said M&E Works, the Appellant had to engage other consultants to ensure that the said M&E Works were completed and that based on the QS Supplementary Report at page 1266 of RR2/4 the amount for such claim would be RM 115,000.00 [87] The decision of the SCJ on this point of the Electrical Works is therefore overturned. Submission To Authorities [88] This Court has also considered the issue of the necessary submission to the Authorities and the Supplementary report of the QS at RR2/4 which shows that the submission works were only completed at approximately 91% and that there was no evidence which shows that the submission had been approved as per the said QS testimony based on the NOP at page 171 of RR2/1. [89] I have found nothing in the grounds of the SCJ on this issue and after assessing the evidence before the trial which amongst others consist of the emails or correspondences dated 10.4.2019,

24.9.2019,

17.10.219,

23.10.2019,

3.12.2019,

9.12.2019,

18.12.2019, 27.12.2019, 2.1.2020 and 8.1.2020 all of which can be seen at RR2/9, I hold that the Appellant should be allowed to claim for the sum of RM90,000 as per the QS Supplementary Report at page 1267 of RR2/4 being the costs to engage another consultant / architect to complete the submission works to the Authorities for their approval. Changes in Design [90] On the issue of the changes in design, I have found that the SCJ had duly considered the evidence of the witnesses before him and found various evidence of changes in design which were instructed by the Appellant which included the changes in the original scope of works , changes in design, changes to the doors in the 1st to the 6th floors, the change in the size of the meeting room, size of the TV cabinet, the change in the ceiling of the meeting rooms at floor 2, 3 and 6 and the change to the door of the toilets at floors 1 to 6, the change in the design of the floor for the Local Area Network amongst others [91] The SCJ, being the best person to assess the evidence and the testimony before him, had also found that SP3 (Datuk Seri Aminul Islam) was the one who gave the instructions for the said changes in design and scope of works and that SP 3 was not a convincing witness. The SCJ had also found that the Appellant had failed to provide any documents to show that the Respondent was the cause of the said changes in design and scope of works and after due consideration the SCJ of the facts and evidence of the case and had accepted the testimony of SD1 on this issue. [92] After analyzing the evidence which the SCJ had referred to, this Court agrees with and finds no appealable error on the SCJ’s decision on the change of design being attributed to the Appellant Over Payment For Work Done [93] With regards the issue of the alleged over payment for work done, the Appellant contends that the SCJ had failed to appreciate and understand the basis of the Appellant’s claim for overpayment. [94] The Appellant claims that a sum of RM3,510,329.90 is the sum that the Respondent had been successfully selected through the tender exercise and that based on the Statement of Claim only 16 valid and acceptable PO’s in accordance with the original design were issued to the Respondent. Based on the same the Appellant submits that the entire scope of works required to be carried out by the Respondent was RM5,400,419.90 and this is supported by the QS Report, which formed the basis of the Appellants amended claim for overpayment from RM527,663.20 tp RM530,003.78. [95] To this Claim the SCJ had found that the QS Report was inconclusive, one sided and bias in favour of the Appellant. [96] I concur with the SCJ’s findings and with respect, this Court finds that the acceptance of the evidence of the Respondent over that of the Appellant is entirely within the SCJ’s domain and that the Appellant has failed to convince this Court, sitting in its appellate capacity, that the SCJ’s findings were erroneous. [97] After considering the submission of the Appellant on this issue of over payment, I am satisfied that the SCJ had properly assessed and weighed the evidence before him in accepting and/or rejecting the evidence of one side over the other. Variation Works & Invoices Issued After Termination Of Contract [98] I now turn to the issue of the SCJ’s decision on the variation works which the Appellant is appealing against. [99] The SCJ had examined and assessed VO1 and VO2 which consisted of various works which the SCJ found showed that the said VO Works were not only completed but that the same were also verified by the Appellant. I have since done the same analysis and found that the documents in RR2/8 at pages 2687 to 2700 and do indeed concur with the said SCJ’s findings. [100] In this respect, this Court has, as did the SCJ, referred to the 5 respective invoices at RR2/8 on this VO Works and find that the same are indeed due based on the Weekly Site Reports at RR2/8 which evidences that the said VO Works were completed. [101] I also agree with the SCJ that the testimony of SP2 on this issue was to be rejected as amongst others SP2 was only appointed 2 years after the VO works were completed and thus SP2’s report was inconclusive. [102] On the submission that adverse inference is to be drawn as the Respondent did not call its consultant architect, I respectfully agree with the Respondent’s counsel that the Appellant’s claim in the matter herein is for works which were allegedly defective and that the Respondent’s consultant architect was not appointed to supervise the works concerned and that he was only responsible to submit the plans for approval to the relevant authorities. Accordingly, the issue of adverse inference herein has in my view no basis. [103] I also reject the Appellants contentions that the SCJ had failed to place any weight on the unchallenged and unrebutted expert witness evidence of SP2, as I hold that it is the SCJ who has to weigh the evidence before him and ultimately decide. In Teochew Sdn Bhd v Nurhamizah Hamzah & Ors [2022] 6 CLJ 56 the Court of Appeal had applied the following observations of Raja Azlan Shah CJ (as he then was) in Wong Swee Chin v. PP [1980] CLJU 138; [1980] 1 LNS 138, on the role of the expert, which I respectfully adopt, where the said Appellate Court held “Our system of jurisprudence does not, generally speak, remit the determination of dispute to experts. Some question are left to the robust good sense of a jury. Others are solved by the conventional wisdom of a judge sitting alone. In the course of elucidating disputed questions, aids in the form of expert opinion are in appropriate cases placed before juries or judges. But except on purely scientific issues expert evidence is to be used by the court for the purpose of assisting rather than compelling the formulation of the ultimate judgments. In the ultimate analysis it is the tribunal of fact, whether it be a judge or jury, which is required to weight all the evidence and determine the probabilities, it cannot transfer this task to the expert witness the court must come to its own opinion.” [104] Thus, on this issue of the Variation Works, I will once again not interfere in the SCJ’s decision on this point.

[105] To surmise, this Court is agreeable to overturn in part only the decision of the SCJ with regards the following

105.1 on the issue for the timber flooring, I award the Appellant the sum of RM13,233.35 for the rectification works as per the QS Supplementary Report at RR2(4) page 1245

105.2 wherein the Appellant had to engage other consultants to ensure that the said M&E Works were completed and based on the QS Supplementary Report at page 1266 of RR2/4 the amount for such claim being RM115,000.00

105.3 the Appellant be allowed to claim for the sum of RM90,000 as per the QS Supplementary Report at page 1267 of RR2/4 being the costs to engage another consultant/architect to complete the submission works to the Authorities for their approval. [106] All other points of the appeal are dismissed and the SCJ’s decision on the other points are upheld. I will make no order as to costs. Dated: 26th day of May 2025 sgd. NADZARIN WOK NORDIN HIGH COURT JUDGE CONSTRUCTION COURT 1 COUNSEL FOR THE APELLANT: Edmund Bon Tai Soon, V. Jeya Kumar, Khor Xiaou Shan and Natalie Jong Ling Li (Messrs Kanesalingam & Co.] COUNSEL FOR THE RESPONDENT: Tunku Ahmad Munawwir bin Tunku A. Mustaffa (Messrs Tunku Munawwir & Solomon)