BA-22C-24-05/2023
High Court of Malaysia7 Jul 2025
The written judgment as the court issued it, with the coram, case number, and source links. Every paragraph has its own anchor.
Content
1 DALAM MAHKAMAH TINGGI MALAYA DI SHAH ALAM NEGERI SELANGOR DARUL EHSAN GUAMAN SIVIL NO. BA-22C-24-05/2023 BETWEEN BMG GLOBAL SDN BHD … PLAINTIFF [Co. No: 200501020540 (702664-W)] AND JUANG-ANTARA BINA SDN BHD … DEFENDANT [Co. No: 199501016618 (345821-P)] GROUNDS OF JUDGMENT A.
1
This is a suit filed by the Plaintiff being the main contractor for the project known as “Project Membina Jambatan Merentasi Sungai Pahang Dari Kg. Guai ke Kg. Seberang Guai, Daerah Bera, Pahang” against the Defendant being the sub-contractor appointed via a Letter of Award dated 19.9.2017.
2
The claim against the Defendant was essentially for alleged delay in the completion of the sub-contract works which had attracted liquidated ascertained damages (LAD) amounting to RM3,609,000.00. This amount is to be set-off against the sum owing to the Defendant under the sub-contract.
3
The Plaintiff had also claimed for the excess sum of RM215,756.43 (being the Final Sub-Contract Sum of RM43,415,106.78 less the sum paid to the Defendant by the Plaintiff being RM43,630,863.21) to be paid to the Plaintiff by the Defendant.
4
The Defendant on the other hand had via its counterclaim made through its Statement of Defence claimed that the total value of works done by the Defendant was in accordance to the Progress Claim No. 48 amounting to RM47,733,297.10 and that the Plaintiff is not entitled for LAD as the sub-contract between them was a lump sum contract and as such not subject to re-measurement.
5
As such, the Defendant’s claim against the Plaintiff was for a sum of RM3,968,936.13 being the balance of the unpaid sub-contract sum.
6
On the day of trial i.e. 7.7.2025, the Plaintiff’s Solicitor had appeared in court and had informed in open court that the Plaintiff had terminated them as Solicitors for the Plaintiff the night before i.e on 6.7.2025. The Plaintiff had not appointed a replacement Solicitor to take over conduct of the matter as at 7.7.2025 i.e on the day of the commencement of the trial and neither had written to court regarding the termination.
7
The Plaintiff had also not sent any representative to court to address this issue and or to request for a postponement of the trial in order to do the needful to carry on with the suit which would include the appointment of a replacement Solicitor.
8
Hence, in the circumstances, the Defendant made an oral application for the Plaintiff’s case to be struck out and for the Defendant’s counterclaim in the suit to be heard and decided on the trial date of 7.7.2025. Since, the Plaintiff failed to appear and make any request from the court under the circumstances without any reasons, in the absence of any cogent reasons, I struck out the Plaintiff’s claim in the main suit against the Defendant and allowed the Defendant’s counterclaim to be heard.
9
On 24.7.2025, the Plaintiff via its newly appointed Solicitors had filed two (2) Notices of Appeal at the Court of Appeal against the both the decisions for the striking out and the judgment given for the counterclaim. B.
10
Order 35 Rule 1(2) of the Rules of Court 2012 reads as follows: “1. Failure to appear by both parties or one of them (O. 35 r. 1) …
2
If, when the trial of an action is called on, one party does not appear, the Judge may proceed with the trial of the action or any counterclaim in the absence of that party, or without trial give judgment or dismiss the action, or make any other order as he thinks fit.”
11
On 7.7.2025, upon striking out the Plaintiff’s claim against the Defendant, the Defendant’s counterclaim against the Plaintiff was heard by this court in the absence of the Plaintiff as described at paragraphs 5, 6 and 7 hereinabove.
12
On its counterclaim against the Plaintiff, the Defendant called for its only witness Mr. Ooi Lim Hai (SD 1) to give his evidence via his written witness statement which was admitted and marked as “WSSD1”. The Defendant had also submitted to this court orally immediately upon the conclusion of SD1’s evidence and through its submission had reduced the sum claimed against the Plaintiff from RM3,968,936.13 to RM1,146,869.87 being the balance sum still due to it after the Plaintiff having paid to the Defendant the Adjudication Sum which had been awarded through the Adjudication Proceedings taken against the Plaintiff by the Defendant.
13
13.
Preamble
Pursuant to Order 35 Rule 1(2) of the Rules of the Court 2012, I heard the counterclaim in the absence of the Plaintiff and allowed the Defendant’s counterclaim of RM1,146,869.87 to be paid within 14 days together with a simple interest of 5% per annum of RM1,146,869.87 to be calculated from the date of the judgment till the full settlement of the same. I also allowed for costs of RM20,000.00 to be paid to the Defendant by the Plaintiff subject to allocatur fee. Dated : 15th August 2025 SUMATHI A/P MURUGIAH JUDGE HIGH COURT OF MALAYA SHAH ALAM SELANGOR DARUL EHSAN Counsel for Plaintiff : Unrepresented Counsel for Defendant : Mr. Chan Kheng Hoe & Mr. Pung Kian Bang Messrs Kheng Ho & Lee Yuen
Wrong text, a broken link, out-of-date content, or a removal request — tell us and we'll check it against the official source.