Boulevard Pillar Sdn Bhd v Goh Hardware & Construction Sdn Bhd (JB-22NCvC-32-11/2023)

This is yet another dispute between a developer and a main contractor. 09/04/2025 14:59:53 JB-22NCvC-32-11/2023 Kand. 32 S/N szOAa/pTaEe8yifgeL5tCA **Note : Serial number will be used to verify the originality of this document via eFILING portal March 14, 2025 2

Both parties point fingers at each other alleging the other had breached the contract.

The Plaintiff company is a developer and the Defendant is the contractor.

On 24.4.2019, the Plaintiff appointed the Defendant as the main contractor to construct houses on two pieces of land.

The houses were to be constructed on PTD 61070 HSM 9052 and PTD 61072 HSM 9054, Jalan Parit Hup Soon Kang, Mukim Simpang Kanan, Daerah Batu Pahat, Johor.

Two separate contracts were entered into for the construction works on the two pieces of land. The first contract will be referred to as PTD 61070 and the second contract as PTD 61072 based on the land title number.

The total value of contract PTD 61070 is RM 3,099,780.00. The commencement date was 1.10.2019 and the completion date was 30.09.2020.

The total value of the contract PTD is 61072 RM 3,171,280.00. The commencement date was 1.9.2019 and the completion date was 31.08.2020. S/N szOAa/pTaEe8yifgeL5tCA **Note : Serial number will be used to verify the originality of this document via eFILING portal March 14, 2025 3

The Defendant accepted the appointment, executed the contract and commenced work. However, the evidence does not indicate when precisely the Defendant commenced work for both contracts.

For contract, PTD 61070, documentary evidence in the form of progressive claims indicates that Defendant submitted three progressive claims to Plaintiff. One was submitted on 29.5.2020 and two on 12. 6.2020. Whereas for contract PTD 61072, Defendant submitted eight progressive claims to Plaintiff on 26.10.2019,

27.11.2019,

28.12.2019,

22.1.2020,

25.2.2020,

16.4.2020,

29.5.2020 and 12.6.2020. Some of the dates for these progressive claims do not tally with the date of submission. [11] About eleven months later, Defendant stopped work and left the project site on 27.7.2020. [12] Plaintiff claims Defendant stopped work and abandoned the site. Thus, according to Plaintiff, Defendant breached the contract [13] On the other hand, Defendant claims they did not receive payment for three progressive claims from Plaintiff for contract PTD 61070. As for contract PTD 61072, they make a general plea that Plaintiff failed to honour their progressive claims without specifying any details. Therefore, Defendant contends Plaintiff had breached the terms of payment under the contract, prompting Defendant to terminate the contract vide their letter dated 27.7.2020 and leave the site. S/N szOAa/pTaEe8yifgeL5tCA March 14, 2025 4 [14] Thereafter, Plaintiff sourced new contractors to take over and continue with the construction works yet to be completed by Defendant. [15] The Plaintiff obtained one tender from SKBP Construction Sdn. Bhd. However, they decided to appoint another contractor called Harmony Building Construction (‘Harmony’), whose quotation was much lower than that of SKB Construction Sdn. Bhd. [16] The letter of award from the Plaintiff to Harmony and Articles of Main Contact for PTD 61070 and 61072 between both parties was produced in evidence. The breakdown of the total contract sum was stated in clause 30 of the Articles of the Main Contract. However, no quotation or tender document from Harmony was produced. [17] The Contract entered into between Plaintiff and Harmony for PTD 61070 and PTD 61072 shows the building cost stated therein is identical to the building costs stated in the contract between Plaintiff and Defendant. However, the preliminary cost was lower by RM 30,000.00. Meanwhile, the cost of infrastructure work was higher by RM 57,000.00. In addition, a 12% profit calculated on the total new contract sum was also added. [18] Plaintiff is now seeking from Defendant the difference between the original contract sum entered with Defendant and the latest contract sum entered into with Harmony, being the additional cost to complete the balance works in the project which was abandoned by the Defendant. S/N szOAa/pTaEe8yifgeL5tCA March 14, 2025 5 [19] On the other hand, Defendant counterclaims against Plaintiff for the balance value of the works executed by them as of the date of termination and yet to be paid by Plaintiff. ANALYSIS AND FINDING [20] It is trite law that the standard of proof in civil cases is on the balance of probabilities as explained by the Federal Court in Inas Faiqah Mohd Helmi (A child suing through her father and next friend; Mohd Helmi Abdul Aziz) v. Kerajaan Malaysia & Ors (2016) 2 CLJ 885 as follows: - “[13] The standard of proof in civil cases is the legal standard to which a party is required to prove its case, namely on a balance of probabilities. In civil litigation, the question of the probability or improbability of an action occurring is an important consideration to be taken into account in deciding whether that particular event had actually taken place or not. In the case of Miller v. Minister of Pensions [1947] 2 All ER 372, Lord Denning said the following about the standard of proof in civil cases: The... [standard of proof] ... is well settled. It must carry a reasonable degree of probability... if the evidence is such that the tribunal can say: ‘We think it more probable than not’ the burden is discharged, but, if the probabilities are equal, it is not.” [21] The Plaintiff called three witnesses and the Defendant called one. S/N szOAa/pTaEe8yifgeL5tCA March 14, 2025 6 Whether the Defendant had breached the contract [22] The primary issue that needs to be determined is whether the Defendant had breached the contract by stopping work, abandoning and leaving the site. [23] To answer this question, this Court has to decide whether the Defendant’s action in stopping work, abandoning and leaving the site was justified by the law of contract. [24] According to Defendant in paragraph 7.4 of their defence, they were justified in terminating the contract and leaving the site because Plaintiff had defaulted on three progress claims due to them. These progress claims were: - Contract PTD 61070 Progressive payment No. Date Sum 1 11.05.2020 87,844-52 2 09.06.2020 15,623-42 3 30.06.2020 24,285-29 [25] Hence, this prompted them to issue a notice of termination to the Plaintiff dated 27.7.2020 and leave the site. [26] On the other hand, Plaintiff contends there were no outstanding progressive claims due to Defendant as of the date of Defendant’s issuance of the notice of termination. [27] According to Plaintiff, Defendant was already way behind their schedule to complete the project caused by their delay in executing S/N szOAa/pTaEe8yifgeL5tCA March 14, 2025 7 the works. Plaintiff contends that Defendant, therefore had intentionally issued the notice of termination to avoid imposition of liquidated and ascertained damages on them by the Plaintiff. [28] In my judgement, upon analysing the documentary evidence presented by both parties and considering the oral evidence from the Plaintiff’s director (PW3) and Defendant’s director (DW1), I am of the view that Defendant is not telling the truth. [29] I find that three progressive claims that Defendant has pleaded in paragraph 7.4 of their defence were yet to be due and payable by Plaintiff. The Defendant is unable to refute this fact. [30] According to the Articles of Main Contract entered into between the parties, it was agreed between them that Plaintiff is to honour the payment to Defendant within 7 days after a 60-day period. In other words, Plaintiff has 67 days to pay Defendant from the date Defendant’s progressive claims were certified for payment. [31] Plaintiff produced a table of computation indicating the respective dates on which these three progressive claims were due and payable to Defendant following the period stipulated in the contract PTD 61070 as “Lampiran A” in their reply to the defence. For easy reference, this “Lampiran A” is produced below: - PTD 61070 Tuntutan prestasi No. Tarikh Tarikh Penerimaan Jumlah disahkan oleh arkitek Tarikh akhir pembayaran (60 + 7 hari) Butiran pembayaran Jumlah 1 05.06.2020 12.06.2020

14.08.2020 000219 RM42,608.77 RM45,235.75 RM0.00 S/N szOAa/pTaEe8yifgeL5tCA March 14, 2025 8 2 18.05.2020 29.05.2020 RM15,623.42 04.08.2020 RM15,623.42 3 09.06.2020 12.06.2020 RM24,285.29 18.08.2020 RM24,285.29 RM127,753.23 RM87,844.52 RM39,908.71 [32] These dates were put to the Defendant’s sole witness, DW1 during cross-examination and he agreed to them. This can be seen from his evidence as follows: - “S Rujuk kepada muka surat 26 Ikatan B surat ini, surat tuntutan untuk bayaran kemajuan pada 15 Jun 2020. So saya katakan masa kamu hantar surat ini kepada pemaju belum sampai 67 hari untuk bayar. Setuju atau tidak? Setuju. Sekarang rujuk balik muka surat 1 Ikatan B tuntutan kemajuan kerja No.

Pemaju terima 12 Jun 2020. so tarikh akhir pembayaran 67 hari kalau dikira dari tarikh penerima adalah pada 18 Ogos 2020, setuju tak? Setuju. … OK muka surat 8 ini adalah progrsif claim No.

Ikut dokumen setuju bahawa pemaju terima claim ini, claim No. 2 ini pada 29 Mei 2020? Setuju. Hakim This the second claim? Pgm PF This is second claim. Jadi saya katakan, 67 hari daripada 29 Mei 2020 adalah pada 4 Ogos 2020 setuju tak? Betul.” S/N szOAa/pTaEe8yifgeL5tCA March 14, 2025 9 [33] As for contract PTD 61072, Defendant pleaded in paragraph 13.3 of their defence that Plaintiff had failed or refused to pay their progressive claims without specifying details of the progressive claim that was not honoured. It was merely a general plea. [34] Likewise, for contract PTD 61072, Plaintiff produced a table of computation indicating the respective dates when the progressive claims were due and payable to Defendant following the period stipulated in the contract PTD 61072 as “Lampiran A” in their reply to the defence. For easy reference, this “Lampiran A” is produced below: - PTD 61072 Tuntutan prestasi No. Tarikh Tarikh Penerimaan Jumlah disahkan oleh arkitek Tarikh akhir pembayaran (60 + 7 hari) Butiran pembayaran Jumlah 1 25.10.2019 26.10.2019 RM145,108.15 01.01.2020 19.11.2019 000127 RM145,108.15 RM0.00 2 25.11.2019 27.11.2019 RM9,870.71 02.02.2020 12.02.2020 Alliance RM9,870.71 RM0.00 3 26.12.2019 28.12.2019 RM27,278.92 04.03.2020 18.03.2020 Alliance RM27,278.92 RM0.00 4 22.01.2020 22.01.2020

02.04.2020

09.04.2020

07.05.2020 000172 UOB 678822 Alliance 000175 RM35,000.00 RM10,000.00 RM10,000.00 RM27,033.61 RM0.00 5 25.02.2020 25.02.2020 RM91,089.61 02.05.2020 12.05.2020 000176 RM91,089.61 RM0.00 6 16.04.2020 16.04.2020

02.07.2020 Alliance Alliance RM100,000.00 RM35,754.09 RM0.00 7 18.05.2020 29.05.2020 RM21,465.64 04.08.2020 RM21,465.64 8 09.06.2020 12.06.2020 RM66,115.66 18.08.2020 RM66,115.66 RM578,716.39 RM491,135.09 RM87,581.30 S/N szOAa/pTaEe8yifgeL5tCA March 14, 2025 10 [35] The schedule enclosed in the email sent by Defendant to Plaintiff on 27.7.2020 to forward their termination notice lists the details of the progress claim submitted by Defendant for contract 61072. A copy of this schedule is produced below for easy reference. [36] From this schedule, it can be observed that what was outstanding and due to Defendant for payment is certificate No. 7 for the sum of RM21,463.63 and payment for certificate No. 8 for the sum of RM66,115.66. Both these certificates were issued by the project manager, Seon Architect & Design after the Defendant had submitted their progressive claims No. 7 and No. 8. [37] Therefore, following the contract, with regards to Defendant’s progressive claim No. 7, the Plaintiff had until 4.8.2020 to pay Defendant and for progressive claim No. 8, the Plaintiff had until 18.8.2020 to pay Defendant. [38] Further, when it was put to Defendant’s witness DW1 during his cross-examination that progressive claim No. 7 was yet to be due, he agreed. This can be seen from his evidence as follows: - S/N szOAa/pTaEe8yifgeL5tCA March 14, 2025 11 “S Untuk tuntutan yang ketujuh sebab ada cop penerimaan 29 Mei 2020 dan tarikh akhir bayaran adalah pada 4 Ogos 2020. Betul tak? JB Mandarin Muka surat 5? Pgm PF Muka surat 97. JB Mandarin 4 Ogos due date? Pgm PF 4 Ogos 2020. Setuju.” [39] Finally, to put the nail into the coffin, when it was put to DW1 that at the date Defendant terminated the contract, no sums were outstanding due to them from the Plaintiff for both the contracts, DW1 candidly agreed. This can be seen from his evidence as follows: - “Contract PTD 61070 Jadi saya katakan pada tarikh kamu tinggalkan kontrak, 27/7/2020 tidak ada bayaran yang perlu dibayar, setuju tak? Jawab soalan. … Hakim No No just jawab soalan. Setuju. Contract PTD 61072 Sekarang rujuk balik kepada tuntutan kemajuan No. 7 di muka 97. Ini progress claim diterima pada 29 Mei 2020 dan S/N szOAa/pTaEe8yifgeL5tCA March 14, 2025 12 tadi Encik Goh ada setuju tarikh akhir 7 bayaran adalah pada 4 Ogos 2020. Jadi soalan saya masa Goh Hardware tinggalkan tapak pada 27 Julai 2020 tiada apa bayaran yang perlu dibayar untuk tuntutan No. 7 betul atau tidak? Setuju.” [40] I find that Defendant is unable to rebut the fact that as of the date they terminated contract PTD 61070 and contract PTD 61072, there were no sums due and outstanding to them from Plaintiff. [41] The Plaintiff also disputed the Defendant’s reason to terminate the contract based on failure to honour the progressive claims by responding vide letter dated 7.8.2020 to the Defendant that these progressive claims were not due yet for payment. [42] In this circumstance, it’s my finding that as of the date of termination of both contracts by Defendant, there were no outstanding sums due and payable from Plaintiff to Defendant. [43] Hence, I find that the Defendant had terminated the contract without a valid and good reason. I find the termination by Defendant to be unlawful based on the authorities cited by the learned counsel for Plaintiff and discussed below. [44] In Kah Seng Construction Sdn Bhd v Selsin Development Sdn Bhd [1996] MLJU 359, it was held by His Lordship Low Hop Bing J (as he then was): - “There is no intermediate right in a building contract to suspend works. If the contractor insists on the continued performance of the contract, i.e. he affirms the contract, he must himself continue to perform his primary obligations under the contract, i.e. to continue performing the contract S/N szOAa/pTaEe8yifgeL5tCA March 14, 2025 13 works. This is why suspension of the works by the contractor, i.e. not continuing with his primary obligations, becomes itself a repudiatory breach by the contractor. Even if the Plaintiff can establish that the Defendant is in repudiatory breach of contract, the Plaintiff would have no right to suspend works, but instead would have had to elect to either terminate the contract or insist on due performance. By suspending works without valid legal cause, the Plaintiff has in fact repudiated its contractual obligations. This repudiation entitled the Defendant to terminate the contract, which was duly done on 3 July 1992. As there was no provision in the rudimentary contract between the parties conferring a right to suspend works for non-payment of certified sums, the Plaintiff’s admitted suspension was wrongful.” [45] Next in Saycon Construction Sdn Bhd v Rosado Tradeline Sdn Bhd [2018] 4 MLJ 652, it was decided by the Court of Appeal as follows: - “[45] In respect of cofferdam, the learned judge found that the design of the sheet pile cofferdam formed part of the defendant’s contractual obligation under the subcontract and that the defendant had abandoned the construction of the cofferdam… For ease of reference we reproduce the relevant part of the judgment on this aspect (record of appeal Vol 1A: pp 78–79) … Finally, DW1 informed PW6 that the defendant did not wish to continue on with the design and construction of the sheet pile cofferdam work anymore as they had under quoted for this item of work. When the plaintiff had to complete the design and construction of the sheet pile cofferdam works at a cost of RM979,376.01, the defendant contend the plaintiff had pre-planned to take over the defendant’s works. This allegation is baseless because it is a clear case of the defendant had S/N szOAa/pTaEe8yifgeL5tCA March 14, 2025 14 abandoned the work and the plaintiff had no choice but to engage a third party to complete the work … [46] We find no compelling reason to disturb the finding of the learned judge. The above finding was not perverse but supported by evidence.” [46] Therefore, I conclude that due to Defendant’s wrongful termination of the contract, stopping work and abandoning the work, they are liable to pay Plaintiff damages in the form of additional costs incurred in engaging a new contractor to complete the remaining works. What are the damages to be awarded to the Plaintiff? [47] The Plaintiff sought the difference between the original contract sum to complete the project and the latest contract sum from Harmony to complete the remaining works in the project. [48] For contract PTD 61070, the difference they are seeking is RM 391,973.60 and for contract PTD 61072, the difference is RM 400,553.60. [49] A comparison of the contract entered into between the Plaintiff with Defendant and the Plaintiff with Harmony shows an increment in cost for infrastructure work and a lower sum for preliminary works. In addition, a 12% calculated based on the new contract sum was also added by Harmony as profit. [50] In support of their claim, the Plaintiff produced Harmony’s progressive claims and the Architect’s certificate for both contracts. S/N szOAa/pTaEe8yifgeL5tCA March 14, 2025 15 However, no evidence of payment of the 12% profits was produced by the Plaintiff. [51] On the other hand, Defendant submitted that the additional cost and a further 12% increase in profits were inflated claims made up by Plaintiff, unreasonable and too remote. In addition, Plaintiff failed to prove payment of the 12% profits made to Harmony. [52] In my opinion, the Plaintiff’s basis of computation for the 12% profit by Harmony on the total contract sum is erroneous. It includes the value of the works already completed by Defendant as of the date of termination on 27.7.2020. [53] Both parties were divergent on the value of the works completed by Defendant when they terminated the contract and left the site. [54] Therefore, this Court needs to determine the value of the works completed by the Defendant when they terminated the contract and left the site. [55] According to Defendant, the value of works completed by them for contract PTD 61070 is RM 297,307.03 and for contract PTD 61072 is RM 612,622.06. [56] On 5.8.2020, the Defendant submitted their final claim for contract 61070 for RM 297,307.03. This was followed by subsequent reminders to the Plaintiff vide letters and emails dated 24.7.2020,

29.12.2020, 20.1.2021, 8.2.2021and 31.5.2021. S/N szOAa/pTaEe8yifgeL5tCA March 14, 2025 16 [57] As for contract 61072, the Defendant submitted their final claim for RM 612,622.00 on 31.5.2021. [58] The Plaintiff’s director (PW3) admitted to the Plaintiff receiving these final claims. [59] There were no replies or responses from the Plaintiff at all until a reminder for the final claim for both contracts was sent via email on 16.6.2021 by Defendant to Plaintiff. [60] This prompted Plaintiff to immediately send a reply dated the same day, i.e. 16.6.2021 to Defendant by responding that Defendant had breached the contract by suspending the execution of the works before completion without reasonable grounds or cause under clause 23 (a) of the contract. In the same letter, Plaintiff also placed on record their intention to claim all costs and expenses incurred as a result of Defendant’s breach. [61] It is interesting to note that in this reply to Defendant, the Plaintiff had enclosed a schedule confirming the value of works carried out by the Defendant for both contracts as of the date of termination. The Plaintiff’s rubber stamp was placed below this schedule. The value of contract works PTD 61070 as of the date of termination was confirmed as RM297,303.03. Whereas for contract PTD 61072, it was confirmed as RM612,622.06. [62] This was followed by a reminder letter dated 2.11.2021 sent by Defendant to Plaintiff on 8.11.2021 for contract PTD 61072. S/N szOAa/pTaEe8yifgeL5tCA March 14, 2025 17 [63] It’s my finding that upon perusing the documentary evidence presented in Court, there is no iota of evidence from the Plaintiff disputing the final claims submitted by the Defendant. The Plaintiff instead had confirmed the value of works carried out by Defendant in the schedule enclosed to their reply dated 16.6.2021. The only caveat Plaintiff placed in their reply was that they intend to claim the cost and expenses incurred as a result of Defendant’s breach. However, there was no mention of any dispute on the final claim submitted by the Defendant for both contracts. [64] Further, when Defendant terminated the contract by issuing the notice dated 27.07.2020, they promptly asked Plaintiff in the same letter to arrange for their quantity surveyor for a joint measurement for the works completed by them up to that stage. However, Plaintiff failed to respond or accede to Defendant’s request despite having appointed a project manager, Seon Architecture Design Sdn Bhd. Amongst the project manager’s tasks was to value and certify the works carried out and completed by Defendant in the project. [65] Furthermore, I also find that when Plaintiff replied to Defendant’s notice of termination in their letter dated 7.8.2020, they did not mention anything about having a joint inspection for measurement. Henceforth, it can be inferred that Plaintiff elected not to have a joint inspection for measurement. [66] On the other hand, according to the Plaintiff director (PW3), the schedule enclosed in their reply dated 16.06.2021 to Defendant confirming the value of works carried out by Defendant as of the date of termination was an honest mistake made by the Project Coordinator, Sim Sze Chyi and therefore ought not be considered. S/N szOAa/pTaEe8yifgeL5tCA March 14, 2025 18 But this Court found PW3 did not go further to explain what the mistake was all about. [67] The approach to be taken by a trial Court when faced with contemporaneous documentary evidence and oral evidence clashing with this document was explained by His Lordship Sri Ram JCA (as he then was) in Len Min Kong v UMBC Bhd [1998] 2 MLJ 478 by referring to two authorities. [68] Firstly, His Lordship referred to Tindok Besar Estate Sdn. Bhd. v Tinjar & Co [1979] 2 MLJ 229 where Chang Min Tat FJ said as follows:- “... the learned trial judge expressed himself to be completely satisfied with the veracity of the respondent’s witnesses and their evidence. He purported to come to certain findings of fact on the oral evidence but did not notice or consider that the respondent’s oral evidence openly clashed with its contemporaneous documentary evidence. For myself, I would with respect feel somewhat safer to refer to and rely on the acts and deeds of a witness which are contemporaneous with the event and to draw the reasonable inferences from them than to believe his subsequent recollection or version of it, particularly if he is a witness with a purpose of his own to serve and if it did not account for the statements in his documents and writings. Judicial reception of evidence requires that the oral evidence be critically tested against the whole of the other evidence and the circumstances of the case. Plausibility should never be mistaken for veracity” [69] Secondly, His Lordship referred to Eastern & Oriental Hotel (1951) Sdn. Bhd. v. Ellarious George Fernandez & Anor [1989] 1 MLJ 35, where the Supreme Court, after quoting with approval the following observation made in “The Ocean Frost” [1985] 1 Lloyd’s Rep. 1: - S/N szOAa/pTaEe8yifgeL5tCA March 14, 2025 19 “It is frequently very difficult to tell whether a witness is telling the truth or not; and where there is a conflict of evidence such as there was in the present case, reference to the objective facts and documents to the witnesses’ motives, and to the overall probabilities can be of very great assistance to a judge in ascertaining the truth. said (at p 37C): In commercial cases there is usually a substantial body of contemporary documentary evidence. This is not strictly speaking a commercial case, but the relevancy of contemporaneous documents nevertheless holds true.” [70] In this circumstance, this Court accept the Plaintiff’s letter dated 16.06.2021 enclosing the schedule confirming the value of works completed by the Defendant as of the date of termination being a contemporaneous document to be true as opposed to PW3’s subsequent version in Court that the said letter was issued as a result of an honest mistake by the Project Coordinator. [71] Furthermore, this Court notes that the said letter was never withdrawn by Plaintiff and the maker, Sim Sze Chyi, was never called to explain what is the mistake all about and why it was sent to the Defendant if there exists a mistake in the first place. [72] In my opinion, the failure by Plaintiff to call Sim Sze Chyi also attracts an adverse inference to be drawn under Section 114 (g) of the Evidence Act 1950, i.e that Plaintiff did not dispute the final claims submitted by Defendant for both contracts and decided not to pay the balance claim to the Defendant given the cost and expenses they intend to claim from the Defendant as a result of the Defendant’s breach. S/N szOAa/pTaEe8yifgeL5tCA March 14, 2025 20 [73] Despite the confirmation made by Plaintiff on the value of works carried out by Defendant as of the date of termination in the said schedule, the Plaintiff still insists that the actual value of works completed by Defendant for contract PTD 61070 is only RM 127,753.23 instead of RM 297,307.03 and for Lot 61072 is only RM 578,716.39 as opposed to RM 612,622.06. [74] However, in my judgement, these figures relied on by Plaintiff are based on the certification for payment made by the project manager before the termination by Defendant on 27.7.2020. However, it does not include the valuation of the Defendant’s works as of the date of termination. [75] I find the Plaintiff’s own documentary evidence i.e. the schedule confirming the value of works completed by Defendant as of the date of termination contradicts the Plaintiff’s contention and does not support Plaintiff. [76] To conclude, I find that Plaintiff failed to take any reasonable steps to measure the work completed by Defendant as of the date of termination or verify the final claim submitted by Defendant in both contracts. They were focused on engaging a new contractor to complete the project and to claim the additional cost and expenses incurred as a result of the Defendant’s breach. [77] In the foregoing, based on the documentary evidence presented before the Court, I accept that the value of works completed by the Defendant as at the date of termination be RM 297,307.03 for contract PTD 61070 and RM 612,622.06 for contract PTD 61072. S/N szOAa/pTaEe8yifgeL5tCA March 14, 2025 21 According to Defendant, from these sums, the Plaintiff has yet to pay the balance of RM 209,462.51 in respect of contract PTD 61070 and RM 121,486.97 for contract PTD 61072 to them. [78] In support of these findings, I rely on the decision in Poratha Corp Sdn Bhd v Technofit Sdn Bhd [2018] MLJU 470, wherein His Lordship, Lee Swee Seng (as he then was) held as follows: - “[25] The need for contemporaneous protests if the contents of the invoices for work done are being disputed during the period of subsistence of the contract in question have been raised in a number of cases. Failure to detail the sum disputed and the reasons there for may give rise to estoppel against the party that had by design or default chosen to placidly hold its peace. [26] In the case of Besteel Berhad v Pembangunan Ladang Hassan Sdn Bhd [2010] 1 LNS 923, the High Court held as follows at pages 32 to 34: “...The defendant must realize that if it is of the view that there is dispute as to the works executed by the plaintiff, it must express its displeasure or protest at the earliest opportunity. Silence in this case is definitely not golden. As pointed out Kang Hwee Gee J in L’Grande Development Sdn Bhd v. Bukit Cerakah Development Sdn Bhd [2007] 8 CLJ 507, interim certificates must be accepted as ascertained and verified facts until they are set aside or varied at the end of the job… No attempt had been made by the defendant to amend the interim certificates. Nor is there any final certificate issued by the Konsultant Proses. There is no explanation by the defendant why such certificates were not amended or final certificates were not issued as it is within of the defendant’s S/N szOAa/pTaEe8yifgeL5tCA March 14, 2025 22 power to do so. Neither the relevant personalities in this dispute ie, Mr Richard Lee and Charles Lee were present in court to dispute the plaintiff’s claim. This inaction plus the letter of proposed payment by Mr Richard Lee in my view shows that the defendant does not have any defense to the plaintiff’s claim for the retention amount.” (emphasis added) [79] Having determined the figures for the value of Defendant’s work as of the date of termination, I now revert to the computation of damages sought by Plaintiff. [80] The value of Defendant’s work as of the date of the termination must be deducted from Harmony’s contract sum before the profit of 12 % is calculated as follows: - 12% profit on the Balance Contract sum (PTD 61070) RM 3,119,780.00 (New contract sum excluding 12% profit) minus RM 297,307.03 (value of work done = RM 2,822,472.97 by Defendant) RM 2,822,472.97 x 12% profit = RM 338,696.76 (PTD 61072) RM 3,191,280.00 (New contract sum excluding 12% profit) minus RM 612,622.06 (value of work done = RM 2,578,657.94 by Defendant) RM 2,578,657.94 x 12% profit = RM 309,438.95 S/N szOAa/pTaEe8yifgeL5tCA March 14, 2025 23 [81] Therefore, Harmony’s new contract sum for PTD 61070 is RM 3,119,780.00 + RM 338,696.76 = RM 3,458,476.76. [82] Whereas the new contract sum for PTD 61072 is RM 3,191,280.00 + RM 309,438.95 = RM 3,500,718.95. [83] The difference between the new contract sum and the old contract sum is therefore calculated as follows:- PTD 61070 RM 3,458,476.76 – RM 3,099,780.00 = RM 358,696.76 PTD 61072 RM 3,500,718.95 – RM 3,171,280.00 = RM 329, 438.95 ………………… Total = RM 688,135.71 ………………… [84] Further, it’s my finding that Defendant has failed to challenge and rebut the figures provided in Harmony’s new contract sums and their progressive claims. The Defendant’s submission that Plaintiff has failed to prove payment of the 12% profits to Harmony by adducing evidence of any payment of this sum therefore has no merit. [85] In the foregoing, based on the evidence adduced by the Plaintiff, it's my finding that they have proven on the balance of probabilities that they had engaged Harmony to complete the project abandoned by Defendant on the contract sum awarded to Harmony. S/N szOAa/pTaEe8yifgeL5tCA March 14, 2025 24 [86] In Yong Mok Hin v United Malay States Sugar Industries Ltd [1966] 2 MLJ 286, His Lordship, Raja Azlan Shah (as he then was) decided as follows: - “The defendant company counter-claimed for damages for breach of contract, expenses incurred or to be incurred to remedy defective work and complete the whole project and damages for delay and consequential loss. There is clear evidence which substantiates the defendant company’s claim that the plaintiff abandoned work in November 1964. The plaintiff admitted that he did not complete the work on the due date but argued that it was the fault of the defendant company in refusing to pay him the fifth progress payment and therefore he contended that it was the defendant company who had repudiated the contract. In my judgment that is not a good defence. … The defendant company opted to accept repudiation and sue for damages for incomplete and defective work. The law with regard to the measure of damages is adequately stated at page 442 of the 9th edition of Hudson on “Building and Engineering Contracts”. “… the direct measure of damage will be the difference between the reasonable cost to the employer of repairing the defects or completing the work, together with any sums paid by or due from him under the contract, and the sums which would have been payable by him under the contract if it had been properly carried out… The measure of damages would be the difference between the reasonable costs of completing the work as varied and the amount that would have been due to the plaintiff had he completed the work as varied, and that is $109,635.75.” S/N szOAa/pTaEe8yifgeL5tCA March 14, 2025 25 [87] In Guan Heng Construction Works (suing as a firm) v IMM White Button Mushroom (M) Sdn Bhd and another suit [2013] 10 MLJ 465. It was held by His Lordship Lee Swee Seng as follows: - “[70] … The estimated costs of rectification appearing at pp 302–303 of B2 is RM907,039. However I cannot accept the plaintiff’s contention, through its learned counsel Mr Joseph Ting, that just because the defendant had not expanded the costs then it is not in a position to claim damages which must be strictly proved and in such an instance where it cannot be strictly proved, then only nominal damages is claimable. [71] It can thus be confidently stated that the fact that the defendant has not effected the rectification works to the sinking floor does not prevent it from making a claim on what is a bona fide reasonable assessment of costs to be incurred ……Otherwise an impecunious injured party would not be able to make a claim if he has to wait until he has the funds and then do the rectification works for by then limitation would have set in. It would be a double blow for the injured party. In fact in the Singapore High Court case of Afro-Asia Shipping Company (Pte) Ltd v Da Zhong Investment Pte Ltd & Others [2004] 2 SLR 117…... When the plaintiff sued the first defendant and other defendants being the consultants and contractors who worked on the building for negligence and claimed based on a quotation of the rectification works, it was argued that as the amount had not been incurred yet then the plaintiff would only be entitled to mere nominal damages. Her Ladyship Judith Prakash J followed a simple common sensical approach when she observed as follows: [129] All the arguments made about the plaintiffs trying to get cash before the building was sold or that rectification was unnecessary had no legal foundation. A plaintiff whose S/N szOAa/pTaEe8yifgeL5tCA March 14, 2025 26 land and building has been affected is entitled to be compensated for the damage. He may apply the money for repairs or he may not … [133] … I do not think it is correct to order nominal damages. Obviously, substantial damage has been sustained and this most probably, would have a more than nominal effect on the price of the building even though much of the value of the site on which AA Building stands may reside in its development potential.” [88] Therefore, based on the above two authorities cited by learned counsel for Plaintiff, it's my finding that Plaintiff is entitled to these sums as damages from Defendant as a result of the breach by Defendant. Surely the Defendant cannot assume they can walk away without paying anything after breaking the contract and failing to complete the works in the said project. [89] In the foregoing, it’s my finding that Plaintiff has proven on the balance of probabilities damages for the sum of RM 688,135.71 payable by Defendant to them. Defendant’s Counterclaim [90] The Defendant has counterclaimed against the Plaintiff for the balance value of the works executed by them as of the date of termination and yet to be paid by the Plaintiff as follows: - Project PTD 61070 Project PTD 61072 Value of Work Done by the Defendant RM297,307-03 RM612,622-06 Payment made by the Plaintiff to RM87,844-52 RM491,135-09 S/N szOAa/pTaEe8yifgeL5tCA March 14, 2025 27 the Defendant Outstanding Sum RM209,462-51 RM121,486-97 [91] There is no dispute between both parties on the payment of RM 87,844.52 for contract PTD 61070 and RM 491,135.09. [92] I have already found that the value of works completed by Defendant as of the date of termination is RM 297,307.03 for contract PTD 61070 and RM 612,622.06 for contract PTD 61072. [93] Henceforth, it’s my finding that the Defendant has proven their counterclaim for the sum of RM 209,462.51 in respect of contract PTD 61070 and RM 121,486.97 in respect of contract PTD 61072 on the balance of probabilities. The total balance sum due from the Plaintiff to the Defendant is RM 330,949.48.

[94] In the foregoing, I hereby allow the Plaintiff’s claim and the Defendant’s counterclaim with interest. Both parties agreed to bear their respective cost. [95] The Plaintiff’s claim for damages in prayer 14(1) allowed for the sum of RM 358,696.76 and in prayer 14(2) allowed for the sum of RM 329, 438.95. The total sum is RM 688,135.71. [96] The Plaintiff elected not to proceed with their claim in prayer (3). As such, their claim for other general and special damages is dismissed. S/N szOAa/pTaEe8yifgeL5tCA March 14, 2025 28 [97] Interest 5% per annum awarded on the total sum RM 688,135.71 from the date of judgement, being the date on which the Plaintiff has succeeded in proving their claim for damages. [98] Defendant’s counterclaim in prayer 26.1 for the sum RM 209, 462.51 and in prayer 26.2 for the sum of RM 121,486.97 is allowed. [99] Interest 5% per annum awarded on the total sum of RM 330,949.48 from 19.8.2020, the date on which their final progressive claim became due and payable. [100] The Defendant’s counterclaim for the total sum of RM 330,949.48 inclusive of interest is to be set off with the Plaintiff’s award of damages for the total sum of RM 688,135.71. [101] Each party is to bear their respective costs Dated this 14th March 2025 at Muar in the State of Johore. t.t. SURIA KUMAR DJ PAUL Judge High Court of Malaya Muar Johore Darul Ta’zim S/N szOAa/pTaEe8yifgeL5tCA March 14, 2025 29 Counsels: For the Plaintiff : Tan Jose Nan with Tay Ming Hung For the Defendant : Yap Che Kai Solicitors: For the Plaintiff Messrs Alan Tan & Associates Advocates & Solicitors No. 9-9A & 9-10A Lorong Haji Wan Ibrahim Jalan Abdul Rahman 84000 Muar Johor [Ref. No. : AT/CIV/11796/LIT-BPSB/23/JO] For the Defendant Messrs C.K. Yap & Partners Advocates & Solicitors No. 21A, Jalan Sutera Tanjung 8/2 Taman Sutera Utama 81300 Skudai Johor [Ref. No. : CKP/244/2023/yck] S/N szOAa/pTaEe8yifgeL5tCA March 14, 2025 30 Hearing Date : 3rd March 2024, 8th April 2024, 21st May 2024, 29th May 2024, 20th June 2024, 17th July 2024, 30th September 2024, 15th October 2024, 28th October 2024, 2nd January 2025, Decision Date : 14th March 2025 S/N szOAa/pTaEe8yifgeL5tCA