Capaian Unggul Sdn. Bhd. v Delta Zeeforce Security Services Sdn. Bhd. (BL-B52NCvC-17-05/2023)

The sum of RM74,589-00 being the cost of restoration and repairs of the stolen electrical wires in the warehouse;

The sum of RM650,000-00 being loss of rental income for the period December 2020 until April 2021; and

Interests and costs. [4] After full trial, the Court allows the sum of RM74,589-00 being the cost of restoration of the electrical wires and the interest. The sum of RM650,000-00 is dismissed. 09/07/2025 05:23:00 BL-B52NCvC-17-05/2023 Kand. 63 FACTS [5] The plaintiff is the owner of Lot 1643 measuring 4.12 acres at the Kawasan Perindustrian Pandamaran, Pelabuhan Klang, Selangor. [6] The lot consists mainly of warehouse for storing goods. [7] The defendant is involved in the business of providing security services and personnel. [8] On 20/08/2021, the plaintiff appointed the defendant to provide security services for the warehouse with effect from 01/9/2021. In essence, the letter states the provision of one (1) security guard at the area. See the letter of appointment (contract) as follows: DELTA ZEEFORCE SECURITY SERVICES SDN. BHD. Attn: Mr Ashok Kumar A/L A Mugaya (Manager) Dear Sirs, Confirmation of Appointment as your security service at our Premises/Factory We refer to your quotation dated 16 August 2021 to us for the provision of security services at the captioned premises/factory. We are pleased to confirm your appointment as our sole security guard service company effective 1 September 2021 at a rate of RM6.00 per hour per guard (excluding SST). As we are currently not storing any cargo in the factory, we shall only engage 1 guard to look after the premises and plan to increase the number of guards once we store cargo of value in the factory. Yours faithfully signed LIONEL LIM Executive Director & Chief Operating Officer CAPAIA [9] Part of the contractual terms are also provided in the Proposal for Security of Services issued by defendant to plaintiff dated 16/8/2021. It is reproduced as follows: 16 AUGUST 2021 CAPAIAN UNGGUL SDN BHD ATTN: MR DIONEL LIM Dear Sir, RE: PROPOSAL FOT SECURITY SERVICE FOR MALTACO MS SDN BHD AT PANDAMARAN, PELABUHAN KLANG, SELANGOR DARUL EHSAN Greetings! On the above matter refers. INTRODUCTION DELTA ZEEFORCE SECURITY SERVICES SDN. BHD. Was established in 2008. About 3 years later, Delta Zeeforce Security Services restructured by a group well experienced security practitioners. Today, we have diversified our service and moves towards becoming a complete resource centre for security business. TYPE OF SERVICE Trained Uniformed Static Guard COVERAGE 24 hrs CUSTOMERS AT KLANG / PORT KLANG cement a perpetual business relationship, we seek your co-operation to propose you are free for an OBLIGATION FREE discussion. Please do not hesitate to call Thank you & Best regards Yours faithfully KUMAR [10] In brief, the important overall terms of the collective documents forming the contract are as follows:

The defendant is required to deploy one (1) security guard for 24 hours at the rate of RM6.00 per hour; and

Security guard to carry out patrolling every two (2) hours. [11] On 16/12/2021, the plaintiff s safety and compliance officer, Anthony Yogeevaran a/l Palatasan (PW2) received a call from the security guard, Elengovan. Elengovan informed PW2 of power failure (1st power failure) at the warehouse. [12] On 17/12/2021, the security guard, S. Maran a/l Santhanam (DW3) called PW2 and informed the latter that the power supply had been restored. PW2 then decided that it was unnecessary to visit the warehouse. Huge wire cables were stolen from the warehouse. [13] On 20/12/2021, PW2 was informed by Elengovan of the second power failure at the warehouse. PW2 rushed to the warehouse. PW2 was shocked. PW2 found the fencing around the warehouse was cut. PW2 also found broken windows, intruders had broken-in and had cut and stolen wire cables from the warehouse. [14] Items stolen on 17/12/2021 were huge. It consists of wire cables measuring 490 meters (L), 95 mm (W) and 25 mm and weighed approximately a few tones. [15] On 20/12/2021, the plaintiff emailed to the defendant. The email asked the defendant to liaise with its insurer to investigate and to enquire if the defendant s insurers would provide their own contractors to rectify the damage. [16] On 22/12/2021, the defendant (DW3) lodged a police report regarding the incident. [17] On 21/01/2022, the insurer adjuster conducted investigation at the warehouse. [18] However, the defendant kept silent and unresponsive. In this relation, the plaintiff was not given any notice by the defendant as to the commencement of the rectification work nor payment of compensation for losses suffered. [19] On 04/02/2022, the plaintiff issued a notice to the defendant of the plaintiff s intention to proceed with the rectification of the wires and subsequently back charge defendant. [20] The plaintiff then proceeded with the repair since no answer given by the defendant. The plaintiff engaged a third party company, Eone Electrical & Neon to do the rectification. [21] In the middle of February 2022, Eone Electrical commenced the rectification work. [22] On April 2022, the rectification works had been completed. [23] On 17/03/2022, Eone Electrical issued a quotation of RM74,589-00 for the cost of the repair to the plaintiff. [24] On 25/03/2022, the plaintiff emailed to the defendant. The email attached the invoice by Eone Electrical for the defendant to make the payment. [25] Approximately two (2) months after the plaintiff had completed the repairs, the plaintiff secured a tenant via Tenancy Agreement with Gulf Freight Line Sdn Bhd on 28/6/2022. The tenancy is for the period of two (2) years from 15/7/2022 to 14/7/2024 at the rental RM130,000-00 per month. [26] It is also pertinent to note that throughout the tenure of the services rendered by the defendant, the warehouse remained unoccupied and untenanted. DEFENCE [27] The main defence are as follows:

The defendant has dutifully discharged its duty of care;

The incident was beyond the defendant s control (act of

The repair of the wires was performed without the d findings. ISSUES TO BE TRIED [28] There are three issues to be tried. ISSUE 1 Whether the defendant and/or its representative breached the terms of the contract dated on 20/8/2021 [29] Without doubt, the implied and expressed contractual duty of the defendant is to ensure safety of the warehouse area and its property. This goes without saying. [30] The Court finds that the incident was not a small scale theft. It involves a huge wire with few tones of weight. [31] The law is settled. In determining whether a particular event has actually taken place or not, the question of the probability or improbability of an action occurring is an important consideration. See the Federal Court in Inas Faiqah bt Mohd Helmi (an infant suing through her father and next friend, Mohd Helmi bin Abdul Aziz) v. Kerajaan Malaysia & Ors [2016] 2 MLJ 1 as follows: 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: reasonable degree of probability .... if the evidence is such that the [32] Applying the test of probability, the Court finds it is not probable for the guard/defendant, being trained and supposed to monitor the area, not aware of the incident considering the whole circumstances of the case. [33] To further aggravate, the defendant defendant failed to notify the plaintiff (PW2) the soonest possible of the incident and at the very critical time when the theft occurred or when patrolling took place. [34] The Court wishes to say that although the defendant contends that the huge incident was discovered by the guard only in the morning of 18/12/2021, the defendant (DW3) only lodged a police report on 22/12/2021 which is four (4) days later. The report said inter alia: KILANG TELAH DIPOTONG DAN HILANG DICURI. LAPORAN DIBUAT UNTUK TINDAKAN LANJUT PIHAK POLIS DAN UNTUK RUJUKAN PIHAK BERKENAAN [35] Based on the above, the Court fully agrees with the following submission of the plaintiff: The failure of Defendant to lodge police report and notify the Plaintiff with immediate effect despite having knowledge of the incident on 18/12/2021 indicates that Defendant had something to hide or suppress. SD1 acknowledged during trial it is the duty of the Defendant was to immediately lodge police report [36] Based on the principles in Donoghue v. Stevenson [1932] A.C. 562, the Court is satisfied that the defendant was clearly negligent. Care and custody of the property at the material time was in the full hands of the defendant. However, the defendant had failed to take reasonable care to ensure the safety of the property and to avoid damage to the plaintiff. [37] Clearly the defendant has breached the important terms of the contract.

CONTENTIONS OF THE DEFENDANT AND FINDINGS There should be two (2) security guard stationed in the area [38] The defendant contends that based on the enormous size of the area, there should be two security guards and not one as provided. [39] The Court has considered the argument and disagrees. [40] The law is trite that the terms agreed are creatures of contract freely entered between the parties. The parties are bound by the terms as agreed. See Prof. Dr. The Malaysian Contracts Act 1950: Some Legislative and Judicial page 53 as follows: despite inroads into freedom of contract, the law of contract taken as a whole does not lay down rights and duties but rather allows parties to create by contract such rights and duties as they wish, subject to some restrictions. In this case, it was held that the parties had exercised their freedom to contract and the court was obliged to recognise the sanctity of the exercise of the right, there not being any valid reason for the court to intervene interfere with contracts validly entered is also seen in Yap Yew Cheong v Dirga Niaga (Selangor) Sdn Bhd. 39 Abdul Malik Ishak J stated: 40 That the parties are entitled to freely enter into an agreement or bargain as equals cannot be doubted. It is not the duty of the court to dictate the terms of the contract to the parties. It is the parties themselves that should decide what are the terms that they should be bound to. This approach is consistent with the idea that contracts should be made by the parties themselves. It is an approach that is known as the freedom of choice. It is certainly consonant with the concepts of a free market economy and the spirit of competition. A contract is a legally enforceable agreement giving rise to obligations for the parties . . . once there is a concluded contract . . . the parties are legally bound to honour it and the courts are duty bound to enforce it [41] The Court is satisfied that the expressed term in the contract is very clear. The defendant agrees to provide one (1) security guard. [42] The law is trite. The failure by defendant to qualify the plaintiff's request for one security guard is deemed an acceptance as part of the term of the contract. See the Apex Court in The Ka Wah Bank Ltd v. Nadinusa Sdn Bhd [1998] 2 MLJ 350 as follows: to the terms of the offer. But, where the reply is qualified or attempts to vary the terms of the offer or attempts to accept an offer on new terms (not contained in the offer), then such a reply is not a communication of an acceptance but may be a rejection accompanied by a counter-offer which the original offeror can accept or reject. In the light of the conditions put forward by Sri Ram & Co in P15 that the bank gave an undertaking to withdraw the two suits and that each party was to pay their own costs, which terms were not in P11, P15 therefore e offer, but an attempt by the offeree to vary the original offer in P11 to include new terms on undertaking and costs. In the circumstances, there was [43] The Court is satisfied that the defendant expressly agreed with the term providing for one (1) guard without any qualification. [44] The Court finds that assistant manager for the defendant, Mageson a/l Thandavamoorthy (DW1) admitted during trial that the defendant accepted the plaintiff s appointment to provide plaintiff with one (1) security guard. See cross examination of DW1: Basically, what the defendant say here is the defendant suggested or recommended to the plaintiff to have two (2) guards? Yes, Sir. But eventually the contract was signed for one (1) guard?

[45] The defendant contends that the incident was beyond their control and it was There was extraordinary torrential rain resulting in the d (DW3 regular patrol at the warehouse during a specific hour. [46] The Court finds it hard to agree. The defendant has failed to prove the allegation. There is almost zero credible evidence proving the allegation. No witness from the Malaysian Meteorological Department was called to testify to the effect.

Purported Patrolling Records [47] The defendant relies on document i.e. purportedly patrol records of Shoban a/l Anbalagan, the security guard (DW2). The records state that DW2 discovered the theft on the morning of 18/12/2021 while patrolling the warehouse and had reported to pengawal saya . [48] After careful consideration, the Court could not give weight to the document. Clearly it is self-serving. [49] Moreover, the document is against the overall evidence relating to the incident. To the mind of this Court, it does not rebut the very essence of their implied and expressed primary duty to take care of the safety of the warehouse. [50] In this regard, see Austin Heights Sdn Bhd v. Eco Water Technologies (M) Sdn Bhd (Dahulunya Dikenali Sebagai Tropical Interest Sdn Bhd) [2011] 1 MLJU 368 as follows: [29] ............. The responsibility for security of the STP and purchase of insurance for protection against risk of theft or loss was that of D until the said final obligation was met. This was the relevant period and not the defect liability period, during which the obligation extended only to rectification of defects. Care and custody of the STP was in the hands of D during the said relevant period. It, thus, followed that loss of equipment/parts occurring during this period was D s liability which could not be absolved by the fact that it was P who had purchased insurance on the insistence of D after issue of the Certificate of Practical Completion. D s liability emanated wholly from the terms and conditions of the contract as per the LOA In conclusion, I held that D was in breach of contract and liable to pay damages arising from the breach by failing to discharge their contractual obligation as alluded [51] ISSUE 2 Whether the plaintiff is entitled to claim the sum of RM74,589- 00 as cost of repair and restoration of the warehouse and loss of rental for RM650,000-00.

Cost of repair RM74,589-00 [52] It is trite that the party who suffers by the breach is entitled to receive compensation for any loss. See section 74 of the Contract Act 1950 as follows:

Compensation for loss or damage caused by breach of contract

When a contract has been broken, the party who suffers by the breach is entitled to receive, from the party who has broken the contract, compensation for any loss or damage caused to him thereby, which naturally arose in the usual course of things from the breach, or which the parties knew, when they made the contract, to be likely to [53] Clearly, there is a quotation prepared in the ordinary course of business and contemporaneously made. The Court is satisfied that it satisfactorily proves the cost of the repair. [54] The Court also finds that the invoice had been notified to the plaintiff as early as on 21/12/2021. [55] The principle is that the plaintiff is under a duty to take reasonable steps to mitigate the loss consequent upon the See Court of Appeal in Balbeer Singh A/L Karam Singh & Ors v. Sentul Raya Sdn Bhd [2014] 5 MLJ 491 as follows: loss consequent upon a defendant s wrong. In this case, the appellants could have taken steps to mitigate their losses when it became certain that the Villa Perhentian Condominium was not merely suspended but would not be completed at all. In the absence of evidence when they became aware, the best available evidence was the date of the last offer to them to refund the payments they had [56] The Court finds that the plaintiff has taken steps to mitigate the losses. The plaintiff proceeded to obtain different quotations for the repair from 3rd party contractors, amongst others from one Time Electric Sdn Bhd who quoted RM98,488-00 and one Eone Electrical who quoted much lower sum RM74,589-00. The plaintiff decided to choose the lower quotation to carry out the restoration works in February 2022.

Loss of rental RM650,000-00 [57] It is trite that when a court exercises its jurisdiction to award damages, such damages must not have the effect of enriching the claimant. See the Federal Court in Tan Sri Khoo Teck Puat & Anor v. Plenitude Holdings Sdn Bhd [1994] 1 MLRA 420 as follows: knowingly, as would be the case, to put a plaintiff in a better financial position than if the contract had been properly performed [58] he amount claimed is huge. It has the tendency to enrich the plaintiff. [59] The Court is also in full agreement the loss is too remote. In this regard, the warehouse was not tenanted throughout the tenure of the d [60] point is that the statement of claim pleads the plaintiff is seeking to recover loss of income from December 2020 until April 2021. [61] In this respect, the evidence clearly shows that the defendant was not appointed from December 2020 until April 2021. It is a fact that the tenure of the d from 01 September 2021 until May 2022. [62] It is a cardinal rule in civil litigation that parties are bound by their pleadings. See Federal Court in Samuel Naik Siang Ting v. Public Bank Bhd [2015] 6 MLJ 1 which explained the cardinal principle as follows: It is a cardinal rule in civil litigation that parties are bound by their pleadings and are not allowed to adduce facts and issues which they have not pleaded (see State Government of Perak v Muniandy [1986] 1 MLJ 490; and Anuar bin Mat Amin v Abdullah bin Mohd Zain [1989] 3 MLJ 313). In Blay v Pollard & Morris [1930] 1 KB 628, Scrutton LJ must be decided on the issues on the record; and if it is desired to raise other issues there must be pleaded on the record [63] See also High Court in Janagi v. Ong Boon Kiat [1971] 1 MLRH 360 as follows: ter involving a disputed question fact it is not proper for the court to displace the case made by the party in its pleadings and give effect to an entirely new case which the party had not made out in its own pleadings. The trial of a suit should be confined to the pleas on which the parties are at variance. If the parties agree to a factual position then it is hardly open to the Court to come to a find into, different from such agreed facts. The only purpose in requiring pleadings and issues is to ascertain the real difference between the parties and to narrow the area of conflict and to see just where the two [64] No amendment throughout the trial, has been made to the pleading. [65] Based on the above reasons, the Court finds that the plaintiff is not entitled to the loss of rental RM650,000-00. CONTENTIONS OF THE DEFENDANT AND FINDINGS [66] The defendant contends that the repair was done without the agreement of the defendant. See the statement of defence as extracted below: - Setakat mana ia diakui bahawa Defendan telah menerima emel daripada Plaintif sekitar 21.12.2021 di mana Plaintif telah meminta supaya pihak insurans Defendan melantik syarikal penyelaras secepat rnungkin dan Plaintif telah melampirkan salinan laporan polis yang dibuat oleh En. Maran dan En. Anthony, sesalinan inbois berjumlah RM98,488.00 daripada Times Electric Sdn Bhd dan sesalinan inbois berjumlah RM74,589.00 daripada Eone Electrical And Neon, serta makluman daripada Plaintif bahawa Plaintif akan menahan bayaran bayaran perkhidmatan Defendan sehingga syarikat penyelaras pihak lnsurans siap memeriksa kejadian tersebut dan kerja baik pulih kononnya diselesaikan, butir-butir lain yang terkandung di dalam perenggan-perenggan 11 hingga 16, 18 dan 19 Penyata Tuntutan Plaintif dinafikan dan Plaintif diletakkan di atas dasar bukti yang kukuh.

Defendan tiada pengetahuan mengenai kandungan perenggan 17 Penyata Tuntutan Plaintif dan Plaintif diletakkan di atas dasar bukti yang kukuh. Selanjutnya, Defendan memplidkan bahawa apa-apa kerja baik pulih yang kononnya dijalankan oleh Plaintif telah dljalankan tanpa persetujuan daripada pihak Defendan dan/atau syarikat insurans Defendan [67] Based on the evidence, the Court finds it hard to agree with the contention. [68] Clearly the defendant has failed to object to plaintiff's invoice. This amounts to admission. See Rainbow Enterprise Co Ltd v. Tahb Auto Sdn Bhd [2018] 1 MLJU 887 as follows: of goods transaction as in the instant case are the proforma invoices, bills of lading and the statement of account. The proforma invoices which was essentially the quotations in respect of the used vehicles ordered by DW2 was confirmed and affixed with the Defendant's rubber stamp and not Prestige Kar. The bills of lading was issued in the name of the Defendant, except in respect of 21 bills where Mulia Motors Corporation was named as the consignee, which was instructed by DW2 on behalf of the Defendant. [78] The Defendant received the letter of demand together with Statement of Account both dated 19 November 2015 which provides details of the used vehicle and the price. The Defendant did not register their objection with the Plaintiff in respect of the demand for payment and the contents of the Statement of Account. [69] During the trial, the above was admitted by the assistant manager of the defendant, DW1. See DW1 testimony as follows: Can I now refer you to the Bundle of document respect photograph pages 4 and 5 Enc.16 my instruction are this document was given to Delta Zeeforce on around 18.4.2022 based on invoice. Are you aware Mr. Mageson? No, sir. Did Delta Zeeforce respond to this invoice? [70] The law is clear. Where a party fails to raise any objection on the invoice of which they have been served relating to any contract, it is to be estopped from denying that payment is due from them. See High Court in HTC Global Services MSC Sdn Bhd v. Kompakar Ebiz Sdn Bhd [2011] 9 MLJ 572 as follows: [28] The law is clear. Where a party fails to raise any objection on the invoice of which they have been served relating to any contract it is to be estopped from denying that payment is due from them. See Sykt Pakar Kayu & Perdagangan Sdn Bhd v MAA-sk Sdn Bhd [1986] 1 CLJ 595; MP Factors Sdn Bhd v Suangyan Projects Sdn Bhd & Ors [2007] [71] After applying the principle to the fact in the present case, the Court is satisfied that the plaintiff is entitled to claim the sum of RM74,589- 00 as cost of repair and restoration. ISSUE 3 restoration amounting to RM74,589-00 and loss of rental amounting to RM650,000-00 is too remote. [72] The principle is that the damage should be considered if it is the usual course of things resulting from the breach of the contract. See the Court of Appeal in Koperasi Kastam Diraja Malaysia Bhd v. Yi Go Group Sdn Bhd [2021] 5 MLJ 590 as follows: has broken, the damages which the other party ought to receive in respect of such breach of contract should be such as may fairly and reasonably be considered as either arising naturally, i.e. according to the usual course of things, from such breach of contract itself, or such as may reasonably be supposed to have been in the contemplation of both parties, at the time they made the contract, as the probable result [73] See also High Court in the recent case of Accolade Land Sdn Bhd v. Mass Rapid Transit Corporation Sdn Bhd [2024] MLJU 1526 as follows:

First, in principle the purpose of damages for breach of contract is to put the party whose rights have been breached in the same position, so far as money can do so, as if his or her rights had been observed.

But secondly, the party in a breach of contract is entitled to recover only such part of the loss actually resulting as was, at the time the contract was made, reasonably contemplated as liable to result from the breach. To be recoverable, the type of loss must have been reasonably contemplated as a serious possibility, in the sense discussed in paras 27 and 28 above.

Thirdly, what was reasonably contemplated depends upon the knowledge which the parties possessed at that time or, in any event. which the party, who later commits the breach then possessed.

Fourthly, the test to be applied is an objective one. One asks what the defendant must be taken to have had in his or her contemplation rather than only what he or she actually contemplated. In other words, one assumes that the defendant at the time the contract was made had thought about the consequences of its breach.

Fifthly, the criterion for deciding what the defendant must be taken to have had in his or her contemplation as the result of a breach of their contract is a factual one. [74] After applying the principles to the facts, the Court is of the considered view that restoration amounting to RM74,589-00 is not too remote. CONCLUSION [75] The Court has considered all the issues raised in the submissions of the defendant and does not intend to raise all of them here. Suffice for the Court to say that the Court disagrees with the submissions except on the issue of loss of the rental. In short, the Court generally agrees with the submission by the plaintiff. [76] The Court has evaluated the witnesses during the trial. It is the finding of fact by this Court that the are credible. Their testimonies are supported with other evidence. [77] After considering the pleadings, evidence and submissions by the parties, on the balance of probabilities and viewed the evidence in its totality, the Court finds that the plaintiff has successfully proves part of the claim. Dated: 08 July 2025 Prepared by: signed (Zulqarnain bin Hassan) Sessions Judge Sessions Court ATIP, Klang Selangor Darul Ehsan Solicitors for the plaintiff: Sandosh Anandan together with Parasakthi Rajaretnam and Yasodhan Reddy (pupil-in-chambers) Tetuan Sandosh Anandan Advocates & Solicitors Unit A502, Block A, Kelana Square No. 17, Jalan SS7/26 Kelana Jaya, 47301 Petaling Jaya Selangor Darul Ehsan. Solicitor for the defendant: Parvinder Singh Doal Tetuan Pritam Singh Doal & Co. Advocates & Solicitors Suite 01-20 SkyAwani Commercial Centre @ Sentul No. 27 Jalan Sentul Perdana 51100 Kuala Lumpur.