Cempaka Johan Sdn Bhd v Merchant Synergy Sdn Bhd (BA-22NCvC-229-07/2020)

the CPCs issued for the bungalow units be struck off and 11 declared invalid;

(ii) general Damages of RM11,858,769.00 for rectification of 13 defects;

(iii) LAD of RM14,946,320.00; and 15

(iv) a Final Account be adjusted by the Senior Assistant Registrar. 16 17 Issues Before the Court 18 [23] The main issues before me are essentially the following:- 19

whether the Defendant owes the Plaintiff the sum of 20 RM9,210,013.04 (including GST 6%);

(ii) whether there is an account stated between the Plaintiff and 22 the Defendant;

(iii) whether the Defendant’s set off for rectification of defects is 24 valid;

(iv) effect of the issuance of the Certificates of Physical 26 Completion of Works/Practical Completion of Works; and 27

whether the Defendant has proven its set-off and 28 counterclaim. 29 S/N 7EGgaU9bUyj6tHThpikw Findings of this Court 1 [24] The Plaintiff bears the legal and evidential burden to prove on a 2 balance of probabilities of establishing its claim against the Defendant 3 throughout the trial. At the same time the Defendant bears the same 4 burden to prove its Counterclaim. 5 6 Whether the Defendant owes the Plaintiff the sum of RM9,210,013.04 7 (including GST 6%) 8 [25] It was pleaded in the SOC that the Plaintiff issued to the Defendant 9 its first letter dated 20.8.2018 demanding the payment of the outstanding 10 sum and monthly thereafter until 31.3.2019. In turn the Defendant issued 11 to the Plaintiff its monthly Progress Claim and Payment Statement which 12 in essence were admissions of the total sums outstanding. The Plaintiff 13 also issued “Request Payment of Outstanding Amount (see p 802 – 817 14 B4) to the Defendant attention to the Defendant’s Director, Mr Lee Chen 15 Pin (PW 3). Having examined these documents it can easily and 16 conclusively be seen that these documents were almost all entirely 17 acknowledged received by DW 1, the manager of the Defendant. The 18 Plaintiff’s claim is given further credence when DW 1 admitted in his 19 testimony that once he received the Request Payment of Outstanding 20 Amount documents, he would forward all to the Defendant’s 2 Directors 21 ie Mr Chin Yik Thung and Ms Lee Mee Ling. DW 1 was put to notice that 22 the Plaintiff was making those claims. DW 1 had ample time and 23 opportunity to inform the Defendant’s other 2 directors namely Mr Chin 24 Yik Thung and Ms Lee Mee Ling that the claims were disputed and not to 25 be processed. 26 27 [26] In this regard the Plaintiff relied on the Defendant’s 28 acknowledgement and admission of the requests for payment vide the 29 S/N 7EGgaU9bUyj6tHThpikw Defendant’s Progress Claim & Payment Statement. This is evident in p 1 818 – 835 of B4. It is significant to note that each of these monthly 2 admissions of the total outstanding sum of RM9,210,013.04 have been 3 signed verified and confirmed by the Defendant’s Director Mr Lee Chen 4 Pin. These were contained in nine (9) individual statements sent on a 5 monthly basis over 9 months. These were not carried out in a lump sum 6 transaction but stretched over a period of 9 months. It is thus untenable 7 for the Defendant to deny that they were unaware of the documents and/or 8 that Mr Lee Chen Pin had signed verified and confirmed them. 9 10 [27] Mr Lee Chen Pin testified and confirmed that the signatures in each 11 of the monthly “Progress Claim and Payment Statement” showing the total 12 outstanding sum of RM9,210,013.04 belonged to him. He confirmed that 13 each monthly statement had the words “Verified & Confirmed by 14 MERCHANT SYNERGY SDN BHD” and that he had signed each and 15 every one of those documents. 16 17 [28] The Defendant countered the authority of Mr Lee Chen Pin and 18 relied on section 18(1) of the Evidence Act 1950. By s. 18(1) of the EA 19 1950, an admission made by a third party can only bind the Defendant if 20 made by an agent whom the court regards under the circumstances of the 21 case as expressly or impliedly authorized by the Defendant to make them 22 and therefore those documents are not to be construed as admissions by 23 the Defendant. The Defendant has denied that Mr Lee Chen Pin had any 24 authority to sign those documents for the following reasons:- 25

Mr Lee Chen Pin and PW 1 are friends and partners in other 26 companies;

(ii) the documents were given to Mr Lee Chen Pin by PW 1 for 28 him to sign; 29 S/N 7EGgaU9bUyj6tHThpikw

(iii) he did not sign the documents at the Defendant’s office but 1 rather over lunch at restaurants;

(iv) he signed these documents in bulk; and 3

Mr Lee Chen Pin was not in charge of accounts in the 4 Defendant company, had no knowledge of what was paid and 5 what was the amount due. 6 7 [29] Having considered and examined side by side the oral and 8 documentary evidence, it instantly became obvious that the Plaintiff’s 9 counsel was correct in pointing out that the allegation of the lack of 10 authority of Mr Lee Chen Pin to sign the acknowledgment and admission 11 was never pleaded by the Defendant in their Statement of claim. 12 13 [30] It is a cardinal rule in civil litigation that parties are bound by their 14 pleadings and are not allowed to adduce facts and issues which they have 15 not pleaded (see Samual Naik Siang Ting v Public Bank Bhd [2015] 6 16 MLJ 1). 17 18 [31] It would thus be wrong and unfair of the Defendant to now question 19 the authority of PW 3 to sign the documents on behalf of the Defendant. 20 21 [32] In any event, it was never disputed that PW 3 was the designated 22 director and shareholder of the Defendant at the time he signed the 23 documents in question. He was and has remained the Defendant’s 24 director and shareholder and had never been dismissed or expelled. Even 25 during the trial, it was an accepted fact that PW 3 was still the legitimate 26 director and shareholder of the Defendant. In such a situation section 27 18(1) of the Evidence Act comes into playa and can be invoked. 28 29 S/N 7EGgaU9bUyj6tHThpikw Section 18(1) of the Evidence Act, 1950 reads as follows: 1 2 “Statements made by a party to the proceeding or by an agent to any 3 such party whom the court regards under the circumstances of the case 4 as expressly or impliedly authorized by him to make them are 5 admissions” 6 7 [33] In the circumstances of this case it is too late in the day for the 8 Defendant to question the authority of Mr Lee Chen Pin in order to avoid 9 liability. I find that s.18 of the Evidence Act 1950 as set out above is clearly 10 in the Plaintiff’s favour. The searches with Companies Commission of 11 Malaysia shows on record that Mr Lee Chen Pin was the director and 12 shareholder of the Defendant at the particular time when he signed those 13 documents. When he gave evidence at the trial, Mr Lee Chen Pin still 14 remained its director. 15 16 [34] It is pertinent to emphasize that Mr Lee Chen Pin was not called as 17 a witness by the Defendant. The Defendant had no intention and avoided 18 calling Mr Lee Chen Pin as a witness to support their version at the trial. 19 Instead it was the Plaintiff who subpoenaed him to give evidence in court. 20 Being a subpoena witness his evidence is credible and independent and 21 ought to be received as being most probable. It is acutely obvious that Mr 22 Lee Chin Pin’s evidence is not supportive of the Defendant’s version but 23 gives credibility to the Plaintiff’s claim. 24 25 [35] In the present case the Defendant had not adduced any evidence 26 whatsoever to suggest that the Plaintiff had a fraudulent intention when 27 the documents were forwarded to Mr Lee Chen Pin to sign. As admitted 28 by DW 1 also there was nothing to put the Plaintiff to inquiry regarding Mr 29 S/N 7EGgaU9bUyj6tHThpikw Lee Chen Pin’s authority to sign all the documents. This Court would reject 1 the Defendant’s argument that Mr Lee Chen Pin had no authority to sign 2 those documents. This court would also reject any argument that the 3 Plaintiff had a duty to enquire whether Mr Lee Chen Pin had the authority 4 to sign those documents before actually requesting for his signature. In 5 the considered opinion of this Court, there is no legal obligation imposed 6 by law on the Plaintiff to conduct due diligence on the Defendant’s 7 directors. In any event it was a known fact that Mr Lee Chen Pin is the 8 Defendant’s director. To compound matters there is evidence on record 9 to show that Mr Lee Chen Pin is one of the mandatory signatories of the 10 cheques in the Defendant’s bank accounts and the vouchers for the 11 previous payments of RM136,894,190.73 had been prepared by DW 1 12 and these were also approved by Mr Lee Chen Pin. It is thus the finding 13 of this court that Mr Lee Chen Pin is an authorized director of the 14 Defendant and his acknowledgement and admission of the outstanding 15 sum must bind the Defendant. 16 17 [36] Based on that reason the court will accept that the Defendant has 18 admitted that it is owing the sum of RM9,210,013.04 as the amount due 19 and owing. The Plaintiff’s contention that the outstanding sum of 20 RM9,210,013.04 has been admitted by the Defendant and the same also 21 constitutes an account stated between them in writing in respect of the 22 debt and admitted outstanding sum due from the Defendant to the 23 Plaintiff. 24 25 [37] On this issue as to whether the total outstanding sum of 26 RM9,210.013.04 stated to be “Verified & Confirmed by MERCHANT 27 SYNERGY SDN BHD” would constitute a clear and unequivocal 28 admission, this Court need only refer to the case of Telekom Cellular 29 S/N 7EGgaU9bUyj6tHThpikw Sdn Bhd (formerly known as MRCB Telecommunications Sdn Bhd) 1 v Kabelect Sdn Bhd [2000] 3 MLJ 254. At p 258 the Learned Judge 2 approved and applied the decision of the Privy Council case of North 3 Eastern Railway Company v Hastings [1900] AC 260 where it was held 4 as follows: 5 6 “The words of a written instrument must be construed according to their 7 natural meaning, and it appears to me that no amount of acting by the 8 parties can alter or qualify words which are plain and unambiguous. 9 So far as I am aware, no principle has ever been more universally or 10 rigorously insisted upon than that written instruments, if they are plain 11 and unambiguous, must be construed according to the plain and 12 unambiguous language of the instrument itself.” 13 14 [38] Furthermore, as I have stated earlier it must also be noted that the 15 Defendant did not make only one but made nine (9) monthly admissions 16 of the amounts outstanding. These were for the months of August 2018, 17 September 2018, November 2018, December 2012, January 2019, 18 February 2019, March 2019, May 2019 and June 2019 (see in p 818 – 19 835 of Bundle B4). Each monthly statement had the words “Verified and 20 Confirmed by MERCHANT SYNERGY SDN BHD” These were 21 transactions that were spread out over a considerable period of time. The 22 Defendant had ample opportunity and time to look into, examine, study, 23 scrutinize these documents. Hence these were admitted documents and 24 there is abundant authority to support this Court’s decision to accept the 25 9 monthly statements as being the accurate amount stated and owing. 26 27 [39] In the case of Tom Manas Enterprsie Sdn Bhd v Soh Ah Wah 28 ]1995] 3 CLJ 610 the learned High Court Judge held as follows: 29 S/N 7EGgaU9bUyj6tHThpikw “In my judgment, I hold that an admission made by letter, of facts which 1 show that the defendant has no defence to the action, may be sufficient 2 to enable the plaintiff to obtain judgment (Ellis v Allen (1914) ! CH 904, 3 Malacca Precast Concrete Works v William Jacks & Co (M) Sdn Bhd 4

2 MKH 111)… 5 In my judgement, there is abundant authority to support the proposition 6 that the courts can consider and decide on the admissions made before 7 or after legal proceedings have been commenced.” 8 9 [40] It must thus be taken as accepted that with the issuance of the 10 Defendant’s Progress Claim and Payment statements which set out the 11 59 individual Letters of Award and the total number of 1324 units that the 12 Defendant accepted and acknowledged the outstanding sum including the 13 GST. It is very significant and must be a factor to be taken into 14 consideration that there was no denial or protest raised by the Defendant 15 to the Plaintiff’s repeated requests for payment of the outstanding sum 16 due and owing at the material time. There was no response to the 17 Plaintiff’s repeated requests for payments. It is reasonable to expect a 18 prompt and vigorous denial of amount due and owing if indeed the 19 Defendant disputed that sum. 20 21 [41] The Defendant cannot now come to court to offer oral evidence to 22 contradict or justify their silence. Apart from their non query the Defendant 23 had even made part payment of RM136,894,190.73 on 13.7.2018. 24 Applying trite principles to the present case, it is an undisputed fact that 25 the Plaintiff had sent numerous requests for payment of the outstanding 26 sum and the Defendant had not raised any issues with the Plaintiff on the 27 said accounts. 28 29 S/N 7EGgaU9bUyj6tHThpikw [42] The Defendant’s defence and explanation of the admission is found 1 in Paragraph 12 of the Statement of Defence as follows: 2 3 “12. Defendan mengaku menerima beberapa tuntutan sebagaimana 4 yang diplidkan dalam Perenggan 20 dan 11 Pernyataan Tuntutan tetapi 5 menegaskan bahawa disebabkan perkara-perkara yang diplidkan 6 dalam Pembelaan ini dan Tuntutan Balas yang dilampirkan di sini, 7 Defendan tidak bertanggungjawab untuk mematuhi mana-mana 8 tuntutan tersebut. Tidak pernah ada apa jua pengakuan berkenaan 9 dengan jumlah besar yang tertunggak sebanyak RM9,210,013.04 dan 10 Plaintif diletakkan kepada beban pembukitan yang ketat apa jua jumlah 11 yang tertunggak selaras dengan setiap satu Surat Awad yang 12 berkenaan.” 13 14 [43] The above defence amounts to nothing more than a bare denial in 15 view of the Defendant’s own monthly Progress Claim & Payment 16 Statements. The testimony of DW 1 is self serving and insufficient in light 17 of the contemporaneous documents and the cogent evidence on record 18 that the Plaintiff’s requests for payment were personally received by DW 19

DW 1 had personal knowledge of the requests that were made. Instead 20 of making inquiries or lodging protests DW 1 merely forwarded these 21 documents to his directors. Thus the Plaintiff’s “Requests Payment of 22 Outstanding Amount” were known to DW 1 and he is the manager of the 23 Defendant company. It was also known by the other directors and not only 24 Mr Lee Chen Pin. 25 26 [44] My view mirrors that of the learned Judge in JAKS Sdn Bhd v Zeta 27 Letrik Sdn Bhd [2021] 1 LNS 1505 at para 39: 28 29 “[39] Further at the material time the Plaintiff did not deny or 30 challenge the amount due under CIP 44 and PVR 45 to 50 despite the 31 S/N 7EGgaU9bUyj6tHThpikw Defendant's letters of 10.6.2020, 21.7.2020 and 16.10.2020 to the 1 Plaintiff to pay the outstanding amount due. In a business relationship, 2 the failure of a party to register any protest or deny the opposing party's 3 assertion or demand amounts to an implied admission. See: Wong Hon 4 Leong David v. Noorazman Bin Adnan [1995] 4 CLJ 155; [1995] 3 MLJ 5 283 CA at pages 288 to 289 which was affirmed by the Federal Court 6 in Dream Property Sdn Bhd v. Atlas Housing Sdn Bhd [2015] 2 CLJ 453; 7 [2015] 2 MLJ 441 [FC] at page 478: 8 "...It is the ordinary nature of businessman to immediately refute any 9 proposition injurious to him contained in letters and not to let it stand 10 (see David Wong Hon Leong v. Noorazman Adnan [1995] 4 CLJ 11 155)......" 12 13 [45] I find that the defence put forth by the Defendant is a bare denial 14 and does not detract from the express contemporary documents and the 15 evidence on record that the Plaintiff’s requests for payment were received 16 by DW 1 who is the Defendant’s manager. 17 18 Whether there is an account stated between the Plaintiff and the 19 Defendant 20 [46] It is settled law that to constitute an account stated, the following 21 essential elements must be proven:

there must be a definite amount due from one party to another;

(ii) there must be an admission of a debt and;

(iii) there must be a debt due from one party to another 25 (see Hong Teck Guan & Anor v Lam Soon Cannery Ltd [1959] 25 MLJ 26 207) 27 28 [47] In the instant case, I am in complete agreement with learned 29 counsel for the Plaintiff that all the three ingredients of an account stated 30 S/N 7EGgaU9bUyj6tHThpikw have been satisfied in that firstly, the sum stated is a definite amount of 1 RM9,210,013.04 due from the Defendant to the Plaintiff, secondly there is 2 an express unqualified and unequivocal admission by the words “Total 3 Outstanding include GST 6%” and the words “Verified & Confirmed by 4 MERCHANT SYNERGY SDN BHD”. To emphasize the point, there were 5 9 unequivocal and unconditional repeated admissions verified and 6 confirmed by Mr Lee Chen Pin. 7 8 [48] To sum up there is a debt due from the Defendant to the Plaintiff as 9 confirmed by the Plaintiff’s requests for payments and the Defendant’s 10 response in the Progress Claim & Payment Statement verifying and 11 confirming the outstanding amount due by the Defendant in the sum of 12 RM9,210,013.04. 13 14 Whether the amount of RM9,210,013.04 includes GST 15 [49] The Defendant deny that the sum of RM9,210,013.04 should be 16 inclusive of GST, alleging that there is no evidence to show that the 17 Plaintiff is a registered person pursuant to Regulation 22 of the Goods and 18 Service Tax Regulations. This argument bears no merits as it is clear the 19 Plaintiff has its registration number as GST Reg. No: 001200242688 as 20 seen in p 3 of Bundle B17 which is a letter from the Plaintiff which was 21 tendered in court by the Defendant itself during the trial. 22 23 Whether the Defendant’s set off for rectification of defects is valid 24 [50] The Defendant’s point of contention is that the Plaintiff’s claim must 25 be set off with the need for rectification of defective words. The Defendant 26 has set out the defective works in Paragraph 21 of their Defence and 27 Counterclaim. Paragraph 21 makes mention of “Lajur B dan C Jadual 1”. 28 The source of the contents of Jadual 1 comes from a letter by the 29 S/N 7EGgaU9bUyj6tHThpikw Defendant dated 16.7.2020 sent to the Plaintiff and which is signed by Lee 1 Chen Pin on behalf of the Defendant. 2 3 [51] At the trial, Lee Chen Pin was referred to this letter dated 16.7.2020. 4 He testified that he did not write this letter and did not know the contents 5 therein. Hence he had no knowledge of its contents. Learned counsel for 6 the Plaintiff has urged this court to ignore this letter as the Defendant’s 7 Director had no knowledge of the contents. 8 9 [52] Without derogating from the above, this Court is in agreement with 10 the contention that the letter dated 16.7.2020 came about through 11 suspicious origins and hence it cannot be relied upon as to the truth of its 12 contents. This view is fortified when we take note of the date of issue of 13 the letter. It is significant to note that the letter dated 16.7.2020 is dated 14 after the Writ and Statement of Claim was filed on 9.7.2020. What makes 15 it even more intriguing is that the Writ and Statement of Claim was served 16 on the Defendant on 16.7.2020 itself. It cannot therefore be a coincidence 17 that the letter is also dated 16.7.2020. 18 19 [53] Further based on the Certificates of Practical Completion issued by 20 the Defendant’s Director to the Plaintiff, the latest Defect Liability Period 21 expired on 30.5.2019. Therefore, the origins of this letter is an afterthought 22 and must have been concocted after service of the Writ and Statement of 23 Claim was effected on the Defendant. 24 25 [54] The Defendant’s defence of defective works is not credible as it has 26 been undermined by documentary and oral evidence adduced during the 27 trial. There are various letters written by the Plaintiff to the Defendant titled 28 “Make Good Defects and Return of Key House”, and acknowledged 29 S/N 7EGgaU9bUyj6tHThpikw receipt by the Defendant’s officers and Site Supervisor (see B5-842-1095, 1 B6-1096-1348). Apart from that there is evidence of DW 1 himself having 2 acknowledged receipt of some of these letters. DW 1 had admitted while 3 under cross-examination that he himself had received these letters 4 regarding the making good of defects and return of keys (see B6-1295- 5 1327). One typical letter is produced below for ease of reference: 6 7 8 S/N 7EGgaU9bUyj6tHThpikw [55] The Defendant has not been able to successfully rebut the fact that 1 joint inspections were conducted and Completion of Defects documents 2 were duly signed by the Defendant’s officers including the Site Manager 3 YB Chu as well as the site clerks. This are shown in B7-1349-1600 and 4 B8-1601-1857. I have examined these documents and have noted that 5 these Joint Inspection Forms are dated from the years 2017 to 2019. It 6 was testified by PW 1 that the Plaintiff had borne the costs of rectifying 7 the defects but the Defendant had still not paid for the outstanding 8 progress claims to the Plaintiff. It was pointed out by PW 1 that the 9 rectifications were done out of good will even after the Defect Liability 10 Period had expired. 11 12 [56] As highlighted earlier Certificates of Making Good Defects (CMGDs) 13 signed by the Defendant’s Director, Lee Chen Pin certified that the works 14 were completed and/or made good to the Defendant’s satisfaction and 15 that the residue of the retention money deducted must be released. 16 17 [57] I have no doubt that the weight of the evidence adduced by the 18 Plaintiff has demolished the Defendant’s defence on this issue. 19 20 [58] The Defendant has contended that the CMGD is invalid for the 21 following reasons: 22 - there were still defects after the CMGDs were issued; 23 - they were issued before the notification from the Plaintiff that 24 they had remedied the defects; 25 - they were issued in 2018 while simultaneously the Defendant 26 was complaining about the defects; 27 - there was no inspection with the Architects after the defect 28 rectifications; 29 S/N 7EGgaU9bUyj6tHThpikw - they were issued by batches and defects remedied at different 1 dates; 2 - some were issued before the DLP expired. 3 4 [59] As vividly explained by the Plaintiff, the Defendant’s challenge to the 5 CMGD documents in Bundle B3 does not address the totality of the 6 evidence adduced at the trial. This Court had considered the totality of the 7 contemporaneous documents and the testimonies of witnesses and was 8 satisfied that the works had been duly rectified and made good and 9 completed satisfactorily. As explained by PW 1, the Plaintiff had carried 10 out rectification of the defects to the satisfaction of the Defendant and the 11 following contemporaneous documents are testaments to the credibility 12 and cogency of the Plaintiff’s claim: - 13

letters from the Plaintiff to the Defendant duly acknowledging 14 receipt by Defendant’s authorized officers;

(ii) joint inspections carried out followed by issuance of 16 Completion of Defects documents;

(iii) CMGD issued by Lee Chen Pin, Defendant’s director; and 18

(iv) Certificates of Physical Completion, Certificates of Practical 19 Completion and Certification of Compliance and Completion 20

(CCC). 21 22 [60] There are some documents relied on by the Defendant which they 23 claim are references of costs for defect rectification. The Defendant 24 pinpointed a letter dated 16.2.2021 from SNA Consult Sdn Bhd to S.P. 25 Chin Architects in regard to a “new design” for Roof Trusses Shop 26 Drawing. The letter is for the attention of one “Mr Lucas” who admittedly 27 is not an employee or officer of S.P Chin Architects. This letter is dated 28 16.2.2021 which is clearly after the Plaintiff’s Writ dated 9.7.2020. 29 S/N 7EGgaU9bUyj6tHThpikw [61] More importantly it is after the latest Defect Liability Period had 1 expired on 30.5.2019. More pertinently all the documents contained in 2 Bundle B11, B12 and B13 show that they are dated after the Plaintiff had 3 filed its Writ and after the Defects Liability Period had expired. It needs to 4 be pointed out too that B13-88 is for a claim for Units which does not relate 5 to the 59 Letters of Award. 6 7 [62] The Defendant’s sole witness has admitted under cross- 8 examination that he is unable to produce a single receipt from third party 9 contractors for any works done. An excerpt of his evidence is found in p 10 610 of the NOP: 11 12 “RT : So can you show anywhere receipts by the third party contractor? 13 DW 1 : No there is none. 14 RT : Showing that they received money from the Defendant? 15 DW 1 : No, there is no receipt.” 16 17 [63] The cardinal rule is that he who asserts facts must prove that those 18 facts exist. With the admission aforesaid by the Defendant’s only witness 19 the Defendant’s defence for defect rectification must fall like a pack of 20 cards. I would like to point out that the Defendant did not see it fit to call 21 any consultant or contractor as a witness to substantiate this claim. The 22 only conclusion to be drawn is to make the finding that the Defendant has 23 failed to show or furnish the best evidence rule for its purported damages 24 claim. The only conclusion to be drawn is that based on the totality of the 25 contemporaneous documents and the cumulative evidence on record, the 26 works had been duly rectified and made good satisfactorily. Otherwise the 27 CPCs and CCCs would never have been issued. It is the finding of this 28 Court that the Defendant has failed to prove its allegations on this matter. 29 S/N 7EGgaU9bUyj6tHThpikw The Certificates of Physical Completion of Works/Practical 1 Completion of Works and Certificate of Compliance and Completion 2 [64] The Court noted that for this Project, the Consultants and Project 3 Architects S.P. Chin Architect and T & T Architect were both appointed by 4 the Defendant. These Consultants and Architects would not have issued 5 the Certificates of Physical Completion of Works or Practical Completion 6 of Works if there were defects in the workmanship of the bungalows 7 constructed by the Plaintiff. 8 9 [65] It is curious that the Defendant has not produced the third party 10 contractors or the architects as their witnesses. In the circumstances the 11 Defendant has not produced cogent evidence to further substantiate their 12 allegations. 13 14 [66] The Plaintiff has contended that these CPCs were never forwarded 15 by the Defendant or the Architects to the Plaintiff. DW 1 in cross- 16 examination could not confirm with certainty that these CPCs were even 17 served on the Plaintiffs. He could not show any contemporaneous 18 documents to prove his assertion other than vaguely stating that these 19 CPCs were served “could be me or could be the runner or dispatch.” 20 21 [67] The Plaintiff have exhibited the CPCs served by the Defendant to 22 them. These CPCs seen in B3-423-481 were acknowledged and signed 23 by the Defendant’s Director. Having been duly signed by the Defendant’s 24 Director there is no reason not to believe that the works were completed 25 to the satisfaction of the Defendant. There can be no reason for the 26 Plaintiffs to doubt the content and authenticity of those CPCs that were 27 issued to them. The Plaintiff had relied on these CPCs for their claim. The 28 same applied to the Architect’s Certificate of Physical Completion of 29 S/N 7EGgaU9bUyj6tHThpikw Works which can be seen in B15-3. To illustrate the point the CPC dated 1 2.6.2014 is reproduced below: 2 3 4 5 [68] To demonstrate that point reference is made to the Certificate of 6 Practical Completion of Works in B15-406-407 where a cover letter by T 7 & T Architect Sdn Bhd to the Defendant is attached with the Certificate of 8 Practical Completion and stating that with the issuance of the certificate 9 one moiety of the retention fund shall be released. 10 11 S/N 7EGgaU9bUyj6tHThpikw [69] One such other illustration is seen in B3-423 where the Defendant’s 1 CPC for 18 units states that the works were completed on 1.2.2015 and 2 expiry of DLP on 31.7.2016. If we were to look at the corresponding 3 Architect’s CPC at B15-3-4, it will show that the physical works for 15 units 4 were completed on 27.1.2014 and the remaining 3 units were completed 5 on 28.5.2014. This goes to show without a shadow of a doubt that the 6 Defendant’s CPC was issued about one year later than that issued by the 7 Architect. This anomaly was never adequately addressed nor explained 8 by the Defendant’s witness. In my view the Defendant’s CPC is prejudicial 9 to the Plaintiff when compared to the Architect’s CPC. To add fire to the 10 flame these were withheld from the Plaintiff. 11 12 [70] The Plaintiff has shown ample illustrations of the Defendant’s CPC 13 for the Units have been issued much later than the Architect’s CPC. All 14 these are found in the table prepared and shown in pgs 23 – 28 of the 15 Plaintiff’s written submissions. These illustrations alarmingly show that the 16 Defendant’s CPC is prejudicial to the Plaintiff as it was issued later and 17 after the Architect’s CPC is issued. 18 19 [71] When cross-examined on this issue, DW 1 nonchalantly replied that 20 “we don’t recognize this Certificates of Practical Completion signed by Mr 21 Lee Chen Pin”. 22 23 [72] Since the Defendant neglected to disclose any evidence that it 24 forwarded the Architect’s Certificates of Practical Completion for the whole 25 project comprising 1324 units to the Plaintiff, the Plaintiff cannot be faulted 26 for relying upon the Certificates of Practical Completion issued by the 27 Defendant’s Director Mr Lee Chen Pin to the Plaintiff. There was no way 28 that the Plaintiff could have known of the Architect’s Certificates of 29 S/N 7EGgaU9bUyj6tHThpikw Practical Completion unless the Defendant informed them of it. The 1 Plaintiff thus had no reason to believe that the Defendant would reject 2 their claim. 3 4 [73] In any event the Plaintiff had successfully proved on a balance of 5 probabilities that the CPCs issued by the Defendant’s Director to the 6 Plaintiff is much later than the certification by the Architects. The 7 Defendant had admitted that the Architect’s Certificate is more beneficial 8 to the Plaintiff. 9 10 [74] In addition, DW 1 admitted to this when he was cross-examined. 11 The relevant excerpt of his evidence is as follows:- 12 13 “RT : …I put to you that the CPC issued by the Defendant’s Director 14 to the Plaintiff is much later than the certification by the T & T Architect 15 that the works were completed. 16 DW 1 : Yes agree.” 17 18 [75] In respect of the CCCs issued by the Architects for all the 1324 units 19 in the 59 LAs, PW 2, the Plaintiff’s subpoena witness testified that the 20 Project was under the administration of Majlis Perbandaran Nilai and 21 subsequently Majlis Bandaran Seremban. 22 23 [76] In his evidence PW 2 who is the Penolong Pegawai Seni Bina in 24 Majlis Bandaran Seremban and the officer in charge of this project 25 confirmed that the CCCs for all the 1324 units in the said Project had been 26 issued by the Architects. He confirmed that when the CCCs were issued 27 by the Architects and filed with the Majlis Bandaran Seremban, it meant 28 S/N 7EGgaU9bUyj6tHThpikw that the water and electricity connections had been completed and the 1 Water Department and TNB had supported the application for CCC. 2 3 [77] The CCCs issued by the Architects certify that the works were 4 completed to their satisfaction and in accordance with approved drawings 5 and plans. More importantly the CCCs confirm the builds are safe and fit 6 for occupation. Before these CCCs are issued, it is logical to draw the 7 inference that the Architects had supervised the construction of the 8 buildings and ensured that it conformed with the approved plans and in 9 particular with the requirements of the Street Drainage and Building Act, 10

More importantly the CCC’s when issued give the assurance that 11 the buildings are safe and fit for occupation. 12 13 [78] The evidence of PW 2 thus confirmed that the CCCs for all the 1324 14 units in respect of the 59 LAs had been issued by the Architects and 15 submitted to the local authority and copied to the Lembaga Arkitek 16 Malaysia (LAM). There is therefore no room for doubt that the provisions 17 of sections 70(20) and (21) of the Street, Drainage and Building Act 1974 18 had been complied with. 19 20 [79] Section 70 (20) and (21) of the said Act sets out the statutory duties 21 and responsibilities of the Architects as follows: 22 23 “70(20) No Certification of completion and compliance shall be issued 24 except by a principal submitting person in accordance with the time, 25 manner and procedure for the issuance thereof as prescribed by this Act 26 or any by-laws made thereunder.

Before the issuance of a certificate of completion and compliance, 28 it shall be the duties and responsibilities of the principal submitting 29 person to :- 30 S/N 7EGgaU9bUyj6tHThpikw

supervise the erection of the building to ensure that the erection 1 is in conformity with the approve plans and the requirements of the 2 provisions of this Ac or any by-laws made thereunder;

ensure that the building has been duly constructed and completed 4 in conformity with the approved plans and the requirements of this 5 Act or any by-laws made thereunder and that all technical conditions 6 imposed by the local authority has been duly complied with; and 7

ensure that the building is safe and fit for occupation”. 8 9 [80] As highlighted earlier the Plaintiff has shown ample evidence that it 10 had complied with and had completed the works as per the approved 11 drawings. The Architect’s Certificates of Practical Completion and the 12 Certificates of Practical Completion issued by the Defendant’s Director 13 serve to prove the Plaintiff’s case. 14 15 Whether the Defendant has proven its set-off and counterclaim for 16 LAD 17 [81] For its counterclaim of damages for late delivery, the Defendant 18 wholly relies on its document at B15-482-500. This was a Part C 19 document and at the trial it’s admission was strongly objected to by the 20 Plaintiff and hence was marked as ID 1. DW 1 in justifying the sum stated 21 that he computed LAD until as at 26.8.2020 and still continuing until the 22 relevant CPCs are issued in respect of each of the houses concerned. For 23 those houses where CPC had been issued, the date to be computed was 24 until then. Hence based on his computation, he concluded that the 25 outstanding LAD as at 26.8.2020 was RM14,946,320.00. According to 26 DW 1, the method of calculation applied was to enter the data and the 27 relevant formula for computation into his computer using the Microsoft 28 Excel Program which then computed the total amount. DW 1 explained 29 S/N 7EGgaU9bUyj6tHThpikw that he was responsible for entering the information into the table at pgs 1 482 to 500 of B15. 2 3 [82] DW 1 confirmed and certified to the Court that the computer he used 4 was the same one he used in the course of its ordinary use. He also 5 confirmed that he was responsible for the management of the operation 6 of the said computer and for the conduct of the activities for which the said 7 computer was used. He certified to the best of his knowledge and belief 8 that the said computer was in proper working condition and operating 9 properly in all respect. 10 11 [83] DW 1 did not however tender into court a certificate pursuant to 12 Section 90A of the Evidence Act. He preferred to rely on his oral evidence 13 to support his averments. There are two ways by which documents 14 produced by computers are admitted as evidence in court. A party may 15 give oral evidence that it was produced by a computer or by producing a 16 certificate under section 90A of the Evidence Act (see Gan Choo Yong v 17 PP [2021] MLJU 1613) The Defendant in the present case has opted to 18 do the former instead of the latter. Hence I accept the learned counsel for 19 the Defendant’s contention that ID 1 ought to be converted and marked 20 as Exhibit D1. I do not however agree that its contents should 21 automatically be accepted as correct. The Defendant must still prove the 22 veracity and accuracy of the contents of the documents, Has the 23 Defendant done so in this case? 24 25 [84] It will be noticed that there was a serious break in the chain of 26 evidence in that DW 1 did not know who had entered the data into the 27 computer for the years 2014, 2015 up to 2016 when DW 1 became the 28 S/N 7EGgaU9bUyj6tHThpikw Manager of the Defendant. The evidence retrieved from the Notes of 1 Evidence is as follows: 2 3 “RT : Mr. Chan, who entered the data in the computer in respect of 4 the Letters of Award, the unit number, the Certificates of Physical 5 Competition, the Certificate of Practical Completion and CCCs number 6 of days delayed from CPC in the year 2014, 2015 up to 2016 when you 7 became the Manager of the Defendant? 8 DW 1 : I’m not sure about that.” 9 10 [85] This evidence retrieved under cross-examination clearly showed 11 that it was not DW 1 who had entered the data into the computer as he 12 claimed earlier. 13 14 [86] To compound matters further DW 1 could not remember when in the 15 year 2016 he first entered the date into the computer. Neither could he 16 remember when he last entered the data in the computer in 2022, the 17 brand and model of the computer that he used. He was also unable to say 18 when he printed those documents he relied on to claim for the late delivery 19 charges. 20 21 [87] The evidence adduced by DW 1 here is suspicious and it is difficult 22 for the Court to accept its credibility as the document was printed only 23 after the Plaintiff had filed the writ against the Defendant. I must state I am 24 in full agreement with the contention of the Plaintiff that its accuracy, 25 veracity and reliability is in grave doubt as the document was printed only 26 after the Plaintiff had commenced the civil suit against the Defendant. In 27 the circumstances the document is self-serving, unsafe and unreliable. 28 For the aforesaid reasons I am of the considered view that the Defendant 29 S/N 7EGgaU9bUyj6tHThpikw has failed to discharge its burden to prove its claim for LAD on a balance 1 of probabilities. 2 3 [88] In this connection it is the finding of this Court that the Plaintiff is not 4 liable to the Defendant for its claim for LAD for a number of reasons. 5 Firstly, the Defendant had expressly agreed not to impose any LAD in 6 respect of the Letters of Award. This agreement between the Defendant 7 and the Plaintiff is found in the contents of the Defendant’s letter to the 8 Plaintiff dated 6.7.2016 (see B3-643-644). In this letter the Defendant 9 expressly stated that it agreed not to impose any LAD on the Plaintiff. 10 11 [89] Secondly, I consider the acts of the Defendant to have contributed 12 to a waiver to impose LAD. Some of the acts of prevention by the 13 Defendant included the issuance of variation orders and non-payment of 14 outstanding sums due by the Defendant to the Plaintiff. The Defendant 15 cannot dispute that it had issued variation orders for the Project. 16 17 [90] In addition, the Defendant had issued to the Plaintiff various 18 Extensions of Time (EOT). In consideration of the EOTs being issued the 19 Plaintiff had agreed not to claim for loss and expenses charges for the 20 EOTs granted. These EOTs were signed by the Defendant’s Director. 21 Furthermore there is no Certificate of Non-Completion (CNC) issued 22 against the Plaintiff. 23 24 [91] It is crucial to note that the Defendant had never issued any notice 25 of demand for LAD supposedly owing by the Plaintiff. DW 1 admitted to 26 this fact when under cross-examination. There was also no notice of claim 27 by the Architect against the Plaintiff for LAD. 28 29 S/N 7EGgaU9bUyj6tHThpikw [92] It has been found through cross-examination that DW 1 had used 1 the CCC date as the ingredient of the formula for calculation of LAD. It 2 was correctly pointed out by the Plaintiff that this method of computation 3 is irregular, unfair and unjust to the Plaintiff as it is on record that the CCCs 4 were delayed because the infrastructure works under the scope of works 5 of the developer was delayed. In B15-3 the Architect S.P. Chin had 6 certified as follows: 7 8 “However we are unable to issue the Certificate of Completion and 9 Compliance because the required Borang D1-D22 could not be 10 submitted due to incomplete insufficient documents and information to 11 be provided by you for the external infrastructure i.e. Surat Sokongan 12 from SAINS, IWK and TNB.” 13 14 [93] The Defendant had failed to provide the required approvals and 15 completed documents for the external infrastructure and this had caused 16 the delay in the issuance of the CCC by the Architect. The delay was not 17 caused by the Plaintiff. DW 1 had admitted when under cross-examination 18 that the infrastructure work was supposed to be carried out by the 19 developer. The delay was outside the control of the Plaintiff hence the 20 Defendant’s allegation of entitlement to LAD cannot be supported. 21 22 [94] It is pertinent to note that the Plaintiff’s letter dated 5.8.2020 had put 23 on record its claim for the sums outstanding and had included in that letter 24 its documents to substantiate its claim inter alia:- 25

Certificates of Practical Completion dated form 5.2.2015 up to 26 30.11.2017, 27

(ii) Certificates of Making Good Defects (CMGD) dated from 28 1.9.2017 up to 30.4.2019; 29 S/N 7EGgaU9bUyj6tHThpikw

(iii) Agreement contained in the Defendant’s letter dated 6.7.2016 1 not to impose any LAD and also the various Certificates of 2 Extension of Time;

(iv) Statements of Final Account dated from 11.5.2015 up to 4 3.1.2018;

Progress Claim and Payment Statement signed by the 6 Defendant’s Director admitting that as on 31.8.2018 the 7 outstanding sum due and owing by the Defendant to the 8 Plaintiff is RM9,210,013.17;

(vi) Admissions in writing to owing the Plaintiff the outstanding 10 sum of RM9,210,013.17 through issuance of the Progress 11 Claim and Payment Statements from 31.9.2018 until 12 30.6.2019. 13 14 [95] The Defendant remained silent and had not replied to the Plaintiff’s 15 letter. In resolving this conflict, the Court is more inclined to accept and 16 rely on the uncontroverted documentary evidence which speaks for itself 17 and would testify as to the truth of the matter. 18 19 [96] The doctrine for this can be found in the case of Tindok Besar 20 Estate Sdn Bhd v Tinjar Co [1979] 2 MLJ 229 where the Federal Court 21 opined that it is somewhat safer to refer to and rely on the acts and deeds 22 of a witness which are contemporaneous with the event and to draw the 23 reasonable inferences from them than to believe his subsequent 24 recollection or version of it. This is especially so if he is a witness with a 25 purpose of his own to serve and if it is not substantiated by the statements 26 in the documents that are produced alongside. Again as stated in Eastern 27 & Oriental Hotel (1951) Sdn Bhd v Ellarious George Fernandez & 28 Anor [1989] 1 MLJ 35 the Court highly recommended the assistance of 29 S/N 7EGgaU9bUyj6tHThpikw contemporary documentary evidence to assist the Court in the overall 1 probabilities of a case holding that “the relevancy of contemporaneous 2 documents nevertheless holds true.” 3 4 [97] Here the Court finds that the oral evidence of the Defendant’s 5 witness (DW 1) clearly and openly clashed with the contemporaneous 6 documentary evidence. If the Defendant strongly disputed the Plaintiff’s 7 claim it would have been expected for the Defendant to make a prompt 8 reply to the Plaintiff’s letter to vigorously deny and protest the claim made 9 by the Plaintiff denial to protest against the Plaintiff’s claim. Here the 10 Defendant did nothing and by remaining silent it would seem that the 11 Defendant agreed and admitted to the Plaintiff’s claim. 12 13 [98] The foregoing paragraphs have shown that the Defendant failed to 14 prove its Defence and Counterclaim. The provisions of the Evidence Act 15 1950 in particular section 103 is clear that he who alleges has to shoulder 16 the burden of proof. In the opinion of this Court the Defendant has not 17 succeeded in doing so. 18 19 [99] The credibility of the Defendant’s only witness is called into 20 question. During the trial, it was shown that the testimony given was 21 inconsistent and contradictory to the contemporaneous documentary 22 evidence. The Defendant preferred the court to believe its oral evidence 23 which unfortunately ran counter to the contents of the documentary 24 evidence. The Defendant attempted to ignore the acts and conduct of its 25 own Director, Mr Lee Chin Peng and preferred to give their own spin to 26 the evidence. 27 28 29 S/N 7EGgaU9bUyj6tHThpikw Conclusion 1 [100] In the present case, on a balance of probabilities, I find the scale of 2 evidence is tilted more on the side of being in favour of the Plaintiff’s case. 3 I have meticulously considered all the issues and evidence raised by the 4 Plaintiff and the Defendant and have come to the conclusion that the 5 Plaintiff has indeed proven its case on a balance of probabilities. It is quite 6 evident that the Defendant has no tenable defence. This view also applies 7 to the Defendant’s set off and Counterclaim. The Court finds that the 8 Plaintiff has appropriately responded to the Defendant’s case. I find no 9 merits in the Defendant’s Defence nor in its Counterclaim. 10 11 [101] In these circumstances my decision is to allow the Plaintiff’s claim 12 and to dismiss the Defendant’s Defence and Counterclaim with costs of 13 RM40,000. 14 15 Dated 20 March 2024. 16 17 18 19 20 (JULIE LACK) 21 Judge 22 High Court of Malaya 23 Shah Alam, Selangor Darul Ehsan 24 25 26 27 28 29 S/N 7EGgaU9bUyj6tHThpikw Counsel 1 For the Plaintiff : 2 Ramdas Tikamdas with Ashokvijay 3 (MESSRS. SANGHRAJKA & ASSOCIATES) 4 5 For the Defendant : 6 Jasvinjit Singh 7 (MESSRS. AU & JASVINJIT) 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 S/N 7EGgaU9bUyj6tHThpikw