Concord Link Management Corporation v Rk Elevator Sdn. Bhd. (WA-22C-74-10/2023)

This is a judgment delivered after a full trial.

The Plaintiff is the management corporation of Desa Cindaimas Condominium (the "Condominium"). The Defendant is a lift contractor engaged by the Plaintiff to modernise the lifts at the Condominium.

The Plaintiff claims RM182,102.94 for loss and damage and RM86,200.00 in liquidated damages (RM200.00 per day for 431 days), less RM21,900.00 already retained under a performance guarantee, for a net claim of RM246,402.94.

The Defendant counterclaims RM148,470.00 for works done, interest on that sum at 1.5% per day i.e.RM3,374,344.35 as at 7.4.2023, and the return of the RM21,900.00 performance guarantee.

The Suit was originally filed in the Kuala Lumpur Sessions Court. It was transferred to this Court by an Order dated 14.9.2023, because the Defendant's counterclaimed interest, at 1.5% per day, would breach the Sessions Court's RM1 million jurisdictional threshold.

I have had the benefit of comprehensive written submissions from both parties, together with a Common Bundle of Documents and notes of proceeding in relation of the testimony of 9 witnesses over the course of the trial.

Having considered the above, on 7.4.2026, I allowed the Plaintiff's claim and dismissed the Defendant's counterclaim, with costs and provided the parties with my broad grounds of judgment. The Defendant has since appealed. These constitutes my full reasons.

The dispute turns substantially on two connected questions: whether the Defendant discharged its professional duty of care in advising on, and maintaining, the lifts' traction machine and brake system; and whether the Works were ever brought to a contractually compliant completion, such that the Defendant could claim the outstanding balance and treat the performance guarantee as released. At trial, the Plaintiff called 5 witnesses, including its building manager (PW4) and the two JKKP investigators who examined the lift incidents (PW2 and PW3); the Defendant called 3, including its general manager (DW2) and a lift expert (DW3). Their evidence is addressed where relevant to each issue below.

Before 6.8.2018 the Defendant inspected the lifts and issued a Quotation; the Plaintiff issued a Letter of Award. The Works covered modernisation of the lifts in Blocks A and B, with a stipulated completion date later extended by the Plaintiff.

The scope was partial modernisation. The Quotation (Ikatan C pp.32-38) itemised the RM438,000.00 contract sum as: (a) Preliminaries, RM28,000.00; (b) Items 4-19, Controller modernisation, RM208,000.00; (c) Items 20-27, servicing including the traction machine and its brake RM133,840.00; and (d) Item 28, additional works, RM104,000.00.

The Defendant's obligation regarding the traction machine, under Items 26 and 27, was to service it, not replace it. This distinction between modernisation, on the one hand, and mere servicing of the traction machine and brake, on the other, recurs throughout the analysis below and is central to Issue G1.

The Letter of Award specified four weeks for installation from the later of possession of the lift shaft or motor room, or arrival of equipment, plus one week for testing and commissioning. The 70% progress payment of RM291,270.00, paid by cheque dated 28.1.2019, establishes that equipment arrived at site only around that date meaning the original completion date of 17.12.2018 could not have been met, as PW4 himself conceded. The Plaintiff extended the completion date to 20.11.2019 ("Extended Completion Date") (letter dated 11.11.2019, Ikatan C p.93). Progress, Defects and the Disputed Handover

The Works commenced on approximately 12.11.2018. Issues arose during the course of the Works, and the Plaintiff sent a sustained series of complaints an email dated 3.6.2019 and letters dated 2.7.2019,16.7.2019,5.9.2019,11.11.2019 and 27.6.2020, together with Minutes of Meeting dated 15.5.2020 documenting defects, incomplete works and breakdowns. 24 rectification items were outstanding as at 5.9.2019; by 11.11.2019 this had fallen to 5 (Ikatan C pp.85-87,93). The reduction from 24 to 5 items over two months is a fact to which I return in assessing the state of completion at the Extended Completion Date.

On 17.6.2019 the Defendant issued Variation Order No.1 for the traction machine's main sheave, which the Plaintiff paid for. It was only in April 2020 after several lift incidents that the Defendant first formally recommended replacing the traction machine itself, in Technical Reports dated 28.4.2020 and 2.6.2020 (Ikatan F pp.1-4; Ikatan C pp.116-119).

On 4.12.2019 the Defendant wrote stating the Works were complete and the lifts had been handed over on 26.11.2019; PW4 signed the letter on 5.12.2019. The parties dispute what that signature meant, and whether the documentation prerequisites the Plaintiff had stipulated since 16.7.2019 — testing and commissioning reports, JKKP compliance documents, master programmes, insurance and certifications were ever satisfied. This dispute is determined at Issue G10 below.

Two lift incidents occurred at Block A: on 9.11.2020 (Lift PMA 75256) and 22.12.2020 (Lift PMA 76807). JKKP investigated both suspended both lifts pending investigation, and penalised the Defendant under s.17(1) of the Occupational Safety and Health Act 1994. The suspension of Lift PMA 75256 was lifted on 24.2.2021 following a re-inspection on 5.2.2021.

The JKKP reports (Ikatan D pp.278-287, 288-296) attributed both incidents to failure of the electromagnetic brake system specifically non-standard lining brake shoe and plunger push-bolt components operating in a non-standard manner. The parties dispute whether these were components the Defendant supplied, or original components of the aged traction machine that were never replaced.

The Defendant's maintenance services were terminated on 25.1.2021. The Plaintiff then engaged MS Elevators Engineering Sdn Bhd (MS Elevators), who successfully obtained the necessary parts and rectified and serviced the lifts (Enclosure 51, pp.252-257, 278-316, referred to by PW5). C. PARTIES' POSITION

In outline, the Plaintiff's case is that the Defendant failed to advise on the traction machine's condition in good time, failed to complete the Works to a standard permitting official handover, and is responsible through breach of contract, negligence and breach of statutory duty for the loss the Plaintiff suffered.

The Defendant's case is that its contracted scope never included replacing the traction machine, that it discharged its advisory duty by raising the issue from January 2019 onward, that the Works were in substance handed over on 26.11.2019, and that the Plaintiff's own refusal to act on its advice was the true cause of the incidents that followed.

These competing positions, and the Defendant's further defences to the Plaintiff's claim and grounds for its counterclaim, are addressed issue by issue below. D. ISSUES FOR DETERMINATION

The following issues arise for determination, in the sequence in which they are analysed below (G0 is a preliminary issue arising from the Defendant's Reply Submissions): i) G0 (New) - Should the evidence of DW1 and DW3 be expunged? ii) G10 - Did the Defendant hand over the lifts on 26.11.2019? iii) G1 - Did the Defendant breach the Contract and/or act negligently? iv) G2, G6, G7 - Is the Defendant liable for the Plaintiff's loss, and did the Plaintiff's own conduct break the chain of causation or cause delay? v) G3 - Is the Defendant entitled to RM148,470.00 for works done? vi) G4 - Is the Defendant entitled to interest at 1.5% per day? vii) G5 - Is the Defendant entitled to the return of the performance guarantee? viii)G8 - Is the Plaintiff estopped from claiming liquidated damages? ix) G9 - Is the Plaintiff's claim an afterthought? x) G11 - Did the Plaintiff perform its own obligations under the Contract?

Several of these issues were framed in a different order in the parties' submissions. They are resolved below in the sequence necessary to follow the logic of the case: the admissibility of certain evidence (G0) and the question of handover (G10) are threshold issues bearing on several of the issues that follow, and are therefore addressed first.

Burden of proof. The Defendant's written submissions open with an exposition of the burden of proof under sections 101-104 of the Evidence Act 1950, relying on IBDC (Asia) Sdn Bhd v IBDC (Malaysia) Sdn Bhd [2023] 1 LNS 907 and Hong Yik Trading v Liziz Plantation Sdn Bhd [2017] 8 CLJ 491 referred in IBDC (supra). The applicable principles are not in dispute: the legal burden of proof rests throughout on the party asserting the facts, and shifts to the other side only once the asserting party has discharged the evidential burden.

In this case, the Plaintiff bears the burden of proving breach, negligence and loss; the Defendant bears the burden of proving completion of the Works and entitlement to the sums counterclaimed. These burdens are applied throughout the analysis that follows. i) Issue G0 — Admissibility of DW1 and DW3's Evidence

The Plaintiff applies, in its written submissions, to expunge the evidence of DW1 and DW3. The Defendant resists: DW1's evidence of the lifts' condition between 2000 and 2005 is first-hand factual evidence within his personal knowledge; DW3, a lift expert, drew his report from both parties' documents, and his expertise has not been seriously challenged.

This application is dismissed, for 4 reasons.

First, I declined to expunge this evidence during the trial itself, noting on the record (NOP p.646) that "there is no need for me to expunge because the Court is going to look at it, totality." A post-tria application in written submissions, inviting the Court at the deliberation stage to expunge evidence it declined to expunge during the trial, is procedurally irregular.

Second, DW1's evidence concerns his personal observations of the condition of the lifts at the very same Condominium during a period from approximately 2000 to 2005, when he was employed by Wah Seong Engineering Sdn Bhd. This is factual evidence based on direct personal observation, not expert opinion straying outside a claimed area of expertise, and it is relevant and admissible to establish the baseline condition of the lifts before the Defendant's involvement.

The Plaintiff is, however, correct that 2 specific claims that the lifts were in poor condition between 2000 and 2005, and that a burst water tank caused long-term damage contributing to the 94 breakdowns were not pleaded by the Defendant. Parties are bound by their pleadings, and the opposing party must be informed of adverse issues so as not to be taken by surprise (Aseambankers Malaysia Bhd & Ors v Shencourt Sdn Bhd & Anor [2014] 4 MLJ 619 at [67] per Abdul Malik Ishak JCA).

DW1 also conceded he could not produce any document supporting either claim (NOP pp.347, 362). Accordingly, while DW1's evidence is not expunged, these two specific unpleaded claims are accorded little weight.

Third, DW3 was called as a lift expert, and his report drew on both parties' documents (Bundles A, C, D and E), not solely the Defendant's as the Plaintiff alleges; the allegation of bias is not borne out on the evidence.

The appropriate treatment of expert evidence is governed by Teoh Kiang Hong v Theow Say Kow @ Teoh Kiang Seng, Henry [2025] 1 MLJ 813 at [139] per Abang Iskandar PCA, which confirms that the role of an expert is to assist the court in understanding matters within his expertise, that the court retains the ultimate factfinding role, and that where expert evidence is admissible, the question is one of weight, not expungement.

The case of Dennis Lee Thian Poh (the first Plaintiff is husband of Hoh Pau Yu (deceased) & Ors v Dr Michael Samy & Anor [2012] 4 MLJ 673, relied on by the Plaintiff, is inapplicable: there, the expert opined outside his own speciality, whereas DW3 is a lift specialist opining on lift mechanics and tender documentation within the lift industry.

Two aspects of DW3's evidence nonetheless attract scrutiny as to weight. He conceded in cross-examination that his chronology was prepared primarily from Bundle A, the Bundle of Pleadings, and that his report was "basically from A" (NOP p.625) a chronology constructed principally from one party's pleadings is inevitably susceptible to the complaint that it is an advocacy document dressed as expert analysis.

Further, his supplementary witness statement (Enclosure 79, DW3- WS(B) included nine additional questions and answers purporting to interpret the terms of the Contract, including the scope of the Defendant's obligations interpretation of a contract is a question of law exclusively within the province of the Court, not an expert (Dennis Lee Thian Poh(supra) at [60]).

DW3's technical evidence on lift components and industry standards is given appropriate weight; his opinions on the scope of the Contract or the parties' obligations are disregarded.

Fourth, the Plaintiff had ample opportunity to cross-examine both DW1 and DW3, and did so at length; to the extent key aspects of their evidence were not challenged, unchallenged evidence may be treated as accepted (Small Medium Enterprise Development Bank Malaysia (formerly known as Bank Perusahaan Kecil dan Sederhana Malaysia Bhd) v Lim Woon Katt [2016] 5 MLJ 220).

Finding on G0: The application to expunge the evidence of DW1 and DW3 is dismissed. The evidence of both witnesses is admitted and weighed as set out above; the weight to be attached to DW3's expert evidence beyond technical lift mechanics is a matter for this Court's determination after considering all the evidence.

This approach — admitting evidence subject to appropriate weight, rather than excluding it outright — reflects the general practice of this Court, and avoids the risk of a trial court depriving itself, and an appellate court reviewing its decision, of a complete evidential record. ii) Issue G10 — Did the Defendant Hand Over the Lifts on 26.11.2019?

This is the central contested factual issue, on which the counterclaim and the liquidated damages claim principally turn.

The Defendant's case rests heavily on silence: PW4 signed the 4.12.2019 letter without caveat, and the Plaintiff issued no responding letter for some six months. The Defendant relies on Browne v Dunn Principle referred to in SME Development Bank (supra) (failure to cross-examine on vital issues may be deemed acceptance) and Yeng Ying Sdn Bhd v LLC Infra Sdn Bhd (sebelum ini dekenali sebagai Loh & Loh Constructions Sdn Bhd) [2025] MLJU 3215 (silence, where a prompt denial would otherwise be expected, supports an inference of acceptance).

It additionally relies, in its written submissions, on Sotella Fund Pte Ltd v Bamboo Quest Sdn Bhd & Anor [2025] MLJU 2943 at [83]- [88], which holds that failure to deny or respond to clear assertions in commercial correspondence may itself constitute an admission, and is "particularly damaging where the defendant's subsequent explanations contradict contemporaneous documents and earlier admissions" at [88]). I have considered all 3 authorities; none changes the conclusion below.

The silence principle they reflect operates most forcefully where the only live dispute is whether the parties agreed to something that is otherwise undocumented. It cannot substitute for the complete absence of documentation the Plaintiff had required, without objection from the Defendant, since 16.7.2019 testing and commissioning reports, JKKP compliance documents, insurance and master programmes. None of this was ever produced.

PW5's concession (NOP p.330), that there is no record either way during the six-month period, does not alter this analysis; the absence of a denial cannot fill the absence of a document that the contract and the law required.

Taken cumulatively, several further factors confirm this conclusion. The absence of testing and commissioning documentation is not a minor administrative gap: it goes to the heart of whether lifts subject to JKKP safety standards had been verified safe for continued operation, and PW4's signature cannot constitute acceptance of a technical handover unsupported by any safety compliance documentation.

The Defendant's own letter of 4.12.2019, moreover, sought only "acknowledgement of receipt" in its final paragraph the natural reading of PW4's signature, given also that a building manager has no authority to accept the lifts on the Plaintiff's behalf; the Plaintiff's contention to that effect is not without merit.

Yeng Ying (supra) is in any event distinguishable on its own facts: there, affirmative handover documentation Inspection Checkpoint Forms, a joint inspection existed for the location in question. Here there is none. And even on the Defendant's own most favourable case, there was a delay of at least six days beyond the Extended Completion Date.

Finding on G10: The Defendant did not effect a contractually complete handover of the lifts on 26.11.2019, or at any time before termination on 25.1.2021. The absence of testing and commissioning documentation, JKKP compliance certification and the other completion documents stipulated since 16.7.2019 is fatal to the Defendant's case. PW4's signature acknowledged receipt of a letter, not completion of the Works. The Works remained contractually incomplete as at the date of termination. iii) Issue G1 — Breach of Contract and/or Negligence

It is common ground that the Defendant's obligation regarding the traction machine was to service, not replace, it PW2 agreed Items 26-27 were "sekadar service, bukannya replacement" and Items 4- 25 "lebih kepada controller" (NOP pp.39-40); PW4 agreed the traction machine and brake were "servis je" under the Quotation (NOP pp.105-107); and DW1 confirmed in cross-examination that the Defendant's scope was to service, not replace, the traction machine and its brake (NOP p.393). This is confirmed by the Quotation, the Letter of Award, and DW3's unchallenged expert evidence.

The real question is therefore not whether the Defendant was contractually bound to replace the traction machine, but whether it discharged its professional duty of care including its advisory function in good time.

Quotation SQ00069 of 14.1.2019 (Ikatan B p.12), recommending main sheave replacement before the Works commenced, followed by a Purchase Order in July 2019, is a point I accept in the Defendant's favour: it shows the Defendant did flag at least one aspect of the traction machine assembly at a relatively early stage.

But, in my view, it does not discharge the broader obligation. The Defendant's own Technical Reports of April and June 2020 reveal that, by then, the traction machine as a whole needed replacement and the brake system presented acute safety risk a position DW2 testified was conveyed to the Plaintiff in unambiguous terms.

The question is not whether the Defendant eventually gave the right advice it did but when, relative to the progression of the Works and the incidents that had already occurred by that point.

A specialist lift contractor inspecting lifts approximately 20 years old possesses, or ought to possess, the expertise to assess their likely remaining service life at the outset, and was in a position of superior knowledge over the Plaintiff, a management corporation( made out of residents) with no specialist lift expertise as DW2 himself conceded (NOP p.488).

The law recognises deemed reliance on a specialist subcontractor's care and skill (Pembinaan Teris Sepakat Sdn Bhd v Kumpulan Ikram Sdn Bhd & Anor (Mohd Rozi bin Salleh & Anor, third party) [2015] 10 MLJ 764 at [46] per Lim Chong Fong JC), a duty owed concurrently in tort, in the case of a professional or specialist, and not merely in contract (Esso Petroleum Co Ltd v Mardon [1976] QB 801 per Lord Denning MR; extended to specialist construction contractors in Barclay Bank Plc v Fairclough Building Ltd (1995) 44 Con LR 35 (CA) (as referred to in Pembinaan Teras Sepakat (supra).

Clause 5.1.1 of the Letter of Award required the Works to be carried out "diligently and in a good and workmanlike manner" an objective standard, requiring a standard to be achieved rather than merely the exercise of reasonable care, and not satisfied by average competence (Dua Residency Management Corporation v Edisi Utama Sdn Bhd & Anor [2021] 1 LNS 174.

The same phrase has been held to require work carried out "with due skill, care and judgment" (Komala Devi a/p M Perumal v Bandar Eco-Setia Sdn Bhd & Anor [2016] 1 LNS 1053, following Hancock and Others v B W Brazier (Anerley) Ltd [1966] 2 All ER 901 per Diplock LJ). The Defendant, as a specialist contractor with superior knowledge of the lifts' condition, is held to that standard throughout the modernisation and warranty maintenance period.

The Defendant's failure to recommend full traction machine replacement as distinct from the main sheave alone at an earlier point, and certainly before the incidents of 9.11.2020 and 22.12.2020, falls below that standard.

The Defendant is in a weaker position to rely on its April 2020 Technical Reports as a complete answer to the negligence allegation, when those reports came only after the Works period had run its course and after breakdown incidents had already materialised.

The JKKP findings reinforce this. JKKP attributed both incidents to non-standard lining brake shoe and plunger push-bolt components and penalised the Defendant under s.17(1) OSHA. These are independent regulatory findings, made by subpoenaed investigators (PW2, Ir Tajul Ariffin; PW3, Ms Norashikin) with no interest in the outcome, following a forensic investigation that included CCTV review, component inspection, maintenance record review, personnel interviews and laboratory analysis of the actual components (NOP pp.26-28); they are the product of a structured regulatory investigation, not partisan advocacy, and carry significant weight.

The Defendant says these were original components of the aged traction machine, never supplied or installed by it, and points to the absence of any Purchase Order or receipt connecting it to them.

I have considered this with care, but 3 difficulties remain. First, the OSHA penalty was imposed on the Defendant as the maintenance contractor responsible for the lifts at the material time. Second, a maintenance contractor aware that critical brake components are aged, obsolete and presenting safety risk as the Defendant demonstrably was by April 2020 at the latest is not absolved of its maintenance obligations merely because their replacement falls outside the original modernisation scope; the scope of maintenance under the free warranty period was wider than the modernisation scope itself. Third, DW2 himself conceded the brake failure was a known risk of which the Plaintiff was warned a contractor who continues to maintain a system with knowledge of critical safety defects, where the owner declines to act for budgetary reasons, is not automatically insulated from liability under OSHA.

The Defendant's further submission — raised in its written submissions, that spare parts were "obsolete" and unobtainable, making replacement impossible (NOP pp.377-378; Laporan Teknikal 28.4.2020, Ikatan F pp.1-4) — is accepted as far as it goes: DW1 confirmed the recommendation was made because parts were "tiada lagi di pasaran", and I accept that the Defendant did advise on the obsolescence of spare parts.

But PW4's uncontradicted evidence was that MS Elevators, the new contractor, successfully obtained genuine Toshiba-brand parts for at least one lift (NOP pp.142-143). The Defendant's position that parts were entirely unobtainable is therefore not fully accepted; the evidence suggests they were difficult, but not impossible, to source. This does not materially affect the liability analysis, but it does partially temper the Defendant's advisory obligation, and is weighed under quantum below.

The Plaintiff's documented complaints from June 2019 establish a consistent pattern of defective and incomplete work, contrary to the Defendant's assertion that none were raised. The sheer volume of incidents approximately 94 between October 2018 and December 2020, encompassing mantraps, breakdowns and overshoot incidents is itself probative of a failure to carry out the Works in a good and workmanlike manner.

DW1 conceded under cross-examination that 94 breakdowns was "tidak normal" if the lifts were functioning properly (NOP p.398), and I accept that concession.

A contractor whose modernisation and warranty maintenance works result in 94 incidents over approximately two years has manifestly not discharged its obligation to work with due skill, care and judgment, consistent with the approach taken on comparable facts in 3 Two Square Sdn Bhd v Perbadanan Pengurusan 3 Two Square & Ors [2018] 4 CLJ 458, where numerous malfunctions, including stuck and overshooting lift cars, within a relatively short period supported a finding that lifts had not been maintained to an acceptable standard.

The Defendant separately breached Clause 9.3 of the Letter of Award, which required it to ensure that "at least 1 lift at each block is working at any time" and to "rectify the problem and do the necessary maintenance and repair work immediately" if the other lift at the same block broke down during the modernisation period.

After the 9.11.2020 incident left only one operating lift in Block A, the Defendant failed to expedite repair of the affected lift, despite knowing of Clause 9.3; when the remaining lift also failed on 22.12.2020, JKKP suspended both lifts simultaneously. Block A consequently had no operating lift for approximately 3 months, from November 2020 until JKKP agreed to lift the suspension on 24.2.2021 a direct consequence, for the residents of Block A, of the Defendant's failure to meet both its standard of care and its express contractual obligations, and a further and independent head of breach.

Finding on G1: The Defendant breached the Contract and was negligent. The breach comprises: (a) failure to maintain the brake system with reasonable care, skill and diligence during the free warranty period, despite actual knowledge of the safety risk; (b) failure to complete the Works by the Extended Completion Date in a contractually compliant manner (Issue G10); (c) failure to submit method statements, inspection forms and progress reports; (d) breach of statutory duty, reflected in the JKKP findings and the OSHA s.17(1) penalty; and (e) breach of Clause 9.3, leaving Block A without an operating lift for approximately 3 months.

Each of these above breaches is established independently of the others on the evidence summarised above, and any one of them would, on its own, be sufficient to found liability. iv) Issues G2, G6, G7 — Liability for Loss, Causation and the Plaintiff's Conduct

The JKKP findings directly attribute both incidents to brake failure occurring while the Defendant was the responsible maintenance contractor, establishing the chain of causation between the Defendant's breach (Issue G1) and the loss the Plaintiff now claims.

Once that chain is established on the evidence, the burden falls on the Defendant to show some intervening act or omission sufficient to break it; the Defendant seeks to discharge that burden principally by reference to the Plaintiff's own conduct, addressed below.

The Defendant's most substantive answer (Issue G6) is that the Plaintiff's refusal to authorise traction machine replacement was the effective cause of the incidents. On this, I make the following findings.

The Defendant did provide advice on the need for traction machine replacement, and that advice was not adopted by the Plaintiff for budgetary reasons, as PW1 confirmed in re-examination; I accept this as established on the evidence. However, that advice came only in April 2020. The Defendant had been maintaining the lifts since November 2019, and the brake system was a known risk well before April 2020 DW1 acknowledged the lifts were in poor condition, and the traction machine was already approximately 20 years old at the commencement of the Works in 2018.

A professional contractor exercising reasonable skill and care should have identified and flagged the traction machine's condition earlier. I also note that the Defendant's Technical Reports of April and June 2020 made no mention of the main sheave replacement already paid for separately, and that the Defendant never followed up, or pressed the Plaintiff, to adopt the traction machine replacement recommendation at any of the meetings that followed conduct difficult to reconcile with a contractor that regarded the matter as the urgent safety issue it now says it was.

Furthermore, the JKKP reports specifically attribute the incidents to maintenance failures and the use of non-standard components in the brake system; even if the traction machine as a whole was aging, JKKP found a maintenance-specific cause. This distinguishes the present case from one where a contractor has done everything properly but the client has simply refused to act on a structural upgrade recommendation.

The Plaintiff's refusal to replace the traction machine may amount to contributory default a matter addressed in quantum below but it does not fully break the chain of causation, given the JKKP's specific maintenance failure findings against the Defendant, and it does not exonerate the Defendant from liability.

The Defendant's mitigation argument, that no joint inspection was conducted before handover to MS Elevators, also fails. Petrogas Resources Sdn Bhd v LGM Properties Corp [2025] MLJU 2762 is distinguishable: there, the joint inspection was proposed as a means by which the plaintiff could actively reduce prospective losses; here, the proposed inspection was to be conducted only after all the relevant damage had already occurred, after the contract had been terminated, and after the incidents had already been investigated by JKKP, such that it could not have reduced losses already suffered.

The Defendant separately argues that the absence of a joint inspection makes it impossible to attribute defects to it rather than to MS Elevators' own intervention, and notes that the Elevating Studio audit report was completed only in part in December 2020, with the remainder following in September 2021 after MS Elevators had already carried out works meaning, on the Defendant's case, that the audit did not capture the true baseline condition of the lifts at the time of handover.

This is properly an evidentiary argument going to causation rather than mitigation, and it does not succeed: the December 2020 portion of the Elevating Studio audit pre-dates the full engagement of MS Elevators and provides a baseline, and, more fundamentally, JKKP's investigation of the specific incidents which predates MS Elevators' involvement altogether remains the primary evidentiary basis for causation.

Finding on G2, G6, G7: The Defendant is liable for the loss and damage suffered by the Plaintiff. The Plaintiff did not fail to act on the Defendant's advice in any fully causally material sense, given the timing of that advice and the JKKP's specific maintenance failure findings. The Plaintiff's refusal to replace the traction machine is a relevant factor in quantum and is addressed in Section IV below.

Issue G3 — The Defendant's Entitlement to RM148,470.00 for Works Done [84] The Defendant, bearing the burden of proving completion, argues that the Controller modernisation the primary contracted scope was in fact completed, that the Plaintiff received and used the lifts for over a year after November 2019, and that there is accordingly unjust enrichment if the balance is not paid. It adds that throughout these proceedings, including in the Plaintiff's pleadings and evidence, no complaint was ever raised about the quality of the Controller modernisation works specifically. [85] I accept this latter, narrow factual point: the Plaintiff's complaints throughout were directed at the traction machine, the brake failures and the resulting incidents, not at the Controller modernisation itself, and the Defendant has a legitimate factual observation in making it. [86] That narrow concession does not, however, establish entitlement to the outstanding balance, for the contract as a whole was not brought to a contractually compliant conclusion. The 30% balance was payable, under Clause 5.2.1 of the Letter of Award, on "full completion of works and process of handover being done officially" and, as found at Issue G10, no official handover ever occurred, because the documentation prerequisites were never satisfied. [87] Clause 5.2.2 further provides that the Works are to be considered properly completed only when "free from obvious defects" a standard the Defendant cannot meet when, as this Court has found, the Works produced approximately 94 incidents, including two overshoot injuries, culminating in a Section 17(1) OSHA penalty; a contractor cannot rely on its own regulatory breach to establish entitlement to contractual payment. [88] Nor does the Plaintiff's continued use of the lifts after November 2019 constitute unjust enrichment in these circumstances: the lifts remained subject to ongoing free maintenance from the Defendant for 24 months, for which the Plaintiff was in substance paying through the retained balance, and continued use of lifts under an unterminated contract is the expected outcome of that contract, not acceptance of full completion. [89] The Defendant's entitlement to the balance payment under Clause 5.2.1 was expressly conditioned on completion of the Works and an official handover; it bore the burden of proving both completion and entitlement to the claimed sum, and a bare assertion of completion, unsupported by testing and commissioning documentation, JKKP certification or inspection checkpoint forms, does not discharge that burden (Kerajaan Malaysia v Global Upline Sdn Bhd and Another Appeal [2017] 1 MLJ 170 at [79] per Hasnah Hashim JCA: "the burden of proof is on the party seeking the claim to prove the facts"). [90] Finding on G3: The counterclaim for works done in the sum of RM148,470.00 is dismissed. The Defendant has not established contractual completion of the Works, and the outstanding sum only became due on official handover, which never occurred. The OSHA finding further undermines the Defendant's entitlement to full contractual payment. To the extent the Defendant's unjust enrichment argument is understood as a free-standing restitutionary claim independent of the Contract, it fares no better: the Plaintiff's use of the lifts was at all times referable to, and explicable by, the subsisting Contract and the Defendant's ongoing maintenance obligations under it, leaving no unjust element capable of grounding such a claim.

(vi) Issue G4 — Interest at 1.5% Per Day [91] Given the dismissal of the principal counterclaim, this issue is academic, but I must address the same for completeness. As noted above in the introduction, but for the is claim of Interest at 1.5% per day, this action would have remained at the Sessions Court which rightly so it ought to have remained. [92] The Defendant steadfast maintains that interest accrues at 1.5% per day under Clause 8 of the Quotation (Ikatan C p.35), as DW2 confirmed consistently in examination-in-chief and re-examination, and denies its own 4 invoices issued was at 1.5% per annum establish an estoppel, on the basis that those invoices relate to different categories of charges. I do not accept this at all. [93] The evidence establishes that throughout the duration of the contract, all 4 invoices issued by the Defendant specified interest at 1.5% per annum, and the Defendant's own letter of 7.9.2020, when demanding payment, made express reference to the Letter of Award and invoice terms, without any reference whatsoever to the Quotation or its 1.5% per day rate. [94] By this consistent course of dealing, the Defendant had clearly represented to the Plaintiff that the applicable rate was 1.5% per annum, and the principles in TL MAC Motorsport Sdn Bhd v Mitsubishi Motors Malaysia Sdn Bhd [2012] 3 MLJ 78 are directly applicable: where parties have, by their conduct, conducted their affairs at variance with the strict terms of the original contract, they are bound by that practical interpretation. [95] Separately and alternatively, even assuming for a moment that the 1.5% per day Quotation clause were enforceable, it is penal in character and falls to be moderated under s.75 of the Contracts Act 1950. [96] A rate of 1.5% per day equates to a fantastical 547.5% per annum interest, generating a claim of RM3,374,344.35 as at 7.4.2023 on a principal of RM148,470.00 more than 22 times the principal sum bearing no reasonable relationship to any genuine preestimate of the Defendant's loss from delayed payment. [97] The Defendant's suggestion that this rate was freely and meaningfully agreed is very difficult to accept; it is not a rate any commercial party would readily agree to outside the context of illegal moneylending. It is in my considered view that it is beyond absurd ground relied by the Defendant [98] The Defendant's freedom-of-contract authorities (Yap Yew Cheong & Anor v Dirga Niaga (Selangor) Sdn Bhd [2005] 7 MLJ 660; Setapak Heights Development Sdn Bhd v Tekno Kota Sdn Bhd [2006] 3 MLJ 131; Dato' Sivananthan Shanmugam v Artisan Fokus Sdn Bhd [2016] 3 MLJ 112) state the general law correctly, but none of them displaces s.75, which is a statutory provision applying regardless of the parties' intent, and is directed specifically at clauses stipulating a sum payable on breach where the actual loss suffered is not commensurate. [99] Two further authorities confirm this: a court may relieve a debtor of liability for an excessive contracted interest rate notwithstanding agreement (Tengku Zahara binti Tengku Chik v Che Yusoff bin Che Mat [1951] 17 MLJ 1 per Briggs J), and an exorbitant default interest rate constitutes a penalty caught by s.75, entitling the aggrieved party to reasonable compensation only (Realvest Properties Ltd v CCB Ltd (Under Receivership) [1996] 2 MLJ 461). A claim of RM3,374,344.35 on a principal of RM148,470.00 approximately 22.7 times the principal is precisely the type of exorbitant rate these authorities are directed at. [100] Finding on G4: The Defendant is not entitled to interest at 1.5% per day. By estoppel and by reason of the parties' course of dealing, as reflected in all four invoices, the applicable rate would have been 1.5% per annum. In any event, the rate of 1.5% per day is penal and would be moderated under s.75 of the Contracts Act 1950. [101] As the principal counterclaim has been dismissed, no interest on RM148,470.00 is payable. Had the principal counterclaim succeeded, I would have granted interest at 1.5% per annum as per the Defendant's invoices.

(vii) Issue G5 — The Performance Guarantee (RM21,900.00) [102] The Defendant says the Plaintiff's call on the guarantee on 6.9.2021 nearly 2 years after the acknowledged completion of the Works on 5.12.2019, and over seven months after termination was unconscionable, relying on Daya CMT Sdn Bhd v Yuk Tung Construction Sdn Bhd [2016] MLJU 352, Global Upline Sdn Bhd v Kerajaan Malaysia [2018] MLJU 175, and Pengerang Refining Company Sdn Bhd v Sinopec Engineering (Group) Co Ltd [2026] 1 MLJ 636 at [41], where the Court of Appeal held that "where works are completed, any demand on the performance bond will be unconscionable." [103] The Defendant argues the Controller modernisation was in fact completed and the lifts used for over a year, satisfying the factual premise of that proposition. [104] I note the authority, but the ratio in Pengerang Refining (supra) at [41] is premised on actual completion of the works and, as found at Issues G10 and G3, the Works were never brought to a contractually compliant conclusion: there was no official handover with the requisite JKKP certification and testing and commissioning documentation. [105] The factual premise for applying that authority therefore does not arise, and the Defendant's OSHA s.17(1) penalty compounds the position. Unconscionability, as defined in Daya CMT (supra) at [47], requires "lack of bona fides" and "an element of unfairness or some form of conduct performed in bad faith"; calling a guarantee following a contractor's regulatory breach, an OSHA penalty and incomplete works does not meet that threshold. [106] The on-demand, unconditional nature of the performance guarantee is in any event confirmed by the instrument's own language — "shall become payable by us on demand by you" — and by binding Federal Court authority. An unconditional bond "is an on demand bond and all that is required to activate it is a written demand" (Government of Malaysia v South East Asia Insurance Bhd [2000] 3 MLJ 625 per Mohd Dzaiddin FCJ); the guarantor is "liable merely when demand is made upon him by the beneficiary with no necessity for the beneficiary to prove any default" (China Airlines Ltd v Maltran Air Corp Sdn Bhd [1996] 2 MLJ 517). [107] This line of authority reflects the commercial function of an ondemand guarantee, which is to allocate the risk of a dispute over performance to the contractor, not the employer, pending resolution of that dispute; it would defeat that function if a contractor could resist a call simply by asserting, as the Defendant does here, that the underlying works were in fact complete. The Plaintiff was therefore entitled to call on the guarantee by written demand, and that call was validly made. [108] Finding on G5: The Defendant is not entitled to the return of the performance guarantee. The Plaintiff was entitled to call on it, and the RM21,900.00 already retained is deducted from the damages awarded below. The call was made in the ordinary exercise of a contractual right conferred by an unconditional instrument, and nothing in the circumstances the timing of the call, the parties' subsequent conduct, or the state of the Works at termination displaces that conclusion.

(viii) Issue G8 — Estoppel from Claiming Liquidated Damages [109] The Defendant raises 2 arguments. First, a general estoppel argument based on Sim Chio Huat v Wong Ted Fui [1983] 1 MLJ 151, on the footing that the Plaintiff's continued engagement after the Extended Completion Date waived the completion obligation. I do not accept this: Sim Chio Huat (supra) concerns waiver of an essential condition through accepting late performance and ordering further works after the breach, a fact pattern materially different from the present one. [110] Here, the Plaintiff never formally accepted the Defendant's works as complete; its continued engagement with the Defendant after the Extended Completion Date — responding to correspondence, attending meetings, permitting continued maintenance — was at all times directed at obtaining completion, not at waiving it, and it consistently and repeatedly demanded the completion documentation that was never provided. [111] Second, the Defendant argues that any delay was at most six days 26.11.2019 being six days after the Extended Completion Date of 20.11.2019 such that, even on its own case, the maximum liquidated damages exposure is RM1,200.00 (6 days $ \times $ RM200.00). This argument depends entirely on the Issue G10 finding that the handover on 26.11.2019 was effective, which I have rejected: no effective handover occurred, and the Works remained incomplete through to termination on 25.1.2021. [112] Liquidated damages therefore run from 21.11.2019 to 25.1.2021, a period of 431 days. The Defendant's further point, that the original completion date of 17.12.2018 was "mustahil" as PW4 himself conceded is accepted but is irrelevant to this calculation, since the Extended Completion Date supersedes any earlier date and liquidated damages run from the day after it. [113] Finding on G8: The Plaintiff is not estopped from claiming liquidated damages. The claim of RM86,200.00 (RM200.00 $ \times $ 431 days, from 21.11.2019 to 25.1.2021) is allowed. The Defendant's "six days only" argument fails given the finding that no effective handover occurred on 26.11.2019.

(ix) Issue G9- Is the Plaintiff's claim an afterthought? [114] The Defendant's afterthought argument, for which it relies in part on Mardale Pipes Plus Ltd v Malaysian International Trading Corp (Japan) Sdn Bhd (ExxonMobil Exploration and Production Malaysia Inc, third party) [2009] 5 MLJ 691 — inapplicable, since the Defendant here simply never completed its Works — rests more substantively on timing. [115] The Defendant points out that the Plaintiff's formal complaint letter dated 16.12.2020 (Ikatan D p.197) was the sole written complaint ever addressed to it about the quality of its works, and that it was issued the day after the Defendant's second payment-demand reminder of 15.12.2020. [116] PW4 confirmed each of these three points in cross-examination (NOP p.147): that p.197 was the only complaint letter from the Plaintiff about the Defendant's works; that the second payment reminder was sent on 15.12.2020; and that the Plaintiff's complaint letter followed the very next day. The Defendant contends this timing reveals the complaint as a retaliatory afterthought triggered by the payment demand. [117] I have considered this argument carefully. While the timing is indeed notable, it does not displace the substantive contemporaneous record of complaints and defect notifications that preceded December 2020: the Plaintiff's email of 3.6.2019, its letters of 16.7.2019, 5.9.2019 and 11.11.2019, the Minutes of Meeting of 15.5.2020, and the Elevating Studio audit commissioned in October 2020. [118] That record was compiled well before, and independently of, any payment dispute, and is inconsistent with the suggestion that the Plaintiff's grievances were manufactured in response to the Defendant's demand for payment. The "afterthought" characterisation is therefore not accepted as a complete answer to the Plaintiff's claim. The JKKP findings — statutory regulatory findings, not party-generated complaints — independently establish breach and are entirely unconnected to the 16.12.2020 letter.

Issue G11— Did the Plaintiff perform its own obligations under the Contract? [119] The Plaintiff paid pursuant to the invoices, engaged with the Defendant throughout the contract duration, extended the completion date, and provided possession of the lifts. The Plaintiff executed its own obligations under the Contract, and the Defendant has not identified any respect in which it did not. F. DISPOSAL AND QUANTUM [120] The Plaintiff's claim is allowed. The Defendant's counterclaim is dismissed. [121] Having found the Defendant liable for breach of contract and negligence (Issue G1), and that its conduct caused the Plaintiff's loss (Issues G2, G6, G7), the Plaintiff is entitled to recover its loss and damage in full, together with liquidated damages for the period during which the Works remained incomplete (Issue G8), less the sum already retained under the performance guarantee (Issue G5): No.ItemAmount(RM)1.Loss and Damages182102.942.Liquidated Damages(RM200.00×431days)86200.003.Less:Performance Guarantee(already retained)(21900.00)TOTAL246402.94 [122] The RM182,102.94 in loss and damage comprises the following items, each supported by the relevant invoices, payment vouchers and documentary evidence produced at trial:

RM127,675.00 to engage MS Elevators to complete outstanding installation works and rectify the Defendant's defective works (Ikatan E pp.279-316). Significantly, MS Elevators were able to obtain genuine Toshiba-brand parts which the Defendant had represented were unobtainable, further undermining the Defendant's spare-parts unavailability argument;

RM2,083.54 for additional security personnel, stationed at every other floor to assist residents navigating the staircase while Block A had no operating lift for approximately three months (Ikatan E pp.237-243);

RM17,640.00 to locate and purchase spare parts the Defendant failed to provide, including car boards, car command boards, COP intercom units, car top boards, rear opening extension boards, COP and LOP displays, integrated controllers and a console (Ikatan E (Enclosure 57) pp.252257);

RM4,558.00 for additional cleaning personnel, required because refuse could no longer be carried via the lift cars and had to be brought down the staircase by hand (Ikatan E pp.226-236); and

RM30,146.40 to engage Elevating Studio (M) Sdn Bhd to audit and investigate the Defendant's works, the Plaintiff having no in-house technical expertise to assess the state of those works (Ikatan E (Enclosure 57) pp.260-277). [123] The total of items (a) to (e) is RM182,102.94, as pleaded and proven. Each is a direct and foreseeable consequence of the Defendant's breach and of the resulting absence of operating lifts at Block A for an extended period, and none has been seriously challenged on quantum only, unsuccessfully, on liability. [124] The Defendant's counterclaim for RM148,470.00 and interest at 1.5% per day is dismissed in its entirety. The Defendant is not entitled to the return of the performance guarantee of RM21,900.00. [125] As to costs, I invited the Parties to address the court on the costs. The Defendant offered a paltry RM5,000.00 whereas the Plaintiff suggested RM50,000.00 . This Court would have granted at least RM75,000.00 on the basis that this Suit should not have been transferred to High Court. The only reason it was heard in this Court was due to the transfer of the Suit (despite contested by the Plaintiff) to the High Court on the basis of the alleged interest rate of 1.5% per day which works out to 547.5% per annum i.e. RM3.34 million claim on principal of RM148,4700.00 which was simply ludicrous. The court had to hear the matter over 10 days. However, since the Plaintiff's counsel was gracious enough to request RM50,000.00 as costs, this Court ordered costs of RM50,000.00 to be paid by the Defendant to Plaintiff subject to allocatur. Dated 7th April 2026 RAJES RAGHAVJI JUDICIAL COMMISSIONER HIGH COURT CONSTRUCTION COURT 1 KUALA LUMPUR COUNSEL: For the Plaintiff: Kienan Yeo and Victoria Loi (Messrs Shook Lin & Bok) For the Defendant: Navamani a/p Muthayam and Nadia Ashefa binti Zuhairi (Messrs Ganeson Gomathy Fadzlin M. Nava & Co.) Case(s) referred to: IBDC (Asia) Sdn Bhd v IBDC (Malaysia) Sdn Bhd [2023] 1 LNS 907 Hong Yik Trading v Liziz Plantation Sdn Bhd [2017] 8 CLJ 491 Aseambankers Malaysia Bhd & Ors v Shencourt Sdn Bhd & Anor [2014] 4 MLJ 619 Teoh Kiang Hong v Theow Say Kow @ Teoh Kiang Seng, Henry [2025] 1 MLJ 813 Dennis Lee Thian Poh (the first Plaintiff is husband of Hoh Pau Yu (deceased) & Ors v Dr Michael Samy & Anor [2012] 4 MLJ 673 Small Medium Enterprise Development Bank Malaysia (formerly known as Bank Perusahaan Kecil dan Sederhana Malaysia Bhd) v Lim Woon Katt [2016] 5 MLJ 220 Yeng Ying Sdn Bhd v LLC Infra Sdn Bhd (sebelum ini dekenali sebagai Loh & Loh Constructions Sdn Bhd) [2025] MLJU 3215 Sotella Fund Pte Ltd v Bamboo Quest Sdn Bhd & Anor [2025] MLJU 2943 Pembinaan Teris Sepakat Sdn Bhd v Kumpulan Ikram Sdn Bhd & Anor (Mohd Rozi bin Salleh & Anor, third party) [2015] 10 MLJ 764 Esso Petroleum Co Ltd v Mardon [1976] QB 801 Barclay Bank Plc v Fairclough Building Ltd (1995) 44 Con LR 35 (CA) Dua Residency Management Corporation v Edisi Utama Sdn Bhd & Anor [2021] 1 LNS 174 Komala Devi a/p M Perumal v Bandar Eco-Setia Sdn Bhd & Anor [2016] 1 LNS 1053 Hancock and Others v B W Brazier (Anerley) Ltd [1966] 2 All ER 901 3 Two Square Sdn Bhd v Perbadanan Pengurusan 3 Two Square & Ors [2018] 4 CLJ 458 Petrogas Resources Sdn Bhd v LGM Properties Corp [2025] MLJU 2762 Kerajaan Malaysia v Global Upline Sdn Bhd and Another Appeal [2017] 1 MLJ 170 TL MAC Motorsport Sdn Bhd v Mitsubishi Motors Malaysia Sdn Bhd [2012] 3 MLJ 78 Yap Yew Cheong & Anor v Dirga Niaga (Selangor) Sdn Bhd [2005] 7 MLJ 660 Setapak Heights Development Sdn Bhd v Tekno Kota Sdn Bhd [2006] 3 MLJ 131 Dato' Sivananthan Shanmugam v Artisan Fokus Sdn Bhd [2016] 3 MLJ 112 Tengku Zahara binti Tengku Chik v Che Yusoff bin Che Mat [1951] 17 MLJ 1 Realvest Properties Ltd v CCB Ltd (Under Receivership) [1996] 2 MLJ 461 Daya CMT Sdn Bhd v Yuk Tung Construction Sdn Bhd [2016] MLJU 352 Global Upline Sdn Bhd v Kerajaan Malaysia [2018] MLJU 175 Pengerang Refining Company Sdn Bhd v Sinopec Engineering (Group) Co Ltd [2026] 1 MLJ 636 Government of Malaysia v South East Asia Insurance Bhd [2000] 3 MLJ 625 China Airlines Ltd v Maltran Air Corp Sdn Bhd [1996] 2 MLJ 517 Sim Chio Huat v Wong Ted Fui [1983] 1 MLJ 151 Mardale Pipes Plus Ltd v Malaysian International Trading Corp (Japan) Sdn Bhd (ExxonMobil Exploration and Production Malaysia Inc, third party) [2009] 5 MLJ 691 Legislation(s) referred to: