Crcc Malaysia Berhad v Intelligent M&E Sdn Bhd (WA-22C-55-06/2019)

(a) allow the Plaintiff’s claim for the sum of RM830,828.48 as shown in Enclosure 1 to the judgment, after taking into account the Defendant’s counterclaim to the extent which was allowed, together with interest on the said sum at the rate of 5% per annum from the date of filing of the Writ on 19.6.2019 until full settlement;

(b) allow the Defendant’s counterclaim for –

(i) the sum of RM1,445,204.52 as the amount outstanding to the Plaintiff for the SLWSSC;

(A) interest on the sum of RM1,035,897.72 from 19.7.2018 (which is 45 days from the date of receipt of Progress Claim (‘PC’) No. 1 i.e. 15.5.2018 [see paragraph 11, Amended Defence and Amended Counterclaim re-dated on 23.11.2020 (‘Amended Defence and CC’) and Clause 6.2 of the SLWSSC] until full payment or settlement;

(B) interest on the sum of RM319,097.00 from 2.9.2018 (which is 45 days from the date of receipt of PC No. 3 dated 15.7.2018; see paragraph 12, Amended Defence and CC) until full payment or settlement;

(C) interest on the sum of RM90,208.92 from 9.3.2019 (which is 45 days from the date of receipt of PC No. 4 dated 18.1.2019; see paragraph 13, Amended Defence and CC) until full payment or settlement; and

(D) interest on the sum of RM2,408,282.50 from 19.7.2019 (which is 45 days from the date of the Final Progress Claim 20.5.2019 (see item 5 in the table in paragraph 115, Amended Defence and CC) until full payment or settlement;

(c) dismiss the Defendant’s counterclaim other than as stated in subparagraph (b) above; and

(d) make no order as to costs. [3] The Plaintiff appealed against part of the decision where I had allowed the Defendant’s counterclaim in subparagraph 138(8) of the Amended Defence and CC for the sum of RM2,408,282.00 being the value of work done, inclusive of variations, under the EWSSC with interest thereon at the rate of 5% per annum from 19.7.2019 until full settlement. [4] I now provide my full grounds of judgment for the purposes of the Plaintiff’s appeal. SALIENT FACTS & THE PARTIES’ RESPECTIVE CASE [5] The Plaintiff is wholly owned by the China Railway Construction Corporation Limited, a company incorporated under the laws of the People’s Republic of China. The Plaintiff has a registered address at No. 29-3, Jalan 1/116B, Kuchai Entrepreneurs’ Park, Off Jalan Kuchai Lama, 58200 Kuala Lumpur. Its business address is Suite 20-02, 20th floor, Menara Tan & Tan, 207, Jalan Tun Razak, 50400, Kuala Lumpur. [6] The Defendant’s registered address is at No. 30-A, Jalan 17/155C, Bandar Bukit Jalil, 57000 Kuala Lumpur while its business address is at No 7, Jalan Utama 2/32, Seksyen 2, Taman Perindustriaan, Puchong Utama, Batu 14, Jalan Puchong, 47100 Puchong, Selangor. [7] The parties agreed that the following agreements were executed:

(a) the PDP Agreement between Prasarana Malaysia Berhad and MRCB George Kent Sdn Bhd (‘MRCB George Kent’);

(b) the Works Package Contract between MRCB George Kent and Rahimkon Sdn Bhd (‘Rahimkon’);

(c) by way of a Letter of Acceptance dated 29.12.2017 (‘Main Contract’), Rahimkon appointed the Plaintiff as the contractor in respect of the “Construction and Completion of Guideway, Stations, Park and Ride, Ancillary Buildings and other associated works for package GS0 for Light Rail Transit Line 3 (LRT 3) from Bandar Utama to Johan Setia” (‘Project’);

(d) by the Letter of Acceptance dated 12.3.2018, the Plaintiff awarded the Sub-Contract of Electrical Works for the Project under the EWSSC to the Defendant for the provisional sum of RM26,499,960.00 as per the fixed unit rates as stated in Appendix ‘A’ to the Letter of Acceptance, subject to the terms and conditions of the Sub-Contract Agreement. The date of commencement of the works is 12.3.2018 and the date of completion is 30.6.2018; and

(e) by the Letter of Award 2.4.2018, the Plaintiff awarded the Sub-Contract of Provision and Removal of Street Lights Works for the Project under the SLWSSC to the Defendant for the contract sum of RM2,200,000.00 with 2.4.2018 as the date of commencement of the works and 1.6.2018 as the date of completion of the same. [8] Subsequently, based on instructions received from the Government of Malaysia, the Main Contract was suspended and consequently the EWSSC and SLWSSC were also suspended. [9] The Project was then reinstated with the Plaintiff’s scope of works under the Main Contract being reduced. [10] By a letter dated 15.2.2019, the Plaintiff notified the Defendant that the suspension of the Electrical Works had been lifted. The Plaintiff requested the Defendant to resume works within seven days. [11] The Defendant re-tendered for the reduced scope of works but it was rejected by the Plaintiff on the ground that the re-tender was over-priced. [12] The Plaintiff alleged that as a result of the Defendant’s refusal to carry out the works, the Plaintiff was given various warnings by Rahimkon and was exposed to financial liability as a result of the delays and breaches of contract by the Defendant in refusing to progress the works. [13] The parties agreed that the Plaintiff had, amongst others, paid to the Defendant, the total sum of RM5,493,004.80 consisting of the sum of RM2,746,502.40 on 24.3.2018 and the sum of RM2,746,502.40 on 3.5.2018. However, there is a dispute as to whether these payments are an advance payment or deposit. [14] In the Amended Statement of Claim (‘Amended SoC’), the Plaintiff pleaded, among others, that the Defendant has, in breach of the terms of the agreements and the agreement to provide the advance payment, failed to return the advance payment or such amount of the advance payment after taking into account the value of work carried out and the materials supplied. [15] In addition, it was pleaded that the Defendant has, on 29.6.2018, allegedly delivered 12 drums of cables said to contain 750 metres each. However, these 12 drums of cables were eventually found to only consist of 500 metres each drum. This amounts to a shortage of 3,000 metres. Hence, the Defendant has overclaimed the sum of RM555,000.00 for the cables. [16] The Plaintiff’s version of the particulars of payment and amount owed by the Defendant are as follows: Payments: Payments for EWSSC: 1st Payment (24.3.2018) RM2,746,502.40 2nd Payment (2.5.2018) RM2,746,502.40 3rd Payment (21.5.2018) RM1,545,660.20 Total Paid RM7,038,665.00 Payment for SLWSSC: RM 854,254.00 Total Amount Paid to the Defendant: RM7,892,919.00 Value of work carried out and materials: EWSSC:

23.3.2018 No. 1 value of work RM 0.00 28.4.2018 No. 2 value of work RM 0.00 18.5.2018 No. 3 material on site RM2,170,590.20 33kV cables overclaimed - RM 555,000.00 Total RM1,615,590.20

28.4.2018 No. 1 value of work RM 0.00 31.5.2018 No. 2 value of work RM1,890,151.72 28.8.2018 No. 3 value of work RM 319,097.88 Total RM2,209,249.60 The amount which the Defendant owes the Plaintiff: Total value of work carried out RM2,209,249.60 Total value of materials on site RM2,170,590.20 Less Total amount paid RM3,024,844.20 Advance Payment to Defendant RM5,493,004.80 33kV cables overclaimed RM 555,000.00 Add Recoupment from Advance RM 624,930.00 Balance owing to the Plaintiff RM4,068,079.20 [17] The Defendant refuted the Plaintiff’s claims and brought its own counterclaim against the Plaintiff for the following:

(a) RM1,445,204.52 as the debt due and payable by the Plaintiff to the Defendant under the SLWSSC or alternatively, damages on a quantum meruit basis for work done by the Defendant which has yet to be certified;

(b) a declaration that the Defendant is entitled to forfeit the sum of RM3,138,654.80, being the difference between the deposit of RM5,493,004.80 and the value of the power cables accepted by the Plaintiff of RM2,354,350.00 without GST, as the Plaintiff wrongfully neglected or refused to accept the power cables, in breach of the EWSSC and the Electrical Works Collateral Contract or alternatively, damages in sum of RM4,466,899.11 or to be assessed. The Electrical Works Collateral Contract is the oral agreement which the Defendant alleged was made around March 2018 whereby the Plaintiff and the Defendant agreed that the Plaintiff would pay a deposit of 30% of the price of the materials purchased for the Electrical Works. This deposit would be a guarantee that the Plaintiff will accept the materials and if the Plaintiff failed to do so, the Defendant would be entitled forfeit the deposit;

(c) a declaration that time was at large and the Defendant was entitled to complete the Electrical Works within a reasonable time;

(d) damages in the sum of RM501,700.00 or to be assessed, being loss and expense for delay as a result of the Plaintiff having delayed the completion of the Electrical Works by the completion date of 30.6.2018, in breach of the EWSSC;

(e) a declaration that the Plaintiff repudiated the EWSSC wrongfully, unlawfully and in breach of the same;

(f) RM2,408,282.00, being the value of work done, inclusive of variations, under the EWSSC or alternatively, damages on a quantum meruit basis for work done, inclusive of variations;

(g) damages in the sum of RM5,981,797.00, or to be assessed, being loss of profit, as a result of the Plaintiff having repudiated the EWSSC wrongfully, unlawfully and in breach of the same; and

(h) interest at the rate of 5% per annum on the aforesaid amounts from the aforesaid respective due dates it became due until the date of full payment or realisation and costs. THE TRIAL & COMMON ISSUES TO BE TRIED [18] The trial was held for 10 days. Five witnesses testified for the Plaintiff whilst the Defendant called four witnesses. The particulars of the witnesses are set out below: Witness Name Occupation PW1 Mr. Huang Zheng Plaintiff’s Director PW2 Mr. Guo Xiquan Plaintiff’s Project Manager PW3 Mr. Sun Weijia Head of the Plaintiff’s Commercial Department PW4 Mr. Loh Chen Hoong Senior Clerk of Works, MMSB Consult Sdn Bhd PW5 Mr. Zhang Guo Shan Plaintiff’s Quantity Surveyor DW1 Mr. Mahes Babu a/l Paidiah Defendant’s Director DW2 Mr. Mohd Hakim Bin Mohamad Nor Plaintiff’s former Quantity Surveyor DW3 Mr. Azhan Bakhtiar Bin Mahmud Plaintiff’s former Manager, Mechanical & Electrical Engineering DW4 Mr. Chairil Bahari Bin Ibrahim Former Resident Engineer, MMSB Consult Sdn Bhd [19] Despite efforts during the pre-trial case managements to limit the number of issues for trial, in view of the divergent positions taken by the parties on the matters in dispute, there was finally a total of 26 Common Issues To Be Tried (‘ITBT’), of which 13 are the Plaintiff’s issues and 12 are the Defendant’s issues. [20] The ITBT are set out below:

(a) Plaintiff’s Issues To Be Tried

(i) Whether the sum of RM5,493,004.80 paid by the Plaintiff to the Defendant was an advance payment or a deposit?

(v) Whether the Plaintiff had validly terminated the EWSSC?

(x) What is the value of work carried out by the Defendant pursuant to the EWSSC? Is it RM2,408,282.50 as claimed by the Defendant or RM1,615,590.20 as claimed by the Plaintiff?

(b) Defendant’s Issues To Be Tried Forfeited Deposit

(a) Matters arising which are not in the ITBT

(i) The Court accepts the letters which were signed by Mr. Pau Kok Ping although he was not called as a witness as DW2 had testified that he drafted the letters and he had provided a reasonable explanation as to why Mr. Pau signed the letters.

(b) The ITBT

(i) The sum of RM5,493,004.80 is the money which was advanced by the Plaintiff to the Defendant for the purchase of materials for the Project.

(v) The Defendant had treated the contract as at an end when it re-tendered for the works and the Defendant is estopped from claiming for loss of profit.

(c) The Plaintiff’s claim and the Defendant’s counterclaim (‘CC’) In so far as the Defendant’s CC is concerned, only prayer (1); prayer (8), in the sum as pleaded of RM2,408,282.00; and prayer

30.

1.2019 30.1.2019 4,894,365.80 (in the Defendant’s letter to the Plaintiff dated 30.1.2019, the Defendant informed that it will 16.3.2019 pp 3813 - 3827, B10 pursue the Plaintiff’s non-payment to statutory adjudication) Final 20.5.2019 4.6.2019 8,891,779.50 (cumulative figure made up of the amount claimed for Electrical Works in PC No. 1 to the Final PC including RM339,937.00 for work done under the original EWSSC and RM2,570,045.50 for VO)

19.7.2019 pp 3853 - 4243, B11 [31] In my judgment, the Plaintiff is liable to pay the Defendant the value of work done in the sum of RM339,937.00 due to the following reasons:

(a) PW1 and PW5 agreed that the Defendant has submitted its claim to the Plaintiff with the supporting documents for RM339,937.00 for work done.

(b) The Defendant has proven, on a balance of probabilities, that it had carried out works in the value of RM339,937.00. In the Defendant’s letter to the Plaintiff dated 20.4.2018 (p 3884, B11) regarding the “Closed Site Inspection Request (SIR) with Mapping Report”, the Defendant had submitted the SIR dated 5.4.2018 and 14.4.2018 (with the Supervising Consultant’s comments of having witnessed the work done) together with its Mapping Report consisting of documents such as the Permit To Work, Quality Control Inspection Record, Certificate of Test and Certificate of Calibration. The Plaintiff’s qualms that these documents do not prove that the Defendant had performed works valued at RM339,937.00 are unfounded because –

(i) the Sub-Contractor Progress Claim Review Form (‘PCR Form’) at p 3467, B9 with the “Scope of Works” being Electrical Works, the “Form Submission Date” as 1.8.2018 and the “Claim Amount” as RM1,730,454.50 [consisting of RM118,490.00 for original work (RM73,500.00 for BQ/7.3/1 and RM44,990.00 for BQ/7.3/5 (see p 3468, B9 and p. 3857, B11) and RM1,611,964.50 as VO (which is 7.14% of the contract amount for VO) for PC No. 1] shows that the Safety Manager, Environmental Manager, M&E Manager, Deputy Project Manager, Technical Manager and Procurement Manager had approved and signed the same. In their evidence, PW1 and PW2 agreed that the Plaintiff has approved and signed the PCR Form;

(c) PW1 agreed that the payment is due by the Plaintiff to the Defendant within 45 days from the date of receipt of the Progress Claims. The Plaintiff breached the EWSSC when the Plaintiff failed to pay the amounts stated in the Defendant’s Progress Claims within 45 days from the date the Plaintiff received the same. 27 2nd Issue: Whether the Plaintiff is liable to pay the Defendant for variation works [32] The Defendant submitted eight variation claims in total. However, the Defendant did not counterclaim for VO Nos. 4 and 6. [33] Before embarking on a detailed analysis of the parties’ submissions in relation to VO Nos. 1, 2, 3, 5, 7 and 8, it is first necessary to address the issues raised by the Plaintiff as its general defence to this counterclaim.

(I) Alleged oral instructions for variation works [34] In the Amended Defence and CC, the Defendant pleaded that: “121. By a letter dated 25.5.2018, the Defendant duly provided a quotation for carrying out such additional works. The Defendant requested that the Plaintiff confirm the aforesaid quotation to enable such additional works to commence.

Subsequently, one Zhang Jun Hui @ Kevin, the project director of the Plaintiff, orally approved the aforesaid quotation.

Thereafter, the Defendant duly carried out and completed such additional works. …”. [35] Clearly, the Defendant’s case was premised on oral instructions purportedly given by Kevin. The Plaintiff argued that this suggestion by the Defendant is far-fetched because –

(a) it is inconsistent with the correspondence issued by the Plaintiff requesting for formal quotation before the variation work was carried out; and

(b) there is no reference to any of the contemporaneous correspondence issued by the Defendant that there were indeed any such instructions. This would normally be what a party would have done, to reverse confirm the instructions if indeed they were given orally. [36] The Plaintiff further contended that the burden of proof is on the Defendant to prove such oral instructions were issued, but the Defendant failed to do so as it did not call Kevin as a witness. [37] A perusal of the Letter of Acceptance for the award of the EWSSC to the Defendant shows that there is no express provision for variation order or additional works. Clause 1 on the “Scope of Works” stipulates, among others, that the Defendant shall perform and complete the scope of the Sub-Contract Works required by the Letter of Acceptance under the Plaintiff’s general direction, which shall mainly consist of all Electrical Works as described in the Main Contract Documents, and any other related works that may be instructed by the Plaintiff from time to time. Clause 1 further states that the Plaintiff has the right to give instructions from time to time to the Defendant for completing the Sub-Contract Works at various quantities as to suit the site conditions. [38] In the circumstances, PW1 and PW5 testified that the Plaintiff and the Defendant must agree to any deviation from the Electrical Works as specified in the EWSSC and to the value of such deviation before the works can be carried out. [39] In this regard, the Defendant submitted that, based on the evidence given by –

(a) PW1, PW2, PW3 and PW5, it had proven that the Plaintiff had instructed the Defendant to carry out additional works which are outside the scope of the EWSSC;

(b) PW1, PW3 and PW5, it was established that, pursuant to the Site Instructions (‘SI’) to carry out additional works, the Defendant had provided the Plaintiff with a quotation to carry out such works; and

(c) DW1, the rates for the additional works were orally approved by Kevin. [40] The oral and documentary evidence surrounding the SI, quotation and approval by Kevin will be further elaborated in the discussion on VO Nos. 1, 2, 3, 5, 7 and 8 to justify my finding, as submitted by the Defendant, that there was such an agreement on both matters as stated in paragraph 37 above and therefore, the onus of proof then shifts to the Plaintiff to prove otherwise (see s 103 of the Evidence Act 1950 [Act 56] (‘EA 1950’) and paragraphs 44 and 45 of the judgment in Ho Hup Construction Co Bhd v. Woo Thin Choy [2016] 1 MLJ 709 (CA) at pp 726 - 727). [41] The Plaintiff did not call Kevin to give evidence on the additional works which were orally approved by him. Hence, the Plaintiff has failed to discharge the onus of proof.

(a) That no approval was given by the Plaintiff to the Defendant to carry out the variation works. The Defendant was aware of this and that no additional work could be commenced without such approval.

(b) The parties had not agreed on the price for carrying out the variation works. There is a fundamental error in the basis of the Defendant’s claim for variations as, during cross-examination, their witnesses conceded that all the work except for two items will be carried out by the Defendant’s sub-contractors. However, no evidence of the sub-contractors carrying out the variation works was produced by the Defendant.

(c) The Defendant has not provided any credible evidence to demonstrate that it has carried out the variation works. No proof was provided as to when the works were carried out and this is important in view of the suspension of work notice. [43] The Plaintiff’s main defence as summarised above and the detailed contentions of the parties in respect of the variation works in question i.e. VO Nos. 1, 2, 3, 5, 7 and 8 are discussed below. - VO No. 1 – Underground Mapping Works for 11kV, 33kV and 132kV on Tenaga Nasional Berhad (‘TNB’) Underground Cables Route and Trial as per TNB requirements [44] The full description of the additional works under VO No. 1 (see p 3869, B11) for the amount claimed in the sum of RM745,220.50 as submitted by the Defendant is – “1. Mapping Works for 11kV, 33kV, 132kV c/w as built drawing preparation as per following: a) 11kV Mapping Works as per TNB (Clamping) - 19,657M x 3M Corridor b) 33kV Mapping Works as per TNB (Clamping) - 18,870M x 3M Corridor c) 132kV Mapping Works as per TNB (Clamping) - 3,350M x 3M Corridor 2. Trial Hole as per TNB specification 3. Liaison & arranging TNB for site walk & meetings”. [45] In the answer to Q. 54 of his Witness Statement (WS-DW1), DW1 narrated on the documents which the Defendant had produced to support its claim for VO No. 1. These documents consist of the following:

(a) The SI dated 23.5.2018 on “TNB Instruction Official Letter For Additional Power Relocation Mapping Works” where the Plaintiff instructed the Defendant to obtain an official letter from TNB as regards the instruction for additional works and to submit the Defendant’s quotation to the Plaintiff before proceeding with the works. The SI was signed by the Plaintiff’s M&E Engineer who prepared the SI; PW2 and the Project Manager who had both reviewed the SI; and Kevin who approved the same. PW1, PW2, PW3 and PW5 admitted that, by this SI, the Plaintiff had instructed the Defendant to do the additional power relocation mapping works.

(b) The Defendant’s letter to the Plaintiff dated 25.5.2018 (‘25.5.2018 Letter’) where the Defendant referred to the SI and attached the Minutes of Meeting on 22.5.2018 and 23.5.2018 between the Defendant and TNB, where TNB had instructed the Defendant “to do new mapping of all existing TNB cable route and as built must be in order before trial hole can be done”. The Minutes of Meeting have been verified and signed by TNB.

(c) The Defendant’s Quotation to the Plaintiff dated 25.5.2018 quoting the unit rates for the Mapping Works, Trial Hole As Per TNB Spec and Liaison & Arranging TNB For Site Walk And Meeting. The Defendant stated that the price is based on the unit rate and the actual quantity to be measured as site and the claim shall be submitted based on the work done. DW1 said that Kevin had orally approved the proposed rates.

(d) The Site Inspection Request, Permit To Work, Site Diary, Quality Control Inspection Record and As-Built Drawings for the mapping works (see pp 4100 - 4191, B11). [46] In addition, DW3 answered Q. 14 in his Witness Statement (WS-DW3) that he had instructed for the SI dated 23.5.2018 to be issued. The SI was prepared by Puan Siti, the Plaintiff’s Junior Mechanical and Electrical Engineer, who signed the SI on DW3’s behalf. DW3 confirmed that the Defendant has obtained TNB’s instruction to carry out the additional mapping works in accordance with the SI and that the Defendant provided the Plaintiff with the Minutes of Meeting on 22.5.2018 and 23.5.2018. [47] Apart from the above stated, the oral and documentary evidence at the trial have established the following facts. [48] On 19.6.2018, Kevin wrote to the Defendant referring to the Quotation dated 25.5.2018 and requested the Defendant to provide a total cost including the quantity of works to be executed. The Plaintiff said that the estimate shall be based on the latest shop drawings approved by the PDP (see p 3320, B9). [49] Vide the letter dated 4.7.2018 to the Plaintiff, the Defendant submitted its claim for VO Nos. 1 to 5 (‘4.7.2018 Submission’) based on site walk with “TNB (local authorities) and specialist” and that “All the details quantity are provisional and subject to final measurement”. The Defendant emphasised the need for the Plaintiff’s official final approval to enable the Defendant to proceed with the works without delay and that most of the drawing had been approved. The total amount claimed for VO No. 1 was RM381,184.50. [50] As no approval was forthcoming, the Defendant wrote again to the Plaintiff on 19.7.2018 requesting for the Plaintiff’s urgent action on the VO Works and specifically, that confirmation to start works is needed by 25.7.2018, failing which, the Defendant will assume that the Plaintiff is “not starting the project soon” and the Defendant will demobilize all its manpower and machinery from the site “as the preliminaries and financial burden are increasing day to day”. [51] However, on 23.7.2018, Kevin sent a letter to all its sub-contractors, including the Plaintiff, enclosing MRCB George Kent’s letter to Rahimkon dated 2.7.2018 advising that the PDP is in the midst of a joint cost and progress review exercise with the Employer and the Ministry of Finance with regards to the LRT3 Project and pending the outcome of the said review and further direction from the Government, Rahimkon was instructed to temporarily put on hold the works as set out in the letter and Appendix 1. The sub-contractors were told to follow the instruction to suspend the works and should there be any loss or expense incurred arising from the suspension order, the sub-contractors are to provide the details with supporting documents to the Plaintiff for consideration. [52] This was followed with another letter to all the sub-contractors dated 28.7.2018 and signed by Kevin to inform regarding further suspension of works to LVSS Station and Park & Ride Station 16 (Bukit Raja). [53] The Defendant responded to the first suspension notice by the letter dated 24.7.2018 to the Plaintiff highlighting the major impact of the suspension of works on, among others, the VO and placing a timeline of 10.8.2018 for confirmation of the direction of the Project. [54] On the same date (24.7.2018), the Defendant sent another letter to the Plaintiff referring to several discussions regarding the power relocation work and revised VO and specifically, the meeting held on 24.7.2018 and the revised price based on the latest shop drawing approved by TNB was enclosed (see p 3436, B9). The Defendant indicated that it would like to obtain official approval prior to starting the works for ease of claim submissions and valuation. The Plaintiff responded by way of its letter dated 30.8.2018 stating that “Over the last 40 days, we have informed you several times that your following variation are in lack of substantiation to establish your entitlement and quantum … includes but not limited to TNB & PDP written instructions, SIR, photos, rate breakups … we now demand you to submit substantiation no later than 7/9/2018, failing which we shall reject all above variations accordingly.”(see p 3505, B9). [55] Earlier, on 1.8.2018, the Defendant wrote to the Plaintiff, referring to the discussion which was held between the representatives of the Plaintiff and the Defendant at the Plaintiff’s site office on 25.7.2018 and providing the justification or brief chronology for VO Nos. 1 to 7. In respect of VO No. 1, the Defendant explained: “The above works are requested … by … (TNB) which is local authorities for the relocation of power cable works. As state in our contract bill of quantity, the scope mentioned are to do piloting/trial hole works for the piers. Anyhow we had complete and submit the shop drawing to TNB, but TNB did not accept our shop drawing as TNB requested us to do overall mapping and trial hole for the cable routine. As per minutes of meeting given earlier, this will be the proof of requesting of additional mapping works for the cable routine which had chopped and sign by TNB personnel. Therefore, as per our discussion with Mr. Kevin (CRCC PD), he had negotiate the price and ask us to proceed with the mapping works as per TNB request. The quantity given are based on joint measurement made by us which witness by SC and CRCC personnel.” (emphasis added). The Defendant also provided the Summary of Bill of Quantity showing RM22,571,164.50 as the amount for VO whereby the sum for VO No. 1 is RM640,589.50. [56] The same amount was claimed for VO No. 1 when the Defendant submitted all the documents for VO Nos. 1 to 7 based on the Plaintiff’s given format to the Plaintiff vide the letter dated 5.9.2018 (‘5.9.2018 Submission’). [57] As the Plaintiff failed to issue any Progress Payment Certificates despite the Defendant’s continuous reminders, on 30.1.2019, the Defendant informed that it will be pursuing the matter under the Construction Industry Payment and Adjudication Act 2012 [Act 746] and reserved its rights to claim the sum of RM4,894,365.80, of which RM2,294,527.00 is for VO with RM640,589.50 as the sum for VO No. 1 (‘30.1.2019 Submission’). [58] On 15.2.2019, PW2, who had taken over the role of Project Director from Kevin in January 2019, sent a letter to the Defendant to notify that the suspension of works have been lifted and the Defendant was required to immediately resume the works at the site within seven days. [59] However, the Defendant retorted in writing on 22.2.2019 that the payment matters have not been resolved. This resulted in another notice being sent by the Plaintiff on 25.2.2019, this time with a threat to terminate the Defendant if it fails or refuses to resume work within 14 days from the date of the notice. [60] On the next day, 26.2.2019, PW2 wrote to the Defendant instructing it to proceed with the remaining relocation works by 1.3.2019 and to submit documents, among others, of the complete Shop Drawing including ACAD format of 11kV, 33kV and 132kV. The Defendant’s written response vide the letter dated 5.3.2019 was, among others, a reiteration of the unresolved payment issues. [61] Apparently, discussions were held between the parties on 20.3.2019 as mentioned in the Plaintiff’s next letter dated 20.3.2019 wherein the Defendant was required, among others, to assign its commercial staff to work closely with the Plaintiff’s Quantity Surveyor to verify the works done to date and to provide all supporting documents as required by the TC(PDP) and the Plaintiff. The Plaintiff stated that all the VOs shall be confirmed once approval was obtained from TC(PDP). [62] A Letter of Ultimatum on Progress at Site was sent by the Defendant to the Plaintiff on 26.3.2019 expressing disappointment with the Plaintiff’s approach on handling the pending issues, which included the VO works which the Defendant had submitted. In the Defendant’s words: “Please be informed that despite numerous meetings and discussion had been held where IMESB had repeatedly provided explanation to CRCCM Berhad, but the project team in CRCCM Berhad had been changing repeatedly resulted in lack of finalized solution till-to-date. As informed by CRCCM Berhad, the submitted Variation Order had been rejected previously from PDP but we have not received any outcome or result from CRCCM Berhad. We do not agree with the statement by CRCCM that our Variation Order shall be judged based on the back to back bases with CRCCM upstream contract with PDP. Our contract is between IMESB and CRCCM Berhad which refers to the Bill of Quantity. We also had received the Site Instruction from CRCCM Berhad to submit the pricing as well confirm the pricing verbally by ex-Project Director of CRCCM Berhad but the new Project Director and new team is continuously in denial of the additional works. To-date all the variation order had yet to obtain any approval even though we had submitted the documentation to CRCMM Berhad 9 months ago. We had completed some of the variation order works based on verbal confirmation by your ex Project Director on goodwill basis which costs us RM 2 Million. Regretfully such works were chosen to be ignored by the current team, and the status had been “Pending Approval” without any progress.” (emphasis added). [63] By the Defendant’s solicitors letter dated 4.6.2019 addressed to the Plaintiff’s solicitor (‘4.6.2019 Demand Letter’), the Defendant demanded the sum of RM8,891,779.50, of which the sum of RM2,570,045.50 is for VO. Full particulars of the sum demanded were set out in the Final Progress Claim which was attached to the letter. Based on the breakdown at pp 3869 and 4099 - 4919, the claim for VO No. 1 was RM745,220.50. [64] The Plaintiff’s defence against the claims for VO No. 1 was basically that there is no approval for the quotation of VO No. 1. The work for trial hole and liaison with TNB, even if it was carried out, is within the Defendant’s scope of work and should not fall under VO. Furthermore, the documents submitted by the Defendant in the 5.9.2018 Submission and the 30.1.2019 Submission do not prove that the Defendant has done the work valued at RM640,589.50. Moreover, the Defendant later increased its claim to RM745,220.50 without any supporting document or valid reason. [65] After due consideration of the Plaintiff’s defence, I was minded to reject the same as the Defendant had adduced sufficient evidence to prove, on a balance of probabilities, that the Defendant was instructed to carry out the works in VO No. 1 and that Kevin had verbally approved the quotation submitted by the Defendant. These facts were mentioned in several letters subsequently sent by the Defendant to the Plaintiff, but the Plaintiff did not at any time dispute the same. Parties in a business or commercial relationship are expected to immediately protest or raise an enquiry if one side disagrees or disputes the contents of any correspondence between them (see Tekun Nasional v. Plenitude Drive

(M) Sdn Bhd & Other Appeals [2018] 8 CLJ 686 (CA) and the cases cited in paragraph 87, p 710). [66] Failure to respond does not amount to an admission of the claim under s 17 EA 1950 but it will relate to conduct under s 8 EA 1950. Conduct is a relevant fact for the Court to take into account to give the relevant probative force to the version of the Plaintiff or Defendant’s case. (see Small Medium Enterprise Development Bank Malaysia v Lim Woon Katt [2016] 9 CLJ 73 (CA), paragraph 8(b) at p 80). [67] In this case, the Defendant has adduced sufficient evidence for the onus of proof to shift to the Plaintiff to refute the fact as to Kevin’s oral approval of the quotation. However, the Plaintiff chose not to call Kevin as a witness in the trial. [68] In WS-DW2, DW2 had explained regarding the Defendant’s original PC No. 1 dated 15.5.2018, which was submitted vide the letter dated 17.5.2018 (pp 3266 - 3276, B9), and amended twice by the Defendant on 15.6.2018, finally for the total claimed amount of RM1,730,454.50, including for VO in the sum of RM1,611,964.50 (p 12, B14 and p 3468, B9). As mentioned previously, the Plaintiff had approved and signed the PCR Form for the sum of RM1,730,454.50. [69] Further, DW2 testified that when he received the 4.7.2018 Submission, the supporting documents for VO Nos. 1 to 5 were not complete. In the meetings thereafter between himself, DW1 and DW2’s assistant, one Leong Mung Kit, DW2 had requested for complete documents. The documents were then submitted by the Defendant in the subsequent meetings. Upon examining all the documents which were submitted by the Defendant, DW2 confirmed that the Defendant had completed the works as claimed in the amended PC No. 1. [70] Based on the foregoing, it is evident that the Plaintiff never objected or raised any issue about the Defendant’s claim for VO No. 1 except for the request as mentioned in the letters dated 19.6.2018 and 30.8.2018. In the light of the oral and documentary evidence taken in their entirety, I was satisfied that the Defendant had proven the facts as to the instruction for the additional work in VO No. 1, the agreement on the Defendant’s Quotation and the completion of the works for VO No. 1. - VO No. 2 – Underground Mapping Works for 132kV on TNB Underground Utilities [71] The full description of the additional works under VO No. 2 (see p 3870, B11) for the amount claimed in the sum of RM335,125.00 as submitted by the Defendant is – “Mapping for all existing underground utilities a) to do underground mapping along proposed route - 950M x 45M Corridor b) to do details survey along proposed route - 950M x 45M Corridor c) As Built Drawing with licensed surveyor endorsement - 950M x 45M Corridor d) liason & arranging TNB for site walk & meetings”. [72] Essentially, the Plaintiff resisted the Defendant’s claim for VO No. 2 on the same grounds as for VO No. 1 i.e. the absence of any instruction from the Plaintiff to carry out the additional works and any agreement between the parties as to the price for the same as well as evidence of the Defendant having completed the works. The Plaintiff additionally contended that, on 1.8.2018, the Defendant claimed that it had completed its work in the sum of RM292,375.00 but the claim was increased to RM335,125.00 in the 4.6.2019 Demand Letter without any supporting documents or valid reason. [73] Similar to the analysis for VO No. 1, I found that the Defendant had proven, on a balance of probabilities, the facts as to the instruction for the additional work in VO No. 2, the agreement on the quotation for VO No. 2 and the completion of the works for VO No. 2 for the following reasons:

(a) The oral and documentary evidence which relates to the Defendant’s claim for VO No. 2 which was discussed under VO No. 1, among others the 4.7.2018 Submission, 5.9.2018 Submission, 30.1.2019 Submission, 4.6.2019 Demand Letter and the Defendant’s letters dated 19.7.2018 and 26.3.2019, will not be repeated here except to highlight that, in the 5.9.2018 Submission, the Defendant claimed the sum of RM292,375.00 for VO No. 2 and this was increased to RM335,125.00 in the 4.6.2019 Demand Letter.

(b) In the answer to Q. 55 in WS-DW1, the witness had set out the documents which the Defendant had produced to support its claim for VO No. 2. These documents are –

(i) the SI dated 29.6.2018 on the “Utility Detection Mapping (UDM) for 132kV relocation works affected area” where the Plaintiff instructed the Defendant to carry out mapping works and prepare the as-built drawing for the purpose of relocation of 12kV. The Plaintiff attached the layout for the required mapping works area and instructed that the UDM shall not be limited to power cable only but to include all underground services;

(c) DW3 testified that he prepared and signed the SI dated 29.6.2018. (see the answer to Q. 14 in WS-DW3). PW2 admitted under cross-examination that he had approved the said SI (see pp 270 and 271, NoE).

(d) Specifically in relation to VO No. 2, the Defendant had sent a letter dated 20.7.2018 to the attention of Kevin asking for confirmation urgently so that the Defendant can proceed with the works. The utility mapping was said to be required or submission to “TNB AM Selangor, Bukit Jelutong for approval of Work Method Statement and proposed Shop Drawing” (see p 3415, B9). In the letter dated 23.7.2018 which was also to the attention of Kevin, the Defendant expressly referred to the SI dated 29.6.2018 and the verbal instruction to proceed with the works which was given on “Saturday 21st July 2018” when submitting two copies of the UDM for 132kV drawing endorsed by the licensed Land Surveyor (see p 3429, B9).

(e) DW2’s evidence in the answer to Q. 17, WS-DW2 and during re-examination that the Defendant had completed the works under VO Nos. 1 to 5 (see p 777, NoE).

(f) In the letter dated 1.8.2018 where the Defendant provided the justification or brief chronology for VO Nos. 1 to 7, the Defendant said the following in respect of VO No. 2: “For the VO 2, …we had complete all the works as per your SI and request. Anyhow, upon site visit of 132kV TNB from Bukit Jelutong, they had request for overall mapping works for the cable routine which consist of all other utilities. Mr. Azhan (CRCC) had commit to provide all those details to TNB as CRCC ask us to submit our shop drawing for CRCC to incorporate all other underground services. After few days, CRCC realize that none of the sub-contractor done the utilities for overall underground services. Therefore, Mr. Kevin (CRCC PD) had instruct us to proceed with the mapping works for other underground services and submit to TNB without any delay. The SI had been issued by CRCC for us to conduct the said works.” (emphasis added).

(g) The Plaintiff did not at any time dispute the contents of the numerous letters sent by the Defendant pertaining to the instructions to carry out the additional works, Kevin’s oral instruction to proceed and to confirm the pricing for the works and the completion of the works. The learned counsel for the Defendant relied on two judgments of the High Court, the first being Iso Technic Electrical Sdn Bhd v. Calibre M&E Sdn Bhd [2017] MLJU 47 at paragraphs 50 to 57. In that case, claims for the additional variation works were made progressively in several progress claims and the court adopted the approach taken in KC Leong Holdings Sdn Bhd v Datin Moh Bee Ling [2015] 7 MLJ 10 on the absence of any contemporaneous protest or challenge when it held, among others, that the defendant had ample time to stop such works if they were not properly authorised and to object and protest for claims made if the works were indeed not done. However, there were no objections, rejection, query or protest raised on the details given of work done including the quantities, unit rates and percentage of works completed. The defendant was unable to show that the unit rates as claimed by the plaintiff were unreasonable and nor did they state what is their version of reasonable rates. The defendant merely remained silent and sat idly by. The second case is Maheswaran a/l Ekambran (berniaga sebagai Kejuruteraan Elektrik Keris Tiga) v. Global Lighting Technologies (M) Sdn Bhd [2018] MLJU 1647 at paragraphs 17 and 18 where the court found that the witnesses had testified that the variation works were carried out and the works were verified, accepted and certified. Basically, any extra work done by a party with the knowledge of the other party is claimable. In addition, the court referred to the case of Emi Uptrend Builders Sdn. Bhd. v. Tung Hup (Contracting) Sdn. Bhd. (2014) 1 LNS 953 where the High Court examined the meaning of a lump sum contract and held that, even in lump sum contracts, additional works are claimable, especially when it cannot be anticipated at the time of contracting. Therefore, the respondent was entitled to the variation works claim which was certified and approved by the appellant’s engineer. The court was of the view that in the situation where variation works had to be carried out as a matter of urgency and necessity, there was no necessity for proof of an express agreement between the parties for variation works before payment can be recovered so long as the fact that the works were carried out is proven. - VO No. 3 – Underground Mapping Works for 132kV on TNB Underground Utilities [74] The description of the additional works under VO No. 3 (see p 3871, B11) for the amount claimed in the sum of RM48,000.00 as submitted by the Defendant is “Liaison with TNB on site inspection approval shop drawing, catalogue”. [75] The Plaintiff denied the Defendant’s claims with regards to VO No. 3 because there are no instructions from the Plaintiff to carry out the additional works and there is no approval for the Defendant’s quotation. Furthermore, even if the Defendant had performed the liaison work, it falls within the Defendant’s scope of work under Item 49 7.3.39 of the Bills of Quantities in the Letter of Acceptance for EWSSC which reads as follows: Item Code No. Description Unit Rate Amount

7.3.39

3.37 Liason With Authorities Liason with relevant authorities for inspection, submission of documentation for approval, and sequencing of relocation work and handing over including supervision fees. sum 53,320.00 53,320.00 [76] The same approach is taken here in that the oral and documentary evidence which relates to the Defendant’s claim for VO No. 3 which was discussed under VO No. 1 will not be repeated. [77] Firstly, on the issue of instructions from the Plaintiff to carry out the works, unlike for VO Nos. 1 and 2, no SI was issued for VO No. 3. DW1 relied on TNB’s letter to Rahimkon dated 10.8.2018 titled “Maklumbalas Berkaitan Shop Drawing Untuk Kelulusan Pengalihan Kabel TNB 11KV” (‘TNB’s 10.8.2018 Letter’) where TNB referred to Rahimkon’s letter dated 27.6.2018 and after scrutinising the shop drawings which were enclosed with Rahimkon’s letter, TNB had approved the same (see the answer to Q. 56 in WS-DW1 and pp 4205 - 4215, B11 for the supporting documents). [78] In the 4.7.2018 Submission, the Defendant submitted VO No. 3 dated 29.6.2018 to the Plaintiff in the sum of RM2,660,800.00 for “Underground Mapping Works For 132KV On The TNB Underground Utilities”. Item (d) in the breakdown of the claim is for “Liaison With TNB on site inspection approval shop drawing, catalogue” for the sum of RM45,000.00. [79] In the 4.6.2019 Demand Letter, the Defendant claimed RM48,000.00, which is equivalent to 1.27% of the sums under VO No 3 in the total amount of RM3,788,000.00. [80] DW2 had testified that the Defendant had completed the works under VO Nos. 1 to 5. [81] The Plaintiff has approved and signed the PCR Form which includes the sum of RM1,611,964.50 as VO. The total amount claimed by the Defendant for VO Nos. 1 to 3 is RM1,128,345.50. [82] Throughout the period when the Defendant had sent numerous letters concerning the non-certification of its Progress Claims and issues on the VO works, the Plaintiff had not once raised the matters which it now submits as a defence to the VO No. 3 claim, namely, there being no approval of the Defendant’s quotation and that the work falls within the scope of the Defendant’s original work. [83] Based on the oral and documentary evidence produced by the Defendant to support its claim for VO No. 3, it is my considered view that the Defendant has proven its claim, on a balance of probabilities. - VO No. 5 – 132kV Additional Request from TNB and Specialist [84] The full description of the additional works under VO No. 5 (see pp 3873 - 3875, B11) for the amount claimed in the sum of RM112,500.00 as submitted by the Defendant is – “EH – Common Works EHI – Appointment of cable consultant to design High Voltage Cable System comply to TNB specifications and requirements including CYMCAP stimulated ampacity study, sheath voltage profile, circulating current calculations, short circuit rating calculation, cable installation study that include bending radius and pulling force calculation c/w other relevant engineering studies that are deemed required to ensure safe and sound design of the cable system”. [85] In his submissions for the Plaintiff, Mr. Sanjay Mohan argued that there were no instructions from the Plaintiff for VO No. 5 and there is no approval for the Defendant’s quotation. Furthermore, the Defendant’s claim of RM112,500.00 is for the appointment of a cable consultant to design high voltage cable system, however, the Defendant has failed to show that it has incurred such costs to engage a cable consultant. [86] At the risk of repetition, the oral and documentary evidence which relates to the Defendant’s claim for VO No. 5 which was discussed under VO No. 1 will not be repeated. [87] Referring again to WS-DW1, this time to DW1’s answer to Q. 57, he relied on the documents at pp 4217 - 4228, B11 to support the Defendant’s claim, which is equivalent to 3.23% of the total sum for VO No. 5 (RM3,479,800.00). These documents consist of TNB’s Document/Drawing Transmittal Form and copies of the drawings to comply to TNB specifications and requirements. DW1 was not cross-examined on this part of his evidence. [88] On the other hand, during cross-examination, PW5 agreed that the shop drawings which were prepared by A & A Dinar Sdn Bhd were submitted to TNB who had then reviewed and approved the drawings by the placement of the chop and signature of the professional engineer and TNB. PW5 further agreed that the shop drawings are listed at pp 4221 - 4222, B11. Copies of the shop drawings are provided at pp 4223 - 4228, B 11 (see pp 491 - 493, NoE). [89] As stated repeatedly in this judgment, DW2’s evidence was that the Defendant had completed the works under VO Nos. 1 to 5. [90] The Plaintiff has approved and signed the PCR Form which includes the sum of RM1,611,964.50 as VO. The total amount claimed by the Defendant for VO Nos. 1, 2, 3 and 5 is RM1,240,845.50. - VO No. 7 – HDD Works for LV & 11kV Works [91] The full description of the additional works under VO No. 7 (see p 3877, B 11) for the amount claimed in the sum of RM777,500.00, which is equivalent to 33.09% of the sums under this VO (RM2,350,000.00), as submitted by the Defendant is – “1. 6 Way 150mm dia PN-10 (Bina Plastic) by horizontal direct drilling (HDD) method complete with machinery, labors, management, supervision and reporting as per LRT3 project requirement and TNB specification

Open Cut Method using 6 Way 150mm dia PN-10 (Bina Plastic) c/w slab, sand, machinery, labors, management, supervision and reporting as per LRT3 requirements and TNB’s specification”. [92] The Plaintiff raised the same arguments on there being no instructions from the Plaintiff for VO No. 7 and no approval for the Defendant’s quotation. Furthermore, the Plaintiff asserted that the Defendant has failed to prove that it has done any work for the alleged VO No. 7 as all the documents that the Defendant submitted in the Final Claim at pp 4230 - 4235, B11 are dated prior to 5.9.2018. However, on that date, the Defendant admitted that the work had not commenced (see p 3721, B10). Moreover, the works were suspended from 23.7.2018 to 54 15.2.2019 and the Defendant had demobilised from the site on 3.10.2018 (refer to the Defendant’s letter to the Plaintiff dated 3.10.2018 at p 3752, B10), hence the Defendant could not have done the HDD works valued at RM777,500.00. [93] DW1 testified that the documents to support the Defendant’s claim under VO No. 7 are the Site Inspection Request, Site Diary and photographs at pp 4229 - 4235, B11 (see the answer to Q. 58 in WS-DW1). As with VO No. 5, DW1 was not cross-examined on this. - VO No. 8 – 11kV Additional Works as per TNB Approved Drawing (Klang) [94] The description of the additional works under VO No. 8 (see p 3878, B 11) for the amount claimed in the sum of RM50,000.00, which is equivalent to 1.08% of the sums under this VO (RM4,616,000.00), as submitted by the Defendant is “Liaison with TNB on site inspection, approval shop drawings, catalogue”. [95] The Plaintiff’s defence is that there were no instructions to carry out the variation works as claimed by the Defendant and no approval of any quotation from the Defendant. In the event it is established that there was approval by the Plaintiff, whether oral or written, the evidence shows that there was no agreement between the parties as to the costs or value of the variation works as the Defendant has submitted the same VO for the Plaintiff’s approval many times. [96] DW1 testified that the documents to support the Defendant’s claim under VO No. 8 are TNB’s 10.8.208 Letter and copies of the shop drawings (see the answer to Q. 59 in WS-DW1 and pp 4237 - 4243, B 11). DW1 was also not cross-examined regarding DW1’s evidence. [97] By way of an overview, Mr. T. Baskaran highlighted that none of the Plaintiff’s witnesses were able to provide a definitive answer when cross-examined on the variation works. PW1 said that PW3 will testify on the Defendant’s claim for variation works. However, when PW3 was cross-examined on the VOs, he said that PW5 will testify on the Defendant’s claim for variations. [98] When PW5 was cross-examined on the VOs, he said that he does not know (see paragraph 127 in the Defendant’s Submission (encl. 112). Significantly, PW5 testified that the Plaintiff regarded the Defendant’s claims for VOs as being valid and that is why the said claims were submitted to Rahimkon for onward consideration of MRCB George Kent, but these were not approved. In my opinion, herein lies the true reason for the Plaintiff’s denial of the Defendant’s claims for VOs, namely that these were rejected by the PDP and the main contractor. [99] Finally, the Plaintiff’s contention that the Defendant had inflated the figures in the Progress Claims and therefore estoppel lies against the Defendant is rejected for the reasons that the Plaintiff did not plead estoppel and nor was this one of the issues in the ITBT. In subparagraph 8(i) of the Amended Reply To Amended Defence And Amended Defence to Amended CC, the Plaintiff’s pleading on estoppel is only in respect of whether the sum of RM5,493,004.80 paid by the Plaintiff to the Defendant was an advance payment or a deposit. [100] The Plaintiff is accordingly liable to pay the Defendant the value of VOs in the sum of RM2,068,345.50 as, among others, the Plaintiff had approved and signed the PCR Form for the amount of RM1,730,454.50 for work done, which includes variations; the Defendant duly carried out and completed the additional works and the Defendant submitted its claim for the additional works progressively and there was no contemporaneous protest or challenge by the Plaintiff to the works and the claims; and the Plaintiff failed to certify and pay the Defendant the amounts in breach of the EWSSC despite numerous demands by the Defendant in its letters as above referred. [101] The amount which the Court had intended to award to the Defendant is RM2,068,345.50 being the sums which were counterclaimed for VO Nos. 1, 2, 3, 5, 7 and 8 after the full trial (RM745,220.50 + RM335,125.00 + RM48,000.00 + RM112,500.00 + RM777,500.00 +RM50,000.00) but was inadvertently pronounced on the date of the decision as RM2,408,282.00 as per the pleading. 57 3rd Issue: Whether the Plaintiff is liable to pay the Defendant damages on a quantum meruit basis for work done, inclusive of variation under the contract? [102] As the Defendant has successfully proven its counterclaim as discussed above, it is not necessary for the Court to consider its counterclaim in the alternative for damages on a quantum meruit basis for work done by the Defendant, inclusive of variations, under the EWSSC as pleaded in subparagraph 38(9) of the Amended Defence and CC. [103] It is suffice to say that the Defendant relied on s 71 of the Contracts Act 1950 [Act 136] and the leading cases such as Siow Wong Fatt v. Susur Rotan Mining Ltd & Anor [1967] 2 MLJ 118 (PC), Syarikat Binaan Utara Jaya (a firm) v. Koperasi Serbaguna Sungai Glugor Bhd [2009] 2 MLJ 546 (CA) and Tanjung Teras Sdn Bhd v. Kerajaan Malaysia [2015] MLJU 2161 (CA) to support its claim on quantum meruit. [104] The Plaintiff refuted the Defendant’s contentions principally on the ground that a claim on a quantum meruit cannot arise if there is an existing contract between the parties to pay an agreed sum. As the Defendant’s counterclaim is premised on the EWSSC, and drawing support from the case authorities of Spatial Ventures Sdn Bhd v Twintech Holdings Sdn Bhd [2014] 8 MLJ 38, Syarikat Binaan Utara Jaya (a firm) v. Koperasi Serbaguna Sungai Glugor Bhd [2009] 2 MLJ 546 and Baldah Toyyibah (Prasarana) Kelantan Sdn Bhd v Dae Hanguru Infra Sdn Bhd and another appeal [2020] 5 MLJ 630, reliance on the principle of quantum meruit is misconceived. [105] In the Reply Submission, the Defendant did not submit any counterargument to the Plaintiff’s submission as above stated for the consideration of the Court, for example, that its counterclaim for variation works is for work performed outside the EWSSC at the Plaintiff’s request and thus, the Defendant is entitled to be paid a reasonable sum for such work on the basis of an implied contract (see subparagraph 40(d) in Syarikat Binaan Utara Jaya (supra, at p 561). Indeed, this is not the Defendant’s pleaded case. As the Defendant’s counterclaim is one that is premised on an existing contract i.e. the EWSSC, it has not discharged the burden of proving, on a balance of probabilities, its entitlement to recover damages on a quantum meruit basis. CONCLUSION [106] Based on the aforesaid reasons, I had decided the respective claims of the parties as set out in paragraph 2 of this judgment, with the correction that the sum which was allowed for the Defendant’s counterclaim for VO Nos. 1, 2, 3, 5, 7 and 8 is RM2,068,345.50 with interest thereon from 19.7.2019 until full settlement. [107] The Defendant’s counsel submitted that there should be no order as to costs. The Plaintiff’s counsel sought costs in the sum of RM50,000.00 to which the Defendant’s counsel quickly retorted that he would ask for the same amount as costs, and it will be net off against each other. [108] In view of my decision on the issues of liability and quantum as outlined above where these were not in favor of only one party and there is no clear “winner” of the litigation as such, I exercised my discretion in not making any order as to cost. Dated: 24 January 2024 (ALIZA SULAIMAN) Judge Construction Court 2 High Court Kuala Lumpur Counsels/ Solicitors: For the Plaintiff: Sanjay Mohan (Adam Lee Leong Soon and Kooy Wei Nee with him) Messrs. Sanjay Mohan Advocates & Solicitors Unit 5.01, Level 5 WORK@Clearwater Jalan Changkat Semantan 50490 Kuala Lumpur For the Defendant: Thayananthan Baskaran Messrs. Baskaran Advocates & Solicitors 50-11-7 Wisma UOA Damansara Jalan Dungun Damansara Heights 50490 Kuala Lumpur Cases, legislation and other sources referred to in the submissions by learned counsels and in the Grounds of Judgment: Cases referred to: Aik Ming (M) Sdn Bhd & Ors v. Chang Ching Chuen & Ors And Another Appeal [1995] 2 MLJ 770 Atlas Housing Sdn Bhd v Dream Property Sdn Bhd [2007] 8 MLJ 639 Baldah Toyyibah (Prasarana) Kelantan Sdn Bhd v Dae Hanguru Infra Sdn Bhd and another appeal [2020] 5 MLJ 630 Bandar Raya Developments Bhd v. 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Tegap Construction Sdn Bhd [1981] 2 MLJ 149 Hj Elias Bin Hanan v Hj Md Noor Bin Salleh (Azizah Bte Hj Hanan & Ors, Interveners) [2002] 3 MLJ 432 Ho Hup Construction Co Bhd v. Woo Thin Choy [2016] 1 MLJ 709 Invescor Sdn Bhd v Sobena Maju Sdn Bhd [2008] 2 MLJ 359 Iso Technic Electrical Sdn Bhd v. Calibre M&E Sdn Bhd [2017] MLJU 47 Johor Coastal Development Sdn Bhd v. Constrajaya Sdn Bhd [2009] 4 MLJ 445 Karthiyayani & Anor v. Lee Leong Sin & Anor [1975] 1 MLJ 119 KC Leong Holdings Sdn Bhd v Datin Moh Bee Ling [2015] 7 MLJ 10 Keng Huat Film Co Sdn Bhd v Makhanlall (Properties) Pte Ltd [1984] 1 MLJ 243 Kerajaan Malaysia v. Ven-Coal Resources Sdn Bhd [2014] 11 MLJ 218 KL Eco City Sdn Bhd v. Tuck Sin Engineering & Construction Sdn Bhd & Anor [2020] MLJU 435 L’Grande Development Sdn Bhd v. Bukit Cerakah Development Sdn [2007] 4 MLJ 518 Lam Eng Rubber Factory (M) Sdn Bhd v. Lim Beng Yew & Ors [1994] 3 MLJ 405 Lee Ing Chin @ Lee Teck Seng & Ors v. Gan Yook Chin & Anor [2003] 2 MLJ 97 Lianmark Sdn Bhd v Al-Ambia Sdn Bhd [2021] MLJU 272 Linggi Plantations Ltd v. Jagatheesan [1972] 1 MLJ 89 Maheswaran al Ekambran (berniaga sebagai Kejuruteraan Elektrik Keris Tiga) v. Global Lighting Technologies (M) Sdn Bhd [2018] MLJU 1647 Malayan Banking Bhd v WGM Plantations Sdn Bhd & Ors (C H Williams Talhar & Wong (Sabah) Sdn Bhd, third party) [2021] MLJU 1955 Mandong Transport & Trading Sdn Bhd v. Pertubuhan Keselamatan Sosial [2020] MLJU 912 Mash Construction Engineering Services Sdn Bhd v Ghaz Properties Sdn Bhd [2019] MLJU 1647 Master Plumbers Sdn Bhd v. Kemajuan Amoy Sdn Bhd [2009] 9 MLJ 519 Morello Sdn Bhd v. Jaques (International) Sdn Bhd [1995] 2 CLJ 23 P G Doraisamy a/l P Gopal v Cimb Bank Bhd (Mahendaran a/l Chandra Sekaran, third party) [2018] MLJU 312 PBLT Sdn Bhd v Prestasi Reka Sdn Bhd & Ors [2020] MLJU 2056 PECD Construction Sdn Bhd v. Freehold Point Sdn Bhd [2008] 3 CLJ 215 Pembenaan Leow Tuck Chui & Sons Sdn Bhd v. Dr. Leela's Medical Centre Sdn Bhd [1995] 2 CLJ 345 Periasamy v. Public Prosecutor [1966] 1 MLJ 138 Planete Enfants Sdn Bhd v Goh San Hwa [2014] 1 LNS 1535 Polyset Ltd. v. Panhandat Ltd. [2002] HKCU 145 Portcullis Trustnet (Singapore) Pte Ltd v George Pathmanathan a/l Michael Gandhi Nathan & Ors [2017] MLJU 223 Prenn v Simmonds [1971] 3 All ER 237 Public Prosecutor v. Dato’ Seri Anwar Bin Ibrahim & Anor [2001] 3 MLJ 193 Quality Concrete Holdings Bhd v. Classic Gypsum Manufacturing Sdn Bhd & Ors [2012] 2 MLJ 521 Rainbow Bay Sdn Bhd v MLGH (Sabah) Sdn Bhd & Anor [2021] 10 MLJ 846 Rajathurai A/L Suppiah v. Starship Agencies Sdn Bhd [2015] MLJU 798 Rasiah Munusamy v Lim Tan & Sons Sdn Bhd [1985] 2 MLJ 291 RC Asia Engineering Sdn Bhd v. Lion Pacific Sdn Bhd [2021] MLJU 1796 Roberts v. Bury Improvement Commissioners (1870) LR 5 CP 310 Russell v Viscount Sa da Bandeira (1862) 143 ER 59 Sagujuta (Sabah) Sdn Bhd v. Trane Malaysia Sales & Services Sdn Bhd [2014] 5 MLJ 535 Shuhada bt Alang Shukor v Khairul Anwar bin Shaharuddin [2021] 8 MLJ 315 Silver Corridor Sdn Bhd v. Gallant Acres Sdn Bhd & Anor [2016] 5 MLJ 1 Sime Hok Sdn Bhd v Soh Poh Sheng [2013] 2 MLJ 149 Siow Wong Fatt v. Susur Rotan Mining Ltd & Anor [1967] 2 MLJ 118 Small Medium Enterprise Development Bank Malaysia (formerly known as Bank Perusahaan Kecil dan Sederhana Malaysia Bhd) v. Lim Woon Katt [2016] 5 MLJ 220 Soon Choon Sim v Soon Cheng Sai and Ors [2011] MLJU 116 Spatial Ventures Sdn Bhd v Twintech Holdings Sdn Bhd [2014] 8 MLJ 38 SPM Membrane Switch Sdn Bhd v Kerajaan Negeri Selangor [2016] 1 MLJ 464 Stecon Sdn Bhd v. Eco Tower Sdn Bhd [2015] MLJU 2050 Syarikat Binaan Utara Jaya (a firm) v. Koperasi Serbaguna Sungai Glugor Bhd [2009] 2 MLJ 546 Syarikat Kemajuan Timbermine Sdn Bhd v Kerajaan Negeri Kelantan Darul Naim [2015] 3 MLJ 609 Takako Sakao (f) v. Ng Pek Yuen (f) & Anor [2009] 6 MLJ 751 Takashimaya Construction & Development Sdn Bhd & Anor v My Influx Sdn Bhd and other appeals [2020] 6 MLJ 289 Tan Kah Fatt & Anor v Tan Ying and another appeal [2021] MLJU 284 Tan Kah Khiam v. Liew Chin Chuan & Anor [2007] 2 MLJ 445 Tan Swee Hoe Co Ltd v. Ali Hussain Bros [1980] 2 MLJ 16 Tanjung Teras Sdn Bhd v. Kerajaan Malaysia [2015] MLJU 2161 Tekun Nasional v. Plenitude Drive (M) Sdn Bhd & Other Appeals [2018] 8 CLJ 686 That’s Life Sdn Bhd v Dato’ Haji Ismail bin Karim (as the president of Persatuan Bolasepak Negeri Johor) and another appeal [2020] 5 MLJ 235 Thong Guan Co (Pte) Ltd v. Lam Kong Co Ltd (No 2) [1998] 7 MLJ 720 Thyssenkrupp Elevator Malaysia Sdn Bhd v Asal Bina Sdn Bhd [2020] MLJU 2384 Wee Lian Construction Sdn Bhd v. Ingersoll-Jati Malaysia Sdn Bhd [2010] 3 MLJ 425 Wisma MPL JMB v. Malaysia Pacific Corp Bhd [2018] MLJU 1745 Yam Kong Seng and Anor v. Yee Weng Kail [2014] 4 MLJ 478 Yeo Ing King v Melawangi Sdn Bhd [2016] 5 MLJ 631 Yeoh Oon Theam v Public Prosecutor [2016] 5 MLJ 387 Legislation referred to: Contracts Act 1950, s 71 Evidence Act 1950, ss 8, 17, 18, 21, 59, 60, 62, 63, 64, 65, 74, 78, 92, 103 & 114 Oaths and Affirmations Act 1949, s 5 Sale of Goods Act 1957, s 42 Other sources referred to: Andrew Burr, Delay and Disruption in Construction Contracts, 5th edn, Informa Law from Routledge, 2016 Chow Kok Fong, Law And Practice of Construction Contracts, Fifth Edition, Volume 1, Sweet & Maxwell, 2018 Kim Lewison, The Interpretation of Contracts, 6th edition, Sweet & Maxwell, 2015 Nicholas Dennys QC, BA (Oxon) and Robert Clay, MA D Phil (Oxon), Hudson’s Building and Engineering Contracts, 13th Edition, Sweet & Maxwell 2015 Professor Datuk Sundra Rajoo and Ir Harbans Singh KS, Construction Law in Malaysia, Sweet & Maxwell Asia, 2012 SC Sarkar, Law of Evidence, 2nd Edition, Lexis Nexis, 2019 Society of Construction Law Delay and Disruption Protocol, 2nd Edition, Society of Construction Law (UK), 2017 Stephen Furst & The Hon. Sir Vivian Ramsey, Keating on Construction Contract, 10th Edition, Sweet & Maxwell, 2016