Damansara Uptown Retail Centre Sdn Bhd v Meg Consult Sdn Bhd (WA-22C-40-07/2016)

[17] The Plaintiff submitted that the Defendant had wrongly added in the figure for “contingency sums” and other elements which are not works in the Development or matters agreed upon with the Contractors after the termination of the Defendant. 7 [18] The Plaintiff also submitted that the Defendant had unreasonably and in breach of the Contract invoiced its Fees on a monthly basis without taking into consideration the extension of time applied by the Contractors and allowed by the Plaintiff. With the granting of the extension of time the contract period and with that the “construction stage” was also correspondingly extended which extension was ignored by the Defendant in its billing for its Fees. [19] As the Final Account had been issued by the time of the trial, the Plaintiff submitted that the TCC taking into account the variations and omissions of works should be used which amounted to RM1,347,987,419.17. [20] Based on the updated figures, the Plaintiff submitted that the “Consultancy Fee” due to the Defendant at the end of March 2016 based on the various stages of completion for the various phases of the Project is RM6,492,291.02. [21] I was more than glad that after some persuasion and prodding by the Court, learned counsel for the Plaintiff conceded that the Contract could have been more clearly drafted and that the parties would not then have to 8 deal with so many imponderables as to what was supposed to be an objectively determinable TCC. [22] In the course of the submission on 7.2.2018, learned counsel for the Plaintiff, Mr S K Yeoh was gracious to accept finally that the TCC for the purpose of the claims herein is RM1,441,593,347.42 as pleaded in paragraph 27 of the Counterclaim and that the balance payable after deducting the amount paid previously and also pursuant to the Adjudication Decision is RM623,858.50. [23] The Court proceeded to record a consent judgment on the Counterclaim for the sum above stated and that left the Court to decide on the 3 Issues or heads of Claim of the Plaintiff below. Whether the Defendant was in breach of the Contract in failing to provide the correct piping configuration at the Chiller Plant Room when they provided a Common Header System instead of a One-to-One System [24] The Plaintiff’s claim against the Defendant is that the Defendant had failed to design and install the correct piping system between the cold 9 water pumps and the chillers in the Chiller Plant Room at the Development as pleaded in the Amended Bundle of Pleading (“BOP”) at page 26, paragraph 12.1 of the Statement of Claim (“SoC”). [25] I agree with the Plaintiff that for them to succeed in this claim against the Defendant, the Plaintiff must prove the following: a. the Plaintiff instructed the Defendant to design and install a “One-to-One” piping system at the Chiller Plant Room; b. the Defendant failed to so design and cause to be installed a “One-to-One” piping system; c. The loss and damage suffered by the Plaintiff to rectify the Defendant’s breach and failure above. [26] The Plaintiff called three witnesses to prove that the instructed configuration is that of a One-to-One System and not a Common Header System. The Plaintiff’s then Assistant Vice President for Mechanical & Electrical Section under Project Management Division, Mr Ng Huai Sian (PW6) testified that the Plaintiff appointed an energy expert, one Dr Lal to recommend the proper Chiller System to be built. 10 [27] PW6 testified that Dr Lal’s “Final Recommendations for Chiller System” dated 19th May 2014 (DBOD9, Tab 86) instructed DW1 to use a “One-to-One” piping system. [28] The “Final Recommendations for Chiller System” prepared by Dr Lal was produced by the Defendant and in it is set out a Schematic Drawing diagram which clearly depicts a “One-to-One” piping system. See DBOD9, Tab 86, pg. 2021 as shown below: 11 [29] The same is also indicated in DBOD9, Tab 86, pg. 2025 as seen below: [30] PW6 confirmed that the above two diagrams depict a “One-to-One” piping system. Basically a “One-to-One” piping system is one where a Chiller Water Pump “CHWP” or sometimes called a Chiller Pump “CWP” is connected to one Chiller (“CH”). [31] In the case of a Common Header, a Chiller Water Pump may branch out to 2 or 3 Chillers or more. [32] As testified by PW3 and PW4, both of whom are qualified and registered consultant mechanical engineers and from ASHRAE Journal at pages 2347-2351 DBOD 10 Tab 106G, the above Schematic Drawings depict a One-to-One Piping System with the title “PROPOSED 12 CONDENSER WATER PUMPING SYSTEM”. The Chilled Water Pumps are connected directly to the Chillers without any Common Header in between. [33] DW1’s own email dated 10th October 2014 (DBOD9, Tab 92, pg. 2093) to Dr Lal confirmed that save for the difference in chill water pumps and chillers, the tender drawings produced by DW1 for the “base tender” and the “alternative tender” are based on Dr Lal’s recommendation and Dr Lal had only recommended a “One-to-One” piping system. See DBOD9, Tab 92, pg. 2093. [34] Likewise the consulting mechanical engineer Ir Yip Fook Keong (PW4) examined and confirmed that save for the difference in chill water pumps and chillers the “base tender” schematic drawing (PBOD 4, page 57) and the “alternative tender” schematic drawing (PBOD 4, page 62) prepared and produced by the Defendant, both depict a “One-to-One” piping system. [35] Then finally there is the evidence of. Ir Neng Ka Tack (PW3) who testified that after the Defendant left the Development, his company PME Consulting Engineers Sdn Bhd (“PME”) was appointed on 19.4.2016 to be the new consultant M&E engineers for the Development. PW3 testified as follows: 13 a. That he discovered that a “common header” piping system had been installed between the chill water pumps and the chillers in the Chiller Plant Room. See PW3-WS Q&A 20; b. On further inquiry, Blue Star Engineering Sdn Bhd, the air-conditioning contractor (“Blue Star”) informed him that DW1 had approved Blue Star’s “shop drawing” (CBOD B1, Pages 159- 160) to install the said “Common Header” piping system in the

c. PW3 informed the Plaintiff accordingly and the Plaintiff then instructed PME to rectify the “common header” piping system to a “one-to-one” piping system. See PW3-WS Q&A 22. d. Whereupon PW3 issued Engineer’s Instructions No. ACMV07 (CBOD C1, pg. 151) and ACMV08 (CBOD C1, pg. 152-155) both dated 17.8.2016 to Blue Star to carry out the said rectification. See PW3-WS Q&A 22; e. Blue Star carried out the rectification to convert the “common header” piping system to a “one-to-one” piping system at the 14 cost of RM960,000-00. See PW3-WS Q&A 24, PW6-WS Q&A 15 and PBOD4, pg.82-84. [36] Granted, in as much as the Plaintiff must make out a case for the One-to-One Header System, the Defendant must convince this Court on a balance of probabilities that it is the Common Header System that the Plaintiff had instructed. Otherwise there would have been no dispute with respect to this particular head of Claim. [37] As DW1, the Managing Director of the Defendant, did not call anyone to corroborate his evidence, we would only have DW1’s evidence to rely on. [38] In DW1-WS, DW1 said in his Witness Statement that the “Final Recommendations for Chiller System” dated 12.5.2014 (DBOD9, Tab 86) produced by Dr Lal’s depicted a “common header” piping system in DW1- WS Q&A 24 as follows: “Even the energy expert appointed by the Plaintiff also designed for Common Header System. This can be seen from its Final Recommendations for Chiller System dated 12 May 2014. Both the schematic drawing and the layout drawing in the Final 15 Recommendations for Chiller System dated 12 May 2014 reflect the Common Header System.” [39] In DW1’s own unsigned Witness Statement (filed in court) (marked as Exhibit P10) DW1 admitted that the “Final Recommendations for Chiller System” dated 12.5.2014 (DBOD9, Tab 86) depicted a “One-to-One” piping system in Q&A 41, Page 38 (PCB Tab 53) as follows: “On chilled and pump piping design, it was LJ Energy’s old idea way back in 2014 to have 1 to 1 piping design which was proposed in their Alternative Proposal. As stated above, the Alternative Proposal was not adopted due to [it] being less efficient and more costly. The design selected by the Plaintiff’s top management was Common Header design as prepared in the Original Base Design by the Defendant. I do not know why the sudden change in decision on the part of the Plaintiff.” (emphasis added) [40] There was no evidence of any minutes of meeting or any contemporaneous documents to show that there had indeed been a change from a One-to-One System to a Common Header System. 16 [41] Whilst I accept that errors might have been made in the original Witness Statement filed with this Court though not signed by DW1 yet, this does not derogate from the fact that DW1 had earlier taken the position that the Plaintiff’s Energy Expert had recommended a One-to-One System. [42] However very strangely and suspiciously, that was not the position that DW1 had taken. Rather than admitting that he had made a erroneous narration of the facts of the case on this vital issue of system configuration for the Chiller piping system, he sought to convince the Court that he was not privy to the Witness Statement that had earlier been filed in Court. [43] It would be reasonable to say that no solicitor would have been able to prepare the Witness Statement of their witness without the proper instructions from the witness himself. It is too preposterous that his solicitors had prepared this particular narration on so vital an issue on their own without consulting with him and without his consent! [44] This is even more apparent when he had earlier testified under cross-examination that he himself would represent the Defendant in all matters in this legal proceedings and would personally give instructions to his counsel with respect to all matters relating to this case including the pleadings, relevant documents and witness statement. He further confirmed that he had knowledge of all the documents and the contents of all the pleadings 17 filed with the Court and that he had approved them all before filing with the Court. [45] Having admitted to all that in cross-examination before the issue of the First Witness Statement by DW1 was brought up, against the vigorous and vehement objection of his counsel, I must say that error, cannot be that of his solicitors but of himself if indeed it was an error. [46] I had no problem admitting the Original Witness Statement of DW1 filed with the Court as evidence because it is relevant and admissible as primary evidence under section 62 Evidence Act 1950 which reads: “Primary evidence means the document itself produced for the inspection of the court.” [47] It further satisfies the requirement of section 73A Evidence Act 1950 as this Court is satisfied that the maker is DW1 eventhough he had not signed it then and that he subsequently signed a revised Witness Statement which is identical substantially to the Original Witness Statement other than the highlighted differences alluded to above. [48] In spite of modern word processing Exhibit P10 cannot type by itself without an input from the maker through the intermediary of someone who had keyed in the information which could only have come from DW1. It is 18 the Witness Statement prepared for DW1 with his knowledge and consent and even though it was not used as a Witness Statement, it nevertheless is a Court document filed on his behalf and to which the Court can make a reference and draw the necessary inference. [49] I am more inclined to view it more of a Freudian slip and a fault which cannot be so easily explained away other than that DW1 had shifted his stand between his Original Witness Statement and his evidence before the Court in a revised Witness Statement marked as DW1-WS. [50] Though defended by his counsel as a piece of document that is not his Witness Statement until he had signed it and so cannot be relied upon, it is nevertheless filed with his instruction for there is no evidence to the contrary that his own solicitors had prepared the statements on their own accord without consulting him! In fact for DW1 to suggest that it was prepared without consulting him and without his consent would smack of bad faith, not on the part of his solicitors but on his part, to put it mildly. [51] I can only say that it was an attempt to improve on his evidence to make it sound more credible and believable and all the more to be castigated and condemned when DW1 had declared his complete dissociation from it. The more he denied his involvement in the preparation of the First Witness Statement filed with this Court and marked as Exhibit 19 P10, the worse it became for him and consequently more dent on his demeanor and ultimately his credibility or rather the lack of it. [52] PW4 and PW6 were candid in admitting that the “Indicated Layout Plan” at page 2015 of DBOD 9 Tab 86 had reflected a Common Header System but does that mean that Dr Lal had recommended a Common Header System when the subsequent Schematic Drawings reflect a One-to-One System? [53] I am inclined to agree with the Plaintiff that the reason for including the “Indicated Layout Plan” in Dr Lal’s “Final Recommendation for the Chiller System” is to indicate that there is space for “Additional Chillers” as recommended by the said Recommendation. Not only once but three times the reference is made in the Indicated Layout Plan to the Chillers Layout or Chillers Location. [54] One is in the title to the Indicated Layout Plan where the title used is “Proposed Chiller Layout” and there is no reference to the Piping System. Then twice on the said Indicated Layout Plan is the reference on the top to “possible locations are indicated for additional chillers” and on the Plan itself the words “POSSIBLE CHILLER LOCATIONS” are clearly printed out in capitals. 20 [55] PW3 and PW4 testified that a Layout Plan is drawn to scale showing the actual size of the Chiller Plant Room and so it is eminently logical to use the Layout Plan as drawn by DW1 to convince DW1 that there is enough space to place additional Chillers. [56] It goes without saying that if there are more Chillers that could connect to the Chiller Pumps then there can be compliance with the recommended one Chiller Pump to One Chiller in a One-to-One System even rather than one Chiller Pump to more than one Chiller in a Common Header System. [57] The “Base Schematic Tender Drawing” (PBOD 4, page 57), the “Alternative Schematic Tender Drawing” (PBOD 4, page 62) and the “Contract Schematic Drawing” (CBOD B1, page 158) were all examined by the mechanical consultant engineers PW3 and PW4 and after having inspected the above drawings and they all confirmed that the above Schematic Drawings show a “One-to-One” piping system. [58] Perhaps the Defendant could have been mistaken a “Common Header Pipe” for what is in reality a “by-pass pipe” which appears as a square in the second diagram above because a “Common Header Pipe” does not have valves. The “by-pass pipe” with valves has the designed purpose of being used for maintenance of the piping system such that 21 when maintenance is needed, the valves in the “by-pass pipes” may be employed to provides an alternative route for the period of maintenance only and that does not derogate from the fact it is intrinsically and innately a One-to-One System and not a Common Header System. [59] I would say that if there is any doubt as to which is more accurate and defining and thus determinative, I would settle for the Schematic Drawings rather than the Layout Plans for the former reveals more the details that may not be seen because either it is blocked by existing pipes or other objects but a Schematic Drawing has the versatility of showing even what is behind the scene and surface and to lay them flat so that nothing may be concealed but that everything is laid bare for all to behold! [60] The Defendant, again through DW1, its sole witness, sought to further bolster its case by stating that when Blue Star, the Subcontractor that did the Piping Configuration, filled in the Tender Clarification No.2 dated 17.9.2014 at page 3562 of DBOD 15 Tab 211, the Plaintiff agreed to the installation of a Common Header System. [61] I agree with the Plaintiff that nothing could be further from what happened in reality in the process of the Tender exercise. The Defendant and hence DW1 is entirely responsible for preparing the “Tender 22 Clarification No.2” and that this clarification contains confidential information and is opened by DW1. [62] The Plaintiff’s only function in this regard is to witness the opening of the document to ensure that everything is done above board with no unfair interference by any parties. Thereafter DW1 is duty bound to examine the answers to “Tender Clarification No.2” and inform the Plaintiff of all relevant matters by way of a “Tender Report.” [63] As explained by PW3 under re-examination, the person in charged of the questionnaires for the tenderers would be the Defendant and the questionnaires would come after the Tender had been closed. The questionnaires are for the Defendant as consultant to ask questions to the tenderers on questions on the technical specifications which the consultant thinks there may have been some non-compliance. [64] The consultant would use the questionnaire to formulate questions to reconfirm critical elements of the Contract. The answer of the DW1 in the questionnaire is entirely self-serving and unless it is given to the Plaintiff in the form of a “Tender Report” which the Defendant failed to do, the Plaintiff would not be aware that the Contractor is proceeding to construct based on a Common Header System. 23 [65] This need to prepare a Tender Report can be appreciated when one looks at the Plaintiff’s Standard Operating Procedure for Variation at pages 161-163 at CBOD B1 which provides that the Defendant must specifically inform the Plaintiff of all changes in writing. [66] Looking at the contemporaneous documents and how the seeming inconsistency between the Tender Drawings and the Schematic Drawings have been explained and the conduct and demeanor of the parties, I would lean in favour of the Plaintiff’s version that a One-to-One System was the one they had instructed through their Energy Expert Dr Lal. [67] It was theorized that the Plaintiff had deliberately and deceptively changed the configuration to a One-to-One System from a Common Header System just to spite the Defendant. I must be forgiven for not being able to fathom and much less, to follow this argument. Human nature being what it is, why would anyone run the risk of dissipating RM960,000-00 in changing the system to One-to-One without any assurance and having to take the risk that the Court might not agree unless the Plaintiff has a legal basis to stage their claim for this additional expenses incurred. [68] Moreover the Project was already in delay and a change in the configuration would further aggravate the delay unless the Plaintiff has a basis for persuading the Court that what was contracted for was a One-to- 24 One System for whatever may be the perceived savings in energy consumption and efficiency. [69] Yet another challenge to the evidence of the Plaintiff’s witnesses is that the Plaintiff should have called its Energy Expert Dr Lal to testify and that the Plaintiff’s failure to call him as a witness would warrant the Court to draw an adverse inference under section 114(g) Evidence Act 1950. However before an adverse inference is drawn one must ask at whose instance the documents in the “Final Recommendations for the Chiller System” was produced? It was produced by the Defendant and marked as Defendant’s Bundle of Document 9 or in short DBOD 9. He who asserts must prove as provided for under section 103 Evidence Act 1950. [70] In any event the said Recommendation is marked as a Part B document which under the Rules of Court 2012 means that the authenticity of the document is not disputed though the contents may be disputed. As the authenticity is not disputed, this Court need only decide on the weight to be attached to it depending on the interpretation that may reasonably be placed on the said Document. [71] If the Defendant wants the Court to believe that Dr Lal meant by the Schematic Drawing a Common Header System when I could see for myself that the configuration is a One-to-One System as explained by the 25 Plaintiff’s 3 witnesses in PW3, PW4 and PW6, then the onus of proof shifts to the Defendant and it is open to them to call Dr Lal to corroborate the evidence of its sole witness DW1. [72] Absent that and in a case like this where there is no evidence that the Plaintiff had sought to suppress evidence with respect to this issue, I would be cautious to make any adverse inference. [73] Overall, the Plaintiff has proved on the balance of probabilities, that notwithstanding clear instructions to design and install a “One-to-One” piping system between the Chiller Water Pumps and the Chillers in the Chiller Plant Room, the Defendant negligently and in breach of the Contract, caused to be installed a “Common Header” piping system instead. [74] The rectification works were done by the same Subcontractor Blue Star who had earlier done the Common Header System. Such a rectification would not have been necessary had it been a One-to-One System. The cost of rectifying the piping system at the Chiller Plant Room from the evidence adduced amounted to RM960,000.00 and this shall be deducted from the Consultancy Fees due to the Defendant. 26 Whether the Defendant was in breach of the Contract in failing to provide for the required ventilation by way of automatic window actuators at the Somerset Hotel [75] The Plaintiff had claimed that the Defendant had failed and/or refused to design and cause to be installed the correct or any “smoke spillage system (or its equivalent)” as imposed by Bomba for the corridors at Somerset Hotel. See Amended BOP at page 26 paragraph 12.2 of the SoC. [76] I agree with the Plaintiff that for them to succeed in this claim against the Defendant, the Plaintiff must prove the following: a. That Bomba did in fact impose a requirement that “smoke spillage system (or its equivalent)” must be installed for the corridors at Somerset Hotel; b. That the Defendant failed to so design and to be installed such “smoke spillage system (or its equivalent)”; c. That there was loss and damage suffered by the Plaintiff to rectify the Defendant’s breach and failure above. [77] One cannot ignore the requirements of Bomba as contained in their letter emailed to the Defendant at CBOD B1, Page 170. See also PW2-WS 27 Q&A 29(e), and ITEM 5 of the Bomba’s Active Fire Protection Requirements for Somerset Hotel at pages 164-169 CBOD B1. The letter from Bomba to DES Architect dated 10.12.2013 reads as follows: “5. Adakan sistem ‘smoke spill air’ mengikut Piawaian AUSTRALIA 1668:Bahagian I:1974 atau mana-mana penentuan yang dibenarkan oleh Jabatan Bomba dan Penyelamat Malaysia. (Corridor)” [78] PW2, PW3 and PW4 all testified on the following as summarized by learned counsel for the Plaintiff as follows : a. That it is the Defendant’s responsibility as the mechanical consultant engineer to comply with ITEM 5; b. That save where the Defendant applies for and obtains a waiver from Bomba in a written form, the Defendant must comply with ITEM 5, failing which BOMBA will not issue a “surat sokongan” or “support letter”, and the Architect PW2 would not be able to issue a CCC for the Somerset Hotel. [79] The testimonies of PW2, PW3 and PW4 are supported by Pertubuhan Arkitek Malaysia’s (“PAM”) letter dated 3.5.2017 (DBOD40, Tab 1056, Page 10832) and the Association of Consulting Engineers Malaysia’s (“ACEM”) letter dated 24.5.2017 (DBOD37, Tab 989, Page 28 10112). The PAM’s letter dated 3.5.2017 (DBOD40, Tab 1056, Page 10832) reads as follows: Description To determine a building space whether to be natural ventilation or mechanical ventilation for compliance to UBBL & JBPM’s requirement. Scope of Work Architect If natural ventilation chosen to ensure design compliance with sufficient opening for space functionally Architect If mechanical ventilation chosen, to ensure design compliance with sufficient capacity of fan, ducting & active equipment for system functionality. M&E [80] The ACEM’s letter dated 24.5.2017 at DBOD37, Tab 989, Page 10112) reads as follows:

To determine whether space is to be naturally ventilated or mechanically ventilated – By Architect. 29

To determine sufficiency of opening to qualify for natural ventilation – By Architect.

To design mechanical ventilation system to comply with by-laws and Bomba requirements – By M&E Engineer. [81] PW3 testified that when he inspected the corridors at Somerset Hotel, all the windows that had been installed by the corridors were not equipped with any “smoke spillage system (or its equivalent)”. PW3 then informed the Plaintiff accordingly and the Plaintiff instructed PME to comply with ITEM 5. [82] After considering various possible options, PW3 decided that installing a “automatic window actuator” system (as an equivalent to a smoke spill system) would be most economical solution. The relevant part of the evidence is as follows: Ok. So you satisfied Item No. 5? Yes. Satisfied Item No. 5 Now according to the Defendant’s counsel again at cross-examination, the Defendant’s counsel put to you that you never met with Bomba to discuss the window actuator system. Disagree. 30 Why did you need to meet with Bomba about the window actuator system? Yang Arif, as we know, under Item No. 5, it spelled out clearly, in the Bomba letter, smoke spill diperlukan. Atau the equivalent. So this equivalent never spelled out clearly this window actuators. If I need to do smoke spill system, I don’t have to consult Bomba or discuss with Bomba. But I’m using equivalent system. In this case it’s window actuators. The automatic window actuators, Yang Arif. Yes, in our industry. We know. Automatic window actuator can be accepted by Bomba. But I choose to discuss, to ascertain Bomba can accept my proposal. That’s why discussion with Bomba was held few times. And Bomba agreed to your using the window actuator system? Yes. And yes agreed and that’s why they have approved or diperakukan on this 02.08.2016. (emphasis added) [83] Under further re-examination PW3 clarified as follows: 31 Now Mr Neng, why didn’t you just install a smoke spill system? Yang Arif, I think from my first session here, I have explained. When I take over the project, the, we don’t have time for the project. So many rush work and a lot of delay on this project. When we check the hotel corridors for Somerset, the ceiling already installed, along the corridor. Completed. Ceiling already completed. In order to fulfil Item No. 5 to put in smoke spill system, the metal ducting have to be installed inside the ceiling. So time is an issue. Two choice of doing. Discussion over discussion over discussion with the developer, how to comply to Item No. 5. If we put it the metal ducting for the smoke spill system, we have to tear down all the ceiling. So what other alternative? Look into windows. We look into the windows. To study the windows. And the conclusion, the fastest way to comply Item No. 5 is to use automatic window actuators...”(emphasis added) 32 [84] In this regard, learned counsel for the Plaintiff referred to the Malaysian Standard MS1780:2005, paragraph 7.11 in DBOD 12, Tab 120, Page 2678 which reads: “7.11 The preference is for the replacement air to be introduced naturally, via louvres, doors, roller shutters, windows, ventilators, all of which shall open automatically so that the supply of fresh air is guaranteed.” [85] PW3 then issued the Engineer’s Instruction No. SA-F1 dated 29th July 2016 (CBOD C1, Pages 171-173) to IJM Construction Sdn Bhd to carry out the installation of the “automatic window actuator” system. IJM Construction Sdn Bhd in turn carried out the necessary works to install the “automatic window actuator” system which was approved by Bomba during the Bomba final inspection and the “surat sokongan” or “clearance letter” was issued. [86] I agree that on the balance of probabilities, the Plaintiff had proved that notwithstanding that Bomba’s letter dated 10.12.2013 to PW2 attaching the Bomba’s Active Fire Protection Requirements (CBOD B1, Pages 164-169) had clearly imposed a condition that the corridors at Somerset Hotel must be installed with a “smoke spillage system (or its 33 equivalent)”, the Defendant failed to design or cause to be installed any or any proper smoke control system for the corridors of Somerset Hotel. [87] Learned counsel for the Defendant submitted that Bomba must be deemed to have been satisfied that ITEM 5 had been complied with for it was no longer singled out by Bomba in their subsequent letters of “approval” though other ITEMS were specifically mentioned as requiring action culminating in the Bomba’s “approval” dated 6.4.2016. [88] If that is the interpretation that the Defendant had wanted the Court to believe, then surely it is not too difficult for the Defendant to subpoena the relevant officer from Bomba to testify that indeed there was no requirement for an automatic actuator system to be installed eventhough the windows are closed because it is air-conditioned but that nevertheless is sufficient compliance with the active fire protection requirements in line with the Australian Standard 1668: Part I:1974 or its equivalent as may be approved by the Bomba. [89] As it is common ground that the Bomba does not issue any “approval letter” and that what Bomba would issue is merely a letter of acknowledgment, it must then be accepted that at any time until final “approval”, requirements consistent with the equivalent Australian Standard 34 may be imposed or “approved” without derogating from the duty of Bomba to ensure that public safety is given preeminence at all times. [90] The evidence that cannot be refuted is that at the end of the day Bomba either endorsed or “approved” the implementation of an automatic actuators system where the windows along the Hotel corridors are concerned. PW3 was entitled to inform the Court what he heard from Bomba to show the fact that the statement on the need for automatic actuators was made and not the fact of the truth of the statement to show that it is reasonable to believe that had it not been for the statement, PW3 would not have to incurred more time and costs for the Plaintiff to make the necessary rectification and modification. [91] If it is the Defendant’s contention that with respect to the truth of the statement, there is no truth that the automatic actuators system was an essential requirement but just an added or optional extra, then it is for the Defendant to call the relevant officer from Bomba. [92] This is where the dicta of the Federal Court in Leong Hong Khie v Public Prosecutor and Tan Gong Wai v Public Prosecutor [1986] 2 MLJ 206 at page 208 is of particular relevance as follows: “The general rule is that hearsay evidence is not admissible as proof of a fact which has been stated by a third person. This rule has been 35 long established as a fundamental principle of the law of evidence. To quote Lord Normand in Teper v R [1952] AC 480 486: “The rule against the admission of hearsay evidence is fundamental. It is not the best evidence, and it is not delivered on oath. The truthfulness and accuracy of the person whose words are spoken by another witness cannot be tested by cross-examination and the light which his demeanour would throw on his testimony is lost.” In our opinion, another reason is the danger that hearsay evidence may be concocted, fabricated and tailored to suit the witness's testimony. ... In the early part of its opinion the Privy Council [in Subramaniam v Public Prosecutor [1956] MLJ 220] said: “Evidence of a statement made to a witness by a person who is not himself called as a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible when it is proposed to 36 establish by the witness, not the truth of the statement, but the fact that it was made.” (emphasis added) [93] Where the words of the relevant Australian Standard or its equivalent Malaysian Standard are clear then it is for the Defendant to discharge its evidential burden that nevertheless there was sufficient compliabce with the equivalent Malaysian Standard in that the windows could be opened manually in the event of a fire or that otherwise Bomba had waived it as it was not raised in subsequent letter of “approval” of Bomba. [94] Whilst the legal burden or the burden of proof lies with the Plaintiff at all times to prove that the requirement of automatic actuators was required for Bomba with respect to the fulfillment of the Active Fire Protection requirements, the evidential burden or onus of proof does shift depending on what is being asserted by the parties. [95] The fact that there is no letter in writing to say that the automatic actuators system is or is not required is not disputed. So also is that fact that Bomba did not raise any objection to the automatic actuator system being installed and in fact the CCC was finally issued with no objection by Bomba. 37 [96] If it is the Defendant’s contention that the CCC would been issued anyway with no objection by Bomba even without the need to install the automatic actuator system then the evidential burden must be on the Defendant to call Bomba to verify that. [97] Where the words of the Malaysian Standard are clear, one must adduce evidence to show that a manual system would equally comply with the Standard and that it was nevertheless accepted by Bomba and since that was the assertion of the Defendant, the Defendant would bear that evidential burden which it had not discharged. See Section 103 Evidence Act 1950. [98] It appears that what the learned counsel for the Defendant was asserting was that the automatic actuator system was not required but was an added extra which was not necessary but perhaps good to have if it is there. But then again he who asserts must prove and all the more in the field of fire protection where one should not take chances or compromise where public safety is concerned. It is better to be safe than sorry! [99] In this regard the caution of the Federal Court in Hong Yik Trading v Liziz Plantation Sdn Bhd [2017] 5 MLJ 398 at paragraph D, page 407 is a helpful reminder: 38 “In the case of International Times & Ors v Leong Ho Yuen [1980] 2 MLJ 86, Salleh Abas FJ restated the same position in the following words: “For the purpose of this appeal it is necessary to bear in mind the distinction between the two senses in which the expressions burden of proof and onus of proof are used.... The first sense, signified by the expression burden of proof such as referred to in s 101 of the Evidence Act 1950 is the burden of establishing a case and this rests throughout the trial on the party who asserts the affirmative of the issue. .... The second sense referred to as onus of proof, on the other hand, relates to the responsibility of adducing evidence in order to discharge the burden of proof. The onus as opposed to burden is not stable and constantly shifts during the trial from one side to the other according to the scale of evidence and. other preponderates. Such shifting is one continuous process in the evaluation of evidence. According to ss 102 and 103 of the Evidence Act, if the party with whom this onus lies whether initially or subsequently as a result of its shifting does not give any or further evidence or gives evidence 39 which is not sufficient, such party must fail.” (emphasis added) [100] Learned counsel for the Defendant had suggested to PW3 that there was no real requirement for the automatic actuators to be fitted but rather was something that PW3 had proposed so as to defeat the Defendant’s Claim. [101] It was further suggested that as the Project was already in delay, this extra work of installing the window actuators was to bolster the delay. [102] PW3 was obviously livid at such a suggestion without any supporting evidence. It simply does not compute for PW3 to suggest something not necessary just to reduce the Defendant’s Claim for its professional fees when the Project was already in delay. In fact where delay is concerned the Plaintiff is not making any claim for any losses against the Defendant arising from the failure of the Defendant to exercise due care. [103] Logically it would be a long shot to suggest that as long as there are windows, then regardless of whether the windows are open or close along the corridors of the Hotel, there is no need for any smoke control system. Surely it cannot be that in the event of a fire, there would be someone to have the presence of mind to open the windows when the requirement is that the windows are to open automatically through the actuators. 40 [104] It was also suggested that what was told by the officers from Bomba to PW3 in his meeting with them would be hearsay. However what is more important here is that the Revised Active Fire Protection Plan consisting of the automatic actuators system submitted by PW3, subsequent to the so-called “approval” of the Defendant’s Active Fire Protection Plan, was actually “approved” by the Bomba. [105] The revision was necessary because of the top 3 floors to the Hotel being changed from facilities and rooms to all rooms like the typical floors and thus yielding additional rooms. It is not disputed that there was thus an increase of rooms from 200 to 211; an increase of 11 rooms. [106] However there is no evidence adduced by the Defendants to show that this increase in the number of rooms by 11 affected the integrity of the Active Fire Protection Plan such that it now required an automatic actuators to be in place. [107] Absent that evidence, it lends credence to the evidence of PW3 who came in to replace DW1 as the M&E Consultant that this requirement was all along one of the ways of satisfying the equivalent requirement of the Australian Standard. [108] In this regard, PW2, PW3 and PW4 all testified that the corridors at Somerset Hotel are air-conditioned (and that it was the Defendant who 41 designed the air-conditioning system). When the corridors are air-conditioned, the windows must be closed. It is only to obvious that when the windows are closed – there is no “natural ventilation.” [109] The Malaysian Standard at Paragraph 8.5.3 of MS1780:2005 specifically defines natural ventilation as “… vent openings of not less than 2.5% of floor area…”. When windows are closed, there is no vent opening. Paragraph 8.5.3 of MS1780:2005 reads at DBOD12, Tab 120, page 2672-2686 as follows: “8.5.3 Natural ventilation is permissible only if induced cross ventilation is available and the aggregate effective vent openings of not less than 2.5% of the floor area served can be provided. [110] When there is no “natural ventilation”, the Malaysian Standard at Paragraph 7.11 of MS1780:2005 provides that an “automatic” smoke control system is required to guarantee the supply of fresh air in Paragraph 7.11 of MS1780:2005 as referred to above. [111] I can accept the Plaintiff’s evidence that the Defendant knew that the corridors of the Hotel would be air-conditioned. The Defendant was the one who designed the air-conditioning system of the Hotel. [112] It is for the Defendant as the M&E Consultant to inquire and ascertain with Bomba (the Fire Department) their requirements. Bomba had stated 42 that in their letter to the Architect at Tab 72 and at page 167 item 5 that “there is to be provided a ‘smoke spill air ‘ system in accordance with the Australian 1668 Standard: Part 1: 1974 or any other determination as may be allowed by Bomba. [113] I can accept that when the Architect designed a natural ventilation system it was as a backup in case the air-conditioning system does not work. [114] It is inconceivable to think of a corridor being air-conditioned and the windows not being closed. [115] Both common sense and commercial sensibilities would dictate that the windows in the air-conditioned Hotel corridors be closed and the smoke spill system has to be designed to allow for the windows to be opened automatically when there is a fire. [116] It is only to be anticipated that some kind of automatic window actuators be allowed for and installed to meet that requirement. The Plaintiff thus claimed the sum of RM51,007.42 from the Defendant as the cost for carrying out all the rectification works necessary to install the “automatic window actuator” system. [117] Very significantly the Plaintiff did not claim the cost of installing the “automatic window actuators” themselves from the Defendant. It is the 43 labor costs incurred in modifying the windows to now allow for the automatic actuators to be installed. [118] The Plaintiff is charging only for the modification costs incurred and this is found in Tab 89 item 4 and Tab 90 of the PCBOD. [119] I would allow this claim of RM51,007.42 and this sum shall be deducted from the Defendant’s Consultancy fees. Whether the Defendant was in breach of the Contract in failing to provide for sprinklers below the escalators at Starling Mall [120] The Plaintiff’s claim is that the Defendant had failed and/or refused to design and to install sprinkler points or sprinklers beneath the escalators at Starling Mall. See the Amended Bundle of Pleading at page 26, paragraph 12.3 of the SoC. [121] I agree with learned counsel for the Plaintiff that to succeed in this claim against the Defendant, the Plaintiff must prove the following:

That sprinklers must be provided beneath the escalators at Starling Mall.

That the Defendant failed to so design and cause to be installed such sprinklers points or sprinkler. 44

The loss and damage suffered by the Plaintiff to rectify the Defendant’s breach and failure above. [122] At the trial the Mechanical Consultant Engineers PW3 and PW4 both testified that Bomba’s letter dated 16.4.2014 to PW2 attaching the Bomba’s Active Fire Protection Requirements (CBOD B1, Pages 176-182) clearly imposed a condition that sprinklers must be installed underneath the escalators at Starling Mall. [123] The actual words used in original language in the said letter of Bomba dated 16.4.2014, ITEM 15 (CBOD B1, Page 180) must now be reproduced: “15 Adakan sistem penyembur air mengikut Piawaian MS 1910: 2006 atau mana-mana penentuan yang dibenarkan oleh Jabatan Bomba dan Penyelamat Malaysia.” It can be translated as follows: “15. To have in place a water sprinkler system in accordance with MS 1910: 2006 or any equivalent which is allowed by the Fire and Rescue Department of Malaysia.” [124] The relevant part of the Malaysian Standard is Paragraph 11.4.10 of MS1910:2006 (CBOD B1, Pages 183-185) which reads as follows: “11.4.10 Platforms, ducts, etc 45 Sprinklers shall be installed under platforms, ducts, heating panels, galleries, walkways, etc., which are

rectangular, more than 0.8m wide and less than 0.15m from adjacent walls or partitions;

rectangular and more than 1.0m wide;

circular, more than 1.0m in diameter and less than 0.15m from adjacent walls or partitions; and

circular and more than 1.2m in diameter.” [125] Learned counsel for the Defendant argued that this paragraph 11.4.10 is not applicable to escalators as they are not walkways. I think an expansive meaning has to be given to walkways as in any structure on which people may walk eventhough there is little or no walking because of the escalation afforded by the very nature of an escalator! [126] Both PW3 and PW4 testified that the escalators at Starling Mall are in fact “rectangular walkways” which are more than 1 meter wide and must therefore be equipped with sprinklers underneath. [127] Both PW3 and PW4 also testified that it is the duty of the Defendant as the Mechanical Consultant Engineer to ensure ITEM 15 is complied with, failing which Bomba will not issue the “surat sokongan” or “clearance letter” and the architect cannot issue the CCC for Starling Mall. PW3 then 46 informed the Plaintiff accordingly and the Plaintiff instructed PME to comply with ITEM 15. [128] Following that PW3 issued an Engineer’s Instruction No.F4 dated 2.7. 2016 (CBOD C1, Page 189) instructing the contractor to carry out the rectifications to the escalators so that sprinklers could be installed underneath; there being 34 units of escalators in the Starling Mall that would have to be rectified. [129] Learned counsel for the Defendant pointed out that PW3 was not able to show anything in writing that it was a requirement of Bomba that sprinklers be installed underneath the escalators. I can accept the evidence of PW3 that in his various meetings with Bomba, as and when changes and amendments were required he would effect it and resubmit the Plans. [130] There was thus nothing in writing with respect to particular requirements that had not been fulfilled for if a matter can be resolved more speedily with less formalities, I do not see why there must be letters crossing to and fro which can only delay matters when both the developer and the approving authority in the Bomba are on the same page where the safety of the public is concerned. The important thing is that the Bomba finally “approved” or “supported” or “acknowledged” the Active Fire 47 Protection Plan for the sprinklers beneath the escalators such that there is no obstacle in getting the CCC. [131] There is thus nothing wanting for PW3 in issuing the Engineer’s Instruction No. F4 dated 26.7.2016 for the installation of sprinklers underneath the escalators, to have placed the remark for the changes as (i) to suit fire engineering performance base report requirement, and (ii) to supersede EI ref. no. SHC(UPTOWN)/6885/EI/F/01/16 – EI No. F3 dated 24.6.2016. [132] The fact that there is no mention that the changes were made pursuant to the Bomba’s requirement for fire safety protection does not derogate from the fact that there must be compliance with the relevant paragraphs of the Malaysian Standard. [133] Learned counsel for the Defendant mounted the same argument that PW3’s evidence that the Bomba informed him at a meeting on 21.7.2016 that additional sprinkler points must be added below the escalators of Starling Mall before Bomba will grant its approval to the Starling Mall Active Fire Protection Plan is hearsay evidence because the Bomba officer who purported made the statement was not called to give evidence to prove the truth of the statement – that additional sprinkler points must be added 48 below the escalators of Starling Mall before Bomba will grant its approval to the Starling Mall Active Fire Protection Plan. [134] As I said before it is not hearsay for PW3 to adduce evidence of what he heard with respect to the meetings with Bomba. He acted consistently with what was instructed for human experience tells us that if there is non compliance with the authorities instructions or recommendations, then it would be nigh difficult if not impossible to obtain the relevant approval or as in this case the “support”, “approval” or “acknowledgment” that would pave the way for the CCC to be issued. [135] The natural inference can be drawn that what was submitted for the sprinklers underneath the escalators must have met with the Bomba’s “approval” for otherwise the said letter of “approval” would not have been issued by Bomba. [136] It is not the Plaintiff’s assertion that the sprinklers are not necessary or that it was an optional extra and not mandatory but rather the Defendant’s assertion. [137] I find nothing curious that Bomba had not reduced its requirement in writing as what is being done is consistent with the relevant paragraphs of the Malaysian Standard in sprinklers beneath platform, walkway, etc. 49 [138] Learned counsel for the Defendant castigated the failure of the Plaintiff to call the Bomba officer as conduct consistent with the desire to conceal evidence which if produced would be unfavorable to the Plaintiff. The Defendant submitted that the Plaintiff ought to be censured for such a failure to call the relevant officer from Bomba and that an adverse inference ought to be drawn against the Plaintiff under section 114(g) of the Evidence Act 1950. [139] Such a tirade is misplaced. Each side may tender evidence tending to the truth of what is being asserted and any side may rebut the evidence of the other by calling the necessary witness. Where there is no evidence of concealment of evidence but that both the final “approval” of the sprinklers beneath the escalators and the relevant paragraphs of the Malaysian Standard support such a stand, this Court would be slow to invoke an adverse inference merely because the approving authority was not called though what was approved cannot be seriously disputed. [140] As it is the Defendant that was keen to pursue the argument that though approved, the requirements of sprinklers under the escalator was more of an optional extra which was not necessary for the approval of the Bomba, then surely it is for the Defendant to call the Bomba officer to confirm their theory. 50 [141] The Court of Appeal decision in Juahir bin Sadikon v Perbadanan Kemajuan Ekonomi Negeri Johor [1996] 3 MLJ 627 at page 635 can be distinguished. There it was a case where the appellant had asserted that one Tan Sri Basir made certain oral representation to the appellant on the purchase price of the premises but could not secure the attendance of Tan Sri Basir to lead evidence on that issue. If the Appellant’s claim is grounded on misrepresentation, then the truth of the misrepresent must be proved. It was in that case that Justice Siti Norma Yaakob JCA (as she then was) at page 635 of the decision commented as follows: “He who alleges must prove such allegation and the onus is on the appellant to do so. See s 103 of the Act. Thus, it is incumbent upon the appellant to produce Tan Sri Basir as his witness to prove the allegation. The fact that the appellant was unable to secure the attendance of Tan Sri Basir as a witness does not shift the burden to the respondent to produce the witness and testify as to what he had uttered, as firstly, the respondent never raised such an allegation, and, secondly, had denied even making one. For this very reason, the adverse inference under s 114(g) of the Act relied upon by the appellant cannot be accepted as establishing that if the witness had been produced, his evidence would work against the respondent. 51 There is no obligation in law for the respondent to produce the witness as that obligation rests with the appellant, the party who alleges, and the fact that the appellant was unable to do so was fatal to his case.” [142] Likewise the Federal Court in the case of Tengku Dato’ Ibrahim Petra bin Tengku Indra Petra v Petra Perdana Bhd and another appeal [2017] MLJU 1976 at paragraph 74 observed in the context where the burden was on the plaintiff there to prove conspiracy on the part of the Defendant to dispose of some shares, as follows: “Despite Soon’s prominent role, still the plaintiff did not call him as a witness to support its case of the defendants’ conspiracy to dispose of the PEB shares as opposed to a sale to alleviate the plaintiff’s cash-flow problem. In the circumstances, the learned High Court judge found that if Soon had been called as a witness, his evidence would have been detrimental to the plaintiff’s case. The learned High Court judge concluded: “Given these circumstances, the failure to call such a material and key witness can only warrant the irresistible inference that Soon Fook Kian’s evidence, if he had been called, would have been detrimental to the Plaintiff’s case. 52 As such, this Court takes the view that this is a fit and proper case to invoke section 114(g) of the Evidence Act 1950, and hereby does so. It is for the Plaintiff and not the Defendants to call Soon Fook Kian because it is the Plaintiff who alleges, contrary to the documentary evidence available in the form of the objective minutes of meetings, that the cash flow problem was a sham or contrived. The onus of establishing that the cash flow problem was a sham or contrived therefore fell upon the Plaintiff, not the Defendants.” Given the key role that Soon played in advising the board of its financial position and of the options available to resolve its cash-flow problems, we accept that the learned High Court judge had little choice but to draw an adverse inference against the plaintiff as the onus of establishing the plaintiff’s case on conspiracy and that the cash flow problem of the plaintiff was a sham, fell upon the plaintiff.” (emphasis added) [143] As further support by the Plaintiff that sprinklers are required to be installed below the escalators, PW3 referred to item 11 of the Guide to Fire Protection in Malaysia read together with the Malaysian Standard 1910:2006 (“MS 1910:2006”). 53 [144] Item 11 of the Guide to Fire Protection in Malaysia provides that: “Sprinklers installed at 17 metres and above the floor to be protected are no longer effective and alternative solutions such as early response sprinkler heads, large droplet sprinkler heads or deluge systems have to be considered.” [145] PW3 however testified that Item 11 supports what is being practiced that anything above 17 meters above the floor does not require sprinkler whilst anything below 17 meters above the floor requires sprinkler. [146] Indeed this practical reality may be read in harmony with the requirements of Paragraph 11.4.10 of the Malaysian Standard 1910:2006 (“MS 1910:2006”) such that if the escalators were more than 17 meters above the floor then it is quite pointless to have the water sprinklers. [147] In fact the Plaintiff is only claiming for the rectification and modification works that had to be done to the escalators that are below the third floor for those above that would be more than 17 meters above the floor. [148] PW3 gave evidence that there are 40 escalators at the Starling Mall and 32 escalators are located below the 3rd floor and only escalators located below 3rd floor need to be installed with sprinklers because they are below 17 meters from the floor. The Engineer’s Instruction No.: F4 dated 54

26.7.2016 also instructed for additional sprinkler points to be put underneath all the escalators for less than 17 meters in height. This means that the escalators below 17 meters from the floor were installed with sprinklers but escalators above 17 meters were not installed with sprinklers. Learned counsel for the Defendant that such a position was never provided by MS1910:2006. [149] I do not see any conflict there. There is no need to read these various clauses with a view to ascertain what is the minimum to be done for compliance where both the words employed and the purpose of the Malaysian Standards and Guidelines are there to ensure maximum safety and protection for the public. [150] Even if there is a doubt here, and there is none to begin with, I would rather err on the side of maximum compliance so that safety and protection of the public is not compromised. [151] Where there is no indication and evidence that the Bomba objected to these requirements of sprinklers underneath the escalators below 17 meters in height, one must not then, in the absence of evidence to the contrary, contend that these are all added extras where compliance with the relevant Malaysian Standards are concerned. After all this is not a judicial review application on the reasonableness of the requirements set 55 by Bomba but a case where ultimately the “approval” of Bomba had been obtained and the CCC issued with no hiccups. [152] To suggest that all these additional works were done to spite the Defendant rather than to ensure maximum compliance with the Standards where safety is concerned would go against commercial sense as already the Project had been delayed. In any event it does not make sense for the Plaintiff to take the risk that the Court may not agree with the Plaintiff if indeed the installation of sprinklers beneath the escalators were a mere embellishment and not essential to the requirements of the Bomba. [153] Learned counsel for the Defendant then introduced photos taken of escalators in certain malls where there are no sprinklers found. In the absence of the relevant facts as to when the mall was completed and whether any exemption had been granted and if so for what reasons and what are the other conditions imposed whether for an Active or Passive Fire Protection Plan, such an evidence is not helpful in as much as I can say that in visiting some malls, especially the newer ones, I have seen for myself sprinklers been fixed beneath the escalators. [154] The Plaintiff had adduced evidence that even though their subcontractor Antah Schindler Sdn Bhd had claimed RM1,282,759.00 for the rectification of the escalators to allow for sprinklers to be affixed below 56 the escalators, PW3 had only recommended RM846,687.00 being the sum to be claimed as seen in PBOD 8, pages 224-229. [155] It must be noted that the Plaintiff did not claim the cost of installing the sprinklers themselves from the Defendant but only the costs of modifying the escalators to allow for sprinklers to be affixed and installed below the escalators affected as if sprinklers are required any way by the Bomba, then they have to be installed and so the costs of installation cannot be claimed from the Defendant. [156] I had allowed this sum of RM846,687.00 with respect to the Plaintiff’s claim as being proved on the balance of probabilities and to allow it to be deducted from the Defendant’s claim for its balance consultancy fees under the Contract. [157] Overall the Plaintiff had proved their claims on a balance of probabilities by calling 6 witnesses all of whom presented their evidence quite frankly, candidly and professionally. [158] The Defendant on the other hand had only tendered one witness, one Mr Gan Choon Hock DW1 who is the Managing Director of the Defendant. He had not seen it fit to call any witnesses to corroborate his evidence. 57 Whether there is evidence that the Plaintiff had not mitigated its loss [159] During trial learned counsel for the Defendant had made a proposition with respect to the “piping configuration” at the Chiller Plant-room. Learned counsel for the Defendant had posited as follows: “That even if the “incorrect” piping system had been installed in the Chiller Plant-room, the principle of “mitigation” requires the Plaintiff prove that the “correct” piping system is more efficient than the “incorrect” piping system before the Plaintiff is entitled to claim the cost of rectifying the “incorrect” piping system.” [160] The Federal Court case of Kabatasan Timber Extraction Co v Chong Fah Shing [1969] 2 MLJ 6 at page 8, left, E-I, through MacIntyre FJ explained the principle of “mitigation” as follows: “The law, however, imposes a duty on every person who suffers damages on account of breach of contract to take reasonable steps to mitigate the damage. In Anson's Principles of the English Law of Contract, 22nd Edition, at page 504, the following passage appears: "It also follows from the rule that damages are compensatory only that one who has suffered loss from a breach of 58 contract must take any reasonable steps that are available to him to mitigate the extent of the damage caused by the breach. He cannot claim to be compensated by the party in default for loss which is really due not to the breach but to his own failure to behave reasonably after the breach. "Thus, although the measure of damages for breach of a contract to deliver goods is ordinarily the difference between the contract price of the goods and the market price at the time when delivery should have been given, yet if the plaintiff might have mitigated his loss, for example, by any immediate purchase at a low price of goods to replace those not delivered, or by accepting a reasonable offer from the defendant to make good part of the loss, this is to be taken into account in assessing his damages (Brace v Calder [1895] 2 QB 253, Payzu Ltd v Saunders [1919] 2 KB 581). It is a question of fact in each case whether he has acted as a reasonable man might have been expected to act, and he is not required to risk his commercial reputation. Finlay (Fames) & Co Ltd v NV Kwik Hoo Tong HM [1929] 1 KB 400) or to embark 59 Upon complicated litigation (Pilkington v Wood [1953] Ch 770,) in order to mitigate his loss." (emphasis ours) [161] Likewise in Malaysian Rubber Development Corp Bhd v Glove Seal Sdn Bhd [1994] 3 MLJ 569 at page 578, C-D, Mohamed Dzaiddin SCJ, quoted with approval the judgment of Viscount Haldane LC in British Westinghouse Co v Underground Electric Rys [1912] AC 673 as follows: “The fundamental basis is thus compensation for pecuniary loss naturally flowing from the breach; but this first principle is qualified by a second, which imposes on a plaintiff the duty of taking all reasonable steps to mitigate the loss consequent on the breach, and debars him from claiming any part of the damage which is due to his neglect to take such steps. In the words of James L.J. in Dunkirk Colliery Co. v. Lever (1), "The person who has broken the contract is not to be exposed to additional cost by reason of the plaintiffs not doing what they ought to have done as reasonable men, and the plaintiffs not being under any obligation to do anything otherwise than in the ordinary course of business." As James L.J. indicates, this second principle does not impose on the plaintiff an obligation to take any step which a reasonable 60 and prudent man would not ordinarily take in the course of his business. But when in the course of his business he has taken action arising out of the transaction, which action has diminished his loss, the effect in actual diminution of the loss he has suffered may be taken into account even though there was no duty on him to act. ......I think that this decision illustrates a principle which has been recognised in other cases, that, provided the course taken to protect himself by the plaintiff in such an action was one which a reasonable and prudent person might in the ordinary conduct of business properly have taken, and in fact did take whether bound to or not, a jury or an arbitrator may property look at the whole of the facts and ascertain the result in estimating the quantum of damage.” (Emphasis ours) [162] In brief “… The plaintiff is not entitled to claim for loss which could have been prevented by steps which a prudent and reasonable person would have taken in the ordinary course of business …” [163] I agree with learned counsel for the Plaintiff that the Defendant’s argument is flawed as all that the principle of mitigation requires is that the Plaintiff cannot willy-nilly appoint a contractor to rectify the piping system at 61 an unreasonable cost, when a “prudent and reasonable developer in the ordinary course of business” could have been rectified it for less. [164] However, the Defendant’s proposition appears to impose an “additional duty” previously unknown in contract, upon the Plaintiff, in that the Plaintiff cannot recover pecuniary loss of rectification unless the Plaintiff “also proves” that the Plaintiff’s contracted piping system is better than the piping system installed in breach of the contract” (emphasis added) [165] With respect, that would require the Court rewriting the contract for the parties, a concept anathema to the freedom of contract and it has nothing to do with applying the principle of mitigation in the event of a breach of contract. [166] The party in breach of a contract cannot be heard to say that the promisee has no pecuniary claim, unless the promisee first proves that the performance in breach of the contract is less beneficial than contracted performance. [167] In this regard section 74 of the Contracts Act 1950 is clear where the rights of a party upon a breach of the contract is concerned. It reads as follows: “Compensation for loss or damage caused by breach of contract 62

(1) When a contract has been broken, the party who suffers by the breach is entitled to receive, from the party who has broken the contract, compensation for any loss or damage caused to him thereby, which naturally arose in the usual course of things from the breach, or which the parties knew, when they made the contract, to be likely to result from the breach of it.” [168] Illustration (f) of section 74 Contract Act 1950 is directly on point: “(f) A contracts to repair B’s house in a certain manner, and receives payment in advance. A repairs the house, but not according to contract. B is entitled to recover from A the cost of making the repairs conform to the contract.” [169] Section 74 of the Contracts Act 1950 is placed in Part VII of the Contracts Act 1950 under “OF THE CONSEQUENCES OF BREACH OF CONTRACT.” As this Court had found that there was a breach of the contract by the Defendant in installing the wrong piping configuration of a Common Header Configuration instead of a One to One Configuration, the Plaintiff is entitled (without more) to recover from the Defendant the costs to rectify the wrong configuration of piping. 63 [170] There is no obligation on the part of the Plaintiff to prove that the One-to-One Configuration would be more efficient in terms of costs compared to the Common Header Configuration. It does not even matter if the benefits of the One-to-One Configuration is more perceived than real. [171] Just the same if the One-to-One Configuration proves to be less efficient and more expensive in the long run. The Plaintiff had contracted for it and it is entitled to the costs to modify and rectify the system to that of a One-to-One System. The Defendant cannot sit in judgment over the Plaintiff’s free choice of what it had wanted in the Chiller Configuration System and this Court would not either. [172] To do so would move beyond the realm of Contract down the slippery slope of intervening in the commercial viability of the contracting party’s choice. This Court would resist every temptation to do so. Pronouncement [173] Therefore for all the 3 heads of Claim of the Plaintiff that this Court had allowed would be RM960,000.00 + RM51,007.42 + RM846,687.00 = RM 1,857,694.42. [174] The Court had earlier recorded a consent judgment with respect to the Defendant’s Counterclaim of RM2,242,430.81 of which the sum of 64 RM 1,618,572.31 was paid pursuant to the Adjudication Decision leaving balance of RM 623,858.50 for which a consent judgment was recorded. [175] Therefore the net balance to be paid by the Defendant to the Plaintiff is RM1,233,836.92. This decision would supersede the Adjudication Decision and this Court has taken into consideration the amount paid in the Adjudication Decision. [176] Interest shall be 5% per annum from date of Amended SoC to realization on the sum of RM1,233,836.92. [177] This Court had exercised its discretion and made each party bear its own costs. [178] The other prayers for declaratory reliefs by the Plaintiff were withdrawn and so struck out. Dated: 25 May 2018. - signed - Y.A. LEE SWEE SENG Judge Construction Court High Court, Kuala Lumpur 65 For the Plaintiff : S K Yeoh, Tan Yi Wen together with Yeoh Leng Yang (SK Yeoh & Partners) For the Defendant : Han Li Meng together with S T Fu (Messrs Christopher & Lee Ong)