Delicate Builders Sdn. Bhd. v Intiga Sdn. Bhd. (WA-12BC-11-09/2023)

This was an appeal by the appellant against the decision of the learned Sessions Court Judge (‘SCJ’) made on 25.8.2023 in –

allowing the respondent’s claim for the sum of RM172,719.62 with interest at the rate of 5% per annum on the said sum from the date of filing of the Writ of Summons until the date of full settlement and costs of RM6,000.00; and

dismissing the appellant’s counterclaim for the sum of RM360,691.17 with costs of RM1,000.00.

After having considered the Record of Appeal and the comprehensive written submissions of the parties and the Common Scott Schedule (encl. 22), including the oral clarification by the learned counsels who represented the parties, I allowed the appeal only in respect of subparagraph 1(a) above whereby the amount allowed following the appeal was RM103,769.22 with interest at the rate of 5% per annum from the date of filing of the Writ of Summons until full settlement.

The appellant is aggrieved by my decision. These are my full grounds of judgment (‘GoJ’) for purposes of the appellant’s appeal to the Court of Appeal. S/N tbsX0gXoVUq785x4xmX8A

The parties shall hereinafter be referred to as they were in the court below.

By the Letter of Award dated 3.8.2015 (‘LoA’), the plaintiff appointed the defendant as a sub-contractor for “Supply, Fabricate, Deliver & Installation of Hot Dipped Galvanised Framing System” (‘Work’) for the project known as ‘Cadangan Pembangunan 1 Blok Pejabat 40 Tingkat Termasuk 4 Tingkat Podium Perdagangan Dengan 6 Tingkat Tempat Letak Kereta Bawah Tanah Di Atas Lot 59, Sek 57, Jalan Raja Chulan, Kuala Lumpur untuk Tetuan Public Holdings Sdn Bhd’ (‘Project’) for the total sum of RM533,180.00.

The owner of the Project was Public Holdings Sdn Bhd and the main contractor was Daewoo Engineering & Construction Co Ltd (‘Daewoo’). The plaintiff was the sub-contractor for the Project.

The defendant commenced work and submitted the necessary progress claims to claim for work done during the material time.

There was a delay in the progress of works. The cause of the delay is the subject of dispute between the parties. S/N tbsX0gXoVUq785x4xmX8A

Due to the delay, the defendant was unable to complete the Work within the completion date as agreed in the LoA and the subsequent revision of the completion date.

Around April 2016, and with a view of expediting the Work, the defendant agreed to the plaintiff’s suggestion to bring in a third-party contractor, N.Y.C. Contracts Sdn. Bhd. (‘NYC’) to do part of the work for the East Elevation and to take over the work for the North Elevation. The defendant contended that its agreement was subject to three conditions which will be elaborated later in this judgment.

The Work was finally completed in July 2016. The defendant submitted its Final Progress Claim dated 25.7.2016 to the plaintiff to claim for the final work done and requested the plaintiff to issue the Final Account.

However, according to the defendant, even until five years later, the Final Account was not prepared or finalised by the plaintiff despite several reminders being given.

On 25.6.2021, the defendant issued a Letter of Demand to the plaintiff claiming for the sum of RM360,691.17 premised upon the defendant’s Final Progress Claim.

The defendant then proceeded to issue the Payment Claim to the plaintiff pursuant to s 5 of the Construction Industry Payment and S/N tbsX0gXoVUq785x4xmX8A Adjudication Act 2012 (‘CIPAA’) claiming for the aforesaid sum of RM360,691.17. In the Payment Response, and for the first time, the plaintiff produced the Statement of Final Account (‘SoFA’) and Certificate of Payment, both dated 20.5.2021 wherein the Final Adjusted Contract Sum or Total Value of Work Done was RM607,376.10, backcharges were in the sum of RM432,935.78 and the amount owed by the defendant to the plaintiff was

While the CIPAA proceeding was ongoing, the plaintiff filed the instant suit against the defendant.

All appeals to the High Court shall be by way of re-hearing (see O. 55, r. 2 of the RC 2012 and s 29 of the Courts of Judicature Act 1964 (Revised 1972) [Act 91]).

In Muhammad Shahir Bin Khalid And 2 Ors. v Ko Kang Min & Anor [2025] AMEJ 1247, this Court set out the law on appellate interference in these words: “[31] In Nor Azlina Abdul Aziz v. Expert Project Management Sdn Bhd [2017] 5 CLJ 58, the Court of Appeal illuminated on the occasions when S/N tbsX0gXoVUq785x4xmX8A appellate interference is warranted in the following passage from the judgment: “[20] … these occasions have been well set out in numerous cases. Some of these occasions are:

where the trial judge took into account irrelevant considerations and failed to give due weight to relevant considerations (see Director of Forestry, Sabah & Anor v. Mau Kam Tong & Ors And Another Appeal [2010] 3 CLJ 377; [2010] 3 MLJ 509);

where there was no proper evaluation of the evidence by the trial judge (see Lee Nyan Hon & Brothers Sdn Bhd v. Metro Charm Sdn Bhd [2009] 6 CLJ 626; [2009] 6 MLJ 1);

where the decision arrived at by the trial court was without judicial appreciation of the evidence (see Gan Yook Chin & Anor v. Lee Ing Chin & Ors [2004] 4 CLJ 309; [2005] 2 MLJ 1); S/N tbsX0gXoVUq785x4xmX8A

where a trial court has so fundamentally misdirected itself, that no reasonable court which had properly directed itself and asked the correct questions, would have arrived at the same conclusion (see Raja Lob Sharuddin Raja Ahmad Terzali & Ors v. Sri Seltra Sdn Bhd [2008] 2 CLJ 284; [2008] 2 MLJ 87);

where the trial judge was plainly wrong in arriving at his decision (see Lee Ing Chin & Ors v. Gan Yook Chin & Anor [2003] 2 CLJ 19; [2003] 2 MLJ 97);

where a trial judge had so manifestly failed to derive proper benefit from the undoubted advantage of seeing and hearing witnesses at the trial, and in reaching his conclusion, has not properly analysed the entirety of the evidence which was given before him (see First Count Sdn Bhd v. Wang Yew Logging & Plantation Sdn Bhd [2013] 1 LNS 625; [2013] 4 MLJ 693 which followed the Privy Council case of Choo Kok Beng v. Choo Kok Hoe & Ors [1984] 1 LNS 40; [1984] 2 MLJ 165); and S/N tbsX0gXoVUq785x4xmX8A

where the judgment is based upon a wrong premise of fact or of law (see Perembun

(M) Sdn Bhd v. Conlay Construction Sdn Bhd [2012] 1 LNS 1416; [2012] 4 MLJ 149).”. [32] In Zone Nine Sdn Bhd (previously known as GBH Ceramics Sdn Bhd) v Kien Wai Plumbing Construction [2024] MLJU 2399, I had referred to two judgments of the apex court which had enlightened on the legal principles of appellate intervention as follows: “[24] The learned counsel for the Defendant, Mr. Jeffry Wong cited the decision of the Federal Court in Gan Yook Chin & Anor v Lee Ing Chin & Ors [2004] 4 CLJ 309 for the central feature of appellate intervention, which is to determine whether the trial court had arrived at its finding correctly on the basis of the relevant law and established evidence. A decision by the trial court which was arrived at without judicial appreciation of the evidence may be set aside on appeal. In determining whether the trial judge’s appreciation of the evidence is sufficient or otherwise, the S/N tbsX0gXoVUq785x4xmX8A process of evaluation of the evidence by the trial judge i.e. the assessment of the evidence, the weight that was given to the evidence and the reasons for accepting or rejecting the whole or any part of the evidence, must be examined. … [26] Gan Yook Chin’s case was among the many case authorities discussed in Ng Hoo Kui & Anor v Wendy Tan Lee Peng (administratrix for the estate of Tan Ewe Kwang, deceased) & Ors [2020] 12 MLJ 67 (FC). It is settled law that an appellate court will not intervene with the decision of a trial court unless the trial court is shown to be plainly wrong in arriving at its decision. If, in arriving at the decision, it could not reasonably be explained or justified and the decision of the trial court is one which no reasonable judge could have reached, the decision is susceptible to appellate intervention. The plainly wrong test is not intended to be used by the appellate court as a means to substitute its own decision for that of the trial court on S/N tbsX0gXoVUq785x4xmX8A the facts [see pp 81 - 96 of the law report, especially paragraphs 62 - 78; see too, among others, Azman bin Mahmood & Anor v SJ Securities Sdn Bhd [2012] 6 MLJ 1 (FC, at paragraphs 24 and 25, p 12), Dream Property Sdn Bhd v Atlas Housing Sdn Bhd [2015] 2 MLJ 441 (FC, at paragraph 60, p 464) and MMC Oil & Gas Engineering Sdn Bhd v Tan Bock Kwee & Sons Sdn Bhd [2016] 2 MLJ 428 (CA, at paragraph 17, p 437)].”.

In determining all the grounds of appeal, I was guided by the above-mentioned legal principles.

The Memorandum of Appeal contained 28 paragraphs consisting of four main grounds of appeal in respect of the plaintiff’s claim and one ground of appeal as regards the defendant’s counterclaim, namely whether the SCJ had erred in law and/ or in fact in her determination of the issues or in failing to consider the following:

Whether the delay to the completion of the Project is caused by the defendant; S/N tbsX0gXoVUq785x4xmX8A

Whether the plaintiff is entitled to back charge the sum of –

RM131,440.00 on the defendant for the appointment of NYC;

(ii) RM204,526.98 for scaffolding; and

(iii) RM96,968.80 for overtime for Stone Installer; and

Whether the defendant is entitled to the sum of RM360,691.17 being the balance amount for work done for the Project.

Each ground of appeal shall be discussed in turn below. Analysis & Findings of the Court 1st Ground: Whether the delay to the completion of the Project is caused by the defendant

The SCJ’s analysis and findings on the issue of delay is re-produced below: “[19] Seterusnya, Defendan telah menerima dan bersetuju dengan terma dalam Surat Award supaya Defendan menyiapkan skop kerja mereka pada S/N tbsX0gXoVUq785x4xmX8A

31.10.2015. Namun Defendan telah gagal untuk menyiapkan kerja pada tarikh tersebut dan juga tidak membuat apa-apa permohonan rasmi untuk lanjutan masa bagi menyiapkan kerja mereka. Keterangan oleh saksi Defendan semasa perbicaraan juga menunjukkan bahawa setakat 10.5.2016, Defendan masih belum menyempurnakan kerja-kerja mereka. [20] Mahkamah mengambil maklum bahawa pihak-pihak adalah terikat dengan perjanjian yang telah mereka persetujui. Oleh itu mahkamah berpendapat bahawa walau apa pun tarikh sebenar bagi permulaan dan penyiapan Projek, kegagalan oleh Defendan untuk mematuhi tarikh yang dinyatakan dalam kontrak merupakan suatu kemungkiran oleh Defendan. [21] Seterusnya, mahkamah mendapati bahawa sebab utama bagi kelewatan Defendan menyiapkan tugasan mereka adalah disebabkan oleh kekurangan tenaga kerja. Defendan telah gagal menambah jumlah pekerjanya walaupun telah diingatkan beberapa kali oleh Plaintif. Dalam hal ini juga, Defendan adalah terikat dengan terma-terma dalam Surat Award mereka yang menghendaki Defendan menyediakan pekerja yang mencukupi bagi menyiapkan kerja-kerja dalam tempoh yang ditetapkan. S/N tbsX0gXoVUq785x4xmX8A [22] Mahkamah telah mendengar alasan-alasan Defendan bagi kelewatan mereka tetapi mahkamah mendapati bahawa alasan-alasan ini tidak diplidkan oleh Defendan dalam pliding mereka dan hanya dibangkitkan semasa perbicaraan berlangsung. Oleh itu, mahkamah berpendapat bahawa alasan-alasan ini merupakan suatu afterthought oleh Defendan.”.

The defendant asserted that the completion period for the Work under the LoA was four months from the commencement date on 15.7.2015. However, the Project site was not ready for the defendant to commence work even on 20.1.2016. This was confirmed by PW3 in reference to the plaintiff’s Schedule of Work dated 14.1.2016.

From July 2015 until January 2016, there were no evidence the plaintiff has notified the defendant to commence work or to complain about any delay in the defendant’s work progress or to increase the number of workers. The plaintiff started complaining only after the defendant had commenced work in February 2016. As of 9.4.2016, the Defendant was still not in position to complete the Work as the site was not completely handed over to the defendant.

Before the defendant could commence the Work, Daewoo had complained to the Plaintiff on 22.1.2016 regarding the high rental S/N tbsX0gXoVUq785x4xmX8A cost for scaffoldings as these were left without any specific activity or use.

The defendant contended that the LoA does not stipulate the number of workers required to be provided by the defendant at the site. Nevertheless, the defendant had increased the work force in accordance with the plaintiff’s instruction, which was due to the plaintiff’s own delay of the works for Daewoo. It was the plaintiff’s delay that caused the delay in the commencement and completion of the defendant’s Work.

It was further submitted that, if the defendant had truly delayed the progress of work, the plaintiff would have claimed liquidated and ascertained damages (‘LAD’) against the defendant as per the LoA. However, the plaintiff did not do so.

I had considered the Record of Appeal and submissions by the parties and the following were my findings.

Clause 2.1 of the LoA provides that the date of commencement of works is 15.7.2015 and the date of completion is 30.10.2015. Clearly, the completion period for the Work was only four months. This is indicative that the Work was expected to be carried out and completed relatively fast. It can further be implied that time was of the essence. S/N tbsX0gXoVUq785x4xmX8A

In Damansara Realty Bhd v Bungsar Hill Holdings Sdn Bhd & Anor [2011] 6 MLJ 464, the court held that: “[31] We also agree with the finding of the courts below that the assertion that the plaintiff was entitled to commence development at a time of its choice or at its own leisurely pace and the argument that the plaintiff had the right to a further three year extension upon the expiration of the fifteen year period to be wholly untenable. Indeed, it would be commercially sensible to deduce that the parties had intended for the development process to be completed (or at least substantially completed) by the end of the fifteen year period. Here, nothing to that effect has been done. It is far from completion. In fact, it has not even commenced. And incidentally, it is trite that there is a prima facie acceptance that in commercial contracts, time would be of the essence (see Bunge Corpn v Tradax SA [1981] 2 All ER 513; Himatsing & Co v Joitaram [1970] 2 MLJ 246). That rule, in our view, applies with even greater force in construction contracts. It can of course be rebutted if the parties indicate otherwise by words or conduct, but for a starting point, it must be assumed that the parties intended for time to be of the essence. It would not make much commercial sense if otherwise.” S/N tbsX0gXoVUq785x4xmX8A (emphasis added).

Clause 2.2 of the LoA stipulates that: “INTIGA reserved the rights to engage third party to do partly of this Sub Contract Works in order to catch up the targeted completion date. No claim for compensation, loss of profit, expenses or monies related to such action taken will be entertained.”.

The evidence shows that, even though the plaintiff did not, at the material time, insist that the Work must be completed on the contractual completion date of 31.10.2015, nevertheless many correspondences were sent by the plaintiff to the defendant between the months of January 2016 to May 2016 to put the defendant on notice that the Work was delayed due to the lack of skilled workers and failure to deliver materials on time to the site and for the Work to be expedited.

The correspondences are as follows:

e-mail dated 22.1.2016 from Daewoo to the plaintiff that Daewoo would incur idling cost for scaffolding material of around RM30,000.00 to RM40,000.00 for the requested additional scaffolding. According to the plaintiff, Daewoo had made reference to the scaffolding required as a result of the delays caused by the defendant for failure to deliver the S/N tbsX0gXoVUq785x4xmX8A materials to the site and to complete the metal framing works within time and this caused Daewoo to incur additional scaffolding costs. As a result of this e-mail, the plaintiff started to insist that the defendant accelerate the Work;

e-mail dated 20.2.2016 from the plaintiff to the defendant attaching the Non-Conformance Report dated 11.2.2016;

e-mail dated 24.2.2016 from the plaintiff to the defendant that the defendant lacked man power and there was a need to increase the same. The plaintiff reserved the right to impose a fine or back charges;

e-mail dated 4.3.2016 from the plaintiff to the defendant that only six workers were at the site and the work progress was slow. The plaintiff asked the defendant to increase the work force to 20 workers and reserved its right to impose LAD;

e-mail dated 1.4.2016 from the plaintiff to the defendant to station full time employees at the site for a minimum of 8 hours per day from 3.00 p.m. to 10.00 p.m.;

letter dated 9.4.2016 from Daewoo to the plaintiff to increase manpower, expedite the delivery of materials, works were to be carried out on all four facades simultaneously and three more teams were required for frame and stone installation. S/N tbsX0gXoVUq785x4xmX8A A schedule was attached for manpower and delivery of materials by 13.4.2016;

Site Memo dated 10.4.2016 from the plaintiff to the defendant that the Site Memo shall constitute as part of the Conditions of the Contract. DW5 had signed the Site Memo. The Site Memo provides –

that the delay was caused by the defendant as the materials were unable to reach the site on the agreed date of 10.4.2016;

(ii) that the defendant was to increase the skilled site workers from 20 to 35 by 12.4.2016;

(iii) for a mitigation plan to increase the defendant’s work force to complete the Work;

(iv) that the plaintiff reserves the right to appoint third parties to complete the Work; and

that any time and cost implications will be borne by the defendant;

e-mail dated 12.4.2016 from Daewoo to the plaintiff that “Subframing works for East and North area: no progress on S/N tbsX0gXoVUq785x4xmX8A that area. Seriously affecting Daewoo’s overall work schedule.”;

e-mail from the defendant to the plaintiff that it will have four teams to complete the Work by 5.5.2016. However, during cross-examination, DW5 conceded that the defendant had only delivered part of the material as at 10.5.2016 and hence, it was not able to complete the Work by 5.5.2016; and

Site Memo dated 12.5.2016 from the plaintiff to the defendant with a note that the document shall constitute as part of the Conditions of Contract, which was duly acknowledged by the defendant. The Site Memo states that during the site meeting on 10.5.2016, the defendant had agreed to complete the metal framing for the South Elevation on or before 13.5.2016 and the plaintiff will not entertain any excuse for any delay. The defendant’s staff, Fadhil had acknowledged that “South Area Elevation to be completed on 13.5.2016”, however, it was completed only in July 2016.

The Defendant had conceded to the appointment of NYC in order to accelerate the Work and even going on the basis of the Work Programme Schedule as submitted by the defendant, the defendant did not complete the Framing Installation work by 4.3.2016. S/N tbsX0gXoVUq785x4xmX8A

On the issue of extension of time (‘EoT’), there is no express provision on an application for EoT in the LoA. In the case which was cited by the plaintiff, namely, Tan Chang Yong Holdings Sdn Bhd v Corporate Sunrise Sdn Bhd [2017] MLJU 1734, the court held that as there was no provision for EoT in the agreement, it has to be implied that a reasonable time has to be granted for additional work done. Hnece, the judgment was in the context where there were instructions for variation works to be carried out, which is not the case here.

In its suit, the plaintiff has chosen not to claim for LAD against the defendant and instead claimed for back charges. It is is well within the plaintiff’s right to do so.

In paragraph 11.2 of the Defence, the defendant pleaded that: “11.2 oleh sebab kelewatan yang diakibatkan oleh pihak Plaintif, Defendan terpaksa mempercepatkan kerja-kerja kontrak tersebut untuk mengelakkan kelewatan terhadap penyiapan kerja bagi Projek tersebut secara keseluruhannya. Dengan ini, Defendan menafikan segala alegasi bahawa Defendan gagal untuk menyiapkan kerja-kerja Projek tersebut dalam masa yang diperuntukkan. Sekiranya terdapat apa-apa kelewatan dalam penyiapan kerja-kerja tersebut bagi Projek S/N tbsX0gXoVUq785x4xmX8A tersebut, ini adalah diakibatkan oleh Plaintif dan bukannya Defendan. Ini juga adalah dalam pengetahuan Plaintif.”.

Clearly, the defendant did not plead the facts as to the reasons for the delay in the Work, including the alleged acts of prevention by the plaintiff i.e. constant variation of shop drawing and cut list and obstructions on site during the progress of the works. It was too late in the day for the defendant to raise these matters in court as the parties and the contract administrator would not be able to assess the defendant’s allegations as the Project has since been completed.

In the final analysis, the SCJ did not err in her finding that the main reason for the delay by the defendant in completing the Work was due to a lack of manpower and that the defendant did not plead the facts as to the reasons for its delay in the Defence.

Therefore, the question posed in the 1st Ground was answered in the affirmative. 2nd Ground: Whether the plaintiff is entitled to back charge the sum of RM131,440.00 on the defendant for the appointment of NYC

In the Defence, the defendant pleaded that: S/N tbsX0gXoVUq785x4xmX8A “…

11.3. memandangkan Plaintif berniat untuk menyiapkan kerja dalam masa yang diperuntukkan, Plaintif telah cadangkan kepada Defendan untuk melibatkan pihak ketiga, iaitu NYC untuk membantu Defendan mempercepatkan kerja-kerja tersebut untuk Projek tersebut.

11.4. Defendan, secara lisan, bersetuju terhadap cadangan Plaintif atas syarat bahawa:

11.4.1. untuk pandangan Timur, tuntutan NYC akan dibayar oleh Defendan dan bukannya melalui potongan secara langsung (‘direct deduction’) oleh Plaintif;

11.4.2. untuk pandangan Timur, kerja NYC adalah terhad kepada pembekalan tenaga kerja (‘supply of labour’) sahaja; dan

11.4.3. kerja-kerja untuk pandangan Utara untuk projek tersebut adalah diambil alih oleh NYC dimana NYC akan melaksanakan kerja-kerja dan Plaintif akan membayar NYC untuk kerja-kerja untuk pandangan Utara yang dilaksanakan. S/N tbsX0gXoVUq785x4xmX8A

11.5. Berasaskan di atas, Defendan tidak pernah membuat apa-apa tuntutan untuk kerja-kerja tersebut untuk pandangan Utara kerana kerja-kerja pandangan utara tersebut telah diambil alih oleh NYC dan pembayaran untuk pandangan tersebut akan dibayar oleh Plaintif kepada NYC secara langsung. Oleh yang demikian, Plaintif adalah tidak berhak untuk caj balik (‘back charge’) Defendan bagi kerja-kerja untuk pandangan Utara.”.

As regards this claim, the SCJ reasoned as follows: “[23] Mahkamah seterusnya mengambil maklum bahawa Plaintif telah melantik kontraktor pihak ketiga untuk mempercepatkan penyiapan skop kerja Defendan. Dalam hal ini, Defendan tidak membuat apa-apa bantahan terhadap pelantikan kontraktor pihak ketiga, malahan telah memaklumkan akan membuat pembayaran secara terus kepada kontraktor pihak ketiga tersebut. Susulan daripada itu, sewajarnya Defendan membuat bayaran sebagaimana yang dituntut oleh Plaintif bagi kerja-kerja Defendan yang telah diselesaikan oleh kontraktor pihak ketiga.”. S/N tbsX0gXoVUq785x4xmX8A

The plaintiff contended that the SCJ did not err in any manner for the following reasons:

the plaintiff has the right to engage third parties, including NYC, pursuant to Clauses 2.2, 4.2, 8.3 and 8.4 of the LoA;

it was not disputed that NYC was appointed to assist the defendant with the works in the East Elevation and to undertake the works for the defendant for the entire North

the defendant did not adduce any evidence that the North Elevation was excluded from the defendant’s scope of work pursuant to the LoA;

the requisite documents had been sent to the defendant, namely, by e-mail dated 2.6.2016 where NYC's claim was attached. In the e-mail dated 2.6.2016 from the defendant to the plaintiff on the same date, the defendant said “The claim for NYC is not agreeable. As discussed with Mr. Wong previously, NYC’s claim shall be paid by Delicate, not direct deduction from Intiga.”. The only issue the defendant had with the plaintiff was that the defendant wanted to pay NYC directly and this was established during the cross-examination of DW5; and S/N tbsX0gXoVUq785x4xmX8A

the sum of RM131,440.00, inclusive of Goods and Services Tax (‘GST’), was paid to NYC (see the Statement of Accounts which was signed by the Plaintiff and NYC). The defendant has no basis to dispute the plaintiff’s claim for this amount.

On the other hand, the defendant asserted that the SCJ had erred on the following grounds:

the SCJ took a simplistic approach and failed to take into account the three conditions that were agreed between the parties as follows:

NYC's East Elevation claim will be paid directly by the defendant to NYC and not to be paid by the plaintiff;

(ii) NYC's East Elevation claim is limited to the supply of labour only; and

(iii) the North Elevation work is omitted from the LoA and will be taken over completely by NYC and to be paid by the plaintiff, not the defendant;

the total sum of back charges for NYC is found in the defendant’s Final Certificate of Payment dated 20.5.2021; S/N tbsX0gXoVUq785x4xmX8A

the back charge is based on NYC’s SoFA dated 19.7.2017;

there is no evidence to prove –

that NYC's Progress Claim No. 3 was given to the defendant;

(ii) that actual payment was made by the plaintiff to NYC. NYC's SoFA was never approved by the plaintiff's managing director; and

(iii) the sum claimed;

evidence proving the conditions for the East Elevation are the plaintiff's e-mail to the defendant on NYC’s first claim which was immediately denied by defendant and there was no reply from the plaintiff. PW-4 admitted that East Elevation is limited to labour only. NYC’s East Elevation claim is more than for labour costs and should not be allowed in any event; and

evidence proving the omission of the North Elevation are as follows:

no complete cut list for the North Elevation was given to the defendant; S/N tbsX0gXoVUq785x4xmX8A

(ii) the e-mail dated 16.6.2016 from the defendant to the plaintiff stating that the North Elevation is omitted from the defendant’s work;

(iii) the Plaintiff’s Certificate of Payment No. 5 which states North Elevation is by others;

(iv) the Defendant’s Final Progress Claim did not include the North Elevation; and

(iv) the Plaintiff's admission in its submission that NYC was appointed to assist the Defendant and to undertake the entire work for the North Elevation.

In my opinion, the provision which allows the appointment of NYC in the circumstances of this case was Clause 2.2 of the LoA as referred to earlier.

There was no dispute that the Work for the South and West Elevations were completed while for the North and East Elevations, the Work was delayed, and hence, NYC was appointed to assist the defendant with the Work in the East Elevation and to undertake the Work for the defendant for the entire North Elevation.

Based on the SCJ’s judgment, evidently, she did not consider the defendant’s pleaded case in para 11.4 of the Defence regarding S/N tbsX0gXoVUq785x4xmX8A the three conditions in relation to the East and North Elevations, particularly that NVY’s East Elevation claim is limited to the supply of labour only.

Having given careful consideration to the evidence adduced at the trial, it was my finding that the plaintiff was entitled to back charge for NYC’s East Elevation claim for the supply of labour only.

On the date when the decision was pronounced, I sought the counsels’ assistance to check the documents in order to calculate the exact amount for the aforesaid supply of labour. After a short recess, the plaintiff’s counsel submitted that the calculation is as follows: Amount awarded by the SCJ for the Plaintiff’s claim 172,719.62 Total claim by NYC to the Plaintiff – 131,440.00 41,279.62 * Supply of labour for East Elevation (backcharge claim by the Plaintiff) + 62,489.60 103,769.22 *(refer items 1(a) and (b) at p 731, encl. 8 i.e. RM16,633.60 + RM45,856.00) S/N tbsX0gXoVUq785x4xmX8A

The appeal was therefore allowed only in respect of the SCJ’s decision in allowing the plaintiff’s claim against the defendant for the sum of RM172,719.62 whereby the amount which was allowed following this appeal was RM103,769.22 with interest at the rate of 5% per annum from the date of filing of the Writ until full settlement. 3rd Ground: Whether the plaintiff is entitled to back charge the sum of RM204,526.98 for scaffolding

There is no reasoning by the SCJ in her GoJ on this issue. Hence, the task fell on this Court to determine whether the plaintiff was entitled to the claim for back charge for scaffolding.

As no reasoning was provided by the SCJ, the defendant’s submission was assessed on the basis that the SCJ failed to consider the following:

the total sum of back charges for scaffolding is in the plaintiff’s Certificate of Payment to the defendant dated 20.05.2021. Clause 5.7 of the LoA states that: “Scaffolding erected by INTIGA, but working platform to be placed by Subcontractor (supplied by INTIGA).”. S/N tbsX0gXoVUq785x4xmX8A i.e. scaffolding is the Plaintiff's responsibility. PW4 had testified that the defendant bears no responsibility towards the scaffolding.

Daewoo’s e-mail on 22.1.2016 suggests that there were delays caused by other parties as during that time, the defendant was still unable to commence work. The Plaintiff had admitted that there were delays caused by others;

the plaintiff did not adduce any evidence to prove the calculation of the amount of back charge imposed on the defendant for scaffolding. Scaffolding was also used by other sub-contractors such as the plaster and curtain wall sub-contractors. The plaintiff imposed about 80% of the scaffolding back charge by Daewoo onto the defendant. This was unreasonable and unjustifiable; and

there was no evidence to prove of any prior notice of claim for scaffolding from the plaintiff to the defendant, the calculation for the back charge for scaffolding and that the plaintiff paid Daewoo the sum which was subsequently claimed against the defendant.

In my considered view, it necessarily follows from my findings in relation to the 1st Ground that the answer to the 3rd Ground is in the affirmative. The plaintiff has proven, on a balance of probabilities, its entitlement to this claim on the following grounds: S/N tbsX0gXoVUq785x4xmX8A

the back charge claimed by the plaintiff against the defendant was as a result of the delay caused by the defendant due to the lack of skilled workers and for failure to deliver the materials on time as discussed under the 1st Ground, rather than for the costs of scaffolding per se;

in the e-mail dated 24.2.2016 and Site Memo dated 10.4.2016, both from the plaintiff to the defendant, the plaintiff had given sufficient notice to the defendant of its right to claim for any back charges arising from the delay caused by the defendant. The defendant was aware that Daewoo would be back charging the plaintiff for the scaffolding; and

the total sum back charged by Daewoo to the plaintiff for scaffolding was RM251,505.00 as evidenced by the Statement of Account and Payment Certificate issued by Daewoo to the plaintiff. The amount which was back charged by the plaintiff to the defendant was RM204,526.98. 4th Ground: Whether the plaintiff is entitled to back charge the sum of RM96,968.80 to the defendant for overtime for Stone

The SCJ similarly did not provide any justification in the GoJ. Hence, the defendant’s submission was again assessed on the basis that the SCJ failed to consider the following: S/N tbsX0gXoVUq785x4xmX8A

the total sum of back charges for the Stone Installer works is in the plaintiff’s Certificate of Payment to the defendant dated 20.5.2021 with the supporting document at pp 825 - 827, encl. 8. However, this supporting document is not supported by any evidence as admitted by PW4. It is merely a tabulation of data;

there is a need for corroboration as the evidence by PW2, the Managing Director of Cosmic Granite & Marble Sdn Bhd (‘Çosmic’) was not credible as he often failed to recall the facts of the case;

there was no documentary evidence to prove that the plaintiff has paid the Stone Installer and incurred such loss;

the back charge by the Stone Installer was unlawful as it has included the work done for North Elevation, which was omitted from the defendant’s scope of work; and

the defendant was never notified of the need for the Stone Installer to accelerate their works and therefore, claimed for overtime. The details of the alleged back charge were not notified to the defendant from 2016 until 2021. It was disclosed for the first time when the plaintiff issued the Payment Response in the CIPAA proceedings. S/N tbsX0gXoVUq785x4xmX8A

Similar to my findings in respect of the 3rd Ground, the plaintiff has proven, on a balance of probabilities, its entitlement to this claim for the following reasons:

the back charge claimed by the plaintiff against the defendant was as a result of the delay caused by the defendant due to the lack of skilled workers and for failure to deliver the materials on time as discussed under the 1st Ground. As a result, Cosmic had to escalate its job scope where their workers had to work until midnight to install the stones due to the delay on the part of the defendant in respect of the Work;

PW2 had testified under oath that Cosmic was paid the sum of RM96,986.00; and

the defendant did not adduce any evidence to show that both parties had agreed to omit the North Elevation from the scope of work under the LoA. As mentioned previously, due to the defendant’s delay in carrying out the Work, the plaintiff and the defendant agreed for NYC to be appointed to assist the defendant with the Work in the East Elevation and to undertake the Work for the defendant for the entire North Elevation. This does not equate to the parties having agreed to omit or carve out the defendant’s Work for the North Elevation. S/N tbsX0gXoVUq785x4xmX8A

The 4th Ground was therefore answered in the affirmative. 5th Ground: Whether the Defendant is entitled to the sum of RM360,691.17 being the balance amount for work done for the Project

In the Defence, the defendant pleaded that: “15. Perenggan 33 Pernyataan Tuntutan Plaintif dinafikan secara tegas. Defendan selanjutnya mengatakan bahawa butir-butir penuh tuntutan Defendan untuk jumlah sebanyak RM360,691.17 adalah dalam pengetahuan Plaintif dimana butir-butir ringkas akan diterangkan dibawah.”.

The SCJ dismissed the counterclaim for the following reason: “[26] Bagi tuntutan balas Defendan pula, Defendan tidak mengemukakan bukti dokumentari bagi menyokong tuntutan balas mereka seperti invois-invois, resit-resit atau nota-nota penghantaran bagi jumlah yang dituntut oleh Defendan. Tambahan lagi, kerja-kerja Defendan telah disempurnakan oleh kontraktor pihak ketiga, maka mahkamah berpendapat bahawa Defendan tidak berhak untuk membuat tuntutan tersebut atas keingkaran S/N tbsX0gXoVUq785x4xmX8A Defendan untuk mematuhi tempoh masa yang ditetapkan untuk menyiapkan kerja-kerja mereka.”.

The defendant submitted at length that the SCJ had erred in her decision for the following reasons:

the defendant had submitted the supporting documents to the plaintiff way back in 2017 and the plaintiff never raised any queries or dispute on these documents. In fact, the plaintiff made payments, albeit partially, on the Progress Claims. When questioned by the Court, the defendant’s counsel explained that the supporting documents were drawings and photographs and not invoices, delivery orders and receipts because this was a construction claim and not a goods sold and delivered claim. As the plaintiff had made partial payments on the Progress Claims in the past, there was no necessity for invoices and delivery orders to be produced at the trial. The Plaintiff should be estopped from insisting on the production of invoices, delivery orders and receipts as supporting documents for the defendant’s Final

the Plaintiff has admitted that NYC was only appointed to undertake the work for North Elevation and to assist with labour for the East Elevation work. At the material time, the entire sub-contract work was still being carried out by the defendant and therefore, the defendant was entitled to the S/N tbsX0gXoVUq785x4xmX8A sum of RM360,691.17 being the balance amount which was due and owing by the plaintiff to the defendant;

the defendant had requested for the SoFA and Certificate of Payment between 2016 and 2021, but the plaintiff chose to ignore this request while not disputing the defendant’s Final Progress Claim submitted in 2016. PW4 and DW5 agreed to have PW4’s final account proposal by 20.12.2019. However, when DW5 requested for it, PW4 failed to reply. The plaintiff never mentioned its intention to back charge to the defendant and merely requested for more details, which were duly provided by the defendant; and

the SCJ failed to take into consideration that the SoFA and Certificate of Payment were created by the plaintiff with mala fide intention as a retaliation of the Payment Claim issued by the defendant pursuant to the CIPAA and as an attempt to defeat the defendant’s counterclaim.

The plaintiff argued that there was no error in the SCJ’s decision because during cross-examination, DW5 conceded that the defendant’s claims were not substantiated with documentation such as invoices and delivery order. DW5 also testified that the variation orders were given after the Project was completed. Hence, it was not possible to undertake a joint inspection. S/N tbsX0gXoVUq785x4xmX8A

The burden to prove the counterclaim, on a balance of probabilities, lies on the defendant.

Although in the Defence, the defendant pleaded that the “butir-butir ringkas akan diterangkan di bawah”, a perusal of the other parts of the Defence reveals that no details pertaining to the counterclaim were ever pleaded.

The documents to support the defendant’s counterclaim consist of the following:

“Payment Claim” dated 25.7.2016 for the period from 1.7.2016 to 31.7.2016 which shows the following: Contract Value (excluding GST) 703,888.85 less Retention Sum 35,194.44 Amounts previously paid 295,294.33 Claimable amount 373,400.08 GST@ 6% 22,404.00 Total claimable amount 395,804.08 The supporting documents annexed to the Payment Claim were stated to be “6 (photos) + 51 (calculation)”. S/N tbsX0gXoVUq785x4xmX8A

“Progress Claim No. 8” with the “Claim Detail Description”, “Contract Value”, “Material On Site” and “Work Done” and stating the following: Contract Value (excluding GST) 703,888.85 Work Done 372,944.43 Add GST@ 6% 22,376.67 Total 395,321.09

an e-mail from the defendant to the plaintiff dated 29.7.2016 enclosing the defendant’s final claim as per the plaintiff’s request;

an e-mail from the defendant to the plaintiff dated 20.10.2016 enclosing the “breakdown of V.O. Lump Sum price and indicative drawings showing V.O. location” as per the plaintiff’s request;

an e-mail from the plaintiff to the defendant dated 21.10.2016 requesting the defendant to “submit again a original final claim” for the plaintiff’s action;

an e-mail from the defendant to the plaintiff dated 23.1.2017 stating the number of bolts for the South, East and West Elevations and enclosing the drawing for bolt quantity calculation; S/N tbsX0gXoVUq785x4xmX8A

an e-mail from the defendant to the plaintiff dated 14.11.2019 referring to the latest discussion between the parties, enclosing the measurement for mega columns and stating that the defendant is looking forward to the plaintiff’s final account soon;

an e-mail from the defendant to the plaintiff dated 3.12.2019 referring to the tele-conversation between the parties on the same date and that the defendant has agreed to have the plaintiff’s final account proposal ready by 20.12.2019; and

messages via WhatsApp between the parties for the period from 1.3.2017 to 7.5.2021 where the defendant was urging the plaintiff to issue the final account while the plaintiff responded that the defendant’s claim was for Progress Claim No. 8 and not a final claim.

The SCJ held that the defendant did not discharge the burden of proving its counterclaim. Upon reviewing the Record of Appeal, I agreed with the plaintiff’s submission that the SCJ was not plainly wrong in her conclusion. My reasons are as follows:

the amount claimed by the defendant was for original works and variation works. However, the particulars of these works were not pleaded in the Defence;

Clauses 1.1, 1.2, 1.3 and 1.6 of the LoA provide that: S/N tbsX0gXoVUq785x4xmX8A “1.1 The scope of work shall include of supply, delivery and installation of hot dipped galvanised framing including all necessary fixing accessories to wall, beams & columns (Podium area) to receive granite (by Other) as per approved sample, Architect & Facade Consultant's specification, shop drawings and Bills of Quantities for the whole Sub-Contract Works throughout the specific construction period. All materials and workmanship shall comply with the technical specification.

1.2 The Subcontractor's rates are deemed to have included all the specification and contract requirements for the execution of the above Works including preliminaries, mobilisation, and de-mobilisation cost. All the prices shall be deemed to include all import duties, permit fees, freight charges, taxes, all insurance involved in transporting of materials, unload materials, outstation cost, tariff, royalties, Custom Prohibitive Order (Import) and any other Government tax. Sub-contractor's price is not subject to adjustment due to price fluctuation of labour, materials, machineries, fuel, interest, S/N tbsX0gXoVUq785x4xmX8A currency, etc. The detail rates and scope of works are as described in the attached Bills of Quantities (Appendix I).

1.3 The Sub-contract sum shall cover of all relevant costs (Materials, labour, tools, equipment, etc) for the execution and completion for the Sub-contract Works. No claim shall be entertained for any standing time, idling time, Public Holiday and Overtime. …

1.6 The attached Bills of Quantity are provisional and the final Sub Contract Sum is subject to final measurement. No additional cost from the contract rate will be entertained due to omission or addition in the quantities given.”. Based on the exchange of e-mails between the parties as outlined above and DW5’s testimony during cross-examination, there was evidence of the plaintiff disputing the defendant’s claim. S/N tbsX0gXoVUq785x4xmX8A DW5 was cross examined, among others, regarding Clause 1.6 of the LoA and he agreed that –

there was no proof of the plaintiff’s instruction to carry out variation works;

(ii) the additional anchor bolt requested by the consultant engineers was necessary to strengthen the frames;

(iii) the defendant did not submit quotation for the variation orders;

(iv) the defendant did not inform the plaintiff that the scope of work has been completed and to seek a joint inspection;

there was no opportunity for a joint inspection; and

(vi) the amount claimed by the defendant in the counterclaim was not substantiated with invoices and delivery orders; and

there were discrepancies in the amounts as pleaded in the Defence and submitted after trial, with the amounts as shown in the “Payment Claim” dated 25.7.2016 and Progress Claim No. 8. S/N tbsX0gXoVUq785x4xmX8A

Based on the aforesaid reasons, the Appellant’s appeal was allowed only in part as stated at the outset in paragraphs 1 and 2 above.

On the issue of costs, the Respondent’s counsel opined that the appeal was predominantly in their favour and hence, he prayed for costs of RM15,000.00. The Appellant’s counsel prayed for the same amount.

In view of the outcome of the appeal, I made no order as to costs. DATED: 29.9.2025 (ALIZA SULAIMAN) JUDGE HIGH COURT IN MALAYA KUALA LUMPUR Solicitors for the Appellant: Jerome Lee Hui Ming (Eric Liaw Ming Kok with him) Messrs. Ming, Yee & Co. Solicitors for the Respondent: Andrew Davis (Anne Raj with him) Messrs. Andrew Davis & Co. S/N tbsX0gXoVUq785x4xmX8A