Compensation for consequential losses suffered by the Defendant due to the Plaintiff’s breaches of the Subcontract 7 and termination of the Subcontract which are inter alia as follows: a) Compensation to the Defendant for loss suffered due to the Liquidated and Ascertained Damages imposed by the Employer to the Defendant amounting to RM780,000.00 (or alternatively, to be assessed by the Court); b) Other consequential losses such as the Defendant’s site overheads amounting to RM44,412.59 Principles Whether the Defendant’s termination of the Plaintiff under the Subcontract dated 14.8.2014 was lawful [14] The Notice of Termination issued on 2.9.2016 was preceded by a Notice to Rectify Breach issued on 19.8.2016. It is important to set out the relevant parts of the said Notice to Remedy Breach to ascertain if the termination is lawful under the circumstances of the case. The Notice to Remedy Breach reads as follows: “We refer to the Subcontract Award dated 14.8.2014 and we also refer to your work Programme which was forwarded to us under cover of a transmittal form dated 27.8.2014 wherein you had agreed to complete the subcontract works on 29.6.2015. You would no doubt agree that it is an implied term of the Subcontract Award that you are to carry out all the subcontract works regularly and diligently to ensure completion within the agreed completion date of 29.6.2015. In the circumstances, we give you notice that you are to complete the subcontract works within fourteen (14) days from the receipt 8 of this notice failing which we would have no alternative but to take whatever step necessary to protect our interest including determination of your employment (“emphasis added) [15] The relevant part of the Notice of Termination issued on 2.9.2016 reads: “We refer to our letter reference no. KG/P200/2016-06/175C dated 19th August 2016. As you have failed to remedy the defaults stated therein and you have continued the defaults to date we have no other alternative but to terminate the subcontract forthwith without prejudice to our rights and remedies for your failure to remedy the defaults.”(emphasis added) [16] I agree with learned counsel for the Plaintiff that in the Defence filed by the Defendant, the Defendant did not specifically plead the exact completion date agreed upon by the parties. The Defendant at paragraph 15.8 of the Defence pleaded that “Nonetheless, the Plaintiff had failed to complete the Subcontract works by 19.12.2015 and had submitted various other new targeted completion dates in 2016 which were never agreed and not accepted by the Defendant.” (“emphasis added”) [17] Be that as it may, there was a Certificate of Non-Completion (“CNC”) issued by the Defendant on 31.5.2016 giving clear indication that the parties had finally accepted 1.6.2016 as the Completion Date. It can be safely concluded from the various Revised Work Programme submitted by the Plaintiff to the Defendant that there was a reference to 1.6.2016 as the Completion Date on at least 7 of the latest Revised Work Programmes to which the Defendant had raised no objection. These can be found in CBOD 11 Pages 1-50. 9 [18] It should be stated here that the uncertainty on the Completion Date had arisen because there was no Commencement Date and Completion Date stated in the Letter of Award partly because the nature of the facade Subcontracting Works would depend on the completion of the Main Contracts Work as without that the facade Works consisting of the Unitized Aluminium Curtain Wall could not be installed. [19] Based on the Letter of Intent dated 11.10.2013, the Commencement and Completion Date of the Subcontract shall be determined and agreed upon prior to the issuance of the Letter of Award but none was stated in the Letter of Award as highlighted by the Plaintiff in their letter dated 22.8.2014 to the Defendant. [20] At paragraph 4 of the said letter, the Plaintiff stated that “Your Master Works Programme forwarded to us on 15th December 2013 is out dated by reason that the completion date of our sub-contract on 25 June 2014 has already lapsed. As such, we are not able to submit a copy of our Sub-Contract Works Programme unless and until a revised Master Works Programme is forwarded to us for review.” (“emphasis added”) [21] The Defendant did not reply to the above letter by the Plaintiff and learned counsel for the Defendant admitted that there is no Revised Master Work Programme in the Bundles before the Court and indeed no Revised Master Work Programme was ever produced by the Defendant. [22] Going by DW3’s admission under cross-examination where DW3 had said that there may be as many as 10 to 20 different Revised Master Works Programmes in the Main Contract, the Plaintiff cannot be faulted for having submitted various Revised Work Programmes for the facade Subcontract Works. DW 3 is Mr Sam Tan, the Group Managing Director of the 10 Defendant as well as of the Employer/Owner Ken TTDI; both being wholly-owned subsidiaries of Ken Holding Berhad. [23] Whether the Completion Date was 29.6.2015 as stated in the Notice to Remedy Breach of 19.8.2016 or that of 19.12.2015 as pleaded in the Defence filed is not that relevant seeing that no CNC was issued then and in the light of further Variation Orders issued during this period time can only be considered to be at large. [24] However the fact that time had become at large does not mean that parties cannot subsequently agree to a fresh Completion Date and this can be concluded with the Plaintiff’s submissions of various Revised Work Programmes all stating 1.6.2016 as the Completion Date for the last 7 Revised Work Programmes submitted. [25] It is pertinent that the Defendant had further stated in the CNC that a sum of RM450,000.00 had been provisioned and withheld for LAD and the Defendant reiterated that time was of the essence. This provisioning of RM450,000.00 is based on the rate as provided in Clause (o) of the Subcontract Letter of Award dated 14.8.2014. [26] The only way to read the fresh Completion Date coupled with an LAD clause which LAD sum was withheld for a calculation of 150 days of delay is that time was not of the essence and that the Defendant was prepared to allow the Plaintiff to complete the Works with the imposition of LAD. [27] DW3 Mr Sam Tan, the Group Managing Director of the Defendant, had wanted the Court to believe that he had labored under the impression that the LAD sum retained was for the 150 days commencing 19.12.2015 being the agreed Completion Date but then generally unless a CNC had been issued, the Defendant would not be able to impose LAD. Indeed time would become at large. 11 [28] The Plaintiff was therefore entitled to proceed on the basis that the 150 days imposed must be for the period of 5 months commencing from 1.6.2016. If by the sum retained for LAD is meant future LAD then the Plaintiff was rightly entitled to continue to completion with the knowledge that they would be charged LAD if the Defendant can prove and that it would run from 1.6.2016. [29] That being the case the Defendant is estopped from terminating the Subcontract earlier when all indications were that it was prepared to imposed LAD and indeed had retained LAD for a period of 150 days at the rate of RM3,000.00 per day. [30] Would it be reasonable for the Defendant to terminate some 3 months down the road on the ground of an implied term in that the Plaintiff is said to have failed to proceed regularly and diligently with the Works? I would say “No” as the factual matrix showed clearly that the Plaintiff had either 10% of the Works left to be completed or at most 15% based on the Defendant’s calculation. [31] After having intimated a willingness to retain for 5 months of LAD and that as argued, could only be validly and reasonably imposed after the issuance of the CNC, it would not be reasonable to terminate earlier unless there has been some change of circumstance such as a slow down or abandonment of works altogether or an increasingly alarming widening gap of failing to catch up with the delay. It must be something coming close to the Plaintiff having repudiated the Subcontract. [32] Quite obviously the Defendant’s action in terminating the Plaintiff on 2.9.2016 was a knee-jerk reaction upon being notified by the Plaintiff on 19.8.2016 that it had commenced legal action against the Defendant for the unpaid sums due of RM2,289,302.27. After all the Notice to Rectify Breach 12 was served the same day as the Plaintiff notifying the Defendant that legal action had been commenced against the Defendant. [33] The Singapore Court of Appeal case of Chua Chay Lee & Ors v Premier Properties Pte Ltd [2000] 4 SLR 177 would be relevant to the present case. The contractor there had delayed completing the works for more than 12 months after the contractual completion date. The Singapore Court of Appeal held that the termination on ground of the 12 month delay was unlawful in the circumstances of the case. It observed as follows: [6] If one were to ask whether or not the respondents' delay of around 12 months for the handing over of the appellants' new apartments was an anticipatory breach which went to the root of the contract or was a frustrating delay or would lead to performance by the respondents of their contractual obligations in a manner which was substantially inconsistent with the bargain between them and the appellants, there would be no reason whatsoever to disturb the finding of the judicial commissioner. … [8] The inclusion of a liquidated damages clause in the agreement showed that the parties had contemplated a possible delay in the completion of the appellants' apartments. … [9] A party to a contract may not purchase indefinite delay by paying damages. A time will come when the delay is so great that the defaulting party is guilty of repudiatory conduct. However, that point of time had not arrived when the appellants terminated the contract on 11 May 1999... ...... 13 [12] Whether one applied English cases or Laurinda's case to the facts in this case, the only reasonable conclusion was that the appellants were not entitled to terminate the contract when they purported to do so on 11 May 1999. They could not show how a delay of 12 months, in the context of a 33-month period of construction, coupled with the payment of $280,500 in liquidated damages to each of them, could be a frustrating delay going to the root of the agreement.” (emphasis added) [34] Granted each case is to be decided on its own particular and peculiar facts. In the Singapore case it was the construction of apartments where the owners of the existing apartments have exchanged their old apartments for new ones to be built by the developer and the owners received no monies from the developer. The appellants/owners had each received a banker’s guarantee for SGD2,805,000.00 as security for the performance of the developer’s obligations. The developer’s progress in the construction was delayed by hitches in their acquiring of adjacent land and the decommissioning of a substation on the land to be acquired. [35] The message sent out by the Defendant retaining the sum of RM450,000.00 for the LAD to cover 5 months from the issuance of the CNC would militate against terminating the Subcontract before the expiry of the 5 months which would expire end of October 2016. [36] Where the Defendant is relying on an implied term of the failure of the Plaintiff to proceed regularly and diligently, one must look at the conduct of the Plaintiff in pursuing with all reasonable actions to bring to completion of the Works and there were delays attributed and caused by the Defendant as well in the various variations orders issued by the Defendant and the non-delivery of glass panels ordered by the Plaintiff through the Defendant, 14 not to mention the delay caused by the Defendant’s Subcontractors in the uneven structural slabs for the floors constructed making the installation works not possible without further rectification works to the uneven slabs. [37] Hudson’s Building and Engineering Contracts 13th Edition paragraph 6-025 page 738 has this helpful passage as follows: “It is well settled that in building contracts when there is a stipulation for work to be done in a limited time, if one party by his conduct-which may be quite legitimate conduct, such as ordering extra work-renders it impossible or impracticable for the other party to do his work within the stipulated time, then the one whose conduct caused the trouble can no longer insist on strict adherence to the time stated. In those circumstances, he cannot claim any penalties or liquidated damages for non-completion in that time.”- The House of Lords expressly approving the passage in the judgment of Lord Denning MR in the Court of Appeal in Trollope & Colls v NW Metropolitan Regional Hospital Board [1973] 2 AER260. [38] The dicta of Judge Jackson in Multiplex Construction (UK) Limited v Honeywell Control Systems Ltd (No.2) [2007] EWHC 447 (TCC) would also be relevant: “[47] ...The essence of the prevention principle is that the promisee cannot insist upon the performance of an obligation which he has prevented the promisor from performing. [48] In the field of construction law, one consequence of the prevention principle is that the employer cannot hold the contractor to a specified completion date, if the employer has by act or omission prevented the contractor from completing by that date. Instead, time becomes at large and the obligation to complete by the specified date 15 is replaced by an implied obligation to complete within a reasonable time. The same principle applies as between main contractor and sub-contractor. [49] It is in order to avoid the operation of the prevention principle that many construction contracts and sub-contracts include provisions for extension of time. Thus, it can be seen that extension of time clauses exist for the protection of both parties to a construction contract or sub-contract.” (emphasis added) [39] Naturally the subcontract could not be completed by the end of the 14 day period. The reasons for it as referred to above were highlighted in the Plaintiff’s two letters both dated 1.9.2016 at pages 1156 and 1158 of the DCBOD. The Plaintiff was nevertheless trying their best to complete as soon as possible. [40] A copy of the said letter is at page 185 of COBD B1 reads: “Further to this, all delivered glass to the site has been installed. Remaining uninstall glass is pending delivery from China in which order placed by your good side [is] pending shipment date. On the building maintenance unit MBU, we wish to clarify that the unit is not handed over by your good side. The unit is being rented from MHE at an agreed rate in which the cost is not included in our contract provision. Besides, we have mobilized in temporary gondola and generator to your job side to assist in expedite the installation and cleaning work externally since Dec’ 15. All the above costs is not being included in our contract provision. On the outstanding work as stated in the memo capping and flashing, we wish to clarify that until today there still adjustment on raise floor panel were there is no firm reference point (sic) ....” 16 [41] I would not place too much reliance on the fact that the Plaintiff had not applied for any extension of time for there is no express clause on the Plaintiff’s right to apply for extension of time. Be that as it may it is generally incumbent on the Superintending Officer (SO) or the Certifier or the Defendant here as the Main Contractor to allow for an extension of time or at least not to hasten to exercise its right to terminate on ground of a failure to proceed regularly and diligently if it can be seen that the Defendant here had contributed to some extent to the delay on the Plaintiff’s completion of the Works. This is even more necessary when the Defendant is relying on an implied term that the Plaintiff is to proceed regularly and regularly. [42] If authority is needed one can refer to Hudson’s Building and Engineering Contracts, 12th Ed at page 8-052 & 8-055: “Thus the Employer and any Certifier who is required by the termination clause to consider whether any Contractor is progressing regularly and diligently, will have to consider whether the completion date should be extended, and to judge progress by reference to that extended date if they think that an extension is merited” (emphasis added) [43] In Sindall Ltd v Solland and Others [2001] 80 ConLR 152 it was observed as follows at page 156: “A person in the position of a contract administrator ought always to consider whether there were any factors known to him which might justify an extension of time even though the contractor may not have given written notice of them. This is all the more important if it is necessary to decide whether the contractor is proceeding regularly and diligently” (emphasis added) 17 [44] Likewise in Engineering and Construction Contract Management, Ir Harbans Singh KS, page 458 & 466 the learned author stated as follows: “Contrary to popular belief and the various procedural provisions included in most conditions of contract, the contract administrator remains under a positive duty, upon the occurrence of a delaying event, to consider the Contractor’s entitlement to an extension of time whether or not the latter has made an application in consequence thereof” (emphasis added) [45] The brunt of the Defendant’s complaint was that the Plaintiff had not completed the Works by 29.6.2015 as spelt out in the Defendant’s Notice to Rectify Breach. However, it is clear that even after 29.6.2015, the Defendant continued to issue Variation Orders to the Plaintiff. These were on 7.7.2015, 30.7.2015, 20.8.2015 as catalogued in the Plaintiff’s submission at pages 53-55 of their submission. [46] Looking at the conduct of the Plaintiff in continuing with the Works and appreciating that some of the causes of delay could be attributed to the Defendant themselves and also that the Defendant had withheld the sum of RM450,000.00 for LAD covering a 150 days of delay, I would be constrained to conclude that the termination in this case is unreasonable and unlawful. Whether the Plaintiff is entitled to their claim for the balance sum for work done before termination [47] The Plaintiff is of course entitled to be paid for the work done irrespective of whether the termination of the Subcontract is lawful or unlawful. The Plaintiff is entitled to claim for the value of work done as at 18 the point of termination minus whatever is the costs of rectification works that the Defendant has incurred to rectify the Plaintiff’s work. [48] There is no dispute with respect to claims until Payment Cert No.15. Thereafter the Plaintiff had submitted Progress Claim No.22 and 23 and these have been processed by the Defendant in Certificate 16 and Certificate 17. I would zero in on Certificate 17 as Certificate 16 is a negative Certificate and Certificate 17 is the Final Certificate. [49] The Defendant’s witnesses were not cross-examined on the fact that some items had been, as submitted by the Plaintiff, wrongly reduced; chiefly 2 items in the Preliminaries. I can accept the Defendant’s explanation that re-measurement was done and so the Final Certificate in Certificate No 17 was taking into account the final Works done. Certificate No 17 appeared at C14 and is set out in a fair fashion with supporting documents. As rightly pointed out by learned counsel for the Defendant, none of the Plaintiff’s witnesses had been cross-examined on Certificate No 17 and so the Plaintiff is deemed to have accepted its accuracy being a Final Certificate issued after assessment of the Works completed by the Plaintiff. [50] In Aik Ming (M) Sdn Bhd & Ors v Chang Ching Chuen & Ors and another appeal [1995] 2 MLJ 770 at p 794 it is stated: “… It is essential that a party's case be expressly put to his opponent's material witnesses when they are under cross examination. A failure in this respect may be treated as an abandonment of the pleaded case and if a party, in the absence of valid reasons, refrains from doing so, then he may be barred from raising it in argument. … It applies with equal force in the trial of civil cases as well.” 19 [51] The sum is at page 2 C14 under Final Cert Value of Work done = (as per evidence of DW 3 at pg 11 A to Q 16) RM5,628,395.55 Variation Works pg 4 C14 RM643,766.30 RM6,272,161.85 Amount in yellow being work not done by Plaintiff RM679,470.63 RM5,592,691.22 Amount paid not disputed is RM 4,294,335.68 Amount to be paid by the Defendant to the Plaintiff RM1,298,355.54 [52] I would allow this much of the Plaintiff’s Claim on the balance of probabilities. Whether the Plaintiff is entitled to any loss of profit arising from the unlawful termination under their claim for general damages [53] I shall next consider whether the Plaintiff is entitled to the loss of profit arising out of the unlawful termination. There is no specific head of damages claimed for this other than a claim for damages to be assessed. However this is a single trial and not a bifurcated trial. See the case of Tahan Steel Corporation Sdn Bhd v Bank Islam Malaysia [2012] 2 MLRA 361 where it was held as follows:- “[89] In my view the general rule has always been that the issue of liability and quantum of damages should be determined together once and for all at the trial. The determination of a claim should never be on a staggered or on an installment basis; determine the issue of liability first, and then to have another trial or inquiry to determine the quantum of damages. If the appellant/plaintiff had wanted the issue of quantum of damages to be determined at later stage of the trial, after the issue on liability had been determined first, then, this mode of trial 20 must be pleaded in the statement of claim (which is not the case here), and the appellant/plaintiff must furnish good reason as to why there should be a separate exercise to determine the quantum of damages. And I must add here that a trial court should never easily accede to a request, even if made mutually by the parties (it is not the case in the present case), that the issue of liability and quantum of damages be determined on a staggered/installment basis, except in exceptional circumstances and good reason is given, and the trial judge is notified well in advance prior to the trial of the mutual desire of parties that the issue of quantum should only be determined after the issue of liability had been determined.” [54] The Plaintiff had every opportunity to adduce evidence of any loss that they have suffered as a result of not being able to complete what they said is the balance 10% of the Works whereas the Defendant said is 15%. [55] Unfortunately the Plaintiff did not tender any evidence to show the loss of profit that they could have made and seeing that there was some delay in the contract for which the Plaintiff must take some blame, this Court is not able to assess damages arising from the unlawful termination. [56] At most the Court can only grant nominal damages and in this case I had granted RM5,000.00 as nominal damages for breach of the contract. [57] See Popular Industries Limited v Eastern Garment Manufacturing Sdn Bhd [1989] 3 MLJ 360. [58] I next turn to the Defendant’s Counterclaim at page 62 of the Bundle of Pleadings. Whether the Defendant had proved the sum claimed of RM750,000.00 for rectification of the Plaintiff’s work 21 [59] In paragraph 30.3 of the Defendant’s Counterclaim, the Defendant specifically pleaded its claim for rectification of the defective works is for RM750,000.00. [60] The evidence on the Plaintiff’s defective works were drawn from the evidence of a Curtain Wall Consultant in the person of Dr Robert See Tow Ngau who was the Managing Director of the Curtain Wall Consultant Company called Pintar Jaya (M) Sdn. Bhd (“Pintar Jaya”). He testified as DW 2. Pintar Jaya provides facade engineering consultancy services to developers, architects, fabricators and to main contractors. [61] Pintar Jaya was appointed by the Defendant on 5.9.2016 which scope of work included the following: i. To conduct inspection to ascertain the facade works done by the Plaintiff on the building as at that period of appointment; ii. To ascertain whether the works done by the Plaintiff were in accordance to all the documents produced by the Plaintiff and the Defendant in the course of the facade construction; iii. To propose rectification works to be carried out. [62] DW 2 produced his detailed report on the defective works that required rectification under the following categories: a) There were areas in the buildings with incomplete facade and glass works; b) There were facades which were in non-compliance to interfacing requirements; c) There were facades of poor fabrication & poor installation workmanship; d) There were facades with incorrect fabrication & installation works; 22 e) There were facades and glass with poor sealant installation workmanship; f) There were facades with water leakages; g) There were facades with incomplete glass installation; h) There were facades with incorrect glass placement; i) There were facades with incomplete aluminium flashing and sill cover installation; j) There were facades with incomplete and defective fire and smoke barrier system; k) There were facades with incomplete aluminium solid panel at interfacing (male & female toilet area); l) There were facades with incomplete fire and smoke barrier system at the male & female toilet area; m) There were facades with incomplete aluminium flashing, sealant and aluminium sill cover at the Roof Garden; [63] DW 2 also conducted smoke tests on the workmanship and performance of the fire and smoke barrier system installed by the Plaintiff and they were found to be of poor workmanship and are not in compliant with the standard quality of the manufacturer’s fire and smoke barrier system. [64] DW 2 in his Report also noted water leakages at the facades during heavy rain at certain location at the following areas: a) Water leakages from the Roof Garden aluminium flashing down to Level 12; b) Water leakages from Atrium Skylight down to the Ground Level (Ground Reception); c) Water leakages from the Green Roof Canopy down to Level 2; 23 d) Water leakages at the staircase louver and at curtain wall interfaces. (West Elevation). [65] I have no good reason to disbelieve DW 2 and am satisfied that his evidence is independent and reliable and under cross-examination, his findings in his Report have remained intact. [66] Though the Defendant said that their total counterclaim for rectification works is RM1,927,449.13, I would only allow the Defendant’s Counterclaim of RM750,000.00 being the costs of rectification as claimed in the Counterclaim. [67] The Court cannot allow the Defendant to claim more than the sum pleaded and there has not been any amendment made to this head of Counterclaim in the rectification costs. Whether the Defendant is entitled to claim the sum of RM291,500.00 being the costs of preparing the Curtain Wall Consultant’s Report [68] Paragraph 32.1 of the Defendant’s Counterclaim is for the sum of RM291,500.00 being the fees incurred in getting a Curtain Wall Consultant Dr See DW 2 to prepare the report on the defects in the Plaintiff’s work. [69] The Report appears at CBOD B7 and it is a report on defects at each floor and the smoke and water tests carried out. The Report is as detailed as it can be. [70] I can believe the witness DW 2 Dr See when he showed evidence of Pintar Jaya’s 3 Progress Claims and payment vouchers from the Defendant in CBOD B7 page 1816-1823 that his company Pintar Jaya had been paid the bulk of the fees of RM221,540.00 and the balance is still outstanding. I have no reason to doubt that it is an arm’s length transaction and that the payment is genuinely incurred. 24 [71] The best evidence for defective works would be for the Defendant to rightly rely on the evidence of a consultant on Curtain Wall with the relevant expertise and experience as the Defendant and its Employer are related companies. [72] I would allow this claim of the Plaintiff of RM291,500.00 on the balance of probabilities. Whether the Defendant is entitled to its claim for LAD from after the date of issuance of CNC 31.5.2016 to the date of termination on 2.9.2016 [73] The Defendant, in paragraph 30.4 of their Counterclaim and in their written submission, had claimed the sum of amounting to RM732,000.00 from 20.12.2015 to 2.9.2016. To begin with any claim for LAD can only commence after the issuance of CNC and so can only be claimed from 1.6.2016 to date of termination on 2.9.2016 provided always that the actual loss can be proved. [74] There was no evidence to show that the sum of RM732,000.00 or a lesser amount if based on the period of 1.6.2015 to 2.9.2016 was paid to the Employer, bearing in mind always that the Employer/Owner is Ken TTDI and the Main Contractor is the Defendant Ken Grouting Sdn Bhd. Both Ken TTDI and the Defendant are wholly-owned subsidiaries of Ken Holding Berhad. One Dato Kenny Tan is a group chairman for all these companies and his son Mr Sam Tan, DW3, is the Group Managing Director for all these companies. [75] In fact the Defendant in their pleaded case at paragraph 30.8 (a) of their Counterclaim has claimed an LAD of RM855,000.00. This vacillation 25 and variation in their LAD Claim does not auger well for the Defendant who must be put to strict proof as to the damage they have allegedly suffered. [76] All that the Defendant had adduced are credit notes issued by the Defendant to the Employer at pages 2686 - 2687, COBD B 9. [77] However, as pointed out, the Defendant and the Employer are both controlled by the same Holding Company, both being wholly-owned subsidiaries. Bearing in mind that the controlling personalities and shareholders are the same, it is not sufficient to produce self-serving credit notes which were prepared by the Defendant themselves to support the Defendant’s contention that the Defendant has suffered those losses. The Defendant must produce independent evidence like audited accounts to support the Defendant ‘s case where the Court could see for itself that what is paid out by one wholly-owned subsidiary in the Defendant to another wholly-owned subsidiary of the same Holding Company is reflected as having been received by that other company, the Employer here in their audited accounts. [78] Furthermore, the self-serving document at page 2652 COBD B9 does not explain at all the basis for the Plaintiff being responsible for 25% of the LAD imposed by the Employer. [79] If the Memorandum dated 2.9.2016 at page 287 COBD B1 is anything to go by, the Defendant had clearly stated the following: