Gaya Analisa Sdn Bhd v Oceanergy Gases Sdn Bhd (WA-22C-72-10/2016)

The dispute that had arisen between the Plaintiff as a Main Contractor and the Defendant as a specialist Subcontractor could be traced to both parties taking an uncompromising stand where the obtaining of the DBKL Permits for the excavation of certain stretches of roads in Kuala Lumpur for the relocation and laying of gas pipes (“Open Cut Permit”) and also for traffic management of the affected roads. The Plaintiff said that contractually and consistent with a “Design and Build Contract” 2 (“Contract”), the obligation is that of the Defendant. The Defendant refused to budge and maintained that it is the Plaintiff’s obligation and until that is obtained they would not be doing any further works. [2] There was an impasse and the Plaintiff had no choice but to try to obtain the permits of DBKL without prejudice to their rights to claim for damages arising out of this breach. The Plaintiff later terminated the Contract with the Defendant on ground of the Defendant’s unlawful suspension of the Contract. [3] Consequent upon termination there were the claims by the Plaintiff for the extra costs incurred in completing the Works and for damages for delay. The Defendant on the other hand claimed for payment for work done. They admitted there was no claim for loss of profit arising out of what they claimed to be unlawful termination. [4] There was also the question of how to treat the Adjudicated Amount that was earlier given in favor of the Defendant as Claimant in the Adjudication under the Construction Industry Payment and Adjudication Act 2012 (“CIPAA”) with respect as to whether costs and expenses in the Adjudication should be refunded. Project [5] The Project in question is under the Ministry of Natural Resources and Environment and more particularly under the Jabatan Pengairan and Saliran (“JPS”) (Department of Drainage and Irrigation). It was a flood mitigation project involving Sungai Bunus in Kuala Lumpur launched by the Government in 2012. The nature of the Project was such that certain services underground had to be relocated and this included the gas pipes located along Jalan Tun Razak (“the Works”). 3

The Government of Malaysia as the Employer called for a Tender by specialist gas contractors to bid for the gas pipes relocation Works. It is a task that requires special skills as any errors and defects in the relocation, connection and reconnection of the gas pipes might result in an underground explosion that would threaten both lives and limbs as well as properties. [7] Zumatex Engineering Sdn Bhd (“Zumatex”), a specialist gas contractor, succeeded in the Tender. The protagonist behind Zumatex is an individual named Chung Yoo Hock (“Chung”). He also controls another company, the Defendant herein. He designated himself as the General Manager of Zumatex and he is the Managing Director of the Defendant. [8] The Government appointed the Plaintiff as the Main Contractor for the Works and the Plaintiff was in turn supposed to appoint Zumatex as a domestic specialist Subcontractor to undertake the Works based on Zumatex’s Tender Documents. Problem [9] However Chung wrote to and persuaded the Plaintiff to instead appoint “another of his company”, the Defendant herein, to undertake the Works. The Plaintiff relented and issued a Letter of Award dated 27.2.2015 for the Works to the Defendant as the “Design and Build” Subcontractor. The presence of the protagonist was so pervasive throughout the Works that the names of Zumatex and the Defendant were used interchangeably, not in the least because both Zumatex and the Defendant were vehicles used by Chung to carry out the Works. 4

The Subcontract sum agreed between the parties was for RM2,750,900.00, which was derived from the rates, prices and scope of works as stated in the tender proposal initially submitted by Zumatex. [11] The Tender Documents contained a proposed drawing on the route of where the gas pipes would be relocated and the total length of the proposed gas pipelines which was be around 490m. [12] Waxing poetic if not philosophical, learned counsel for the Plaintiff penned that “the passage of time reveals the true colour of all under heaven!” The Plaintiff said that the Zumatex-Oceanergy coalition proved not much of a specialist after all, with delay in the Works and the crunch came when the Defendant refused to apply for and obtain the DBKL Permits and when they suspended the Works. [13] The Defendant’s argument is that the Tender Documents referred to in the Letter of Award and to be read together with it, were submitted by Zumatex and not the Defendant to the Employer and hence they do not form part of the Subcontract Documents. The Defendant argued that the condition requiring the Defendant to apply for the DBKL Permits, being found in the Tender Documents, is not binding on the Defendant. Indeed the Defendant declared that they did not submit any Tender Documents to the Employer though there was a reference to the “Tender Documents” in the Letter of Award, supposedly submitted by them. [14] The Subcontract Works were uncompleted and finally abandoned by the Defendant. This was in spite of several notices and warnings from the Plaintiff. The Defendant was adamant in not re-commencing Works. The Plaintiff’s contention is that the Defendant had repudiated the Subcontract and that the Plaintiff’s termination of the Subcontract was lawful in the circumstance of the case. 5 Prayers [15] The Plaintiff prayed at paragraph 33 of the Amended Statement of Claim as follows:

A declaration that the Defendant had executed for works valued at RM610,525.64 under the Subcontract;

An order that the Defendant is not entitled to the whole Adjudicated Amount as decided in the Adjudication Decision dated 19.9.2016;

An order that the Defendant do refund to the Plaintiff the whole of the Adjudicated Amount in the Adjudication Decision dated 19.9.2016;

Judgment be entered against the Defendant for the sum of RM3,200,500.81 (or alternatively for the sum of RM2,589,975.17) for:

Additional sum for a Third Party to replace the Defendant to continue and complete the balance Works of RM2,307,500.00;

(ii) Overpayment of RM656,065.79 (or alternatively RM45,540.15);

(iii) Claim for LAD of RM236,935.02; and

Interest at the rate of 5% per annum on the judgment sum from the date of filing of the Writ to realization;

Costs and

Such further and other reliefs as the Court may deem fit and reasonable. 6 [16] The Defendant counterclaimed in paragraph 80 of their Counterclaim inter alia for the following:

Payment of RM2,008,007.83 (inclusive of 6% GST) as pleaded in paragraph 75 of the Counterclaim;

Losses arising out of the failure of the Plaintiff to apply for and obtain the DBKL Permits of RM2,495,515.00 as pleaded in paragraph 78 of the Counterclaim;

General Damages arising out of the unlawful termination of the Subcontract as pleaded in paragraph 79 of the Counterclaim;

Interest at the rate of 5% per annum from the due dates of the Progress Claims till realization;

Interest at the rate of 5% per annum for Claims in (2) and (3) above from the date of the termination of the Subcontract to realization;

Costs and

Such further and other reliefs as the Court may deem fit and reasonable. Preliminaries [17] Learned counsel for both parties were able to agree on the following facts in the course of the trial and that to some extent helped the parties to focus on the more contentious issues that required the determination of this Court. The further agreed facts are as follows:

The length of gas pipelines laid by the Defendant is 180.9 meters;

(ii) The Defendant did not undertake the hot-tapping works as at the date of termination of the Subcontract between the parties; 7

(iii) Since the relocation of the gas pipelines have not been completed by the Defendant as at the date of termination of the Subcontract by the Plaintiff, the Defendant could not commence the connection of the existing pipelines and the relocated pipelines;

(iv) The sum paid by the Plaintiff to the Defendant was RM656,065.79 (inclusive of 6% GST) under the Subcontract and

On or about 7.11.2015, the Defendant suspended the Works under the Subcontract. Principles Whether it was a term of the Subcontract that the Defendant shall apply for DBKL Permits for the Works [18] The Tender Documents were submitted by Zumatex to JPS in their bid for the Works. To be precise the Defendant did not tender for the Works. [19] The Tender Documents referred to included the JKR Standard Form of Contract for Design and Build Contract (“Conditions of Contract”) (“COC”), the Need Statement and attached drawing, the Bill of Quantities (“BQ”) / Contract Sum Analysis (“CSA”) and other documents found in pages 6 – 452 of CBOD 1. [20] As stated the Letter of Award was issued to the Defendant though it was Zumatex who was successful on the Tender and this was at the behest of Chung who controlled both Zumatex and the Defendant. Though the Tender Documents were submitted by the tenderers to JPS, it was nevertheless a term of the Tender in the “Instructions to Tenderer” at page 8 11 CBOD 1 which stipulated that “the tender will be novated to the main contractor as a specialist sub-contractor”. [21] Ordinarily Zumatex would have been appointed as the domestic specialist Subcontractor under the Plaintiff but for the intervention and interference of Chung who managed to convince the Plaintiff that the Subcontract be awarded to the Defendant and the Defendant is the vehicle that Chung would be using to enter into the Subcontract. [22] As the change was at the instance of Chung in substituting the Defendant for Zumatex, the base document consisting of the Tender Documents have to be read, when referred to in the Letter of Award, as referring to the same Tender Documents that Zumatex had submitted to JPS in their bid, for the Defendant did not submit any Tender Documents. [23] If the Defendant wants to be so pedantic and particular, they should have pointed out to the Plaintiff that they were baffled and bewildered as to what the Tender Documents are all about as they did not submit any to the JPS. However they were silent on that; the kind of silence that speaks louder than speech! The simple and irrefutable reason for that was because the Defendant had seen themselves as the party that had been nominated by Zumatex to enter into the Subcontract with the Plaintiff and all along of course, with Chung being instrumental in initiating the change of the contracting entity. [24] When such a substitution of the party is done as here at the behest of Chung, it behoves the Court to take cognizance of the fact that context is key in making sense of the Tender Documents referred to in the Letter of Award, without which the Defendant would not know the location of the gas pipelines to be excavated, the route for realignment, relocation and connection. 9 [25] This is what the first paragraph of the Letter of Award states at page 1 of CBOD 1: “We, the Main Contractor for the above-mentioned project agree to appoint you for the above-mentioned sub-contract works with a fix lump sum of RM2,750,900.00 (Ringgit Malaysia : Two Million Seven Hundred Fifty Thousand Nine Hundred Only) as per the rates and prices and scope of works as stipulated in Tender Proposal and as per Terms and Conditions of Contract, Special Clause to Condition of Contract, Specification, Elemental, Bill of Quantities Breakdown, Proposal Drawings (if any), and any correspondence which shall together with this Letter of Award constitute a contract binding the two parties herein.” (emphasis added) [26] Further, Clause 1(a) of the Letter of Award mentions the Tender Documents when explaining the scope of Works as follows: “This award shall be subjected to and governed by the following terms and conditions:

Scope of Works: a) To supply all necessary labours, supervision, materials, tools, plants machineries and all others deemed necessary to carry out and complete the above-mentioned works all as per Tender Proposal to the above-mentioned subcontract ...” (emphasis added) [27] As it is, the Defendant was more than comfortable and had no problem in commencing the Works. If it were not so the Defendant would be at a loss as to what the Subcontract really entailed in the 5-page Letter 10 of Award. The scope of the Works in Clause 1 of the Letter of Award is very general. If there is truth in the Defendant’s argument that the contractual documents consisted only of the Letter of Award, then the Defendant would not even know, for example, what are the preliminary works, what are the materials to be used, what is the method to be employed, what are the quantities involved, where is the exact location and length of the pipes and the drawings of the routes of the relocated pipes. [28] The fact remains that the Defendant knew every single of these details of the Works by referring to the Tender Documents as per Clause 1(a) of the Letter of Award. The inexorable conclusion is that the Defendant had accepted the terms and conditions in the Tender Documents submitted by Zumatex as applying to them and the Defendant had knowledge of the same and commenced and continued with the Subcontract in accordance with the details found in the Tender Drawings. DW 1 Chung was the common link between Zumatex and the Defendant and he was instrumental in getting the Letter of Award issued to the Defendant and not to Zumatex. [29] There was no evidence led that Zumatex ever sued the Plaintiff for not being the contracting party with the Plaintiff following the novation arising out of being the successful tenderer. [30] Zumatex had no compunction in the Subcontract being executed with the Defendant even though on record the successful Tenderer was Zumatex. The fact that Chung’s fingers and indeed his fingerprints were all over the contractual documents between the Plaintiff and the Defendant speak for itself. The Defendant cannot feign ignorance of the Tender Documents submitted by Zumatex and the only way of interpreting the events that had unfolded is that the Defendant accepted the Tender 11 Documents submitted by Zumatex as if having been submitted by the Defendant for the Defendant was stepping into the shoes of Zumatex. [31] Indeed the conduct of the Defendant and Zumatex in raising no objection to the appointment of the Defendant as the contracting party must give rise to estoppel operating against them from asserting that the terms in the Tender Documents do not bind the Defendant. Indeed no Works could be proceeded with if the Tender Documents are not part of the contract documents including the Letter of Award as the essential on the exact scope of the Work and the location of the gas pipes and the relocation of it including the BQs are all set out in the Tender Documents. [32] To interpret the events otherwise would be to disregard the context that brings comprehension and coherence to the Defendant being made the contracting party that had no problem commencing with the Works. [33] If indeed the Defendant had no knowledge of the Tender Documents referred to in the Letter of Award then they would have asked to have a copy of the Tender Documents which they said they had never submitted. True it was Zumatex who submitted the Tender Documents but whether by way of knowledge acquired through Zumatex or otherwise by their agreement to be bound by the terms of the Tender Documents, the Defendant had no problem commencing the Works and executing it. [34] It was not a case where the Defendant was astounded at being appointed as the Subcontractor for the Works or that they were clueless on the Tender Documents and as such they did not know the drawings, the routes of the gas pipelines and the BQ and the CSA. [35] The Defendant’s stand as advanced by DW1 Chung in insisting that the Subcontract only comprised of the Letter of Award and it was the sole 12 document that established the contractual relationship between the Plaintiff and the Defendant, could not be further from the truth. [36] That position taken by DW 1 is untenable and more so when he is the very man behind both the companies Zumatex and the Defendant. DW 1 might have preferred that his email to the Plaintiff is not produced at all but the fact that he did write it is both damning and disturbing. In his e-mail sent to the Plaintiff’s representative [see: page 453 CBOD 2] a few days before the Letter of Award was signed, he suggested rather audaciously that the Letter of Award be issued under the name of the Defendant, instead of Zumatex, and another “dummy Letter of Award” be used for Zumatex. DW1’s e-mail verbatim in its un-sanitized form reads: “With regard to your Draft LOA given, we have reviewed and comment as per attachment. We hope you could look into it, we have summarise our comments as follows: 1) Can you prepare TWO LOA.. The actual awarding company can it be Oceanergy Gases sdn Bhd (My fully own company) instead of Zumatex (dumpy [sic] LOA to serve the purpose for your JPS submission).” [37] It is disturbing because of his attempt to deceive a Government Department for reasons that can only be less than honorable. One thing is clear and it is this: to DW 1 there is no distinction between the Defendant and Zumatex where the choice of a vehicle to enter into the Subcontract is concerned. [38] Seeing that DW 1 had no compunction in his email to unashamedly state that if need be, a dummy contract can be entered into in the name of Zumatex for the purpose of JPS, DW 1 is now estopped from advancing the argument that the Defendant is totally unaware of the Tender 13 Documents and more so when as the Managing Director of the Defendant, his knowledge of the Tender Documents must be imputed to the Defendant. [39] In fact the Defendant was the one nominated by him to enter into the agreement with the Plaintiff which led to the Letter of Award being issued to the Defendant. An interpretation consistent with the documents is to be preferred especially when it is borne out by the context and the conduct of the parties. [40] In Boustead Trading (1985) Sdn Bhd v Arab-Malaysian Merchant Bank Bhd [1995] 3 MLJ 331 at p 347, the Federal Court had this to say on the doctrine of estoppel: "...All that a representee (which term includes one who has received encouragement in the sense we have discussed earlier) need do is to place sufficient material before a court from which an inference may fairly be drawn that he was influenced by his opponent's actings. Further, it is not necessary that the conduct relied upon was the sole factor which influenced the representee. It is sufficient that 'his conduct was so influenced by the encouragement or representation … that it would be unconscionable for the representor thereafter to enforce his strict legal rights' (per Robert Goff J in Amalgamated Investment [1982] 1 QB 84 at p 105).” [41] Do the Tender Documents contain a clear obligation on the Defendant to apply for the relevant DBKL Permits? The BQ of the Tender Documents are unmistakably clear where this obligation to apply for the relevant permits from the authorities are concerned. At page 122 CBOD 1 the reference reads as follows: 14 “Authorities Contractor’s design and construction shall comply with the regulations and requirements of all applicable governmental authorities and agencies. The Client shall pay all necessary requirements to comply with the above – RM30,000.00.” There is another reference to “Authorities” at page 641 CBOD 4 as follows: “Authorities Contractor’s design and construction shall comply with the regulations and requirements of all applicable governmental authorities and agencies. The Client shall pay all necessary security deposit for securing work permit especially DBKL - RM10,000.00.” Yet another reference is found at page 905 CBOD 7 which reads: “Authorities Contractor’s design and construction shall comply with the regulations and requirements of all applicable governmental authorities and agencies - RM130,000.00.” [42] Learned counsel for the Plaintiff helpfully referred to the rationale of a BQ as explained in the textbook by Stephen Furst and Sir Vivian Ramsey titled ‘Keating of Construction Contracts’, 9th Edition at paragraph 1- 018, page 5 as follows: “Bill of quantities quantify the works in detail and are ordinarily prepared in accordance with an agreed standard method of measurement. Their purpose “is to put into words every obligation or service which will be required in carrying out the building project.” (emphasis added) 15 [43] The responsibility for applying for the relevant permits and approvals where regulatory compliance is concerned in the execution of the Works rested solely on the shoulders of the Defendant as the Contractor referred to in the BQ. It is also consistent with a “Design and Build Contract” which both parties agreed it is though they disagreed on the consequence that flows from it where the obligation to apply for permits is concerned. [44] The above clause fits conceptually into the framework of a “Design and Build Contract” where the specialist Subcontractor will be required to ensure that the construction or execution of the Works fully comply with the rules and regulations under the relevant enforcement body as the Subcontractor possesses the expertise and experience in executing the Works in a lawful and legal manner. [45] Learned counsel for the Plaintiff cited the learned authors of ‘Keating of Construction Contracts’, 9th Edition at paragraph 1-027, page 11 where the following position is espoused: “In recent times it has become increasingly common for contractors to offer, in addition to building the works, to perform some or all of the duties of architect, engineer or even surveyor, as performed in traditional contracts. The commercial argument for such an approach is either that it is necessary because the contractor alone possesses the specialist knowledge and skill to design and carry out specialist works or, in other cases, that there will be saving of costs or time or both compared with the traditional procedure.” (emphasis added) [46] Learned counsel for the Plaintiff also cited from Harbans Singh KS book, ‘Harbans’ Engineering and Construction Contracts 16 Management’ on the duty of a contractor in a design and build contract at page 70 as follows: “The Aqua Group defines Design and Build Contracts as: ... tender and contractual arrangements whereby the contractor offers to design and build a project for a sum inclusive of both the design fee and construction costs. Professor Vincent Powell-Smith describes a Design and Construct contract in the following manner: Sometimes known as a ‘Package Deal Contract’. In this type of contract, the contractor takes full responsibility for the whole of the design and construction process from initial briefings to completion. From the description above, it can be concluded that for such contracts: • The contractor undertakes both the design and construction (or building) aspects of the works; • The contractor’s price includes the design fees and the construction costs; and • The contractor is fully liable for all the design and construction elements of the works undertaken by him.” (emphasis added) [47] It goes without saying that in this case the Defendant, being a specialist contractor and the contract being a “Design and Build Contract”, they would be in a better position to know what the required authorities’ permits are and how to apply for them for the expeditious execution of the Works. 17 [48] Even looking at the Letter of Award alone, without the BQ, the scope of the Works expressed in Clause 1a), b) and c) is broad enough to cover the Defendant’s responsibility to apply for the necessary permits. It reads: “This award shall be subjected to and governed by the following terms and conditions:

Scope of Works: a) To supply all necessary labours, supervision, materials, tools, plants machineries and all others deemed necessary to carry out and complete the above-mentioned works all as per Tender Proposal to the above-mentioned sub-contract. b) You shall be deemed to have allowed for everything necessary for completing the works whether any item described is taken individually or collectively. c) You shall liaise with the Consultant (Civil and Structure or Quantity Surveyor) on submission of a work proposal conforming to the specifications and drawings as specified prior to the commencement of work. All works and dimensions shall be strictly according to the requirement as specified and any discrepancy encountered shall be immediately sorted out with the Consultant before any further work to proceed. d) You shall deem to include all necessary costs to complete the said works according to main contractor’s site programme.” (emphasis added) [49] DW1 cannot blow hot and cold and say that Zumatex has nothing to do with this Subcontract when it does not suit him for he had on too 18 numerous occasions used Zumatex interchangeably with the Defendant’s name. [50] The notional separateness of each company became conflated into one when DW 1 would lapse into using Zumatex’s name in the submission of Progress Claim No.1 for instance and in various other correspondences between the parties. The first progress claim submitted by the Defendant was under the letterhead of Zumatex as can be seen in pages 483 – 488

Unsurprisingly the Defendant had treated this as their Progress Claim No. 1 as confirmed by DW 1. [51] This apparent conflation and anticipated convergence continued with the Defendant’s Progress Claim No.2 under Zumatex’s letterhead at pages 510 – 515 CBOD 2. Realizing the error in a case where the dubious has become obvious, the Defendant then submitted another version of Progress Claim No.2 using the Defendant’s letterhead claiming different sums at pages 690 – 694 CBOD 4. [52] There were also just too many correspondences from Zumatex addressed to the Plaintiff and the other stakeholders of the Works dealing with all aspects of the Subcontract during the duration of the Works, even until after the Defendant had suspended their Works in November 2015. Both Zumatex and the Defendant were left in no doubt as to the applicability of the Tender Documents and in particular the BQ stated therein to the Works in question. [53] The hollowness of the Defendant’s assertion through DW1 becomes embarrassingly devastating when DW 1 admitted, rather reluctantly under cross-examination, that the items in the Defendant’s Progress Claims are identical to the priced items in the BQ in the Tender Documents. Thus Progress Claim No.2 submitted by the Defendant to the Plaintiff has the 19 same priced items as in the BQ in the Tender Documents which DW 1 would have this Court believed that the Defendant has no knowledge of and is totally clueless! See page 117 CBOD 1 and page 691 CBOD 4. [54] DW 1 admitted that he was the one who prepared the Tender Documents on behalf of Zumatex and as he was also the one prevailing upon the Plaintiff to appoint the Defendant instead vide the Letter of Award, his duplicity becomes most damaging to the Defendant’s case. [55] I agreed with learned counsel for the Plaintiff that the Need Statement in the Tender Documents (approved and submitted by Zumatex) also contained a clause which stipulates that it is the Contractor’s obligation to obtain the relevant approvals to execute the Works. The relevant provision reads as follows at page 19 CBOD (1): “9.0 Conditions from Authorities Contractor may have obtained approvals in principle from the GAS Malaysia Berhad and local Authorities. The Contractor shall be obliged to obtain all conditions, approvals, permits and the like necessary to prepare his bid and to implement the Project.” (emphasis added) [56] There was only one tenuous reference to the Plaintiff applying for the DBKL Permits and a very tiny one at that. That was in a small print document setting out the Work Schedule, but I am more than satisfied that this has been objected to by the Plaintiff in their letters. At page 733 CBOD 5 the Plaintiff had replied to the Defendant to state categorically and clearly that the responsibility to obtain the DBKL Permits is that of the Defendant. [57] There was also the evidence of a draft Supplemental Agreement where the Defendant had sought to include a new clause putting the responsibility to apply for DBKL Permits on the Plaintiff but the Plaintiff had 20 refused to sign what was to the Plaintiff a variation of the original agreement as understood by the parties. [58] The overall conduct of Zumatex and the Defendant acting through the agency of DW 1 Chung brings to mind the Federal Court case of Sunrise Sdn Bhd v First Profile (M) Sdn Bhd & Anor [1997] 1 CLJ 529. [59] The brief facts of the case involved an agreement that was signed by the Appellant with the holding company in which the Appellant will acquire the shares of the subsidiary. The subsidiary owned a piece of land which is subject to a development order. The holding company tried to terminate the agreement. The Appellant then filed an action for anticipatory breach of contract and for an injunction against the holding company. The subsidiary was subsequently added as a party but the injunction did not cover them. The court held that the fundamental attribute of a corporate personality is that a corporation is a legal entity distinct from its members be they individuals or corporate bodies. However where there are signs of separate personalities of companies being used to enable persons to evade their contractual obligations or duties, the Court would disregard the notional separateness of the companies. [60] I have no problem concluding that it was a contractual term in the Tender Documents referred to in the Letter of Award and even in the Letter of Award itself consistent with the concept of a “Design and Build Contract” that the obligation to apply for the DBKL Permits lies with the Defendant. Whether the Plaintiff had terminated the contract lawfully [61] Having regard to the above, when the Defendant refused to continue with the Works and in fact suspended the Works for lack of DBKL Permits, 21 they were in breach of the Letter of Award and hence, in breach of the Subcontract. [62] There was already delay in the Works as far back as 10.6.2015 when the Plaintiff issued the Defendant a Notice of Delay of Works at pages 501- 502 CBOD 2 where the Plaintiff stated that “Based on your own work programme we would like to notify you of the following delay of work; ... ” [63] This was followed by another Notice of Breach dated 1.12.2015 at pages 758-759 at CBOD 5 which reads: “Delay in progress of works The progress of work was delayed and/or interrupted due to inter alia the following: a. Delayed in commencement and/or start of work. b. Delayed in Approval of newly proposed layout as proposed by yourself. c. Delayed in submission and approval of DBKL Permits. d. Delayed in work at zone 3 due to obstruction by sheet pile as a direct consequence of layout changes proposed by you. e. Delayed in pipe work crossing Jalan Tun Razak and Hot Tapping” [64] The Plaintiff was constrained, indeed compelled to issue a Notice of Work Delay No. 1 dated 16.2.2016 citing Clause 29(a) and (b) at page 779 B5 as the default of the Defendant. The Plaintiff expressed their exasperation with the Defendant’s unreasonable suspension of Works at the site and their failure to recommence the Works as instructed: “We wish to put on record that in spite of having secured the necessary permit for you to proceed with the above works from 11th 22 November 2015 to 10th January 2016 and 11th January 2016 to 10th April 2016 respectively, we are very disappointed that you are not proceeding with the work accordingly.” [65] Clause 29(a) of the Letter of Award provides a ground for termination if without reasonable cause the Contractor substantially suspends the execution of the Subcontract works or any part of them before completion. [66] Clause 29(b) allows for termination if the Contractor fails to proceed with the contracted works with reasonable diligence (i.e. keep abreast to the agreed work programme). [67] They again issued another Notice of Work Delay No. 2 dated 23.3.2016 citing Clause 29 (d) as the default of the Defendant. Clause 29(d) stipulates that if the Contractor refuses or persistently neglects to comply with any instruction issued by Gaya Analisa then Gaya Analisa may proceed with the termination of the Subcontract after the expiry of one week from the date of the Notice specifying the breach and the breach has continued after that period of one week. [68] The Plaintiff had repeatedly requested the Defendant to resume work after the Plaintiff had been constrained by the circumstances, to themselves apply for the DBKL Permits. They did so with the express reservation that the responsibility was that of the Defendant to so apply. The Defendant persisted in holding on to their position of a refusal to return to work. Such belligerence cannot be compromised and as expected the Plaintiff had to act more decisively and finally the Plaintiff had to issue a Notice to Terminate dated 10.10.2016 at page 534 B2. [69] The lapse of time was because of the peculiarity of the Works which entailed an application for the Approval To Install (“ATI”) from the Energy Commission and the need to get the Report from the Defendant for work 23 done so as to avert the need to undo the pipes laid and to be able to continue from where the Defendant last left before stopping work and refusing to return to work. This is to ensure the integrity of the gas pipelines where for another contractor to continue where the previous one had ceased work would not compromise the security and safety of the gas pipelines where explosions could easily happen if the connections are not properly done at the joints. [70] There was the Letter of 21.7.2016 from the Plaintiff to the Energy Commission at page 834 C6 where 3 options had already been given to the Defendant. The new ATI was issued in Aug 2016 and that is because the previous ATI had to be revoked first for only one ATI can be issued at a time to one contractor for a project for safety considerations. [71] I am satisfied that the termination under Clause 29 of the Letter of Award for the Subcontract does not require a prior notice to rectify breach to be given but just a notice to state the breach and a further notice to terminate if the breach had continued for a period of a week after the receipt of the Notice specifying the breach. [72] This is similar to the Contract referred to in the Federal Court case of Damansara Realty Bhd v Bungsar Hill Holdings Sdn Bhd & Anor [2011] 9 CLJ 257 (“Damansara Realty”), where the validity of the termination notice was also disputed. In that case, the plaintiff/ appellant complained that it was not offered the opportunity to rectify the complained breaches in the notice issued by the defendant/respondent. [73] The Termination Clause in the Damansara Realty’s case reads as follows: “Clause 16.1 Termination 24 In the event of a material breach of this Agreement by the Company, the Landowner or the New Developer or both shall be entitled to give notice to the Company to rectify the breach within thirty (30) days of the issue of the notice and if the breach is not rectified by the end of thirty (30) days the Landowner and the New Developer shall be entitled to terminate this Agreement summarily and thereupon the Development Property shall revert back to the Landowner and the New Developer and the Landowner and the New Developer shall be necessary to repossess the Development Property.” [74] The Federal Court ruled that Clause 16.1 above does not impose an obligation on the defendants to issue a notice to the Plaintiff to rectify the complained breaches before the termination notice can be issued. Most importantly, the Federal Court agreed with the defendants’ counsel whereby it is not a requirement under the law to specify the period to rectify the breach in the termination notice [see: paragraphs 45 and 46, pages 276 – 277]. [75] The relevant portion of our termination clause (clause 29 of the Letter of Award) must now be reproduced for an appreciation of its full terms and effects in the light of its similarity to the termination clause in Damansara Realty’s case: “... Gaya Analisa Sdn Bhd shall give to you ONE (1) week notice in writing specifying the default and if you shall continue with such default for ONE (1) week after receipt of such notice or shall at any time repeat such default (whether previously or not), Gaya Analisa Sdn Bhd shall have the right to terminate the said Sub-contract with consent from the Employer...” (emphasis added) 25 [76] I agree with the Plaintiff that if one were to examine the said clause closely, one would have noticed that the clause itself only specifically requires the default to be communicated to the defaulting party. It is not a requirement to state the period to rectify the breach in the notice much like the termination clause in the Damansara Realty’s case. [77] Drawing from the Principle enunciated in Damansara Realty, so long as the default has been communicated to the Defendant by the Plaintiff, the Notice need not specify the period to rectify the breach, though in this case, the Defendant was given more than ample time to rectify its breach. [78] Sad to say, it is a stubborn fact staring in our faces that the Defendant never had the intention to remedy its breach by resuming works even when all the permits by DBKL were available. [79] As for the consent of the Employer to be obtained for the purpose of the termination of the Defendant, that is provided for in Clause 29 of the Letter of Award, where it was stated that “Gaya Analisa shall have the right to terminate the said Sub-contract with consent from the Employer.” [80] It was given in writing on 3.11.2016. The Plaintiff had made an application on 3.8.2016 to JPS for their consent. I do not read the need to obtain the consent of the Employer to terminate as a precondition to termination. Consent can come later and if there is no consent at all, then JPS can intervene in the termination. [81] At any rate the issue was not pleaded and only raised in submission. The fact remains that JPS had given their consent, though it came after the termination and that administratively the consent was communicated to the Plaintiff after the termination. That consent has no bearing on the termination as it is not a condition precedent to the termination. 26 [82] The Defendant had not shown that JPS would not have consented to the termination as at the date of termination. The consent communicated later was a memorialization of the consent that would in any event have been given for the purpose of the termination for otherwise JPS would have objected to the termination of the Defendant. The consent of the Employer to the termination is that the termination must have the blessing of the Employer and in this case, the fact that the consent was communicated later by the Employer to the Plaintiff does not in any way affect the validity of the otherwise valid and lawful termination of the Subcontract. [83] In the light of my finding that the termination was lawful, I would have to assess the additional costs the Plaintiff had to incur in completing the unfinished Works. Whether the Plaintiff had proved the Claim for additional costs incurred in completing the balance Works [84] Learned counsel for the Defendant submitted that the contract sum awarded to Ace Energy had been over inflated and that the Plaintiff was attempting to claim from the Defendant the whole of the costs in completing the uncompleted Works of the Defendant instead of confining themselves to just the additional costs in completing the uncompleted Works. [85] Whilst the contract sum between the Plaintiff and the Defendant was RM2,750,900.00, that between the Plaintiff and the new Subcontractor Ace Energy was RM1,787,500.00. This is about 65% of the contract sum between the Plaintiff and the Defendant. [86] It is an admitted fact that where the length of the pipes is concerned the Defendant had finished 83.09% of the Works. Therefore the remainder 17% of the Works where the length of the pipes is concerned should bear a 27 proportional representation to the total sum of RM2,750,900.00 though I have no doubt that it may be more costly to get the balance Works done where costs per meter length of pipe is concerned. [87] I can accept the evidence of PW2 Encik Azman Bin Harun, who is a representative of Gas Malaysia who is the owner of the gas pipelines. He is not part of the Plaintiff or the Defendant and is from a neutral party, Gas Malaysia. He was the person in charge of the project and he had very specifically stated that the Specialist Works completed by the Defendant were acceptable and there was no requirement to expose the completed Works and to re-do the Works. Gas Malaysia had signed and certified on all works completed as can be seen in CBOD 7 at pages 977 – 1165. He also confirmed that there were no complaints by Gas Malaysia on the quality of work done by the Defendant. There were also no contemporaneous documents rejecting any of the Works completed by the Defendant. [88] Learned counsel for the Defendant made a reference to page 611 of C3 where the “Preliminaries” of RM63,738.10 is only 8% of RM2,750,900.00. In other words the total “Preliminaries” is only 8% of the contract sum in the contract between the Plaintiff and the Defendant. [89] However at page 1334 B 10 it showed a “Preliminaries” of RM467,000.00 as against contract sum of RM1,787,500.00 (CBOD3 page 544) which is 26.12% for Preliminaries in the contract between the Plaintiff and Ace Energy. [90] I see that the evidence of over inflated contract sum is quite cogent and so to determine a reasonable contract sum with Ace Energy, the “Preliminaries” and the Contract sum as a whole would have to be reduced 28 to 8%. If it is 8% of RM1,787,500.00 the reasonable “Preliminaries” would be RM143,000.00. [91] The balance length of pipes to be laid is not disputed by the parties, derived as it is from the length of pipes completed by the Defendant of 180.9m. As the total length of pipes to be completed is 217.72 m, the balance length of pipes to be completed by Ace Energy is 217.72 - 180.9m = 36.82m. [92] From pages 1335-6 B10 the quotation for 150m pipes Works is RM1,433,000.00 but only 36.82 m are required to be done. [93] Therefore the contract sum awarded to Ace Energy has to be realistically reduced to 36.82/150 X RM1,433,000.00 (page 1336 B10) = RM351,753.73. [94] I agree with the Defendant that the reasonable sum for the balance Subcontract Works is RM143,000 (“Preliminaries”) + RM351,753.73 (balance length of 36.82m) = RM494,753.73. [95] To this sum some further adjustments have to be made. It cannot be denied that no Hot Tapping works were done as these Works could only be done after the full completion of the pipes being laid. Therefore to that reasonable contract sum of RM494,753.73 is to be added the Hot Tapping Works which the Defendant did not do and which was claimed by Ace Energy as RM420,000.00. [96] As for Testing and Commissioning it should be based on 100% as no Testing and Commissioning was done by the Defendant and so the sum to be added is RM64,887.00. [97] Therefore the additional costs in completing the Works is RM494,753.73 + RM420,000.00 + RM64,887.00 = RM979,640.73. 29 [98] I would therefore allow this Claim of the Plaintiff in their Amended Statement of Claim together with GST of 6% and interest of 5% per annum from date of the Statement of Claim. Whether the Defendant had proved on the balance of probabilities the sum of RM250,000.00 being the costs of the Hot Tapping Materials delivered to site [99] On the Hot Tapping materials supplied, the Defendant submitted that the evidence is at page 1 B11 and at page 1231-2, 1236 B8. The Plaintiff denied having received the same and said that there is no Delivery Orders exhibited. The only Delivery Orders are from an overseas supplier to Defendant’s supplier in Sri Kembangan. Furthermore the Delivery Order at pg 1237 C8 is dated 26.8.2015 and the so-called acknowledgment by Gas Malaysia at page 1232 C8 is dated 20.5.2015. The supply and delivery are at variance and it is not safe to act on such unsatisfactory evidence. [100] On the balance of probabilities the Defendant has not proved the Hot Tapping Materials supplied of RM250,000.00. Whether the Plaintiff had proved its claim for LAD of RM236,935.02 against the Defendant [101] The Plaintiff had not adduced any evidence for the damage they suffered as a result of the delay in the completion of the Works arising out of the unlawful suspension of the Works by the Defendant. [102] I agreed with the Defendant that it is trite law that the one who claims any amount of LAD can only be awarded “reasonable compensation” to the amount that he can prove, i.e. the claimant must prove what is the loss that it has suffered or sustained before it can claim for LAD as held by the Federal Court in Johor Coastal Development Sdn Bhd v Constrajaya 30 Sdn Bhd [2009] 4 MLJ 445. The fact that parties had deemed the formula used in the calculation of LAD as agreed compensation for a reasonable amount of loss does not dispense with strict proof of the loss suffered. See Clause 45.3 of the COC. [103] The Plaintiff said the Certificate of Non-Completion (“CNC”) was issued on 26.11.2015 and the termination was 10.10.2016; a delay of 319 days. Since the Defendant persisted in refusing to resume the Works and thus delaying the completion, the Plaintiff is entitled to impose the LAD on the Defendant. Based on the delay of 319 days, the LAD claimable against the Defendant is RM236,935.02 at the agreed rate of 0.027% of the Subcontract sum for every day of delay. [104] It can be seen from CBOD 9 page 1313, that not a single cent of LAD was imposed upon the Plaintiff by JPS. There was thus no basis for the Plaintiff to sustain any claim for LAD against the Defendant. Moreover the Plaintiff had also not adduced any evidence as to the quantum of the LAD. Therefore the Plaintiff’s Claim for LAD of RM236,935.02 would have to be dismissed. Whether the Defendant had proved its Claim for the Work Done before Termination [105] The Defendant would of course have to be paid for Works completed by them before the termination, irrespective of whether the termination was lawful or unlawful. [106] After the Subcontract was awarded to the Defendant, the Defendant then submitted a proposal for re-route of the gas pipelines which is substantially different from the proposal in the tender drawings given by Zumatex, which for all intent and purpose is the proposal adopted and 31 accepted by the Defendant as binding on them. The proposed total length of the gas pipelines is now only around 217.72m compared to the original route of the length of the gas pipelines which is 490m. Pursuant to the Subcontract, such a proposal constituted a variation of the Subcontract which would result in a reduction of the Subcontract sum. [107] Although the Plaintiff relented to accepting such a major revised proposal by the Defendant, the proposal was nevertheless agreed by the Employer and the Consultant Engineer of the Employer, Perunding Azman, Ooi & Rao Sdn Bhd (“Consultant Engineer”). [108] Despite being aware that the revised proposal had resulted in a variation that caused a revision in the Subcontract sum, the Defendant continued to claim based on the original Subcontract sum, which the Plaintiff rejected. Hence, this became and remains one of the key disputes between the parties. [109] In any event, the Defendant did not complete the Works under the Subcontract. It abandoned the Works and left the remaining pipelines uncompleted. [110] As parties have agreed that the total length of works completed by the Defendant is 180.9m out of 217.72m which means the percentage of work completed by the Defendant at termination is 180.9/217.72 x 100% =

83.09%. [111] Therefore the amount of the Work done by the Defendant is RM2,750,900.00 X 83.09% = RM2,285,722.81. [112] From that amount RM656,065.79 has been paid for under Certificate 1 and Certificate 2 leaving a balance of RM1,629,657.02 to be paid by the Plaintiff to the Defendant and I so ordered this and allow this under the 32 Counterclaim plus 6% GST and interest of 5% per annum from the date of the Counterclaim. Whether the whole of the Adjudicated Amount which includes costs and expenses of Adjudication is to be refunded to the Plaintiff [113] It is not disputed that the Defendant had only been paid a total amount of RM656,065.79 during the currency of the Subcontract. Subsequently, a further payment of RM1,758,329.69 was made as required under the Adjudication Decision. This Adjudicated Amount comprised the following:

RM 1,599,672.21 being the adjudicated sum and interest;

(ii) RM 48,071.00 being the adjudication costs;

(iii) RM 17,957.30 being the sum refunded for payments made to KLRCA (as the institution then was, now AIAC); and

(iv) RM 8,000.00 being costs awarded by the Court on the setting aside and enforcement applications. [114] The Defendant submitted that the total amount paid so far by the Plaintiff was the sum of RM656,065.79 and the Adjudicated Sum of RM1,599,672.21 granted by the Adjudicator making a total of RM2,255,738.00 which is about 82% of the total contract sum for the Work done before the termination. [115] Learned counsel for the Defendant submitted with considerable persuasion that for the Defendant to have to refund the sum of (ii) and (iii) as monies paid under the Subcontract pursuant to the Adjudication would be incorrect as the Adjudication Decision was not set aside and this Court should not in any way be seen to have delved into the factual and legal merits of the Adjudication Decision nor to be seen to have nullified the Adjudication Decision in any way. The Adjudication Decision was no doubt 33 and remained a Decision of Interim finality until the decision of this Court after full trial. The costs and expenses of the Adjudication has been spent and bearing in mind the temporary finality of the Adjudication Decision and the Adjudicated Amount that had been paid and in keeping with the conceptual framework of Adjudication under the CIPAA, only the Adjudicated Sum plus interest shall be taken into the final accounting of the amounts to be repaid by one party to the other. I agree with the Defendant that the amount in costs, fees ordered to be paid by the Adjudicator and administrative charges shall not be taken into account for this purpose for there was nothing wrong with the Adjudication Decision seeing that it was not set aside under section 15 and indeed it was enforced under section 28 of the CIPAA. The temporary binding nature of the Adjudication Decision has now been overtaken by the judgment of this Court and it has ceased to be binding on the parties. [116] Learned counsel for the Defendant referred this Court’s attention to the Scottish case of Castle Inns (Stirling) Ltd t/a Castle Leisure Group v Clark Contracts Ltd [2005] CSOH 178 at paragraphs 15 – 21 where Lord Drummond Young of the Scottish Court of Session, Outer House opined as follows: “[14] If a dispute between the parties is referred to the court, the court's decision on that dispute will thereafter be binding on the parties, and is clearly implicit in the scheme of clause 41A.8.1 that the adjudicator's decision on that dispute will cease to be binding. If the court's decision on the dispute is at variance with the adjudicator's decision, any sums that have been paid pursuant to the adjudicator's decision must obviously be repaid. Neither section 108 nor clause 41A states the legal basis for such repayment. 34 In theory two possible bases might exist, either an implied term of the parties' contract or a restitutionary obligation based on unjustified enrichment. This is a case, however, where the parties' contract remains in full force and effect and the obligation to repay can be said to arise directly out of the contractual scheme. In such a case the use of an implied term of the contract is a more natural mechanism than a restitutionary obligation based on unjustified enrichment, which is necessarily an extra-contractual obligation. For that reason I am of opinion that the obligation to repay is based on an implied term of the parties' contract. Perhaps the most standard ground for the implication of a contractual term is that it is necessary to give business efficacy to the parties' agreement; that test is clearly satisfied in the present circumstances. [15] In his decision, the adjudicator may determine liability for his own fee and expenses. The relevant contractual provisions are found in clause 41A.7.1 and .2, which provide as follows: "41A.7.1 The Adjudicator in his decision shall state how payment of his fee and reasonable expenses is to be apportioned as between the parties. In default of such statement the parties shall bear the cost of the Adjudicator's fee and reasonable expenses in equal proportion.

41A.7.2 The parties shall be jointly and severally liable to the Adjudicator for his fee and for all expenses reasonably incurred by the Adjudicator pursuant to the Adjudication". Any finding by the adjudicator on these matters forms part of his decision, as clause 41A.7.1 indicates. Nevertheless, any such finding does not relate to the dispute that is the subject of adjudication; it is 35 merely an ancillary finding, obviously analogous to a court's decision on expenses. The "dispute" that is contemplated by section 108 and clause 41A is clearly something that predates the reference to adjudication, and forms the substantive subject matter of the adjudication; the finding relative to the adjudicator's fees and expenses, by contrast, is something that can only be determined at the end of the adjudication process. [16] The critical question that arises in the present case is whether that part of the adjudicator's decision can be reconsidered by the court or, presumably, by an arbiter. In my opinion it cannot, on the basis that such reconsideration would be contrary to the contractual scheme found in clause 41A. I reach this conclusion for four reasons. First, there is no contractual mechanism in clause 41A that would allow such reconsideration to take place. The power in clause 41A.7.1 is conferred specifically upon the adjudicator. No appeal is possible against an adjudicator's decision, and an adjudicator's decision cannot be challenged on the ground that it is a wrong on the facts or in law: see Diamond v PJW Enterprises Ltd., 2004 SC 430. It follows that the adjudicator's decision as to liability for his fee and expenses cannot be challenged directly. Secondly, although the contractual scheme does permit an indirect challenge to the adjudicator's decision on any dispute submitted to him by means of court proceedings or arbitration, that mechanism only relates to a dispute or difference; that appears from the wording of clause 41A.8.1, and indeed section 108(3). It accordingly does not apply to the adjudicator's decision on his fee and expenses, as that part of his decision does not involve a 36 "dispute" in the contractual sense. Thus the contract has deliberately excluded any direct challenge to the adjudicator's decision, and does not, at least according to its terms, contemplate that anything other than a "dispute" can be the subject of indirect challenge. The possibility of challenging an adjudicator's decision has accordingly been taken into account in the contract, and the contractual scheme is that an indirect challenge, through court or arbitral proceedings, is possible but only in respect of the underlying dispute. That seems to exclude any challenge to ancillary findings, such as a finding on liability for the adjudicator's fee and expenses. Thirdly, because the adjudicator's decision on liability for his fee and expenses is essentially ancillary in nature, there is no commercial necessity that it should be capable of reconsideration. In any system of dispute resolution the parties are likely to incur irrecoverable outlays and expenses; indeed in some jurisdictions, such as those in the United States, a successful party does not recover anything in respect of expenses, outlays and other costs. Thus the normal criterion for the implication of a contractual term does not apply to the part of the adjudicator's decision dealing with his fee and expenses. [17] The foregoing reasons for the conclusion that an adjudicator's decision on his fee and expenses cannot be reconsidered by the court all relate to the contractual structure of clause 41A. The fourth reason indicates an obvious rationale underlying that conclusion; it is the practical difficulty of reconsidering the adjudicator's decision on such a matter. Adjudication is a distinct process, with its own peculiar features. In particular, it is subject to very demanding time limits, which apply both to the parties and to the 37 adjudicator. The result is that the parties' cases may not be as fully prepared as is desirable, and the adjudicator may be compelled to come to a relatively hasty decision. In court proceedings, by contrast, a full and detailed presentation is expected, and the judge has a significantly better opportunity to come to a carefully reasoned decision. Moreover, additional facts may emerge, or additional arguments may be developed. It is accordingly impossible to conclude merely from the fact that the court reached a different decision that the adjudicator's decision was wrong. The decisive factor in the court's decision might not have been presented to the adjudicator, or might have been presented in such a way that its significance was obscured. If, therefore, the court is to reconsider the adjudicator's decision on liability for his fee and expenses, the facts and arguments presented to the adjudicator will frequently require to be investigated and taken into account. That is inevitably a difficult task; it involves weighing the significance of arguments that are not the same as those presented to the court. In addition, in some cases matters may be argued before the adjudicator that are not argued before the court. The present case provides such an example; in the first adjudication the question of the adjudicator's jurisdiction was argued, I was informed, at some length. That issue was determined in favour of the present defender. It is not, however, an issue that can arise in the present proceedings. If it is the case that a large part of the argument before the adjudicator was taken up with the question of jurisdiction, it is obviously likely that his decision on liability for his fee proceeded at least in part on the basis 38 that the present defender had succeeded on that part of the argument. Consequently, even if the pursuer were wholly successful in the present litigation, it would not be appropriate to allow it to recover the whole of the adjudicator's fee and expenses. How any apportionment should be carried out, however, is an extremely difficult task for a tribunal that has not heard the same arguments as the adjudicator. For all these reasons I am of opinion that there are sound practical reasons for holding that an adjudicator's decision on liability for his fee and expenses cannot be reopened in any proceedings before the court.” (emphasis added) [117] Though the context appears to be that of Statutory Adjudication in Scotland, yet the conceptual framework and jurisprudence can be appreciated and applied to our scheme of Statutory Adjudication. It makes good sense and is consistent with the concept of Adjudication as we understand it as underscored by section 13 of the CIPAA as follows: “13. Effect of Adjudication Decision The adjudication decision is binding unless—

It is set aside by the High Court on any of the grounds referred to in section 15;

The subject matter of the decision is settled by a written agreement between the parties; or

The dispute is finally decided by arbitration or the court.” (emphasis added) [118] With the judgment of the Court being given after full trial, the dispute has thus been finally decided by the Court. With that the Adjudication Decision ceases to be binding and payments are to be made pursuant to the judgment of the Court and any amount paid pursuant to the 39 Adjudication Sum relating to the dispute including interest and GST is to be repaid back save for costs, fees and administrative charges granted by the Adjudicator. [119] Therefore based on the above, the sum that the Defendant shall pay back the Plaintiff arising out of the Adjudication Decision is RM1,684,295.39. Pronouncement [120] To recapitulate, the Plaintiff succeeded in its claim for the additional costs in completing the balance Works left unfinished by the Defendant arising out of the lawful termination of the Subcontract by the Plaintiff and I had allowed judgment to be entered by the Plaintiff against the Defendant for this head of claim for the sum of RM979,649.73 together with GST and interest at the rate of 5% per annum from the date of the Statement of Claim to realization. [121] Consequentially the Defendant shall repay the Plaintiff the Adjudicated Sum granted arising out of the dispute referred to Adjudication of the sum of RM1,684,295.39 consisting of the sum of RM1,599,672.21 plus interest. This sum to be repaid shall carry interest at 5% per anum from date of judgment to realization. [122] The Defendant’s Counterclaim is allowed for the sum of RM1,629,657.02 for the balance due for the Work done under the Subcontract as at the date of the termination together with GST and interest at the rate of 5% per annum from the date of the Counterclaim. 40 [123] Looking at the circumstances of this case, this Court had ordered each party to bear their own costs. Dated: 30 August 2018. - signed - Y.A. LEE SWEE SENG Judge Construction Court High Court Kuala Lumpur For the Plaintiff. : Nicholas Hor Sien Pin and Elise Tam Vie Vien (Messrs Siong & Rita) For the Defendant : Oon Chee Kheng and Daniel Lau Hsien Yuong ( Messrs CK Oon & Co) Date of Decision: 11 April 2018.