Gsib Sdn Bhd v Planet Mentari Sdn Bhd (WA-22C-88-12/2021)

PLANET MENTARI SDN BHD (NO. SYARIKAT.: 201301003388 (1033227-U) …DEFENDAN

TAN KOK YONG (BERAMAL SEBAGAI “HR ASSOCIATES”) …DEFENDAN KEDUA

Planet Mentari Sdn Bhd (D1) is the owner of a project known as “The Proposed Refurbishment of Existing Building to Accommodate New Hotel Soleil Bukit Bintang, Kuala Lumpur For Messrs. Planet Mentari Sdn Bhd” (“Project”), which hotel was previously known as “Hotel Soleil” and subsequently rebranded to “Stay With Bintang”.

By way of a Letter of Award (“LOA”) dated 25.7.2018, D1 had appointed GISB Sdn Bhd (Plaintiff) to carry out the Project (“Project”).

3.

The contract documents comprised of, inter alia, the following (“Contract” ):

4.1 Letter of Award dated 25.7.2018 (“LOA”);

4.2 The Articles of Agreement; and 4.3 CIDB Standard Form of Contract for Building Works, 2000

Amongst the terms and conditions of the LOA are:- Clause 1 – the Contract Sum was mentioned as RM41,166,000.00 Clause 2 – The overall completion time shall be 9 months from the date of commencement. The breakdown of the time frame shall be 2 weeks for design development upon appointment of consultants, 9 months for construction works which includes 1 month for CCC; Clause 3 - The date of site possession was on 27.7.2018, followed by the date of commencement 2 weeks therefrom on 10.8.2018 and a 9 months’ time for completion ended on 9.5.2019; Clause 4 - It is a condition precedent that the Plaintiff shall be required to deposit with the 1st Defendant a Performance Bond for the due performance, completion and maintenance of the works (“Performance Bond”). The Performance Bond shall be valid for the full contract period of 9 calendar months or until completion of the works, whichever is longer plus Defects Liability Period (“DLP”) of 12 months. Unless and until an approved form of the Performance Bond is received and accepted by the 1st Defendant, no payment under the Contract will be made; Clause 6 - The LAD to be imposed for delay in completion shall be RM20,000.00 per calendar day. The maximum amount of LAD shall be 10% of the Contract Price; Clause 7 - The Defects Liability Period (DLP) shall be 12 months upon issuance of the Certificate of Practical Completion (CPC) by the Architect. Pursuant to clause 27 of the CIDB Standard Fro Conditions of Contract, the Plaintiff shall make good by replacement or otherwise any defects in the Project which appear before the issuance of the Certificate of Making Good Defects (“CMGD”) in accordance with the Contract and shall bear any expenses reasonably incurred by D1 as a direct consequence of such defects; Clause 8.1 – Payment for work executed shall be certified based on the completion of the progress works and in accordance with the terms and conditions in the tender document. The 1st moiety of Retention Sum (2 ½ % of the Contract Sum) shall be released upon issuance of CPC and the 2nd moiety of Retention Sum (balance of 2 ½ % of the Contract Sum) shall be released upon the Final Certificate or CMGD, whichever is later; Clause 8.2 – The period of honouring certificate shall be 30 days from the receipt of Architect’s Certificate and duly submitted to D1 for further action; Clause 8.3 – 1st progress payment will only be released after the Contractor has deposited the Performance Bond Clause 8.4 – 2nd progress payment will only be released after the Contractor has signed the contract Document Clause 8.5 - No payment will be made when the Plaintiff failed to extend the Performance Bond during the Extension of Time (EOT) period. Payment will be released once the policies of coverage for EOT are submitted Clause 22 – The Plaintiff is required to provide full cooperation in term of site coordination with D1’s appointed contractors and the hotel management to ensure that there is no delay in the works. These contractors shall be nominated to the Plaintiff and Profit and Attendance shall be paid in accordance with the agreed contract document.

A Performance Bond dated 14.8.2018 was subsequently procured by the Plaintiff in the sum of RM2,058,300.00, with the validity period from 27.7.2018 to 27.4.2020. There however appears to be no subsequent renewal of the Performance Bond by the Plaintiff.

Tan Kok Yong, the 2nd defendant in the case herein (“D2”) was originally the Consultant Quantity Surveyor (“QS”) for the Project pursuant to the Conditions of Contract.

The Superintending Officer (“SO”) of the Project at the initial period was then one Mr. Chua Teck Leong (“Chua”), an employee of D1.

Subsequently, D1 appointed one Sam Lau to replace Chua as the SO. However upon the Plaintiff’s inquiry that Sam Lau lacked the credentials to occupy the position of SO, D1 vide its letter dated 26.08.2020 appointed D2 as the SO with effect from 28.08.2020.

10.

SO Chua Teck Leong (“Chua”)

Architect Mr Lim Jit Hui of Jit Architect

Civil and Structural Engineer (“C&S Engineer”)

Mechanical & Electrical

Quantity Surveyor (“QS”)

Specialist Consultant (“Specialist Consultant”)

D1’s Project Manager Mr. Shunmugamnathan s/o

Only Chua and DW-3 being the QS and Shaan as D1’s Project Manager were appointed by D1, with the rest of the Project consultants all being appointed by the Plaintiff.

On 12.8.2020, D1 appointed DW-2 to replace Chua as the SO. On the same day, D1 also appointed Ar. Nik Arshad Nik Mohamed and Mr. Leonard Lim (DW-1), both from Kumpulan Senireka Sdn Bhd as the Superintending Officer Representatives (“SOR”).

Thereafter by a letter dated 25.8.2020, the Plaintiff requested confirmation whether DW-2’s appointment met the “SO” definition under clause 1 of the COC.

Consequently, on 28.8.2020, DW-2 ceased to be the SO and D1 appointed DW-3 / D2 to assume the role of SO in addition to his existing responsibilities as QS.

By way of a letter dated 28.8.2020 issued by D1 to the Plaintiff and copied to all Project consultants, the Plaintiff was expressly notified that certain authorities which had been vested in the SO had been delegated to the SOR. They are as follows

The Plaintiff did not respond or object to the aforesaid delegation at any time contemporaneously during the entire Contract period

The Plaintiff has thus in the matter before this Court claimed for the following a. A declaration that the Certificate of Practical Completion issued by the Architect on 30.10.2020 is a valid certificate under the contract between the Plaintiff and D1; b. A declaration that the Certificate of Making Good Defects should be issued in favour of the Plaintiff; c. A declaration that the 1st Moiety of the Retention Sum is due and payable to the Plaintiff amounting to RM925,687.84; d. A declaration that the 2nd Moiety of the Retention Sum is due and payable to the Plaintiff amounting to RM925,687.84; e. A declaration that the Plaintiff is entitled to the full periods applied for under EOT1, EOT2, EOT3 and EOT4 or alternatively that the Contract between the Plaintiff and D1 has become at large; f. Payment of a sum of RM4,910,863.81 by the D1 to the Plaintiff for; i. Balance Contract Sum amounting to 2,349,062.57 ii. Variation Orders (ID works) amounting to RM1,743,047.44 iii. Variation Orders (M&E works) amounting to RM621,085.80 iv. Enhancement works amounting to RM140,728.00 v. Rental hoardings amounting to RM56,940.00 g. Payment of a sum of RM1,695,255.38 by the D1 to the Plaintiff for loss and expenses / prolongation costs suffered by the Plaintiff; h. General Damages to be paid by the D2 to the Plaintiff; i. Interest on the above sums from 30.11.2021 to full settlement of the judgment sums; j. Costs on a solicitor and own client basis.

The Plaintiff’s pleaded case against D2, as Superintending Officer (“SO”) and Consultant Quantity Surveyor (“QS”), may be summarised as follows:

That the Progress Payment Certificates No. 12 and 13 which were originally issued on 30.08.2019 and 27.09.2019 were subsequently withdrawn, at the behest of the First Defendant, by D2 as the SO and new amended Interim Payment Certificates No. 12B and 13B were issued on 05.12.2019 by

(ii) That D2 failed to appraise the Plaintiff as to why he had withdrawn the original certificates No. 12 and No. 13 and reissued amended certificates No. 12B and No. 13B with lower amount;

(iii) D2 acting in his capacity as the SO and / or the Consultant QS of the Project owes a duty of care to the Plaintiff to exercise due diligence and care in carrying out his duties knowing that his failure to carry out his duties fairly, carefully and professionally will result in immediate financial loss to the Plaintiff

(iv) That the Progress Payment Certificate issuance was further delayed as a result of the failure of the D2 to certify the Architect’s fees;

That D2 re-issued the said Interim Certificates No. 12B and No. 13B in neglect or breach of such duty and in particular:- a. Failed to evaluate the Works fairly and accurately in issuing the lowered Interim Payment Certificates; b. Allowed himself to be wrongfully influenced by the First Defendant to issue Interim Payment Certificates that were inaccurate and to the detriment of the Plaintiff; c. Displayed clear bias against the Plaintiff in favouring the First Defendant’s requests to lower the amounts in the said Interim Payment Certificates.

D2 is therefore liable to the Plaintiff for damages suffered by the Plaintiff as a result of his breaches as abovesaid.

The Plaintiff further pleads that D2 and/or representative to the SO (“SOR”) failed to decide on the Plaintiff’s applications for EOT2 and EOT3 within the 30-day period stipulated under the Contract, with the result that the contract is said to have become “at large” once the original completion date had expired while instructions and payments continued.

The Plaintiff also alleged that the Certificate of Non-Completion (“CNC”) issued on 04.09.2020 was unlawful and mala fide, being issued 423 days after the expiry of the time for completion (as extended by EOT1), in breach of Clause 26 of the Condition of Contract Conditions of Contract. Purportedly that this was simply an unlawful, unilateral attempt to make time of the essence again; and

That the second issuance of a CNC on 23.02.2021 is equally deficient as it is also done in bad faith and unlawful.

The Plaintiff also alleges that D2 acted in bad faith in relation to the inspection and certification of practical completion. It is pleaded that on 13.09.2020, D2 attended an inspection but called it off on the basis of a lack of documentation;

Although the Plaintiff subsequently provided the documents and a reinspection took place on 28.09.2020, followed by a further request for reinspection on 16.10.2020, D2 allegedly refused to participate despite being present at the premises and ignoring repeated calls;

The aforesaid, it is alleged clearly shows the mala fides of D2 and / or the SOR in failure to certify the works accomplished by the Plaintiff. The Architect then personally conducted an inspection on 29.10.2020 and thereafter issued the Certificate of Practical

D2 however disputed the issuance of the Certificate of Practical Completion vide his letter dated 05.11.2020. This was refuted by the Architect vide his letter dated 16.11.2020. On the Defect Rectification Costs, 1st and 2nd Moeity of the Retention

Notwithstanding the Architect’s CPC, D2 is said to have

27.1 wrongfully issued a notice for rectification works and on 15.06.2021 purported to certify RM3,456,111.90 as rectification costs to be deducted from the retention sum, despite the alleged defects not having been certified by the Architect and without proof that works have been carried out and/or expenses incurred.

27.2 That the certification by D2 was clearly done in bad faith to disentitle the Plaintiff from being paid the 1st Moeity of the

27.3 The Plaintiff had thus vide its letter of 22.06.2021 referred such disputes to D2 for his decision pursuant to Clause 47.1 of the Conditions of Contract. However, D2 vide letter dated 16.08.2021 expressly refused to make any such decision pursuant to Clause 47.1 which is a failure or breach of his duty as the SO for the Project.

27.4 The Plaintiff avers that all rectification works lawfully required of it have been accomplished satisfactorily and thus D2 was in breach of his duty to the Plaintiff to administer the contract between D1 and the Plaintiff fairly, professionally and accurately has failed, refused or neglected to issue the Certificate of Making Good Defect “CMGD” and such breach of duty on the part of D2 has caused loss to the Plaintiff in that Plaintiff has not been paid the 2nd Moiety of the Retention Sum. In relation to Final Account

The Plaintiff contends that D2 acted inconsistently in relation to the final account by ignoring the Plaintiff’s Statement of Completion dated 22.06.2021 and instead issuing disputed draft accounts on 08.07.2021 and 02.11.2021;

In the circumstances the Plaintiff has suffered a loss due to the D2’s refusal to certify the sums lawfully due to the Plaintiff.

D1 in its defence and counterclaim against the Plaintiff’s allegations states as follows:-

30.1 Upon the issuance of the IPC, the Plaintiff will always issue invoices to D1. The 30 days’ period of honouring certificate would only start to run from the date of D1’s receiving the invoices.

30.2 D1 is entitled to withhold payment due to the Plaintiff’s failure to renew Performance Bond;

30.3 The Plaintiff had failed to show the delay in payments had critically affected the Plaintiff’s work progress and that the Plaintiff had suspended the works.

30.4 The Plaintiff had failed to show delay in payments amounts to an act of prevention entitling it to EOT;

30.5 The IPCs were issued by the Architect and the Architect was empowered to revise the same. There was no interference by D1 on the payment certifications.

30.6 The valuation leading to IPC No 12B and 13B were done jointly between the Plaintiff, D1, DW-3/D2 and the Architect;

30.7 The purported financial assistance rendered by the Plaintiff to D1 was irrelevant;

30.8 The Plaintiff did not comply with the procedures under Clause 24 COC in the EOT Applications submissions. The SOR was entitled to assess the EOT and there was no delay by the SO/SOR in assessing the EOT Applications.

30.9 Apart from those EOT granted by the SO/SOR , the Plaintiff had failed to prove its entitlement to any further EOT under Clause 24 of the COC at all;

30.10 As the Plaintiff had failed to show its entitlement to further EOT apart from those granted by the SO/SOR, the time of completion was not rendered at large. The CNCs were valid;

30.11 The Plaintiff had failed to renew the Performance Bond as required under the Contract and there was no waiver of such requirement by D1 at all;

30.12 The Plaintiff had failed to complete the works by the Revised Completion Date of 17.11.2019. The CPC issued by the Architect was disputed as there were numerous defects and outstanding works not completed by the Plaintiff and no CCC was issued at the time CPC was issued;

30.13 CCC was only issued on 12.4.2021, and the works were only practically completed on this date, if any;

30.14 D1 is entitled to appoint a third party contractor to complete the defect rectification works and outstanding works and claim for rectification costs against the Plaintiff;

30.15 There is no trust on the Retention Sums at all. The 1st moiety of Retention Sums was not due to be released. There was also no CMGD issued for this Project. Hence, the 2nd moiety of Retention Sums was also not due to be released;

30.16 Save for RM143,615.50 granted by the SO, the Plaintiff is not entitled to claim for RM7,419,989.93 in this case;

30.17 D1 is entitled to impose maximum LAD in the sum of RM4,116,600.00 from 18.11.2019 until 30.10.202 or alternatively 12.4.2021 arising from the Plaintiff’s failure to complete the works by the Revised Completion Date;

30.18 D1 is entitled to claim for the rectification costs in the sum of RM5,191,811.90 against the Plaintiff; and

30.19 Based on the Final Account, the amount due and payable by the Plaintiff to D1 amounted to RM5,108,099.53.

D1 contends that Shaan was named by D1 as its Project Manager solely to oversee the mechanical and engineering (“M&E”) aspect of the Project and that from the inception of the Contract, D1 already appointed JL Asia Resources Pte Ltd (“JL Asia”) as its representative and Project Manager to provide overall management services for the Project, with DW-2 as the lead person in charge.

D1 further contends that DW-2 was assisted by a team comprising of Syndee Teh (responsible for quantity surveying matters) and Celeste Chen and Adrian Teo, both of whom were stationed at the Project site to supervise the site operational matters and to carry out hotel management matters on D1’s behalf

D1 submits that D2’s appointment as SO was proper, valid and consistent with the terms of the Contract, with D2 continuing to discharge his original duties as QS alongside his role as SO.

To surmise the parties had agreed in Court to the following

34.1 the original SO named in the Contract was Chua Teck Leong, who was later replaced by Sam Lau and subsequently by the Second Defendant (‘D2’), who was the Project’s quantity surveyor and was appointed as SO on 28.8.2020;

34.2 The Architect for the Project was Jit Architect appointed by the Plaintiff.

34.3 The Contract is subject to CIDB Standard Form of Contract

34.4 The Plaintiff had applied for EOT application No. 1, 2, 3 and 4.

34.5 Chua (the SO at that time) had issued Certificate of EOT No. 1 dated 29.5.2019 for 60 days with preliminaries amounting to RM143,615.50 to the Plaintiff.

34.6 The SOR issued Certificate of EOT No. 2 (for EOT Application No.3) on 4.9.2020 granting EOT for 101 days until 18.10.2019 to the Plaintiff;

34.7 The SOR issued Certificate of EOT No. 3 (for EOT Application No. 4) on 20.2.2021 granting EOT for 30 days from 18.10.2019 until 17.11.2019.

34.8 The Certificate of Practical Completion (“CPC”) was issued by the Architect on 30.10.2020 which was opposed by D1 and D2.

34.9 On 4.9.2020 and 23.2.2021, D2 had issued the Certificate of Non-Completion (“CNC”).

34.10 On 12.4.2021, the Architect issued the Certificate of

In the proceedings herein, D1 had appointed Mr Soh Lieh Sieng from Contract Solutions-i Group as its delay expert to make an assessment on the cause and effect of the alleged delay, as well as to comment on the circumstances surrounding the alleged delay event identified in relation to the Project.

D1 had also appointed Mr Wai Chan Ming from Contract Solutions-i Group as its quantum expert to make assessment on the Final Account including the Plaintiff’s entitlement to its Loss and Expense Claim/prolongation costs in relation to the Project.

Unfortunately, on 3.9.2024, Wai Chan Ming passed away, and Mr Soh Lieh Sieng subsequently assumed his role as the quantum expert before the Court.

Subsequently, Soh Lieh Sieng who was recorded /identified as DW4 prepared his own report while adopting and applying the previous reports prepared by the late Wai Chan Ming and had testified before this Court on 9.4.2025 and 22.5.2025.

This Court had also on 9.5.2022 appointed a Court Appointed Expert from ArchiCentre SB (“ACSB”) to provide an expert report, which Court-Appointed Expert Report (“ACSB report”) comprised the following: -

39.1 To determine whether the alleged defects by the D1 are valid defects under the Contract – STAGE 1;

39.2 Upon such determination, to propose rectification methods for valid defects – STAGE 2;

39.3 Cost for such rectification – STAGE 3

At the trial a total of 10 factual witnesses and 2 expert witnesses were called by the parties, namely: No. Plaintiffs’ Witnesses Reference 1) Ar. Lim Jit Hui (Subpoena Witness) PW-1 or Architect interchangeably 2) Nagendrao A/L Chelliah (Subpoena Witness) PW-2 3) R. Surenthira Stephen PW-3 or M&E Engineer interchangeably 4) Aaron Luke A/L Peter Raj (Subpoena Witness) PW-4 5) Thirunavukkarasu A/L Namasivayam PW-5 6) Prabagaran Gopalakrishnan PW-6 7) Alexandar Ronald Kumar PW-7 1st Defendant’s witnesses 8) Leonard Lim Chin Hoe DW-1 or SOR interchangeably 9) Sam Lau Kim Seng DW-2 2nd Defendant’s witnesses 10) Tan Kok Yong DW-3 or D2 or SO interchangeably Court Appointed Expert (Defects) 11) Ar. Anthony Lee Tee (Architect Centre Sdn Bhd) Ar. Anthony 1st Defendant’s Expert (Delay & Quantum) 12)

The Agreed Issues between the Plaintiff and D1 are set out as follows:

41.1 Whether the Plaintiff is entitled to get a full extension of time as requested under extension of time (“EOT”) 1, EOT2, EOT3 & EOT4;

41.2 Whether the completion time under the Contract between the Plaintiff and D1 has been set “at large”

41.3 Whether D1 is entitled to claim liquidated damages (“LAD”) amounting to RM4,116,600.00 under the Contract against the Plaintiff or any amount that the court deems fit and proper;

41.4 Whether the Certificate of Practical Completion (“CPC”) that was issued by the Architect on 30.10.2020 is valid;

41.5 Whether the Plaintiff is entitled to claim the amount of RM5,724,734.55 against D1 for works done;

41.6 Whether the Plaintiff is entitled to claim the amount of RM1,695,255.38 against D1 for loss and expense suffered by the Plaintiff;

41.7 Whether the 1st and 2nd moiety of the Retention Sum is due and payable by D1 to the Plaintiff;

41.8 Whether it is the Plaintiff’s responsibility to carry out rectification works for outstanding works and/or defects as ordered by the Superintending Officer’s Representatives (“SOR”) and whether the Plaintiff has failed to do so;

41.9 Whether D1 is entitled to claim for rectification costs for outstanding works and/or defects amounting to RM5,191,811.90 or any other amount that the court deems fit and proper against the Plaintiff;

41.10 Whether the sum of RM5,108,099.53 is due and payable by the Plaintiff to D1 under the Final Account dated 26.1.2022;

41.11 Whether the Plaintiff is entitled to suspend works of the Project pursuant to Clause 42.10 of the Contract by reason that there is no continuous payment by D1;

41.12 Whether there were delays in payment of Progress Payment Certificates No. 9, 10, 12B, 13B ,14A, 15, 16, 17, and 18 by

41.13 Whether D1 has interfered with the certification of works progress with regards to Progress Payment Certificates No. 12B and 13B.

There are also additional Plaintiff issues which consists of a. Whether D1 and/or the contractor it appointed prevents and/or caused delay to obtain the Certificate of Completion and Compliance (“CCC”); b. Whether Jason Lee, D1’s main shareholder (through a Singapore company known as Forte Land Pte Ltd) (“Jason”) and D1 have requested PW-7 to assist Forte Land Pte Ltd from financial aspect to fulfill UOB requirement for cash deposit before the disbursement of payment to Forte Land Pte Ltd to fund for the Project which faced with financial problem; c. Whether the Plaintiff is entitled to claim costs and additional expenses (apart from works execution cost) because of D1’s intervention and prevention for the period from 10.6.2019 to 30.10.2020 when CCC finally attained in the sum of RM1,551,609.88; and d. Whether the Plaintiff is entitled to claim for the hoarding rental costs for RM4,745.00 per month as of 1.11.2021 amounting to RM59.940.00 for continued loss of use of the hoardings as a result of D1’s refusal to allow the Plaintiff to remove the same from the Project site.

This Court having considered the aforesaid issues in toto, finds that are in fact some overlapping issues and/or matters which are inter-related, and thus I will address them in broad terms together where necessary. Has there been any delay and/or non-payments amounting to interference / “act of prevention” by D1 resulting to Contract becoming at large.

My starting point in deciding the case before me would be to determine the question whether there was any delay and/or non-payments amounting to interference / “act of prevention” by D1 resulting to the Contract becoming at large as alleged by the Plaintiff.

The Plaintiff submits before this Court that all payments were delayed by D1 as per Clause 8.2 LOA and Clause 42.9 COC.

The aforesaid clauses are set out as follows:

The date and particulars of the alleged delay in payments of Interim Payment Certificates (“IPCs”) are as attached as Appendix 1 to the Statement of Claim.

It is further submitted by the Plaintiff that the on-going delay in payments of the IPCs was one of the major reasons for the Plaintiff’s EOT Application No. 2 and 3 and 4 as follows: - i. IPC No. 1, 4, 5, 6 and 7 – EOT Application No. 2 ii. IPC No. 9 to 18 – EOT Application No. 3 iii.

D1 states that in total 4 EOT Applications were submitted by the Plaintiff to the SO for approval. The EOT assessments made by the SO and/or SOR are as follows:- EOT Application EOT granted Extended Completion Date EOT Application No. 1 dated 12.12.2018 (Bundle AF / Encl. 52, pg 178-192) 60 days based on EOT Certificate No. 1 dated 29.5.2019 (Bundle CM / Encl. 111, pg. 128-129)

9.7.2019 EOT Application No. 2 dated 26.6.2019 (Bundle CM / Encl. 111, pg 130-151) 0 day based on Notice of Rejection dated 4.9.2020 (Bundle CM / Encl. 111, pg 189)

9.7.2019 (maintained) EOT Application No. 3 dated 29.7.2020 (Bundle CM / Encl. 111, pg 157-188) 101 days based on EOT Certificate No. 2 dated 4.9.2020 (Bundle CM / Encl. 111, pg 191)

18.10.2019 Certificate of Non-Completion (“CNC”) dated 4.9.2020 issued to certify the Plaintiff’s failure to complete the works by 18.10.2019 (Bundle AR / Encl. 64, pg. 1) EOT Application No. 4 dated 25.9.2020 (Bundle CM / Encl. 111, pg 260-261) 30 days based on EOT Certificate No. 3 dated 20.2.2021 (Bundle CM / Encl. 111, pg 290)

17.11.2019 Another CNC dated 23.2.2021 issued to certify the Plaintiff’s failure to complete the works by 17.11.2019 (Bundle AR / Encl. 64, pg. 8)

Thus, D1 in its defence submits that after taking into account the EOT granted to the Plaintiff, the original completion date of 9.5.2019 was extended to 17.11.2019 (“Revised Completion Date”), and that notwithstanding the EOT granted, the Plaintiff had delayed completing the works as required under the Contract by the Revised Completion Date without any proper justification.

The Plaintiff contends that EOT Application No.1 was made vide a letter dated 12.12.2018 requesting for 2 months EOT from the original completion date of 9.5.2019 on the basis that D1 failed to nominate the Nominated Sub-Contractors (“NSCs”) in a timely manner. I have perused the said letter and agree with the Plaintiff’s contention.

From the documents before me, I find that EOT1 was granted by Chua (who was the SO at that material time) for a period of 60 days with revised date for completion being 9.7.2019 and 1 month preliminaries cost approved, RM143,615.50 vide a letter dated 29.5.2019.

The Plaintiff however argues that it appears that Chua had granted EOT 1 on the basis of delay in payments, which the Plaintiff states was not the basis of Plaintiff’s application for EOT No. 1. when Chua responded to the EOT Application No. 2 applied by the Plaintiff on 9.7.2019 as follows: -

After reading the said letter dated 16.6.2019 in its entirety, I agree with the Plaintiff that Chua had in the said letter granted EOT 1 based on the ‘suspension for delay payments’.

It is thus submitted by the Plaintiff that Chua has failed to consider the reason for EOT Application No. 1 made by the Plaintiff and the grant of EOT No.1 was done on the wrong basis and also resulted to affect the Plaintiff’s EOT Application No. 2.

Hence the Plaintiff contends that this demonstrates a failure on the part of the SO to evaluate the EOT Application No. 1 as applied and that the SO had failed to grant the EOT for late nomination of NSCs even though recommended by the Architect. The Plaintiff thus submits that the extension of time provision has become otiose / inoperable, which they contend renders the contract at large.

After examining the letter from the Architect, I do find that the Architect had indeed expressly specified that the “main factors that are delaying the Main Contractor and they are

The late instruction given by the SO to the Main Contractor in nomination of Sub Contractors”

It has also been observed that by an email dated 06.05.2019 from Alex (PW-7), the Plaintiff had referred to a telephone conversation and expressed in the said email that “Letter on EOT-you mention there isn’t any requirement for us to write another EOT letter and you will work on our existing application to grant us the EOT as discussed (1 month + 1 month)…”

Chua in in his reply dated 7.5.2019 did not object to the contents of the email 6.5.2019. Thereafter the Plaintiff, through Alex (PW-7) had sent another email dated 15.7.2019 on the issue of EOT 2 to Chua who had once again not objected to the same.

From all of the above said evidence when read together, which can be found in Bundle AF, I find that the SO Chua, D1 via Jason and the Plaintiff through Alex (PW-7) had come to an understanding that there would be no requirement for any written correspondences on extensions of time and that D1 would grant extensions of time on a month to month basis pending the ‘financial agreement and arrangements being finalised” by D1 to the Plaintiff. This would then, as submitted by the Plaintiff to which I agree, enable the Plaintiff to revise the timeline / work programme and the subsequent completion of the works.

I would also rely on this point on the case of David Wong Hon Leong v Noorazman bin Adnan [1996] 4 CLJ 155 where the Court of Appeal speaking through Gopal Sri Ram CJA (as he then was) quoting Lord Esher in Wiedemann v. Walpole [1891] 2 Q.B. 534, 537 remarked “Here, we have only to see whether the mere fact of not answering the letters, with nothing else for us to consider is any evidence in corroboration of the promise.' (Emphasis added). Earlier, in his judgment, he said, 'Now there are cases - business and mercantile cases in which the Courts have taken notice that, in the ordinary course of business, if one man of business states in a letter to another that he has agreed to do certain things, the person who receives that letter must answer it if he means to dispute the fact that he did so agree. (The emphasis is mine.)”

The above approach was cited with approval by the Federal Court in the case of Dream Property Sdn Bhd v Atlas Housing Sdn Bhd [2015] 2 CLJ 453.

I have further observed that the testimony of PW 7 (Alex) on the above was at the trial not rebutted as neither Chua or Jason was called to appear and testify before this Court to rebut PW7’s evidence. In the circumstances, I hold that Section 114(g) Evidence Act 1950 will apply and Plaintiff has in my decision discharged its burden of proof on this issue.

Section 114(g) of the Evidence Act 1950 states The court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct, and public and private business, in their relation to the facts of the particular case. ILLUSTRATIONS The court may presume:-

that evidence which could be and is not produced would if produced be unfavourable to the person who withholds it;

Thus, I am invoking the presumption of an adverse inference when such witnesses were not called in accordance with the above said section 114(g). See also Curet Transport SA & Anor v Shapadu Trans-System Sdn Bhd [1999] 4 MLJ 150 on the principles for invoking s 114 (g).

Following from the above, I therefore reiterate my findings that the aforesaid Plaintiff’s emails are to be admitted as evidence which amounts to an admission of the understanding between the parties that there would be no requirement for any written correspondences on extensions of time and that D1 would grant extensions of time on a month to month basis subject to the ‘financial agreement and arrangements being finalised” by D1 to the Plaintiff.

I hold that the above was a failure to correctly evaluate the EOT by the SO as recommended by the Architect which leads this Court, amongst others, to a conclusion that the Contract had become at large.

From the evidence at trial I have found that the Plaintiff then put forward an EOT Application No.2 on 26.6.2019 requesting for:-

69.1 37 days EOT arising from re-nomination of NSC (different NSC than that applied for under EOT Application No.1) by the D1;

69.2 86 days EOT on account of delays in payments of certified sums in Interim Certificates (IPCs) No. 1, 4, 5, 6 and 7 by D1.

I have also found that the SO at that time, Chua, had reverted vide a letter dated 9.7.2019 requesting more information from the Plaintiff and had stated, albeit wrongly, that the Plaintiff’s application for delay of payments had been granted in EOT 1. I thus hold that this is further corroborative evidence that a month-to-month extension was agreed between the said SO, Chua, and Plaintiff since that time.

Arising from the above I have noted that Chua had sent 2 letters dated 9.7.2019 and 2.3.2020 respectively where he had pursuant to clause 24 of the COC requested the Plaintiff to submit a catch up program and the duration required, and provide additional information / documents detailing how the events alleged affected the work progress.

Thereafter the SOR, after being appointed, had subsequently on 4.9.2020, issued a Notice of Rejection for EOT Claim No. 2 to reject the EOT Application No. 2 (Bundle CM / Encl. 111, pg. 189) on the basis that:

Consequently, the Plaintiff issued 2 letters dated 25.9.2020 and 21.10.2020 respectively disputing the grounds of rejection and alleging inordinate delay of 405 days by the SO/SOR in assessing EOT Application No. 2.

From the documents I have carefully scrutinized before this Court, I have found that the SOR had then on 5.10.2020, responded to the Plaintiff’s allegations of “inordinate delay” in handling EOT Applications No. 2 and 3 stating that any delay in responding was caused solely by the Plaintiff’s own failure to provide the information earlier requested by the SO/SOR to demonstrate the requisite causal link between the delay events and their alleged impact on progress. Accordingly, the SOR rejected all EOT claims that lacked proper cause-and-effect justification.

A perusal of the Statement of Claim will show that the Plaintiff pleads at paragraphs 44 to 46 of the SOC that the Contract had become at large due to:

The SO’s failure to decide on EOT Applications No. 2 and 3 within 30 days as stipulated under the COC;

The CNC dated 4.9.2020 (having been issued 423 days after 9.7.2019 (being the extended completion date granted under

The CNC dated 23.2.2021 being allegedly issued in bad faith and unlawful.

Clause 24.3 of the COC (Bundle H / Encl. 29, pg. 272) is the contractual provision which governs the SO / SOR’s decision on the Plaintiff’s EOT Applications and which reads as follows:

It is in my view clear from the above provision that any entitlement to EOT has to be notified to the Plaintiff by the SO within 30 days of the receipt of the Plaintiff’s notice or further information. The words “..or further information, as the case maybe…’ expressed therein in clause 24.3 (a) is indicative that in the event the SO seeks further information, the 30 day period referred therein will only come into play when such information requested is so delivered by the Plaintiff to the SO.

As indicated above, I have found that the Plaintiff had never applied for EOT No. 1 on the basis of delay in payments. I thus find that Chua had wrongly indicated that the Plaintiff’s application for delay of payments had been granted in EOT 1 as Chua has failed to consider the reason for EOT Application No. 1 made by the Plaintiff. Accordingly the grant of EOT No.1 was done on the wrong basis which affected the Plaintiff’s EOT Application No. 2.

As for the rejection of EOT 2, which coincidentally was done by the new SOR, who was not present during the time EOT No. 2 application was first submitted, on the alleged basis that the Plaintiff had failed to show the cause and effect of the delay in payments; I find that the rejection was only done some 436 days after the application had been submitted which is way out of the 30-day period provided for in Clause 24.3 of the COC.

At the risk of repetition, I have held that Chua at that time had correctly, as advised by the Architect, granted EOT No.1 but later stated the wrong basis and resulted to affect the Plaintiff’s application for EOT No. 2. and that such purported rejection by the SOR was in direct contradiction to the agreement between Plaintiff and Chua.

For all of the above reasons, I hold that the rejection of EOT Application No.2 was wrong

I, then note that the Plaintiff had made EOT Application No. 3 on

29.07.2020 requesting EOT until 28.9.2020 for the following grounds: - a. force majeure due to the Movement Control Order (“MCO”) imposed by the Government of Malaysia; b. additional works under SO’s Instructions (“SOI”); and c. the delay in payment in respect of all IPCs save for IPCs No. 2 and No. 3.

From the facts before me, the EOT 3 application was made prior to the rejection of EOT Application No. 2 despite the agreement between Plaintiff and SO (Chua) on the month-to-month extensions and this was explained by PW 7, Alex, as follows: ““Prior to the rejection of EOT Application No. 2, the Plaintiff had made EOT Application No. 3 on 29.07.2020 (See page 339 CBD(11)(B) / AG) since it was informed to me by Jason Lee that the current then SO and Chief Executive Officer of Forte Land Pte Ltd, Chua, may be leaving the company and thus the agreement for month-to-month extensions may be contested as such the Plaintiff decided to prudently follow the provisions for extension. The basis for application for EOT No. 3 is force majeure arising from the COVID-19 pandemic and ensuing Movement Control Orders, additional works and delays in payment of Interim Payment Certificates 9-18 despite the financial assistance given to First Defendant.”

Only upon the SOR (DW-1) and new SO (D2/DW-3) being appointed, a letter dated 4.9.2020 was issued requesting further information as follows: - i. Relevant events pursuant to Clause 24.1 COC; ii. Notice of Delay; and iii.

Coincidentally the above said letter was issued outside the 30 days contractual period.

In his witness statement, SOR (DW-1) alleged that the Plaintiff failed to show the impact of each delay events and the information/ document requested but under cross-examination agreed that the Plaintiff had attached the work program with the letter of EOT No. 3 Application 29.07.2020 itself.

From the above, I find that the SOR had failed to take into account the supporting documents attached to the application because he thought the same was not there.

I find that the facts before this Court then shows that on 4.9.2020 (the same date SOR rejected EOT Application No.2) the SOR purported to grant this application for EOT No. 3 of 101 days, thereby revising the completion date to 18.10.2019 with regards to the EOT claim due to the Coronavirus pandemic and Movement Control Order issued by the Government vide the Certificate of EOT No. 2 only but did not allow on the ground of delay in payment as agreed by the SO.

I find that subsequently the Plaintiff responded and disputed this vide the Plaintiff letters dated 25.9.2020, 21.10.2020; and 29.3.2021. as inter alia 89.1 the approval by the SOR was made outside the 30 days period provided in Clause 24.3 of the COC.; and

89.2 the SOR had failed to provide the basis of his assessment and shortening of the period applied for under EOT Application No.

3.

There is thereafter EOT Application No. 4 vide a letter dated 25.9.2020 for a period until 2.11.2020 to obtain the Certificate of Practical Completion (“CPC”) and until 5.12.2020 to obtain the Certificate of Completion and Compliance (“CCC”).

The grounds for EOT4 being applied for were as follows: -

90.1 Completion and Testing & Commissioning by the NSCs;

90.2 Enhancement works requested by the D1;

90.3 Restriction arising from the Movement Control Order until 31.12.2020;

90.4 Late confirmation by the D1 on suite room upgrades resulting in abortive works;

90.5 Delay in obtaining the Certificate of Completion & Compliance (“CCC”) in particular the BOMBA approval as BOMBA inspection could not be arranged due to: - a. Delay in submission of an indemnity letter from D1’s appointed contractor to the Consultant Mechanical & Electrical Engineer for the Project; b. Incomplete firefighting and other works on the part of the D1 and / or their appointed contractors; and

90.6 Delays in payments by D1 on IPCs 19, 20 and 21.

I then find by the Plaintiff vide their letters dated 22.10.2020 and 23.11.2020 responded to the SOR’s request for further information vide his email of 09.10.2020.

After perusing the said letters, I am satisfied that the Plaintiff have with the aforesaid letters together with the attachments i.e Notice of Delay and Work Programme, shown the cause and effect of the alleged delay events and how the relevant events have impacted the overall completion.

The SOR had vide his email dated 20.2.2021 then issued Certificate of EOT No. 3 and granted an EOT of 30 days, thereby revising the completion date to 17.11.2019.

I also note that the SOR had rejected all the grounds stated in EOT No. 4 Application, save for the late payment issue.

In essence D1 submits that there is no basis for the plaintiff to claim Additional EOT beyond that granted by the SO/SOR and D1 further submits that the Plaintiff had wholly failed to prove the requisite cause and effect of the alleged delay events in the 4 EOT Applications so as to justify an additional EOT over and above that had been granted by the SO / SOR. Despite the EOT granted, it is alleged that the Plaintiff still failed to complete the works by the Revised Completion Date of 17.11.2019.

I will surmise that D1 had thus submitted as follows:

96.1 the Plaintiff had failed to strictly comply with the requirements under Clauses 24.1 and 24.2(a) COC and as such, the Plaintiff was not entitled to any EOT in the first place. The Plaintiff is not entitled to benefit from its own breach and in the next breath, claims that time for completion had gone at large;

96.2 the chronology of events surrounding the Plaintiffs EOT Applications No. 2 and No. 3 shows that the Plaintiff had consistently failed to substantiate its EOT claims pursuant to clauses 24.1 and 24.2 of the COC despite repeated requests for further details from the SO /SOR. Support for this contention can be seen at:

NOP dated 15.7.2024, pg. 70 (lines 25-33) where PW-7 agreed that the Plaintiff did not provide any catch up plan and information required in respect of EOT

(ii) NOP dated 15.7.2024, pg. 71 (lines 27-32) where PW-7 agreed that the Plaintiff did not provide any catch up plan and information required in respect of EOT Application No. 3

96.3 In such circumstances, the SO / SOR’s obligation under Clause 24.3 of the COC to decide the EOT Applications within the 30 days’ prescribed time limit was not triggered. The allegation that there had been an inordinate delay on the part the SO /SOR is a therefore wholly misconceived and a non-starter; and

96.4 Despite the SO / SOR’s obligation to decide on the EOT Applications was never triggered, the SO/SOR nevertheless proceeded to consider and determine the Plaintiff’s EOT Applications No. 2 and 3 on the basis of the limited documents and information available.

From all of the above, and after due and careful consideration of the facts and evidence before me, I hold that the totality of the evidence before this Court however demonstrates a failure to evaluate or at least correctly evaluate the EOT by the SO within the provision of Clause 24.3 COC.

I am therefore, with respect, unable to accept D2’s contention that there is an absence of proper work programmes, the requisite particulars, and any critical path analysis which is fatal to the Plaintiff’s EOT claims and without these essential materials, the SO / SOR were deprived of the very tools necessary to evaluate causation and to assess the actual impact of the alleged delay events on the overall completion of the works.

I further hold that the acts of the interference with the certification here in the matter before me, is not a permissible ground for any extension of time. Accordingly I therefore hold that the extension of time provision is inoperable, and renders the contract at large.

I rely on RC Asia Engineering Sdn Bhd v Lion Pacific Sdn Bhd [2021] MLJU 1796 where Lim Chong Fong J (now JCA) held that acts of prevention renders the time for completion in the contract at large where amongst others the learned judge referred to “Yuk Tung Construction Sdn Bhd v Daya CMT Sdn Bhd [2020] 1 LNS 1314 CA, Harminder Singh Dhaliwal JCA (now FCJ) held as follows: “[55] It was nevertheless argued that these events resulted in an act of prevention which renders time at large or what is commonly known as the “prevention principle”. The “prevention principle” is really one borne out by common sense and fair play. In circumstances where the delay in completion is caused partly by the employer, it would be wrong to insist that the contractor be held to the completion date. In other words, the contractor should not be made liable where he is prevented from performing his contract due to the default of the employer (see Multiplex Constructions (UK) Ltd v. Honeywell Control Systems Ltd [2007] EWHC 447(TCC) (“Multiplex”)(emphasis mine)).”

I will come to the issue of whether liquidated damages can then flow from the above in the latter part of my judgment.

I will now address the Plaintiff’s allegation that D1 repeatedly delayed payments for all IPCs and was in financial distress. It is alleged that despite PW-7 agreed to provide financial assistance to D1 and to fund for the Project.

After scrutinizing the evidence before me, I find that the loan agreement, corporate guarantee of Forte Land Pte Ltd and the personal Deed of Guaranty from Jason were not entered with D1 at all, and that there was nothing in these documents which suggest that D1 or the Project was in any financial difficulties that prompted the financial assistance from PW-7. Is the CPC valid and did the Plaintiff complete its works

For the sake of completeness, this Court will answer the issue of whether the Plaintiff is a design and build contractor.

D1 states that the Plaintiff is a design and build contractor as evidenced by inter alia i. Option Module D of the COC ii. PW4’s admission during cross examination iii. A whatsapp message from PW 7 to the SO wherein PW7 expressly admitted to the Plaintiff as a design & build contractor iv. Testimony from D1’s expert, Mr Soh Lieh Sieng that the Plaintiff’s planned work programme shows design activities

Option Module D of the COC provides:

The Plaintiff submits that Option Module D does not in any way suggest that Plaintiff is a design and build contractor as it only provides “where the contract expressly provides that a part or parts (but not the whole) of the works shall be designed by the contractor, he shall fully responsible”. The SOR (DW-1) agreed that there is no mention expressly of which part or parts are to be designed by the Plaintiff in the LOA.

D1 on the other hand states that the express terms imposes the design and build obligations.

I find that Option Module D is applicable where the contractor bears responsibility for the design of the works as per the “Guide on the

I also find from the facts that a. the plaintiff had undertaken the design and coordinated the consultants as well as submitted the drawings; and b. that D1 had played no role in the design of the Project.

Thus the Plaintiff is in my view a design and build contractor

With regards the CPC dated 30.10.2020, the Architect certified the works as having reached practical completion on 30.10.2020, with the 12-month DLP running from 31.10.2020 to 30.10.2021.

This was done, as alleged by D1 despite the numerous SOR’s Instructions (“SORI”) which were issued to require the Plaintiff to address the defects and/or outstanding works during the course of the Contract.

D1 had also disputed the validity of the CPC vide various letters

The Plaintiff however contends that pursuant to an email invitation dated 31.8.2020 from the Plaintiff to D1 and SOR, on 1.9.2020, the Plaintiff called for a practical completion inspection. However, D2 and the SOR did not attend. This was then postponed to 13.9.2020. D2 and SOR attended the said inspection but called off the inspection allegedly on the basis of a lack of documentation in accordance with the Project Quality Plan and sign off from all the other consultants before inspection.

Thereafter D2 and SOR reviewed the said Project Quality Plan which was later submitted without objection and proceeded to carry out an inspection with comments to the Architect which were then forwarded to the Plaintiff and all the comments were addressed satisfactorily to the Architect’s requirements. As recorded in the SOR No.10 dated 1.10.2020 only the SOR took the view that the conditions at Levels 15 to 18 were not ready for final CPC inspection.

This the Plaintiff submits is contrary to the other consultants who were prepared and did in fact carry on with the inspection.

I note that a second reinspection was called by the Plaintiff, but D1 and SOR refused to participate in the reinspection despite them being sighted at the premises, as can be seen by the testimony in cross examination of the SO (D2/DW-3) himself that the SOR was with him too on that said reinspection date.

I find that the other consultants were in attendance and signed off the Project Handing Over Form dated 16.10.2022 which declared the work practically completed and the Architect (the “Project Architect”) had then on 29.10.2020 proceeded to personally inspect the Project and having satisfied himself of the practical completion having been achieved, thereafter issued the CPC on 30.10.2020. Alleged defective Works & SOR Instructions

The SOR had in Court testified that he did not refer any dispute to the Architect /D2 as follows:

The above requirement to refer any dispute to the Architect /D2 is a requirement under Clause 47.1 of the COC.

I find that D1 had relied on alleged numerous defective and/or outstanding works which were yet to be carried out and completed by the Plaintiff as recorded in, SOR instructions No. 15, 16, 21 and

It is only the SO who can make such a decision and for the SO to testify that he “made the decision together with the SOR” and “under the SOR instruction”, is in my view wrong as the said SOR instructions are unsubstantiated since no decision was made by the SO himself.

I hold that under Clause 7 and Clause 15 LOA, only the Architect has the power to issue the CPC and the right to determine the workmanship, quality of material and defective works. The said clauses read

As the Architect has decided on the acceptable quality of workmanship and has satisfied himself that the Plaintiff has accomplished its works for practical completion, the CPC is therefore valid.

At this juncture I will also address the issue of whether the CCC has to be ready before the CPC as contended by the 1st Defendant.

I note that the Architect (PW-1) had explained that it is impossible to secure CCC without D1 making the building ready for inspection and that CPC is a step in the overall process for the final completion and through the first Master Implementation Program dated 3.8.2018 and Progress Report No. 4 dated 30.11.2018 indicated that CPC comes before CCC. The Architect (PW-1) confirmed as follows: - …

As to the issues on delays to CCC that there are requirements by BOMBA and local authorities which requires D1 to complete its obligations, I find that the failure to be prepared for the inspection by the Jabatan Bomba & Penyelamat (“Bomba”) was addressed by the Plaintiff in its letter dated 28.10.2020 with relevant attachments.

I agree with counsel for the Plaintiff after perusing the SOR Instruction No. 19 is in fact evidence that D1 only forwarded some documents in relation to the Bomba inspection on 26.10.2020.

There is also evidence that the supporting letters from Bomba (which are required for the Architect to endorse on G8 and G9 Forms) were merely received and forwarded by the SOR.

I find from the facts before me that it was the consultant M&E Engineer and the Architect that took actions to comply with the Bomba requirements prior to even the SOR’s appointment, as the documentation was required by the consultant M&E Engineer as part of the firefighting system which was under the responsibility of D1 and / or its appointed contractor.

Therefore, I accept the testimony of R. Surenthira Stephen, Consultant M&E Engineer (PW-3) before this Court, that the Plaintiff needed to test the whole firefighting system in an integrated manner and a confirmation from a Professional Engineer that such portions had been completed and tested up to the standard set out in Uniform Building By Laws (“UBBL”) including the portions under D1’s responsibility before it could be certified by the consultant M&E Engineer for the Project.

This court will now turn to the issue of the CNC by the SO on 4.9.2020.

It was submitted by the Plaintiff that the issuance of CNC was done in bad faith and unlawful (unreasonably and vexatiously) against Clause 26.1 COC.

Clause 26.1 COC reads as follow: -

After examining the facts before me, I find that the SO had not correctly issued the CNC as

135.1 the CNC was issued 423 days after the revised completion date (as granted under Certificate EOT No. 1);

135.2 the CNC was thus not issued promptly;

135.3 Clause 26.1 COC contains a proviso that the CNC shall not be issued unreasonably or vexatiously;

135.4 the SO/SOR failed to assess and make decision within the period stipulated in the COC.

From the facts before me, I have also found that there is a second issuance of a CNC on 23.02.2021 when the CPC has already been issued by the Architect on 30.10.2020 which means that the Plaintiff has “practically” completed it works.

I hold that there can be no CNC after the CPC has been issued.

In the circumstances, I therefore hold that the CNC’s issued are invalid and unlawful.

The Plaintiff had suspended works vide a letter dated 31.5.2021

Under Clause 42.10 of the COC, the Plaintiff is entitled to suspend works for non-payment by D1 by giving 14 days’ prior notice of its intention to suspend works. Importantly, this clause expressly preserves D1’s power as the employer to withhold or make deductions under the Contract against the Plaintiff.

D1 submits that the Plaintiff’s purported suspension of works is a blatant breach of the Contract and is wholly wrongful and invalid as well as an afterthought.

It is to be noted that Clause 8.2 LOA reads as follows: - 142, Whilst under Clause 42.9 COC reads as follows: -

The date and particulars of the delay in payments of Interim Payment Certificates (“IPCs”) are as follows: Annexure E at page 172

From the above, I therefore hold that D1 was breach of the payment term throughout the Project period as per Clause 8.2 LOA and Clause 42.9 COC, and I, once again with respect, thus have to disagree with D1’s contention as mentioned above.

With regards the CMGD, by a letter dated14.10.2021, D2 reminded the Plaintiff to carry out the final inspection for the issuance of CMGD and contending that none of the defects reported have been rectified by the Plaintiff.

I have observed that the Plaintiff had refuted this notice vide a letter dated 22.6.2021 wherein the Plaintiff denied the legal obligation to carry out the alleged rectification works since they had not been certified by the Architect as defective in quality of workmanship or materials as set out in Clause 15 LOA.

Learned counsel for the Plaintiff alleges that D2 had issued a letter dated 15.6.2021 notifying the Plaintiff of a deduction of RM3,456,111.90 for alleged rectification of defects by third parties. In the circumstances the Plaintiff submits that there should have been no more rectification works to be done as otherwise, D1 would effectively be obtaining double recovery as they have deducted the costs of defect rectifications and yet was expecting the Plaintiff to do the very same.

D1 submits that the Plaintiff had consistently failed, refused and/or neglected to make good the outstanding works and/or defects without any justification and that in light of the Plaintiff’s continuing default, D1 was left with no option but to appoint third-party contractors to undertake the necessary rectification works on the Plaintiff’s behalf.

Accordingly D1 submits that it is contractually entitled to recover the rectification costs from the Plaintiff and relies on the following clauses Clause 15.7(b) of the COC

It has however been brought to this Court’s attention that there is a letter dated 14.10.2021 from D2 which states that none of the defects has been rectified. Based on the chronology of events, I am thus unable to accept D2’s letter of 15.6.2021 as depicting the true state of things and I hold that none of the defects has been rectified.

I therefore agree with learned counsel for the Plaintiff that since D2 has deducted the cost for rectification works against the Plaintiff in the Final Account, CMGD must be issued as the works must be deemed to have been rectified by way of that deduction.

Based on Prabagaran’s witness statement Appendix I, PW6-WS), the Plaintiff’s claim as at trial (which is lower than originally pleaded) is for an outstanding sum of RM6,675,829.25 as follows: Item Particular Plaintiff’s claim (as per correction made by Plaintif through

1.00 Preliminaries 2,400,225.81 2.00 Main Builders Work (exclude Curtains) as per BOQ rev6 -dated 18th July 17. 21,491,510.71 3.00 Mechanical & Electrical 3,423,461.00 4.00 Professional Fees (Provisional Sum) 2,245,504.58 5.00 Provision sum for Builders Work & kitchen Appliances 2,137,384.80 6.00

GSIB Profit and Attendance 3% (NS) 00 Prime cost sum for NSC Works 3,326,292.92 8.00 GSIB Profit and Attendance 3% (NSC) 99,788.79 9.00 PRIME COST SUM (Hanging Lamps & Loose Furniture) 1,973,055.00 Total Value Of Main Contract 37,097,223.61 10.00 VO & Additional Items (ID works) 1,743,047.44 11.00 Prolongation claim 1,695,255.38 12.00 VO & Additional Items (M&E works) 621,085.80 13.00 Enhancement 140,728.00 14.00 Rental Hoarding 56,940.00 FINAL REVISED CONTRACT SUM 41,354,280.23 Minus: payment received for IPCs No. 1-18 (34,678,450.98)

For the record, I have observed that D2 under cross examination had agreed to the D1’s Quantum Expert assessment.

Be that as it may, it is settled law that it is the Court who is to weigh all the evidence and determine the probabilities. The expert witnesses before this Court can only provide their opinion evidence, but ultimately it is the Court who decides.

The Court of Appeal in the case of Batu Kemas Industri Sdn Bhd v. Kerajaan Malaysia & Anor [2015] 7 CLJ 849 had explained the duties and responsibilities of an expert witness as follows “[35]... It is the primary duty of an expert to assist the court in arriving at the right decision; even if he comprises the case of the party who called him and is paying for his services. It cannot be over emphasised that this duty overrides any obligation to the party from whom the expert has received instructions or by whom he is paid (O 40A r 2[RC]). Therefore, the evidence of an expert should not only be independent but should also be seen to be independent... [36] What are the duties and responsibilities of expert witnesses? It is useful to consider what Ian Freckelton and Hugh Sebiy the author of Expert Evidence - Law, Practice, Procedure and Advocacy (Lawbook Co 2005 Third Edition) described as the most important enunciation of the duties and responsibilities of expert witnesses in the context of National Justice Cia Naviera SA v. Prudential Assurance Co Ltd, the Ikarian Reefer [1993] 2 Llyod’s Rep 68 at p 81-82 which has since been applied in National Justice Cia Naviera SA v. Prudential Assurance Co Ltd, The Ikarian Reefer [1995] 1 All ER 577 at p. 60: The duties and responsibilities of expert witnesses in civil cases include the following: Expert evidence presented to the court should be, and should be seen to be, the independent product of the expert uninfluenced as to form or to content by the exigencies of litigation (Whitehouse v. Jordan [1981] 1 WLR 246 at 256-257; 1 All ER 267at 276 per Lord Wilberforce). An expert witness should provide independent assistance to the court by way of objective unbiased opinion in relation to matters within his expertise (see Polivitte Ltd v. Commercial Union Assurance Co Pic [1987] 1 Llyod’s Rep 379 at 386 per Garland J and Re J [1991] FCR 193 per Cazalet J). An expert witness in the High Court should never assume the role of an advocate. [37] As an independent aid to the court, it is therefore essential that an expert witness must possess and retain a standard of absolute personal integrity.... ”.

Before this Court, the following persons had given their expert opinion on quantum:- a. on behalf of the Plaintiff, Prabagaran Gopalakrishnan (PW-6) who is also a professional QS, and who was the Head of Contract for the Plaintiff and involved directly in the Project; b. For D1, Soh Lieh Sieng (DW-4) from Contract Solutions I-Group, a delay and Quantum Expert evidence; and c. the Court Appointed Expert, Ar Anthony Lee Tee from

As mentioned above, following the demise of the late Wai Chan Ming, Mr. Soh Lieh Sieng had assumed the role of D1’s quantum expert, and produced a new report marked as “GT”, wherein he adopted the findings of the late Wai Chan Ming contained in his earlier reports marked as “GR” and “GS”, with further adjustments made to the quantum assessment.

From what transpired before me, I find that D1’s Quantum Expert evidence, Soh Lieh Sieng (DW-4) (who replaced the late Wai Chan Ming) had not amongst others inspected the Site physically but relied on documents provided to him by D1 and that he did not take any re-measurements on Site.

Based on the above, I am with respect unable to give much weight to the evidence of Mr Soh Lieh Sieng, D1’s quantum expert (DW-4), as his analysis does not assist me in considering whether either the SO or the SOR had carried out the EOT evaluation as per clause 24 COC based on the “fair”, “reasonable” and “necessary” grounds of consideration mentioned in the said clause.

I however agree with the Plaintiff’s counsel that due to the Plaintiff being deprived of the opportunity to adjust its claim through its witnesses, as the substitution of D1’s quantum expert took place only after the testimony of Prabagaran (PW-6) had already been given before this Honourable Court, the Plaintiff had now revised its claim downwards, after considering the adjustments made by D1’s quantum expert (DW-4) in his report “GT” to the earlier reports “GR” and “GS” as mentioned above.

I note that at trial, learned counsel for the Plaintiff had extensively cross examined DW4. This challenge by the Plaintiff on D1’s expert evidence by way of cross-examination without the Plaintiff having to call its own experts, was the prerogative of the Plaintiff and which the Plaintiff was entitled to do.

I refer to the Court of Appeal in UMW Toyota Motor Sdn. Bhd & Anor v Allan Chong Check Khin & Anor [2021] 3 MLJ 107 where it was held “[63] We consider it a well established principle that a defendant is perfectly entitled to challenge the evidence of the plaintiff’s expert witness by way of cross-examination without him having to call his own experts. In Keruntum Sdn Bhd v The Director of Forests & Ors [2017] 3 MLJ 281 at p 305 ; [2017] 4 CLJ 676 at p 698 Hasan Lah FCJ (speaking for the Federal Court) said: [78] … It is settled law that the burden of proof rests throughout the trial on the party on whom the burden lies. Where a party on whom the burden of proof lies, has discharged it, then the evidential burden shifts to the other party … When the burden shifts to the other party, it can be discharged by cross-examination of witnesses of the party on whom the burden of proof lies or by calling witnesses or by giving evidence himself or by a combination of these different methods (see Tan Kim Khuan v Tan Kee Kiat (M) Sdn Bhd[1998] 1 MLJ 697; [1998] 1 CLJ Supp 147). [64] On the strength of the foregoing authorities, it is permissible in law for one party to rebut its adversary’s case by cross-examining the latter’s own witnesses including his expert witness. Thus, the defendants in our present case were perfectly entitled to challenge the evidence of the plaintiffs’ experts, SP1 and SP2, by way of cross-examination without them having to call their own experts.”

Hence the Court is not persuaded by D1’s contention that is necessary for an expert evidence to be rebutted by another expert.

This Court has had the opportunity to examine the main summary showing the total difference in quantum total between Plaintiff’s claim, D2’s Final Account and D1’s Quantum Expert Report (late Wai Chan Ming) and notes the following figures i. D2’s Final Account – RM38,878,763.34; ii. D1’s Quantum Expert – RM38,934,722.87 (adjusted upwards compared to previous assessment of RM38,927,139.17); iii. Plaintiff’s claim after DW-4’s adjustment – RM41,284,570.17 (adjusted downwards compared to previous correction of

I have observed that a. the payment received from D1 as to date (IPC Nos. 1-18) is RM34,678,450.98, which is undisputed; and b. the difference between D1’s Quantum Expert (DW-4) and Plaintiff’s claim is RM2,349.847.30; c the main difference in DW4’s quantification and the Plaintiff’s claim is on the prolongation claim amounting to

I have also found that the disputed items between DW4’s quantification and the Plaintiff’s claim are as follows: - i. Item 2.00 – Main Builders Work (exclude Curtains) as per BOQ rev6- dated 18th July 17 ii. Item 4.00 – Professional Fees (Provisional Sum) iii. Item 7.00 – Prime Cost Sum for NSC Works iv. Item 8.00 – GSIB Profit and Attendance 3% (NSC) v. Item 10.00 – VO & Additional Items (ID works) vi. Item 11.00 – Prolongation Claim vii. Item 13.00 – Enhancement viii. Item 14.00 – Rental Hoarding

After painfully analysing and comparing the differences for the disputed items, I have found on a balance of probabilities that the Plaintiff has satisfied this Court that their claim should be allowed.

My decision on allowing the Plaintiff’s claim is founded on inter alia i. the Plaintiff has justified the rates used and work had been accomplished; ii. DW4 had mistakenly referred to wrong items in the BQ to ascertain the rates justified; iii. works done have been shown to exists; iv. the Plaintiff has provided all necessary documents to support its claims; v. the failure of DW4 to physically examine the floors concerned to rebut the fact that work was done; vi. no instructions for omission of work had been given; vii. all the enhancement works were notified to D1 vide a letter date 24.9.2020 and there was no objections to the same; viii. the hoardings have not been removed due to the SO’s instructions and the salvage value will go back to D1 and after CCC, D1 has to bear the costs of hoardings.

As to the prolongation costs claimed by the Plaintiff, the evidence at trial showed the Plaintiff was paid loss and expense vide EOT No.1, a sum amounting to RM143,615.50 for one month commencing 10.5.2019 vide a letter dated 29.5.2019 due to the delays in nominating the air conditioning Nominated Sub-Contractor.

SO (Chua) had as additional preliminaries allowed the aforesaid sum of RM143,615.50 for one month commencing 10.05.2019 vide a letter dated 29.5.2019 from the grant of an EOT No.1 of 60 days and that this figure was then used in the pleaded claim for the period of prolongation from 10.7.2019 (extended contract period granted on EOT No.1) to 30.10.2020 (date of CPC).

Following from the same, the difference of the amount between the Plaintiff’s claim and the amount approved by D2 and recommended by D1’s Quantum expert (DW-4) are as follows: - Description GSIB Rev Submission (Final) dated 25/11/2021 D2’s Final Account Plaintiff’s claim (taking into account GT by D1’s Quantum Expert (DW-4) Adjustment made by D1’s Quantum Expert (DW-4) to GR and GS which is GT Preliminaries for EOT No 1 to EOT No 4 1,695,255.38 143,615.50 1,695,255.38 143,615.50 Grand Total 1,695,255.38 143,615.50 1,695,255.38 143,615.50

As mentioned, the Plaintiff is not claiming pursuant to Clause 31 and 32 of the COC, but is instead relying on prolongation as damages under the common law and/or Section 74 of the Contracts Act 1950 due to the acts of prevention / interference and the contract being at large causing the contract to be prolonged.

Section 74 of the Contracts Act 1950 provides

When a contract has been broken, the party who suffers by the breach is entitled to receive, from the party who has broken the contract, compensation for any loss or damage caused to him thereby, which naturally arose in the usual course of things from the breach, or which the parties knew, when they made the contract, to be likely to result from the breach of it.

Such compensation is not to be given for any remote and indirect loss or damage sustained by reason of the breach.

Compensation for failure to discharge obligation resembling those created by contract. When an obligation resembling those created by contract has been incurred and has not been discharged, any person injured by the failure to discharge it is entitled to receive the same compensation from the party in default as if the person had contracted to discharge it and had broken his contract. Explanation - In estimating the loss or damage arising from a breach of contract, the means which existed of remedying the inconvenience caused by the non-performance of the contract must be taken into account.

“Prolongation costs” within the context of a contractual claim are defined in the “Construction Contracts Dictionary (2nd Edn)” by Chow Kok Fong which described it in some contracts as “loss and expense”.

I agree and do uphold that as a result of the same the Plaintiff has had to incur additional costs and expenses (apart from the cost of executing the Works).

From the facts before me , I therefore hold that requirements under Section 74 of the Contracts Act 1950 has been met as there was damage caused to the Plaintiff which naturally arose from the acts of prevention mentioned which resulted in the contract period being prolonged.

As to the quantum for the said prolongation costs, this Court would have to establish the duration of the actual prolongation period as well as evaluate the nature of such costs claimed and the heads under which it is claimed as per Lim Ching Fong J (now JCA) in RC Asia Engineering Sdn Bhd v Lion Pacific Sdn Bhd [2021] MLJU

1796.

I have after due consideration hold that the prolongation period shall be the approved amount of additional preliminaries of RM143,615.50 from the grant of an EOT No. 1 of 60 days by the SO at the material time which is to be multiplied by the period of prolongation from 10.7.2019 (extended contract period granted on EOT No.1) to 30.10.2020 (date of CPC) excluding the MCO period between 18.3.2020 to 26.6.2020.

My decision on the above is founded on what is contained in the tabulation for each of the EOT Applications No. 1 to No. 4 vide a letter dated 8.1.2021 from the Plaintiff to HR Associates.

I am also minded that the performance bond was not included in the calculation of prolongation as explained by Prabagaran (PW-6) that D1 was holding a lot of their money at that point in time and there was over securitization and thus they did not provide the Performance bond and accordingly did not claim for the extended premium for the same.

As to evaluating the nature of such costs claimed and the heads under which it is claimed, I have observed that the claims are categorized as follows:

1.0 Extended Site Overhead 1(a) Site staff salary-GSIB 1(a.1) Site staff salary-GSIBE 1(b) Fogging 1(c) Electricity 1(d) Rubbish Bin 1(e) Lift Maintenance 1(f) Protection – tarpaulin

2.0 Extended Plant and Equipment Cost 2(a) Rental of Scaffolding 2(a.1) Rental of Scaffolding 2(b) Rental of forklift

4.0 Administrative and Management Costs 4(a) Photocopier 4(a.1) Photocopier 4(b) Drinking Water 4(c) Internet Bills

Late interest charges for item 1 (b) & item 1(a) & 1(a.1)

Based on the available evidence on record and what is reasonably necessary as per Walter Lilly & Company Limited v Giles Patrick Cyril Mackay & Anor [2012] EWHC 1773 (TCC) I have agreed to allow the prolongation costs for items 1, 2 and 3 only which will amount to RM1,595,755.

As previously mentioned, the Court appointed expert, Ar Anthony Lee provided an expert report, entitled the Independant Expert Report, Condition of Inspection of Alleged Defects dated 8.8.2022 (“ACSB report”) comprising the following: -

To determine whether the alleged defects by D1 are valid defects under the Contract – STAGE 1;

(ii) Upon such determination, to propose rectification methods for valid defects – STAGE 2;

(iii) Cost for such rectification – STAGE 3

I note that the ACSB Report has confirmed that various alleged effects were substantially ruled as invalid and the quantum of valid defects were significantly lower than that claimed by D1. This court has also noted that D1 had indicated its willingness to be bound by the said ACSB Report which quantified the rectification costs at

I agree with learned counsel for D1 that in preparing this cost estimate report, Ar. Anthony systematically mapped all defects within the hotel, tabulated the quantities of each category of defects and thereafter derived the corresponding rectification costs.

This Court has however been unable to find any proof that D1 has made any payment for the costs of rectification, and that the alleged costs of rectification are based purely on the initial quotation dated 31.5.2021 obtained from a third-party contractor namely Sunray Construction & Interior Sdn Bhd. The latter was also confirmed by the SO.

This court has observed that Sam Lau (DW-2) has admitted that D1 only “incurred” the total sum of RM1,665,960.00 (Joo Heang + IPRO) and not RM5,191,811.90 as stated in the Final Account issued by D2 for the alleged rectification cost.

In my view this however does not mean that the remaining defects will not require rectification in due course. Authority for the same can be found in C&S Engineering Management Sdn Bhd v Kavanas Sdn Bhd [2020] 1 LNS 1822 where Lim Ching Fong J (as he was then) held “[25] It is in my view ideal, but not mandatory, that the required rectification work must have been done and paid to the rectification contractor to sustain the counter-claim for defect rectification. It is crucial that there must be evidence that the defect subsists unrepaired together with the reasonable estimated costs of rectification. I do not see that the Appellant has challenged on the reasonableness of the cost estimate.“

This Court also takes cognizance that Clause 27.3 COC further provided that the SO has to evaluate and certify a reasonable sum. I therefore agree that SO has a duty to evaluate and that mere quotations are inadequate to evaluate and certify the reasonable sum.

An examination of AACSB’s Report will show that the defects which are found NOT VALID by ACSB are as follow: -

Cracks & Localised Water Seepage to Internal Walls; (page 6 of the Report);

Defective Workmanship on ID Furniture, Finishes and Fittings (i.e due to pre-existing conditions):

Resultant finish due to inadequate detailing/ inappropriate specification;

Matching workmanship with Mock-up(s) Rooms;

Scratches on ID fixtures and furniture (see page 8 of the

Report); and The issue of Fire rated doors are found valid, however, replacements are not required; (page 5 of the Report).

In essence, the cost of rectification for total valid and invalid defects found by ACSB is as follows: -

Valid Defects – RM2,620,176.65;

Invalid Defects – RM7,033,583.77

The Plaintiff has urged this Court that in taking into account the ACSB’s report findings, at least the alleged rectification costs in the Final Account should remove the following items (in red) and the figure (in yellow) should be reduced (if this Honourable Court allows the D1’s counterclaim for rectification works): - No. Items claimed by D1 ACSB’s findings Amount claimed in Final Account Amount “incurred” by D1 93. Cost of rectification of defects Valid RM3,456,111.90 [(Sunray’s Quotation (which was not appointed)] 1,612,140.00 (D2’s valuations on Joo Heang’s works)

Costs of rectification of hollow wall tiles Valid RM521,860.00 [(Sunray’s Quotation (which was not appointed)]

Cost of rectification of seepage from external side of wall at Levels 6-18 Invalid RM40,000.00 [estimation by D2]

Cost of rectification of hollow tiles to public area Valid RM36,888.00 [(Sunray’s Quotation (which not appointed)]

Cost of replacement of fire doors Invalid RM826,952.00 [(Sunray’s Quotation (which not appointed)]

Cost of rectification of M&E defects to hotel rooms Valid RM310,000.00 [(Sunray’s Quotation (which not appointed)] RM53,820.00 (based on IPRO’s quotations) Total

In coming to my decision on the restoration costs I have taken notice that the costs which it may entail can suffice to constitute prima facie proof of the damages suffered by the purchaser so long as it is a bona fide reasonable assessment of costs to be incurred in rectifying the defects. For these I have taken heed of the observations by the Federal Court, Chong Nge Wei & Ors v Kemajuan Masteron Sdn Bhd [2022] 4 CLJ 833 and the High Court in Guan Heng Construction Works (suing as a firm), v IMM White Button Mushroon (M) Sdn Bhd and another suit [2013] 10 MLJ 465 respectively.

Thus after analysing the issues as to the restoration costs and looking at the evidence before me I accept that the estimation of rectification costs by Ar. Anthony as fair and reasonable as well as being a reliable and proper basis for determining rectification costs.

Hence, D1 is entitled to claim rectification costs in the sum of RM2,551,728.65 against the Plaintiff.

As to the issue of D1’s Liquidated Damages claim, the Federal Court case of Sim Chio Huat v Wong Ted Fui [1983] 1 MLJ 151, Salleh Abas FJ (later LP) had held as follows: “Amongst the conclusions reached by the learned author after considering these cases is that in cases where an agreement contains no clause for extension of time for completion, the acts of prevention by the employer whether authorised by the contract or whether in breach of it or whether the prevention is a cause of part or of the whole of the delay invalidate the liquidated damages clause because by such acts in the words of Parke B. in Holme v. Guppy (supra) and Lord Denning M.R. in Trollope and Colls ( supra) “the time becomes at large”. Consequently there is no date from which damages could run and therefore no damages could be claimed.

LAD in the matter before this Court is provided for Clause 26.2 of the COC, where the provision makes the issuance of the CNC as a precondition to charging LAD.

I have in my judgement herein held that time is at large and that the CNC’s issued were invalid. In the circumstances, the consequence of such a finding will mean that D1 is not entitled to a claim for liquidated damages.

Support for this proposition can also be found in the Court of Appeal case of Ireka Engineering And Construction Sdn Bhd v. PWC Corporation Sdn Bhd & Another Appeal [2019] MLJU 35 albeit on a case concerning Adjudication Proceedings, where the Appellate Court held on account of the CNC being improperly or unlawfully issued, and the employer’s claim to LAD is to be struck down, whereby in that case it was held “[44] It was contended by the appellant that the adjudicator and the learned judge misdirected themselves on the issue of the CNC and hence on the appellant’s entitlement to the LAD. We disagreed. The learned judge found that the adjudicator had, en-route to making his finding as to whether the CNC received by the respondent on 29.4.2016 had been backdated to 1.3.2011, had made the following astute observation at paragraph 52 of his adjudication decision as follows: “A) That there were no complaints raised on LAD by the Respondent regarding any of the 13 interim claims which were submitted after the contractual completion date on 28.02.2011. B) That the Certificate of Non-Completion (“CNC”) is dated 01.03.2011 but is post marked on 28.04.2016 and received on 29.04.2016 [refer pages 458 and 459 of Adjudication Reply]. There is no acknowledgement of receipt of the CNC by the Claimant [refer to page 188 of the said Claim]”. [45] The above were relevant considerations that were taken into account by the adjudicator to finally arrive at his conclusion that the appellant was not entitled to its LAD claim and could not set off that LAD sum from the respondent’s payment claim.”

I further hold that since the Plaintiff’s EOT Application were either granted and/or rejected with non-compliance to Clause 24.3 of the COC, there is no definite date of the Plaintiff’s default which could be fixed contractually from which LAD could run.

From my findings I also find that the evidence by D2 had through Valuation No.22 to 25, not made any provision for any LAD in his valuation and thus I find that the attempt to impose LAD subsequently is clearly an afterthought on the part of D1 and D2.

After due consideration of the Plaintiff’s claim against D2 for inter alia breach of duty of care, I hold that there is no factual or legal basis to conclude that D2, whether in his role as Consultant QS or subsequently as SO, owed any duty of care to the Plaintiff.

Suffice to say, I will quote several authorities to support my findings which are as follows.

In Pacific Associates Inc v Baxter [1989] 2 ALL ER 159, the UK Court of Appeal ruled that where an engineer was employed or retained by a person, such as a building owner, to oversee the work of a contractor in circumstances where the engineer was under a duty to the employer to exercise care and skill in overseeing the contractor's work and was liable to the employer if the employer was sued by the contractor for economic loss which the contractor had suffered as the result of the engineer's negligence and where there was no direct contractual relationship between the contractor and the engineer or any assumption by the engineer of direct responsibility to the contractor for economic loss caused to the latter, the engineer owed no duty of care directly to the contractor coterminous with the contractor's rights against the employer.

In the High Court case of L3 Architects Sdn Bhd v PCP Construction Sdn Bhd [2019] 1 LNS 1321, Aliza Sulaiman JC (as she then was) decided that a consultant architect appointed by an employer in a construction project did not owe a duty of care to the main contractor to ensure the validity and accuracy of the payment certificates issued by the architect.

In the circumstances, it would be a pure academic exercise for this Court to now evaluate if the Plaintiff has entirely failed to prove the alleged breaches, against D2.

Accordingly, I dismiss the Plaintiff’s claim against D2 in its entirety with costs.

Ultimately, this Court has based on all of the above hereby orders as follows: a. A declaration that the Certificate of Practical Completion issued by the Architect on 30.10.2020 is a valid certificate under the contract between the Plaintiff and D1; b. A declaration that the Certificate of Making Good Defects should be issued in favour of the Plaintiff; c. A declaration that the 1st Moiety of the Retention Sum is due and payable to the Plaintiff amounting to RM925,687.84; d. A declaration that the 2nd Moiety of the Retention Sum is due and payable to the Plaintiff amounting to RM925,687.84; e. A declaration that the Contract between the Plaintiff and D1 has become at large; f. Payment of a sum of RM4,913,863.81 by D1 to the Plaintiff for; i. Balance Contract Sum amounting to 2,349,062.57 ii. Variation Orders (ID works) amounting to RM1,743,047.44 iii. Variation Orders (M&E works) amounting to RM621,085.80 iv. Enhancement works amounting to RM140,728.00 v. Rental hoardings amounting to RM59,940.00 g. Payment of a sum of RM1,595,755.80 by D1 to the Plaintiff for prolongation costs suffered by the Plaintiff calculated on the approved amount of additional preliminaries of RM143,615.50 from the grant of an EOT No. 1 of 60 days by the SO at the material time which is to be multiplied by the period of prolongation from 10.7.2019 (extended contract period granted on EOT No.1) to

30.10.2020 (date of CPC) excluding the MCO period between 18.3.2020 to 26.6.2020; h. interest on the above sums from 30.11.2021 to full settlement of the judgment sums; i. Costs of RM100,000.00 to be paid by the Defendant to the Plaintiff subject to allocator.

I am however dismissing Plaintiff’s claim against D2 with costs of RM30,000 to be paid by the Plaintiff to D2.

I am allowing D1’s counter claim against the Plaintiff for rectification costs in the sum of RM2,551,728.65 against the Plaintiff from the date of judgment. Dated the 29th day of April 2026 sgd. NADZARIN WOK NORDIN JUDGE HIGH COURT OF MALAYA COUNSEL FOR THE PLAINTIFF: K. Selva Kumaran, Edieka Isma Danieal Bin Kaswadi and Rosemmawati Binti Hussin (Messrs Rose Hussin) COUNSEL FOR THE 1ST DEFENDANT: Tan Shu Shuen and Koh Shien Lin (Messrs Zul Rafique & Partners) COUNSEL FOR THE 2ND DEFENDANT: Ng Li Kian (Messrs Ng, Gan & Partners)