2.3 payments shall be subject to SWM’s satisfaction of the work done; and 2.4 payments shall be made after the defendant received the same from SWM. 25/07/2022 08:23:07 PA-12BNCvC-72-12/2020 Kand. 24 [3] The defendant denied any sum owing to the plaintiff. The defendant had made six payments totalling amounting to RM500,000.00. As for the remaining sum, the defendant alleged that SWM was not satisfied with the job and refused to pay the defendant. Hence, in turn no payment could be made to the plaintiff. The plaintiff on the contrary claimed that they had carried out the works satisfactorily and that the Perbadanan Perbekalan Bekalan Air Pulau Pinang Sdn Bhd (“PBA”) had no objection to the issuance of the Certificate of Completion and Compliance which was duly issued thereafter. And the plaintiff denied that it was agreed that it will be paid after the defendant received payment from SWM. [4] The plaintiff earlier had filed its claim under the Construction Industries and Adjudication Act 2012 (“CIPAA”) and successfully obtained an award. However, the adjudication decision was set aside by the High Court. The plaintiff instead of appealing against the said decision commenced this action in the Sessions Court. Decision of the Sessions Court [5] In the court below the defendant raised the issue of res judicata. The learned Sessions Court Judge (“SCJ”) rejected this plea simply because the High Court in setting aside the adjudication decision did go deal with the merits. She further held that the plaintiff had proved that they had completed the job evidenced by the three letters from the relevant authorities and there was no evidence to support the defendant’s claim that SWM was not satisfied with the last two performance by the plaintiff. She held that the defendant ought to have called someone from SWM to give evidence to support this fact. It was her finding that out of the contract sum of RM902,884.78 the defendant had thus far paid RM500,000.00 therefore the defendant should pay the balance amount as claimed by the plaintiff. [6] In Lee Ing Chin & Ors v. Gan Yook Chin & Anor [2003] 1 MLRA 95 p.101-102 the Court of Appeal held: “[28] …Suffice to say that we re-affirm the proposition that an appellate court will not, generally speaking, intervene unless the trial court is shown to be plainly wrong in arriving at its decision. But appellate interference will take place in cases where there has been no or insufficient judicial appreciation of the evidence. It is, we think appropriate that we say what judicial appreciation of evidence involves. [29] A judge who is required to adjudicate upon a dispute must arrive at his decision on an issue of fact by assessing, weighing and, for good reasons, either accepting or rejecting the whole or any part of the evidence placed before him. He must, when deciding whether to accept or to reject the evidence of a witness, test it against relevant criteria. Thus, he must take into account the presence or absence of any motive that a witness may have in giving his evidence. If there are contemporary documents, then he must test the oral evidence of a witness against these. He must also test the evidence of a particular witness against the probabilities of the case. A trier of fact who makes findings based purely upon the demeanour of a witness without undertaking a critical analysis of that witness' evidence runs the risk of having his findings corrected on appeal. It does not matter whether the issue for decision is one that arises in a civil or criminal case: the approach to judicial appreciation of evidence is the same.". [7] Guided by the above proposition it is incumbent upon me to examine the grounds of the learned SCJ whether she had committed any appealable errors in arriving at her findings. The parties agreed that there was only one issue for me to determine namely, whether the claim for the balance sum was proven. [8] It was submitted by the learned counsel for the defendant that the plaintiff failed to produce any proof in support of its claim. On the contrary the learned counsel for the plaintiff submitted that the parties entered into an oral agreement and it was a lump sum contract. The certificates were issued meaning that the works were carried out and completed. [9] A lump sum contract was defined in Government of Malaysia v Syarikat Ismail Ibrahim Sdn Bhd & Ors [2020] 3 MLRA 77 at p. where Hamid Sultan Abu Backer JCA quoted a passage from Designing Building Wiki: “[102] The nature of a lump sum contract and its current jurisprudence is succinctly explained by the authors of Designing Building Wiki and it reads as follows: “A lump sum contract (or stipulated sum contract) is the traditional means of procuring construction, and still the most common form of construction contract. Under a lump sum contract, a single ‘lump sum ’price for all the works is agreed before the works begin. It is defined in the CIOB Code of Estimating Practice as, ‘a fixed price contract where contractors undertake to be responsible for executing the complete contract work for a stated total sum of money’. This is generally appropriate where the project is well defined, when tenders are sought, and significant changes to requirements are unlikely. This means that the contractor is able to accurately price the works they are being asked to carry out.”. [10] The nature of the agreement was not in dispute. The letters or certificates referred to by the learned SCJ particularly those for the PBA, the Architect and Indah Water Consortium clearly demonstrated that the works were completed. I agree with the learned SCJ that these provided sufficient proof that the plaintiff had performed his part of the contract. [11] The defendant chose not to call witnesses from SWM to show that the latter was not satisfied with the last two stages and no payment was made to that end. The learned SCJ therefore found that the defendant failed to bring evidence in support of his defence. I do not see any fault with this finding when the plaintiff had satisfactorily established its claim. [12] Accordingly, I find that the learned SCJ did not misdirect herself in arriving at her findings. Therefore, the appeal is dismissed with costs and the judgment of the learned SCJ is affirmed. (TUN ABD MAJID BIN TUN HAMZAH) Hakim Mahkamah Tinggi Malaya, Pulau Pinang Tarikh: 24 Julai 2022 Peguamcara-Peguamcara:- Peguamcara Pihak Perayu TETUAN WONG & LOH Peguambela dan Peguamcara No. 22, Jalan Servis Off Jalan Burmah 10050 PULAU PINANG Tel : 04-2286989 Faks : 04-2287989 Peguamcara Pihak Responden TETUAN LIM SEANG LEE & ASSOCIATES Peguambela dan Peguamcara Suite 2.03, Bangunan Sri Weld 3ª Pengkalan Weld 10300 PULAU PINANG Tel : 04-2501100 Faks : 04-2501101