Ibr Concepts Sdn Bhd v 1. ) Laksamana Cemerlang Sdn Bhd (WA-22C-91-08/2017)

LAKSAMANA CEMERLANG SDN BHD (Company No.: 860924-W)

2.

3.

UNIVERSITI MALAYA ... DEFENDANTS GROUNDS OF JUDGMENT [1] This Grounds of Judgment pertain to the decision of this Court after a full trial involving the Plaintiff and the 1st Defendant (‘D1’) only as the Plaintiff’s claim against the other Defendants had been earlier struck out. The relationship between the Plaintiff and D1 is as sub-contractor and main contractor, respectively, for the project known as Cadangan Menaiktaraf Sistem Bekalan Air di Kampus Universiti Malaya (Fasa 2) (‘Project’). [2] The Plaintiff’s claim against D1 was essentially for breach of contract as D1 allegedly failed to pay the balance amount which was oustanding for the original works and additional works carried out by the Plaintiff for the Project. The Plaintiff also alleged that D1 had wrongfully terminated the Memorandum of Sub-Contract Agreement dated 17.3.2016 (‘SCA’) and that the Plaintiff had suffered losses for the Performance Bond (‘PB’) which was paid by the Plaintiff on behalf of D1. [3] As is common when a party in the construction industry is faced with a suit of this nature, D1 not only put forth its defence to the Plaintiff’s claim, but D1 also instituted its own counterclaim against the Plaintiff for purportedly failing to complete the sub-contract within the stipulated time and thus, causing D1 to suffer loss and damage. [4] After a five days’ trial and having considered the parties’ respective pleadings, the oral and documentary evidence, and the written submissions and clarifications, this Court had allowed the Plaintiff’s claim as follows:

(a) the sum of RM1,716,834.45 as the amount outstanding to the Plaintiff with interest at the rate of 5% per annum from the date of judgment until full settlement;

(b) the sum of RM96,349.87 for the PB paid by the Plaintiff on D1’s behalf with interest at the rate of 5% per annum from the date of judgment until full settlement; and

(c) damages of RM20,000.00 for breach of contract. The Defendant’s counterclaim was allowed only in respect of one out of the 25 items of claim in para 24 of the Re-Amended Statement of Defence And Amended Counter Claim (‘Defence and Counterclaim’) for the sum of RM60,000.00 with interest at the rate of 5% per annum from the date of the Defence and Counter Claim i.e. 16.10.2017 until full settlement. Costs of RM50,000.00 was ordered to be paid by the Defendant to the Plaintiff, subject to allocatur. [5] The Defendant is naturally aggrieved with the entire decision of the Court. My full reasons for the decision are elaborated below. The Plaintiff’s Case [6] The Plaintiff is a company incorporated under the Companies Act 1965 [Act 125] with its registered address at No. 69-1A, OG Business Park, Taman Datuk Tan Yew Lai, Jalan Datuk Tan Yew Lai, 58200 Kuala Lumpur and its business address at E311, East Wing, Metropolitan Square, Jalan PJU 8/1, Bandar Damansara Perdana, 47820 Petaling Jaya, Selangor Darul Ehsan. The Plaintiff’s nature of business is in construction and property development. [7] D1 is a company incorporated under Act 125 with its registered address at No. 3, 1st Floor, Jalan Meranti, Off Jalan Genuang, 85000 Segamat, Johor and its business address at No. 27 Level 2, Jalan Kekwa, Off Jalan Sia Her Yam, 85000 Segamat, Johor. [8] The 2nd and 3rd Defendants are Malaysian citizens and the Directors of D1. [9] The 4th Defendant (‘D4’) is a local public university established under the Universities and University Colleges Act 1971 [Act 30] with its address of service at Universiti Malaya, Lembah Pantai, 50603 Kuala Lumpur. [10] On 12.3.2015, D4 issued the Letter of Acceptance of Tender to D1 (‘LAT’) whereby D1 was appointed as the main contractor for the Project. D1 had submitted its tender for the Project at the sum of RM9,634,987.58. The parties agreed that the Standard Form Of Contract To Be Used Where Bills Of Quantities Form Part Of The Contract P.W.D. Form 2013A (Rev. 1/2010) shall apply subject to the amendments as contained in Addendum No. 1 To The Conditions Of Contract. A formal agreement was subsequently signed between D4 and D1 (‘Main Contract’). [11] D1 appointed the Plaintiff as the main sub-contractor for the Project vide the Letter of Award dated 27.4.2015 (‘LoA’). The Sub-Contract Sum is RM9,634,987.58 and the LAT was incorporated as part of the LoA. [12] Thereafter, the Plaintiff appointed Puncak Seputih Sdn Bhd (‘Puncak Seputih’) as the Plaintiff’s sub-contractor based on the Letter of Appointment dated 7.5.2015 with a contract value of RM9,634,987.58. [13] The Plaintiff and D1 subsequently signed the Letter of Undertaking (‘LoU) and the SCA on 17.3.2016. [14] The terms and conditions in the LoU are, inter alia, as follows:

(a) the Plaintiff will immediately make payment of RM250,000.00 to D1 upon signing the LoU;

(b) D3 in his capacity as a Managing Director of D1 agrees to open an Escrow Account specifically for the Project for the purposes of receiving payment solely from D4 and to be managed by the Plaintiff (‘Escrow Account’);

(c) Mr. Tan Ee Aun (‘Mr. Tan’), the Plaintiff’s representative, was appointed as the Authorized Representative for the Escrow Account;

(d) D3 agrees that the Escrow Account will not be closed until the Project receives a Final Certificate and final payment from D4; and

(e) D3 agrees to provide the user ID and password for purposes of entry or access to D4’s Portal System to Mr. Tan for his use. [15] In the Recital of the SCA, it is stated that the LoA had been terminated by the Plaintiff vide a Notice of Termination dated 30.1.2016, however, D1 and the Plaintiff was desirous of continuing and completing the Project. Hence, the D1 appointed the Plaintiff as the sub-contractor to continue and complete the Project. The other salient terms and conditions of the SCA are as follows:

(a) the SCA, the Conditions of Subcontract and the Main Contract documents for the Main Contract shall constitute the Sub-contract Agreement between D1 and the Plaintiff;

(b) D1 agrees to assign its rights and benefits under the Main Contract to the Plaintiff and the Plaintiff agrees to take such assignment and indemnify D1 in accordance with Clause 3.3 of the SCA;

(c) D1 agrees to open a new bank account at RHB-TTDI branch solely for the purpose of the Project (‘Project Bank Account’), to nominate Mr. Tan as the sole authorised signatory of the Project Bank Account and to hand over the user ID and password to D4’s Portal System to Mr. Tan. The parties agree that the Project Bank Account shall not be closed until a reasonable time upon the issuance of the Final Certificate by D4 under the Main Contract;

(d) out of RM600,000.00 which had been agreed to be paid by the Plaintiff to D1 under the sub-contract which had been terminated by the Plaintiff on 30.1.2016, RM350,000.00 had been paid. Although the outstanding amount due to D1 is RM250,000.00, in consideration of the assignment of the Main Contract to the Plaintiff, D1 agrees to receive RM1000,000.00 instead, subject to the condition that –

(i) RM20,000.00 to be paid upon signing of the SCA;

(e) D1 agrees to absorb liquidated damages which may be imposed by D4 up to a maximum of 2 months. [16] The Plaintiff claimed that it has completed all original works, excluding testing work, and all additional works vide Variation Orders (‘VO’) No. 1 to 9 given by D4 through D1 amounting to RM513,621.40 without any complaints on the quality of its work from either D1 or D4. However, the Plaintiff alleged that it only received RM6,976,300.00 as payment for the Project and that there is an outstanding sum of RM2,851,770.34, which was computed as follows: Original Contract Value RM9,634,987.58 Net Amount Added/Deducted (VO No. 1 to 9) RM 513,621.40 Current Contract Value RM10,148,608.98 Value of Work Done RM 9,838,070.34 Deduct Value of previous Progress Payment Certificate No. 13 RM 6,976,300.00 Outstanding Balance Payment RM 2,851,770.34 [17] It is the Plaintiff’s case that D1 started to ask for payment in excess of what was agreed and this strained the relationship between the Plaintiff and D1. Consequently, D1 refused to sign the VO issued by D4 since early September 2016 to approve payments although the Plaintiff had completed more than 97% of the overall work. [18] On 7.4.2017, D1’s solicitors issued a letter to the Plaintiff stating that in the meeting between the Plaintiff, D1 and D4 on 28.3.2017 (‘28.3.2017 Meeting’), a settlement was reached that D1 will take over the Project from the Plaintiff and complete the same as there was allegedly a delay of 293 days in the Project and the Plaintiff had thereby breached the SCA. D1’s solicitors notified that the SCA was terminated with immediate effect and D1 had taken over the Project since 29.3.2017, and that the Project Bank Account shall forthwith be closed, and Mr. Tan shall cease to be the authorised signatory of the same. [19] The Plaintiff replied to D1’s solicitors on 14.4.2017 denying D1’s allegations and statements and taking the position that the termination of the SCA is unlawful. [20] In the Amended Statement of Claim (‘SoC’), the Plaintiff pleaded the following particulars of breach by D1 towards the Plaintiff:

(a) D1 failed to pay the outstanding progress payment to the Plaintiff and D4 has full knowledge of this matter;

(b) D1 had intentionally terminated the SCA unilaterally without the Plaintiff’s agreement; and

(c) D1 breached the LoU and the SCA by closing the Project Bank Account and revoking Mr. Tan’s power as the authorised representative without the Plaintiff’s consent and before the Project received a Final Certificate and the final payment from D4. [21] The Plaintiff sought the following reliefs jointly and/ or severally from the Defendants:

(a) the sum of RM2,851,770.34 as the total outstanding payment to the Plaintiff or alternatively, the value of the balance sum for work done by the Plaintiff up until the termination date of the sub-contract on a quantum meruit basis;

(b) interest on the judgment sum at the rate of 5% per annum from the date of judgment until full and final settlement;

(c) the sum of RM96,349.87 for the PB paid by the Plaintiff on behalf of D1 with interest at the rate of 5% per annum from the date of judgment until full and final settlement;

(d) general damages for loss of reputation and goodwill of the Plaintiff;

(e) damages to be assessed by the Court for breach of contract; and

(f) costs on client-solicitor basis. [22] However, in its submission, the Plaintiff highlighted that at the trial, both parties admitted that the total contract sum is RM8,961,994.28. Hence, the Plaintiff submitted that it is entitled to the outstanding balance sum of RM1,716,834.45 which was computed as follows: Original Contract Value RM 9,634,987.58 Net Amount Deducted (VO No. 1 to 9) - RM 672,993.30 _______________ Current Contract Value RM 8,961,994.28 Value of Work Done RM 8,693,134.45 Deduct Value of previous Progress Payment Certificate No. 13 RM 6,976,300.00 _______________ Outstanding Balance Payment RM 1,716,834.45 _______________ The Defendant’s Case [23] The Defendant emphasised that among the important express and implied terms of the SCA are that the payment to the Plaintiff is on a “back-to-back basis”. Every payment to the Plaintiff is based on the approved sum and paid by D4 whereby the sum is deposited into the Project Bank Account and then paid to the Plaintiff. [24] The Defendant’s version of the events is that the Plaintiff had failed to perform the works diligently until it exceeded the original completion date on 16.3.2016 and the extended date on 8.6.2016 (‘EoT No. 1’). The Plaintiff is said to have breached the terms of the SCA by delaying the completion of the Project for 293 days as at 28.3.2017. [25] The delay by the Plaintiff purportedly caused severe losses to D1 who was imposed with liquidated and ascertained damages (‘LAD’) in the sum of RM1,811.38 per day since 8.6.2016, being the date of issuance of the Certificate of Non-Completion (‘CNC’), until the date that the works were certified as being satisfactorily completed on 13.11.2017 (with the issuance of the Certificate of Practical Completion (‘CPC’) on 20.12.2017). [26] At the 28.3.2017 Meeting, the Plaintiff allegedly agreed to stop work and for the SCA to be mutually terminated and D1 to undertake to continue and complete the Project commencing from 29.3.2017 and to hand over the same to D4 on 13.11.2017. [27] To D1, with the termination of the SCA, the Plaintiff no longer has any legitimate claims and there is no sum outstanding to the Plaintiff for the works it had performed. [28] D1 counter claimed for the sum of RM2,777,687.08, general damages to be assessed, interest of the judgment sum from the date of the Writ until full settlement and cost. The Defendant’s counterclaim for the sum of RM2,777,687.08 is particularised below: Claim Amount (RM) LAD of 523 days 947,351.74 Balance payment under the Sub-Contract 250,000.00 Losses suffered by Defendant after taking over works from the Plaintiff 1,580,335.34 TOTAL 2,777,687.08 The Trial and Issues To Be Tried [29] The trial was held over five non-consecutive days. During that period, four witnesses testified for the Plaintiff whilst the Defendant called only one witness. The particulars of the witnesses are as shown below: [30] The following are the Issues To Be Tried as agreed by the parties: “Work Done and Balance Payment of RM2,851,770.34

What is the actual percentage of work carried out by the Plaintiff for the Project?

What is the amount entitled to by the Plaintiff for the percentage of work done by the Plaintiff? Witness Name Occupation PW1 Dato’ Tan Ee Aun Plaintiff’s General Manager PW2 Mr. Teoh Yong Kee Quantity Surveyor PW3 Mr. Lai Kim Foh Plaintiff’s Finance Manager PW4 Mr. Ibrahim Basri Bin Kamaruddin Plaintiff’s Business Development Manager Mr. Shamsul Azhar Bin Haron D1’s Director LAD of RM947,351.74

Whether a Certificate of Non-Completion (‘CNC’) has been issued by D4 pursuant to Clause 40.1 of the Main Contractor’s Agreement dated 24.11.2014 for the Project and whether the issuance of the CNC is valid?

How long was the delay for the Project, if any?

Whether the Plaintiff had already borne LAD of 211 days for the Project and if so, whether the 1st Defendant’s counterclaim of RM947,351.74 for 523 days is valid?

Whether the Plaintiff is entitled for the deduction of the two months of LAD pursuant to Clause 10 of the Sub-Contractor’s Agreement dated 17.3.2016? Termination of the Sub-Contract Agreement

Whether there was mutual termination of the Sub-Contract Agreement dated 17.3.2016?

Whether the closure of the Escrow Account done by the 1st Defendant before the completion of the Project pursuant to Clause 6.5 of the Sub-Contract Agreement was valid?

Whether the Plaintiff has suffered any losses due to the termination of the Sub-Contract Agreement and closure of the Escrow Account? Defective Work and Incomplete Works

Whether there were defective or incomplete works done by the Plaintiff?

Whether D1 is entitled to the losses and damages in the sum of RM1,830,335.34 arising out of the alleged defective work or incomplete works done by the Plaintiff? Variation Order No. 1 to 13

Whether there were works under Variation Orders (‘VO’) No. 1 to 13 issued by D4 to the Plaintiff and if so, whether the works under VOs No. 1 to 13 were carried out and completed by the Plaintiff?

Whether D1 refused to sign VO No. 1 to 13 and whether the Plaintiff is entitled to the sum of RM513,621.40 for VO works No.1 to 13? Appointment of Puncak Seputih Sdn. Bhd.

Whether the appointment of Puncak Seputih by the Plaintiff needs to be brought to D1’s attention as D1 had appointed the Plaintiff as a sub-contractor for the Project and Puncak Seputih had attended the meeting? Performance Bond

Whether the Plaintiff had paid the sum of RM96,349.37 being the performance bond which the Plaintiff had borne on behalf of D1?”. [31] The analysis and findings of the Court in respect of each of the aforesaid issues are set out in the subsequent part of this judgment. I. Work Done and Balance Payment of RM2,851,770.34 What is the actual percentage of work carried out by the Plaintiff for the Project? What is the amount entitled to by the Plaintiff for the percentage of work done by the Plaintiff? [32] The Plaintiff accepts that, pursuant to s 101 of the Evidence Act 1950 [Act 56] (‘EA 1950’), it bears the burden to proof the facts relied upon as entitling it to its claim as pleaded in the Amended SoC. In this regard, it is the Plaintiff’s submission that, based on the following evidence, it has successfully proven that 99% of the works for the Project had been completed and thus, it is entitled to the sum of RM2,851,770.34 as originally claimed:

(a) the contemporaneous documents issued and/ or prepared by D4, the Department of Irrigation and Drainage (‘JPS’) and the Defendant show that the Plaintiff had done 99% of the works for the Project; and

(b) the Defendant did not call D4, the consultants or the Quantity Surveyor to testify at trial and therefore, the presumption under s 114(g) EA 1950 ought to be invoked and an adverse inference drawn against the Defendant. [33] At the opposite end, the Defendant's case is that, based on Interim Certificate No. 13, the Plaintiff had carried out only 72.4% of the works. In the Interim Certificate No. 13 signed by the Quantity Surveyor and Engineer on 17.1.2017 and 18.1.2017, respectively, the previous Interim Payments Nos. 1 to 12 amounted to RM6,648,100.00 whilst the sum of RM328,200.00 was certified for Interim Certificate No. 13, being the last interim payment made before the termination of the SCA. The total sum is thus RM6,976,300.00. [34] The Defendant asserted that the Plaintiff failed to prove the actual percentage of works carried out for the Project. D1 postulated that it is illogical to accept 99% as the percentage of works done because if it is true only 1% of the works was left –

(a) it would be for clearance works as testified by DW1;

(b) D1 would not have taken 8 months to complete the works calculated from the date the Plaintiff left the Project on 28.3.2017 until the date the works were certified as practically completed on 13.11.2017;

(c) D4 would not have instructed D1 to take over the Project and threatened to terminate the Main Contract; and

(d) the Plaintiff would have stated such fact in its letter in response to the termination dated 14.4.2017 and in the solicitor’s letter dated 14.6.2017. [35] In the case of conflicting versions of the percentage of the works carried out by the Plaintiff, Mr. Muhammad Faiz submitted for D1 that the best evidence should come from an independent witness from D4 or the consultant, Jurutera Perunding Sinar Sdn Bhd (‘Perunding Sinar’) and the burden is on the Plaintiff to call either or both. The onus never shifted to D1 to disprove the Plaintiff's case. [36] In the Amended SoC, the Plaintiff claimed that it had completed more than 97% of the overall work. I have given careful consideration to the oral and documentary evidence and the submissions of the parties, and I am satisfied that the Plaintiff has discharged the burden of proving the above said pleading, on a balance of probabilities. Contrary to D1’s submission, the Plaintiff did not merely rely on Laporan Kemajuan No. 51 for the period 20.3.2017 to 2.4.2017 (‘LKN 51’) to support its case, but a plethora of oral and documentary evidence as well and these are set out below:

(a) The first time that the progress of works for the Project is reported as “Siap Sebenar: 99%” is in the Minutes for Site Meeting No. 41 held on 17.11.2016. PW1, PW3 and DW1 had confirmed this fact in their evidence. DW1 was also shown the Minutes for Site Meeting Nos. 42 to 44 and he agreed that the progress of work done is recorded as 99%. The same percentage can be seen in the subsequent Minutes right up to the Minutes for Site Meeting No. 63 on 12.10.2017, which is the final Minutes in the Common Bundle of Documents (‘BoD’). In his evidence, PW3 said that before every Site Meeting is conducted, the Minutes for the previous Site Meeting will be verified. When cross-examined by Mr. Tristan Ng, DW1 agreed that this was indeed the practice. DW1 also agreed that D1 did not object to the percentage of progress of works as reported in each of the Minutes of the Site Meetings. My perusal of the Minutes shows that a statement that the Minutes for the previous Site Meeting “telah disahkan” was first inserted in the Minutes for Site Meeting No. 54 and this continued until the Minutes for Site Meeting No. 63. In respect of the Minutes for Site Meeting No. 44 (at p 170, B3), the Plaintiff’s counsel had drawn DW1’s attention to the fact that despite numerous handwritten amendments or markings, no amendments were made to the progress of works at 99%, to which DW1 had agreed.

(b) On 24.3.2017, Perunding Sinar sent a letter to D1 titled “Amaran Penamatan Kontrak” stating, inter alia, that: “… Mesyuarat tapak yang yang ke 51 pada 23 Mac 2017 adalah berkaitan. Dukacita dimaklumkan bahawa pihak tuan masih gagal menyiapkan kerja-kerja ditapak seperti yang terkandung dalam kontrak walalaupun pihak tuan telah berkali-kali diberi amaran dan peringatan supaya menyiapkan kerja-kerja tersebut dengan kadar segera. Sepatutnya kerja-kerja perlu disiapkan pada 8 Jun

Sehingga kini pihak tuan telah lewat selama 288 hari. Sehubungan itu pihak UM tidak teragak-agak untuk menamatkan kontrak tuan sekiranya tiada peningkatan kerja pada masa terdekat. Sila pihak tuan ambil perhatian bahawa peratus kerja yang belum siap sebanyak 1 peratus telah berlanjutan bermula pada bulan disember 2016 tanpa sebarang peningkatan peratusan kerja. …” (emphasis added). DW1 was questioned by the Plaintiff’s counsel regarding this letter whereby DW1 said that D1 did not reply to Perunding Sinar’s letter. By not protesting to the contents of the letter at the material time, the Plaintiff rightly submitted that D1 must be deemed to have accepted the statements therein including that the remaining works to be completed stood at 1%.

(c) In the Minutes of the 28.3.2017 Meeting on “Perbincangan Kemajuan Tapak/ Bersama Kontraktor Tangki Air” which was attended by representatives from D1, D4 and Puncak Seputih, the Chairman of the Meeting informed that “… mesyuarat ini bertujuan bagi membincangkan kerja-kerja akhir yang tidak dapat disiapkan ditapak. (testing and commissioning)”. During the re-examination, PW3 confirmed that as at 28.3.2017, the remaining works for the Project were only testing and commissioning.

(d) After the 28.3.2017 Meeting, the Plaintiff had sent a letter to D4 dated 30.3.2017 stating, among others (with my added emphasis), that: “… Adalah dalam pengetahuan pihak tuan bahawa kami termasuk sub-kontrak kami, Puncak Seputih Sdn Bhd … telah secara praktikalnya menyiapkan kesemua kerja-kerja fizikal kecuali kerja-kerja pengujian (testing) yang merupakan 1% sahaja baki kerja yang tinggal bagi menyiap dan/atau menyempurnakan Projek tersebut (yang mana tiada sebarang kelewatan berpunca sepenuhnya dari pihak kami) (selepas ini dirujuk sebagai “Baki Kerja Projek tersebut”). …”. In D4’s letter of reply dated 4.4.2017, D4 did not deny or dispute the above quoted statement that only 1% of the works has yet to be completed. Shortly thereafter, Mohd Faharuddin Bin Adam from Bahagian Pembangunan, Kementerian Pendidikan Tinggi had sent an e-mail dated 13.4.2017 to D4 seeking D4’s feedback on the Plaintiff’s letter to the Ministry concerning D1’s decision to terminate the Sub-Contract. D4 replied on the same date that “… Tindakan pihak kontraktor utama Laksamana Cemerlang Sdn Bhd menamatkan perkihidmatan sub-kontraktor IBR Sdn Bhd berikutan prestasi sub-kon yang tidak memuaskan dimana tiada peningkatan progress kerja 99% sejak beberapa bulan. …” (emphasis added).

(e) DW1 had lodged a police report on 31.3.2017 wherein it was stated, among others, that: “Pada mesyurat perbincangan kemajuan tapak bertarikh 28/03/2017 pihak Universiti Malaya telah memaklumkan bahawa kemajuan projek telah lewat hampir 300 hari. Peratus telah siap kerja ialah 99%. Baki 1% telah tiada kemajuan kerja sejak December

Oleh itu Universiti Malaya mencadangkan untuk mengeluarkan surat penamatan kontrak. Syarikat mengambil tanggungjawab untuk menyiapkan projek tersebut. Dalam masa terdekat.” (emphasis added). During cross-examination, DW1 admitted that his police report is based on what was discussed in the 28.3.2017 Meeting. D1 has thus accepted that the progress of works for the Project was 99%. [37] In the case of The Carbon Company Sdn Bhd & Anor v. Ng Lee Hoon [2017] 6 CLJ 189, the Court of Appeal held that: “[49] The law on the burden of proof is so settled. Pursuant to s. 101(1) of the Evidence Act 1950, a party who desires the court to give judgment in its favour as to the legal right or liability bears the burden to prove its case. The burden of proof on that party is twofold, firstly the burden of establishing a case and secondly the burden of introducing evidence. This burden lies on the party throughout the case and the standard of proof is on the balance of probabilities. Once that party has discharged its evidential burden of proof then the burden would then shift to its adversary. If a party has failed to discharge its burden of proof on the standard required by the law, his adversary does not bear the burden to adduce any evidence. In the case at hand, the plaintiff, a sole proprietor has to discharge her burden of proof to prove her case as well as to introduce evidence in support of her pleaded case. It is not the defendant’s duty to fill up the gaps in the plaintiff’s case/ or be accused of not establishing their defence (see Yeohata Machineries Sdn Bhd & Anor v. Coil Master Sdn Bhd & Ors [2016] 2 CLJ 414; Selvaduray v. Chinniah [1939] 1 LNS 107; [1939] MLJ 253 SC; s. 2 of the Evidence Act 1950; Abrath v. North Eastern Railway Co [1883] 11 QBD 440 (CA)).”. [38] In my opinion, based on the preponderance of evidence adduced by the Plaintiff as outlined above, the Plaintiff has discharged its evidential burden of proving that the progress of works for the Project at the material time was 99%. In these circumstances, the evidential burden then shifts to D1 to prove that the progress of works stood at 72.4%. [39] In this regard, D1 relied heavily on Interim Certificate No. 13 which was the last interim payment made before the termination of the SCA. However, what D1 fails to appreciate is that, even if the total amount paid by D4 to D1 as at 18.1.2017 is 72.4% of the contract sum under the Main Contract, this means that the financial progress was 72.4% and it cannot be equated to 72.4% physical progress of the works at the site. On the cover page of LKN 51 (exhibit P1), “Kemajuan Fizikal Sebenar (Sekarang)” is stated as 99% whilst “Kemajuan Kewangan Sebenar (Sekarang)” is stated as 72.49%. It is not uncommon for payment certifications for works completed to lag behind the actual work progress at the site. [40] D1 challenged the Plaintiff’s reliance on LKN 51, although it was prepared by Khairul Asyraf Mohamad, D1’s employee and verified by Hj. Kamaruzzaman Hj Jusoh from Perunding Sinar on 6.4.2017, on the ground that no weight should be given to LKN 51 as the Plaintiff failed to call a witness from Perunding Sinar or D4 to testify on the contents of LKN 51. Khairul Asyraf’s authority to sign any document was disputed by D1 and it was alleged that he had worked with the Plaintiff before the termination of the SCA. [41] D1’s counsel urged the Court to invoke the adverse inference under s 114(g) EA 1950, however I declined to do so because in my view, it is safe to accept LKN 51 as evidence that (i) the remaining works for the Project is only mechanical and electrical works, testing and commissioning and handing-over; (ii) the physical progress of works is 99%; and (iii) the financial progress is 72.49%. The contents of LKN 51 are consistent with the contents of the other documents as set out in subparas 36(a) to (e) above as to the fact that the physical progress of works around the same period as the period covered by LKN 51 and on the date of its verification i.e. between 20.3.2017 and 6.4.2017, was 99%. [42] Even if I am found to have erred in accepting LKN 51 as evidence to support the Plaintiff’s case, there other documentary and oral evidence are unaffected and amply justify a finding that the Plaintiff has discharged the legal and evidential burden of proving its pleaded case that it had completed more than 97% of the overall work for the Project. In contrast, D1 has failed to discharge the evidential burden of proving that the progress of works was 72.4%. [43] The Court further agrees with the Plaintiff that it is entitled to at least 97% of the contract sum. In the post-trial submissions, the Plaintiff’s computation of its claim was based on the Harga Kontrak Terlaras as stated in the Penyata Akaun Muktamad which was signed by the S.O. on 29.5.2019 (see p 14, B12 and para 22 above). Since D1 itself submitted that “The court should only order the payment based on the certificate issued and verified by UM or the consultant” (see para 25.1 at p 44 of its Written Submission), the Court accepts that the outstanding balance which must be paid by D1 to the Plaintiff is the sum of RM1,716,834.45. II. LAD of RM947,351.74 Whether a CNC has been issued by D4 pursuant to Clause 40.1 of the Main Contractor’s Agreement dated 24.11.2014 for the Project and whether the issuance of the CNC is valid? [44] Clause 40.1 of the Main Contract read together with para 3.1 of the Addendum No. 1 To The Conditions Of Contract PWD 203/203A (Rev. 1/2010) provides that “If the Contractor fails to complete the Works by the Date for Completion or within any extended time granted pursuant to clause 43, the S.O. shall issue a Certificate of Non-Completion to the Contractor.”. [45] The “S.O.” is defined in Clause 1.1 of the Main Contract to mean the Superintending Officer who shall be Timbalan Naib Canselor (Pembangunan) Universiti Malaya and/ or his successors in office. The date for completion for whole of the works is stipulated in the Appendix To Conditions Of Contract as 16.3.2016. [46] On 9.6.2016, the S.O. issued the CNC to the effect that D1 has failed to complete the works within the extended time approved under Clause 43 of the Main Contract i.e. 8.6.2016 and that D1 was liable to pay RM1,811.38 per day as liquidated and ascertained damages. [47] During the trial, the issuance and validity of the CNC was not disputed by either party. Therefore, both parts of this issue are answered in the affirmative. How long was the delay for the Project, if any? [48] There was also no serious contest by the parties in relation to this issue. They accepted that the duration of delay was from the date of issuance of the CNC to 13.11 2017, which is the date the whole of the works were certified as being satisfactorily completed vide the CPC dated 20.12.2017. Whether the Plaintiff had already borne LAD of 211 days for the Project and if so, whether D1’s counterclaim for LAD in the sum of RM947,351.74 for 523 days is valid? Whether the Plaintiff is entitled for the deduction of two months of LAD pursuant to Clause 10 of the SCA? [49] Based on the clarification session after filing of the parties’ written submissions, it was apparent that the parties do not dispute the fact that the Plaintiff has borne 211 days of LAD amounting to RM382,201.18 as imposed by D4 for the period before the termination of the Sub-Contract (see too, the evidence by PW1, PW3 and DW1 and Perakuan Bayaran Interim No. 13 dated 17.1.2017 at p 95, B2). [50] The bone of contention is whether the Plaintiff is liable to pay D1 the sum of RM947,351.74 which is calculated as follows: Period Number of Days LAD imposed by D4 (RM1,811.38 per day)

9.6.2016 (date of issuance of the CNC) – 293

28.3.2017 (date of the meeting previously referred to)

29.3.2017 – 13.11.2017 (date of practical completion of the works) 230 RM416,617.40 TOTAL 523 RM947,351.74 [51] According to para 8 of the Defence and Counterclaim, the entire LAD as imposed by D4 on D1 should be fully borne by the Plaintiff as the Plaintiff was the one who carried out the Project. D1 pleaded that there was no agreement that it is to absorb the LAD because it contradicts the normal practices and the essence/ spirit of the construction contract. [52] It was further pleaded that the Plaintiff has breached the fundamental terms of the Sub-Contract by failing to carry out the works diligently as it exceeded the original completion date and EoT No. 1, thereby causing extensive losses to D1 who was imposed with continuous LAD as shown in the above table. D1 cited Clause 10 of the SCA as the provision which entitles it to the LAD claim. [53] On the part of the Plaintiff, it was highlighted that DW1 in his evidence had admitted the following:

(a) that D1 is bound by the terms of the SAC including Clauses 9 and 10;

(b) that D1’s claim of RM947,351.74 is for LAD of 523 days from the date CNC was issued until the date of practical completion;

(c) that the Plaintiff had borne 211 days of LAD as it was still the sub-contractor of the Project after the CNC was issued; and

(d) that any LAD imposed after the Defendant had taken over the works of the Project is not to be paid by the Plaintiff. [54] The Plaintiff’s counsel additionally submitted that DW1’s answer during re-examination as to the basis of D1’s claim for the full LAD sum, as quoted below, is irrelevant: “… sebab ini adalah perjanjian total sum, memang saya dapat RM600,000 dan dia akan siapkan. So, bila tanpa penglibatan saya secara totallah maksud saya, so apabila saya terlibat balik di penghujungnya tu, saya rasa banyak kos yang saya terpaksa terlibatlah maksudnya saya belanja untuk menyiapkannya. Yang mana projek itu daripada, sepatutnya boleh dapat RM9 juta dia pun sendiri, tapi akhirnya dia tak siap dan LAD dikenakan. So, bagi saya adalah wajar bagi saya menuntut balik dan dia pun tak bayar saya habis daripada yang RM600,000 itu …”. [55] In my analysis, firstly, reference is again made to the Penyata Akaun Muktamad wherein para B “Butiran Jumlah Potongan” it clearly shows under subpara (d) that RM947,351.74 was deducted for “Potongan Gantirugi Tertentu dan Ditetapkan@RM1,811.38 selama 523 hari”. [56] Secondly, the Plaintiff and D1 are bound by the terms and conditions of the SCA. Clauses 9 and 10 of the SCA read as follows: “9. PAYMENT TO THE MAIN CONTRACTOR The amount agreed to be paid to the Main Contractor under the First Subcontract is RM600,000.00 and that RM350,000.00 had been paid to date. The outstanding amount due to the Main Contractor is RM250,000.00. As the consideration for the assignment of Main Contract to the Subcontractor, the Main Contractor agree to receive RM100,000.00 instead of RM250,000.00 on the condition that the RM100,000.00 to be disbursed strictly in the following manner; i. RM20,000.00 to be paid upon signing of this Subcontract Agreement; ii. RM20,000.00 to be paid upon receiving payment for Interim Payment Certificate No.7; and iii. RM60,000.00 to be paid upon receiving payment for Final Account

LIQUIDATED DAMAGES IMPOSED BY THE EMPLOYER The Main Contractor agree to absorb Liquidated Damages which may be imposed by the Employer up to the maximum of 2 months (if any), and that any liquidated Damages imposed thereafter the 2 months shall be absorbed by the Subcontractor.”. [57] By signing the SCA for and behalf of D1, DW1 himself has acknowledged that RM350,000.00 out of RM600,000.00 as agreed under the First Sub-Contract, which had been earlier terminated by the Plaintiff, had been paid. [58] With regards to the outstanding sum of RM250,000.00, D1 has evidently agreed to receive the reduced amount of RM100,000.00. The documentary evidence adduced at the trial (see the Plaintiff’s RHB Bank Berhad’s Account Statement at pp 1 - 4 of Bundle B5 which show one payment in the sum of RM20,000.00 and two payments for RM10,000.00 each were made on 1.4.2016, 30.5.2016 and 8.6.2016) and PW1’s evidence in the answer to Question 26 in the Witness Statement proves, on a balance of probabilities, that RM40,000.00 has been paid by the Plaintiff to D1 whilst the balance RM60,000.00 has not been paid as the Plaintiff did not receive any payment for the Final Account. [59] Based on Clause 10 of the SCA, the parties have undoubtedly agreed that D1 shall pay any LAD that may be imposed by D4 up to a maximum of two months and any LAD thereafter shall be paid by the Plaintiff. However, on 7.4.2017, D1’s solicitors had written to the Plaintiff to say that: “… UM had informed our client that there was a substantive delay of 293 days in the said project calculated until 28.3.2017, whereby our client have been warned by UM that a termination action will be taken against them. Thus, you have breached the said Subcontract. Therefore, in the meeting between the representatives of our client, you and UM on 28.3.2017, a settlement have been reached that our client will take over the project from you and shall complete the said project. We are therefore writing to notify that the said Subcontract is hereby terminated by our client with the immediate effect and they had taken over the project from you since 29.3.2017. Therefore, you are require to vacate the site and remove your belongings, equipments and goods within SEVEN (7) DAYS from the date hereof, failing which, our client shall have the rights to remove them without further notice and our client shall not be liable for any losses and/or damages incured [sic] by you.”. [60] Moreover, one week earlier, DW1 had lodged a police report, which was alluded to in the discussion on Issue I, where DW1’s two-fold intention in making the police report was (i) to ensure his safety and his family’s, the workers and the new sub-contractor that will be appointed as well as the safety of the documents, materials and equipment installed or supplied from any untoward incident resulting from D1’s taking over of the Project; and (ii) to prevent anyone from the Plaintiff’s company from approaching the project site. PW1, PW3 and DW1 testified that, after the issuance of the termination notice, the Plaintiff was not allowed to enter the site and to carry out any works for the Project. When cross-examined, DW1 agreed that the Plaintiff is not responsible for any delay to the works after the project site was taken over by D1. [61] In Terang Tanah Sdn Bhd & Anor v. Chong Choy Lin [2014] 1 LNS 683, the Court of Appeal upheld the decision of the High Court in granting a declaration that the Sale and Purchase Agreement for a house to be built by the 1st Appellant on land belonging to the 2nd Appellant was terminated by reason of breach of contract by the Appellants, however the appeal was allowed in part by setting aside the order in allowing the LAD claim. One of the reasons given by the appellate court was that: “[27] … we are of the view that as the SPA had been terminated, the Respondent can no longer invoke and rely on its terms to claim for the LAD. A claim for LAD is usually made when the agreement is still subsisting and there has been a delay in the delivery of vacant possession due to the default of the developer. There cannot be a claim for LAD when there is no delivery of vacant possession at all as in this case where it is next to impossible for the Appellants to build and deliver the house to the Respondent as the Appellants are no longer proceeding with the construction of the Project. The Respondent can only claim for actual damages against the Appellants.” (emphasis added). [62] In this case, it is the finding of this Court that D1 had unilaterally terminated the Sub-Contract (the reasonings for this finding will be addressed under Issue III below) and therefore, D1 cannot rely on Clause 10 of the SCA to claim LAD against the Plaintiff for the period after the 28.3.2017 Meeting. [63] D1’s counsel relied on the case of Ezzen Heights Sdn Bhd v. Ikhlas Abadi Sdn Bhd; Soo Yuh Mian (Intervener) [2011] 3 CLJ 16 in support of his submission that the deduction of two months LAD in Clause 10 of the SCA is inapplicable because the Plaintiff is the defaulting party and it would be inequitable and unconscionable to deduct LAD from D1. With respect, the reference to Ezzen Heights (supra) is misconceived as, in that case, the Court of Appeal was of the view that the plaintiff/ landowner relied on its own breach of the contractual obligation to obtain the relevant approval from the appropriate authorities for the amended building plans to put an end to the joint venture agreement that it had with the defendant/ developer to jointly develop the plaintiff’s land into shop office lots. It was against this backdrop that the Court held that the plaintiff cannot be permitted to take advantage of his own wrong to put an end to the contract. In contrast, the issue in the present case is whether D1’s termination of the SCA is valid and what would be the effect on Clause 10 of the SCA bearing in mind that the Plaintiff had borne LAD of 211 days out of 293 days for the period between 9.6.2016 to 28.3.2017 amounting to RM382,201.18. [64] Throughout the proceedings, D1 maintained its counterclaim for LAD for the full 523 days and there was no alternative pleading, prayer or submission for a lower of sum of LAD covering a period of less than 523 days or even 293 days. In any event, following the findings and conclusion of the Court in relation to Issue I, only 1% of the works was left to be completed as at the date of D1’s unilateral termination of the SCA. [65] Additionally, and as submitted by the learned counsel for the Plaintiff, D1’s failure to mitigate need not be specifically pleaded, contrary to the objection raised by Mr. Muhammad Faiz during the trial (see Joo Leong Timber Merchant v. Dr Jaswant Singh Jagat Singh [2003] 5 CLJ 286 and the application of the said case in Sabah Shell Petroleum Co Ltd & Anor v The Owners of and/or Any Other Persons Interested in the Ship or Vessel the ' Borcos Takdir' [2012] 5 MLJ 515 and Public Bank Berhad lwn Lim Peng Guan & Anor [2017] MLJU 1910). In this regard, the Plaintiff has raised a pertinent point that D1 could have applied for EoT after terminating the SCA and taking over the works for the Project as this could potentially reduce the LAD. DW1 testified that he cannot remember whether he had applied for any further EoT. Based on the documentary evidence before the Court, no such application was made and the only EoT for the Project was EoT No. 1 (see pp 218 - 220, B3). [66] DW1 also testified that “… bila CNC dah keluar tu memang untuk dapat diskaun ke, untuk LAD adalah very slim”. However, in the Minutes of the 40th until the 62nd Site Meetings on 3.11.2016 and 14.9.2017, respectively, it is recorded for the information of the attendees to the Site Meetings that “LCSB perlu hantar EOT2 untuk kurangkan LAD lebih RM…”. These Minutes seem to suggest that D4 was prepared to consider an application for EoT No. 2, had it been made by D1. [67] To conclude, this Court finds that the Plaintiff had borne LAD of 211 days for the Project and it is entitled to the deduction of two months LAD pursuant to Clause 10 of the SCA. The Court further finds that D1 has failed to prove, on a balance of probabilities, that it is entitled to the counterclaim for LAD in the sum of RM947,351.74 for 523 days as prayed. III. Termination of the SCA Whether there was mutual termination of the SCA? [68] Basically, the juxtaposed position of the parties on this matter can be summarised in that the Plaintiff claimed that the termination of the Sub-Contract was done unilaterally and not mutually as pleaded by the Defendant. Both parties relied on the Minutes of the 28.3.2017 Meeting to persuade the Court to arrive at a decision which supports their respective case. [69] The Plaintiff asserted that the Minutes of the 28.3.2017 Meeting does not expressly state that the termination was mutual whilst the Defendant argued that the same Minutes shows that D1 has agreed to take over the Project from the Plaintiff with immediate effect and by not objecting to this arrangement, the Plaintiff is deemed to have agreed to the termination. To D1, the fact that the representatives who attended the 28.3.2017 Meeting were from the Plaintiff or Puncak Seputih is immaterial as the Plaintiff is said to have regarded both companies as being the same entity. In any event, D1 submitted that it is too late for the Plaintiff to contend that PW3 and PW4 have no mandate to attend the 28.3.2017 Meeting as this was not stated in the Plaintiff’s letter of reply dated 14.4.2017. Furthermore, as outsiders, D1 can legally presume the authority of the representatives to act for the Plaintiff based on the Turquand Rule as elucidated in the case of Pekan Nenas Industries Sdn Bhd v Chang Ching Chuen & Ors [1998] 1 CLJ 793. [70] The other argument put forth by the Plaintiff was that it had objected to the termination through letters which were sent to D1’s solicitors and D4. On the other hand, D1 contended that the conduct of the parties post-termination is consistent with mutual termination as the Plaintiff did not approach D1 to discuss the matter until D1’s solicitors issued the formal notice of termination on 7.4.2017. The Plaintiff also did not apply for any injunction against the termination. As the termination is valid, D1 postulated that all terms of the SCA thereby became void including the closing of the Project Bank Account and the Plaintiff no longer has any legitimate claims against D1. [71] I have given utmost consideration to the respective submissions of the parties and I am inclined to agree with the Plaintiff that the termination of the Sub-Contract by D1 was not by mutual agreement. My reasons for this determination are as follows:

(a) The salient excerpt from the Minutes of the 28.3.2017 Meeting is shown below: “… 1) Perihal Projek

Projek ini sepatutnya telah disiapkan pada bulan Disember 2016. Tetapi sehingga Mac 2017 LCSB masih belum ‘handing over’ projek.

Universiti Malaya (UM) akan mengambil tindakan perundangan kepada LCSB kerana telah berjanji dengan pihak KPT untuk menyiapkan projek ini pada tarikh yang telah ditetapkan iaitu pada bulan Disember 2016.

LCSB berjanji akan mengambil alih (take over) kerja-kerja yang tertangguh bermula 29 Mac 2017 disebabkan oleh PSSB dan akan menyelesaikan kerja-kerja tertangguh dengan segera. …

Pengerusi memohon agar pihak LCSB dan PSSB berbincang jalan penyelesaian untuk menyiapkan kerja-kerja yang masih belum disiapkan di tapak. …

Pengerusi memaklumkan akan meneruskan proses untuk penamatan kontrak kepada pihak LCSB akan dibuat sekiranya tiada kemajuan kerja di tapak.”. Having scrutinised the Minutes of the 28.3.2017 Meeting, it is observed that apart from D4’s representatives and four representatives of D1 including DW1, PW3 and PW4 were also present in their capacity as representatives of Puncak Seputih. It is also obvious that nowhere is it stated that the Plaintiff and D1 have agreed to mutually terminate the SCA. Based on paras 3 and 9 of the Minutes, D1 promised to take over the works from 29.3.2017 and the Chairman requested that D1 and Puncak Seputih to discuss the way to solve the issue of the outstanding works at the site. In cross-examination, DW1 admitted that the Minutes did not record that the Plaintiff or Puncak Seputih had agreed to the promise made by D1 that it will take over the works.

(b) D1’s contention that the silence by the representatives of Puncak Seputih at the 28.3.2017 Meeting to D1’s proposal of taking over the works must be deemed as acceptance of the same is untenable in the light of the following:

(i) the Plaintiff had sent a letter to D4 dated 30.3.2017, a mere two days after the 28.3.2017 Meeting, stating, among others, that: “… Kami difahamkan oleh sub-kontraktor kami, Puncak Seputih … melalui En. Lai Kim Foh bahawa pihak tuan telah pada 28.3.2017 di Bilik Mesyuarat JPPHB (selepas ini dirujuk “Mesyuarat tersebut”), memaklumkan bahawa pihak tuan hanya berminat untuk memastikan Projek tersebut disiapkan dan/atau disempurnakan secepat mungkin dan meminta pihak kami dan pihak Laksamana Cemerlang Sdn Bhd … selaku Kontraktor Utama Projek tersebut untuk berbincang berkenaan perkara ini. Adalah dalam pengetahuan pihak tuan dalam Mesyuarat tersebut, pihak Laksamana Cemerlang … telah menyampaikan hasrat mereka kepada pihak tuan untuk menyiapkan Baki Kerja Projek tersebut tanpa mahu sebarang perbincangan dengan pihak kami (selepas ini dirujuk sebagai “Pertikaian tersebut”). Kami berasa amat terkilan, dukacita dan terkesan dengan Pertikaian tersebut kerana Pertikaian tersebut bukan sahaja akan merugikan dan memberi kesan kepada kami tetapi akan turut merugikan dan memberikan kesan kepada kesemua pihak termasuk pihak tuan. Pihak kami terpaksa memberhentikan kesemua pekerja-pekerja pihak kami dan/atau pengkhidmat kami di tapak Projek tersebut secara serta merta dengan kesemua peralatan pihak kami dan/atau pengkhidmat kami masih berada di tapak Projek tersebut. …”. In my view, the tenor of the above quoted letter indicates that the Plaintiff did not agree for the SCA to be terminated; and

(c) In the case cited by the Plaintiff, Kelibat Megah (M) Sdn Bhd v. Smart Reliance Sdn Bhd [2018] 1 LNS 315, the High Court had quoted the following passage from the decision of the Federal Court in SPM Membrane Switch Sdn Bhd v. Kerajaan Negeri Selangor [2016] 1 CLJ 177 at pp 212 - 213: “… Insofar as the appellant contends that the respondent, when terminating the contract, has a duty to give reasons in accordance with general law, that contention is false and without authority. Nonetheless, such a duty may be imposed by proper construction of the contract. Factors that lend towards establishing such a duty are, inter alia, where grounds for valid termination of the agreement are particularised in the contract and where the contract purports to give the party in breach an opportunity to remedy its unsatisfactory performance, such that without knowledge of the particular alleged breaches, no meaningful effort to remedy them can be taken. In the context of the present case, the notice of termination is bad in law.”. In Kelibat Megah, the court found that the same treatment that the project owner accorded to the defendant/ main contractor ought to apply as between the defendant and the plaintiff/ subcontractor whereby one of the terms of the main contract was that the “Contractor assumes all obligations, rights, duties and redress that JKR Selangor assumes towards contractor under the prime agreement”. Hence, the court held that terms such as the notice of intention to terminate, the giving of reasons and notice to rectify, failing which there would be termination, ought to apply and in the absence of such notice, the termination was bad in law. In the instant case, the SCA does not contain a provision which is the same or similar to Clause 51.0 in the Main Contract on “Events And Consequences Of Default By The Contractor”. The requirement for D4 to give written notice to D1 specifying the default and requiring D1 to remedy such default within 14 days of the receipt of the default notice or any period determined by D4 is expressly stipulated in the said Clause 51.0. Nevertheless, Clause 2 of the SCA provides that the SCA, the Conditions of Sub-Contract and the Main Contract Documents shall together constitute the Sub-Contract Agreement between D1 and the Plaintiff. Clause 3 of the SCA states that “The Main Contractor agree to assign his rights and benefits under the Main Contract to the Subcontractor and the Subcontractor agree to take such assignment and indemnify the Main Contractor.”. D1’s right to be given a written notice specifying the default and requiring D1 to remedy such default within a stipulated period was thus assigned to the Plaintiff. During cross-examination, DW1 agreed that pursuant to the said Clause 51.0, D1 ought to have given such written notice to the Plaintiff. No documentary evidence was produced by D1 to prove that it had given such written notice to the Plaintiff. Therefore, the Court agrees with the Plaintiff’s submission that this renders the termination bad in law. [72] In the written submissions for D1, Mr. Muhammad Faiz had raised arguments that the termination of the SCA was valid due to anticipatory breach. The Court did not consider this submission at all because it was not pleaded and the issue of whether there is an anticipatory breach is not one of the Issues To Be Tried. [73] In sum, the weight of the evidence negates a finding that there was mutual termination of the SCA. Whether the closure of the Project Bank Account by D1 before the completion of the Project pursuant to Clause 6.5 of the SCA is valid? [74] D1 contended that the closure of the Project Bank Account was consequential to the termination of the Sub-Contract. It was argued that although Clause 6.5 of the SCA provides that the Project Bank Account “… shall not be closed until a reasonable time upon the issuance of the Final Certificate by the Employer under the Main Contract”, it is silent in the case of termination. [75] D1 urged the court to apply the “commercial sensible test” in determining the validity of this action since there is a lacuna in the SCA as to the events upon termination, and the closure of the Project Bank Account was to ensure that the interim payment was made to D1 as it had carried out the works after the termination. D1 relied on Damansara Realty Bhd v Bungsar Hill Holdings Sdn Bhd & Anor [2011] 4 CLJ 16 and Bon Chong Hing &Anor v Gama Trading Company (Hong Kong) Ltd [2011] 6 CLJ 49 to support the submission that the SCA ought to be interpreted purposively or broadly. Even though there is no clause on termination and closure of the Project Bank Account upon termination, the courts are said to have recognised that in the case of delay, termination can be made, and this renders the closure of the Project Bank Account, as a consequence of the termination, to be valid. [76] The Plaintiff countered D1’s assertions by submitting that, since the termination of the SCA is unlawful, the closure of the Project Bank Account is a breach of Clause 6.5 of the SCA. I agree. Based on the LoU and the SCA, D1 can only close the Project Bank Account after the Project receives a Final Certificate and final payment from D4. Whether the Plaintiff has suffered any losses due to the termination of the SCA and closure of the Project Bank Account? [77] D1’s submission was consistent with the position that it had maintained throughout the proceedings, namely that, as the termination of the SCA and closure of the Project Bank Account are valid, the Plaintiff did not suffer any losses. It was strenuously argued, based on the case of Kumpulan Teknik Sdn Bhd v. Murad Hashim Communication Sdn Bhd & Anor [2012] 6 CLJ 80, that any payment made after the termination into the Project Bank Account will tantamount to unjust enrichment as D1 would be denied payments for the remainder of the works which it had performed after the termination. [78] The Plaintiff submitted that it was entitled to damages for breach of Clause 6.5 of the SCA and prayed for RM100,000.00 as damages or any other amount as the Court deems fit. Although D1 had taken issue with the Plaintiff’s failure to specifically plead the losses suffered due to this breach with reference being made to the judgments in Tan Sri Khoo Tack Peat & Anor v Plenitude Holdings Sdn Bhd [1995] 1 CLJ 15 and Pacific Inter-Link Sdn Bhd v Wilmar Trading Pte Ltd & Ors [2013] 7 CLJ 312, the Plaintiff had correctly referred to O. 18, r. 12(1A) of the Rules of Court 2012 which clearly provides that “No party shall quantify any claim or counterclaim for general damages” (see too, cases such as Dr Mohd Yusof Ismail v. Hj Ismail Mohd Nor [2011] 1 CLJ 445 and Skrine & Co v MBF Capital Bhd & Anor [1998] 3 MLJ 69). [79] In my assessment, damages in the sum of RM20,000.00 is adequate to compensate the Plaintiff for breach of Clause 6.5 of the SCA. The Plaintiff did not make any submission on its entitlement to, and the proposed quantum for, damages for wrongful termination of the SCA. The Plaintiff’s claim for general damages for loss of reputation and goodwill [80] At this juncture, it would be apt to address the Plaintiff’s claim in subpara 36(e) of the Amended SoC for general damages for loss of reputation and goodwill. [81] The Plaintiff pleaded that its reputation and goodwill as a construction contractor has been tainted, especially among suppliers, sub-contractors, service providers and so forth who were involved in the Project as a result of the breach of contract and D1’s failure to release the balance payment for the Project to the Plaintiff. Further, this matter was said to put the Plaintiff at risk of having legal action taken against it by these parties (see paras 27 and 28 of the Amended SoC). [82] At the end of the trial, it was apparent that this suit falls within the category of cases where a party pleads its claim for general damages but not an iota of evidence is led to prove the facts as pleaded. Due to the absence or lack of evidence, this Court is unable to award any general damages for loss of reputation and goodwill of the Plaintiff. IV. Defective Work and Incomplete Works Whether there were defective or incomplete works done by the Plaintiff? Whether D1 is entitled to the losses and damages in the sum of RM1,830,335.34 arising out of the alleged defective work or incomplete works done by the Plaintiff? [83] D1 contended that, upon taking over of the works for the Project by D1, it discovered that the Plaintiff did not complete the works and/ or the works were defective, and these include the pipeline, pump and water tank. [84] In his evidence, DW1 relied on the Minutes of the Site Meeting No. 50 which took place on 9.3.2017 to support the claim that D1 had to engage Waterfield Sdn Bhd, MyHijrah Sdn Bhd and Rotorks (M) Sdn Bhd to repair the pipes. As for the alleged leakage to the water tank, Reyma Resources Sdn Bhd is said to have rectified the same. D1 sought reimbursement of the payments that it had made to these companies as particularised in item numbers 11, 13, 14 and 17 in para 24 of the Amended Counterclaim. [85] D1 also claimed that it had suffered loss in terms of salary, maintenance and utility bills as well as the payments that it had to make to the Plaintiff’s sub-contractors or suppliers to whom the Plaintiff owed them the payments even though D1 has paid the Plaintiff for these works or supplies. [86] In submitting for D1, Mr. Muhammad Faiz drew the attention of the Court to PW3’s testimony where PW3 admitted that D1 can claim for the cost of rectification works to remedy the Plaintiff’s defective works and that some of the Plaintiff’s sub-contractors or suppliers were not paid by the Plaintiff and this caused them to stop the works. [87] In view of the above, D1 urged the Court to allow its counterclaim for –

(a) defective and incomplete works consisting of 10 items amounting to RM130,641.02;

(b) outstanding payments to the Plaintiff’s sub-contractors or suppliers consisting of 7 items amounting to RM675,233.19; and

(c) other claims for the salary of general workers, salary of professional workers and Employees Provident Fund contribution, preliminaries item, balance payment for the sub-contract and other items and petty cash for small items to complete the works consisting of 7 items amounting to RM1,024,461.13 (the total of the amounts as above stated is RM1,830,335.340). [88] The Plaintiff resisted D1’s counterclaim for the sum of RM1,830,335.34 on the grounds that:

(a) the Defendant failed to prove that there were defective or incomplete works. The Minutes of Site Meeting No. 50 does not state that there were leakages, and no other documents were produced by D1 to support its claim that there were defective or incomplete works;

(b) D1 merely relied on invoices to proof that there were defective or incomplete works. Despite PW3’s admission that the Plaintiff must pay for the sub-contractors, the burden of proof is on the Defendant to prove its claim which it has failed to do as there is no evidence to show payments made by D1 to the sub-contractors. D1 had the opportunity to include the proof of payments, if it exists, even if they were made after the BoD has been filed, but D1 failed to do so; and

(c) the Plaintiff has no knowledge as to what occurred after D1 took over the Project since the Plaintiff was not allowed to conduct any work or to be at the site. The Plaintiff challenged the entire documents in Bundles B8 and B9 and not merely as to the sufficiency of the documents. [89] I begin my analysis with the fundamental principle as provided in s 101 of the EA 1950 that “Whoever desires any court to give judgment as to any legal right or liability, dependent on the existence of facts which he asserts, must prove that those facts exist.”. Therefore, the burden is on D1 to prove that it has suffered the losses as claimed and that it is entitled to the reliefs as prayed in para 25 of the Defence and Counterclaim. [90] With regards to the alleged defective or incomplete works by the Plaintiff, apart from denying this fact, the Plaintiff pleaded that D1 never complained or raised any issue about defective or incomplete works to the Plaintiff at the material time (see para 21 of the Re-Amended Reply to the Amended Defence and Re-Amended Statement of Defence to the 1st Defendant’s Counterclaim). Indeed, D1 relied exclusively on the Minutes of the Site Meeting No. 50 as proof that there were defective or incomplete works and that these were solely attributed to the Plaintiff. [91] I have scrutinised the Minutes of the Site Meeting No. 50 and I find that the references to pipes and water tanks are in relation to the test pipe results and the need to conduct tests for pipe and water tank works (see subparas 4.1, 5.2, 6.1, 6.2, 6.3(ii) and 6.10). There is no express statement regarding any defective or incomplete works or leakages which are attributable to the Plaintiff. No other witnesses were called and nor were any other documents, apart from the invoices, produced to support D1’s contentions. The invoices by themselves are not, in my view, sufficient and conclusive proof that the Plaintiff was the cause of defective or incomplete works or leakages. Therefore, D1 has not discharged the burden to prove that there were defective or incomplete works done by the Plaintiff and the entire claim in the total sum of RM130,641.02 for the related items as tabulated in subpara 33.2 of D1’s Written Submission must be dismissed. [92] As for D1’s claims for the items as set out in subparas 87(b) and (c) above (‘Said Items’), Mr. Tristan Ng validly raised the point that, since the filing of five volumes of documents in 2018, during the period from 2018 until July 2020, both parties had included further documents and filed the same into court for the purposes of the trial, for example, D1’s documents in B12. However, notably, D1 did not at any time include the documents to show that payments have been made for the Said Items. Nothing can be easier than to produce such documents even if they became available only after all the BoD had been filed in court, as claimed by D1. [93] Mr. Muhammad Faiz cited the case of Juta Damai Sdn Bhd v. Permodalan Negeri Selangor Bhd [2014] 5 CLJ 318 in support of the argument that the Plaintiff did not challenge the documents in Bundles B8 and B9 are for D1’s losses following the taking over of the works and that only the sufficiency of these documents was raised. However, I find that the reliance on Juta Damai’s case in the present factual matrix is misplaced because in Juta Damai, the witnesses had testified that the receipts are not kept for more than six years and the Court of Appeal observed in para 40 of the judgment that “… there is no provision that requires that such loss is only provable by production of receipts. The best evidence rule requires proof not by the “best evidence” but by the “best evidence available”. …”. In the instant case, D1 did not provide an acceptable explanation as to why the receipts, being the best evidence available, could not be produced. [94] DW1 acknowledged in his evidence that some proof of payments for the Said Items are not before the court. D1’s reliance on “circumstantial evidence”, that the payments must have been made by D1 to the suppliers and sub-contractors as their claims were addressed to D1 and D1 had taken over the works for the Project, is in my view, completely misconceived. There is no room for the application of “circumstantial evidence” as it is trite that special damages must not only be specifically pleaded, it must be strictly proven (see, among others, Ong Ah Long v Dr S Underwood [1983] 2 MLJ 324, Poratha Corp Sdn Bhd v Technofit Sdn Bhd [2020] 1 MLJ 74, That’s Life Sdn Bhd v Dato’ Haji Ismail bin Karim (as the president of Persatuan Bolasepak Negeri Johor) and another appeal [2020] 5 MLJ 235 and Damansara Realty (Pahang) Sdn Bhd v Om Cahaya Mineral Asia Bhd [2021] 5 MLJ 1). D1’s counterclaim for the Said Items is undoubtedly for special damages and the legal and evidential burden to prove D1’s entitlement to the same remains with D1, which however, it has failed to discharge on a balance of probabilities. [95] In addition to the above reasonings and the findings and conclusion in respect of Issue III as elucidated earlier, my determination in respect of each of the Said Items are tabulated below: PAYMENT TO SUB-CONTRACTORS/ SUPPLIERS

MHH Ukur RM16,000.00 The proof of payment for the sum of RM8,000.00 on 19.10.2017 is at p 322, B8. In item 6 of the invoice issued by MHH Ukur to dated 22.9.2017 at p 321, B8, it states “Bayaran progress terdahulu” in the sum of RM8,000.00. DW1 admits that only RM8,000.00 is outstanding pursuant to the invoice at p

D1 is not entitled to claim RM16,000.00. Accepts the Plaintiff’s submission.

Devices World Sdn Bhd RM108,769.00 D1 has proven this claim vide the letter dated 19.9.2017 issued by Device DW1 admits that only two proofs of payment were adduced in Court Accepts the Plaintiff’s submission. World to D1 at p 200, B8 stating that the total amount outstanding is RM 108,769.00 although the proof of payment exhibited at pp 193 & 198, B8 is for RM61,705.00 only. DW1 explained that some of the remaining balance has been paid after the preparation of the BoD. amounting to RM61,705.00. D1 is not entitled to claim RM108,769.00. Proof of payment of the remaining balance was not produced at the trial.

Anchored Geotechnics Sdn Bhd RM397,750.08 Although no proof of payment is exhibited, the claim by Anchored Geotechnics is at pp 342 & 343, B8. The Defendant's counsel did not challenge the existence of this work and the only issue is whether the supporting documents are sufficient. Even though payment has yet to be made, it is D1’s responsibility to pay because the claim is addressed to D1. DW1 admits that no proof of payments was produced and D1 relies merely on a progress claim. The document is Progress Claim No. 4 dated 25.10.2015 issued by Anchored Geotechnics to Puncak Seputih. It is insufficient to support D1’s claim.

AnchorSOL Wall Sdn. Bhd. RM47,869.92 Although no proof of payment is exhibited, the claim by AnchorSOL is at p 341, The Defendant's counsel did not challenge the existence of this work and the only issue is whether the supporting documents are sufficient. DW1 explained that some of the remaining balance has been paid after the preparation of the BoD. DW1 admits that no proof of payments was produced and D1 relies merely on a progress claim. The document shows a claim dated 30.11.2015 issued by AnchorSOL to Puncak Seputih and acknowledged receipt by D1 on 7.12.2015. It is insufficient to support D1’s claim.

SKZ Enterprise RM24,184.02 The payment for the PB is normally paid by the sub-contractor. Had the SCA not been terminated, the insurance would be paid by the Plaintiff. Thus, the Plaintiff has to reimburse this payment as it had defaulted by delaying the works and this led to the termination. admits that pursuant to the terms of the Main Contract, it is the responsibility of D1 to pay for the PB and that the only proof of payments adduced are in the sum of RM15,362.82. Accepts the Plaintiff’s submission. . The supporting documents are at pp 326, 328, 329, 331, 332, 333, 334, 335, 336, 337, 338, 339 & 340, B8. However, the proof of payment is only for RM15,362.82 (pp 327 & 330, B8). testified that payment for the entire amount has been made.

Megcom Dynamic Solution Sdn. Bhd. RM56,373.57 The proof of payment is at pp 238 & 239, B8. The other documents, namely the Sub-Contractor’s Payment Certificate for the sum of RM26.373.57, Summary of Certificate and letter from Megcom to D1 dated 10.4.2017 are at pp 235, 236, 237, 240 & 241, B8. The absence of invoices do not affect the validity of the claim as payment has been made. admits that there are no invoices issued for the sum of RM56,373.57. D1 did not call any representative from Megcom to testify if such payments were made by to Megcom. Accepts the Plaintiff’s submission.

Power Max Sales & Services RM24,286.60 The proof of payment for RM19,719.00 is exhibited at pp 206, 211, 213 & 218, B8. The other documents namely the Sub-Contractor’s Payment Certificates, Invoices, letter from Power Max to D1 and Quotations are at pp 202, 207, 212, 214, 215, 219, 221, 223, 224, 226, 227 & 228, B8. DW1 explained that the claims have been paid in full as these were addressed to D1. Some of the proofs of payment were not exhibited because payments were made after the filing of the BoD. At p 214, B8, D1 submitted a cash sale receipt dated 18.4.2017 which DW1 admits did not state the name of the Project. This cash sales of RM900.00 is for another project. DW1 admits that the proof of payments is for a sum of only RM19,719.00. The total sum in the Payment Advice at pp 206, 211, 213 & 218, B8 is RM20,619.00. has not discharged the burden of proving this claim.

General Workers Salary (Site) RM228,289.61 The Payment Vouchers at pp 7 to 167, B8 are proof that the salaries were paid. D1 is solely relying on the Payment Vouchers which are Accepts the Plaintiff’s submission. It is probable that D1 in carrying out the works left by the Plaintiff has to employ general workers and is therefore entitled for reimbursement as the taking over was due to the Plaintiff's default in completing the Project. There is no evidence that the salaries were paid for another project as explained that the workers were sent D4’s Project after the Balai Bomba Gemencheh project as completed. prepared by D1. No proof of payment was produced. The general workers were not called as witnesses to testify if they had been paid. DW1 admits that the Payment Vouchers do not state the name of the Project, for e.g. at pp 37 and 84, B8, it merely states “Salary for April 2017” and “Salary for July 2017”. The general workers could also be used for other D1’s projects.

Professional Workers Salary & EPF RM234,430.00 The Summary of the Professional Workers Salary & EPF and EPF Statements are at pp 168 to 188, The EPF Statements are proof that salaries have been paid. The documents are prepared by D1. admits the following: • the workers’ salary slips are not in the BoD; Accepts the Plaintiff’s submission. It is probable D1 in carrying out the works left by the Plaintiff has to employ professional workers and is therefore entitled for reimbursement. • there are no statements of accounts to show that the workers’ salaries have been paid; • it is D1’s duty to pay EPF and not the Plaintiff; and • EPF must be paid whether or not D1 has any project.

Preliminaries Item (Vehicle - Navarra) and Diesel Consumption (RM1,500.00 per month) until CMGD RM137,741.52 The claims for installment for Navara is exhibited at p 189, B8 and for diesel consumption is at p 6, DW1 has explained the existence and validity of the vehicles for the Project. The Defendant is only relying on the table titled Summary Vehicle – Navara & Diesel Consumption at p 6, B8 to prove its claim. DW1 admits that the grant for the Navara vehicle was not produced before the Court and that the site meeting minutes only mentioned a Black Ford Ranger 2.2. and a Toyota Hilux. Accepts the Plaintiff’s submission. D1 has failed to proof the existence of the Navara vehicle. The claim for diesel consumption should fail as well.

Preliminaries Item (Cabin For Site Office) RM10,000.00 The Payment Voucher dated 12.3.2015 issued by D1 to Solid Horizon Sdn Bhd is at p 5, B8. DW1 admits that the Payment Voucher does not state the name of the Project. The claim is for another project. Accepts the Plaintiff’s submission. The date of issuance of the Payment Voucher is before the date of the LoA.

Preliminaries Item (Electricity and Water bill) RM64,000.00 Tenaga Nasional’s bill dated 11.9.2017 and D4’s letters dated 28 and 31 May 2018 regarding the usage of water and electricity throughout the period of the Project are at pp 1 to 4, B8. DW1 explained that payment ought to be made for these utilities. admits that there is no proof of payment for the bill and D4’s demand for payment. Accepts the Plaintiff’s submission.

Other Items and Petty Cash For Small Items To Complete Works RM100,000.00 The Statement of Petty Cash, Reimbursement Form and Petty Cash/ Claim Transaction Form are at pp 180 to 226, B9. It is probable that D1 ought to spend on petty cash to continue the works. There is no evidence that payment was made for other project(s). D1 admitted that it had mistakenly made a claim for Ir. Haji Wan Sahedi Wan Yaacob (see item 19 in para 24 of the Defence and Counterclaim) and this claim was accordingly withdrawn. Thus, the total claim is RM89,400.00. admits the following: • the tables which were relied upon to support this claim were created by his employees; • receipts or supporting documents would be given to show that the claims can be made but these were not adduced in court; and • D1 was making claims for other projects and there are double claims. Accepts the Plaintiff’s submission.

Balance Payment under Clause 9 of the SCA As the parties are bound by the new sub-contract, the outstanding sum of RM250,000.00 no - The sum of RM60,000.00 is allowed in accordance RM250,000.00 longer arises. However, as admitted by the Plaintiff in para 98 of the Written Submission, the balance of RM60,000.00 is owing by the Plaintiff as the Final Certificate has been issued (p 9, B12). with Clause 9 of the SCA. V. VO No. 1 to No. 13 Whether there were works under VO Nos. 1 to 13 issued by D4 to the Plaintiff and if so, whether the works under VO Nos. 1 to 13 were carried out and completed by the Plaintiff? Whether D1 refused to sign VO Nos. 1 to 13 and whether the Plaintiff is entitled to the sum of RM513,621.40 for VO Nos. 1 to 13? [96] Both parties submitted at length in respect of the two questions as posed above. The Plaintiff naturally took the position that, based on the oral and documentary evidence adduced at the trial, it has successfully proven that the VOs were instructed to be carried out during the Site Meetings and based on the Engineer’s Instructions (‘EI’) and that works were indeed performed. [97] On the other hand, the Defendant argued that the Plaintiff’s claim for 13 VOs is invalid because D4 only approved 4 VO vide APK Nos. 1 to

In the absence of the EI, D1 attempted to cast doubt as to whether D4 actually gave instructions for APK Nos. 1 to 4 and further, as these APK were approved after the termination of the SCA, D1 contended that it was questionable as to whether the Plaintiff had carried out the works pursuant to the APK. [98] Following from my overall assessment of the case at the end of the trial, it is my finding that the issues in respect of VO Nos. 1 to 13 are no longer live issues. My reasons are as follows:

(a) in para 10 of the Defence and Counterclaim, D1 pleaded that it “… did not have the authority to execute any Variation Orders without the consent of the 4th Defendant and avers that the Plaintiff never completed 97% of the total works. The Claims which are entitled to be paid to the First Defendant and the Plaintiff were in accordance to the payment approved by the 4th Defendant similar to the Interim Certificate of Payment and Certificate of Final Account.”;

(b) in para 12 of the Defence and Counterclaim, D1 stated that the full payment for the Project which has been approved by D4 “… including additional, omission and variation of works (APK) or Variation Order (VO) and the amount paid was only RM8,961,994.28 …” (this figure was inserted pursuant to an oral amendment made by D1’s counsel on 8.7.2020);

(c) from the Ringkasan Pelarasan Harga Kontrak (‘PHK’) at p 48 of Bundle B12, PHK No. 1 to No. 11 were listed which resulted in an omission of woks in the value of RM672,993.30 (see too, the Penyata Pelarasan Harga Kontrak at p15, B12). This amount is reflected in the Penyata Akaun Muktamad at p 14, B12 dated

29.5.2019 and signed by the Timbalan Naib Canselor (Pembangunan) Universiti Malaya (‘UM’);

(a) the sum of RM1,716,834.45 with interest at the rate of 5% per annum from the date of judgment until full settlement;

(b) the sum of RM96,349.87 with interest at the rate of 5% per annum from the date of judgment until full settlement; and

(c) damages of RM20,000.00 for breach of contract. [114] The Defendant’s counterclaim is allowed only in respect of Item No. 25 “Balance Payment For Sub-Contract” at p 12 of the Defence and Counterclaim for the sum of RM60,000.00 with interest at the rate of 5% per annum from the date of the Defence and Counterclaim i.e.

(d) D1 itself had submitted that the Court should only order any payment based on the certificate issued and verified by UM and D1 had referred to the Final Certificate in urging this Court to accept the contract value of RM8,961,994.28 and to reject the value of RM10,148,608.98; and

(e) in para 56 of the Plaintiff’s Reply Submission, Mr. Tristan Ng acknowledged that both parties were in consensus as to the contract value of RM8,961,994.28 whereby this amount is derived by deducting the sum of RM672,993.30 from the original contract sum of RM9,634,987.58. [99] In the light of the above, the two issues on VOs as formulated at the pre-trial case management stage has been overtaken by the common position taken by the parties and as submitted at the end of the trial. In the premises, there is no necessity for the Court to form any definitive views on the two issues as the parties have accepted the figures as stated in the relevant pages of B12 as aforementioned. VI. Appointment of Puncak Seputih Whether the appointment of Puncak Seputih by the Plaintiff needs to be brought to D1’s attention as D1 had appointed the Plaintiff as a sub-contractor for the Project and Puncak Seputih had attended the meeting? [100] In response to the Plaintiff’s pleading that it had appointed Puncak Seputih as its sub-contractor based on the Letter of Appointment dated 7.5.2015 and that this appointment was within D4’s knowledge, D1 pleaded that the Plaintiff had breached the SCA because the said appointment was outside its knowledge and was done without its consent. [101] D1’s submission at the end of the trial was that it did not know at the initial stage regarding the appointment of Puncak Seputih and there is no proof that the Plaintiff had notified D1 of the appointment. D1 relied on PW1’s evidence where he agreed with D1’s counsel that he controlled the Plaintiff and Puncak Seputih to show that both companies are inter-related and managed by the same directors and personnel. D1 did not submit which provision of the SCA mandates that the Plaintiff must bring the appointment of Puncak Seputih to D1’s attention, failing which, the SCA can be said to have been breached by the Plaintiff. [102] However, the Plaintiff’s counsel contended that PW3 had testified that Puncak Seputih’s staff or workers had attended site meetings and this is reflected in the minutes of the site meetings, for example, see the minute for the 28.3.2017 Meeting where PW3’s and PW4’s names can be seen as representing Puncak Seputih. PW3 further testified that at no moment during the period of the Project did any party object or raise any issue pertaining to Puncak Seputih’s involvement in the Project. [103] When cross-examined, DW1 admitted that the attendance of Puncak Seputih’s representatives at the site meetings are recorded in the minutes of meeting and that Puncak Seputih was involved in the Project. DW1 also agreed that there are no documents before the Court to show D1’s objection to the appointment of Puncak Seputih. [104] In the light of the oral and documentary evidence at the trial, it is my finding that, since DW1 himself had attended site meetings where representatives from Puncak Seputih were present, it is not open to D1 to feign ignorance or to claim that it is not aware of Puncak Seputih’s appointment by the Plaintiff. [105] Furthermore, no record of any objection raised by D1 as to Puncak Seputih’s appointment or role in the Project was tendered as evidence at the trial and D1 itself relied on documents which were addressed or issued to Puncak Seputih for some of its counterclaim. [106] This Court is in agreement with the Plaintiff’s submission that this issue is a red herring and was simply thrown in by the Defendant as a distraction from the genuine issues arising from the dispute between the Plaintiff and D1. VII. Performance Bond Whether the Plaintiff had paid the sum of RM96,349.87 being the PB which the Plaintiff had borne on behalf of D1? [107] In para 35 of the Amended SoC, the Plaintiff pleaded that, as a result of the termination of the SCA, it suffered losses amounting to RM96,349.87 which was supposed to be the collateral payment for the PB paid by the Plaintiff on behalf of D1’s account in Allianz Insurance. D1 who took over the sub-contract works will now claim for the PB after the contract has been completed. [108] D1’s pleaded defence is that the claim for the sum of RM96,349.87 is baseless since it is the basic term and needs of a construction contract which has to be prepared by the contractor in a particular project. D1 is not privy to the PB because it was the need of D4 as the employer. [109] In his Witness Statement, PW1 referred to the copy of the Cashier Order/ Bank Cheque and cheque no. 309689 issued by HSBC Bank Malaysia Berhad on 18.5.2015 to Allianz General Insurance Company (Malaysia) Berhad for the sum of RM96,349.88 (p 3, B4; see too, pp 1 and 2 for the quotation and debit note issued by SK Agency to D1 for the insurance premium) which was used to pay as cash collateral for the PB between D1 and D4. PW1 testified that the Plaintiff paid this sum on behalf of D1. [110] During cross-examination, D1’s counsel put his case to PW1 that there was an agreement between the Plaintiff and D1 for this amount to be paid by the Plaintiff. PW1 explained that the Plaintiff was not paying the amount, but rather, was depositing it to the insurance company on D1’s behalf. As such, PW1 maintained that the amount is a deposit, which at the end of the Project, the insurance company shall pay back the amount to D1 as the depositor. [111] The Plaintiff’s counsel drew the attention of the Court to the fact that there was no evidence from DW1 to rebut the payment of the said sum by the Plaintiff on D1’s behalf to assist D1 in raising the PB. In other words, D1 has not established that the intention of the parties at the material time was that D1 does not need to pay back the sum of the PB to the Plaintiff. Having scrutinised the evidence, I agree with the Plaintiff’s contention. [112] I would add that there was no evidence of D4 making a call on the PB or the sum of the PB having been forfeited by D4. In these circumstances, the amount of the PB would presumably be returned to D1. As the Plaintiff’s case that the sum of RM96,349.87 was paid on D1’s behalf remains unshaken, this issue is answered in the affirmative and the Plaintiff’s claim for the re-payment of this sum together with interest must be allowed. Pronouncement [113] In the upshot, the Plaintiff’s claim is allowed as follows:

16.10.2017 until full settlement. Dated: 9 September 2022 (ALIZA SULAIMAN) Judge Construction Court 2 High Court Kuala Lumpur Counsels/ Solicitors: For the Plaintiff: Ng Kien Hann Tristan (Annou Xavier with him) Messrs. Azri, Lee Swee Seng & Co. Advocates & Solicitors Unit 210, Level 2, Block A Pusat Dagangan Phileo Damansara 2 Jalan 16/11, Off Jalan Damansara 46350 Petaling Jaya Selangor For the Defendants: Muhammad Faiz Bin Dato’ Fadzil (Mohd Faizal Bin Abdullah with him) Messrs. Faiz Fadzil & Co. Advocates & Solicitors No. 287-1A, Jalan Haruan 5/7 Oakland Commercial Centre II 70300 Seremban Negeri Sembilan Cases, legislation and other sources referred to in the submissions by learned counsels and in the Grounds of Judgment: Cases: Aseambankers Malaysia Bhd & Ors v. Shencourt Sdn Bhd & Anor [2014] 2 CLJ 773 Awan Lela Sdn Bhd lwn. Aida Tajrina Mohamed Tahir [2013] 5 CLJ 130 Bank Pertanian Malaysia Berhad v. Nora’rifah Darus [2014] 7 CLJ 631 Bon Chong Hing & Anor v. Gama Trading Company (Hong Kong) Ltd [2011] 6 CLJ 493 Chan Yoke Lain (administrator of the estate of Chong Yoke Fah, deceased) v Pacific & Orient Insurance Co Sdn Bhd [1999] 1 MLJ 303 Damansara Realty Bhd v. Bungsar Hill Holdings Sdn Bhd & Anor [2011] 4 CLJ 16 Damansara Realty (Pahang) Sdn Bhd v Om Cahaya Mineral Asia Bhd [2021] 5 MLJ 1 Danaharta Managers Sdn Bhd v Melewar Leisure Sdn Bhd & Ors [2008] 4 MLJ 448 Dannabar Ragavan v. Ambank Berhad [2012] 1 LNS 1199 Dato’ Raja Azwane Raja Ariff v. Dato’ Man Mat & Ors [2011] 8 CLJ 633 Dr Clarence Edwin & Anor v. Harta Kumpulan Sdn Bhd & Anor [2012] 6 CLJ 704 Dr Mohd Yusof Ismail v. Hj Ismail Mohd Nor [2011] 1 CLJ 445 Eng Ee Ee lwn. Hew Ah Choo & Kes Yang Lain [2014] 8 CLJ 326 Ezzen Heights Sdn Bhd v. Ikhlas Abadi Sdn Bhd; Soo Yuh Mian (Intervener) [2011] 3 CLJ 16 Foo Fio Na v. Hospital Assunta & Anor [1999] 8 CLJ 184 Guan Teik Sdn Bhd v. Hj Mohd Noor Hj Yakob & Ors [2000] 4 CLJ 324 Guthrie Sdn Bhd v Trans-Malaysian Leasing Corp Bhd [1991] 1 MLJ 33 Iktika Jaya v. Ketua Setiausaha, Kementerian Pertahanan & Anor [2015] 1 CLJ 243 Johara Bi Binte Abdul Kadir Marican v Lawrence Lam Kwok Fou & Anor [1981] 1 MLJ 139 Joo Leong Timber Merchant v. Dr Jaswant Singh Jagat Singh [2003] 5 CLJ 286 Juta Damai Sdn Bhd v. Permodalan Negeri Selangor Bhd [2014] 5 CLJ 318 Kelibat Megah (M) Sdn Bhd v. Smart Reliance Sdn Bhd [2018] 1 LNS 315 Keruntum Sdn Bhd v. The Director of Forests & Ors [2017] 4 CLJ 676 Kesuma Murni Sdn Bhd v. Perbadanan Kemajuan Negeri Selangor [2016] 1 LNS 1276 Kumpulan Teknik Sdn Bhd v. Murad Hashim Communication Sdn Bhd & Anor [2012] 6 CLJ 80 Lee Chee Keong v. Fadason Holdings Sdn Bhd [2014] 7 CLJ 102 Lee Ing Chin & Ors v. Gan Yook Chin & Anor [2003] 2 CLJ 19 Ling Heng Toh Co v Borneo Development Corpn Sdn Bhd [1973] 1 MLJ 23 Menah Sulong v. Lim Soo & Anor [1983] CLJ (Rep) 263 Nadarajan Subramaniam v. American International Assurance Co Ltd [2011] 9 CLJ 198 Ng Poh Kwang v. Tan Chuan Yong & Ors [2013] 7 CLJ 735 Ngo King Tong v. Great Eastern Life Assurance (Malaysia) Bhd & Anor [2014] 2 CLJ 997 Ong Ah Long v Dr S Underwood [1983] 2 MLJ 324 Pacific Inter-Link Sdn Bhd v. Wilmar Trading Pte Ltd & Ors [2013] 7 CLJ 312 Paramill Sdn Bhd & Anor v. Datuk Joseph Pairin Kitingan [2007] 6 CLJ 192 Pekan Nenas Industries Sdn Bhd v. Chang Ching Chuen & Ors [1998] 1 CLJ 793 Perbadanan Nasional Bhd v. Shahrin Shaharudin [2011] 9 CLJ 208 Poratha Corp Sdn Bhd v Technofit Sdn Bhd [2020] 1 MLJ 74 Public Bank Berhad lwn Lim Peng Guan & Anor [2017] MLJU 1910 Sabah Shell Petroleum Co Ltd & Anor v The Owners of and/or Any Other Persons Interested in the Ship or Vessel the ' Borcos Takdir' [2012] 5 MLJ 515 Seri Mukali Sdn Bhd v. Kertih Port Sdn Bhd [2012] 2 CLJ 488 Skrine & Co v MBF Capital Bhd & Anor [1998] 3 MLJ 69 SPM Membrane Switch Sdn Bhd v. Kerajaan Negeri Selangor [2016] 1 CLJ 177 Sunshine Fleet Sdn Bhd v Jabatan Kerja Raya Malaysia & Anor [2017] MLJ 716 Syarikat Kemajuan Timbermine Sdn Bhd v. Kerajaan Negeri Kelantan Darul Naim [2015] 2 CLJ 1037 Syarikat Yoong Onn Sdn Bhd & Anor v. Agenda Istimewa Sdn Bhd [2010] 1 LNS 735 Tan Sri Khoo Teck Puat & Anor. v. Plenitude Holdings Sdn. Bhd. [1995] 1 CLJ 15 Teh Swee Lip v. Jademall Holdings Sdn Bhd [2014] 8 CLJ 451 Terang Tanah Sdn Bhd & Anor v. Chong Choy Lin [2014] 1 LNS 683 That’s Life Sdn Bhd v Dato’ Haji Ismail bin Karim (as the president of Persatuan Bolasepak Negeri Johor) and another appeal [2020] 5 MLJ 235 Tindok Besar Estate Sdn Bhd v Tinjar Co [1979] 2 MLJ 229 Wong Hon Leong David v Noorazman Bin Adnan [1995] 3 MLJ 283 Legislation: Evidence Act 1950, ss 101 & 114(g) Rules of Court 2012, O. 18, r. 12(1A)