Jason Ong Kian Heng v the Haven Sdn Bhd (12B-83-04/2017)

There are two appeals before me. For case appeal 12B-82-04/2017, the Appellant (Defendant) appealed against the Session Judge’s decision which allowed the Respondent’s (Plaintiff) claim for the sum of RM375,000.00 being the balance sum for work done. The Session Judge had allowed partially the Appellant’s counterclaim for RM112,500.00 for rectification works which is the appeal by the Respondent under case appeal BA-12B-83-04/2017.

In this judgment, the parties will be referred to as they were in the Sessions Court.

The relevant facts leading to this appeal can be briefly stated as follows:

The Plaintiff is in the business registered under the Business Registration Act 1956, having its address at No. 30, Leboh Siput, Palm Grove, 41200 Klang, Selangor.

The Defendant is a company established under the Companies Act 1965 and having its registered address at No. 38, Jalan Che Wan, 30250 Ipoh, Perak. 3

The Plaintiff claimed that the Defendant is the owner of Best Western at The Haven Lakeside Residences (the said Premise) (page 9 of Appeal Record (Jilid 1)).

The Plaintiff claimed that on 8.7.2014, the Defendant entered into an agreement with the Plaintiff for the consideration for the various components of the Facilities, that is to design and to construct a Challenge Course, to design and develop team building activities and to design and construct a Via Ferrata (mountain/rock climbing) at the said Premise (and also to prepare the manual for the activities and equipments, altogether known as the Project).

The cost of the Project agreed is RM1,200,000.00 and both parties agreed that the value of works will be paid progressively and to be completed within 20 weeks (the Agreement) as follows: “(i) Julai 2014 – RM275,000.00

(ii) Ogos 2014 – RM275,000.00

(iii) September 2014 – RM275,000.00

(iv) Oktober 2014 – RM275,000.00

Pada atau sebelum Mac 2015 0 RM50,000.00; dan

(vi) Pada atau sekitar 2016 – RM50,000.00.”

The Plaintiff claimed that the Defendant has made 3 progressive payments for the works totaling RM825,000.00 and the Plaintiff completed the works within 10 weeks, that is 10 weeks earlier 4 than the scheduled completion date as in the Agreement. The Plaintiff issued an invoice dated 29.9.2014 No. BWTHLR1.1_14_2_D totaling RM275,000.00, for the payment for October 2014, however the Defendant failed or refused to make the payment. The Plaintiff claimed that the Defendant breached the Agreement.

The Plaintiff stated that the Defendant had through its solicitors dated 1.12.2014 raised allegations which are of no merits and an afterthought to deny the Plaintiff its payment.

The Plaintiff through its solicitor’s letter of 3.12.2014 wrote to the Defendant’s solicitor that the Agreement is terminated and demanded the balance sum due and owing to the Plaintiff, RM375,000.00 (page 11 of Appeal Record (Jilid 1)).

The Defendant denied that the said Premise belongs to the Defendant (page 12 of Appeal Record (Jilid 1)). The Defendant stated that the Defendant is a property development company, which had developed a luxury condominium project called “The Haven Lakeside Residence” in Ipoh, Perak and currently the Lakeside Residence is managed as a luxury hotel. The Defendant claimed that it is desirous to offer the occupants of Lakeside Residence and the hotel managed, certain outdoor and team-building facilities. 5

The Defendant stated that the Facilities comprised three parts namely, the Challenge Course Construction & Fittings where the High Rope Challenge and Flying Fox are the main part and the price for Challenge Course Construction is RM600,000.00, the Team Building is priced at RM38,000.00 and Via Ferrata at RM418,000.00 (page 12 of Appeal Record (Jilid 1)). It was also stated that under the Via Ferrata, the Plaintiff was to supply climbing equipment and materials priced at RM144,000.00 (page 13 of Appeal Record).

The Defendant claimed that according to the expert for the Project, one Encik Adam Abdul Rahman, had inspected the Project in October 2014 after Plaintiff had stopped working and finds that the condition of the Project as follows (page 13 of Appeal Record (Jilid 1)): “(A) Untuk “Challenge Course Construction & Fittings” hanya 70% disiapkan.

(B) Untuk “Team Building” 100% disiapkan

(C) Via Ferrata (mountain/rock climbing) hanya 70% disiapkan.”

The Defendant claimed that he felt uncomfortable with the Plaintiff’s claim of completion because the Plaintiff did not obtain a Certificate of Completion for the Facilities to certify the whole Project including the towers for the High Rope Activities and the Flying Fox had been completed and were safe to be used in 6 accordance with the design and be approved by the local authority Ipoh City Council. The Defendant’s contentions are listed in its Defence at pages 13 – 19 and its counterclaim for the rectification works and consultation fee.

The Defendant’s Defence among others are, the Plaintiff has breached the Agreement where the Plaintiff is to design for the three components of the Project but failed to provide the Design Plan and/or Structure Plan and/or Engineering Design for the Project particularly the High Rope Challenge and Flying Fox tower and therefore failed to design accordingly.

The Defendant engaged a firm Dnar Adventure Consultancy Sdn Bhd (Dnar Adventure) claimed as an expertise to examine and ascertain whether the Facilities were safe to be used by the public and was identified that the works done for Challenge Course was 70% completed and only 70% completed for Via Ferrata but with defects. The Defendant claimed that based on the evaluation of the expert in the area of the Project, the Challenge Course of low elements and high elements are not safe to be used. The Defendant also claimed that what was constructed under the soil will not be known to the expert as no design plans were submitted. It is claimed that the footing should be constructed three feet deep (page 17 of Appeal Record (Jilid 1)). 7

The Defendant claimed that due to Dnar Adventure’s report stating that the Facilities are unsafe to be used and is defective, the Defendant requested the Plaintiff to rectify all defects. The Defendant claimed that the Plaintiff instead took the position that he had completed the works and insisted for the remaining amount of RM375,000.00 from the Defendant.

The Defendant claimed that Dnar Adventure was appointed to rectify the defects and had been paid RM110,000.00 for rectification works and RM2,500.00 as consultancy fee. The Defendant claimed that not all of the defects could be rectified as structural defects in the two towers involved high costs and as a result the two towers cannot be used. The Defendant also claimed that based on Dnar Adventure’s report, the Plaintiff had chosen the wrong rock face to install the Rock Climbing Element.

For the defects works, the Defendant counter claimed the Plaintiff and the same is based on the Plaintiff’s breach of the Agreement for failing in his obligations to deliver the Facilities as per the Agreement where the Defendant claimed that the parties is deemed terminated and the Defendant’s claim for damages through the counterclaim.

In reply to the Defendant’s Defence, the Plaintiff claimed that the Project was completed on or around 27.9.2014 and Plaintiff has no obligation under the Agreement to submit for the approval of the local authority. The Plaintiff claimed that a copy of the 8 engineering design by a qualified engineer had been submitted to the Defendant on 24.10.2014 (page 22 of Record of Appeal).

The Plaintiff claimed that after the completion of the Project, the Defendant through their correspondence from 21.10.2014 until 19.11.2014, never raised the allegation of defects asclaimed by the Defendant in paragraphs 7 – 24 of the Defendant’s Defence (page 23 of Record of Appeal). The Plaintiff also claims that the Defendant’s counterclaim was baseless and is an abuse of court process. Plaintiff’s submission [4] The learned counsel for the Plaintiff submitted that the Plaintiff had completed the Project within 10 weeks that is 10 weeks earlier than the agreed timeframe. It is brought to this Court’s attention that the Plaintiff is the sole proprietor of Eneres Consultants, a business specialising in designing and development team building activities and the Plaintiff also specialises in construction of challenge courses which is part of building activities. [5] The Plaintiff’s counsel submitted that the Plaintiff had conducted an inspection on the Project on or around October 2014 after the completion by conducting a trial run of the Challenge course, team building activities and Via Ferrata with the staff of Eneres Consultants and Mr. Robert James A/L Savarimuthu (SP2). The Plaintiff stated that SP2 was engaged by the Plaintiff at the start of the Project to ensure the safety aspects of the Project throughout the construction phase until completion. 9 [6] It is submitted that the Plaintiff did not receive any complaints from the Defendant at all material time. It is submitted that the Plaintiff and SP2 interviewed the staff participation of the trial run after the trial was completed and the feedback provided to the Plaintiff was that the participants never felt unsafe using the safety equipment and the system built by the Plaintiff. The Plaintiff’s counsel averred that the feedback was disseminated to Mr. Peter Chan, SD3, the Chief Executive Director of the Defendant, via email of 24.10. 2014 (page 372 of Record of Appeal (Jilid 2)). [7] It was pointed out to this Court based on the emails between the Plaintiff and the Defendant that have been extracted in simplified manner (Plaintiff’s counsel’s written submission, pages 8 – 12), in gist, Steve Oh was asked by the Defendant to look into “the set-up and other aspects installed” by the Plaintiff and requested on behalf of the Defendant for a reduction amount of RM25,000.00. The Plaintiff’s counsel submitted that never once in the correspondence, raised allegation of defects nor any reports purportedly by Dnar Adventure Consultancy Sdn Bhd dated 26.10.2014 which was never received by the Plaintiff. [8] The Plaintiff’s counsel submitted that the Challenge Course does not fall within the meaning of ‘building’ as defined under section 3 of Street, Drainage and Building Act 1974 (the 1974 Act) and such approval is not applicable to the Plaintiff. [9] In relation to the Defendant’s counterclaim, the Plaintiff averred that the Session Judge had erred in failing to consider the fact that the 10 Defendant’s counterclaim is based on the Defendant’s defence which was dismissed following her decision to allow the Plaintiff’s claim in full. Defendant’s submission [10] The learned counsel for the Defendant advanced several grounds of appeal. The Defendant’s main ground is that the Plaintiff had breached the Agreement on the basis of three aspects:

The Plaintiff failed to obtain the approval of the local authority for the construction of the Facilities;

(ii) The Plaintiff failed to complete the Facilities by procuring a Certificate of Completion and

(iii) The Plaintiff failed to deliver the Facilities to the Defendant without defects.

(iv) [11] The Defendant’s counsel averred that the Facilities must be with the approval of the local authority based on section 3 of the 1974 Act, as it involves the construction of platforms, posts, pillar, frames, hoarding, landing structure and thereforethe two 40 feet towers should be regarded as design and construction within the meaning of ‘building’ under section 3 of the Act

The Defendant’s counsel also referred to section 70(1) and (2)(a) of the Act 1974. [12] The Defendant’s counsel submitted that normally the responsibility to obtain the necessary approvals lie with the employer’s architect and/or engineer but there are exceptions where the employer need not obtain the 11 professional skills of an engineer and architect (pages 14-15 of counsel’s written submission) and based on the terms of the Agreement where the Plaintiff is to design and construct the Facilities, it would be the Plaintiff responsible to procure the necessary approvals. [13] It is the Defendant’s contention that the Plaintiff is a turnkey contractor and would be responsible for obtaining the approval of the local authority and would be under the duty to engage independent contractors such as architect or engineer to deal with the legal requirements for design and construction under the Act 1974 (page 18 of counsel’s written submission). [14] The Defendant’s counsel argued that the Plaintiff is to procure the Certificate of Completion based on section 25(1) of Uniform Building By-Laws 1988 (Perak) (UBBL 1988). The Defendant’s counsel submitted that the Facilities are deemed as a building under section 3 of the Act 1974 and such Certificate of Completion pursuant to section 25(1) of UBBL 1988 has to be issued as per Form F of the UBBL 1988 to certify that the Facilities have been completed in accordance with “plans and specifications” approved by the local authority. [15] It is the Defendant’s argument that the Plaintiff failed to construct the Facilities without any defects or failed to rectify the defects. The Defendant’s counsel submitted that the Defendant relied on the Dnar’s Adventure’s report which particularised the many defects in the works done to the Facilities by the Plaintiff resulting the unsafe use for the public. 12 [16] In relation to the counterclaim, the Defendant’s counsel submitted that the Plaintiff had caused various breaches of essential terms in the Agreement where among others, the Plaintiff had failed to obtain the approval of the local authority for the construction of the Facilities, that the Plaintiff failed to complete the Facilities pursuant to statutory enactment in procuring a Certificate of Completion and the Plaintiff had failed to complete the Facilities without defects and the Defendant had to rectify the defects by appointing Dnar Adventure. Decision of the Session Judge [17] The learned Session Judge’s written judgment can be found at pages 4 – 6 of Supplementary Appeal Record. Briefly, the Session Judge finds that the Plaintiff completed the Project within 10 weeks where an inspection was carried out in October 2014 and had conducted trial run on the Challenges course, team building activities and the Via Ferata together with the staff of Eneres and Encik Robert James (SP2). [18] The Session Judge finds that after the Project was completed, the correspondence based on emails of 21.10.2014, 28.10.2014 and 10.11.2014 where in the email of 10.11.2014, Steven Oh had proposed a payment of RM25,000 out of the RM375,000 with no complaints of defects except for expressing dissatisfaction on the Plaintiff’s final product. The Session Judge decided, “Defendan bergantung pada peruntukan seksyen 3 dan 70 Akta Jalan, Parit dan Bangunan 1974. 13 Berdasarkan pembacaan peruntukan tersebut, Mahkamah dapati ianya tidak terpakai dalam kesini terhadap kerja-kerja Plaintif. Begitu juga keperluan untuk mendapatkan sijil pengesahan dan kelayakan yang diperlukan di bawah seksyen 133 Akta juga tidak terpakai dalam ke sini. Secara keseluruhan, Mahkamah mendapati Plaintif berjaya membuktikan tuntutannya terhadap Defendan atas imbangan kebarangkalian…” [19] The Sessions Court allowed the Plaintiff’s claim in full, RM375,000.00 including interests and costs. In relation to the Defendant’s counterclaim, the Session Judge finds that the Defendant had proven the expenses incurred for rectification costs and consultation fees and allowed the claim for RM112,500.00. APPEAL [20] Both counsels submitted that there are two issues dealt before the Session Judge (page 27 of Record of Appeal):

If the Defendant breached the Agreement, whether the Defendant would be liable to pay RM375,000.00 if the Defendant breached the Agreement; and 14

(ii) If the Plaintiff is found to have breached the Agreement, whether the Plaintiff would be liable to pay any damages to the Defendant. [21] The suit is brought by the Plaintiff for the balance sum of the Agreement for the works done. This Court viewed that it is trite law that the burden is on the party who asserts the affirmative following section 101 of Evidence Act 1950 and the principle deliberated extensively in the recent decision of the Federal Court case of Letchumanan Chettiar Alagappan @ L Allagappan (as executor to SL Alameloo Achi alias Sona Lena Alamelo Acho, deceased) & Anor v Secure Plantataion Sdn Bhd [2017] 4 MLJ 697, that the burden to prove rests with the plaintiff. [22] The Plaintiff averred that the Plaintiff had completed the works for the Project and the Plaintiff claims for the balance sum of the Agreement for the works done. It is not disputed that three progress payments had been made which are according to Plaintiff’s progressive billing for July, August and September 2014 amounting to RM825,000.00 and the last final payment of RM275,000.00 with invoice dated 29.9.2014 had not been paid by the Defendant to date. [23] The Plaintiff claimed for the outstanding sum due and payable to the Plaintiff and the Plaintiff claims that the Defendant had never notify of any defects to the works done. [24] I wish to turn first to the progress payments made by the Defendant to the Plaintiff. It is undisputed that the Agreement carries with it the right to 15 interim payments, that is as and when the work progresses. Each interim payment is an estimate of the work done and is not supposed to be a precise measure, because precision is at the end of the work: ‘Richard Wilmot-Smith QC, Construction Contracts Law and Practice,Second Edition, 2010, Oxford University, page 202; Secretary of State for Transport v Birse-Farr Joint Venture [1993] 62 BLR 36. [25] Each interim payment on the work done must have been carried out by the Defendant that is through its contract administrator or contract professional, an architect or an engineer, who will certify every progressive works by the Plaintiff. Where the design and construct contract is involved, the contract professional of the Defendant or the Employer must make an assessment of the value of the works and certify the payment, according to the progress of the Works carried out. The objective criteria as to how valuations are carried out is the touchstone of a sensible commercial arrangement. The objective is to ensure that the construction is carried out accordingly, to the quality, time and cost until completion. [26] Based on the facts and evidence before this Court, it is highlighted that three progressive payments had been made by the Defendant to the Plaintiff. For the final billing by the Plaintiff, the inspection was carried out for the works done which is after the completion of the works and there was no objection in writing nor was there any notice given by the Defendant as to the defects nor rectification to be made good. [27] The principle is well settled that a contractor is only responsible for the defects arising from his defaults and/or breaches of his obligations under the 16 construction contract: Setegap Bhd v Ranhill Engineers & Constructors Sdn Bhd [2011] 6 MLJ 684. There was no notice forwarded by the contract professional of the Defendant, nor from the Defendant or the Employer of the Project/or the Premise to the Plaintiff of any defects or remedial works needed: Nirwana Construction Sdn Bhd v Pengarah Jabatan Kerja Raya [2008] 4 MLJ 157, Court of Appeal. [28] This Court viewed that the purpose of the inspection after completion is to identify any outstanding defects not rectified until such date and any new defects revealed during the inspection for which the Plaintiff would be responsible and a schedule of list of defects is then drawn up for the contractor to rectify: ‘Ir. Harbans Singh & Sundra Rajoo, ‘Construction Law in Malaysia’, 2012, page 477, as referred to by the Plaintiff’s counsel in his written submission. [29] In this case however, no notice of defects were ever communicated to the Plaintiff by the Defendant and this Court viewed that following the principle enunciated and relying on the Court of Appeal case of Nirwana Construction Sdn Bhd (supra), the Plaintiff had discharged its burden to prove and the onus now shifts to the Defendant to rebut by evidence. [30] It is the Defendant’s contention that one of the causes to the Plaintiff’s breach of contract is thatthe Plaintiff’s design of the Challenge course was without approval of the local authority.In Malaysia, planning regulations prohibit the carrying out of any development or construction until certain prescribed clearances are obtained from the relevant statutory authorities, 17 ‘Chow Kok Fong, Law And Practice Of Construction Contracts’,Third Edition, 2004, page 3. [31] Based on the Uniform Building By-Laws 1984 (UBBL), it sets out the procedures for the submission and approval of building plans. Section 3 of UBBL states that, “3. Submission of plans for approval

Every plan, drawing or calculation in respect of any building shall be submitted by a qualified person.” The definition of “Qualified Person” under section 2 UBBL defined as any architect, registered building draughtsman or engineer. [32] FollowingSection 70 (21) of Street, Drainage and Building Act 1974,it is expressly statedthat it shall be the duty and responsibility of the principal submitting person to ensure that the building has been duly constructed and completed in conformity with the approved plans. [33] It is trite that unless expressly provided in a contract, the ‘Employer’ of the building or the construction project is under two principal implied obligations, that is, he must fully cooperate with the contractor to help him to discharge his obligations under the contract and secondly, not to hinder him in any way from completing his construction works and that includes obtaining planning permission: ‘Ir. Harbans Singh & Sundra Rajoo, Construction Law in Malaysia’ 2012, page 237; Ellis – Don Ltd v Parking 18 Authority of Toronto [1985] 28 BLR 98and the English Court of Appeal case of Clin v Walter Lily & Co Ltd [2018] EWCA Civ 490. [34] In this instant appeal, the Defendant denied being the owner of the Premise where the Project is situated. This Court is of the considered view that the Plaintiff who is appointed by the Defendant to design and construct the Facilities cannot also be the checker of the construction works, nor as certifier of its own design and construction works for the Project. [35] This Court viewed that it would be the Defendant to obtain the approval from the local authority as the planning approval also requires the advice of the local authority where it is not only on the design but the condition of the soil of the Premise prior to the commencement of the construction works. [36] In the construction industry, the certifier or contract administrator, who is the professional architect and/or engineer would be appointed by the Employer or the client/owner of the Project, and at times it could be appointed by the main contractor of the Project. The contract professional architect and/or engineer must be independent and fair of the Employer or main contractor ‘Ir. Harbans Singh & Sundra Rajoo, ‘Construction Law in Malaysia’, 2012, page 225. In this case, contract administrator to the Defendant as the developer of the Project, to certify the construction works according to the approved design before the progress payment certificate can be issued for payment. [37] The issue as to whether the Challenge course could be categorized as a building under section 3(2) of the Act 1974 as averred by the Defendant 19 had been decided by the Session Judge as not applicable. This Court viewed that the categorization as claimed by the Defendant was not proven by the Defendant, in any event, the Plaintiff had submitted the engineering design for the Challenge course which was referred by the Defendant’s appointed Dnar Adventure which was after the completion of the Project and three progress payments made to the Plaintiff by the Defendant. [38] This Court also finds that upon careful perusal of the Record of Appeal, there is no terms in the Agreement requiring the Plaintiff to obtain the approval from the local authority. In fact, it should be a requirement embedded in the Agreement or as a condition precedent prior to the award of the contract by the Defendant to the Plaintiff. Following section 3 and section 70 of the Act 1974, the statutory requirement must be expressly provided in the Agreement, more so where the Plaintiff is not the owner of the Premise. [39] This Court also observed that the Plaintiff’s engineering drawings had been submitted by the Plaintiff to the Defendant (SD3) and one Amy Lau, where it was referred by Dnar Adventure as stated in its letter of 26.10.2014 (pages 578 – 579 of Record of Appeal (Jilid 2)) signed by Ir. Bakri Dahalan. However, the Defendant failed to call Ir. Bakri Dahalan to support its claim of Plaintiff’s construction works without an engineering design. [40] The report purportedly made was not proven in the sense that it was not sent to the Plaintiff upon the first inspection. Despite the alleged unsafe condition of the Project, the Defendant promoted and advertised the Project and continued to do so as testified by the Defendant’s witness and in fact 20 admitted utilizing the Facilities (pages 175 and pages 246 – 247 of Record of Appeal (Jilid 1) and pages 543-547 of Record of Appeal (Jilid 2)). [41] There was no evidence of express nor written, notice as to the defects to the Facilities by the Defendant to the Plaintiff. This is further supported by the Defendant’s own witness whom could not explain as to the outcome of the assessment upon his inspection of the Facilities. [42] This Court is also of the considered view that based on the trail of emails that is after the completion of the Project, the Defendant’s representative, Steve Oh, expressly stated that the Defendant owed the Plaintiff RM375,000.00 (Steve Oh’s email to SP1 dated 10.11.2014, pages 364 – 365 of Appeal Record (Jilid 2). This Court finds that there is an admission of debt by the Defendant, principally a direct evidence: section 17 of Evidence Act 1950.The admission by the Defendant’s representative is the strongest evidence: Esso Malaysia Bhd v Hills Agency (M) Sdn Bhd& Ors [1994] 1 MLJ 740 at page 752. [43] Based on the documentary evidence of the email of 10.11.2014, Steve Oh stated he will instruct the Defendant to send the final payment of RM25,000 if the Plaintiff could agree to the Defendant’s request to write-off the RM300,000.00. Interestingly, Steve Oh was not called to testify by the Defendant to throw some light on the agreed balance sum for the works done, leaving the documentary evidence of the emails which remained unrebutted. 21 [44] The principle of adverse inference under section 114(g) of Evidence Act 1950 would be appropriate to be invoked for failing to call Steve Oh who is a material witness of the Defendant: Munusamy v Public Prosecutor [1987] 1 MLJ 492, Supreme Court. [45] Based on the facts and evidence before this Court, on the balance of probabilities, the Plaintiff has proven its claim for the balance sum which is the progress payment under the Agreement. I am also relying on section 75 of the Contracts Act 1950and the Federal Court case of Johor Coastal Development Sdn Bhd v Constrajaya Sdn Bhd [2009] 4 MLJ 445where claim for damages must still be proven although it is claimable under a contract. In this case, the outstanding sum based on the progress works due and payable to the Plaintiff with no rebuttal evidence of defects by the Defendant. In view thereof, the Defendant had breached the Agreement and the outstanding sum is due and payable to the Plaintiff. The appeal is dismissed with costs. Counterclaim [46] In the appeal case for the Defendant’s counterclaim by the Plaintiff, it would be the Defendant placed in the shoes of a plaintiff where the burden to prove rests on the Defendant. Based on the facts and evidence before this Court, tying to the second issue whether the Plaintiff had breached the 22 Agreement, this Court finds that there was no evidence adduced to prove the defects was caused by the Plaintiff. [47] It is also the finding of this Court that there was no evidence of notification to rectify defects after the completion by the Defendant to the Plaintiff. The fact remains that the progress payments were made, no defects were communicated by the Defendant to the Plaintiff and the Defendant had admitted to the outstanding sum for the balance works done by the Plaintiff. [48] This Court viewed that such decision of the Session Judge runs contrary to her finding of fact that the alleged defects was an afterthought and no notification of defects was given to the Plaintiff by the Defendant. This Court viewed that the Session Judge was plainly wrong in law for allowing the Defendant’s counterclaim to which the basis is contrary to her fact finding and law that warrants for this Court’s intervention following the principle of ‘plainly wrong test’ enunciated by the Federal Court case of Gan Yook Chin

(P) & Anor v Lee Ing Chin @ Lee Teck Seng & Ors [2005] 2 MLJ 1. [49] This Court is of the view that the Defendant failed to discharge its burden that the rectification works are due to the Plaintiff’s liability or breach of Agreement. In addition, the purported rectification works based on the report made by the Defendant’s appointed expert, Dnar Adventure was also not communicated by the Defendant to the Plaintiff for verification. [50] In light of the above reasons, the appeal by the Defendant is dismissed and the appeal on the Defendant’s counterclaim by the Plaintiff is allowed 23 with costs. The Sessions Judge’s decision for the Defendant’s counterclaim is set aside. Dated: 31 July 2018 (ZALITA BINTI ZAIDAN) Judicial Commissioner Shah Alam High Court COUNSEL FOR THE APELLANT/DEFENDANT – BA-12B-82-04/2017

T. NADARAJAN Tetuan Chambers of Firdaus Unit J-5-1, 5th Floor, 24 Parklane Commercial Hub Jalan SS 7/26, Kelana Jaya Selangor Darul Ehsan [Ref: 0579/HVNVENRS (APPL)/L2] Tel: 03-7887 5360 Fax: 03-7887 5361 COUNSEL FOR THE RESPONDENT/PLAINTIFF – BA-12B-82-04/2017 T. J. LEE Tetuan Zairina Loh & Wong B-3A-10, Megan Avenue II No. 12, Jalan Yap Kwan Seng 50450 Kuala Lumpur [Ref: 24001/14/ENERES/TJ/tj] Tel: 03-2710 8283 Fax: 03-2710 8281 COUNSEL FOR THE APELLANT/PLAINTIFF – BA-12B-83-04/2017 T.J. LEE Tetuan Zairina Loh & Wong B-3A-10, Megan Avenue II No. 12, Jalan Yap Kwan Seng 25 50450 Kuala Lumpur [Ref: 24001/14/ENERES/TJ/tj] Tel: 03-2710 8283 Fax: 03-2710 8281 COUNSEL FOR THE RESPONDENT/DEFENDANT – BA-12B-83-04/2017

T. NADARAJAN Tetuan Chambers of Firdaus Unit J-5-1, 5th Floor, Parklane Commercial Hub Jalan SS 7/26, Kelana Jaya Selangor Darul Ehsan [Ref: 0579/HVNVENRS (APPL)/L2]