Joint Management Body South City Plaza v Snfor Sdn Bhd (BA-11B-45-12/2024)

This is the Appellant s appeal against the entire decision of the Magistrate s court dated 16.12.2024 after a full trial. The learned for RM 77,000 and counterclaim.

I allowed the appeal. Here are the grounds of my decision. The parties shall be referred to as they were in the court below. Where the Appellant D P ase

P claim is for the sum of RM 77,000 due and owing by D to P.

4.

In April 2022, D was desirous of obtaining services for water proofing for the rooftop of Lot 3.11 at South City Plaza Lot 3.11 . D sought a quotation from P. On 11.4.2022, P provided D with a quotation for the water proofing works for the rooftop of Lot 3.11 at the price of RM 68,300.

In May 2022, D was desirous of obtaining services for water proofing works for the roof of Lot 3.06 at South City Plaza Lot 3.06 On 17.5.2022, P provided D with a quotation for the water proofing works for the roof of Lot 3.06 at the price of RM 43,890.

At a meeting held on 8.6.2022, the price discussed for the works at Lot 3.11 was RM 60,000 and for Lot 3.06 was RM 40,000. D forwarded a purchase order dated 13.6.2022 for Lot 3.06 and a purchase order dated 15.6.2022 for Lot 3.11.

On 14.6.2022, P commenced the water proofing works at Lot 3.11. On 23.6.2022, P commenced the water proofing works at Lot 3.06.

On 23.6.2022, P submitted two invoices. One in the sum of RM 60,000 for Lot 3.11, and another in the sum of RM 40,000 for Lot 3.06.

On 7.7.2022, D paid the sum of RM 15,000 for Lot 3.11. On 1.9.2022, D paid the sum of RM 8,000 for Lot 3.06.

The water proofing works for Lot 3.11 were completed on 29.7.2022. The water proofing works for Lot 3.06 were completed on 4.8.2022. On 7.9.2022, D submitted a report on the water proofing works for Lot 3.11 and Lot 3.06. case

5.

P made representations during the discussion that it was an expert and had the skill to resolve the leakage problem, prior to D deciding to appoint P to rectify the leakage problem at Lot 3.11 and Lot 3.06.

P and D made a site visit to inspect the leakage problem at Lot 3.11 and Lot 3.06.

Being induced by s representations, i.e. that P had the expertise and skill to remedy the leakage problem, D appointed P to resolve the leakage problem at Lot 3.11 and Lot 3.06.

P alleged that the water proofing works were completed. However, the leakage problem had continued and the tenants at South City Plaza continued to complain of the leakage problem.

D gave notice to P that the leakage problem continued and had not been resolved. But P did not take any steps to rectify the leakage problem.

D gave further notice to P to resolve the leakage problem within seven days. If P fails to do so, D will appoint another contractor to remedy the leakage problem. In that event, P would be liable for all costs and expenses paid by D to the new contractor.

P did not take any steps. As such, D appointed another contractor ( new contractor ) to rectify the leakage problem.

By reason of P medy the leakage problem, D had to appoint a new contractor to resolve the matter. As such, D has a counterclaim against P, for the costs and expenses incurred by D due to P failure to rectify the leakage problem.

In the counterclaim, D prayed for the following reliefs : suatu deklarasi bahawa Plaintif telah memungkiri dan / atau tidak menunaikan obligasi nya menurut perjanjian di antara Plaintif dan Defendan; ii) pembayaran se jumlah RM 45,000 bagi Lot 3.11 (rooftop) dan RM 143,910.11 bagi Lot 3.06 (roof) kepada Defendan bagi kos membaikpulih dan kerja-kerja pembaikan; iii) gantirugi am di taksirkan bagi kos membaikpulih dan kerja-kerja pembaikan; Law on appeal

An appellate court will not generally interfere with the decision of a trial court unless the trial court is shown to be plainly wrong in arriving at on whether there had been no or insufficient judicial appreciation of evidence by the trial court.

In Ng Hoo Kui & Anor v Wendy Tan Lee Peng (administratrix for the estate of Tan Ewe Kwang, deceased) [2020] 12 MLJ 67 at 89, the Federal Court said : The Malaysian position has always been that, a decision that is arrived at, due to a lack of judicial appreciation of evidence is plainly wrong. The Federal Court case of Gan Yook Chin & Anor v Lee Ing Chin & plainly

In UEM Group Bhd v Genisys Integrated Engineers Pte Ltd & Anor [2010] 9 CLJ 785 at 800, the Federal Court said : Thus, the prime issue in respect of Questions 1 to 3 is whether the Court of Appeal had erred in interfering with the findings of facts of the trial judge. It is well settled law that an appellate court will not generally speaking, intervene with the decision of a trial court unless the trial court is shown to be plainly wrong in arriving at its decision. A plainly wrong decision happens when the trial court is guilty of no or insufficient judicial appreciation of evidence

In Azman bin Mahmood & Anor v SJ Securities Sdn Bhd [2012] 6 MLJ 1 at 12, the Federal Court said : The law on appellate intervention on findings of fact by a trial Judge is trite. In this context it may be useful to refer to the case of Multar v Lim Kim Chet and Anor [1982] 1 MLJ 184; [1982] CLJ 107 (FC), wherein it was held that an appellate court will interfere and disturb the finding of fact by the trial judge if crucial evidence had been misconstrued resulting in - and the consistency of the . In the Privy Council case of Choo Kok Beng v Choo Kok Hoe and Ors [1984] 2 MLJ 165 it was held that when a trial judge had so manifestly failed to derive proper benefit from the undoubted advantage of seeing and hearing witnesses at the trial, and in reaching his conclusion, has not properly analysed the entirety of the evidence which was given before him, it is the plain duty of the appellate court to intervene and correct the error lest otherwise the error results in

In MMC Oil & Gas Engineering Sdn Bhd v Tan Bock Kwee & Sons Sdn Bhd [2015] MLJU 1282, the Court of Appeal said (at page 4 of 15) : appellate court is not at liberty to reverse or interfere in the finding of a trial judge even if the appellate court is clearly of the view that it would not have reached the conclusion the trial judge did on the evidence so long as the findings of the trial judge are plausible on the evidence on record, there is no room for interference merely on the grounds that the appellate court forms a different opinion on the same evidence. [16] There is, however, little room for variation in the application of the principle of intervention when the trial judge is plainly wrong. Appellant courts ought to be consistent in ensuring that appellate intervention only comes about when a trial judge reaches a conclusion which no reasonable judge could have reached. A lack of such consistency in approach would give rise to considerable uncertainty in the practice and progress of l

No doubt an appeal is a continuation of the original proceedings by way of a re - hearing. And the appellate court retains the power to scrutinise and re - evaluate the evidence presented at the trial. Nevertheless, an appellate court will not disturb the findings of fact of the trial judge unless it is shown that the judge erred in law, made findings not supported by the evidence adduced, or so fundamentally misdirected himself that no reasonable court, properly directing itself and asking the correct questions, could have arrived at the same conclusion.

In S Quarry Sdn Bhd v Desaru Development Corporation Sdn Bhd & Ors [2019] CLJU 93, the Court of Appeal articulated the circumstances in Namely where the judge :- (a) misdirected himself on the evidence; (b) failed to judicially appreciate the evidence; (c) failed to consider material evidence; (d) acted on irrelevant evidence so as to render the decision wholly erroneous; (e) drew inferences not justified by the facts; (f) misapprehended the facts; or (g) gave reasons that were wholly unsatisfactory or internally contradictory.

With these principles in mind, I find that D has satisfied the legal threshold which warrants appellate intervention. In my opinion, the learned Magistrate is plainly wrong. She had not given sufficient judicial appreciation towards the evidence and testimonies adduced during the trial. Thus, I considered appellate intervention to be warranted. Here are my reasons. The Respondent made representations to the Appellant on its expertise and skill to resolve the leakage problem prior to the appointment by the

The learned Magistrate erred in not considering the representations made by P to D that it has the expertise and skill to resolve the leakage problem that was being faced by D.

D was having leakage problem at Lot 3.11 and Lot 3.06. D did not have the expertise to remedy the leakage problem. Hence, D relied on the advice and proposal by P, who claimed to have the skill and expertise to rectify the leakage problem.

At paragraphs 8 and 10 of the statement of defence and counterclaim, D pleaded that P made representations concerning its expertise and skill to resolve the leakage problem by water proofing works at Lot 3.11 and Lot 3.06. In response, P at paragraphs 4 and 5 of its reply, admitted that it had made such representations regarding its skill and expertise to D.

Further, P first witness (PW1) testified during cross examination that a discussion was held between D and P. And that P had made representations as to its expertise and skill to D. The evidence of PW1 manifest the following :

A site inspection of Lot 3.11 and Lot 3.06 was conducted by D and P.

P had full knowledge of the leakage problem faced by D.

D medy the leakage problem.

P made representations to D that it had the knowledge and expertise to resolve the leakage problem.

Based on P , D was induced to appoint P to rectify the leakage problem.

From evidence, it had made representations to D on its expertise and skill to resolve the leakage problem by the water proofing works.

In addition, via its quotation dated 11.4.2022 in respect of Lot 3.11, P informed D as follows : Quotation - Water proofing works at Lot 3.11 (rooftop) at South City Plaza Mall As requested we are pleased in submitting our quotation as the above captioned subject as below.

Please note that the area specify works are interconnected and need to do simultaneously to stop the existing leakage at certain areas inside the antique shop. Attached herewith are the on site photo for your perusal. We hope the above quotation meets with your kind expectation

From the above quotation by P, it is evident that :

P had complete knowledge that D was facing leakage problem.

P was engaged by D to resolve the leakage problem.

P had proposed the water proofing works that were necessary to remedy the leakage problem.

The quotation and works advised by P was to fulfil the needs and expectations of D.

There were on - site photographs attached to the quotation.

Further, via its quotation dated 17.5.2022 in respect of Lot 3.06, P informed D as follows : Quotation - Water proofing works for Lot 3.06 (roof) and other related works at South City Plaza Mall We would like to thank the Management to giving us the opportunity to propose on the above mentioned captioned subject. We refer to the site visit and measurement on 13th instance, we found out that the zinc roof especially along the joints is rusty broken due to wear and tear. Moreover, the existing drainage around the roof is clogged and water ponding which causes leakage especially during the rainy weather. As such, we are pleased to propose to you the repair costs as follows:

The above quotation evince that P had proposed the works that were necessary to resolve the leakage problem at Lot 3.06.

From evidence and the above - mentioned quotations quotations , P had made representations to D on its expertise and skill to resolve the leakage problem by the water proofing works. In addition, P had advised and proposed the scope of works that was required to remedy the leakage problem. D does not have the expertise or skill and as such, it was induced by the representations of P and relied on the works proposed by P.

Consequently, D issued the following purchase orders :

purchase order dated 16.6.2022 in respect of Lot 3.11, where D has stated the same description of the works as per P quotation; and

purchase order dated 13.6.2022 in respect of Lot 3.06, where D has stated the same description of the works as per P quotation.

In the premises, D relied on P P representations to appoint it to carry out the water proofing works to resolve the leakage problem at Lot 3.11 and Lot 3.06. The Appellant and the Respondent made a site visit to Lot 3.11 and Lot 3.06 prior to the appointment of the Respondent

The learned Magistrate erred in not taking into account that P made a site visit with D and had full knowledge of the leakage problem being faced by D. Subsequently, P advised and proposed remedial works to D by way of the quotations. This led to the appointment of P by D.

PW1 testified that P and D made a site visit to Lot 3.11 and Lot 3.06, to inspect and understand the leakage problem. Hence, P had complete knowledge of the leakage problem at Lot 3.11 and Lot 3.06 arising from the site visit. P then provided the quotations, advising and proposing to D the waterproofing works that were required to resolve the leakage problem. D does not have the expertise and skill and as such, had totally relied on the proposal by P as stated in the quotations. The Respondent was to resolve the leakage problem at Lot 3.11 and Lot 3.06, as agreed by the Respondent

The learned Magistrate erred in not taking into account that P had full knowledge of the requirement of D to resolve the leakage problem at Lot 3.11 and Lot 3.06.

D had appointed P based on its expertise and skill to remedy the leakage problem at Lot 3.11 and Lot 3.06. Via the quotations, P proposed to D the scope of works that was necessary to rectify the leakage problem.

The proposal on the works stated in uotations were repeated in the purchase orders issued by D. D had completely relied on the proposal by P to rectify the leakage problem at Lot 3.11 and Lot 3.06. The purpose of D appointing P was to remedy the leakage problem. The payments made by D was in consideration for the resolution of the leakage problem being faced by D. The Respondent did not resolve the leakage problem at Lot 3.11 and Lot 3.06, and the Respondent did not adduce any evidence to prove that the leakage problem had been remedied by the Respondent

The learned Magistrate erred in not appraising the evidence adequately. There was no cogent evidence by P to show that the leakage problem at Lot 3.11 and Lot 3.06 was remedied. P did not prove any completion of works. Despite the aforesaid, the learned Magistrate erred by granting judgment to P, without taking into consideration that P did not fulfil its obligation.

I agree with D that P did not resolve the leakage problem. P has made bare averments, without any cogent evidence to prove that the leakage problem was remedied. The fact that P did not rectify the leakage problems is evident from the following :

There was no joint inspection at Lot 3.11 and Lot 3.06, pursuant to the allegation by P that the works were completed.

There is no joint inspection form that has been executed by P and D in relation to the works.

There is no written report submitted by P, which has been duly signed by P and there is no acceptance in writing by D.

P did not provide any evidence from any expert on the works alleged to have been done, and that the leakage problem has been remedied.

There is no document to prove that the works were completed and that the leakage problem was resolved by P.

The photographs that P attempted to describe as a report was not admitted into evidence. They were As such, the said documents ought not to be considered as evidence in the determination of the present case. (See the Court of Appeal case of Azabar Holdings Sdn Bhd (dalam likuidasi) v Kumarappan @ Thannirmalai [2020] MLJU 2534). Moreover, the said photographs did not show any completion of the works.

In respect of the completion of the water proofing works at Lot 3.11 and Lot 3.06, P made bare averments that are not supported by evidence. To wit :

At paragraphs 17 and 18 of the statement of claim, P alleged that the works were completed. But without any particulars and without any reference to any report, showing the completion of the works and resolution of the leakage problem.

By a video produced by P, it merely shows water flowing and did not show any completion of works. In fact, the video indicates that the water proofing works were not completed.

The invoices produced by P does not prove the completion of the works. At paragraphs 10 and 11 of the statement of claim, P pleaded that it commenced works at Lot 3.11 on 14.6.2022 and at Lot 3.06 on 23.6.2022. At paragraph 12 of the statement of claim, P pleaded that the two invoices were issued at the commencement of the works, and not on the alleged completion of the works.

In the letter by s solicitors dated 16.12.2022, there were no particulars stated as to the completion of works. Simply a bare averment without any particulars.

PW1 did not give any evidence on the completion of the works and resolution of the leakage problem. Actually, she admitted during cross examination that the leakage problem was not resolved.

From the above, I conclude that the water proofing works were not completed as the leakage problem persisted. The onus of proof is on P to show that the water proofing works to resolve the leakage problem were duly completed. P did not discharge the onus of proof as no cogent evidence was adduced by P. By reason thereof, P been dismissed. The Appellant had adduced evidence to show that the Respondent did not resolve the leakage problem, and as such the water proofing works were not completed satisfactorily

The learned Magistrate erred in not appraising the evidence adduced by D which showed that the waterproofing works were not satisfactorily completed. The leakage problem continued. Accordingly, P had not fulfilled its obligation as agreed. Given that the appointment of P by D was to resolve the leakage problem.

D adduced documentary and oral evidence during the trial to prove that P had not remedied the leakage problem. The documents adduced by D are :

The Whatsapp messages between P and Ms Theyva (D witness) with the tenant at Lot 3.11. The said Whatsapp messages stated - at the corner is still leaking, and getting serious a know the situation is being progress but the leaking is getting bit

The Whatsapp messages between D and another tenant stated - something, Its really urgent, My rental will take effect soon, But Please look into the matter a bit serious and I can t delay my ceiling w leakages, One of the ceiling got wet, luckily not yet paint it.

The report prepared by the new contractor that was appointed by D, since P did not resolve the leakage problem.

The photographs prepared by the new contractor, that shows the site at South City Plaza and there was reference to the report prepared by the new contractor.

The letter dated 30.5.2022 from a tenant to the management office, South City Plaza, stated - The Tenant made complaints on the leakages, that persisted and stated - consideration that the roof of my unit continuous leakage. This is places causing damage to the furniture and we are antique

The documents above demonstrate that P did not fulfil its obligation, as the leakage problem faced by D continued. As such, the purpose for the appointment of P was not achieved.

The witness from the new contractor gave evidence in court that the water proofing works carried out by P did not remedy the leakage problems. As such, the works done were useless, as the leakage problem persisted.

Similarly, D fourth witness testified - the leakage problems at Lot 3.11 (rooftop) and Lot 3.06 (roof), as the leakage

From the evidence, I am satisfied that P did not fulfil its obligation as the leakage problem continued. P did not resolve the leakage problem, which is the very purpose for its appointment. The R discussion and the water proofing works to resolve the leakage problem

The learned Magistrate erred by giving consideration to the oral evidence of P second witness, who was in fact not involved in the discussion or the water proofing works. As such, hearsay evidence was accepted by the learned Magistrate.

P second witness testified on the water proofing works and the completion of the same. The said testimony is hearsay evidence, as it was not from his direct involvement.

The answers given by P second witness under cross examination indicate that he was not involved in the discussion and works to resolve the leakage problem at Lot 3.11 and Lot 3.06. He did not have any direct knowledge and was not involved in the project, as there were no documents making reference to him. As such, his evidence ought not to be taken into consideration. The Appellant had given notice to the Respondent in relation to the non - completion of the works and that the leakage problem persisted

The learned Magistrate erred by not taking into consideration that notice was given to P regarding the leakage problem that persisted.

By a letter dated 29.12.2022, D gave notice to P that the works were not completed and did not eliminate the leakage problem. In the said letter, D informed P of the following :

The waterproofing works were never completed. The works were not acceptable and not up to par.

The leakage problem was not resolved and the condition was even worse.

A demand was made for P to complete the works within seven days. Failing which, D shall appoint a third party contractor to rectify the works.

P shall be liable for all costs and expenses incurred and shall indemnify D.

It is noteworthy that P aforesaid letter. In addition, D by a letter dated 23.3.2023 to P solicitors, gave notice that the works were not completed as the leakage problem continued. By reason thereof, D appointed a new contractor to resolve the leakage problem.

The said letter reads :

Days from the date of the Letter. Hence we shall proceed to engage a third us all the cost and expenses incurred therewith including and not limited to all damages and losses sustained by us Take Notice That your client shall indemnify

In the premises, notice was given by D concerning the incomplete works and the leakage problem persisting, and the need to appoint another contractor to resolve the problem. Further, D gave notice that P was to indemnify D for all costs and expenses incurred. Since the Respondent did not resolve the leakage problem, the Appellant had no choice but to appoint a new contractor

The learned Magistrate erred in not taking into consideration that owing to P not resolving the leakage problem, D had no choice but to appoint a new contractor to rectify the problem, as the tenants were facing difficulties.

D duly appointed another contractor. The new contractor made a site inspection and prepared a report and photographs. Subsequently, the new contractor issued a quotation dated 13.1.2023 and also a quotation dated 1.12.2022, for the resolution of the leakage problem. Thereafter, D appointed the new contractor to remedy the leakage problem.

The new contractor testified at the trial. He explained the leakage problem and how it was rectified by him. The Respondent is liable to the Appellant for all the costs and expenses incurred in appointing the new contractor to resolve the leakage problem

The learned Magistrate erred by not taking into consideration that due to the failure of P to resolve the leakage problem, D had no choice but to appoint a new contractor. As such, P is liable to D for the costs and expenses incurred by D.

As discussed earlier, P did not rectify the leakage problem. As such, D had to appoint new contractor due to the seriousness of the matter affecting the tenants. Since the appointment of the new contractor was due failure, P who breached the agreement is liable to D for the costs and expenses incurred.

D had given notice to P that if P did not resolve the leakage problem within seven days, D would appoint another contractor. In that event, P would be liable for the costs and expenses incurred by D.

D had produced payment vouchers to show the payments that were made to the new contractor. Namely :

payment voucher dated 7.4.2023 in the sum of RM 35,000;

payment voucher dated 6.6.2023 in the sum of RM 35,000;

payment voucher dated 1.8.2023 in the sum of RM 35,000; and

payment voucher dated 1.9.2023 in the sum of RM 35,000.

The new contractor testified at the trial and confirmed the payments that were made by D. Further, that the payments were for the works to rectify the leakage problem that had not been resolved by P.

In the premises, the costs and expenses incurred by D has to be paid by P due to its failure to resolve the leakage problem, the very purpose for the appointment of P by D.

I accept that D has proven its counterclaim. D adduced the following evidence :

The report and photographs taken by the new contractor prior to its appointment. The said report and photographs showed the persistence of the leakage problem and that it was not resolved by P.

The quotations issued by the new contractor on the works that were required to rectify the leakage problem.

D had given notice to P that in the event the leakage problem was not remedied, D would appoint another contractor. And P would be liable for the costs and expenses incurred by D.

Payments vouchers to prove the payments that were made to the new contractor.

The testimony of the new contractor regarding the condition of Lot 3.11 and Lot 3.06 prior to his appointment, the works carried out, the rectification of the leakage problem and the payments that were made by D to the new contractor.

In the premises, D has discharged the burden of proof on a balance of probabilities in respect of its counterclaim. The counterclaim ought to have been allowed. The learned Magistrate erred, as can be seen in the grounds of judgment

The learned Magistrate erred in understanding the facts of the case. The works carried out by P were in respect of Lot 3.11 (rooftop) and Lot 3.06 (roof). The works involved in the matter was water proofing. The water proofing works are related to leakages.

However, the learned Magistrate held that certain leakages were not At paragraph 35 of the grounds of judgment, she said : Mahkamah mendapati tugasan-tugasan yang di berikan kepada Plaintif oleh Defendan ada lah beberapa kawasan di Lot 3.11 dan 3.06, hanya seperti mana dalam sebut harga - sebut harga dan pesanan-pesanan pembelian. Selain itu, terdapat juga beberapa aduan berkenaan pembocoran selepas tugasan Plaintif ia merujuk kepada bahagian-bahagian yang lain di mana bukan dalam skop Plaintif .

At paragraph 37 of the grounds of judgment, she also said : masalah kebocoran di luar skop tugasan Plaintif itu masalah kebocoran yang wujud ada lah datang daripada sistem perpaipan Defendan dan dan juga kebocoran di Lot 3.07A:

Pertaining to the works that P has to perform, the learned Magistrate at paragraph 38 of the grounds of judgment said : ... skop perkhidmatan Plaintif kepada Defendan dalam kes ini ada lah setakat apa yang di nyatakan dalam sebut harga - sebut harga dan invois-invois dan tidak melebihi skop tersebut dan juga tidak melibatkan keseluruhan kawasan yang mengalami kebocoran

The finding of the learned Magistrate, i.e. that the works which P is to carry out were different from the leakage problem at Lot 3.11 (rooftop) and Lot 3.06 (roof), is contrary to the actual situation.

The above finding of the learned Magistrate in respect of the scope of works, is in contradiction to the works that P was to carry out. Such finding is at odds with the evidence adduced before the court.

In the quotation dated 11.4.2022 pertaining to Lot 3.11 (rooftop), in relation to the water proofing works, Note therein states - need to do simultaneously to stop the existing leakages at certain areas inside

The Learned Magistrate did not take into consideration that it is the leakage problem at Lot 3.11 (rooftop) which caused water to flow into the antique shop below.

In the quotation dated 17.5.2022 in respect of Lot 3.06 (roof), the heading states - - Waterproofing works for Lot 3.06 (roof) . further states - around the roof is clogged and water ponding which causes leakage As such we are pleased to propose to you the repair

By the works stated in the quotations, it is apparent that the works described are for repair of leakages to the rooftop at Lot 3.11 and the roof at Lot 3.06.

D solicitors, by a letter dated 29.12.2022 at paragraph 3 thereof, failure to resolve the leakage issue, where the works done by your client was not up to the standard of a skilled contractor P did not reply to the said letter to deny its contents.

The report put up by the new contractor shows that the works at Lot 3.11 (rooftop) and Lot 3.06 (roof) were water proofing works to remedy the leakage problem.

The photographs by new contractor show that the works were at the rooftop (Lot 3.11) and the roof (Lot 3.06), which evince that it was related to the leakage problem.

The letter dated 30.5.2022 from a tenant states at paragraph 1 thereof that - dissatisfied with the maintenance service with regards to leakages from roof We would like bring into your kind consideration that the roof of my unit continuous leakage. This is causing disturbance to us as the roof is leaking indicates that the leakage is from the roof.

From the grounds of judgment, it would appear that the learned Magistrate did not appraise the aforementioned evidence. But relied instead on the oral evidence of PW1, which were bare averments. In the circumstances, the learned Magistrate erred by the failure to appraise the above - mentioned evidence effectively.

At paragraphs 28 to 31 of the grounds of judgment, the learned Magistrate pointed out that Chong Li Li and Madam Sally, who attended the discussion prior to the appointment of P by D, were not called as witnesses. The learned Magistrate then drew an advance inference pursuant to section 114 (g) of the Evidence Act 1950. However, this was irrelevant to the claim and such adverse inference was unwarranted.

On this aspect, Loh Kee Far from P, who attended the discussion and signed the quotations, was not called as a witness by P during the trial. Nevertheless, the learned Magistrate did not draw an adverse inference against P in this regard.

Moreover, the representations made by P during the meeting was admitted by PW1. Therefore, there was no necessity to call Chong Li Li and Madam Sally as witnesses, especially since they were no longer in the employment of D. In addition, the documents adduced evince that the water proofing works carried out by P was to remedy the leakage problem.

To sum up, P did not produce any evidence to prove completion of the water proofing works. P did not discharge its burden of proof on a balance of probability, as there was no evidence adduced that the water proofing works had remedied the leakage problem at Lot 3.11 and Lot 3.06. On the contrary, D had adduced evidence to show that P did not fulfil its obligation as the leakage problem persisted. Hence, P have been dismissed.

In respect of the counterclaim, D had proven that it had to appoint another contractor to resolve the leakage problem, and as such incurred costs and expenses. D had produced a report and photographs from the new contractor to show that the works performed by P did not remedy the leakage problem. The new contractor gave evidence and payment vouchers were produced. Despite this, the learned Magistrate dismissed the counterclaim.

In the circumstances, the learned Magistrate ought to have dismissed D counterclaim.

For the reasons above, I allowed the appeal. I set aside the judgment of the learned Magistrate dated 16.12.2024. I dismissed claim. I

With respect to prayer (ii) of the counterclaim, the counsel for D informed me at the hearing of the appeal that they are only seeking RM 45,000 for Lot 3.11. They are not seeking RM 143,910.11 for Lot 3.06, as it is beyond the jurisdiction of the Magistrate Court.

I awarded interest on the judgment sum at the rate of 5 % per annum from the date of the writ to the date of judgment.

In relation to prayer (iii) of the counterclaim, i.e. for damages to be assessed pertaining to the costs of remedial works, the counsel for D instruction whether to proceed. This was in view of the jurisdictional monetary limit of the Magistrate Court. But for the present, they requested that prayer (iii) of the counterclaim be allowed. On that basis, I allowed prayer (iii) of the counterclaim.

I awarded costs of RM 10,000 to D, here and below. Dated 18 December 2025 Quay Chew Soon High Court of Malaya Shah Alam, Selangor Civil Division NCvC 11 Counsels Deborah Jaswinder Kaur a/p Sher Singh (Messrs. Soraya Jabid, Deborah & Co.) for the Appellant Muhammad Ijlal bin Mohd Naim (Messrs. Abdul, Low & Partners) for the Respondent Case reference 1. Ng Hoo Kui & Anor v Wendy Tan Lee Peng (administratrix for the estate of Tan Ewe Kwang, deceased) [2020] 12 MLJ 67 2. UEM Group Bhd v Genisys Integrated Engineers Pte Ltd & Anor [2010] 9 CLJ 785 3. Azman bin Mahmood & Anor v SJ Securities Sdn Bhd [2012] 6 MLJ 1 4. MMC Oil & Gas Engineering Sdn Bhd v Tan Bock Kwee & Sons Sdn Bhd [2015] MLJU 1282 5. S Quarry Sdn Bhd v Desaru Development Corporation Sdn Bhd & Ors [2019] CLJU 93 6. Azabar Holdings Sdn Bhd (dalam likuidasi) v Kumarappan @ Thannirmalai [2020] MLJU 2534 Legislation reference 1. Section 114 (g) of the Evidence Act 1950