Again, the Defendant completed this and the photographs of the work done is at. TOTAL: 57,482.59 ii. LA-4 progressive claim no. 5: ITEM OF CLAIM (PROGRESS CLAIM NO. 5) AMOUNT (RM) JUSTIFICATION BY SD3 WHY WORK NOT DONE (QA11, WSSD3) Item 7 [pg. 380, B4] Roof Trusses in respect of 5750 and P.T. 5705 4,402.16 4,402.16 The roof truss was not built according to the specifications and as a result the entire work was useless. The Defendant had to reinstall the same. The Defendant's again had to engage a third party contractor to complete the works and these works can be seen at [7-8, B4]. Item 5, roof beam in respect of P.T. 7725 [381, B4]. 2,870.28 However, there were two missing beams as can be seen at the third photograph at [9, B8] and there were defects in the brickworks which can be seen from the first two photographs at the same page. The Defendant had to install the beams and for the brickworks, break down and re-lay the entire wall. Proof of the work done is at [10-11, B8]. Refuse Chamber door [pg. 372, B4] in respect of P.T. 7986 - The refuse chamber door was never installed. This is illogical as from the percentages in the top part of the page no work on the house had even been commenced. As of 8.7.2020, the lot remained empty [258, B8] (first photograph). TOTAL: 11,674.46 [21] the defects on the houses constructed by the Plaintiff were discovered around January 2020 and that these were serious defaults of LA-1, LA-2, LA- 3 and LA-4. Especially the defects were such defects which were due to the - i. ii. Drawings iii. The Finishes Sample Selections iv. Building Plan v. All directions given by the Defendant [22] o the contract being a Lump Sum Contract, the Plaintiff is not entitled to payments until the defects are rectified but in any case, the Plaintiff cannot rely on the progressive claims to receive its payment but on the basis of quantum meruit. [23] continuously failed, refused and was negligent in making the rectifications mentioned via emails and letters by the Defendant. [24] The Defendant pleaded that the cost to rectify the defects/defaults was RM432,171.32 and that it will increase after a full inspection by the Defendant which the Defendant had not been able to do as the Plaintiff did not cooperate by attending the inspection. D. ounter Claim [25] Due to the defects, the Defendant contents that the Certificate of Practical Completion (CPC) issued to be cancelled and declared not valid. [26] The Defendant claims for damages amounting to RM432,171.32 being the rectification cost for the defects/defaults already identified and claims for damages for any future defects/defaults which may be discovered (latent defects). [27] The Defendant is entitled to claim for Liquidated Ascertained Damages (LAD) amounting RM783,200.00 calculated till 5.11.2020 and will continue till the CPC for all the units are issued or in the alternative any other sum duly assessed. [28] The Defendant prays as follows in its defence and counterclaim:- a.Suatu Perintah bahawa Sijil-Sijil Pelengkapan Praktikal berhormat dengan 16 unit yang merupakan perkara subjek Surat Awad Pertama dan 3 unit yang merupakan perkara subjek Surat Awad Pertama adalah dan dengan ini dibatalkan dan diketepikan; b. Suatu deklarasi diberikan bahawa Sijil-Sijil Pelengkapan Praktikal tersebut adalah batal dan tidak sah dari tarikh ianya dikeluarkan; c. Plaintif hendaklah membayar Defendan sejumlah sebanyak RM432,171.32 berupa kos membaiki Pengingkaran-Pengingkaran seperti yang diplidkan didalam Pernyataan Tuntutan; d. Plaintif hendaklah membayar Defendan sejumlah sebanyak RM783,200.00 dikira setakat 5-11-2020 sebagai gantirugi jumlah tertentu; e. Plaintif hendaklah membayar Defendan sejumlah sebanyak RM40.00 sehari untuk setiap unit (kesemuanya ada 53 unit) dikira dari 6-11-2020 hingga Sijil-Sijil Pelengkapan Praktikal berhormat dengan unit-unit yang dibina oleh Plaintif dikeluarkan; f. Plaintif hendaklah mengindemnifikasikan Defendan terhadap kesemua tuntutan untuk gantirugi jumlah tertentu dan kesemua tuntutan berhormat dengan kegagalan menuruti dengan Surat-Surat Awad yang dikeluarkan oleh Defendan kepada Plaintif oleh pihak-pihak kepada Perjanjian Perjanjian Pembinaan yang diplidkan dalam Tuntutan Balas selain Defendan; g. Suatu Akaun Akhir digubal oleh Penolong Kanan Pendaftar selepas kesemua jumlah yang perlu ditentukan diatas ditentukan secara muktamad; h. Gantirugi am untuk pengingkaran kontrak dan kecuaian; i. Faedah pada kadar 5% atas apa jua jumlah yang diberikan diatas dikira dari tarikh tuntutan balas disini; j. Kos; k. Apa jua atau lain relif diberikan sebagaimana yang Mahkamah yang Mulia ini menganggap wajar dan suai manfaat diberikan. E. Issues [29] Issues which have to be considered by this court arising from both parties are as follows: i. whether Clause 6.0 of the LA-1, LA-2, LA-3 & LA-4 is applicable; ii. whether the Plaintiff had completed the works under LA-1, LA-2, LA-3 & LA-4; iii. whether there were issuance of CPC and CCC; iv. Whether the Plaintiff had failed to rectify the defects; and v. Whether there was LAD to be claimed by the Defendant. F. Findings of the Court I. Whether Clause 6.0 of the LA-1, LA-2, LA-3 & LA-4 is applicable? [30] Clause 6.0 of the Letter of Award reads as follows: The payment term shall be 30 days from t [31] Pursuant to this clause, the Plaintiff had issued progressive claims to the Defendant but the Defendant had not paid the Plaintiff the sum claimed but had instead issued partial payments to the Plaintiff. [32] There is no dispute to the fact that the contract is a Lump Sum contract, as such, there is no dispute as to the contract sum as it is a fixed sum. As to the mode of payment, between the Plaintiff and the Defendant, the only document where the terms and conditions of engagement between them are those found in the Letter of Award i.e. LA-1, LA-2, LA-3 and LA-4. [33] Although the Defendant had in its pleadings stated that there is an amendment to the mode of payment which supersedes the existing Clause 6.0, there was no evidence of the same produced to this court. Based on the purported amendment to the mode of payment, a sum of RM50,000.00 per month and subsequently RM100,000.00 per month will be paid to the Plaintiff pending an inspection to be carried out after the issuance of CCC in order to pay the full contract sum to the Plaintiff. [34] Based on the evidence produced before this court, that was not the case. If there had been such an amendment to the mode of payment as claimed by the Defendant, at the time the progressive claims were made by the Plaintiff, it would only be natural for the Defendant to communicate to the Plaintiff such an amendment and not make partial payments towards the progressive claims instead. There is also no evidence to show that the Defendant had objected to the claims made by the Plaintiff. [35] The effects of the Defendant's failure to reply to the demand made by the Plaintiff has been explained by Gopal Sri Ram JCA (as he then was) in the Court of Appeal case of David Wong Hon Leong v. Noorazman bin bin Adnan [1995] 4 CLJ 155, at 159, as follows:- "During argument, we registered our surprise at the learned Judge's reluctance to enter judgment for this sum of RM100,000. After all, the appellant had failed to respond to the letter of 17 December. If there had never been an agreement as alleged, it is reasonable to expect a prompt and vigorous denial. But, as we have pointed out, there was no response whatsoever from the appellant. In this context, we recall to mind the following passage in the judgment of Edgar Joseph Jr. J. in Tan Cheng Hock v. Chan Thean Soo [1986] 1 LNS 42; [1987] 2 MLJ 479-487: 'Now there are cases - business and mercantile cases in which the Courts have taken notice that, in the ordinary course of business, if one man of business states in a letter to another that he has agreed to do certain things, the person who receives that letter must answer it if he means to dispute the fact that he did so agree. " [36] The Defendant had submitted on this issue as follows:- the Progress Claims and demands, then the fact that there was no response was merely of probative value as to the claims and demands, not complete proof. It remains the obligation of the Plaintiff to prove its underlying claim and it [37] ad been amended and that the amended version supersedes the one in the letters of award, the burden to produce the amended version is on the Defendant (s.106 of the Evidence Act 1950 i.e when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him). Since no such evidence was produced to this court, the Defendant had failed to discharge its burden so far as this assertion is concern. [38] Therefore, on this issue, it is proven that Clause 6.0 of the Letter of Award remains binding on the parties. II. Whether the Plaintiff had completed the works under LA-1, LA-2, LA-3 & LA-4? [39] On the admission of the Defendant through its pleadings that CPC had been issued by the Architect for LA-1 and LA-2, it has been established that the Plaintiff had completed the works under LA-1 & LA-2. As for the works under LA-3 & LA-4, the Plaintiff did not claim that it has completed the works. [40] The Progressive claims made by the Plaintiff for LA-3 & LA-4 are up to when they had to stop construction due to the Stop Work Order issued due to the Movement Control Order (MCO) in relation to COVID-19. It is the -3 & LA-4. [41] The Plaintiff had shown to the court that it had written to the Defendant on 3.7.2020 informing the Defendant of its requirement to stop work due to the MCO and for an extension of time but it did not receive any reply from the Defendant. The Defendant had not denied that there was no reply to the and by that time has been set large by the Defendant. There is also no evidence to show that the Defendant had written to the Plaintiff instructing to resume work failing which the Defendant will have no choice but to engage a 3rd party contractor to complete the works under LA-3 & LA-4. [42] It is an admitted fact that the Defendant had engaged a 3rd party -3 & 4 without giving any notice to the Plaintiff. [43] Therefore, works under LA-3 & LA-4 has not been established by the Defendant. [44] Since the contract is a Lump Sum Contract, it was argued by the Defendant that unless the works under LA-3 and LA-4 are completed, the Plaintiff is not entitled for the claims made. However, since it has been established that the Plaintiff did not abandon its works for LA-3 and LA-4 and the only reason it could not continue its work was due to the Stop Work Order, the Plaintiff is entitled to receive for the work done i.e on a quantum meruit basis. [45] Since the Plaintiff had already issued progress claims for the works done to the Defendant, on the basis of quantum meruit, these progressive claims can be measured as sum owed by the Defendant to the Plaintiff for works done for LA-3 and LA-4. III. Whether there was issuance of CPC and CCC? [46] been issued by the Architect for 16 units under LA-1 and 6 units under LA-2. had prayed among others for the cancellation of the CPC, however, the Defendant had failed to produce the CPC to this court. [47] Failure to produce the CPC had led the Plaintiff to submit that the reason for the failure to produce the CPC is obviously due to fear that this would establish the physical completion of LA-1 and LA-2 and that this would render the accusation of non-completion of units in LA-1 and LA-2 to be untrue. [48] s114(g) of the Evidence Act 1950 is invoked whereby it allows a presumption against the Defendant that by the production of the CPC, it will be unfavourable to the [49] As for the CCC, it has been admitted that CCC had been issued for units built under LA-1 and LA-2 by the Defendant. IV. Whether the Plaintiff had failed to rectify the defects? [50] contention that the Plaintiff had failed to rectify the defects on the units under LA-1 and LA-2. The Defendant had produced letters issued by the Architect to the Defendant on issues relating to defects on the units under LA-1 and LA-2 as evidence on the issue of defects in the & . [51] It is the contention of the Defendant that the Plaintiff had failed to rectify the defects and as such the Defendant had to incur costs in rectifying those defects. However, it has been established that CCC had been issued for units under LA-1 and LA-2 and as such, by the issuance of CCC, it is proven that rectification had been done by the Plaintiff. This was the evidence of the Plaintiff subpoena witness, Shaiful Arizal Bin Arbaine (SP2). [52] Ac , who had given evidence as the Penolong Pegawai Seni Bina Bandaraya Seremban (formerly at Majlis Perbandaran Nilai, Negeri Sembilan that before the Local Authority approved the issuance of CCC, consent will be obtained from TNB and Syarikat Air Negeri Sembilan and that all relevant documentation for issuance of CCC had been issued properly by the Architect for all the 34 units under LA-1 and LA-2. This was said during cross examination of SP2: : Okay soalan saya setuju bahawa pihak Majlis tak kira MPN atau MBS tidak terlibat dengan penyeliaan ataupun pemantauan kerja-kerja pembaikan defects, setuju? SP2 : Sebelum tu saya nak tanya defect sebelum CCC atau selepas? JS : Okay baik kita ambik sebelum CCC. SP2 : Jika sebelum CCC macam prosedur saya cakap tadi pihak Jabatan Majlis iaitu Pegawai Jabatan Pembangunan Bersama-sama Arkitek akan buat lawatan ke tapak untuk melihat keadaan rumah tersebut. Jika ada defects pihak Pemaju perlu membaiki terlebih dahulu sebelum pihak Majlis mengeluarkan [53] The evidence given by an independent witness, SP2, confirms that the defects (if any) prior to the issuance of CCC were rectified prior to the issuance of the CCC. [54] efects for all units under LA-1, LA-2, LA-3 and LA-4 were very unclear. This is because, most, if not all of the defects alleged to be found in the units built by the Plaintiff shown to this court were based on images (photos) which were manually marked to correspond with the PT numbers related to the units which were to be built by the Plaintiff. However, the Defendant failed to establish the link between the photos and the units which was said to be built by the Plaintiff. [55] The photos which were submitted as evidence were photos which were not taken jointly during a joint inspection, therefore, there was no verification as to which units that the photos belong to. In fact, it was evidenced that the photos were taken by the 3rd party contractor, Wyner Land Sdn. Bhd., appointed later to complete the construction of the units under LA-3 and LA-4 witness, SD2 being the Project Manager of Wyner Land Sdn. Bhd. The photos that did not carry digitalised dates marked on them as well, so there is no way to know when were they actually taken. I find these photos cannot be admissible pursuant to s.73A(6) of the Evidence Act 1950: to a statement rendered admissible as evidence by this Act, regard shall be had to all the circumstances from which any inference can reasonably be drawn as to the accuracy or otherwise of the statement, and, in particular, to the question whether or not the statement was made contemporaneously with the occurrence or existence of the facts stated, and to the question whether or not the maker of the statement had any incentive to [56] The Defendant had failed to give cogent, comprehensive and reliable and its failure to rectify the same. It is undeniable that the Defendant had produced so many documents bearing many different PT numbers which mostly did not correspond to the PT numbers belonging to the units under LA-1, LA-2, LA-3 or LA-4. There were also so many correspondences which were from the Defendant addressed to Cempaka Johan Sdn. Bhd and the Plaintiff with no clear indications as to the units particularly given to the Plaintiff to construct. [57] Therefore, it has been proven that the defects on units under LA-1 & LA-2 (if any) had been rectified prior to the issuance of the CCC by the Plaintiff and the defects (if any) on units under LA-3 & LA-4 were not informed to the Plaintiff as soon as the Stop Work Order was affected and no joint inspection was conducted prior to the engagement of Wyner Land Sdn. Bhd. in order to identify any defects. Therefore, there is no evidence to show that there were defects on units under LA-3 and LA-4 prior to Wyner Land Sdn. Bhd. taking over the construction of the same. [58] The Defendant had attempted to show this court through the photos taken by the Plaintiff which were attached to the progressive claims for LA-3 and LA-4 that there were claims made for works undone. However, these photos were so unclear that it was not possible to view the alleged undone work. Furthermore, there are no evidence whatsoever showing the be done in order to verify the claims made against the work done. V. Whether there was LAD to be claimed by the Defendant? [59] It has been established that for LA-1 & LA-2, the last progressive claims were made before the given completion date. As to the issuance of the CCC, it has also been established that the issuance of CCC was also based on the completion of external infrastructure works by Bandar Akademia being the developer of the Project. [60] However, it was pleaded by the Defendant that the LAD is calculated till 5.11.2020 and will be ongoing till the CPC is issued. In such circumstances, although it was pleaded by the Defendant that CPC had been issued but none was produced in this case. There is also no evidence to show that the Defendant had issued a Certificate of Non-Completion (CNC) against the Plaintiff for any of the LAs. [61] As the burden to prove is on the Defendant for its claim for LAD, The Defendant had failed to discharge that burden. Matters not pleaded [62] In this case, I find the Defendant to be inconsistent in its defence, matters that were raised in the pleadings initially were later on changed in the submissions. For instance, the issue pertaining to CPC was only raised in the pleadings but had not been spoken off or any evidence adduced to establish the issuance of CPC even though the Defendant had prayed for the cancellation of the CPC in its counterclaim. [63] The Defendant had also raised a non-pleaded matter in its defence and counterclaim i.e the issue of costs for rectification and completion of uncompleted works for LA-3 and LA-4. In the case of Samuel Naik Siang Ting v. Public Bank Bhd [2015] 8 CLJ 944, the Federal Court had emphasised as follows: [29] It is a cardinal rule in civil litigation that parties are bound by their pleadings and are not allowed to adduce facts and issues which they have not pleaded (see: State Government of Perak v. Muniandy [1985] 1 LNS 117; [1986] 1 MLJ 490; and Anuar Mat Amin v. Abdullah Mohd Zain [1989] 1 LNS 74; [1989] 3 MLJ 313). In Blay v. Pollard & Morris [1930] 1 KB 628, Scrutton LJ ruled that: "Cases must be decided on the issues on the record; and if it is desired to raise other issues there must be pleaded on the record by amendment." [30] The Supreme Court in Lee Ah Chor v. Southern Bank Bhd [1991] 1 CLJ 667; [1991] 1 CLJ (Rep) 239; [1991] 1 MLJ 428, had also emphasised the importance of pleadings and ruled that where a vital issue was not raised in the pleadings it could not be allowed to be argued and to succeed on appeal (see also Ambank (M) Bhd v. Luqman Kamil Mohammed Don [2012] 3 CLJ 551; [2012] MLJU 56 FC). [31] On the same issue, HRH Raja Azlan Shah FJ (as HRH then was) in The Chartered Bank v. Yong Chan [1974] 1 LNS 178; [1974] 1 MLJ 157, had also pointed out that "as the trial judge had decided on an issue which was not raised in the pleadings, the judgment must be set aside and new trial ordered" (see also: Haji Mohamed Dom v. Sakiman [1955] 1 LNS 26; [1956] MLJ 45; and Kiaw Aik Hang Co Ltd v. Tan Tien Choy [1963] 1 LNS 59; [1964] MLJ 99). [64] In this case, I have considered all matters in accordance to the pleadings i.e the defence and counterclaim filed by the Defendant. Conclusion [65] In the upshot, I allowed the plaintiff claims and order as follows: i. The Defendant pays the sum of RM1,953,931.99 to the Plaintiff; ii. Interest at a rate of 5% p.a. on the sum of RM1,953,931.99 to be incurred by the Defendant from 1.7.2020 until the date of full settlement; ii. iv. The Defendant pays the Plaintiff costs of RM50,000.00 for the