Kl Eco City Sdn Bhd v 1. ) Tuck Sin Engineering & Construction Sdn Bhd (WA-22C-38-03/2017)

TUCK SIN ENGINEERING & CONSTRUCTION SDN BHD

HERCULES ENGINEERING (SEA) SDN BHD (COMPANY NO.: 324486-T) ... DEFENDANTS AND T.Y. LIN INTERNATIONAL SDN BHD (COMPANY NO.: 63617-H) … THIRD PARTY 2 THE JUDGMENT OF Y.A. LEE SWEE SENG Project [1] As narrated by learned counsel for the Plaintiff, the Plaintiff is the developer of KL Eco City and awarded the Project to construct a Link Bridge connecting KL Eco City and Mid Valley City to the 1st Defendant (“D1”) as the main contractor. D1 in turn appointed the 2nd Defendant (“D2”) to design, supply, deliver and install all the bearings of the Link Bridge. Part of the Link Bridge which was constructed by the Defendants collapsed on 30.11.2016 (“Collapse”). [2] The Plaintiff had on 17.3.2017 commenced this action against the Defendants in respect of the losses suffered by the Plaintiff arising from the Collapse and the breaches of the Defendants. The exchange of pleadings closed around June 2017. [3] The trial in respect of the Main Proceedings had commenced on 27.3.2018. The following witnesses had given their testimonies: No. Witness Date PW1 Gan Giaw Peck 27.3.2018 PW2 Zaiun Abidin 28.3.2018 PW3 Akash 28.3.2018 PW4 Lim Seong Kit 29.3.2018 PW5 Leung Yew Mah 10.4.2018 3 PW6 Zuhairi bin Abd. Hamid 11.4.2018 PW7 Yap Sai Hoe 12.4.2018 Prayers [4] The Plaintiff had applied to set aside the following:

1.1. The Third Party Notice dated 8.5.2018 issued by the 1st

1.2. The Third Party Notice dated 18.5.2018 issued by the 2nd Defendant (D2); and 1.3. The Third Party Proceedings commenced by D1 and D2. (collectively referred to as “Third Party Notices” and “Third Party Proceedings” respectively.) [5] The relevant Enclosures are Enclosures 237 and 239 which are the Plaintiff’s applications to set aside the Third Party Notice and Proceedings taken out and commenced by D1 and D2 respectively, both dated 31.5.2018. [6] Enclosure 241 is the Third Party’s application to set aside Third Party Notice and Third Proceedings taken out by D1 and D2. [7] Enclosure 236 is D1’s application for Third Party directions against the Third Party. Enclosures 244 is D2’s application for Third Party directions against the Third Party. [8] The various applications by the Plaintiff and the Third Party were made under Order 16 rule 6 Rules of Court 2012 (“ROC”) as follows: “6. Proceedings on a third party notice may, at any stage of the proceedings, be set aside by the Court.” 4 [9] By way of the Third Party Notice and the Third Party Proceedings, the Defendants had sought contribution from T.Y Lin International Sdn Bhd (“T.Y Lin”) as Third Party for the claim brought by the Plaintiff in this action (“Main Proceedings”). [10] The Third Party is the structural and civil engineer (i.e. the bridge designer) appointed by the Plaintiff for this Project. Principles Whether there had been Inordinate and unexplained Delay by the Defendants in commencing the Third Party Proceedings [11] The Plaintiff submitted that there had been an inordinate delay by the Defendants in commencing these Third Party Proceedings. This action was commenced as early as 17.3.2017. The exchange of pleadings closed around June 2017. As early as August 2017, the Defendants had taken the position that the Third Party is liable and responsible for the Collapse. [12] The Plaintiff further submitted that the Main Proceedings are now at an advance stage whereby 7 witnesses have testified and the Plaintiff is about to close its case. [13] The Plaintiff urged upon this Court that the Defendants had ample time since the inception of the Main Proceedings to consider and decide whether there is a need to bring such Third Party Proceedings. Yet, for reasons best known to the Defendants, they decided not to do so until now when the Main Proceedings have reached such an advance stage. [14] Learned counsel for the Plaintiff submitted that there are no good and/or justifiable grounds or explanations which warrant such inordinate delay on the part of the Defendants in commencing these Third Party Proceedings to be excused. 5 [15] The Plaintiff further submitted that this is clearly an abuse of court process which will result in the trial of the Main Proceedings being delayed and derailed and the speedy disposal of this action being compromised. [16] It goes without saying that it will take some time for the pleadings and any pre-trial directions given between the Defendants and the Third Party in the Third Party Proceedings to be completed. [17] Naturally and expectedly, as and when the Defendants and the Third Party are ready to proceed to trial, it is almost certain that the Third Party will request for the witnesses who have testified earlier in the Main Proceedings to be re-called for their counsel to cross-examine them. [18] Learned counsel for the Plaintiff drew support from the case of Kewangan Bersatu Bhd v Victory Ceramics Industries Sdn Bhd & Ors [2002] 5 MLJ 225, whereby the Court had disallowed the defendant’s application to issue a third party notice and held that the defendant’s application is an abuse of court process as the application is filed at this late stage and would have the effect of delaying the trial: “It is clear that the fifth defendant's application is an abuse of the process of the court, which a responsible counsel would not have filed. To bring in other parties at this late stage of the proceedings when case management is being conducted would have the effect of delaying the plaintiff's suit for many more months or even years given the fact that:

the third party claims would have first to be served not on one but three third parties (taking, say, nine months)

each of the third parties may have to file their defence and serve them on the existing parties (taking, say, another six months); 6

the existing parties may have to amend their defence (taking, say, another six months).” (emphasis added) [19] Learned counsel for the Plaintiff also highlighted that this well-established position is also echoed in the case of Dato’ Abul Hasan bin Mohamed Rashid v Multi-Code Electronics Industries & Anor [2012] 5 MLJ 176 whereby the Court of Appeal held that the appellant who filed a late application of third party proceedings amounted to an abuse of process of court as the third party proceedings would invariably further delay the completion of the trial. The Court of Appeal opined as follows: “[14] .....The second defendant took nearly three years to file the third party proceedings. It is a delay that is so gross and inordinate and it abuses the process of the court. We have considered the judgment of Kang Hwee Gee J (later JCA) in Kewangan Bersatu Bhd v Victory Ceramics Industries Sdn Bhd & Ors [2002] 5 MLJ 225 in regard to the issue of delay. We have also considered the judgment of Abdul Malik bin Ishak JCA in Razshah Enterprise Sdn Bhd v Arab Malaysian Finance Bhd [2009] 2 MLJ 102; [2010] 2 CLJ 457 (CA), about the delay that was said to be too long to endure. .... [32] ... the first defendant, is terminally ill and for this reason there is an element of urgency that the trial should proceed expeditiously as scheduled. The third party proceedings would invariably further delay the completion of the trial bearing in mind that the second defendant took his own sweet time in filing his third party proceedings.”(emphasis added) 7 [20] Learned counsel for the Defendants referred to Order 16 rule 1(1)(a) of ROC which provides that a third party notice may be issued where the defendant claims against such a person not already a party to the action any contribution or indemnity. Reference was also made to a right to contribution is provided by Section 10(1)(c) of the Civil Law Act 1956 which provides: “(1) Where damage is suffered by any person as a result of a tort (whether a crime or not) – ....

any tortfeasor liable in respect of that damage may recover contribution from any other tortfeasor who is, or would if sued have been, liable in respect of the same damage, whether as a joint tortfeasor or otherwise, so, however, that no person shall be entitled to recover contribution under this section from any person entitled to be indemnified by him in respect of the liability in respect of which the contribution is sought.” (emphasis added) [21] It was also emphasized that the rationale for O 16 r 1(1) was given a liberal interpretation as can be seen from the case of Federal Flour Mills Ltd v Owners Of The Vessel "Ta Tung" & Anor [1970] 2 MLJ 147, at 147E-G(right), where His Lordship Raja Azlan Shah J (as His Royal Highness then was) quoted with approval the following passage from the judgment of Lord Esher MR in the case of Byrne v Brown (1889) 22 QBD 657 as follows: "… to secure that, wherever a court can see in the transaction brought before it that the rights of one of the parties will or may be so affected that under the forms of law other actions may be brought in 8 respect of that transaction, the court shall have power to bring all the parties before it, and determine the rights of all in one proceeding. It is not necessary that the evidence in the issues raised by the new parties being brought in should be exactly the same; it is sufficient if the main evidence, and the main inquiry, will be the same, and the court then has power to bring in the new parties, and to adjudicate in one proceeding upon the rights of all the parties before it. Another great object was to diminish the cost of litigation." (emphasis added) [22] Whilst a Third Party Proceeding promptly brought would contribute to much time and costs savings, the reverse is true when there is inordinate and unexplained delay in commencing a Third Party Proceeding. From the narration of the facts from learned counsel for the Defendants, they were fully cognizant of the role of T.Y Lin, the structural and civil engineer appointed by the Plaintiff in respect of the Project and they were the ones who had designed the bridge and the bearings. The Defendants have alleged that, at all material times, the Third Party is the agent of the Plaintiff. The Project was awarded by the Plaintiff as developer/employer to D1 as main contractor. It was D1 who had appointed D2 to supply, deliver and install the bearings (“Bearings”) of the Link Bridge. The Link Bridge was designed by the Third Party. Part of the Link Bridge which consisted of link bridge 1 (“LB1”) collapsed on 30.11.2016. [23] The Plaintiff has alleged, among others, that the Collapse was caused by the Defendants’ negligence, breach of duty of care and breach of statutory duty. The position taken by the Defendants is that T.Y Lin is the agent of the Plaintiff and the ramifications of that is that if T.Y Lin is liable 9 then the Plaintiff being the Principal is liable and there would have been no need to join T.Y Lin as a Third Party. [24] Conversely the Defendants would have anticipated that if for some reasons it is held that T.Y Lin is not the agent for the Plaintiff then they had better joined T.Y Lin as a Third Party seeking contribution and indemnity from them as the Defendants had contended that the Collapse was caused by the T.Y Lin and/or alternatively, caused by the design fault and/or omission of T.Y Lin. [25] Learned counsel for the Third Party drew the Court’s attention to the first Defence filed by D1 on 25.4.2017. D1 had prepared and filed a Defence that has raised matters related to the Third Party under the heading “Wrong Design Standards and Codes of Practice used by T.Y Lin” as follows:

In fact, in designing the Bridge, the Plaintiff and/or its consultants, particularly TY Lin, applied the wrong and/or inappropriate building code. The Bridge was designed in accordance with BS5950, which is the building code for the construction of a buildings, and not the correct BS5400, which is the building code for the construction of a Bridge.

Had BS5400 been applied, Plaintiff and/or its consultants, particularly TY Lin ought to have incorporated redundancy in its designs because of the criticality of the bearings. BS5400 requires the redundancy to be designed into the Bridge in order to prevent a collapse where, as in the present situation, one of its support – the Bearings – fails.

The collapse of the Bridge would have been avoided if there was redundancy incorporated into the Bridge design. The design of the Bridge was therefore wrong, insufficient and/or 10 not in compliance with the applicable building code and/or acceptable industry standards.

The 1st Defendant will refer to the BS5400 building code in these proceedings, where necessary. [26] It was further submitted that this part of D1’s Defence which was filed on 25.4.2017 had clearly stated that “particularly T.Y Lin, applied the wrong and/or inappropriate building code.” [27] Similarly, D2 have implicated the Third Party from paragraphs 14A-14B (particulars) (a)–(d) of their amended Defence dated 3.8.2017. The parts of the relevant Defence for ease of reference are reproduced below:

The 2nd Defendants says that the Bearings are components of a global design comprising three major and primary components, namely the base plate of the Link Bridge superstructure, the Bearings and the reinforced concrete pier/pod. At all material times, the global design was the responsibility of the Plaintiff and/or its agent, the Project Engineer. The 2nd Defendant does not assume any responsibility in the adequacy of the global design of the three major and primary components and/or the design of the Link Bridge. In this regard, the 2nd Defendant says that it is the responsibility of the Plaintiff and/or its agent, the Project Engineer to provide a safe and adequate design and to check and ensure that all the three major components of the global design would meet the relevant applicable codes and/or safety requirements, and more importantly, the Project Engineer’s own design specifications and methodology. The 2nd Defendant says that this duty cannot be delegated by the Project Engineer to anyone because, except for the Project Engineer, no one else 11 would know exactly and fully how this global design support mechanism is meant to work.

Based on documents made available by the Plaintiff to the 2nd Defendant after the commencement of this action, the 2nd Defendant will contend that the Collapse was caused by the Plaintiff, its servants of agents and/or alternatively, caused by the design fault and/or omission of the Project Engineer.

The project Engineer’s fatal omission in providing uplift restraint support as the primary support for both the concentric as well as eccentric uplift loads and that the Link Bridge superstructure loads would be imposed on the Link Bridge’s base plate before such loads are transferred to below the Link Bridge’s base plate as required by the Project Engineer’s own specified design standards which are British Standards 5400, Pt 9, British Standards 6177 or American Standards or equivalent Malaysian Standards. The 2nd Defendant says that its Bearings were designed and tested to meet the provisions of the relevant applicable codes and standards to support the concentric uplift force as specified by the Project Engineer. The 2nd Defendant had no knowledge at the material time that the Project Engineer had erroneously assumed, contrary to its own project specification and/or the relevant applicable codes and standards, that the full uplift force could be restrained by the Bearings alone. The Project Engineer had again 12 erroneously imposed by the Link Bridge on the global support mechanism.

The Project Engineer’s failure to carry out its duty as the Project’s supervising engineer to attend and witness the Bearing tests and if it had done so, it would have discovered at the material time the Bearings were intended to function in “compression” and separate and independent uplift restrain support was required to resist the specified “tension” loads for the Link Bridge.

The Project Engineer’s failure to conduct its own specified replacement trials and if it had done so, it would have discovered at the material time the fatal flaw and/or defect in its design, namely –

the absence of the primary uplift restraint support to enable removal and replacement of

(ii) the Project Engineer had wrongly assumed contrary to its own project specification and/or the relevant applicable codes and standards, that the Bearings were to solely support all the uplift loads. The 2nd Defendant says that the Bearings were only required by the Project Engineer’s own specification and drawings to support concentric loads and not any eccentric loads that are additionally imposed on the global support mechanism. Further, the 2nd Defendant says that – 13

the Project Engineer’s design has assumed that all the bolts holding the Bearings in place were designed such that all the bolts would have the same load capacity which was specifically required by the Project Engineer’s own specifications and drawings;

based on the Project Engineer’s own specifications and drawings, it is incumbent upon the Project Engineer to incorporate, which it failed and/or omitted to do, and independent means of resisting any eccentric loads imposed on the global support mechanism and/or certain measures to ensure that the imposed load would be concentric; and

the Bearings could potentially be damaged if there were eccentric loads on the Bearings or in the alternative, the Bearings’ function and/or movement would be impaired as the knuckle mechanism of the Bearings would be deformed or deflected in the direction of the load eccentricity.

The Project Engineer’s failure to provide proper mechanism to guide the intended tangential movements of the Link Bridge. The intended tangential movements are possible only if proper additional and adequate intermediate supports along the span of the Link Bridge are provided to guide the tangential movements. In the absence of such additional intermediate supports, the movements of the Link Bridge have to be in the polar direction. The Project Engineer’s failure to take into account that in the absence of 14 the necessary intermediate support mechanism to guide the movement of the Link Bridge in a tangential direction, as intended in its own design, the actual movement of the Link Bridge was in a polar direction which was contrary to its own design intention. This has seriously impaired the movements of the Link Bridge and consequently, this has resulted in excessive additional horizontal forces on Bearing No.3 and Bearing No. 4 beyond the Project Engineer’s design parameters and/or contemplation. [28] It is apparent via paragraphs above stated, that the Project Engineer of the Third Party has been mentioned and implicated. It cannot be gain said that from the beginning of this case, the Defendants have knowledge of the Third Party’s involvement in the relevant drawings of the Bridge and the Bearings, quite apart from whether the Third Party is indeed liable. [29] I cannot agree more with learned counsel for the Third Party that upon the filing of the respective Defences or subsequent thereto, learned counsel for the Defendants should have scrutinized the Plaintiff’s Replies to the Defences raised and strategized the conduct of their case. Had they applied their mind thereto they would have made an application to include the Third Party at the earliest opportunity by initiating proactive steps to file the Third Party Notice, instead of waiting for close to a year to do so or worst, nearing the close of Plaintiff’s case. [30] Whilst a misjudgment and an oversight of that should not shut them forever from claiming against T.Y Lin, unless there is a satisfactory explanation for the 1 year delay in commencing this Third Party proceedings, for which none had been forthcoming, this Court would be 15 inclined to set aside the Third Party Notices taken out by the Defendants and the Third Party proceedings. Whether to allow the Third Party proceedings at this late stage of trial would cause substantial prejudice to the Plaintiff [31] Learned counsel for the Plaintiff submitted with considerable persuasion that the Third Party Proceedings will certainly delay and derail the trial of the Main Proceedings. The Plaintiff would have to waste unnecessary time and costs having to sit through the proceedings when the Third Party proceeds with the trial. [32] Relative to what the Plaintiff would suffer, the Plaintiff submitted that the Defendants’ rights and interests are not prejudiced if the Third Party Notices and Third Party Proceedings are set aside as the Defendants are at liberty to commence actions against the Third Party in new and separate suits. [33] The Plaintiff was convinced that was the proper way to go given that the Main Proceedings have already progressed to such an advance stage. It was only too obvious that having the Third Party Proceedings afoot will certainly derail and impact the speedy disposal of this entire action. [34] Learned counsel for the Plaintiff cited the case of Kewangan Bersatu Bhd v Victory Ceramics Industries Sdn Bhd & Ors [2002] 5 MLJ 225 in support of the above proposition. [35] There, the High Court dismissed the defendant’s application to issue third party notice and held as follows: “Meanwhile, pending the regularization of the third party proceedings, the present case management would have to be postponed for another year or so. Had the application been allowed to proceed it 16 would have been unjust to the plaintiff. The fifth defendant on the other hand would have gained an undue advantage at the expense of the plaintiff in not having to answer to the plaintiff's claim sooner. Appropriately, the fifth defendant should file a separate action against the third parties.” (emphasis added) [36] I agree with the Plaintiff that these Third Party Proceedings were commenced too late in the day especially since the Main Proceedings have reached such an advance stage. [37] Moreover there were simply no good and justifiable grounds for such inordinate delay on the part of the Defendants in bringing these Third Party Proceedings to be excused. This is all the more inexcusable when the Defendants themselves appeared to have taken the position that the Third Party is liable and responsible for the Collapse much earlier as evident from the pleadings. Yet, it is only now, almost a year later, that the Defendants decided to commence these Third Party Proceedings. [38] I have no doubt that the Third Party Proceedings, if allowed, would cause great prejudice to the Plaintiff and will inevitably delay and derail the Main Proceedings. [39] Conversely, there is no prejudice to the Defendants if these Third Party Notices and Third Party Proceedings are set aside. They can always commence a new separate action against the Third Party. I am more than satisfied that, given the circumstances, commencing a new separate action against the Third Party will be the proper way forward. To save time in the separate proceedings to be commenced in a separate suit the Defendants here can always apply for the evidence given in this current proceeding to be made available in transcript form or even in the Court’s recording in CD 17 with respect to what transpired in this Court though the truth of what said is still subject to proof. [40] Learned counsel for D1 said that the intention for the Third Party action was that it would start only after liability is determined on the Main Proceedings between the Plaintiff and the Defendants and as such this would not affect the current flow of the Main Proceedings. [41] The above fact is unremarkable for like all Third Party proceedings, liability kicks in between the Defendants and the Third Party after a finding of liability between the Plaintiff and the Defendant or Defendants. I appreciate that it is trite that the Third Party proceedings for contribution should be treated as independent of and separate from the Main Proceedings. See: Mat Abu bin Man v Medical Superintendent, General Hospital, Taiping, Perak & Ors [1989] 1 MLJ 226 at p228F (Supreme Court). [42] I agree with the Defendants that if the nature of the case requires it, this Court is empowered to enter judgment for D1 against the Third Party after the conclusion of the whole trial. See Order 16 rule 7 of ROC. The Third Party Proceedings could be ordered to be stayed pending the determination of liability between Plaintiff and Defendants since Order 16 rule 7 ROC allows for judgment of third party proceedings to be rendered after the trial of the main action. (See also: the Singapore High Court’s case of Chong Yew Kee & Anor v Wah-Chang International Corp Pte Ltd & Anor (New Zealand Insurance Co Ltd, Third Party) [1995] 1 SLR 153, at 157). [43] However what is more common is that as part of the third party directions, this Court would order that the claim in the Third Party Notice be 18 tried after judgment is given against Defendants. See: Order 16 rule 4(3)(b) ROC. [44] See also: Dato' Abul Hasan bin Mohamed Rashid v Multi-Code Electronics Industries & Anor [2012] 5 MLJ 176 at p182E (Court of Appeal). [45] His Lordship Hashim Yeop A Sani Ag CJ (as he then was) in the Supreme Court case of Mat Abu bin Man v Medical Superintendent, General Hospital, Taiping, Perak & Ors [1989] 1 MLJ 226 at p228F(Supreme Court) observed as follows: "When a defendant is made liable to the plaintiff, he then has his right open against a third party to establish that he possesses a right to contribution of indemnity from the third party." [46] Be that as it may, for purposes of time and cost saving, the Third Party is allowed to cross-examine the Plaintiff’s and Defendants’ witnesses during the case between the Plaintiff and Defendants. This is to avoid duplication and the need to recall witnesses of the Plaintiff especially in the action by the Defendants against the Third Party for contribution and indemnity. [47] It is no doubt true that with the parties' agreement during a case management on 19.1.2018, the trial in respect of the Main Proceedings shall be bifurcated in the following manner as contained in the minutes of the Court:

Part A which deals with the issue of liability;

Part B which deals with the issue of quantum pertaining to:

the Plaintiff's claim for the rectification and reconstruction costs of the Bridge; and

(ii) the 1st Defendant's claim for work done and not certified; 19

Part C which deals with:

delay affecting 1st Defendant's claim before the collapse of the Bridge;

(ii) post-collapse delay involving all the parties; and

(iii) all other necessary claims to be disposed of.

Trial shall proceed in 2 tranches whereby:

The 1st tranche shall deal with Parts A and B (“First

(ii) The 2nd tranche shall deal with Part C ("Second Tranche of Trial"). [48] It was submitted on behalf of D1 and presumably D2 as well that the purpose of this bifurcation is so that:

This Court may make a decision on Parts A and B; and

(ii) The parties may then appeal against the said decision, if required, without affecting this Court from proceeding with trial on Part C. [49] It is no doubt true that the parties are now in the midst of the First Tranche of Trial. The position of D1 is that the trial between D1 and the Third Party would only proceed after the First Tranche of Trial has concluded; and only if D1 is found to be liable to the Plaintiff. [50] The Plaintiff had called 7 witnesses and with one last witness left to produce, they were about to close their case. Even though this trial is bifurcated that does not diminish the delay that would be unnecessarily caused by the addition and participation of the Third Party in the Main Proceedings, though limited to cross-examining the Plaintiff’s and Defendants’ witnesses. This would prolong the trial in as much as if the Third Party were not allowed to cross-examine the Plaintiff’s and 20 Defendants’ witnesses at this stage and that they should only do so during the Third Party Proceedings stage in which case the Third Party would need to call the relevant witnesses of the Plaintiff. [51] Either way the trial in the Main Proceedings should proceed unabated and uninterrupted by the Third Party Proceedings and where that cannot be done, as in this case then the Third Party Proceedings should not be allowed. [52] Delay is a prejudice suffered by the Plaintiff especially when they have every expectation that the trial should be concluded within 9 months from the date of filing of their Writ on 17.3.2017. Going by that timeline the trial should have been concluded at the end of 2018. Now that the trial cannot be concluded until end of 2018 through no fault of the Plaintiff but the Court’s busy timetable, every effort must be summoned to complete it as soon as possible. [53] The Defendants also mounted a “back to basics” argument that the whole purpose of a third party procedure is to prevent a multiplicity of actions from being commenced in Court; and to prevent the same issue from being tried twice with possibly different results if heard before another judicial commissioner or judge. Learned counsel for the Defendants cited the cases of Dato' Abul Hasan bin Mohamed Rashid v Multi-Code Electronics Industries & Anor [2012] 5 MLJ 176 at p183A (Court of Appeal), Malayan Banking Bhd v Sepakat Computer Consultant Sdn Bhd & Ors (Intercontinental Nominees Sdn Bhd & Anor, third party) [2012] 8 MLJ 660 at p667D (High Court) and Standard Securities Ltd v Hubbard and Another [1967] 2 All ER 622 at 623F-H as support for the above proposition. 21 [54] Whilst I have no quarrel with the underlying rationale for a third party proceeding, this is nevertheless a case where one need not fear a different panel hearing substantially the same issue and coming to different decisions. This is not a case where there are concurrent proceedings between the Plaintiff and the Defendants and another proceeding where the Defendants are the Plaintiffs and the Third Party the Defendant. [55] To begin with the issue in the Main Proceedings is the liability of the Plaintiff vis-a-vis the Defendants. The issue between the Defendants and the Third Party whether in this Third Party proceeding or in a separate suit to be commenced, is confined to the liability between the Defendants and the Third Party only and does not involve the Plaintiff. Neither is this a case where there would be substantially common grounds and evidence to be taken in the 2 separate proceedings such that it would make sense to have the 2 matters heard one after the other by a same Judge to save time and costs. [56] As is apparent to all, the Third Party proceedings had barely started and pleadings between the Defendants and the Third Party have hardly begun and for the Defendants and the Third Party to get their matter ready for trial would require a substantial passage of time that has to unjustifiably and unreasonably encroached into the Plaintiff’s case against the Defendants. [57] This Court should be concerned that any advantage to the Defendants to allow them to commence a Third Party action now should not be to the detriment to the Plaintiff where delay is concerned. The procedure of the law should be activated to aid the parties and not to cause prejudice to the diligent at the instance of the indolent. 22 [58] If there is any perceived disadvantage in commencing a separate suit by the Defendants it is that in a case where they had been found liable, the Plaintiff may proceed to execution whilst their case against the Third Party has not commenced yet because the pleadings have not been closed and the Bundles have not been filed, much less a trial date fixed. [59] That, if I may say, underscores the need to be diligent in applying to join the Third Party as soon as possible and the Defendants would only have themselves to blame for not getting the separate suit up to the stage of being ready for trial once the issue of liability and quantum has been decided between the Plaintiff and the Defendants by this Court. [60] Yet another reason given for the Third Party action to be brought herein, and not a fresh suit, is because this Court is now familiar with the technical details involved in the dispute. Surely that cannot justify the delay and the Court would always be more familiar with the technical aspects of a case as the evidence is being adduced both from the factual and expert witnesses. Another Judge who has to hear the separate proceedings if brought need not have to go behind the finding of liability between the Plaintiff and the Defendants but merely focus on the liability of the Third Party with respect to the contribution or indemnity. I seriously do not think and I cannot visualize how even if another Judge were to hear the separate proceedings between the Defendants and the Third Party in a separate suit where the Defendants are the Plaintiffs and the Third Party is the Defendant, he would be disadvantaged in any way by virtue of not having heard this suit between the Plaintiff and the Defendants here. [61] There are thus merits in the Plaintiff’s application to set aside the Third Party Notices taken out by the Defendants and the Third Proceedings commenced. 23 Whether to allow the Third Party Proceedings at this late stage of trial would cause prejudice to the Third Party [62] Once the Plaintiff had succeeded in setting aside the Third Party Notices and the Third Party proceedings then the Third Party is out of the picture so to speak and not a party to these proceedings. [63] However since the Third Party themselves have also applied to set aside the Third Party Notices and the Third Party Proceedings, this Court is constrained to consider their arguments. [64] The Third Party, on the other hand, had alleged that they have lost an opportunity to prepare themselves against the allegations made by the parties at this stage of the proceedings. Whilst this is an opportunity not lost altogether, yet it is less than the ideal compared to a case where the Third Party had been joined in earlier and participated in the proceedings. [65] There is nothing like having a counsel to represent the client, in this case T.Y Lin, at the commencement of the trial, rather than coming in at this late stage when the 7 witnesses of the Plaintiff including the engineer of the Third Party who had designed the bridge have given their evidence and had been cross-examined by the counsel for both the Defendants. [66] There is nothing like the audio-visual advantage to be gained by counsel by been present to observe the way the evidence on the under-design or the omission had been introduced by the Defendants and the answers of the Plaintiff’s witnesses to those allegations and in particular that of the engineer from TY Lin, the Third Party in PW 4 Mr Lim Seong Kit. He is the senior principal of the Third Party and had given his evidence and had been cross-examined by both the Defendants. [67] The senior principal of the Third Party in PW 4 is the main witness who was directly involved in the Project and is the key witness for the Third 24 Party. Learned counsel of the Third Party submitted with considerable persuasion that the prejudice suffered consisted of being deprived as follows:

safeguarding the interest of the Third Party from the initiation of the suit;

evaluating and considering the interest of the Third Party before giving evidence in Court or offering oneself for cross-examination;

preparing their defence after considering the documents and list of witnesses by other parties;

engaging an independent legal counsel/ surveyor/ expert/ specialist to advise on the implication, effects and repercussion of the documents/ evidence put forward by other parties/ witnesses. [68] Learned counsel for the Third Party impressed upon this Court that the Third Party have been totally deprived from engaging a legal counsel from the beginning to provide legal advice as to their rights and interests that was needed being a party to the suit prior to giving evidence in Court taking into consideration the documents and witnesses which would have produced against the Third Party. [69] Whilst I would not go so far as saying a fair trial would not be possible where the Third Party is concerned yet it cannot be dismissed that much time would be needed for the recall of the relevant witnesses of the Plaintiff to allow the Third Party to cross-examine them. [70] PW 4 had finished giving his evidence and had been cross-examined by counsel for the Defendants. Whilst it cannot be suggested that his evidence would have been different if he had known that his company the 25 Third Party had been made a party to these proceedings, yet it cannot be denied that Mr. Lim PW 4 who is directly in charge of this Project has not received any legal advice with regard to this suit and had offered his evidence both in examination-in-chief and during the cross-examination since the Third Party had not been made a party yet. [71] If the Third Party proceeding had been brought from the beginning of this suit, the Third Party would have protected their interest and rights, taking into consideration the documents and witnesses in this matter. [72] Such an advantage not had is not lost altogether for in the separate suit which the Defendants here could always bring now or even after the liability issue here is decided against them here, the Defendants would have to call their relevant witnesses and this time round the Third Party as the Defendant would be able to call the same engineer to testify for them. [73] Should the Third Party Proceedings be allowed to continue, the Third Party would surely ask for the relevant witnesses of the Plaintiff to be recalled with respect to cross-examining and challenging whatever concessions they had made on the under-design or omission in the design of the bridge and the bearings made by the Plaintiff’s witnesses during the cross-examination by the Defendants’ witnesses. [74] Indeed it would be doubtful if the Plaintiff would be calling any witnesses from the Third Party to support their case if the Third Party had been brought in before the trial commences for then the stand of the Third Party would be to defend themselves against the Defendants’s Claim and would not be so much in speaking in support of the Plaintiff’s Claim. [75] There is merit in the argument of learned counsel for the Third Party that for the moment they had been deprived of their opportunity to challenge the Plaintiff’s claim and Defendants’ allegation during the Main 26 Proceedings. This of course can be cured by the Court allowing these witnesses to be recalled but not without much delay and dissipation of time. The position of the Third Party has been compromised and to that extent prejudiced considering that the Third Party has lost the chance from the beginning of the case to prepare to counter the allegations of the Plaintiff and Defendants from the both the evidentiary aspects and the documentary required to set out an adequate and effective defence. [76] It would be neater and certainly no prejudice to the Third Party in the separate proceedings that the Defendants could always commence even now against the T.Y Lin as the Defendant for cross-examination of the witnesses can be done seamlessly as one finishes after the other and not disjointed as it would be now if the Third Party proceedings were allowed to continue. [77] There is merit in the Third Party’s reference to the case of Comsa Farms Berhad v Malaysian Assurance Alliance Berhad (No.2) [2012] MLJU 386 where it was observed as follows: “(c) It is also trite that the court has inherent jurisdiction to strike out any cause or matter for any justifiable reasons within the norms of procedural jurisprudence and practice. More so now under Order 34 of the Rules of the High Court 1980 which requires the court to deal with such issues at case management stage itself to ensure just, economical and expeditious disposal of the case (see Charles Forte Investment Ltd v Amanda [1963] 1 Ch. D 240; Chip Chong Sawmill Co Sdn Bhd & Ors v Chai Khium Fui [1978] 2 MLJ 24). I must say here that any form of delay may amount to abuse in the present system of 'tracking' and case management and the general undertaking given by the Chief Justice to the 27 public that any suit in the court filed will be disposed of within 9 to 12 months." (emphasis is mine) [78] Now that the Third Party knows that they are being joined in these proceedings as a Third Party they would need to prepare their case and answer the relevant allegations from the Defendants with their adjuster’s report, expert’s report and forensic report to challenge the Defendants’ documents which cannot be prepared at this late stage. In short more time would be needed and in which case this trial cannot be concluded even by end of 2018 though the Plaintiff’s Claim was filed in March 2017. [79] The dicta below in the case of Dato' Abul Hasan bin Mohamed Rashid v Multi-Code Electronics Industries & Anor [2012] 5 MLJ 176, C.A., about the delay that was said to be too long to endure, resonated with the Third Party: “[15] We have also considered the argument that the second defendant has the right to bring a separate action against his fellow directors later. We noted that prior to the filing of the third party notices, the second defendant had not made any demand against the proposed third parties - the six (6) directors of the first plaintiff. And such lackadaisical attitude points to a case of an afterthought on the part of the second defendant. It must be emphasised that the second defendant is not barred under limitation or jurisdiction for that matter from bringing a separate action against the proposed third parties. And it must also be emphasised that the second defendant is not prevented from filing a fresh action against the proposed third parties on the allegations as alluded to by the second defendant in his third party notices. 28 [16] In our judgment, an application for third party directions may even be made after judgment is given against the second defendant who issued the third party proceedings in the main suit” (emphasis added) Pronouncement [80] At the time of hearing this application the trial has proceeded up to this stage where the Plaintiff has closed their case after calling 8 witnesses and D1 has called all their 5 witnesses and D2 has called 5 witnesses with only an expert witness left to be called. [81] It is plain to all that to add the Third Party now to these proceedings would cause further delay of this trial even though this trial is bifurcated. Witnesses would have to be recalled by both the Defendants and the Third Party and instead of a speedy disposal of all issues involving all parties, the trial would now become unduly protracted. As it is the trial has gone on for 16 days already. [82] On the other hand the Defendants would not suffer any prejudice as they can always commence a fresh suit in the Construction Court against the Third Party as the Defendant in the fresh suit. [83] Learned counsel for the Third Party, Mr Leslie Bala, states that he would file the necessary defences and would not be raising the objection that the suit is premature in the fresh suit that the Defendants are minded to file against the Third Party. [84] The Court, to save time in the fresh suit, would order that the Notes of Evidence in this Court, where relevant, would be imported by consent of the parties, in the fresh proceedings with respect to what had transpired by 29 way of evidence adduced in this Court, with liberty of course given to the parties to recall witnesses who had already given evidence in this Court. [85] The relative prejudice to both the Plaintiff and the Third Party would be far greater than any prejudice that the Defendants may suffer if the Third Party were to be joined in here compared to if they were not joined in here. [86] On the other hand if the Third Party is being sued by the Defendants here in a separate proceedings there is no prejudice to the Third Party and any prejudice to the Defendants is a case of reaping what had been sown by the Defendants in that they have taken more than a year to decide to join T.Y Lin as a Third Party. [87] I had allowed the applications in Enclosures 237 and 239 by the Plaintiff with costs in the cause and as for Enclosure 241 by the Third Party, I had allowed the application with cost of RM5,000.00 to the Third Party. [88] With the above decision, the Defendants through learned counsel for D2, Mr Sean Tan, withdrew Enclosure 236 and Enclosure 244 as these applications for Third Party’s directions by D1 and D2 respectively had become academic and so were withdrawn. [89] I struck out both Enclosures 236 and 244 with no order as to costs. Dated: 31 October 2018. - signed - LEE SWEE SENG Judge Construction Court High Court , Kuala Lumpur 30 For the Plaintiff : Hor Shirley and Kelvin Wong (Messrs Raja Darryl & Loh) For the 1st Defendant : Lye Ca-Ryn and Chew Zhen Tao (Messrs Gan Partnership) For the 2nd Defendant : Sean Tan Tee Li (Messrs Wong Kian Kheong) For the Third Party : Leslie Bala a/l Bala Gopal and Shakila Binti Naseer Ahmad (Messrs Murali B Pillai & Associates) Date of Decision: 16 July 2018.