LIBERTY TECHNOLOGY RESOURCES SDN BHD v Suruhanjaya Syarikat Malaysia (SSM) (W-01(NCC)(W)-362-07/2023)

In this case, the Appellant and the Respondent entered into an Enterprise Resource Planning Agreement ("ERP Agreement") dated 13 September 2017. Under the ERP Agreement, the Appellant undertook to develop, configure and implement a comprehensive ERP system for the administration of companies in Malaysia on behalf of the Respondent, which is the Companies Commission of Malaysia (SSM).

Unfortunately, issues arose relating to the adequacy of the works and the Appellant's ability to complete them. The Respondent subsequently terminated the Appellant's works under the ERP Agreement. The Appellant claimed outstanding fees. The Respondent, in turn, counterclaimed for a full refund of the fees paid and for liquidated and ascertained damages.

The original completion date stipulated in the ERP Agreement was 31 October 2017. The original total contract price was RM29,800,000.00, which was subsequently increased to RM35,530,152.00 via Supplemental Agreement No.1. The Appellant encountered difficulties in completing the project within the stipulated timeframe.

Four Extensions of Time ("EOT") were subsequently granted to the Appellant, extending the completion dates respectively to 31 March 2018 (1st EOT), 30 September 2018 (2nd EOT), 31 March 2019 (3rd EOT), and finally to 31 August 2019 (4th EOT). The fourth EOT was formalised through Supplemental Agreement No. 4 dated 5 September 2019, which also subjected the Appellant to liquidated and ascertained damages ("LAD") calculated pursuant to Clause 20.2(a) of the ERP Agreement for the period from 1 April 2019 to 31 August 2019.

On 29 August 2019, the Appellant submitted a request for a further extension of time. This request was not acceded to by the Respondent.

On 19 November 2019, the Respondent issued a Notice of Default pursuant to Clause 25.1(a) of the ERP Agreement, identifying various areas of non-performance and affording the Appellant thirty days to rectify the same.

On 23 December 2019, the Respondent issued a Notice of Termination pursuant to Clauses 25.1(a) and 25.2 of the ERP Agreement, terminating the contract with immediate effect. At the time of termination, it is undisputed that the ERP system was approximately 88% complete. By the date of termination, the Respondent had paid the Appellant a total sum of RM12,228,365.80 pursuant to various milestone payments under the contract.

The Appellant commenced proceedings in the High Court claiming, among other things, payment for work done in respect of certain milestones and recovery of Oracle licence fees amounting to RM17,633,549.19.

The Respondent counterclaimed for a declaration that the termination was lawful, a refund of RM12,228,365.80 pursuant to Clause 25.3(b)(i) of the ERP Agreement, and LAD in the aggregate sum of RM1,966,812.94.

In its judgment dated 15 June 2023, the learned High Court Judge dismissed the Appellant's claim in its entirety and allowed the Respondent's counterclaim. The Appellant was ordered to refund RM12,228,365.80 and to pay LAD of RM1,966,812.94, with costs of RM200,000.00 to the Respondent.

The Appellant now appeals against the whole of the said decision. Having heard submissions from both parties and carefully considered the Record of Appeal, the written submissions, and the applicable law, we now deliver our decision.

Based on the Appellant's written submissions, seven main grounds were raised to challenge the decision of the learned High Court Judge, as follows:

whether the learned High Court Judge ("LHJ") erred in holding that the termination was lawful;

whether the LHJ erred in holding that the Respondent was entitled to a refund of RM12,228,365.80;

whether the LHJ erred in holding that the Respondent was entitled to LAD of RM1,966,812.94;

whether the LHJ erred in allowing the Respondent to recover both a full refund and LAD concurrently;

whether the LHJ erred in holding that the Appellant was not entitled to payment for work done in respect of IRSMI, eBSK Solution Configuration and Pre-UAT;

whether the LHJ erred in holding that the Appellant was not entitled to recover Oracle licence fees of RM17,633,549.19; and

whether the LHJ erred in accepting the Respondent's expert report notwithstanding that it was said to be obviously lacking in defensibility. We shall address these issues separately and in turn. The Lawfulness of Termination [13] The Appellant's primary contention on this issue is that the termination was unlawful, based on two reasons. First, the Appellant submits there was no total failure of consideration given that the project was 88% complete at the time of termination and the Respondent had received substantial benefit from the work done. [14] Second, the Appellant argues that time was not, or was no longer, of the essence at the time of termination, relying on Damansara Realty Bhd v Bungsar Hill Holdings Sdn Bhd & Anor [2011] 6 MLJ 464, Sime Hok Sdn Bhd v Soh Poh Sheng [2013] 2 MLJ 149, and Berjaya Times Square Sdn Bhd v M Concept Sdn Bhd [2010] 1 MLJ 597 for the proposition that the mere inclusion of a clause stating that time is of the essence does not ipso facto make it so. [15] The Appellant points to the grant of the EOTs, the existence of an LAD clause, and the Respondent's acknowledgment at a meeting on 26 August 2019 that the project could be completed by 2021. [16] The Respondent, on the other hand, submits that the doctrines of total failure of consideration and time being of the essence are wholly irrelevant in the present case, as the termination was effected pursuant to an express contractual provision in the ERP Agreement rather than through common law rescission. The Respondent relies on Betsan Sdn Bhd v Norhaidi Che Dan @ Che Din & Anor [2014] 5 MLJ 137 for the proposition that courts will give effect to express contractual provisions for refunds following termination. In Betsan (supra) it was held that: [15] On the evidence we find that there was a clear breach of the SSA by the first respondent. Therefore, the appellant was entitled to exercise its contractual right to terminate both the SSA and the SSSA and to request for the refund of the RM3,880,597.01 paid to the first respondent." (emphasis added) [17] On the Appellant's arguments on this issue, the central difficulty with the Appellant's position is that it conflates contractual termination with rescission at common law. [18] We agree with the Respondent that Berjaya Times Square's case is distinguishable. In that case, the party seeking a refund did not have an equivalent express contractual right, and was therefore left with no recourse other than to pursue a claim for a refund under common law rescission. [19] In the present case, the relevant termination provisions may be summarised as follows: Clause 25.1(a) permits the Respondent to terminate the contract if the Appellant commits a breach and fails to remedy it. Clause 25.2 prescribes the procedure: service of a Notice of Default affording an opportunity to remedy, followed by a Notice of Termination if the default is not remedied. Clause 25.3(b)(i) sets out the consequences, including the Respondent's right to require removal of the ERP Solutions and to recover all monies paid. [20] In the circumstances, this is not a case where the Respondent sought to rescind the contract at common law for breach and must therefore satisfy the requirements for rescission, including establishing a total failure of consideration. [21] Rather, it is clear from the evidence that the Respondent exercised its express contractual right to terminate on account of the Appellant's delay in completing the works. [22] Accordingly, we do not think it is necessary to consider whether there was a total failure of consideration or whether time was of the essence. The question is simply whether the Respondent was entitled to terminate pursuant to Clause 25.1(a), should the Appellant breach any provision of the ERP Agreement, which is capable of remedy, and the Appellant failed to remedy the breach within 30 days from the date the Respondent notified the Appellant to do so ("Notice of Default"). [23] As to the facts leading to termination, we agree with the findings of fact made by the LHJ that the 4th Extended Completion Date was 31 August 2019 and that the Appellant did not deliver a completed and operable ERP System by the $ 4^{\mathrm{th}} $ Extended Completion Date. [24] It is further undisputed that the Respondent issued a Notice of Default on 19 November 2019 pursuant to clause 25.1(a) and that the Appellant did not remedy the default within the prescribed Remedy Period, namely 19 December 2019 i.e. 30 days from the date of the Notice of Default. [25] The Appellant failed to remedy the breach within the Remedy Period. [26] Accordingly, the Respondent was contractually entitled to terminate the ERP Agreement under clause 25.2, which they did pursuant to their Notice of Termination dated 23 December 2019. As regards the Appellant's arguments on the adequacy of the thirty-day notice period in the Notice of Default, we note that this was precisely the period stipulated in Clause 25.1(a) of the ERP Agreement. [27] In view of our findings above, we see no reason to consider the submission on the effect of the Federal Court decision in Lim Swee Choo and Anor v Ong Koh Hou @ Won Kok Fong [2025] 6 MLJ 327 (FC) to the present case, as the fundamental point remains that termination was made pursuant to the contractual provisions for termination pursuant to clause 25 of the ERP Agreement. [28] On this issue, we do not find that the LHJ erred in holding that the termination was lawful. [29] As regards the second ground of appeal, the Appellant challenges the refund award on the basis that there was no total failure of consideration and that time was not of the essence. As we have decided that those issues are irrelevant since the termination was made pursuant to the provisions in clause 25 of the ERP Agreement will therefore address the alternative argument, namely that the Respondent failed to validly exercise its option under Clause 25.3(b)(i) within the contractually stipulated timeframe. [30] The Appellant submits that Clause 25.3(b) presents two disjunctive options - Option 1 under Clause 25.3(b)(i), which requires the Respondent to direct the Appellant to remove the ERP Solutions within 30 days from the date of termination (whereupon the Appellant must refund monies paid), and Option 2 under Clause 25.3(b)(ii), which permits the Respondent to retain or acquire completed portions of the ERP Solutions. It was submitted that only if Option 1 is exercised may the Respondent seek a refund from the Appellant. [31] The Appellant further argues that the 30-day period following the Notice of Termination was the deadline for the Respondent to elect between both these options, and that as no election was made within this period, the Respondent was not entitled to the refund. The Appellant contends that as the date of termination was 23.12.2019, the expiry of the timeframe for the removal of the ERP Solutions was 22.01.2020. [32] The Respondent submits, on the other hand, that the 30-day period mentioned in Clause 25.3(b)(i) relates to the period within which the Appellant must remove the ERP Solutions after the Respondent has required such removal - not a deadline for the Respondent to make its election between the two options. The Respondent further submits that its filing of the Defence and Counterclaim claiming a refund under Clause 25.3(b)(i) constituted a clear and unequivocal election. [33] We have reviewed Clause 25.3(b) carefully. It reads:

3 Effect of Termination by Default of LTRSB In the event that this Agreement is terminated pursuant to Clause 25.2, the following shall apply:.. b) in the case of a termination at any time during the Contract Period, SSM shall have the right to either-

require LTRSB, and LTRSB shall, at its own expense, within a period of thirty (30) days from the date of termination remove the ERP Solutions and other materials supplied by LTRSB and installed at or kept at the Location or any other location in connection with the implementation of its obligations and shall make good all damages caused by such removal or detachment and LTRSB shall forthwith refund all monies paid to it by SSM under this Agreement;

(ii) retain or acquire all or any part of ERP Solutions completed by LTRSB and retain all or any component of the ERP Solutions delivered, up to the date of the termination and in such case, LTRSB shall at no cost to SSM deliver all documents and other materials pertaining to or representing ERP Solutions to SSM. In any of the aforesaid cases as specified in subparagraphs (i) and (ii), SSM shall be entitled to appoint any person or a third party to complete the ERP Solutions and LTRSB shall pay to SSM all costs and expenses incurred by SSM in completing the ERP Solutions in excess of the costs and expenses which would have been paid to LTRSB to complete the Project had this Agreement not been terminated. Notwithstanding the above, SSM shall retain the right to pursue and claim any other rights or losses in a court of law subject to Clause 16.6." [34] Based on the position taken by the parties as stated above, we need to consider the following issues:

whether Clause 25.3(b)(i) required SSM to elect Option1 within the 30-day period stated therein;

whether the failure to do so precludes SSM from later claiming the refund under sub-clause (i); and

whether a subsequent pleading can retrospectively amount to an effective election under the Clause 25.3(b)(i) which was not exercised within the stipulated timeframe. [35] From the plain reading of clause 25.3(b), we agree that the said clause creates two options - Option 1 and Option 2 - upon termination of the ERP Agreement caused by LTRSB's default. Option 1 in sub-clause b(i) is expressly linked to 30 days from termination. In our view, if SSM chooses Option 1, the consequence of the election is that:

LTRSB shall remove the ERP solutions and materials;

such removal shall occur within 30 days from the date of termination;

LTRSB shall make good any damage caused by such removal; and

LTRSB shall refund all monies paid by SSM. [36] If SSM does not elect Option 1, or elects Option 2 in subclause b(ii), or makes no election at all the consequence is different: SSM retains or acquires all or part of the ERP solutions completed and delivered. [37] In our view, in order for LTRSB to remove the ERP Solutions and other materials "within a period of thirty (30) days from the date of termination" SSM must elect Option 1 within on date between the date of termination and a date prior to the expiry of the said 30-day period. This is to enable LTRSB to remove the ERP Solution in the contractually stipulated period of "within 30 days from the date of termination". [38] Once the 30-day period has expired without SSM having made an election between the two options, Option 1 can no longer operate. SSM cannot, after the expiry of the 30 day-period, require Liberty to remove the ERP solutions and materials "within 30 days from the date of termination" since the date has already lapsed. It is impossible for LTRSB to remove the ERP solution and materials "within 30 days from the date of termination" if SSM makes the election long after the period had lapsed. [39] If SSM did not elect Option 1 within 30 days from the date of termination, the option lapsed. In view of our findings here, we find that the position taken by the Respondent that the election that was made by way of its pleading cannot create, extend, or revive a contractual right that has lapsed under the terms which the parties' had bargained and by the time SSM commenced proceedings, the time frame governing sub-clause (b)(i) had already expired and in the circumstances their entitlement for the refund was also lost. [40] In view of our findings, we find the LHJ had erred in allowing the refund of RM RM12,228,365.80. [41] We shall now turn to consider the Appellant's further complaint in relation to the award of liquidated ascertained damages made by the learned High Court Judge. The Entitlement to Liquidated and Ascertained Damages [42] The Appellant challenges the LAD award on three main grounds: prematurity of the LAD; absence of a contractual basis for, and double recovery in respect of, LAD Claim 3; and the contention that delay in completion was also attributable to the actions of the Respondent. [43] On prematurity, the Appellant relies on Loh Wai Lian v SEA Housing Corporation Sdn Bhd (1987) 2 MLJ 1 and Toh Tiam Cheow v Berjaya Times Square Sdn Bhd (2002) 4 CLJ 301 for the proposition that LAD becomes due and payable only upon delivery or performance of the works, not before. [44] The Respondent submits that these cases concerned housing development contracts where LAD was expressly tied to the delivery of vacant possession, which is an entirely different context. [45] We have considered the submissions of the parties on this issue. To provide context, we reproduce below the relevant LAD provisions in the ERP Agreement: "Clause 20.1 of the ERP Agreement provides as follows: 20 DELAY AND LIQUIDATED DAMAGES

20.1 Liquidated Ascertained Damages

If LTRSB delays or fails to complete the Project by the dates specified in Schedule C or any extended date agreed upon by the Parties and save where such delay or failure is due to any act or omission of SSM, its servants and/or agents, LTRSB shall pay liquidated ascertained damages ("LAD") to SSM for each day of the delay.

Subject to Clause 20.1, if due to LTRSB's sole act, failure, omission and/or negligence, LTRSB fails to deliver or perform any part of or all of the Works within the Contract Period, SSM shall have the right to impose LAD for each day of the delay until actual delivery or performance of the Works by LTRSB. The liquidated damages shall be calculated as follows: （BR+1.5%）x Contract Price x Number of Days Delayed/365.

BR (Base Rate) shall follow the current rate that is the lowest set amongst the banking and financial institutions.

The Parties hereby unconditionally and irrevocably acknowledge that the sum stipulated herein constitutes a reasonable compensation." (emphasis added). [46] Reading the phrase "until actual delivery or performance" in Clause 20.2(a), we are of the view that it defines the period during which LAD accrues; it does not mean that LAD only becomes payable upon actual delivery. Accordingly, the arguments on prematurity do not assist the Appellant. [47] We do, however, find merit in the Appellant's arguments in regard to LAD Claim 3 in the sum of RM499,368.99. The Appellant submits that there is no separate contractual basis for this claim and that the period claimed -1 April 2019 to 31 August 2019 - is identical to the period for LAD Claim 2, resulting in double recovery. [48] Clause 20.1(a) states that if the LTRSB delays or fails to complete the Project by, among others, any extended date agreed by the parties, LTRSB shall pay LAD to SSM each day for the delay calculated in accordance with the formula in clause 20.2 of the ERP Agreement. [49] Supplementary Agreement No. 4 extends the Project Completion Date in the ERP Agreement (referred to as the "Principal Agreement") to 31 August 2019: see clause 2.1(a) Clause 1.1. of the Supplementary Agreement No. 4 states that the said Agreement is supplemental to and is an integral part of the Principal Agreement. [50] Under clause 2.3(a) of the Supplementary Agreement No. 4, the parties agreed to a specific payment of LAD as part of granting the fourth extension of time. However, clause 2.3(a) does not invent a new penalty formula. Instead it explicitly tethers itself to the Principal Agreement, and relies on the same mathematical formula found in Clause 20.2(a) of the Principal Agreement. It states "By virtue of Clause 20 of the Principal Agreement, LTRSB shall pay LAD to SSM in accordance with Clause 20.2(a) of the Principal Agreement starting from $ 1^{st} $ April 2019 until $ 31^{st} $ August 2019 ("LAD amount"). [51] Clause 2.3(b) further requires LTRSB to pay this LAD amount within 14 days of receiving a letter of request from SSM. [52] LAD Claim 2 (RM670,205.74) was also calculated using the formula in Clause 2.2(a) of the Principal Agreement for the same period of 1 April 2019 to 31 August 2019. We refer to the relevant evidence in the Notes of Proceedings:

86.2 Cross-examination of DW-1: OK And then further to that your second claim is RM672,306. This is for the period between 01/04/2019 to 31/06/2019. The can be captured in paragraph 83, betul? ZAS Yes. OK OK. And this is according to you is as a result of a delay and agreement by, and the agreement between the parties captured in Supplementary Agreement No 4 dated 05/09/2019, betul? ZAS Yes. [53] We have perused the LHJ's grounds of judgment on this issue. It is clear that the LHJ failed to take into account that the period claimed under LAD Claim 3 being identical to the period for LAD Claim 2; a fact admitted by the Respondent's own witness, who confirmed that LAD Claim 2 covered the period from 1 April 2019 to 31 August 2019. By allowing LAD Claim 3 for the same period, we are of the view that the LHJ fell into error by permitting double recovery. [54] On the question of waiver in respect of LAD Claim 1, we have considered the LHJ's findings on this issue and do not find them to be plainly wrong. The LHJ arrived at his decision by taking into account the plain and obvious language of the letter dated 26 November 2018, which stipulates that SSM is entitled to impose LAD from the 3rd Extended Completion Date (i.e. from 1 April 2019 onwards) if the project is not completed by 31 March 2019. [55] We also address the Appellant's contention that the Respondent contributed to the delays, which was framed around five broad instances. We are mindful of the LHJ's findings of fact at paragraph 169 of the grounds of judgment. We agree that the burden was on the Appellant to prove that the Respondent caused or contributed to the delay, and as that burden was not discharged, it was not plainly wrong for the LHJ to arrive at his findings of fact on this point. [56] Based on the above, the Appellant succeeds in part on this issue. LAD Claim 3 in the sum of RM499,368.99 should not have been awarded by the High Court. [57] The awards of LAD Claim 1 in the sum of RM797,238.21 and LAD Claim 2 in the sum of RM670,205.74 are upheld. The total LAD award is accordingly reduced from RM1,966,812.94 to RM1,467,443.95. The Concurrent Recovery of Refund and LAD [58] We have considered the submissions of the parties on this point. [59] Based on our finding that the Respondent is not entitled to the refund as it did not elect Option 1 within the requisite period after issuing the Notice of Termination, we find that the LHJ was plainly wrong in allowing the Respondent to recover the refund. The Entitlement to Payment for Work Done [60] As regards the fifth ground of appeal, the Appellant contends that it is entitled to payment for three categories of work done: (A) IRSMI in the sum of RM507,680.00; (B) eBSK Solution Configuration in the sum of RM204,750.00; and (C) Pre-UAT in the sum of RM1,527,000.00. [61] The Respondent submits that the ERP Agreement is a fixed price, milestone-based contract and refers to Clause 14.2(a), which provides that the Respondent shall pay the Appellant in milestone payments in accordance with Schedule E. [62] It was submitted that the Appellant was only entitled to payment upon completing each corresponding milestone. [63] We have considered the LHJ's grounds of judgment from paragraphs 173 to 200, where his Lordship dealt with this issue at length. Based on the evidence, his Lordship was entitled to find that the Appellant was not entitled to these payments. Further, since we have concluded that the Respondent was entitled to terminate the ERP Agreement, the Appellant's claims that it had completed the Infrastructure Readiness and Standard Module Installation, eBSK Solution Configuration, and portions of the pre-UAT tasks signed off by the Respondent are rendered immaterial. [64] In the circumstances, we do not find any merit in the fifth ground of appeal. The Claim for Oracle Licence Fees [65] As regards the sixth ground of appeal, the Appellant claims RM17,633,549.19 for Oracle licence fees incurred in subscribing to Oracle software, relying on Clause 8.8 of the ERP Agreement (read together with Schedule G), under which the Appellant was to acquire and subscribe to the selected third-party software, namely the Oracle Software. [66] The Respondent submits that there was no obligation, express or otherwise, in the ERP Agreement obliging the Appellant to acquire the Oracle software licence fees on SSM's behalf. It was further submitted that the Appellant had incurred these fees on its own volition and the Respondent cannot be made liable for this alleged expenditure. Insofar as SSM's payment obligations are concerned, SSM is only required to make payment in accordance with Schedule E to the ERP Agreement. [67] The Respondent further submits that Clause 13.2.7 expressly provides that the Appellant shall bear all costs relating to third-party software licences, and Clause 14.2(a) provides that the Respondent shall pay the Appellant in milestone payments in accordance with Schedule E, which payments represent the total contract price. [68] The LHJ considered this issue and reached the following conclusions: [136] Clause 8.1 of the ERP Agreement sets out the Scope of Services to be provided by Liberty to SSM. This includes '...(d) to supply, deliver, install, commission of software for implementation of the SSM's Enterprise Resource Planning as specified in the Bill of Material including but not limited to Oracle Cloud Services'. [137] In consideration of Liberty performing its obligations under the ERP Agreement, SSM shall pay a total sum of RM29,800,000.00 to Liberty. This sum was subsequently increased to RM35,530,152.00. The payment was to be made in accordance with Schedule E of the ERP Agreement. This is stated in Clause 14.2 of the ERP Agreement. [138] In respect of the rights to software and the payment for the same, Clause 13 of the ERP Agreement stipulates thus:

1 The ownership, copyright and intellectual property rights of the Licensed Softwareshall remain with the owner or licensor of such Licensed Software. SSM shall have a non-exclusive, non-transferable right to use the Licensed Software for the duration of this Agreement, subject to payment of the Price in accordance with Schedule E." [69] Having read the relevant clauses above, we agree with the findings of the LHJ that the contractual scheme is clear i.e. the Appellant bears the cost and risk of procuring third-party software. [70] As regards the reliance on section 74 of the Contracts Act 1950, since we have already found that the termination was lawful and there was no breach by the Respondent, section 74 does not apply. The Appellant's own submissions acknowledge that its claim for the Oracle Fees as a recoverable "reliance loss" or wasted expenditure under section 74 of the Contracts Act 1950 depends on this Court finding that the Respondent's termination was unlawful (see para. 154.6 of the Appellant's written submission). The sixth ground of appeal is accordingly dismissed. The Acceptance of the Respondent's Expert Evidence [71] As regards the seventh ground of appeal, this ground relates to the LHJ's finding that the Appellant was in breach of Clause 6.2 of the ERP Agreement (read together with Clause 2.1(a) of Supplemental Agreement No. 4) for failing to achieve completion of the ERP System on or before the fourth and final extended completion date of 31 August 2019. In arriving at his decision, the LHJ accepted the unopposed expert evidence of DW5. The Appellant contends that the LHJ's findings were flawed in that he failed to take into account that DW5's opinion had been effectively challenged and undermined during cross-examination, when DW5 conceded that he was unable to formulate an expert-level root cause analysis of the particular delays. It was submitted that this effectively rendered the Expert Report valueless. [72] The Respondent submits that the burden was on the Appellant to substantiate its allegations of employer-caused delay. The Respondent's expert, Mr Stephen L Ditty, confirmed that there was insufficient documentation to construct a critical path analysis, but based on the documents available he was able to identify the events likely to have caused delays, which he attributed primarily to the Appellant's own decisions and actions. [73] It is important to note that the Appellant never filed a rebuttal expert report. [74] At paragraph [170] of the grounds of judgment, the LHJ stated that "on the other hand, DW5 has given his expert opinion on causes for the delays based on the available evidence before this Court and his opinion has not been challenged or opposed by counsel for Liberty at all. It is not suggested by Liberty that DW5's expert opinion is 'obviously lacking in defensibility'." [75] The LHJ subsequently referred to PB Malaysia Sdn Bhd v Samudra (M) Sdn Bhd [2009] 7 MLJ 681, which cited the passage from the Singapore Court of Appeal's decision in Saeng-Un Udom v Public Prosecutor [2001] 3 SLR 1 (per LP Thean JA) as follows: "... The court should not, when confronted with expert evidence which is unopposed and appears not to be obviously lacking in defensibility, reject it nevertheless and prefer to draw its own inferences. While the court is not obliged to accept expert evidence by reason only that it is unchallenged (Sek Kim Wah v PP [1987] SLR 107), if the court finds that the evidence is based on sound grounds and supported by the basic facts, it can do little else than to accept the evidence. In this case, it certainly cannot be said that Dr Lau's opinion was 'obviously lacking in defensibility'. In our opinion, his evidence was based on sound grounds and supported by the basic facts. In the face of such evidence, the judge, with respect, was not entitled to venture his own opinion on a matter which was clearly 'outside the learning of the court'. In our judgment, in this case, he was not entitled to reject Dr Lau's opinion and substitute it with one of his own." [76] We have considered the submissions of the parties and the principles laid down in Saeng-Un Udom (supra). We see no reason to interfere with the LHJ's decision to accept the evidence of DW5, particularly given that the burden was on the Appellant to show that the Respondent had contributed to the delay. [77] In the absence of any rebuttal evidence or substantive challenge, the LHJ was entitled to accept Mr Ditty's evidence. [78] The seventh ground of appeal is accordingly without merit. Conclusion [79] For all the above reasons, we allow the appeal in part and we make the following orders.:

The Order in paragraph 2(c) of the judgment of the High Court is varied. The sum of LAD to be paid by the Appellant to the Respondent is reduced from RM1,966,812.94 to RM1,467,443.95;

The Order in paragraph 2(b) of the judgment is set aside;

The Order in paragraph 2(d) of the judgment is varied to the following: Faedah pada kadar 5% setahun ke atas jumlah RM1,467,443.95 tersebut dari tarikh pemfailan Writ ini pada 28 November 2020 sehingga tarikh penyelesaian penuh dan muktamad. [80] The Declaration in paragraph 2(a) is affirmed. [81] Each party shall bear its own costs of this appeal and as for the costs in the High Court, the costs awarded by the High Court is varied from RM200,000 to RM50,000 to be given to the Respondent. Dated :10 Jun 2026 (ISMAIL BIN BRAHIM) JUDGE URT OF APPEAL, MALAYSIA Counsel for the Appellants

Robert Low

Goik Kenwayne

Foong Kar Yee

Karen Yong

Jessy Wan [Messrs Dennis Nik & Wong & Advocates & Solicitors] Counsel for the Respondents:

Chong Boon Leong

Bryan Wang Yung

Michelle Ng Li Wen

Abd. Azim bin Abd. Razak [Messrs Rahmat Lim & Partners]