Mahsurimas Sdn Bhd v Dorsett Regency Hotel (M) Sdn Bhd (WA-22C-16-02/2021)

Guest Room Fit-Out Works 7,279,889.00 2. Guest Room Loose Furniture including Sofa Bed 1,359,760.00 3. Guest Room Loose Furniture – Attic Stock 7,140.00 4. Corridor Fit-Out Works 1,044,330.00 5. Discount (-201,119.00) Total (RM) 9,490,000.00 [4] Under Clause 3 of the Contract, the Plaintiff’s scope of Works were as follows:- “3. Scope of Works MSB have to provide all labour, materials, equipment and machineries to construct and complete the fitting out works to entire satisfaction of DRM or his representative and / or the relevant Authorities as per mock up unit done on site. The scope of works shall include supply, delivery, installation the following items: a) Built in Furniture b) Loose Furniture c) Fitting Out Works d) Building Services Works” [5]

77.1 a declaration that the Defendant delayed handing over site possession to the Plaintiff and committed various acts of prevention and/or disruption, setting the time for completion of the Works at large whereby the Plaintiff's obligation was to complete the Works within a reasonable time;

77.2 a declaration that the Defendant's imposition of LAD on the Plaintiff is unlawful, exorbitant and/or without any basis as the date for completion of the Works were set at large in light of the various delays, breaches, disruptions and acts of prevention committed by the Defendant;

77.3 a declaration that the termination of the Contract by the Defendant on 27.3.2015 was unlawful and/or wrongful;

77.4 an order that the Defendant pay the Plaintiff the sum of RM650,991.83, being the outstanding sum for payment of the Plaintiffs claim for works done under the Contract;

77.5 General damages to be assessed by this

77.6 Alternatively, the sum of RM1,138,800.00 (or such amount deemed fit by this Honourable Court), on account of the loss of profit suffered by the Plaintiff as a result of the Defendant's unlawful termination;

77.7 an order for pre-judgment of interest at the rate of 5% per annum pursuant to Section 11 of the Civil Law Act 1956 for the sum of RM650,991.83 (or such amount deemed fit by this Honourable Court) from the date of unlawful termination i.e.

27.3.2015 to the date of judgment for outstanding payment due from the Defendant to the Plaintiff;

77.8 an order for pre-judgment interest at the rate of 5% per annum pursuant to Section 11 of the Civil Law Act 1956 for the sum of RM1,138 ,800.00 (or such amount deemed fit by this Honourable Court) from the date of unlawful termination i.e. 27.3.2015 to the date of judgment being the loss and profit suffered by the Plaintiff as a result of the Defendant's unlawful termination of the Plaintiff:

77.9 an order for interest at 5% per annum from the date of judgment for the sum of RM1,789,791.83 (or such amount deemed fit by this Honorable Court) until full realization of the judgment sum.

77.10 Costs of this action; and 77.11 Any order deemed appropriate and fit by this Honorable Court.” [11] The Defendant however denies the Plaintiff’s claims and in its Amended Defence and Counterclaim, the Defendant counterclaims the following reliefs against the Plaintiff: a. The sum of RM840,000.00 (RM21,000 x 40 days delay) being Liquidated Ascertained Damages (“LAD”) against the Plaintiff for the delayed completion of Phase 1 (26F & 27F) and Phase 2 (24F & 25F); b. Interest at 5% per annum from the date of Judgment for the sum of RM840,000.00 until full realization of the Judgment sum; c. Costs; and d. Any order deemed appropriate and fit by this Honourable Court. Analysis & Findings of the Court Issues [12] The parties were unable to come to an Agreed Issues to be Tried but in essence the core issues that emerged are as follows:- a. Who caused the delays in the Project and whether time for completion had been set at large; b. Whether there were delays in handing over of site possession and late delivery of Materials by the Defendant as well as delays affected due to third party causes i.e. Marble Damage Incident and delays as alleged by the Plaintiff; c. Whether there were any delays and disruptions caused due to additional works, variation orders and delays in confirmation and approval of variation orders from the Defendant’s holding company based in Hong Kong; d. Whether the alleged extensions of time granted by the Defendant were lawful and proper; e. Whether the Plaintiff was entitled to the outstanding sum of RM650,991.83 for work done and loss of profits of RM1,138,800 as claimed by the Plaintiff or RM547,556.54 as alleged by the Defendant? f. Whether the Defendant was entitled to impose LAD in the sum of RM840,000.00 on the Plaintiff; and g. Whether the defendant’s termination of the Contract, was valid or wrongful and/or unlawful based on the facts of this case [13] I will now deal with the facts and the issues before this Court. It was alleged by the Plaintiff and this Court has found that by an email dated 01.08.2014 from one Leslie Tong, the Defendant had notified the Plaintiff that the Works for Phase 1 (being the 26th Floor [26/F] & the 27th Floor [27/F]) had to be postponed due to overbooking of the Hotel and the commencement date for Phase 1 was revised to 15.08.2014. [14] From a minutes of meeting dated 25.8.2014, which was attended to by representatives from both sides as well as representatives of the various consultants to the Project, it was recorded that on 15.8.2014, the Defendant was instructed to take over site possession for one (1) floor i.e. 26/F with completion on 30.9.2014 and that for the 27/F, the Defendant informed the Plaintiff that 27/F will start to be mobilized on 25.8.2014 and completion on 10.10.2014. [15] It was alleged by the Plaintiff that for Phase 2, the Defendant had failed to handover full site possession to the Plaintiff consisting of four

floors i.e. 22/F – 25/F. I have observed from the facts at trial, which can be seen at an email from the Defendant to inter alia the Plaintiff dated 12.11.2014 in Enclosure 21 i.e Bundle C, Page 384, and found that at that time, only two (2) floors for Phase two (2) were handed over to the Plaintiff on the 10.11.2014 i.e. 25/F & 24/F. [16] It was further alleged by the Plaintiff that upon completion of part of Phase 2 (i.e. 24/F and 25/F), the Defendant did not handover over the remaining floors for Phase 2 (i.e. 22/F and 23/F), as well as Phases 3 – 6. [17] I have also since found from the documents before me and produced at trial, as seen in enclosure 20 i.e Bundle B, Item 1.1. Page 17, 18, 19, 20, 21, 22, 23, 25 – 35 which consist of various minutes of weekly progress meeting dated 18.8.2014, 25.8.2014,

2.9.2014, 8.9.2014, 15.9.2014, 22.9.2014, 29.4.2014, 9.10.2014,

20.10.2014, 27.10.2014, 3.11.2014, 10.11.2014 respectively, that the Defendant had from time to time instructed the Plaintiff to carry out several changes and/or revisions to the design and specifications. [18] Such changes to the design and specifications during the execution of the Works would in my decision amount to a variation to the Works ("VO"). It is also to be noted that based on the minutes referred to above, the parties hereto had in fact stated that such works were referred to as variation orders i.e VO’s. Variation works are works that the quantity and nature of any such variation must be outside the scope of the contracted works, see Law And Practice of Construction Law in Malaysia, by Lim Chong Fong and a team of expert contributors, 2021 at page 17 para 7.028. The authors of this text had also referred to Dama Design & Build Sdn Bhd v Universiti Pendidikan Sultan Idris (UPSI) [2017] 1 LNS 638, where Justice Mary Lim (as she was then) had opined as follows: “[47] Clauses 27.1(a) and (b) deal with the matter of 'variations' or change. But, it is not just any change. To be a variation within the agreed terms of the contract, the change has to involve a change either in the contract documents which makes it necessary to alter or modify the design, quality or quantity of the contract works [clause 27.1(a)]; or a change in the obligations or restrictions imposed by the PD on certain matters [clause 27.1(b)].” [19] Although the Contract before me in this matter had not specified any clauses with regards variations, I am still inclined to accept that the additions or alterations in the Works, as mentioned above and which were not envisioned in the contracted works, amounts to a surplus of works and are thus variation works. Alleged Revised Dates for Phase 1, 26 F & 27F [20] I have since, based on the Defendant’s submissions, closely looked at the chronology of events for the alleged revised dates of Phase 1, 26F & 27F, and observe that: a. by an email dated 1.8.2014, where the Defendant informed the Plaintiff re the revised commencement date for Phase 1 (from 11.8.2014) to 15.8.2014 and the new completion date (from 24.9.2014) to 26.9.2014, this can be found at enclosure 20 i.e Bundle B at page 140. b. In the Minutes of Meeting dated 25.8.2014 at enclosure 20 Bundle B page 18, the completion date for Phase 1 was further revised to 30.9.2014. c. Based on the same Minutes of Meeting at enclosure 20 Bundle B; page 18, 27F was to be handed-over on 25.8.2014 and the revised completion date was set at 10.10.2014 and the Defendant also requested the Plaintiff to submit its revised work programme for Phase

d. Vide an email dated 4.8.2014, the Plaintiff duly submitted the revised work programme for Phase 1, which can be seen at enclosure 20 Bundle B pages. 145 & 148, showing a completion date on 28.9.2014. e. The Plaintiff then commenced the works at Phase 1 upon taking over the site [21] From the above documentary evidence, I agree with learned counsel for the Defendant and find that for Phase 1, 26 F & 27F:-

none of the contemporaneous documents and minutes of meeting suggests that the Plaintiff would not meet the revised completion dates due to the changes in site possession dates for Phase 1.

(ii) the Plaintiff’s own revised work programme evidenced that it was able to complete the works for 26F within the agreed revised completion dates. [22] I will however deal with this issue later and the legal effect it has on the Contract. Phase 2, 24F & 25F [23] I will now address the evidence with regards the revised dates for Phase 2, 24F & 25F. I find firstly that by an email dated 12.11.2014, the Defendant had recorded the site possession for Phase 2, 24F & 25F had commenced on 10.11.2014, and that the revised completion date shall be 24.12.2014, with the agreed work duration should be 45 days for these 2 floors. This can be found at Bundle C page 384 which is as follows: [24] In another email dated 12.11.2014, the Plaintiff had confirmed that the said revised dates of completion of 24.12.2014 for Phase 2, 24F & 25F and the work duration of 45 days (Bundle C; pp. 389-390) and enclosed its revised work programme for 24F and 25F, with a completion date on 24.12.2014. Evidence of this can be found at a. Bundle C; page 390 b. By way of an email dated 18.11.2014, the Defendant wrote to confirm the Plaintiff’s work programme at 25F and 24f with commencement date of 10.11.2014 and completion date on 24.12.2014 (45 days of work duration) (Bundle C; p. 389). c. have also noted that the Minutes of Meeting dated 24.11.2014 recording the revised commencement and completion dates for these 2 floors (Bundle B; p 39): [25] It was again argued by the Defendant that none of the contemporaneous documents suggests that the Plaintiff had a problem with meeting with the revised completion dates due to the changes in site possession dates for phase 2 or with the 45 day duration and did not complain with regards the handing over of the 2 floors. [26] I do find from the evidence that the Plaintiff’s own revised work programme prima facies shows that it was able to complete the works for 24F and 25F within the agreed revised completion date. I will elaborate on the effect of this further down in my grounds herein. Were There Delays In The Project [27] As referred to in the beginning of my grounds herein, Clause 4 of the Contract, contains the commencement and completion dates for each phase of the Works. [28] By the words in Clause 13 of the Contract that “The category of materials but not limited to following items will be supplied by the Employer for your installation…”, I find that the said clause had expressly provided that the Defendant had the obligation to supply specified materials (referred therein) to the Plaintiff to execute the Works. [29] Thus, from my reading of the Contract as a whole, I find that this Clause 13 exists so that the materials supplied by the Defendant were to be ready prior to the commencement of each phase of the Works which were to be installed by the Plaintiff. Any other interpretation would in my view render clause 4 of the Contract as being impractical and non sensical. [30] In coming to my decision on whether there was a delay, I have also considered Clause 6 of the Contract which provides for the Plaintiff’s obligation to submit the work programme incorporating the schedule of major material and/or equipment delivery and to adjust the Work programme as and when necessary to suit the overall Work programme. The said clause provides [31] I have also taken note of Clause 16(f) of the Contract which provides that the Plaintiff shall plan the sequence of the works taking into all possibilities and site condition and to complete the works in accordance with the work programme and the Plaintiff shall work overtime or provide additional workers to avoid delay in the Works. The said clause reads: [32] The Defendant is therefore based on the Contract i.e the Letter of Acceptance dated 18.7.2014,

24.1 obliged to hand over the phase(s) to the Plaintiff in accordance with the said schedule;

24.2 deliver the Materials as per Clause 13 of the Contract to the Site prior to commencement of each Phase of the Works [33] Based on the Contract, the Plaintiff on the other hand was

25.1 obligated to submit the work programme incorporating the schedule of major material and/or equipment delivery and to adjust the Work programme as and when necessary to suit the overall Work programme;

25.2 plan the sequence of the works taking into all possibilities and site condition and to complete the works in accordance with the work programme;

25.3 work overtime or provide additional workers to avoid delay in the Works. [34] The Defendant submits that the Parties had by conduct agreed to a different handing-over dates, commencement dates and the work phasing as opposed to what had been provided in Clause 4, and that the delay in the handing over of site possession was due to the delay in material delivery and over-booking of hotel rooms. [35] From the evaluation of the documentary evidence before this Court I hold that Clause 4 of the Contract, which contains the commencement and completion dates for each phase of the Works was varied by the agreement of the parties with regards their acceptance of the different handing-over dates, commencement dates and the work phasing. [36] I however find from the evidence and in particular the testimonies of DW1, Tam Cheow Har also known as Chelsia Tam and DW2 Tang Wai Keung also known as Vincent Tang which was established in cross-examination, that the Defendant agreed and understood that the Defendant’s primary obligations was to hand over the site by Phases, and not by floors. [37] I further find that the hand over dates was disregarded by the Defendant as per the admission by the Defendant’s Witnesses, DW- 1 and DW-2 during cross examination. [38] Thus, the handover dates were changed by the Defendant albeit without prior consultation with the Plaintiff but with the Plaintiff eventually agreeing to the same. [39] I further observed and hold that the Defendant had repeatedly revised or moved the commencement dates, the completion dates and/or the handover dates due to concern about their financial revenue from the Hotel bookings. Alleged Delays In Handing Over Of Site Possession And Late Delivery Of Materials By The Defendant [40] For the record, I further find that the Plaintiff’s Works for Phase 1 and Phase 2 were also delayed, prevented and/or disrupted by the Defendant due to the supply of materials by the Defendant not being done on a timely basis and as such tantamount to an act of prevention by the Defendant. This would in my view be a breach of both Clauses 4 & 13 of the Contract which I have averred to earlier, and that this would consequently have an effect on the Plaintiff’s own revised work programme which prima facie showed that the Plaintiff was able to complete the works for 24F and 25F within the agreed revised completion date. [41] Such evidence as to the delay in supply of materials can be found when the Defendant’s Project Manager i.e. Leslie Tong repeatedly referred and/or admitted to the delays caused by the late arrival of the Materials, and in the contemporaneous documents found at the weekly meetings as per the following records:-

The WPM No. 4 dated 8.9.2014, where Leslie Tong anticipated the delivery of wall & floor tiles to DRKL on 9.9.2014;

(ii) WPM No. 5 dated 15.9.2014, the Plaintiff informed the Defendant that there were disruptions to the sequence of Works, due to late delivery of the Materials and agreed to submit a revised work programme by 15.9.2014;

(iii) WPM No. 5 dated 15.9.2014, Leslie Tong reported a further delay to the delivery of wall & floor tiles to DRKL on 12.9.2014 – 14.9.2014;

(iv) WPM No. 6 dated 22.9.2014, Leslie Tong informed that the 1st Shipment for floor tiles will be expected to be delivered to DRKL on 17.9.2014 @ 9pm and wall tiles on 18.9.2014 & 19.9.2014;

WPM No. 7 dated 29.9.2014, Leslie Tong reported further delays to the delivery of floor tiles, due to custom clearance issues and was unable to provide a date for delivery of floor tiles;

(vi) in Item 2.1 of WPM No. 7 dated 29.09.2014, Leslie Tong requested the Plaintiff to resubmit the revised works programme and the EOT in flows charts for 26/F due to the delays of delivery of the carpet, floor, tile, fabrics and sanitary fittings and in Item 2.2 that the floor tiles were still pending from the actual delivery date from the Supplier;

(vii) in Item 3.1 WPM No. 8 dated 08.10.2014, Leslie Tong informed that the 1st shipment of floor tiles was withheld by Malaysian Customs, and the Defendant's purchasing department had initiated procurement from a local tile supplier;

(viii) Items 3.1, 3.2, and 3.3 of WPM No. 9, dated 20.10.2014, the floor tiles were only delivered on 13.10.2014, but that the LED lights for guest rooms, fabric, and vinyl were not yet delivered, as well that the 1st Shipment of floor tiles was still being withheld by customs, and there was insufficient storage space available;

(ix) Item 2.1 of WPM No. 10 dated 27.10.2014, Leslie Tong acknowledged the delays were attributed by the Defendant due to the delivery of the carpet, floor tile, fabrics, and sanitary fittings and requested the Plaintiff to submit a revised work programme and EOT in a flow chart;

Item 2.1 of WPM No. 11 dated 03.11.2014, Leslie Tong advised the Plaintiff to resubmit EOT in flow charts beyond 31.10.2014 due to outstanding materials by the Defendant;

(xi) Item 1.6 of WPM No. 12 dated 10.11.2014, Leslie Tong admitted the delays caused by the Defendant’s late delivery of Materials and promised to solve the issue with HK procurement by the following day;

(xii) Finally, in Item 3.1 of WPM No. 14 dated 24.11.2014, Leslie Tong, confirmed that all materials had been fully delivered from Hong Kong and China, but there was still the pending delivery of the decoration mirror for the guestroom, which was awaiting clearance and the vinyl for the corridor console table was in transit for delivery. [42] In the Amended Reply to the Defence it was pleaded at paragraph 10 therein the alleged actual dates of arrival of the Materials and the number of days delay which can be found in Appendix A of the said pleading and of which is alleged is as follows:- MATERIAL DELIVERY SCHEDULE No Materials Delivery dates 26th Floor No. of Delays 27th Floor No. of Delays 24th & 25th No. of Delays

15.8.2014 25.8.14 10.11.14 1.

Long Bath & Drainage Cover 23.09.2014 39 29

Wall Paper 24.09.2014 40 30

Carpet Underlay 25.09.2014 41 31

Fabric & Curtain 25.09.2014 41 31

Wall Paper 30.09.2014 46 36

LED Light for Corridor 01.10.2014 47 37

Carpet 08.10.2014 54 44

Decorative Lights 08.10.2014 54 44

Floor Tiles 13.10.2014 59 49

Switches (not supplied)

13.10.2014 59 49

LED Lights for Guest Room 14.10.2014 65 55

Fabric and Vinyl 15.10.2014 61 51

Bathroom Fittings 20.10.2014 66 56

Fabric and Vinyl 24.10.2014 70 60

Cosmetic Mirror 25.10.2014 71 61

Decorative Mirror 26.10.2014 72 62

31.10.2014 Intended Completion Date for 26 Floor (Phase 1 split)

Fabric 03.11.2014 80 70 [43] The above schedule was then explained by PW-1, Victor Jagadeesan a/l S Joseph, a director and shareholder of the Plaintiff, in his Witness Statement at Q&A 23 and 24 at the trial where PW 1 testified that the Materials were delivered on a piecemeal basis and that the Plaintiff was at all material times uncertain when the Material would be delivered and/or provided to them and that even the Defendant was uncertain as to when the Materials would be delivered to the Hotel. PW1 then urged the Court to refer to the relevant correspondences.

Fabric 3 Seater Sofa Bed 03.11.2014 80 70

Fabric Room 07

Fabric Room 03

Vinyl for Door Bell Panel 03.11.2014 80 70

Decoration Mirror for Corridor 04.11.2014 81 71

07.11.2014 Intended Completion Date for 27 Floor (Phase 1 split)

Curtain Rail Hook Curve Track 11.11.2014 88 78 1

New angle valve 11.11.2014 88 78 1

Bath Door Locks 11.11.2014 88 78 1

Hinge, Shower Rail 14.11.2014 91 81 4 28.

Decoration Mirror for Guest

Room 01.12.2014 108 98 21 Rain Shower mixer 19.12.2014 39

08.01.2015 Intended Completion Date for 24 & 25 Floor (Partial Phase 2)

Bathroom Door Lock Set 16.01.2015 154 144 67

Carpet Lift Landing 18.02.2015 187 177 [44] It was also submitted by the Plaintiff that they had encountered severe challenges posed by the Defendant, in carrying out the works of Phase 1 and part of Phase 2 as PW-1 in his testimony at trial had explained that in order to for the Plaintiff to carry out coring of the bathroom floor for plumbing works, the entire floor below had to be vacated but the Defendant had split handover of floors resulting in their inability to carry out coring of bathroom floor for plumbing works (Coring Issue) i.e the Defendant had provided the hotel rooms on piecemeal basis to the Plaintiff. I will deal with this alleged issue further on the topic of delay analysis. EOT’s [45] It was however contended by the Defendant that Clause 6 of the Contract obliged the Plaintiff to submit updated work programmes from time to time after taking into account any changes in the material delivery schedule and any changes in the overall work programme. It was further contended by the Defendant that by virtue of this obligation, the Plaintiff was impliedly obliged to submit an EOT application through the revised work programme when there is any changes in the overall work programme. [46] The Defendant goes further to submit that in fact, both parties had exercised these contractual rights and obligations since the Plaintiff had applied for numerous EOT and the Defendant had correspondingly granted the EOT. [47] On the issue of EOT, I have indicated in my grounds herein below that I have found there is no ‘extension of time clause’ in the Contract and as such I hold that the Defendant has no contractual right to grant an extension of time and as such time becomes at large. [48] In any event, if I am wrong on the issue of the EOT’s, I find that the said EOT’s granted by the Defendant were arbitrary, unfair and without due process or proper assessment and was made without looking into the issue of the late delivery of Materials, which was the obligation of the Defendant to supply. Evidence of this has been satisfactorily proven to me and can be found at

WPM No. 11 dated 3.11.2014 [See Bundle B, Page 32] “2.1 MAH has resubmit the revised works programme and the EOT in flows charts for 26/F was applying until 31/10/14 & 27/F was until 7/11/14, However, Due to materials delivered still have the outstanding’s for fabric and vinyl, LT advice MAH to submit 2nd EOT apply based on latest materials delaying timeline.”; and

(ii) WPM No. 12 dated 10.11.2014 [See Bundle B, Page 35] “2.1 MAH has resubmit the revised works programme and the EOT in flows charts for 26/F was applying until 31/10/14 & 27/F was until 7/11/14, However, Due to materials delivered still have the outstanding’s for fabric and vinyl, LT advice MAH to submit 2nd EOT apply based on latest materials delaying timeline. [49] I have also observed that the assessment of the critical path of the works to determine the EOT’s was not independently assessed but determined by DW-2, Tang Wai Keung also known as Vincent Tang, an employee of the Defendant and Senior Quantity Surveying Manage for the Defendant’s group of companies, who was based in Hong Kong. [50] I further observed that DW2 was not at site on most occasions since he was based in Hong Kong, and find that DW-2 would not be able to assess the actual progress of works at site nor the causes of the delay properly. This would in my findings have an adverse effect on the EOT’s which was given by the Defendant to the Plaintiff and cause the assessment of the said EOT’s to have a lack of fairness as well as not being a proper reflection of the actual EOT, if any, which should be given. Authority for this can be found at Gasing Heights Sdn Bhd v Aloyah Bte Abd Rahman & Ors [2000] 2 CLJ 664; [2000] 1 MLJ 621; [2000] 2 CLJ 664. [51] In Gasing Heights Sdn Bhd (supra), the Court therein had held: “In assessing EOT, the assessor (architects and arbitrators alike) must take into account the issue of 'concurrent delays'. In Law and Practice of Construction Contract Claims (2nd Ed) by Chow Kok Fong, the writer said: 'Concurrent delays' is an expression which describes a situation where there are two or more causes or delay operating at a particular point of time and at least one of these causes is outside the contractor's control. Consider the situation where a contractor, as a consequence of his own shortcomings, fail to keep with the progress of the works with the result that he could not begin an important activity on the start date stipulated in the construction programme. However, because the employer's engineers had delayed in supplying the necessary drawings and instructions for the same activity at the scheduled date, the contractor would not have been able to commence work on the same activity even if he had been ready. The situation is complicated because it is difficult, on the usual principles, to determine firstly the precise chain of causation exerted by these events on the overall contract programme and secondly the settlement of questions relating to liquidated damages and extensions of time. Abrahamson suggested that in such a situation, the important consideration is whether the contractor had been held up by 'delay' outside his control. The employer's act of prevention is thus inconsequential if it does not constitute the critical cause of delay, ie the delay would still have occurred even if there had been no act of prevention. This approach has the attraction of simplicity and, perhaps more importantly, consistency in the final result. Abrahamson observed: ['This] conclusion does have the perhaps unfair result that the employer may be entitled to recover liquidated damages from the contractor for the delayed completion even though the employer was not in a position to allow the contractor to complete earlier, but any other principle could lead to much confusion in substituting for an examination of whether the contractor actually was delayed by a cause beyond his control, a wide ranging examination into all events that could have caused delay had the contractor's progress been different.' The principle of 'concurrent delays' requires the assessor of EOT to consider the actual progress of works in situ at the relevant time when assessing the actual or estimated delay caused by the 'relocation of the TNB substation'” [52] To conclude on this issue, this Court finds that the EOT’s applied by the Plaintiff and granted by the Defendant are not within the terms of the Contract for the same reasons which I have held in my grounds herein below under the heading of “Whether Time For Completion Had Been Set At Large” i.e that since there is no ‘extension of time clause’ in the Contract, time accordingly becomes at large. I will deal with it later in detail together with my reasonings at the said portion of my written grounds. Whether Time For Completion Had Been Set At Large [53] Thus, the question which remains to be answered herein is whether by the parties aforesaid conduct of the different handing-over dates, commencement dates and the work phasing amounts to a delayed handover as per Contract and thus time was to be at large. [54] I have looked at the Supreme Court case of Thamesa Designs Sdn Bhd v Kuching Hotel Hotels Sdn Bhd [1993] 3 MLJ 25 which was referred to me by counsel for the Plaintiff and have noted that in that case it was not disputed that under the said contract, the date for completion of the works was 18 April 1985. Yet in that case, by such date, most floors of the hotel were still not handed over to the judgment debtor. It was also common ground that there is no provision in the said contract in that case, particularly clauses 21 and 23 for any extension of time to complete the works on account of delay in handing-over of the site. In fact, the evidence of the design consultant confirmed that there was no extension of time given for the late handing-over and agreed that all the areas were handed over late. [55] With respect, although I do find that the Plaintiff had in fact accepted the revised different handing-over dates, commencement dates and the work phasing, I also find from the facts before me that the Defendant has by its act or omission prevented the Plaintiff from complying with Clause 4 of the Contract by the specified dates therein. [56] Further to this I have also found, as mentioned earlier after reading the Contract, that there is no extension of time clause in the Contract. [57] In this regard, I have read and considered 2 separate and differing decisions in the High Court with regards the issue of the lack of an extension of time clause in the Contract and its effect thereto. The said cases being RC Asia Engineering Sdn Bhd v Lion Pacific Sdn Bhd [2021] MLJU 1796 and Era Kemuncak Jaya (M) Sdn Bhd V Tenaga Switchgear Sdn Bhd [2021] MLJU 1855. [58] With respect I am inclined to follow RC Asia Engineering Sdn Bhd (supra) as this case was premised on the decision of Sim Chio Huat v Wong Ted Fui [1983] 1 MLJ 151 in the Federal Court, where Salleh Abas FJ (later LP) held as follows:- “Amongst the conclusions reached by the learned author after considering these cases is that in cases where an agreement contains no clause for extension of time for completion, the acts of prevention by the employer whether authorised by the contract or whether in breach of it or whether the prevention is a cause of part or of the whole of the delay invalidate the liquidated damages clause because by such acts in the words of Parke B. in Holme v. Guppy (supra) and Lord Denning M.R. in Trollope and Colls ( supra) “the time becomes at large”. Consequently, there is no date from which damages could run and therefore no damages could be claimed. In the present case, not only did the agreement contain no extension clause it also contained no clause authorising extra work. This extra work must at least have caused part of the delay though it might not have caused the whole delay. Applying the principle stated above, we are of the opinion that clauses 20 and 21 became invalidated and that no damages should have been allowed under them.” [59] This was followed, and recognised by YA Lim Chong Fong in RC Asia Engineering Sdn Bhd (supra), that the Court of Appeal in Yuk Tung Construction Sdn Bhd v Daya CMT Sdn Bhd [2020] 1 LNS 1314, Harminder Singh Dhaliwal JCA (now FCJ) had also held as follows: “[55] It was nevertheless argued that these events resulted in an act of prevention which renders time at large or what is commonly known as the “prevention principle”. The “prevention principle” is really one borne out by common sense and fair play. In circumstances where the delay in completion is caused partly by the employer, it would be wrong to insist that the contractor be held to the completion date. In other words, the contractor should not be made liable where he is prevented from performing his contract due to the default of the employer (see Multiplex Constructions (UK) Ltd v. Honeywell Control Systems Ltd [2007] EWHC 447 (TCC) (“Multiplex”)). [56] If one considers the historical context, it was the “prevention principle” which led to the incorporation of extension of time clauses in construction contracts (see North Midland Building Ltd v. Cyden Homes Ltd [2018] EWCA Civ 1744 (“Cyden Homes”)). The UK Court of Appeal in Cyden Homes noted that such clauses were not “designed to provide the contractor for excuses for delay but rather to protect the employer by retaining their right both to a fixed (albeit extended) completion date and to deduct liquidated damages for any delay beyond that extended completion date” (per Coulson LJ). [57] This was so as the extension of time clauses would already include the “acts of prevention” to extend time so that liquidated damages could only be claimed for the period after the extended completion date. So, as seen in Multiplex, supra, acts of prevention by an employer do not set time at large if the contract provides for extension of time in respect of those events. It follows, therefore, that a lot depends on what particular acts of prevention are stipulated in the contract which would in turn generate consideration of any entitlement to extension of time.” [60] I am therefore based on the high authorities quoted above, bound by the decisions of both the Federal Court decision in Sim Chio Huat (supra) and the Court of Appeal decision in Yuk Tung Construction Sdn Bhd (supra). [61] I subsequently therefore hold in the matter before me that the doctrine of estoppel is not applicable against the Plaintiff as contended by learned counsel for the Defendant, and that the Plaintiff is not prevented from asserting any contention by the parties respective conduct at the material time, despite its apparent acceptance of the revised completion dates for the aforesaid phases. [62] As this court has found that time is at large, I hold that the obligation of the Plaintiff to complete by the specified date in Clause 4 of the Contract is now replaced by an implied obligation to complete within a reasonable time as per the Apex Court’s decision in Sim Chio Huat (supra). [63] The Defendant has submitted that the question of what constitutes a reasonable time has to be determined objectively in relation to the circumstances which existed at the time when the construction works were performed, but excluding any circumstances of delay which were under the control of or caused by the Plaintiff as the contractor. [64] To the above, I take guidance from Infraprima Construction Sdn Bhd v Budaya Restu Sdn Bhd [2021] MLJU 1255 where Lim Ching Fong J (as he then was) held where there is now only an implied obligation to complete within a reasonable time, the position of the Defendant here would be, and I quote Justice Lim and adopt as follows: “The employer/main contractor can accordingly only recover general damages in the form of special damages duly proved for late completion beyond the reasonable time to complete the works from the main contractor/sub-contractor. …. Reasonable time is a question of fact; see Hick v Raymond & Reid (1893) A.C. 22 HL. [77] For purposes of the Defendant’s counterclaim for general damages for late completion, it is necessary to ascertain when the Plaintiff actually completed the amended Works as well as what is the reasonable time to do so. The burden of proof is on the Defendant.” [65] To surmise I hold that the position of the Defendant would in the circumstances now be

64.1 that the Defendant is only able to recover general damages in the form of special damages duly proved for late completion beyond the reasonable time to complete the works from the main contractor/sub-contractor;

64.2 what is reasonable time is a question of fact with the burden of proof on the Defendant. Delay Analysis [66] This Court will now have to consider the delay analysis to determine the criticality and efficacy of the alleged causative delay events which actually delayed , if any, the completion of the project works vis a vis other causative events based on the decision in Budaya Restu Sdn Bhd v Kerajaan Malaysia [2022] MLJU 939 . There the Court also further held that the failure by the Plaintiff to do this delay analysis is fatal. [67] In short, the delay analysis should specify how the relevant events caused specific periods of delay, when the delays starts and finish and how the relevant events caused a delay to the overall completion date. [68] In the case before me, no delay analysis was provided to the Court by the Plaintiff. It was however argued by the Plaintiff amongst others that Budaya Restu Sdn Bhd (supra) was to be read in the context of the facts therein and submitted that the Plaintiff had discharged its burden of proof to establish that there were delays by the Defendant’s late delivery of Materials and that it was not possible for the Plaintiff to prepare a comprehensive application of EOT as there was no material delivery schedule and no EOT clause/mechanism in the Contract. [69] A perusal of Budaya Restu Sdn Bhd (supra) shows that the contract therein was based on clause 43 of the PWD 203A standard form of contract where an extension of time clause existed wherein it was argued in that case by the Plaintiff that the Defendant’s superintending officer failed to grant a fair and reasonable extension of time to the Plaintiff to complete the Project works after which the Court therein then held: “I find that the Plaintiff has failed to undertake and furnish a systematic and comprehensive delay analysis that is often undertaken by expert witnesses to demonstrate its entitlement to extension of time which is normally done based on the “as-planned impacted” or “collapsed as-built” methodology, if not the ideal “window/snapshot” methodology. Simply put, a delay analysis will constitute the logical analysis depending on the contract to be dissected and the nature of the evidence available and also the nature of the delay that have occurred and their causes (Keith Pickavance – Delay and Disruption in Construction Contracts (1997)). This delay analysis is primarily needed to satisfy the criticality and efficacy of the alleged causative delay events actually delayed the completion of the Project works vis a vis other causative events particularly those from the Plaintiff’s own work inadequacies. Failure by the Plaintiff to do this delay analysis is fatal.” [70] I therefore hold that in the case before me, as this Court has found that there is no EOT clause in the Contract and an absence of a material delivery schedule, it was not possible for the Plaintiff to prepare a comprehensive application of EOT. [71] Be that as it may, I however do hold that a delay analysis by an expert witnesses to demonstrate the Plaintiff’s entitlement to extension of time is still required to enable, and here I respectfully borrow the words of Justice Lim Chong Fong in Budaya Restu Sdn Bhd (supra), a ‘logical analysis depending on the contract to be dissected and the nature of the evidence available and also the nature of the delay that have occurred and their causes (Keith Pickavance – Delay and Disruption in Construction Contracts (1997)).’ [72] Based on the direction of the previous judge handling the matter, Y.A. Datuk Lim Chong Foong on 16.8.2021, and pursuant to Order 40 of the Rules of Court 2012, a Court Appointed Expert, Nicholas Ian Powell (CW-1) was jointly appointed by the parties to aid and assist this Court and address the issue of delays. [73] The Defendant has contended that the report of CW-1 does not assist this Court to determine whether time had been set at large for this Contract as CW -1 did not look at the issue of concurrency at all due to his terms of reference which was agreed by both sets of lawyers and that concurrency arises where an Employer’s Delay to Completion and a Contractor’s Delay to Completion are happening at the same time and it is pertinent to determine which event was the effective cause of delay, which the Defendants submit is one of the issues to be tried in the present case. [74] It was however argued by learned counsel for the Plaintiff that as the agreed terms of reference for CW-1 were very specific i.e to provide an expert opinion on the causation for the delay of the Works and the reasonable time to complete each phase of the Works, the issue of concurrency should now not be raised and introduce new terms by enlarging CW-1’s scope of works. [75] I have been referred by counsel for the Plaintiff to the fact that CW-1 has testified that the issue of concurrency is not relevant to the facts of the present case and have observed that at the trial, CW-1 had stated that:

it was not his job to look at whether the delay is compensable but only to look at what’s the reasonable time to complete the works

(ii) the issue of concurrency was not relevant in terms of the answer he was required to give i.e they would provide no useful information to process to answer the question that he was asked to answer

(iii) the issue of concurrency goes to the issue of compensability of the delay as opposed to whether or not time for that delay should be given [76] After carefully considering the arguments of the respective parties counsels on this issue of concurrency, I am inclined to agree with the Plaintiff that CW-1’s agreed terms of reference was only to provide an expert opinion on the causation for the delay of the Works and the reasonable time to complete each phase of the Works and as such the issue of concurrency , is with respect, not to be looked at by CW- 1 and was not relevant herein as concurrency only goes towards the issue of compensability. [77] Thus, I hold that CW-1’s report, as the Court Appointed Expert report is the best and only available evidence to determine, as well as to aid and assist this Court on the issue of delays and in particular to demonstrate the Plaintiff’s entitlement to such extension of time, if any, and the Defendant’s right to general damages after such time if any. [78] In CW-1’s report, CW-1 as the Court Appointed Expert had concluded based on his views and findings, which was from his chosen delay methodology of a hybrid of impacted (wet work/tiling) and Dot-In (fabric /vinyl etc) as follows:- Delay to Phase 1 Works (2 Floors)

I assess that the key delay ‘driver’ is the late provision of the material to be provided by the Defendant that the Plaintiff will incorporate into the works. The key issues being: The provision of the tiles on 13 October 2014 (this date is disputed by the Defendant) – driving a delay entitlement to the 14 November 2014, then; The provision of vinyl and fabric for loose and built-in furniture and fixings on 24 October 2014 and 3 November 2014 (again, these dates are disputed by the Defendant) – driving a delay entitlement to 24 November 2014, then; The provision of the guest room mirror and vinyl for the console table on 1 December 2014 will ‘fill-in’ the period from that date to the Defendant’s position that floor 27 completed on 4 December 2014.” [79] Thus, it is CW-1’s conclusions in his said report to the Court, that the late delivery of Materials was the “key delay driver” in determining that the Plaintiff shall be entitled to a reasonable time for completion for 26/F & 27/F. [80] I find after reading CW-1’s report that his conclusion was made after CW-1 had explained inter alia

the sequencing of works involved in laying floor tiles, which is part of the ‘wet works’, as follows “Tiles, no you can’t do because you need to rip out what’s there firstly, waterproof the bathroom, put and then wait for your tiles to get there, and then lay the tiles down. So, the tiles are really important. You can’t do anything else, well you shouldn’t do anything else until your tiles are down. Because if you do things before the tiles are down, and then the tiles come in, you’re going to mess things up. So, in a best practice, you should get all your wet works done first before your dry trades come in.”

that for the wardrobes, which was part of the dry trade, CW-1 testified that “You could be putting your wardrobes in. The fact that your program says you have to put the vinyl in and then wardrobes, that doesn’t matter. That can all go on, that’s still traffic for short fit-out. You can have, as long as it’s a dry trade, you can sequence it. Because, yes, so you’ve got 10 rooms on the corridor, so you can have 4 rooms doing something and 4 rooms doing something else, you can sequence that. So, your dry trades are not a problem,..” [81] I accept that CW1’s conclusions are logical and have a basis as aforementioned in his explanation that tiles have to be done first before any other works can begin as all the wet works have to be done before the dry trades come in as to do so will ‘mess things up’ and that for dry trades , it does not matter whether the the program says you have to put the vinyl in and then wardrobes, as you can sequence it, for example where you have 10 rooms on the corridor, the Plaintiff can work on 4 rooms doing something and 4 rooms doing something else. [82] In the circumstances I do hold that the Plaintiff is entitled for Phase 1 (floor 26 and 27) to the following:-

83.1 an extension or an entitlement to 14.11.2014 for the tile works 83.2 for the vinyl and fabric works for loose and built in furniture and fixings an extension or an entitlement to 24.11.2014 39 82.3 for the guest room mirror and vinyl for the console table to 4.12.2014. [83] I am however from the records before me unable to determine when floors 26 and 27 were completed due to the parties non agreement as to the same and where the Defendant states that the works on the said floors were only completed on 3.11.2014 whilst the Plaintiff claims that the works for the said floors were completed by mid-October 2014. [84] As to the alleged delay to phase 2 Works (floors 22 and 25), I find that only two (2) floors for Phase two (2) were handed over to the Plaintiff on the 10.11.2014 i.e. 25/F & 24/F, which is shown by the following evidence: -

an email dated 12.11.2014 at Bundle C, Page 384, Leslie Tong confirmed that Phase 2 shall be revised to two (2) floors i.e. 25/F & 24/F, where he instructed the Plaintiff to submit its work programme:

Secondly, the Defendant’s failure to handover four (4) floors for Phase 2 is evidenced by Leslie Tong’s email dated 18.11.2014 as shown in Bundle C, Page 389, where he confirmed the Plaintiff submission of work programme for two (2) floors only:

Item 2.1 of WPM No. 14 dated 24.11.2014, where Leslie Tong only approved the Plaintiff’s work programme for two (2) floors for Phase 2 i.e. 25/F & 24/F (and not four (4) floors) as per Bundle B, Page 39: [85] From the facts before me, it is undisputed that the Defendant did not handover over the remaining floors to the Plaintiff for Phase 2 (i.e. 22/F and 23/F), and also Phases 3 – 6. [86] Based on CW-1’s report, he had concluded that for 24GF and 25F

the approach for the handover for phase 2 was out of step with the accepted methodology as the construction duration commences at handover for the contract duration and that the overall construction duration cannot be reduced

(ii) the said 2 floors on 10.11.204 and the original construction period would expire on 7.2.2015, the minimum delay for the said 2 floors provided were the duration of the 2 floor phases i.e 44 days

(iii) as the date of completion for the said 24F and 25F were recorded by the Defendant as being 8.2.2015, then the same is within the delay entitlement for this Phase [87] With regards the Coring Issue, I hold again as there is no delay analysis provided by the Plaintiff to this Court on the Coring Issue, I am unable to determine if there was indeed a delay in carrying out the works of Phase 1 and part of Phase 2 because the Defendant had split handover of floors which had allegedly resulted in their inability to carry out coring of bathroom floor for plumbing works. LAD [88] The Supreme Court in Thamesa Designs Sdn Bhd (supra) had held in that case that the employer should not be entitled to claim for liquidated damages under the said contract because, by his omission to give possession of the site on time, the time for completion becomes 'at large' and there was no date from which the damages could be assessed. [89] In any event, on a balance of probabilities and taking into account the evidence of CW1 and his conclusion arrived thereto and the Defendant contending that works for floors 26 and 27 were only completed on 3.11.2014 and date of completion for the said 24F and 25F were recorded by the Defendant as being 8.2.2015, there would in my decision be no valid ground for any LAD claim to be made by the Defendant for these floors. [90] For the record, CW1 had also concluded in his report that there is no LAD exposure for both Phase 1 & 2 and this would, with respect, fortify my findings on the LAD issue. [91] From the facts before this Court, I consequently further hold that as this Court has found acts of prevention by the Defendant, the Defendant is not entitled to claim for liquidated damages herein as such acts of prevention invalidates the liquidated damages clause as, at the sake of repetition, the time for completion as per clause 4 of the Contract now becomes at large. [92] I therefore dismiss the Defendant’s claim for liquidated damages and respectfully follow the decision of Tee Geok Hong JC (as he then was) in Sykt Pembinaan Anggerik Sdn Bhd v Malaysia Airports Holdings Bhd [2022] 9 MLJ 391 Tee Geok Hock, JC, on the basis that a party cannot benefit from or take advantage of its own wrong or default. Alleged Delays Affected Due To Third Party Causes i.e. Marble Damage Incident [93] Following from the above, the next question which needs to be answered is whether there were delays caused by third party causes , being the marble damage which was purportedly caused by a third-party ex-worker who trespassed the Defendant’s Hotel and damaged the marble vanity counter and marble window ledges at level 27/F to room Nos. 2707, 2708, 2710, 2711, 2712, 2714 and 2716. [94] The Plaintiff had of course claimed that this third party act of damage to the marble was beyond the Plaintiff’s control. [95] I have since looked at the evidence on this issue of marble damage and find that i. the video recording of the same shows that the Marble Damage Incident took place at approximately around 7.21 a.m. ii. the Plaintiff had in its email dated 4.12.2014 at Bundle C, page 410, PW-1 explained to Leslie Tong that the Plaintiff cannot be held liable for the Marble Damage Incident, as the said third party ex-worker (Trespasser) was not employed under the Plaintiff’s employment however, by Tunas Innovasi Sdn Bhd, the marble installer iii. the Plaintiff had agreed to rectify the damage as seen in its email of 23.11.2014 to the Defendant iv. the Defendant had imposed a period of 10 days LAD on the Plaintiff as a result of the said damage [96] I am unable from the evidence mentioned above to ascertain what were the working hours of the Plaintiff at the site or whether the said Trespasser was wearing any uniform of the Plaintiff or whether he was indeed an ex worker employed by Tunas Innovasi Sdn Bhd, the marble installer. I consequently hold that the Plaintiff has failed to satisfy this Court that the Trespassers entry into the Site was due to a breach of the Defendant’s security. [97] Following from the above, I do however hold that as the damage to the marble was caused by the Trespasser who was an ex-employee of Plaintiff’s sub-contractor Tunas Innovasi Sdn Bhd, the Plaintiff is to be held responsible for and to make good the said damage as per the case of Syarikat Ong Yoke Lin Sdn. Bhd. v Giant Cash & Carry Sdn. Bhd. & Ors [2000] MLJU 519 where Abdul Malik Ishak J ( as he then was) had held “Reverting back to the issue of privity of contract, I need to cite certain passages from a book entitled "Law and Practice of Construction Contract Claims", second edition by Chow Kok Fong where, at page 226, the learned author said: "A subcontract executed between a main contractor and subcontractor cannot give rise to any privity of contract between the subcontractor and employer. This is because subcontracting operates as a subletting of the physical construction of the works only and does not constitute an assignment of rights and liabilities under the main contract. The main contractor thus continues to be responsible to the employer for the whole of the works and to be liable for any defective work, delay or any other default committed by his subcontractors. There have been occasions in the past where it has been contended that this position may not apply to some situations, particularly, where the subcontractors have been nominated by the employer or where the employer (or his architect or engineer) has otherwise intervened in the choice of subcontractors. This view was canvassed largely on the premise that the main contractor, in the placement of nominated subcontracts, acts as an agent for the employer. However, as noted by one leading commentator, such a result can only be produced by 'the most special and unusual facts showing that the employer expressly or by his conduct authorised the main contractor or the architects so to contract... [because it is] ... contrary to the sense of the usual main contract and the most universal practice in the building industry (Hudson, 10th ed (1970) p 742)'." and these passages would certainly fortify the argument that there was an absence of a contractual relationship between the plaintiff and the first defendant. It was a clear-cut case, in the context of the present case, that the privity rule should be vigorously applied to the detriment of the plaintiff.” [98] My decision that the Plaintiff is to be held responsible for and to make good the said damage to the marble is also in accordance with clause 16(h), (l) and (p) of the Contract. Authority for the latter can be found in the text ‘Construction Law’ Volume II, 3rd Edition by Julian Bailey which quoted the case of Wiltshier Construction (Scotland) Ltd v Drumchapel Housing Co-operative Ltd, 2003 SLT 443, 2003 SCLR 188, 2003 Scot (D) 36/1 where the English Court in that case had found that it was permissible to put the entire risks of such matters upon one party. [99] For the record, clause 16(h), (l) and (p) of the Contract provides as follows: [100] I do also find from the facts aforementioned that the damage was agreed to be rectified by the Plaintiff. On this the Plaintiff had submitted that this warrants at least 10 days EOT for 24/F and 25/F as the Plaintiff’s workers were assigned to repair the damage. [101] The Plaintiff had relied on CW-1, who they claim in his Expert Report has found no reasonable grounds to imply liability on the Plaintiff for the delays to 27/F, as the damage was caused by a third-party i.e the Trespasser. I have viewed the said Report by CW 1 and agree with counsel for the Defendant that CW1 did not make an assessment as to who was responsible for the marble damage as he was of the view that this was a matter of fact, of which this Court agrees with CW1 that this is a matter of fact which is to be decided by this Court. [102] Thus on this issue, I am inclined to hold that this incident of marble damage does not set time at large and thus the Defendant is entitled to damages for the damaged marble. Whether there were any delays and disruptions caused due to additional works, variation orders and delays in confirmation and approval of variation orders from the Defendant’s holding company based in Hong Kong; [103] The Plaintiff had also submitted that there were delays and disruptions caused due to additional works, variation orders and delays in confirmation and approval of variation orders from the Defendant’s holding company based in Hong Kong, purportedly due to internal approval process of the Defendant. [104] The Plaintiff had submitted that the Plaintiff had a ‘strict duty’ to obtain approval from the Defendant prior to carrying out any works, and referred to Clause 7 of the Contract. After reading the said Clause 7, as found in Bundle B, Page118C, I find that the same reads as follows: “Any works done prior to the approval of shop drawings / sample will be subjected to the rejection by the DRM” [105] Thus, based on the said Contract I agree that this Clause 7 does indeed require the approval of the Defendant for the shop drawings / sample before the works can commence. [106] From the facts before me, the Defendant had instructed the Plaintiff to submit shop drawings resulting from the issuance of change in plans for Standard Room Nos, 3, 7 and 14 for each Phase, and on 10.08.2014 and 14.8.2014 respectively, the Plaintiff then emailed the Defendant’s Designer based in Hong Kong i.e. Benjamin Tam (“Benjamin”) with the shop drawings for Standard Room, End Suites 03 and 07 and thereafter for Suite 14 for the Defendant’s approval. [107] As far as the approval for shop drawings, I find from the testimony of DW1 under cross examination that the Defendant had failed to approve the shop drawings on a timely basis by as much as 50 days with no EOT’s given to the Plaintiff, thereby also attributing to the disruption and delays to the Plaintiff’s Works. [108] It would from the documents before me also show thereafter that the Defendant had only about three (3) weeks later i.e 2.9.2014, informed the Plaintiff that Benjamin had signed-off the shop drawings for Standard Rooms, No. 7 and No. 14, save for Standard Room 03 which was still pending as shown in the email at Bundle B, Page 19, Item 3.1. [109] The following evidence was highlighted by the Plaintiff in support of the said additional works referred to above

98.1 in WPM No. 1 dated 18.8.2014, the Plaintiff informed the Defendant that there will be variation order due to design & material specification changes resulting from the latest revised drawings as per Bundle B, Page 17, item 1.1:-

98.2 As recorded in WPM No. 2 dated 25.8.2014, the Plaintiff had submitted the quotation for VO. Nos 1 – 8 to “HK-QS” i.e. Vincent Tang for approval. See Bundle B, Page 18, Item 1.1.:

98.3 In WPM No.6, as shown in Bundle B, Page 22, Item 1.1, WPM No. 7 , which can be found in Bundle B, Page 23, item 1.1, WPM No. 8 as per Bundle B, Page 25, item 1.1, WPM No. 9 shown in Bundle B, Page 27, Item 1.1, WPM No. 10 See Bundle B, Page 29, Item 1.1 that Vincent had yet to approve VO Nos 2, 6, 7, 9, 10, 11 & 13: - [See Bundle B, Page 22, Item 1.1] [See Bundle B, Page 23, Item 1.1] [See Bundle B, Page 25, Item 1.1] [See Bundle B, Page 27, Item 1.1] [See Bundle B, Page 29, Item 1.1]

98.4 Thereafter, on 3.11.2014, as recorded in WPM No. 11, the Defendant approved some of the VO’s submitted by the Plaintiff, however omitting approval for VO 16 & 17 which remains unapproved and unpaid, pending approval from the Defendant’s Management as follows as per Bundle B, Page 32, item 1.1:- Variations [110] This Court had examined the above documents against the testimonies of Vincent Tang’s Rebuttal Witness Statement at DW2- WS(A), which was supported by Chelsea Tam’s (DW-1) evidence during cross-examination, where Vincent had testified that VOs and additional VOs were instructed to the Plaintiff during routine site walks, progress meetings, etc. and it is common practice in the construction industry that a contractor will commence work pursuant to such instructions while simultaneously the VOs’ costs figures are assessed by the employer with sufficient supporting documents. [111] I hold from the contemporaneous documents referred to above which I find have a stronger weight attached to it from the oral testimonies of the Defendant’s witnesses which were not supported by any documents, that the above change in plans for Standard Room Nos, 3, 7 and 14 for each Phase were instructed by the Defendant and amounts to variations for which the Defendant only approved the Plaintiff’s VO on 3.11.2014. [112] The facts before me also shows that the Plaintiff was only able to commence the VO works after having obtained the Defendant’s approval, which the Defendant itself delayed in approving causing the Works to be further delayed and disrupted. [113] Based on Chelsea Tam’s (DW-1) evidence during cross-examination these VO’s were completed save that DW1 disagrees with the date of completion which she says were all completed prior to 11.11.2014, when PW 1 , Victor Joseph had testified that the materials were delivered only by the earliest on 11.11.2014 by referring to the Plaintiff’s payment submission for VOs at Bundle E; pages 883-885, These alleged contradictions on the dates of material delivery and VO’s being completed are in my view, on a balance of probability evidence that the VO’s were indeed completed despite the contradictions on the dates. Undertaking Sum [114] I am now compelled to address the issue of the dispute in relation to the “Undertaking Sum” in the sum of RM9,520.00 which are in the Further Agreed Facts at Enclosure 62. Here the Plaintiff had via PW1’s testimony said that these items are in relation to the variation works ordered by the Defendant (and should not be billed under the original contract sum) and the Plaintiff did not agree to this undertaking sum: [115] The Defendant’s witness, DW2-WS(A), had in turn explained as follows in relation to the disputed Undertaking Sum: [116] After looking at the evidence before me, I hold that this sum of RM9,520.00 forms part of the VO costs which the Plaintiff would have to pay to be entitled to the payment of the VO’s. [117] I do agree with learned counsel for the Defendant that there would be an unjust enrichment if the Plaintiff is not responsible to bear the payment due to its suppliers and at the same time be allowed to claim payment for the same VO’s. [118] Following from this, the Defendant contends that in the Amended Statement of Claim, the Plaintiff has actually admitted and agreed to a higher amount of undertaking sum of RM363,700.00 as per paragraph 47.3, paragraph 48 (item 4(c) of the table), paragraph 74 (item 8 of the table) and paragraph 75.2 in the Amended Statement of Claim which can be found in Bundle A, pages 65 and 74-75. [119] To the above, I have perused the same and find that the sum of RM363,700.00 was pleaded by the Plaintiff as direct payments made to the Plaintiff’s suppliers and that this sum was deducted as previous payments made by them, thus totalling the sum of RM650,991.83 as the sum outstanding for works done. [120] In fact, in the same said pleadings, the Plaintiff had stated that the Plaintiff agreed with some of the deductions made by the Defendant in respect of refundable deposit, claims paid and undertaking sum but contends that the Defendant was only not entitled to deduct the sum of RM192,549.34 i.e the 10% retention sum, due to the alleged unlawful termination of the Contract. [121] The Defendant had pointed this Court to 2 pieces of evidence at

Bundle I; page 1705 showing the sum of RM2,560.00 being payment to Homex Enterprise Invoice No. 16012015 dated 16.1.2015;

(ii) Bundle H; pages 1687 – 1688 as evidencing the sum of RM6,960.00 being payment to Trends Curtain Interior Design on or around 10.2.2015 [122] With respect after going through the above evidence, I find that the sum of RM2,560.00 being the alleged payment to Homex Enterprise is actually only an Invoice No. 16012015 dated 16.1.2015 from Homex Enterprise and does not evidence payment made to the same whilst Bundle H; pages 1687 – 1688 does show documents consisting of inter alia an Affin Islamic Bank cheque in favour of Trends Curtain Interior Design for the sum of RM6,960.00 being payment to Trends Curtain Interior Design on or around 10.2.2015 and their acknowledgment thereto dated 17.2.2015. [123] From my aforesaid findings only this sum of RM6,960.00 to Trends Curtain Interior Design forms part of the VO costs which the Plaintiff would have to pay, but which was in fact paid by the Defendant on its behalf, in order to earn the payment of the VOs. [124] I hold that the dispute in relation to the “Undertaking Sum” will only be less the sum of RM6,960.00 which is to be taken into account for the said works done to the Plaintiff. [125] Accordingly based on the above, the sum to be deducted from the Undertaking sum is only RM 2,560.00. Termination of Contract [126] I now come to the issue of whether the termination of the Contract by the Defendant was valid. In essence the Plaintiff submits that the Defendant has unlawfully terminated of the Contract, due to the following grounds: - a. there is no reasonable notice prior to the said termination; b. the ground of terminating the plaintiff was invalid and unjustifiable; and c. the termination was done mala fide which rendered the termination to be unlawful. [127] The Defendant is relying on termination at common law to justify its termination of the Contract on 27.3.2015 (Termination Letter) as the Contract dated 18.7.2014 issued by the Defendant to the Plaintiff does not contain any termination clause [128] The reason given by the Defendant in the Termination Letter is as follows ‘“We are further instructed that parties have reached an impasse following the delays and the subsequent imposition of LAD and the computation thereof by our Client. Although numerous opportunities were given to you to suggest a resolution of the matter so as to avoid the incurring of further losses, we are instructed that our Client has yet to receive a constructive reply/solution from you. Following thereto and in light of the continuing losses suffered by our Client, our Client is left with no alternative but to terminate the Contract with immediate effect. We are therefore instructed to give you notice, which we hereby do, of termination of the Contract with immediate effect”. [129] The termination was also stated by Tang Wai Keung (DW2-WS(A)), in Q & A No. 6 of the Defendant’s Rebuttal Witness Statement that: “The primary cause for the delays were due to the shortage of manpower provided by the Plaintiff and the lack of quality in the Works done by the Plaintiff so that rectification works had to be done.” [130] In the Federal Court case of SPM Membrane Switch Sdn Bhd v Kerajaan Negeri Selangor [2016] 1 MLJ 464, Zainun Ali FCJ had held: “[23] It is trite law that ‘if a party refuses to perform a contract (ie wishes to terminate), giving a wrong or inadequate reason or no reason at all, he may yet justify his refusal it there were at the time facts in existence which would have provided a good reason, even if he did not know of them at the time of his refusal’ (see Chitty on Contract (32nd Ed) E Peel (eds) at 24-014). The question of valid termination, therefore, turns upon whether or not there was in fact a valid reason at the time of termination and not on whether or not the terminating party (subjectively) knew or believed there to be one”. [131] It would thus in this Court’s view be irrelevant if the Plaintiff disputed the Defendant’s letter of termination as in this case and argued that the Defendant is not entitled to expand the grounds of termination at trial as decided in the aforesaid case. [132] I therefore hold that the Defendant is entitled at the trial to justify the termination of the Contract on whatever grounds through documentary and oral evidence. [133] I am however bound to hold that in the absence of a termination clause as in this instant case, the party terminating the contract has to give reasonable notice. [134] In the decision of the Federal Court case of Ng Chin Tai & Anor v. Ananda Kumar Krishnan [2019] 10 CLJ 766 it was held that “[45] Whilst the contract does not contain a termination clause as such this does not mean that it is a contract of indeterminate duration which, according to the Alberta Court of Appeal in Rapatax (supra), one that is prima facie enforceable in perpetuity, but which in certain circumstances may be unilaterally terminated upon reasonable notice.(emphasis mine)” [135] I am further guided by the Court of Appeal case of Masjaya Trading Sdn Bhd v Kedah Cement Sdn Bhd (2004) 4 CLJ 18 where the Court of Appeal held that: - “It is perfectly legitimate for a court to imply into contract containing no provision for determination, a term that it is terminable on reasonable notice. By doing so, the court is merely exercising its power of interpretation. Martin Baker Aircraft Co Ltd v Canadian Flight Equipment Ltd (1955) 2 QB 556 (refd); Australian Blue Metal Ltd v Hughes (1963) AC 74(foll)” [136] I find from the facts before me that prior to the handover of Phase 3, the parties had attempted to discuss various proposals in respect of the causes of the delays, the Defendant’s continued imposition of LAD, commencement of Phase 3 of the Works and for the appointment of a mediator to resolve the LAD dispute as can be seen in the Plaintiff’s letter dated 2.3.2015 at Bundle D, Page 673 and the Defendant’s response dated 3.3.2015 at Bundle D, Page 675A –

[137] Thereafter by a letter dated 10.3.2015 as found in Bundle D, Page 689 – 692, the Defendant stated that there was an obstacle to continuing with the work on the Project due to the full payment for the Works and reiterated that it was entitled to impose LADs on the Plaintiff. The Defendant however admitted to an impasse and that the dispute on the Defendant’s imposition of the LAD were mutually agreed by both parties to be decided either by a mediator or a third party and that the Plaintiff was to agree to certain new terms and conditions proposed therein within forty-eight (48) hours. [138] By way of a letter dated 16.3.2015 as found in Bundle D, Pages 707 - 709, the Plaintiff responded to the Defendant’s letter dated 10.3.2015, disputing the Defendant’s contentions therein and took the position that the Defendant’s act of imposing LAD on the Plaintiff and making deductions from their rightful entitlement for work done were unlawful, but that the Plaintiff was agreeable to have a discussion with the Defendant on a strictly without prejudice basis in a mutually agreed venue to resolve the impasse between parties. [139] However, by a Notice of Termination dated 27.03.2015, the Defendant, through its solicitors, Messrs Syed Alwi, Ng & Co, proceeded to terminate the Plaintiff’s employment ‘with immediate effect’. [140] Thereafter the Plaintiff had via a letter dated 30.03.2015 as per Bundle D, Page 717, contested the Defendant’s Notice of Termination with immediate effect and the imposition of the LAD as being unlawful and accepted the same as a repudiation of the Contract. [141] From the afore said evidence, I have in the absence of a termination clause, found no reasonable notice being issued to the Plaintiff by the Defendant that it would terminate the Contract by a certain given date. [142] It was further alleged by the Plaintiff that the purported reason by the Defendant for the termination based on “impasse following the delays and the subsequent imposition of LAD and the computation thereof by the Defendant as pleaded in paragraph 18 of the Amended Defence dated 15.03.2021 and DW2-WS(A) regarding alleged poor workmanship and lack of manpower by the Plaintiff, were clearly all afterthoughts to justify the unlawful termination. [143] It was also alleged by the Plaintiff that there is no evidence of the Defendant raising any of the aforesaid grounds at the first given opportunity. [144] After examining the evidence before this Court, I find that I am unable to agree with learned counsel for the Plaintiff that the Defendant’s present grounds for termination appears to be an afterthought, as can be seen from my grounds herein, there are contemporaneous evidence as to these grounds relied on by the Defendant. [145] As to the alleged issues of poor workmanship which purportedly led to the termination of the Plaintiff, I find that Clause 9 of the Contract allows the Plaintiff a twelve (12) month Defect Liability Period (“DLP”) to rectify the said defects within a reasonable time upon receiving the Defendant’s notice. [146] It is also from the available evidence before this Court, proven that the Defendant had accepted the handover of the Floors and proceeded to provide the Plaintiff with Phase 2 of the Works. [147] From the assessment of the evidence above, I hold that the termination of the Contract based on the alleged issues of poor workmanship are however unfounded and untenable. [148] With regards the suspension of works by the Plaintiff, this Court notes that the Contract does not contain any specific clause giving the Plaintiff any rights to suspend work for any non-payment or under-payment. From the proceedings at trial, I have found that the Plaintiff had actually suspended work because of non-payment by the Defendant as Victor Joseph (“PW1”) had admitted in Q & A No. 76 of his Main Witness Statement (“PW1-WS”) that the Plaintiff has suspended works when he testified as follows:- “Subsequently, on or around 24.2.2015, I state that the commencement date of the new Phase 3 was extended to 2.3.2015 by the Defendant unilaterally and at the material time, the Plaintiff complained that they were unable to commence the new Phase 3 without payment being released to them by the Defendant (see IDB [B] Jilid 3 at pg. 660, 662, 665, 667). [149] PW1 had further given evidence at the trial that the Defendant was at a deadlock due to the issue of non-payment and hence the refusal to commence Phase 3 by the Plaintiff as per the Notes of Proceedings 1; and the Notes of Evidence dated 21.2.2023 at page 153; lines 8 –

[150] It was contended by the Defendant, and to which I agree upon perusing the said evidence, that the Plaintiff’s suspension of works due to non-payment by the Defendant is further evidenced by the following correspondences between the parties: a. the Defendant’s email to the Plaintiff dated 21.11.2014, where the Defendant reminded the Plaintiff numerously to submit the work programme for Phase 3, 4 and 5 (Bundle C; page. 394); b. In the Plaintiff’s email to the Defendant dated 18.2.2015 (Bundle D; page 660), the Plaintiff informed the Defendant that the Plaintiff would not have the funds to continue with the Phase 3 of the Project due to non-payment by the Defendant. c. In the Plaintiff’s email to the Defendant dated 24.2.2015 (Bundle D; page 667), the Plaintiff informed the Defendant that the Plaintiff is ready to start work on Phase 3 on 2.3.2015 but it is awaiting payments in full from the Defendant. The Plaintiff also mentioned that it looks forward to the payments in full as it “would not be able [to] mobilize works effectively and efficiently if full payments of claims are not made to us immediately”. This can also be found in the evidence of Victor (PW1) in the NOP 1; NOE dated 21.2.2023; page 148; lines 16-20: WHL Now, essentially your position is that if the Defendant have paid you in full of all your claims, then you’re prepared to start work on 02/03/2015, am I correct? VICTOR Yes. d. In the Defendant’s letter to the Plaintiff dated 3.3.2015 as shown in Bundle D; pages 675A-675B, pages 677-678, the Defendant informed the Plaintiff that the Defendant is awaiting the Plaintiff’s reply as to when the Plaintiff can commence Phase 3 so that the Defendant can make the necessary arrangements to prepare the rooms for the works. The Defendant also requested the Plaintiff to review and give the new commencement date for Phase 3 by 5.3.2015, failing which the Plaintiff is presumed no longer interested in performing the Contract and the Defendant shall seek alternative remedies to mitigate and/or recover its losses. e. In the Plaintiff’s letter to the Defendant dated 5.3.2015 at Bundle D; pages. 682-683), the Plaintiff was aware of the Defendant’s intention to terminate the Contract as in the evidence of Victor (PW1) in the NOP 1; NOE dated 21.2.2023; pages 149-150; lines 32-11. f. In the Defendant’s letter to the Plaintiff dated 10.3.2015 as seen in Bundle D; pages 689-692, the Defendant was prepared to pay 50% of the value of the works done by the Plaintiff in order for the Plaintiff to commence work on Phase 3, while referring the dispute on EOT and LAD to a third party professional or mediator. The Defendant also suggested that the parties to agree in writing the new commencement and completions dates for the remaining phases of the Project. g. In the Plaintiff’s letter in reply to the Defendant dated 16.3.2015 at Bundle D; pages 707-709, the Plaintiff rejected the Defendant’s proposal on 50% partial payment. Victor (PW1) admitted that the Plaintiff wanted the full payment for all the work done before it will commence work on Phase 3 as per NOP 1; NOE dated 21.2.2023; page 152; lines 18 – 30 and page 153; lines 27 – 34. h. the Defendant’s email dated 10.3.2015 at Bundle D; page 693 and Plaintiff’s email dated 11.3.2015 at Bundle D; page 695, where Victor (“PW1”) admitted that the Plaintiff suspended the rectification works for the Project while waiting for the Defendant to release the full payment as per NOP 1; NOE dated 21.2.2023; page 158; lines 14 – 28. [151] I have also considered the Defendant’s other grounds for termination being inter alia the Plaintiff had failed to proceed with the works diligently which included the Shortage of manpower on site or internal problems and the Plaintiff’s cash flow problem. Be that as it may, I hold that despite the suspension of works being proven by the Defendant to this Court’s satisfaction, since the Defendant was under an implied obligation to terminate the contract only upon giving reasonable notice and no reasonable notice was given to the Plaintiff by the Defendant that it would terminate the Contract; the termination is in my decision unlawful and constitutes a breach of contract. [152] For the record the Plaintiff had also alleged that the Defendant’s termination of the Contract was tainted with bad faith and orchestrated by DW-1 and the Defendant, as the Plaintiff’s employment was terminated to unlawfully award the remaining contractual works to the Plaintiff’s former Quantity Surveyor i.e. DW-1. [153] On this allegation of bad faith, I have examined the evidence as pointed out to this Court by the Plaintiff’s counsel and agree that DW- 1, had admitted that the Plaintiff’s balance contractual works were awarded to her company i.e. Chef Solutions Sdn Bhd, which she only recently incorporated on 06.02.2015 as per NOP Vol. 2, Page 328, line 1 – 17 and her further admission that contractual negotiations between the Defendant’s top management and her started sometime in March 2015, whilst the Plaintiff was lawfully employed culminating in the award of the Plaintiff’s remaining works to her company in April 2015, as shown in NOP Vol. 2, Page 330, line 11 – 29. All these are further corroborated by the evidence given by the DW-2. [154] I hold that mala fide has been proven in the circumstances herein and thus the Defendant’s termination herein of the Contract is also unlawful and/or wrong on this basis and based on ‘mala fide’ as defined in the Federal Court case of Lee Kew Sang v Timbalan Menteri Dalam Negeri, Malaysia & Ors [2005] 3 CLJ 914 where the Apex Court referred to the High Court case in Karpal Singh s/o Ram Singh v Menteri Hal Ehwal Dalam Negeri Malaysia & Anor [1988] 1 MLJ 468; [1988] 1 CLJ 197 where Peh Swee Chin J (as he then was) defined 'mala fide': “Mala fide does not mean at all a malicious intention. It normally means that a power is exercised for a collateral or ulterior purpose, that is, for a purpose other than the purpose for which it is professed to have been exercised.” Whether the Plaintiff was entitled to the outstanding sum of RM650,991.83 for work done and loss of profits of RM1,138,800 as claimed by the Plaintiff or RM547,556.54 as alleged by the Defendant? [155] This Court will now have to decide whether the Plaintiff was entitled to the outstanding sum of RM650,991.83 for work done and loss of profits of RM1,138,800 as claimed by the Plaintiff or RM547,556.54 as alleged by the Defendant after having decided that:

changes to the design and specifications during the execution of the Works would in my decision amount to a variation to the Works

(ii) Clause 4 of the Contract, which contains the commencement and completion dates for each phase of the Works was varied by the agreement of the parties with regards their acceptance of the different handing-over dates, commencement dates and the work phasing

(iii) the Plaintiff’s Works for Phase 1 and Phase 2 were also delayed, prevented and/or disrupted by the Defendant due to the supply of materials by the Defendant not being done on a timely basis and as such tantamount to an act of prevention by the Defendant.

(iv) On the issue of EOT, I have indicated in my grounds herein below that I have found there is no ‘extension of time clause’ in the Contract and as such I hold that the Defendant has no contractual right to grant an extension of time and as such time becomes at large.

as the agreement contains no clause for extension of time for completion, the acts of prevention by the employer whether authorised by the contract or whether in breach of it or whether the prevention is a cause of part or of the whole of the delay invalidate the liquidated damages clause because “the time becomes at large”. Consequently there is no date from which damages could run and therefore no damages could be claimed save beyond the reasonable time to complete the Works.

(vi) the obligation of the Plaintiff to complete by the specified date in Clause 4 of the Contract is now replaced by an implied obligation to complete within a reasonable time

(vii) the Defendant is consequently only able to recover general damages in the form of special damages duly proved for late completion beyond the reasonable time to complete the works from the main contractor/sub-contractor

(viii) what is reasonable time is a question of fact with the burden of proof on the Defendant

(ix) with regards the damage to the marble which was caused by the Trespasser who was an ex-employee of Plaintiff’s sub-contractor Tunas Innovasi Sdn Bhd, the Plaintiff is to be held responsible for and to make good the said damage

the change in plans for Standard Room Nos, 3, 7 and 14 for each Phase were, instructed by the Defendant and amounts to variations for which the Defendant only approved the Plaintiff’s VO on 3.11.2014. 66 60. The parties have filed the “Additional Agreed Facts (Quantum”), marked as Bundle O, with the following summary of claims: - [156] From the above, there is thus a difference of RM50,324.10 between the Plaintiff’s figure and the Defendant’s figure in respect of value of work done up to the date of termination for original work scope. [157] Based on the letter dated 12.01.2015 as per Bundle D, page 520, the Defendant acknowledged that the Plaintiff’s outstanding sum was RM692,000.00 for work done up to 12.1.2015. [158] As this Court finds that the Defendant cannot, on the grounds aforementioned, claim for LAD and make deductions thereto, the question arises is whether the Plaintiff should be entitled to the sum of RM692,000.00? [159] I have examined that the Termination Notice had stated that: [160] Thus at the very least, from the above, the Defendant appears to have admitted that the Contract sum for phase 1 and 2 was in the amount of RM1,896,572 and that the VO for phase 1 and 2 was RM53,547.36 as at the date of the Termination Notice. [161] Both Parties had called upon their respective Quantum Expert Witnesses i.e the Plaintiff’s Quantum Expert, being Encik Yazit bin Yeop Arbi, PW-2, and the Defendant’s Quantum Expert, Mr Dang Bek Hin, DW-3. A perusal of the Plaintiff’s Expert Witness shows that his report only dealt with the assessment on the loss of profits, whilst the Defendant’s Expert Witness dealt with the assessment on the value of the work done completed up to termination, the value of the variation orders and the loss of profits but he did not deal with the assessment of LAD. [162] There is therefore before me, a differential sum of RM50,324.10 for Preliminaries (being the difference of the Plaintiff’s Claim [RM82,407.00] and the Defendant’s computation [RM31,900.00] wherein the Defendant’s Quantum Expert, Mr Dang has assessed the value of work done completed up to the date of termination of the Contract. [163] Based on the assessment of Mr Dang, the value of work done up to termination should be RM1,875,559.62 with the main difference lies at the Preliminaries (for Guest Room Fit-Out Works) claimed by the Plaintiff in the Progress Claim No. 8, see Bundle F; page 1263. From the evidence before this Court, the Plaintiff is claiming RM82,407.00, while the Defendant claimed that it should be RM31,900.00 only, as per Q & A No. 57 of the Plaintiff’s Witness Statement of Victor Joseph. [164] The Defendant’s Quantum Expert, Mr Dang has assessed the Preliminaries claimed by the Plaintiff at a sum of RM40,647.24 (vs the Plaintiff’s claim at RM82,407.00). The summary of his assessment can be found in his Expert Report at Enclosure 39 page 5, which states as follows: [165] The breakdown and basis of Mr Dang’s assessment of RM40,647.24 can be found in Appendix B1 (Section 1 – Guest Room Fit-Out Works) of his Expert Report at Enclosure 39 page. 39. I have observed that the Preliminaries under the Contract is made up of costs for insurance associated with construction and workers’ compensation, laying plastic sheet for protection of site, and the costs to receive goods, unpack, clear rubbish and cart away from the site. As to this, the Plaintiff has only produced before this Court the insurance proof at RM12,878.92 which has been allowed by Mr Dang, see Bundle G; page 1350, but the Plaintiff did not provide and therefore has failed to prove any breakdown or supporting document to substantiate the entire Preliminaries of RM82,407.00. [166] I have also been referred by learned counsel for the Defendant that during the cross-examination of Victor Joseph, PW-1, had stated that there are supporting documents for the Preliminaries of RM82,407.00 see NOP 1; NOE dated 21.2.2023; pages 165-167. However, such documents were not produced by the Plaintiff to the Court. [167] The Plaintiff had however submitted that DW-3’s assessment of RM40,647.24 for preliminaries, is contrary to various documents which shows a higher amount allowed by the Defendant for preliminaries for example inter alia paid preliminaries till Claim No. 4 for the sum of RM73,260.00 and the Defendant’s “acknowledged” certificate for Claim No. 7 shows the sum of RM82,436.00 as preliminaries ‘works completed. [168] After assessing the Plaintiff’s submissions and documents referred to and the Defendants Expert assessment, I hold that the Plaintiff has failed to prove its claim for Preliminaries at RM82,407.00 and I agree with learned counsel for the Defendant that this is only an interim assessment and does not represent the final amount payable to the Plaintiff, and that any wrongful certification at the progress payment stage can always be rectified in subsequent certification. I have also observed that Mr Dang had testified that this is common construction practice [169] Consequently, I will thus adopt the Defendants Expert assessment that the value of work done (original scope) at RM1,875,559.62 [170] On the variation works, the parties had agreed to the quantum of part of the VO’s which can be found the Further Agreed Facts dated 22.11.2021 in enclosure 62. These are as follows:- Total Agreed VOs in paragraph 1: RM32,905.64 Total Agreed VOs in paragraph 3: RM12,061.50 [171] There is however disputed VO’s between the parties which are detailed below: VO Claim No. 1 VO No. and Cross-Reference to the Plaintiff’s Documents (Based on Q & A No. 31 of PW1-WS) Plaintiff’s Claim Defendant’s Assessment Mr. Dang’s Assessment (RM) VO-9 (Bundle E; p. 737) 13,600.00 11,830.00 11,545.32 2. VO-23 (Bundle E; p. 751) 4,144.00 2,960.00 4,060.00 VO No. and Cross-Reference to the Plaintiff’s Documents (Based on Q & A No. 31 of PW1-WS)

VO-24 (Bundle E; p. 752) 6,592.00 2,550.00 3,439.65 4. VO-25 (Bundle E; p. 753) 3,360.00 3,220.00 3,360.00 5. VO-26 (Bundle E; p. 754) 4,480.00 (12,522.64) (12,520.80) i.e. this VO caused a net effect of omission 6. VO-27 (Bundle E; p. 755)

800.00 (300.00)

538.00 7. VO-29 (Bundle I; p. 1708) 2,301.66 394.64 402.63 8. VO-30 (Bundle I; p. 1706) 2,720.00 - - The assessment for VO. 30 has been included in VO.

AVO-11 (Bundle E; p. 768)

690.00 160.00 372.00 10. AVO-13 (Bundle E; p. 768)

856.18 144.50 209.44 11. AVO-14 (Bundle E; p. 768)

506.14 360.00 400.00 [172] After examining the said evidence provided by the Plaintiff, I agree with the learned counsel for the Defendant that the Plaintiff has not proven these disputed VO’s as the Plaintiff has only adduced its own computation of the VOs without any actual supporting documents to show the actual work done, the quantity of work done and the actual costs incurred by the Plaintiff to complete the VO works. [173] It is not possible for this Court to assess the value of the disputed VO’s as, with respect, the Plaintiff had only relied on a one-page document prepared by itself to support all the disputed VOs. [174] Be that as it may I find that the Plaintiff did not instruct its Quantum Expert, Sr. Yazit Bin Yeop Arbi to assess the value of the disputed VO’s and that CW-1, the Independent Court Expert also did not consider the same in his report either. [175] In the circumstances, this Court has had to accept the assessment done by DW-3, Sr Dang Bek Hin (DW-3), the independent expert witness provided by the Defendant who is a registered consultant quantity surveyor with more than 30 years of experience. [176] DW3 had assessed the value of each disputed VOs with his assessment as seen in Sections 4 and 5 of his Expert Report at Enclosure. 39, pages. 7-20. In the VO summary table in “Annexure 2” of this Submission (extracted from Enclosure 39 at page 96 of the Report), DW-3 had summarized as follows:- [177] Thus, the value of VO Claim No. 1 is from DW-3’s report and which this Court accepts is RM43,731.44 (Comprising of Agreed VO at RM32,906.64 and Disputed VO at RM10,824.80). [178] As to the value of the disputed Additional VO Claim DW-3 had stated that the sum due was RM13,042.94 (Comprising of Agreed VO at RM12,061.50 and Disputed VO at RM981.44) and which this Court agrees based on DW-3’s summary on Additional VO Claim found in Enclosure 39, pages 20 & 112 of the Report as well as the VO summary table in “Annexure 3” of this Submission as shown in Enclosure 39 at page 112 of the Report, which is as below [179] In conclusion, following from all of the above, this Court holds that the final account of the Contract and the balance due for work done, without taking into account the LAD sum is as follows:

Remarks Contract Sum (Value of Original Scope Work Done up to the Termination) 1,875,459.62 Based on Mr Dang’s assessment 2VO Claim No. 1 43,731.44 Comprising of:  Undisputed VOs at RM32,906.64  Disputed VOs at RM10,824.80 For undisputed VOs, as per paragraph 1 of the Further Agreed Facts, Encl. 62. For disputed VOs, as per Mr Dang’s assessment 3. Additional VO 13,042.94 Comprising of:  Undisputed VOs at RM12,061.50  Disputed VOs at RM981.44 For undisputed VOs, as per paragraph 3 of the Further Agreed Facts, Encl. 62. For disputed VOs, as per Mr Dang’s assessment No. Description Amount (RM) Remarks Value of Works Done 1,932,234.00 4. Less Refundable Deposit (197,578.31) Agreed items in the Further Agreed Facts, Encl. 62.

Less Amount Paid (783,081.51)

Less Sprinkler Damage (45,747.98)

Less Undertaking Sum after deducting RM 6,960.00 paid by the Defendant. (352,389.43) Outstanding Amount 542,076.77 [180] I will consequently address the Plaintiff’s entitlement to loss of profit which I have concluded the Plaintiff is entitled to base on the Defendant’s invalid termination of the Contract. [181] The Plaintiff seeks compensation and claims the sum of RM1,138,800.00 being 15% of loss of profit (or such amount deemed fit by this Court), [182] It is undisputed that there were only four (4) floors given to the Plaintiff to carry out the Works, whereas the remaining sixteen floors were not given to the Plaintiff due to the Defendant’s unlawful termination, with the calculation by PW2, the Plaintiff’s expert, as follows: - Remaining Works : 7,592,000.00 (16 floors / 80%) Total Works : 9,490,000.00 (20 floors/100%) Works Done : 1,898,000.00 (4 floors / 20%) Profit Margin : 15% Loss of Profit : RM1,138,800.00 [183] In the Federal Court case of SPM Membrane Switch Sdn Bhd v Kerajaan Negeri Selangor [2016] 1 MLJ 464, Her Ladyship Zainun Ali FCJ (as Her Ladyship then was) held: “[127] Section 74(1) and (2) of the Contracts Act 1950 is reproduced in this judgment: Compensation for loss or damage caused by breach of contract 74 (1) When a contract has been broken, the party who suffers by the breach is entitled to receive, from the party who has broken the contract, compensation for any loss or damage caused to him thereby, which naturally arose in the usual course of things from the breach, or which the parties knew, when they made the contract, to be the likely result from the breach of it.

Such compensation is not to be given for any remote and indirect loss or damage sustained by reason of the breach. … [128] Section 74(1) and (2) in Hamdan bin Johan & Ors v FELCRA Bhd & Ors [2010] 8 MLJ 628; [2010] 3 CLJ 474 was held to substantially affirm the common law rule laid down in Hadley v Baxendale (1854) 9 Ex 341; (1854) 165 ER 145 where in the general assessment of damages for breach of contract, the general rule is that the aggrieved party is to be put in the same position as they would be if the contract had been properly performed, so that normally he is entitled to recover from the contract breaker his loss of profit or the benefit of the bargain. The other cases cited by the appellant include Bank Bumiputera Malaysia Bhd Kuala Terengganu v Mae Perkayuan Sdn Bhd & Ors [1993] 2 MLJ 76 and Nikmat Masyhur Sdn Bhd v Kerajaan Negeri Johor Darul Ta’zim [2014] 1 MLJcon 213; [2008] 9 CLJ 46 essentially set forth the same propositions ie that the damage or loss suffered must be within the contemplation of both parties whether actual or constructive, that the loss suffered was a natural and probable result of the defendant’s breach and that it included loss of profits. We have no disagreement with the statements of principle in this case. It is clear that a rate of commission amounting to 20% was agreed for the collection of the arrears, and it therefore would be the natural and probable result, as well as have been in the contemplation of the parties that premature termination would result in the loss of those profits. …. [130] This calculation does not reflect the principles of compensation for loss of profits and will put the appellant in a position well beyond that which it would rightfully be in, had the contract been properly performed. A calculation based on ‘commissions’, that is to say receipts, is very different from a calculation based on ‘profits’. To award damages based on commissions would completely disregard the fact that had the contract been properly performed the appellant would have had to incur expenses and costs of operation, among other things. The proper sum should therefore be net of all the expenses that would be reasonably incurred in the remaining 20 month period. To do otherwise would give the appellant more than they would have obtained had the contract been performed, and therefore more than what they rightfully deserved. However, contrary to the respondent’s submission and the judgment of the trial judge, the mere fact that the formula was the appellant’s own formulation (presumably in contradistinction with a formula provided for within the contract) is not a ground for rejecting the formula. the agreement did not stipulate a formula for calculating loss of profits, and as such the general principles of the common law will apply and a formula that best estimates the future loss of profits will be preferred by the court.” [184] I am also guided by the decision of the Apex Court in Pancaran Prima Sdn Bhd V Lswarabena Sdn Bhd And Another AppeaL [2020] MLJU 1273; [2021] 1 MLJ 1, where the Federal Court held: “[60] The appellant’s claim, it will be recalled, was for loss of profit of RM2,635,936.26 which amounted to 25% of the remaining works. Its witness had testified that he had included a margin of 15% in the project budget. The respondent’s position on the other hand was rather straightforward. Its case was that the appellant’s computation ought to be rejected outright and that the appellant was only entitled, if at all, to nominal damages. [61] As can be seen from the loss of profit award, the learned arbitrator was prepared to rule that the appellant had successfully made out its case for a 25% profit but because of the contingencies, he reduced it to 10% and 7.5% respectively. He rejected the respondent’s argument that only nominal damages ought to be awarded to the appellant. [62] In awarding a loss of profit of 10% for the remaining drainage works and 7.5% for the remaining vehicular box culvert, the arbitrator was in fact moderating the appellant’s claim of 25% by reducing it for contingencies, albeit taking the 10–15% margin for P&A which he described as ‘almost the norm’ in the Malaysian construction industry. [63] Obviously, what the learned arbitrator did was to strike a balance between the high and the low of the quantum for loss of profit. He did not slavishly apply the 10–15% ‘norm’ but only allowed for a lower range. We agree with learned counsel for the appellant that this is what arbitrators are expected to do.” [185] According to Julian Bailey in Construction Law (Volume II), 3rd ed., pages 1149-1153, paras 13.20 -13.26, 6 matters were to be considered with regard to damages for loss of profit: “(a) First, damages awarded to a claimant for loss of profit will be calculated by looking at the overall position of the claimant. The claimant is not entitled to be put in a better position than it would have been in had the contract been performed, and not broken…

Secondly, where a party claims to have suffered a loss of profit (or a loss of an opportunity to make a profit) as a consequence of another’s breach of contract, it is for the party to adduce sufficient evidence of its loss based on factual material, as opposed to hypothetical calculation that bears little or no relation to the facts of the case … c. Thirdly, even if a party who claims damages for a loss of profit does adduce cogent evidence, it may be appropriate (although ultimately the position is fact sensitive) to make a deduction from the sum calculated by the claimant to reflect general vicissitudes, and the risk that the claimant would not have derived that profit even if the contract in question had been performed and not broken. d. Fourthly, an identified loss of profit may, depending upon the circumstances in which the parties transacted, be regarded as either a direct loss recoverable under the first limb of Hadley v Baxendale, or an indirect loss recoverable only under the second limb … e. Fifthly, the award of damages for future loss of profits will be discounted to take account of the time value of money. f. Sixthly, the costs that are taken into account in determining whether there has been a loss of profit, and if so what that loss is, may include indirect costs such as overheads, at least where it is realistic to attribute such indirect costs to the project in question…” [186] From the facts before me, I hold that the 15% of profit margin was within the contemplation of both the Plaintiff and the Defendant and my finding is based amongst others on

the Defendant’s Expert Witness in DW-3-WS concluded that the profit margin for a contractor for renovation and interior design works is between 5% to 15% is reasonable, as follows:

(ii) the Defendant’s Expert Witness had then accepted and/or allowed 15% profit margin for the VO 24, item 4.9.5 as shown in DW-3-WS, page 11, which supports the 15% for loss of profit as reasonable and acceptable by the industry, as follows: - [187] I have also observed that all of the Defendants witnesses had accepted that the profit margin of 15% was within the contemplation of the parties as seen in the cross examination of DW1, DW2 and DW 3 respectively which can be seen at NoP Vol. 2, Page 436, line 8 – 16, NoP Vol. 2, Page 437, line 7 – 19, NoP Vol. 3, Page 725, line 21 – Page 726, line 16, NoP Vol. 4, Page 757, line 31 – Page 782, line 31, and NoP Vol. 4, Page 806, line 7 – 11 respectively. [188] As for the Plaintiff’s expert witness, PW2, he had assessed, found and concluded that the fair net profit to which the Plaintiff would have made for the 16 floors was the sum of RM1,595,273.95 representing 17% of the Contract [189] It was however argued by the Defendant that this claim should be dismissed in limine because the law does not allow a plaintiff to claim 15% loss of profits without any documentary proof. To this the Defendant’s Quantum Expert (Mr. Dang)(DW3) has opined that the Plaintiff is not entitled to claim loss of profits because he has not sighted detailed calculation, costs breakdown or supporting documents as to the derivation of actual loss of profits of RM1,138,000.00 as in its Amended Statement of Claim, i.e in other words the Plaintiff has not shown the proof of payment to their sub-contractors and suppliers to show the actual cost incurred, and there is no demonstration of the actual loss of profit calculation by comparing the contract sum and actual cost incurred. [190] I note that PW2 in his Expert Report had in arriving to the net profit of the sum of RM1,595,273.95 relied on various supporting documents and drawings supplied in the Appendix A to N including comparison of original Contract Sum v Independent QS Expert Report by contract and element respectively, summaries of raw cost with material, wastage, labor, tools and equipment breakdown, built up rates, guest room fit out works (gross profit and bill of quantities), guestroom loose furniture (bill of quantities and attic stock bill of quantities), corridor and lift lobby (gross profit and bill of quantities), sofa bed (bill of quantities) and Built Up Rate. [191] PW2’s Expert Report were also supported by Appendix P and Q which consisted of inter alia, site staff wages including Socso and EPF contributions, Site Office Maintenance Records, utility bills and miscellaneous expenses as well as Couriers & Postages. [192] I however observed that the said PW2’s report did not contain the cost records for the labour and materials, and the proof of payments to its sub-contractors and suppliers or the Plaintiff’s project account or the said supporting documents in calculating the actual costs of the Project, to which in respect of the latter, I agree with learned counsel for the Defendant as well as the Defendant’s Expert witness, is the most crucial element in the computation of loss of profit. [193] In dealing with conflicting expert evidence, guidance can be obtained from the Court of Appeal case of Jitweer Singh a/l Ojagar Singh v Public Prosecutor [2016] 4 MLJ 525 where it was held: “[43] It is trite law that a judge must not consider expert evidence in a vacuum in the sense that the same should not be artificially separated from the rest of the evidence. When there is conflicting expert opinion, a judge should test it against the background of all the other evidence available in that particular case in order to decide which expert evidence is to be preferred. In particular, a judge must have regard to the direct evidence, whether in the form of oral evidence or contemporaneous documents, and the overall circumstances material to the issue at hand. The version more consistent with these ought to be accepted as being more trustworthy and reliable. [44] The Supreme Court of India in Piara Singh & Ors v State of Punjab [1977] AIR 2274 laid down the approach to be adopted when the opinion of one expert differs from another as follows: What has happened is that two experts, namely, Dr Jatinder Singh and Dr Paramjit Singh had differed in their opinions. The High Court rightly observed that in view, of the difference of opinion between the two experts the evidence of Dr Jatinder Singh must be preferred as it is supported by the evidence of the eye-witnesses whose evidence is both reliable and trust-worthy and is also supported by other circumstances proved in the case. It seems to us that where there is a conflict between the opinion of two experts the court should normally accept the evidence of the expert whose evidence is corroborated by direct evidence of the case which according to the court is reliable [45] It is also trite that a trial judge should not be quick to reject evidence of an expert whose findings are based on reports of facts unless the judge is satisfied that the inference or opinion derived from the said reports of facts is unsound. In evaluating the conflicting experts’ evidence the approach ought to be to examine the scientific grounds and bases on which they rely (Singapore Finance Ltd v Lim Kah Ngam (S’pore) Pte Ltd & Eugene HL Chan Associates (third party) [1984] 2 MLJ 202).” [194] As there is a lack of the cost records for the labour and materials, and the proof of payments to its sub-contractors and suppliers or the Plaintiff’s project account or the said supporting documents in calculating the actual costs of the Project, as afore mentioned, I hold that the amount for the claim for damages for breach of contract could never get off the ground as similarly held in the English High Court case of Van Oord UK Ltd & Anor v Allseas UK Ltd [2015] EWHC 3074 [195] After testing PW2’s and DW-3 Report respectively, against the background of all the other evidence available in this particular case in order to decide which expert evidence is to be preferred, I further find that the Plaintiff had failed to produce at trial, the source documents that was referred to in their Expert Report. What was merely produced by PW 2 was only a summary of the list of the construction drawings or a summary of the bill of quantities which was used for the built up rates. [196] I also find, after examining the said PW-2’s Expert Report that:

the projection for the loss of profit is based on built-up rates with unproven assumptions and that the said Expert Report does not explain his methodology and the basis of calculation; and

(ii) there are many unestablished facts for which it was unsafe for this Court to adopt or rely on. [197] Based on the Federal Court decision in Tan Sri Khoo Puat v Plentitude Holdings Sdn Bhd [1994] 3 MLJ 777; [1995] 1 CLJ 15; [1995] 1 AMR 41; [1993] MLJU 548, this Court is therefore confined to award nominal damages to the Plaintiff for the breach of the said Contract in the amount of RM100,000.00 only [198] This Court has decided, as above mentioned that the Defendant is not entitled to the liquidated damages as time is now at large and that in the circumstances only damages in the form of special damages are claimable by the Defendant in the circumstances. [199] I have however observed that the Defendant has not shown or proven to this Court in any manner the special damages, if any, suffered and accordingly this Court is unable to assess the same but will instead grant nominal damages of RM10,000.00 to the Defendant for such losses. [200] Finally, the Plaintiff has also pleaded for pre-judgment interest of 5% per annum pursuant to Section 11 of the Civil Law Act 1956 for the claims herein. Upon considering all the issues herein raised by the parties herein, this Court in exercising its discretion hereby grant such pre-judgment interest on the payment for the claims herein which however is to only commence from the date of filing of the Writ on 9.2.2021 until the date of Judgement herein. [201] I will also grant post-judgment interest of 5% per annum on the judgment sum from the date of judgment until the full realisation of the judgment sum as well as costs. [202] In conclusion, I therefore hold a. that the Defendant delayed handing over site possession to the Plaintiff and committed various acts of prevention and/or disruption, setting the time for completion of the Works at large whereby the Plaintiff's obligation was to complete the Works within a reasonable time; b. that the Defendant's imposition of LAD on the Plaintiff is unlawful, exorbitant and/or without any basis as the date for completion of the Works were set at large in light of the various delays, breaches, disruptions and acts of prevention committed by the Defendant; c. that the termination of the Contract by the Defendant on 27.3.2015 was unlawful and/or wrongful; d. that the Defendant pay the Plaintiff the sum of RM542,076.77 being the outstanding sum for payment of the Plaintiffs claim for works done under the Contract; e. the Defendant to pay the Plaintiff the sum of RM100,000.00 as nominal damages, on account of the loss of profit suffered by the Plaintiff as a result of the Defendant's unlawful termination; f. an order for pre-judgment of interest at the rate of 5% per annum pursuant to Section 11 of the Civil Law Act 1956 for the sum of RM542,076.77 commencing from the date of filing of the Writ on 9.2.2021 until the date of Judgement herein; g. an order for pre-judgment interest at the rate of 5% per annum pursuant to Section 11 of the Civil Law Act 1956 for the sum of RM100,000.00 from the date of unlawful termination i.e.

27.3.2015 to the date of judgment being the loss and profit suffered by the Plaintiff as a result of the Defendant's unlawful termination of the Plaintiff; h. an order for interest at 5% per annum from the date of judgment for the sum of RM 642,076.77 until full realization of the judgment sum. i. Costs of this action of RM150,000; and j. RM10,000 as nominal special damages to the Defendant for its counter claim for damages due to the defendant’s delay. k. The rest of the Defendant’s counter claimed is dismissed with costs which has been computed and included in para i. above. Dated: 2nd day of May 2024 sgd. NADZARIN WOK NORDIN HIGH COURT JUDGE CONSTRUCTION COURT 1 COUNSEL FOR THE PLAINTIFF: Nadesh Ganabaskaran, Lim Jing Jie and Ng Faye Xiang (Messrs Malek, Gan & Partners] COUNSEL FOR THE DEFENDANT: Wong Hin Loong, Soh Jing Han, Lee Kuan Wing and Chew Cal Vin (Messrs Cal Vin, Hong & Partners]