Master Prestige Sdn Bhd v 1. ) Pertubuhan Kebajikan Islam Malaysia (Perkim) (WA-22C-115-12/2017)

PERTUBUHAN KEBAJIKAN ISLAM MALAYSIA (PERKIM) (BAHAGIAN SELANGOR) (Registration No: 289 [PPM/SEL. 76/61-116(4)])

HAJI MUHAMMAD FITRI BIN ABDULLAH (In His Capacity As A Public Officer For The First Defendant) ... DEFENDANTS 2 THE JUDGMENT OF Y.A. LEE SWEE SENG [1] This is an application for summary judgment in Enclosure 17 under Order 14 Rules of Court 2012 (“ROC”). It is rather uncommon in construction contracts disputes for almost every claim is met with a counterclaim; every allegation of wrongful termination is met with the argument of lawful termination. Every delay is blamed on the other party. Every loss claimed is met with a greater loss counterclaimed. [2] This is not to say that summary judgment is impossible. If it is based on a certified claim, even if interim, the contractor who has done the work is entitled to payment. [3] The principle is still whether the party resisting a summary judgment application could show at least an issue that would merit the matter proceeding to full trial, assuming that the applicant has complied with the prescribed requirements in terms of averments in their affidavit supporting the application. Project [4] The Plaintiff is a Developer and the First Defendant is PERKIM Selangor, a society registered with the Registrar of Societies as a charitable Islamic society. The Second Defendant, Haji Muhammad Fitri Bin Abdullah, is the public officer of the First Defendants. They shall be collectively referred to as “the Defendant”. [5] The Plaintiff had been awarded a construction project by a letter of offer dated 22.03.2011 by the Defendant. The project is that of the construction of 2 blocks of building of 1 storey and 5 storeys for a PERKIM 3 complex consisting of an office with facilities with 2 floors of car park on a piece of land registered in the name of PERKIM Selangor in Shah Alam, Selangor (“the Project”).The Plaintiff subsequently entered into a formal Contract on 17.03.2012 for the project for an agreed sum of RM30,346,500.00. It was a Design and Build Turnkey Contract (“the Contract”) and in Recital (b) it was stated that Excel Consult had represented to PERKIM that the Plaintiff has the financial capacity to complete the Project. [6] There was also a Fund Management Agreement and a Project Management Consultant Agreement both dated 17.3.2012 (collectively referred to as the “Consultancy Agreements”) between Excel Consult, PERKIM Selangor and the Plaintiff which Consultancy Agreements the Defendant said is to be read together with the Contract. [7] The Plaintiff undertook the work and made claims against the work done. Two Certificates were issued by the Defendant’s Consultant, Excel Consult. Problem [8] The Plaintiff failed to execute and complete the Project on the Completion Date as provided for in the Contract. At that time it dawned on the Defendant that the Plaintiff does not have the financial resources to complete the Project. [9] At all material times the Defendant had not received any claims for work done by the Plaintiff. Under Article 3.2 of the Contract all Claims have to be approved by PERKIM Selangor. This, according to the Defendant, is because of the relationship between Excel Consult who had introduced the Plaintiff as the developer who has the financial resources to complete the 4 Project and the fees that the Plaintiff has to pay Excel Consult. It is a clause to address the concerns of all the parties as the funds for the Project has to be sourced by the Plaintiff and Excel Consult with the help of PERKIM Selangor. [10] The Defendant said that finally they were the one who successfully applied for the funds from the Prime Minister then and the funds were only received after the completion date of the Contract stated as by 21.9.2013. [11] According to the Defendant the Plaintiff only completed 10% of the Works and there was no progress report or Interim Progress Claims submitted. [12] The Defendant said that they terminated the Contract for failure of the Plaintiff to complete it within the completion period and also on ground of misrepresentation. [13] The Contract was terminated via a Letter dated 04.10.2013. This was followed by the Plaintiff’s solicitor’s Letter of Demand on 28.12.2017 to the Defendant. Prayer [14] The Plaintiff in their action sought to recover the payment certified by Excel Consult. The Defendant denied liability. The Defendant further alleged that the Plaintiff had breached the Contract. [15] The Plaintiff prayed for judgment to be entered for the sum of RM4,154,191.72 together with interest at the rate of 5% per annum from 5.10.2012 till settlement and costs. [16] The Claim was for Work done and progress Claims were made on 07.10.2012 and 01.12.2012 amounting to RM3,946,482.13 with the retention sum of RM367,673.84 duly certified by Excel Consult. 5 [17] The Plaintiff recited the magical incantation that the Defendant has no meritorious defence and that there are no triable issues against the work already done and the certificates issued. The Plaintiff further argued that the documents are incontrovertible and that they reflected that the Plaintiff did undertake the work as seen in the two Certificates for Payment issued. Principles [18] The law on summary judgment is well trodden and the basic preliminaries to be satisfied by an applicant have been summarized by the Federal Court in the case of National Company for Foreign Trade v Kayu Raya Sdn Bhd [1984] 2 MLJ 300 where it was held as follows: “We think it appropriate to remind ourselves once again that in every application under Order 14 the first considerations are (1) whether the case comes within the Order and (b) whether the plaintiff has satisfied the preliminary requirements for proceeding under Order 14. For the purposes of an application under Order 14 the preliminary requirements are:

the defendant must have entered an appearance;

(ii) the statement of claim must have been served on the defendant; and

(iii) the affidavit in support of the application must comply with the requirements of Rule 2 of the Order 14. It is to be observed that a case is not within Order 14 (a) where no statement of claim has been served on the defendant; (b) where the indorsement on the writ includes a claim or claims outside the scope of Order 14 as coming within Rule 1(2); (c) where the affidavit in support of the application is defective, e.g. in omitting to state the 6 deponent's belief that there is no defence to the claim or part to which the application relates; (d) where the application is made in an action against the Government [Order 73 Rule 5(1)]. If the plaintiff fails to satisfy either of these considerations, the summons may be dismissed. If however, these considerations are satisfied, the plaintiff will have established a prima facie case and he becomes entitled to judgment.” (emphasis added) [19] In Bank Negara Malaysia v. Mohd Ismail Ali Johor & Ors. [1992] 1 CLJ (Rep) 14 it was further explained as follows: “In our view, basic to the application of all those legal propositions, is the requirement under O. 14 for the Court to be satisfied on affidavit evidence that the defence not only has raised an issue but also that the said issue is triable. ... Under an O 14 application, the duty of the judge does not end as soon as a fact is asserted by one party, and denied or disputed by the other in an affidavit. Where such assertion, denial or dispute is equivocal, or lacking in precision or is inconsistent with undisputed contemporary documents or other statements by the same deponent, or is so inherently improbable in itself, then the judge has the duty to reject such assertion or denial, thereby rendering the issue not triable.”(emphasis added) [20] The approach to take in considering a summary judgment application is as set out by the Federal Court in Cempaka Finance Bhd v Ho Lai Ying & Anor [2006] 3 CLJ 544 as follows: “In an application under O.14, the burden is on the plaintiff to establish the following conditions: that the defendant must have 7 entered appearance; that the statement of claim must have been served on the defendant; that the affidavit in support must comply with r.2 of O.14 in that it must verify the facts on which the claim is based and must state the deponent’s belief that there is no defence to the claim. (See Supreme Leasing Sdn Bhd v. Dior Enterprises & Ors [1990] 2 MLJ 36). Once those conditions are fulfilled, the burden then shifts to the defendant to raise triable issues. The law on this is trite.” (emphasis added) [21] As the Plaintiff had complied with the preliminaries as stated above, the burden shifted to the Defendant to raise triable issues. Whether the Plaintiff had breached the Contract in failing to complete the Project by the Completion Date [22] The Contract provides in Article 4.1 as follows: “4.1 This Agreement has effect from the 22nd March 2011 (hereinafter called “the Commencement Date”) and shall continue for 30 months from the site possession date.” [23] Going by the above contractual commitment of the Plaintiff to complete the Project, the Project ought to have been completed by 21.9.2013. [24] The Plaintiff by their own admission had only completed 15% of the Works and there was no allegation of any delay caused by the Defendant. The Plaintiff had also not averred to any application for extension of time and in any event any extension of time had to be for a period mutually agreed to by both parties. [25] The Defendant had pleaded in their Defence that they reserved the right to claim for damages arising from the breach of the Contract within the 8 agreed period of Completion in the arbitration as parties had agreed to refer all disputes to arbitration under Article 52 to the Contract. [26] However upon being pointed out that the Defendant themselves had taken further steps in the proceedings by filing a defence and also affidavits to oppose the summary judgment, they would have been deemed to abandon arbitration in favour of litigation in this Court, learned counsel had informed the Court that they would be filing in an Amended Defence and Counterclaim upon being served the Amended Statement of Claim by the Plaintiff. [27] The Defendant should be given the liberty to raise the relevant defence of breach of Contract by the Plaintiff as ostensibly the Plaintiff had not been able to complete the whole Design and Build Turnkey Project on time with only 15% completed by their own admission. [28] Whether or not the Defendant can show the damage they have suffered is a separate matter altogether and they should not be deprived the opportunity to prove their defence and their Counterclaim. [29] For the moment the Defendant have pleaded that they are not liable to pay the Plaintiff because of the Plaintiff’s breach by failing to complete on time and the Contract having been terminated, they said they do not owe the Plaintiff the sum claimed because of losses arising out of the Plaintiff’s breach. [30] That is a triable issue worthy of a full trial and not a matter that can be conclusively decided by way of affidavit evidence from both parties. Whether the Plaintiff had misrepresented to the Defendant that they had the financial resources to complete the Project and that they had 9 breached the Contract by failing to raise the financing from Contributors or Donors [31] The relevant provisions of the Contract relevant for this consideration are as follows: Preamble (b) to (d) read as follows: “(b) PERKIM had appointed Nasruddin Mat Yusof [NRIC No.610217- 03-5561] Trading in the name and style of EXCEL CONSULT (Business Registration No.:8268-MIEM) vide Letter of Appointment by PERKIM dated 9th December 2009 shall provide PERKIM consulting services that are necessary to complete the execution of the Project (hereinafter referred to as the “Consultant”) and that with the Consultant’s recommendation and representation, PERKIM had agreed to appoint MPSB as the Developer for design and build contract based on Turkey Project basis based on a lump sum payment vide Letter of Award to MPSB dated 22nd March 2011.

MPSB has represented that MPSB is wholly and capably funded to complete the Project within the Completion Period as stipulated in this Agreement or any extended period as agreed by parties herein (if applicable) subject to the terms and conditions hereinafter appearing.

The cost of the Project is RM30,346,500.00 and shall be funded wholly from the proceeds received from the Contributors and/or other means of charitable donations or implements (hereinafter called “the Contribution Fund”).”(emphasis added) [32] Going by the above 3 Clauses in the Preamble, it would appear that this Contract is a self-funded Contract where the Plaintiff is to raise their own financing with the Defendant’s assistance, the latter being a charitable 10 Islamic society with its stakeholders who are in a position to contribute to the religious cause as enjoined by their tenets of faith. [33] Further Article 5.1(a) spelt out the obligation of the Plaintiff as follows: “5.1 MPSB shall subject to the provisions of the Contract and save in so far as it is legally or physically impossible:-

to raise, obtain, collect the contribution fund from Contributors and/or Donors;” (emphasis added) [34] The Defendant had alleged that the Plaintiff had failed to raise the financing required from donor’s contributions with the irresistible inference that they had neither the financial resources nor capability to complete the Project after 30 months from the date of possession with only 15% completed by their own admission. [35] With respect to the Method of Payment that is provided for in Article 3.1 as follows: “All payments that is due and payable to MPSB for the Works done shall be paid out of the Contribution Fund upon availability of such Fund thereof at the time and in the manner as specified in the Schedule of Payment as specified in the First Schedule hereof.” [36] The Defendant alleged that the Plaintiff had not raised the financing and filled up the Contribution Fund from which Fund the Plaintiff would be paid, not considering the Defendant’s Claim for damages for the Plaintiff’s breach of contract for failure to complete the Project within the Completion Period and to contribute to the Fund. [37] There is merit in the Defendant’s submission that the Contract is to be read together with the Funds Management Agreement and the Project Management Consultant Agreement both dated 17.3.2012 which are 11 tripartite Agreements between the Plaintiff, the Defendants and Excel Consultant. [38] The Plaintiff had deftly desisted from referring to the above 2 Agreements which of course would raise further triable issues when raised. The Plaintiff must have been aware that to claim merely based on the Works done as certified by their introducer Excel Consult would be an over-simplification of the disputes and issues that have arisen between the parties. [39] The following Clauses in Recital B and E of the Fund Management Agreement further underscore the responsibility of the Plaintiff to raise the financing with the Defendant’s assistance as follows: “B. The cost of the Project shall be funded wholly from the proceeds received from the Contributors and other means of charitable donations or implements (hereinafter called “the Contribution Fund”) E. The parties have mutually agreed that they will collectively participate in raising the funds and this agreement shall stipulate the responsibility and access towards the disbursement thereof upon the term and condition hereinafter appearing.” (emphasis added) [40] The Plaintiff had further agreed to discharge the following contractual obligations as follows: “Article 5 Duty and Undertaking

5.1

5.1.1 MPSB shall provide the following services to PERKIM (the “Services”); 12

to locate on behalf of PERKIM various community businesses and organization who are willing to donate and to contribute fund for the Project;

to solicit, collect and acquire the Contribution Fund from the Contributors for and on behalf of PERKIM in a manner and time where it is applicable;

to deposit Contribution Funds into the Collection Fund

to inform PERKIM upon receipt of the Contribution Fund and to provide payment slip for proof of depositing the Contribution Fund into the Collection Fund Account for the Consultant’s record;

to appoint agents and or representatives with the express written consent of PERKIM to solicit and collect the

to exercise reasonable skill, care and diligence in conducting MPSB’s duty that will reflect favorably on PERKIM and the Project and not to engage in deceptive, fraudulent, misleading, illegal or unethical business practices;

to co-operate in absolute good faith, comply with and accurately and timely adhere to all reasonable requests by PERKIM.

5.1.2 MPSB hereby undertakes to the parties herein:-

to act in good faith and professional manner with respect to each rights under this agreement and other undertakings provided in the Contract Design & Build and 13 Turnkey Project and to adopt all reasonable measures to ensure the realization of the objectives of this agreement; and

that MPSB shall only deal and collect the Contribution Fund from the Contributors for the purpose of the Project.” [41] Under Clause 4.1 and 4.4 (sic) of the Project Management Consultant Agreement it is further reiterated as follows: “4.1 Pursuant to the Fund Management Agreement entered between the Parties herein, the Consultant and MPSB have agreed to collectively participate at their best ability in raising the funds for the project.

4.4 PERKIM shall assist the Consultant and MPSB upon request by the Consultant and MPSB all necessary authorities, authorizations and instructions to ensure smooth running of all activities/transaction involving the Contribution Fund by the Consultant and MOSB whenever dealing or requested by the respective Contributors or Donors.” [42] The Plaintiff had steered clear of their obligations under the Fund Management Agreement and the Project Management Consultant Agreement. That makes their application for summary judgment most uncomfortable. The Plaintiff certainly has a lot to answer with respect to what they have done with respect to the Fund raising. [43] The Defendant on the other hand had gone down on record in their affidavit that the Plaintiff had failed to discharge their obligations under both the Agreements on top of their breach of Contract and that they had come with unclean hands. 14 [44] The more I heard learned counsel for the Defendant the more I was satisfied that there is more than meets the eyes and that this Claim by the Plaintiff, over-simplified for a Claim for work done, ought to proceed to full trial. [45] As for the Defendant’s own application for funds from the then Prime Minister’s office the letter exhibited by the Plaintiff marked as Exhibit RBM 12 only showed the reply as “I will look into it” and this the Defendant said means that the matter was being considered. [46] The Defendant terminated the Contract by their letter of 4.10.2013 as the Contract had expired as in the Completion Period and the Plaintiff had failed to complete and hand over the Project to the Defendant. [47] It is the Plaintiff’s contention whether the Contract has been terminated or not, the obligation to pay for work already undertaken in the Contract remains. Learned counsel for the Plaintiff drew the Court’s attention to Article 40.4 as follows: “40.4 Upon termination of the Agreement pursuant to this Clause, PERKIM shall pay MPSB (in so far as such amounts or items have not already been covered by payments on account made to MPSB) the value of all work carried out up to the date of termination as shall be determine by the Consultant and in addition;

The amounts payable of any preliminary items so far as the Work or service comprised therein has been carried out or performed and a proper proportion of any such items which have been partially carried out or performed;

The cost of materials or goods reasonably ordered for the Works which have been delivered or of which MPSB is legally liable to accept delivery (such materials or goods 15 becoming the property of PERKIM upon such payment being made to MPSB);

A sum being the amount of any expenditure reasonably incurred by MPSB in the expectation of completing the whole of the Work in so far as such expenditure has not been covered by any other payments referred to in this sub-clause; and

The reasonable cost of any protection works and removal of equipment and site facilities under sub-clause 41.2 hereof.” [48] Hence, it was argued for the Plaintiff, that upon the termination of the Contract, the Defendant is obliged to make payment on those Certificates for the works done. [49] The above clause must be read together with Clause 55.3.1 of the Contract that provides as follows: “55.3.1 Subject always to Article 3 hereof, MPSB shall have the duty to locate as well as to collect any legal source of Contribution Fund from Contributors in order to raise Fund for the Project and upon receipt the Contribution Fund shall thereafter transmit same to the designated bank account in accordance with the terms and conditions provided in the Fund Management Agreement as attached in Appendix 8 hereof.

55.3.2 All entitlement of payment in regards to the Project by MPSB from PERKIM as provided and required in the conditions of the Agreement shall be paid subject to availability of the Contribution Fund for the said payment upon the terms and 16 conditions set forth in this Agreement and on the manner and time stated in the Fund Management Agreement thereof.” [50] The Plaintiff was especially coy about how they had complied with the above contractual obligation. It is a case where the silence of the Plaintiff here is louder than speech! [51] That is quite apart from the cause of action that the Defendant would have against the Plaintiff for breach of the Contract or at the very least an arguable defence of payments to be made only from the availability of Funds contributed by the Plaintiff. [52] Learned counsel for the Plaintiff argued that the Defendant had appointed Excel Consult as the certifying authority for the project in which Excel Consult had issued the Payment of Certificate No 1 and No 2 dated 07.10.2012 and 01.12.2012 respectively aggregating to RM3,946,482.13 with the retention sum of RM367,673.84. It was further argued that as the Payment Certificates were issued by Excel Consultant, the Consultants appointed, and sent to the Defendant where the Defendant had never challenged it before, then they must be deemed to have approved the Certificates as they had never disputed the Certificates. [53] I do not think the Plaintiff in the circumstances of the case can import estoppels to defeat the Defendant’s defence grounded as it is on their contractual rights which they have not waived by consent or much less, in writing. [54] The Plaintiff had said subsequently after their obligation to raise financing for the Project was revealed, that they had done their part in that the Sultan "had” given his approval to the State Government to ask for an allocation from the Federal Government and that the Federal Government had confirmed that the application for a grant allocation was under 17 consideration. However, before the allocation was being given by the Federal Government, the Defendant had terminated the Contract. Surely the obligation to raise financing has to be discharged while the Project is being carried out during the 30 months Completion Period and not after the termination of the Contract. At the very least this issue should go for trial. [55] In fact the termination had been precisely because the Plaintiff had misrepresented their having the financial resources to complete the Project and their failure to complete the Project by the Completion Date. [56] Since the Plaintiff had insisted that, in any event, the Federal Government did make the allocation, the matter has to proceed to trial as it cannot be resolved by conflict of affidavits evidence and without proper discovery of the relevant documents that would reveal when, if at all the allocations had been given to the Defendant and whether that is tantamount to the Plaintiff having secured the financing for the Project. [57] The Plaintiff had argued that the Defendant had failed to update and had kept the Plaintiff out of the loop and that they had sworn to secrecy their financial affairs. If that be the case then the process of discovery in preparation for the trial is even more imperative. However at first blush that appears not to be relevant as the contractual obligation to source for financing must come from the Plaintiff. [58] The Plaintiff is now accusing the Defendant of blowing hot and cold as in approbating and reprobating in that having received the financing, the Defendant still refuses to pay the Plaintiff and instead have terminated the Contract. Learned counsel for the Plaintiff cited the Court of Appeal case of Cheah Theam Kheng v City Centre Sdn Bhd (in liquidation) and other appeals [2012] 1 MLJ 761 as follows: 18 “[105] We categorically say that the liquidator cannot blow hot and cold to suit him whenever he feels like it. He cannot approbate and reprobate in the same breath. On the one hand, he claims that the High Court order dated 26 July 2001 overrides or displaces a statute which render the said order invalid and yet he has the audacity to continue to act as a liquidator by virtue of the said order. In the words of Sir Nicolas Browne-Wilkinson VC in Express Newspapers plc v News (UK) Ltd and others [1990] 3 All ER 376, at pp 383–384: There is a principle of law of general application that it is not possible to approbate and reprobate. That means you are not allowed to blow hot and cold in the attitude that you adopt. A man cannot adopt two inconsistent attitudes towards another: he must elect between them and, having elected to adopt one stance, cannot thereafter be permitted to go back and adopt an inconsistent stance.” [59] As the issue of whether the financing had been raised by the Plaintiff is in dispute and the Plaintiff has not adduced incontrovertible evidence of them having procured the financing, this issue has to proceed to trial. Whether the Defendant have a bona fide Defence and a Counterclaim and that there are clear triable issues that merit proceeding to trial [60] The Defendant had earlier wanted to bring their Claim in Arbitration but as they have taken further steps in the proceedings by filing their Defence, this Court had dismissed their application for a stay of the present proceedings to refer the dispute to arbitration. [61] However as the Plaintiff had amended their Statement of Claim with the consent of the Defendant, the Defendant through their counsel had 19 indicated to this Court that they would be filing a Counterclaim as well. As pleadings had not been closed, this Court would not prejudge the matter. [62] The defence appears bona fide and had already been disclosed as soon as the Plaintiff’s Solicitors issued their Notice of Demand dated 28.12.2017. [63] The reply of the Defendant’s solicitors dated 2.1.2018 is found in Exhibit MFA 3 in the Defendant’s Affidavit in Reply in Enclosure 23. That letter answered many of the allegations of the Plaintiff. [64] On the Plaintiff’s allegation that the Defendant had received a benefit under the Contract, the Defendants replied: “.....We are to unequivocally state that our client had not taken any undue advantage or benefitted from your client’s work done on the site. To the contrary, our client had upon taking over the site, found that your client had caused damage to the said site and had unlawfully removed a large quantity of earth without a proper plan of work of purpose and constructed a retaining wall that has not become a bane to the present site.” [65] With respect to termination and the validity of the Plaintiff’s Claim the Defendant’s solicitors narrated as follows: “...Our Client had also requested for the final account of the said Project; however none was submitted or furnished to our client until our client received the 1st reminder from Excel Consult dated 26th October 2016 on 31st October 2016, the actual claim was not sent to PERKIM. The said amount claimed by your client for work done was RM4,354,191-72; the said amount was never approved for payment by our client at the material time. Your client had again claimed for 20 payment vide their letter dated 27th October 2016, BUT at this time, your client had already committed a breach of contract.” [66] On the allegation that the Defendant had themselves secured the allocation of funding from the Federal Government and on the warranty given by the Defendant to pay, the said Letter continued with some measure of indignation: “Your averment that our client had made representation and given warranty based on our client application for a grant from the Federal Government that had induced your client to proceed with the construction work is preposterous. This is nonsensical as the terms of the agreement entered into between your client and ours (the nature and type of agreements are within your client’s knowledge) clearly stipulate that your client shall complete the project on their own funding and that payments to them will be paid from the funds solicited by them and Excel Consult. No such representation or warranty was given by our client and we are instructed to deny the same vehemently.” [67] The Defendant also catalogued categorically a list of breaches of contract by the Plaintiff in the said letter: “We are instructed to bring to your client’s attention of their misconduct and other agreements as follows: A. Misrepresentation that your client is capable funded to complete the said Project within the Completion Period under the Contract 2012; B. Breach of Contract for failing to complete the said Project within the stipulated time frame; 21 C. Breach of the Fund Management Agreement dated 17th March 2012 prepared by your client’s solicitors that they shall participate in raising fund for the said Project; D. Breach of term of Fund Management Agreement dated 17th March 2012 by failing to locate various community who are willing to make donation; E. Breach of term in the Fund Management Agreement dated 17th March 2012 by failing to solicit, collect and acquire contribution and other express term in clause 5.1.1; F. Breach of term in the Fund Management Agreement dated 17th March 2012 in particular clause 5.1.2(a) by failing to adopt reasonable measures to ensure the realization of this agreement; G. Breach of term in clause 5.4.2(b) Project Management Consultant Agreement 17th March 2017 by failing to raise and locate fund to cover the cost of the Project within the contract period.” [68] The Defendant had through their solicitors also alerted the Plaintiff of what was coming with respect to the losses that they are still quantifying as follows: “Consequent from this breach, our client had suffered losses and damages from your client’s conduct. Your client’s misrepresentation had also indicted our client to enter into the Contract 2012 when your client is clearly insufficiently funded to complete the said Project. Our client had suffered losses the following manner: 22 i. Loss of time from 21st September 2010 to 21st September 2013; ii. Damage to the land from unlawful earth removal estimated at 56,000 cu feet (approximately @ 1000 metric tons); iii. Downsizing the Completion development to less than RM10m; iv. Illegal construction retaining wall (not in compliance with the present requirement and will have to be brought down and a new wall reconstructed); TAKE NOTICE that our client dispute your client claim for the sum. Our client further counter claims against your claim for the sum of RM10,000,000-00 for breach of contract and cost for the loss of earth calculated at RM350(@30 tons) x 1000/30 = RM11,666-66 and the cost of reconstruction of the retaining wall approximately RM50,000-

00.” Pronouncement [69] I end where I have started in saying that the more I plough through the documents and exhibits the more I am convinced that summary judgment is aptly inappropriate for a claim of this nature. [70] I was thus constrained that this matter should proceed to trial where the full facts may be uncovered and more so when the public funding of charitable religious societies for Project of this nature is involved. 23 [71] The application for summary judgment was dismissed with costs in the cause. Dated: 26 October 2018. - signed - LEE SWEE SENG Judge Construction Court High Court , Kuala Lumpur For the Plaintiff : Balbir Singh and Zakiah Zaki (Messrs Najiana Wan Balbir) For the Defendants : Zalil Bin Mohd Mess and Farah Bt Helmy (Messrs Zalil Mohd & Partners) Date of Decision: 18 July 2018.