Mrcb Builders Sdn Bhd v 1. ) Kwang LI Construction & Transportation (WA-22C-14-02/2020)

KWANG LI CONSTRUCTION & TRANSPORTATION SDN BHD

CHAN KAH WAI

CHAI YEE HIN

TE CHEE SIONG

LIM SOON SENG (NO. K/P: 690512-01-5515) …DEFENDAN-DEFENDAN GROUNDS OF JUDGMENT (Enclosure 1) [1] The Plaintiff, MRCB Builders Sdn Bhd, is a subsidiary of Malaysian Resources Corporation Berhad, a government-linked company and a public listed company under Bursa Malaysia Securities Berhad. [2] At the material time, the Plaintiff was the main contractor for several construction projects (Projects) in Desaru, Johor, such as Westin Desaru (“Westin”) and Desaru Conference Centre (“Conference Centre”). [3] During the construction period, the Plaintiff had engaged Kwang Li Construction & Transportation Sdn Bhd, the First Defendant (“D1”) as its sub-contractor to carry out various works for the Projects, such as the supply of earth and rental of machineries. [4] Chan Kah Wah, the 2nd defendant (D2) and Chai Yee Hin, the Third Defendant (D3) were the former employees of the Plaintiff. D2 was the Project Director for the Projects and D3 held the position of the Project Manager of the Plaintiff. [5] Te Chee Siong, the 4th Defendant (“D4”) and Lim Soon Seng the 5th Defendant (“D5”) are the directors of D1. [6] D2 and D3 were once stationed at the LRT3 Project, under MRCB Engineering Sdn Bhd, another subsidiary of Malaysian Resources Corporation Berhad. [7] Subsequently, D2 and D3 were transferred to Desaru and placed under the Plaintiff. [8] D2 and D3 were then assigned to manage the Westin Project and Conference Centre Project as Project Director and Project Manager. [9] On 1.6.2016, D1 allegedly sent a quotation to D3 for the supply of earth and machineries. [10] It was then alleged by the Plaintiff that on 2.6.2016, D2 had without the knowledge, authority and approval from the Plaintiff’s headquaters, created a Notice to Proceed, discreetly agreeing to D1’s quotation, appointing and instructing D1 to supply earth and machineries to the Plaintiff. [11] D1’s quotation was allegedly subsequently brought to the Plaintiff’s former Vice President / Head of Engineering & Construction Division, Patrick Hwang’s attention. [12] D2 had allegedly informed Patrick Hwang that there was a delay at the construction site for earthworks and the Plaintiff had to appoint a sub-contractor to carry out eathwork urgently. [13] It is the Plaintiff’s case that the Plaintiff then issued a Purchase Order instead of a Letter of Appointment due to the urgency of the matter. [14] The Plaintiff then claims that on 30.6.2016, the Plaintiff through a Purchase Order appointed and instructed D1 to carry out earthwork for 1 month at the contract sum of RM250,000.00. [15] It was then alleged by the Plaintiff that:

15.1 after the expiry of the Purchase Order, D2 and D3 without the knowledge, authority and approval from the Plaintiff’s headquaters, continued to instruct D1 to supply earth and machineries to the construction site;

15.2 D1 did not submit any claims for earthwork, which contains only 1 rate. Instead, D1 submitted separate claims for the supply of earth and machineries which contained several rates;

15.3 D2 and D3 only verified D1’s claims for supply of earth and caused the Plaintiff to pay D1 through 3

15.4 D2 and D3 did not verify any of D1’s claims for machineries.

15.5 The Plaintiff did not pay D1 for the purported claims for machineries. [16] The Plaintiff’s case is that at that time, out of business efficacy, the Plaintiff’s Chief Operating Officer, Zulbahari Abu Bakar and D5 had a meeting to reconcile D1’s claims. [17] Thereafter the Plaintiff states that the Plaintiff and D1 entered into 2 Work Orders in the year 2017, and agreed that the rate for supply of earth was to be RM25 per m3 which was inclusive of supply of machineries and that the 2 Work Orders operated retrospectively. [18] It is further alleged by the Plaintiff that D1’s claims were then reconciled and settled through the 2 Work Orders. [19] The Plaintiff thereafter states that the dispute between the Plaintiff and D1 arose again when D1 commenced adjudication proceedings for the supply of machineries in November 2019. [20] It was then that the matter was, according to the Plaintiff, escalated to the MRCB group level and an internal enquiry was conducted where it was subsequently discovered that D1’s supporting documents (i.e the delivery orders and kong cards) did not reflect the actual work carried out by D1. [21] The Plaintiff further states that the Plaintiff’s former site supervisor, Mohd Ikmal revealed that he was instructed by D2 and D3 to sign off D1’s delivery orders and kong cards blindly, and that some of D1’s delivery orders and kong cards were completely empty. [22] It was also alleged by the Plaintiff that some of D1’s delivery orders and kong cards contained insufficient particulars. Mohd Ikmal had signed off all of them without questioning their validity and accuracy. [23] Thus, due to all of the above, the Plaintiff had filed this suit against all the Defendants. Claim Against D2 and D3 [24] The Plaintiff claims that D2 and D3 had amongst others: - a. conspired with the other Defendants to defraud the Plaintiff; b. gave false representations to the Plaintiff that D1 had supplied earth and machineries; c. Issued and executed a Notice to Proceed to D1 without the knowledge of the Plaintiff; d. Verified IPCs when D1’s Progress Claims were dubious and suspicious; e. Breached their contractual duties owed to the Plaintiff; and f. that D2 & D3 had been unjustly enriched through the transactions of D1’s appointment for supply of earth. The Defences For D1, D4 & D5 [25] D1, D4 & D5 had engaged Messrs Harold & Lam Partnership as their lawyers for this case with each of them filing separate Defences dated 16.10.2020 and 28.10.2020 respectively and D1 apart from its Amended Defence had also filed a Counter Claim dated 16.10.2020 against the Plaintiff. [26] D1, D4 and D5 had submitted and/or pleaded in their defence that the Plaintiff’s action ought to be dismissed based on inter alia the following:

there exists a valid contractual relationship between the Plaintiff and D1 for the supply of machineries for the Projects, and was never disputed during the course of the Project;

(ii) it is not disputed by the Plaintiff that D1 had supplied earth to the Plaintiff for the Projects, and this fact has not been challenged by the Plaintiff in any material way;

(iii) D1 had supplied machineries to the Plaintiff as instructed by Plaintiff and that, the Plaintiff has failed to present evidence to prove otherwise;

(iv) there was no agreement, be it express or implied, that the Work Orders are to be applied retrospectively, and that the Plaintiff’s attempt to impose a retrospective effect on the Work Orders is devoid of any contractual merit as there was no agreement between the parties for the Work Orders to be applied retrospectively;

the testimonies given by all of the Plaintiff’s witnesses were fraught with contradiction and riddled with inconsistencies, rendering their evidence unreliable and insufficient to support the Plaintiff’s allegations;

(vi) D4 was not involved personally in the Projects, and. the Plaintiff has failed to establish any credible evidence to establish the fraudulent activities and conspiracy claim against D4;

(vii) the Plaintiff did not satisfy the legal burden to prove its allegation of conspiracy as the evidence provided does not satisfy the elements required to establish deliberate and malicious conspiracy amongst the Defendants to injure the Plaintiff. [27] D1’s counterclaims against the Plaintiff are set out as below: Item Description of Contract/ Works Outstanding Amount (RM) 1 Supplying approved imported structural soil and landscape oil to the Plaintiff for the Conference Project 61,480.00 9 2 Rental of Machineries to the Plaintiff for the Projects 665,273.11 3 External work for Road and Carpark & Surface Water Drainage for the Westin Project. 8,138.24 Total Outstanding Amount (RM) 734,891.35 [28] It is also D1’s pleaded case that the following invoices issued to the Plaintiff were not paid by the Plaintiff for D1’s works done for supply of earth: Item Tax Invoice No. Date of Issuance of Tax Invoice Amount 1 961701-033 31.1.2017 46,640.00 2 961703-019 31.3.2017 14,840.00 Outstanding Amount: 61,480.00 For D2 [29] D2 on the other hand, who was represented by a different set of lawyers in this case, Messrs Jayadeep Hari & Jamil, pleaded in his Amended Statement of Defence dated 14.10.2020 that: - a. the allegations are all baseless and with no proof; b. there was no conspiracy between D2 and D1 to defraud the Plaintiff; c. The appointment of D1 was valid and the Plaintiff was aware of the appointment; d. The appointment of D1 was approved by the Plaintiff’s ex-CEO, En. Zulbahari and the Plaintiff; e. D2 was asked by the then CEO to appoint D1 to start supplying earth as there was a delay in the Plaintiff’s Contract Department to issue the Letter of Award for the supply of earth to D1; f. The IPCs were subjected to various levels of examination and approval within the Plaintiff’s organization and not D2 alone; g. D2 is not responsible to check rates as that scope is for the Contract Department to look into; and h. D2 did not unjustly enrich himself from the appointment whatsoever. For D3 [30] D3 had also engaged a different legal firm, Messrs Eunice Derek & Co to represent himself and had in his Defence dated 14.10.2020 stated amongst others that:

30.1 D3 had no authority to nor ever appointed or engaged any contractors, sub contractors or suppliers on behalf of the Plaintiff for the Projects; 11 30.2 he had never misrepresented or gave false assurances to the then CEO;

30.3 there is a multi tier system of verification and approval for payment of suppliers and sub contractors and D3’s involvement is minimal;

30.4 he was never the sole personnel in charge of the

30.5 he had at all material times reported and taken all instructions from superior management of the Plaintiff;

30.6 all his actions involving D1 and the Projects was within the full knowledge of the CEO and the Plaintiff;

30.7 the CEO is the superior who was mandated by the Plaintiff to oversee the overall administration, management and direction for the Projects;

30.8 he had never exceeded nor abused his authority;

30.9 he had never intentionally concealed any information from the Plaintiff; and 30.10 he was never involved in defrauding the Plaintiff or acted mala fide. Analysis & Findings [31] In the trial before this Court, it is salient to note that there were 4 witnesses called by the Plaintiff in support of its case were as follows: SP Name of Witness SP-1 Venkitesan A/L VN Venugopal SP-2 Mohd Ikmal Bin Zainul Abidin SP-3 Patrick Hwang Chee Leong SP-4 Zulbahari Bin Abu Bakar [32] On the other hand, D1, D4 and D5 had called various witnesses in support of their case who were as follows: SD Name of Witness SD-1 Te Chee Siong SD-4 Chong Chew Fong SD-5 Chong Chun Keong SD-6 Lim Soon Seng [33] D2 and D3 did not call any witnesses but had testified at the trial in their own defence. Law [34] In essence, the dispute before this Court centres around the Plaintiff’s allegations that the Defendants have conspired to injure the Plaintiff through the submission of false claims by D1 to the Plaintiff for services allegedly rendered in respect of the Projects, and that the Defendants have acted in concert to deceive and financially injure the Plaintiff through the submission of the alleged false claims by D1 to the Plaintiff. [35] Let me thus kick off by dealing with the law on the tort of conspiracy. In SCK Group Bhd & Anor v Sunny Liew Siew Pang & Anor [2011] 4 MLJ 393 the Court of Appeal had held that: “[14] The tort of conspiracy is not constituted by the conspiratorial agreement alone. For conspiracy to take place, there must also be an unlawful object, or, if not in itself unlawful, it must be brought about by unlawful means: see Davies v Thomas [1920] 2 Ch 189 per Warrington LJ, and Seah Siang Mong v Ong Ban Chai & Another Case [1998] 1 CLJ Supp 295 (HC) per Ghazali J (now FCJ). There must be a co-existence of an agreement with an overt act causing damage to the plaintiffs. Hence, this tort is complete only if the agreement is carried into effect, thereby causing damage to the plaintiffs. In order to succeed in a claim based on the tort of conspiracy, the plaintiffs must establish:

(a)an agreement between two or more persons;

(b)for the purpose of injuring the plaintiff; and

(c)acts done in the execution of that agreement resulted in damage to the plaintiff: Marrinan v Vibart [1962] 1 All ER 869 at p 871 per Salmon J; and Halsbury's Laws of England (4th Ed) Vol 45 at p 271, as applied by Ghazali J (now FCJ) in Seah Siang Mong. [36] In another Court of Appeal case of Cubic Electronic Sdn Bhd v MKC Corporate & Business Advisory Sdn Bhd and another appeal [2016] 3 MLJ 797 the Court had also held the following: “[10] To appreciate the submissions advanced by learned counsel for the defendants, we think it is relevant to deal with the law of conspiracy which is part of what are known as the ‘economic torts’. There are four elements to a conspiracy claim:

a combination or agreement between two or more individuals;

an intent to injure;

pursuant to which combination or agreement, and with that intention, certain acts were carried out; and

resulting loss and damage to the claimant”. [37] Thus, following from the aforementioned cases, the Plaintiff must prove the following in a tort of conspiracy:

37.1 that the Defendants had an agreement and acted in concert with the other Defendants;

37.2 such agreement and concerted actions were done with the intention to injure the Plaintiff;

37.3 the Defendants had carried out actions with that intention to injure the Plaintiff;

37.4 the Plaintiff suffered loss/damage as a result of the actions. [38] Next, it would be appropriate to state that the Plaintiff carries the burden of proof for the tortious claims against the Defendants by virtue of Sections 101, 102 and 103 of the Evidence Act 1950. [39] The said sections 101, 102 and 103 of the Evidence Act 1950 respectively state as follows:

Whoever desires any court to give judgment as to any legal right or liability, dependent on the existence of facts which he asserts, must prove that those facts exist.

When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person Section 102 On Whom Burden Of Proof Lies The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side. Section 103 Burden Of Proof As To Particular Fact The burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person. [40] There is also the burden of proof specifically for the claim of conspiracy to injure pursuant to the statutory provision of Section 10 Evidence Act 1950 of which reads: Section 10 Where there is reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong, anything said, done or written by any one of those persons, in reference to their common intention after the time when the intention was first entertained by any one of them, is a relevant fact as against each of the persons believed to be so conspiring, as well for the purpose of proving the existence of the conspiracy as for the purpose of showing that any such person was a party to it. [41] The Federal Court in Sinnaiyah & Sons Sdn Bhd v Damai Setia Sdn Bhd [2015] 7 CLJ 584 held that at law, there are only two standards of proof, namely, beyond reasonable doubt for criminal cases and for civil cases, the standard of proof is on the balance of probabilities even where fraud is alleged. Pleadings [42] I have since perused the Amended Statement of Claim in toto and note that, in relation to the issue of conspiracy and collusion, the Plaintiff had inter alia pleaded as follows: -

42.1 the Defendants colluded to enrich themselves and executed a fraudulent scheme and caused financial distress to the Plaintiff and averred to the facts leading to the same and thereafter provided specific particulars at paragraph 65 as follows: -

42.2 provided details of D2 and D3’s alleged unbefitting and mala fide conduct; and

42.3 provided details of the alleged treachery by D4 and D5 as the controlling mind and alter ego of D1 and averred to specific details in its particularisation of the same and various particulars of the alleged collusion with D2 and D3 in committing the various actions alleged. [43] Be that as it may, learned counsel for D3 submits that the Amended Statement of Claim does not show that the Plaintiff had provided any specific particulars as to: -

what were the specific “representations and assurances” that D3 had allegedly given to the then CEO of the Plaintiff, Zul Bahari; and

(ii) when were such “representations and assurances” allegedly given by Mr. Chai to Zul Bahari. [44] It is pertinent to note that the Rules of Court 2012, in particular Order 18 rule 12 (1) (a) thereto provides:

Subject to paragraph (2), every pleading shall contain the necessary particulars of any claim, defence or other matter pleaded including, without prejudice to the generality of the foregoing words:

particulars of any misrepresentation, fraud, breach of trust, wilful default or undue influence on which the party pleading relies [45] Mahadev Shanker J (as he then was) had in the case of Gasing Heights Sdn Bhd v Aloyah Bte Abd Rahman [1996] 3 MLJ 259 stated: “The second complaint against these six defendants was that, they had entered into a conspiracy with the fifth defendant to file the motion. However, apart from the bare assertion of conspiracy based on the joint filing of the action, no particulars of any kind were alleged against these six defendants to show how they were linked to the misdemeanours alleged against the fifth defendant. Just as fraud must be pleaded with great particularity, so also all the constituent ingredients going to make up the conspiracy, must be pleaded. On this ground alone, the claim for conspiracy fails.” [46] In Ho Hup Construction Company Bhd v Zen Courts Sdn Bhd & Ors [2018] MLJU 325, Mohd Nazlan J (as he then was) had in this respect also held: “[112] On the face of the pleadings, the essential elements of the tort of conspiracy, specifically, “assistance”, “agreement to injure” and “overt act to injure pursuant to the agreement” against each and every alleged conspirators are conspicuously absent (see further below). In my view, this, in the circumstances of this case, is fatal as it renders the statement of claim of the plaintiff defective for failing to disclose any reasonable cause of action of dishonest assistance or conspiracy against the fifth defendant. ….. [116] It is trite that under Order 18 r 7 of the RC 2012, material facts must be pleaded, for these are the elements which are necessary for the purpose of formulating a complete cause of action. In Bruce v Odhams Press Ltd [1936] 1 KB 697, Scott LJ said: “The word ‘material’ means necessary for the purpose of formulating a complete cause of action, and if any one ‘material’ fact is omitted, the statement of claim is bad”. [117] A party is entitled to have from the opposing party, particulars of facts, as opposed to evidence, relevant to the issues at stake in order to prevent surprise, in order to enable the other party to know the exact case he has to meet, especially since parties cannot at trial adduce evidence in support of facts which were not pleaded facts (see the Supreme Court decision in Superintendant of Lands and Surveys (4th Div) v Hamit bin

D2 had submitted inter alia that the Plaintiff must assert in its pleadings whether the Plaintiff is relying on unlawful conspiracy or lawful conspiracy and relied on Pacific & Orient Insurance Co Bhd v Mohammad Hafizi bin Bahari & Anor [2023] 11 MLJ 933. It was then contended that in the absence of the same, the pleadings must fail. [47] In Pacific & Orient Insurance Co Bhd (supra) Her Ladyship Liza Chan J had held: “the Hong Kong Court of Appeal in Peralta Eugenio Sarmiento v Compass Technology Co Ltd [2010] HKCA 70 at para [17] spelled out what the pleadings for conspiracy must contain: As a matter of pleading, a case based on conspiracy, must contain the following elements: The agreement between two or more persons. The means of carrying out the agreement, whether lawful or unlawful, must be set out. The intention to injure the plaintiff, whether predominant (in the case of a lawful means conspiracy) or merely an intention to injure (in the case of an unlawful means conspiracy). The acts that were carried out pursuant to the agreement and the stated intention. The damage caused to the plaintiff.’ [25] It follows from Peralta that the distinction between lawful and unlawful means conspiracy must be set out in the pleadings. [26] In lawful means conspiracy, a predominant purpose to injure must be alleged. In unlawful means conspiracy, an intention to injure suffices. [27] This principle appears to have been accepted by Shankar J (as His Lordship then was) in Gasing Heights Sdn Bhd v Aloyah bte Abd Rahman & Ors [1996] 3 MLJ 259 at p 269E, 269F and see 269B where His Lordship held that the words predominant purpose must appear in the pleading: I think it can be fairly stated that, to establish the tort of conspiracy to injure the developer by lawful means, it has to be pleaded that, in the filing of the motion, the predominant purpose of the defendants as conspirators was to injure the developer. [28] The intending plaintiff cannot merge the two types of conspiracies together in the pleading since there is a clear distinction between the two conspiracies. Otherwise, it will prove difficult for the defendants to answer to the allegations. Pleadings serve to ensure the basic requirement of procedural fairness that a party should have the opportunity of meeting the case against him or her. [29] The type of conspiracy alleged must be in the body of the pleading and not in the particulars because particulars cannot enlarge a pleaded cause of action — Sivakumar Shanmugaratnam v Strasburger Enterprises (Properties) Pty Ltd [2004] NSWCA 229 at para [13]. [30] The proper function of particulars is not to state the material facts omitted from the statement of claim, in order, by filling the gaps, to make good an inherently bad pleading, however common that pernicious practice may have become — per Scott LJ in Pinson v Lloyds and National Provincial Foreign Bank, Limited [1941] 2 KB 72 at p 75; [1941] 2 All ER 636 at p 638. [31] If the type of conspiracy is not clearly pleaded, the pleading is bad:

(a)Mckellar and another v Container Terminal Management Services Ltd and others (1999) 165 ALR 409 at para 191: [191] It is by no means clear which of those forms of conspiracy the applicants seek to plead at this point in their amended statement of claim, just as it is unclear throughout the entire pleading which form of conspiracy is being addressed. The applicants do not appear to have turned their minds to just what are the essential elements of each such cause of action. That failure is just one of a number of reasons why the conspiracies pleaded are embarrassing.” [32] Here, other than alleging that the defendants had conspired with Thanabalan to commit fraud upon the plaintiff, the plaintiff has failed to plead in the statement of claim that there was an agreement between the defendants and Thanabalan; the agreement was for the purpose of injuring the plaintiff; and the acts done in the execution of the agreement which resulted in damage to the plaintiff. In my opinion, the pleading of the conspiracy claim here is additionally deficient in the following respects:

(a)it fails to identify clearly the object of the conspiracy;

(b)it fails to plead the primary facts on which the conclusion of combination is based;

(c)there is a complete obfuscation as to when, and where the agreement was hatched and the respective agreed roles of the conspirators in carrying out the agreement;

(d)it fails to plead how each conspirator has the requisite knowledge or intention to enter into the agreement; the overt acts which were carried out pursuant to the combination with the intention of injuring the plaintiff;

(e)assuming the overt acts are the pleaded conduct, further facts need to be pleaded so as to show how that particular conduct is capable of injuring the plaintiff; and

(f)failed to plead that the conspirators had the sole or predominant purpose of injuring the plaintiff.” [48] In Gasing Heights Sdn Bhd v Aloyah bte Abd Rahman & Ors [1996] 3 MLJ 259, Mahadev Shanker J (as he then was) had also held: “Dato' Harun referred me to the definition of conspiracy in Butterworth's Words and Phrases Legally Defined (3rd Ed) [1988] at p 320 and 37 Halsbury's Laws of England (3rd Ed) p 128. Mr William Leong, counsel for the developer, referred me to Lonrho plc v Fayed & Ors [1991] 3 All ER 303. I think it can be fairly stated that, to established the tort of conspiracy to injure the developer by lawful means, it has to be pleaded that, in the filing of the motion, the predominant purpose of the defendants as conspirators was to injure the developer. Since the primary or predominant purpose of the defendants in filing the motion was to further and protect legitimate interests of their own, the allegation of a parallel intention of injuring the developer could not be sustained unless the defendants used unlawful means. On both counts the allegation of conspiracy fails against all the Defendants, because it is not alleged that the predominant purpose of the Defendants was to injure the Developer, nor is it alleged that unlawful means were used.” [49] With respect, after having read the line of cases aforementioned and in particular the trilogy of Pacific & Orient Insurance Co Bhd (supra), Peralta Eugenio Sarmiento (supra) and Gasing Heights Sdn Bhd (supra), I find and hold that the Statement of Claim read as a whole does specify: 26 49.1 there was an agreement between the defendants the purpose of which was to unlawfully solely and predominantly injure the plaintiff;

49.2 the object of the conspiracy was to unjustly enrich themselves at the expense of the Plaintiff;

49.3 the primary facts relating to the Projects and the supply of earth as well as machineries on which the conclusion of combination is based to support the Plaintiff’s primary case 49.4 the details of how the agreement was done and the respective agreed roles and position of the respective defendants in carrying out the agreement;

49.5 how each of the defendants had the requisite knowledge and the acts which were carried out pursuant to the combination with the intention of injuring the plaintiff; and 49.6 the particular conduct of the defendants which caused injury to the plaintiff. [50] I hold therefore that there were specific particulars of the material facts alleged against the defendants to show how they were linked to the acts complained of, and to quote Scott LJ in Bruce v Odhams Press Ltd, “elements which are necessary for the purpose of formulating a complete cause of action”. [51] The averment contained in the Statement of Claim that they “misled the Plaintiff with regards to the supply of earth and rental of machineries…” as well as the other averments in the said Amended Statement of Claim and in particular paragraph 65 of the Amended Statement of Claim, are in my view when read together and as a whole, sufficient for the purposes of particularisation under the aforementioned Order 18 rule 12 (1) (a) to enable the Defendants to know the exact case they have to meet. [52] In any event I find that the respective Defendants had through their respective Statement of Defences averred numerous defences to the alleged act of collusion running to more than 10 pages for each of the Defences filed and between 30 to 50 paragraphs on average, which in my mind shows that the respective Defendants had more than the sufficient and necessary facts informed in the Statement of Claim to enable them to fully plead their defences. [53] I therefore in the circumstances dismiss the defence of insufficient or a lack particularisation in the Plaintiff’s Statement of Claim raised by the respective defendants The Case Against The Defendants [54] Accordingly, I will now deal with the Plaintiff’s allegations made against the respective Defendants. The Quotation [55] I will start off with the case against D1, D4 and D5. It was shown during the trial that a letter was, as seen on page 3 of Bundle G, issued on 1.6.2016 (1.6.2016 Letter) from D1 providing allegedly a quotation for the supply of earth and machineries as follows:- Supply Unit of Measurement (UOM) Unit Price Earth Load RM350.00 Excavator Day RM1,500.00 Tractor Day RM400.00 Road roller Day RM400.00 [56] I have also noted that the said 1.6.2016 Letter did not have any specific reference to the Projects but only contained a general heading of “Quotations” and nothing more. It was also however addressed to MRCB Engineering Sdn Bhd and not the Plaintiff as well as being attentioned to D3. [57] The Plaintiff had submitted that MRCB Engineering Sdn Bhd was only the Plaintiff’s related company which was the main contractor for LRT3 Project and had nothing to do with the Projects at hand. [58] D3 had testified in cross examination and under oath that all 4 items are interconnected and that the supply of excavator, tractor and road roller were required to assist the backfilling work. This was also agreed to by D2 under his cross examination. [59] The Plaintiff submits that the alleged ‘quotation’ lacked important and sufficient information on the supply of machineries which would normally consist of the following:- Excavator Type, model, size, horsepower, tonnage Tractor Type, model Road roller Type, model, size, tonnage [60] It is important to observe that during cross examination D2 had agreed that there are excavators, tractors and road rollers with different powers for different purposes and usages and that their prices vary accordingly. [61] The Plaintiff then submits that it is thus impossible for the Plaintiff to accept or to consider D1’s quotation for the supply of excavator, tractor and road roller. [62] After due consideration of the said Quotation and the totality of the evidence before this Court, of which I will go into in further detail later, I find that Defendants had failed to prove to the satisfaction of this Court that the alleged Quotation had provided its unit price for the supply of earth and rental of respective machineries for the Plaintiff’s consideration in respect of the Projects. [63] I therefore find that the Quotation lacks important and sufficient information on the supply of machineries, and I agree with the Plaintiff that such Quotation should have included the following details which were missing:- Excavator Type, model, size, horsepower, tonnage Tractor Type, model Road roller Type, model, size, tonnage The Notice To Proceed [64] As against D2, the Plaintiff had submitted that on 2.6.2016, D2 had without the knowledge, authority and approval from the Plaintiff’s headquaters, created a Notice to Proceed (Notice to Proceed) which can be seen at Bundle G page 4, and signed the same wherein D2 had discreetly agreed to D1’s quotation, appointing and instructing D1 to supply earth and machineries to the Plaintiff. [65] The said Notice to Proceed had expressly stated: “This is to confirm your quotation date 1 June 2016 regarding the abovesaid work is agreed by our management and you are hereby to proceed with the work. As you well aware the management is in the midst of finalizing the letter of award to Kwang Li Construction and Transportation Sdn Bhd. In the interim period and pending the issuance of the Letter of Award, you are require to mobilize and proceed with the works on 2 June 2016. This notice to proceed shall be subjected to and conditional upon the negotiation and conclusion of a definitive letter of award Please proceed accordingly and liaise with our site people for site arrangement……” [66] A careful examination of the said Notice To Proceed will show that the said Notice to Proceed was purportedly issued by “Malaysia Resources Cooperation Berhad”, whereas the Plaintiff is known as “MRCB Builders Sdn Bhd”. To add to this the Plaintiff submits that “Malaysia Resources Cooperation Berhad” does not exist and that there is no legal entity as such. [67] I have in this respect considered D2’s submission and his defence and explanation on this Notice To Proceed, which was that the Plaintiff’s then CEO, Patrick Hwang had purportedly instructed D2 to issue the said Notice to Proceed to D1 as can be seen in his testimony where he testified: “Q7: What happened after that Mr. Chan? A: The said quote was then forwarded to the Contract Department of the Plaintiff to issue a Letter of Award to the 1st Defendant. Due to the delay of the Plaintiff’s Contract Department in issuing the Letter of Award, the Plaintiff’s then CEO instructed me to issue a Notice to Proceed to the 1st Defendant in order to avoid delay of the progress at the project site. The Plaintiff and its then CEO at all material times had approved the supply of earth and rental machineries from the 1st Defendant.” [68] It was however submitted by the Plaintiff that D2’s evidence-in-chief is inconsistent with his evidence given during cross-examination where D2 admitted to have issued the said Notice to Proceed on his own accord. This can be seen from the Notes of Proceedings (NOP) where D2 testified as follows: - Yes. And we look at paragraph 3, again here it says, in the interim period and pending the issuance of letter of award, you are required to mobilize and proceed with the works on 02.06.2016. You agree that it was you on your own accord as a project director at site gave instructions to Kwang Li to proceed with the works immediately one day after their quotation was issued. That is on the 02.06.2016. Agree? Agreed. [69] With respect, I must agree with learned counsel for the Plaintiff that D2 had contradicted himself in cross examination on this point of who instructed him to issue the Notice to Proceed and I conclude thereto that D2 had issued the said Notice To Proceed on his own accord and without instructions from the Plaintiff. This is also evidenced,from my findings that D2 being an employee of the Plaintiff would surely have known that it should be MRCB Builders Sdn Bhd who should have issued the Notice To Proceed and that the so called “Malaysia Resources Cooperation Berhad” was not the proper company or entity, which by the way was a non existent entity, to issue the said Notice To Proceed. [70] To this end it can also be found in the evidence at trial that D3 as the Project Manager, who was the Plaintiff’s No.2 officer stationed at the construction site, was also inconsistent with His testimony when he had earlier testified that he was unaware of any document appointing D1 to supply machineries to the Plaintiff. D3 had however later testified that he had sighted the Notice to Proceed dated 2.6.2016 but could not state as to how D3 had sighted the same. This can be seen from:-

[Page 218 Nota Keterangan (3)] Look at page 4 of Bundle G. Have you seen this letter before? Yes. And this definitely you would have seen in the course of your duty as a project manager at site. Correct? I can't remember whether it was immediately at that point of time when I read this. Can you share how come this letter was brought to your attention? You can explain on this. No way for me to explain. No way to explain? No way to explain.

(ii) [Pages 218 – 219 Nota Keterangan (3)] Could be in the course when you were verifying and checking as to whether Kwang Li has delivered the earth or even supplied the machineries. During that course you could have seen this letter, could it be? Can you please don't make assumption. No, I’m not making, I’m asking questions. I’m not making assumption. I'm asking could it be. No, impossible. [71] Following from this, I am thus enable to accept D3’s evidence on the Notice To Proceed and give very little weight to his testimony on this point. [72] In conclusion, I hold on a balance of probabilities that the issuance of the alleged Notice To Proceed was a deliberate act which was concocted and falsified by D2 and which was meant to create or show an alleged contract between the Plaintiff and D1. Representations made to the Plaintiff [73] It is contended by the Plaintiff that it’s Chief Operating Officer, Zulbahari Abu Bakar approved D1’s claims for RM67,893.00 (With GST) on the representations and assurances by D2 and D3, which consisted in SP4’s testimony under cross examination as follows:- [Pages 45 – 46 Nota Keterangan (3)] Ok. I take your answer. Ok, so that's what my question was about. Now you go to your third paragraph, ok? So having heard what you say about Peter Cheng, your third paragraph says this, and we are still on IPC No.1, En Zul. ‘When I consulted Chan Kah Wai and Chai Yee Hin on the validity of IPC No.1, both of them advised and represented to me’. So, in En Zul in this case, you only consulted Peter Cheng. Do you agree or disagree? No, I disagree, because representation can be in many forms counsel, alright? Can be many forms. It cannot be in – Ok, hold on. Ok, so maybe I asked the question then yes can explain. Yes. Alright. My question for this is, what was the specific advice and representation given by Mr Chai Yee Hin to you at the time for IPC No.1? Because, like I said that I look at the signature you know, so that is a representation to me. Sorry, when you say you… the only ok. Am I, is it your evidence that the only advice and representation that Mr Chai gave in respect of IPC No.1 is found at Bundle C, page 58 and 59 where he put his name, chop and signature there? Is that your evidence? Am I correct to say that? First the invoice, then in the table, the delivery you see. This is – No, so that's why I'm asking. Comes back to my main question En Zul – Yes, correct. Betul. Please listen, I repeat again so that it’s clear. My question is this, what was the specific advice and representation given by Mr Chai Yee Hin to you when you said that you consulted, well him and Mr Chan. So, I'm talking about Mr Chai, my learned friend will cover for Mr Chan but I'm talking about Mr Chai the project manager. Ok, first is the signature. Alright. Alright, the signature and like I told you earlier, that I spoke to Mr Peter Cheng, Mr Cheng would have basically spoke to the site people you know, Chan and Chai and that is how I put it in my witness statement counsel, what I meant.

(ii) [Page 86 Nota Keterangan (3)] As far as Mr Chan is concerned, like I said, I think the way I answer is 1that representation can be in many form. I think that's what I said earlier, this morning. Yes. And in this case is that Mr Chan has signed the site verification. Alright. Ok. So, can I take it your answer is the representation made by Mr Chanto you is the fact that he signed the site verification? Of course. Like I said earlier in the morning also that I said that every time I go to site, project director without fail – No, I'm talking specifically for IPC1. Your answer in Question 13. Ok. IPC1, yes, based on his signature. Based only on his signature of site verification. Yes, because I did not know him during that time. IPC1, yes. So based only on this signature. Ok. [74] SP4 had further testified as against D2 and D3 of the representations and assurances made by D2 and D3 being as follows:- Cross-examination of Zulbahari Abu Bakar (PW4) on 6.6.2023

[Pages 47 – 49 Nota Keterangan (3)] Alright? So, it's a similar kind of evidence you are giving, paragraph 2, you know when consulted, both of them again advised and represented to me that the documents are in order, and I can approve the same. So same question on IPC No.2, what specific advice and representation did Mr Chai gave to you in respect of IPC No.2? Ok, with respect to No.2, it was during the site walk, because one right, because in one of the visit that when we had the sidewalk, then one of the thing that I asked, because I was very particular about the, you see at the point when I signed this in September right, now I was told that the earth has stopped, then it was it is good, right? If you remember that the PO, sorry not the PO. If you remember here that that basically that for the month of July and August is stopped, right? Then the only way that I could get an answer whether it stopped or not is through him, alright? The supply has stopped, alright? So with that, then I signed the what is called it, the IPC based on the purchase order that we have, that was issued to the Plaintiff earlier. When was this supposed site walk you just mentioned En Zul? This is around this time. Because September, August, September I'm already quite involved at the site counsel. Ok. So is it your evidence that you brought along the interim… I suppose you haven't signed the IPC No.2 at that time when you went for the site walk. No, it was just – So is it your evidence that you brought along the interim payment certs and the supporting documents to the site and then you asked for a site walk with Mr Chai and then suddenly you asked him about IPC No.2? Is that your evidence? I did not, I don't normally bring payment cert with me lah during site. I don’t – Or even the supporting documents? Yes. Fair enough. Because normally sometimes is what happened, what actually happened, what sometimes happened is like this, every time I go to site, project directors will come to me say that boss, payment not paid, boss this, boss that, boss that, boss that, you know. This is normal, right? So when this was brought up to me, alright, then they were saying that you know payment for this, payment for that. I said ok, fine, prepare the cert, send it to HQ, alright? I never signed any cert at site. That's one thingfor sure, alright, but the thing is that normally I would ask, now this particular cert that you, this particular payment that you want to do, you want to make, ok, have they done it or not? Everything ok or not? so you sign the site verification, everything is order, then send it to HQ, then I will process the payment. So that's normally I can recall what has 1 happened. Pages 50 – 51 Nota Keterangan (3) Alright. When a project manager or project director asked me to pay, this pay that, you know something like that, so I said that, do your verification and send it to site office, alright? Sorry, send it to HQ, then the HQ – I pause you there. Is it your evidence that Mr Chai had explicitly asked you at that time for you to pay the contractor? Normally they will not say like this. What they would say is that, ‘bos ini payment belum bayar, ini bos pun payment belum bayar’. Ini memang normal. Yes, correct. Normal, everywhere. Understood. So, my question is, did Mr Chai during this site walk as you claimed En Zul, around September 2016 look to you and say, ‘bos, ini belum bayar’, is that your evidence? Did he specifically say that to you? Yes, I can recall that. Most of the time, if I bump, if I see him, if I walk with him, this is what the project manager and the project director will say to me. This memang normal. Did he say in this specific… sorry. I'm repeating the question, but when was specifically was this site walk you claimed? You signed this in the September 2016. When was the site walk? The site walk should be around that time, counsel. I cannot recall exactly the dates are. But you, is your evidence, is it your evidence that for this specific issues in IPC No.2, Mr Chai looked to you and says that ‘belum bayar Kwang Li lagi’? I’m only on IPC No.2. What I can confirm counsel is that there are times, there are quite a few times where he has escalated that we have not paid Kwang Li, alright? That one, I can confirm. This is my evidence to the Court. When did he escalate this issue to you directly? Whenever we have a site walk, whenever I see him or bump into him, right, whenever I go and see, whenever I have a set of walk with him, whenever that he said that this is not paid, this is not paid, Kwang Li name, at that point of time the subcontractor was, you know one of them is Kwang Li, so they said Kwang Li have to be paid or something like that. Then I said then fine, do site verification and send it to HQ. That's what any boss would say. How many times have you went on a site walk with Mr Chai? Not many times, but enough during his, because during his tenure, not many times, but enough.

(iii) [Page 89 Nota Keterangan (3)] Yes. Now, if you look at Question 15, Question & Answer 15. Again, you say that you consulted Mr Chan and Mr Chai. And then, in reliance of their representation, you’re satisfied. Is this the same that the representation here is the signatures that Mr Chan did? No, by this time, I know Mr Chan Kah Wai already. By this time, you know, so I have, like I said, in September, because I was travelling to site more frequent already. Ok. So, what is it that you spoke to him regarding IPC2? Similarly, what I said in this morning, without fail, that every time I go to site, is that they would highlight that this is not paid, that is not paid. So, my standard answer is that, ‘Yes, you do your part. You do your verification and send it to HQ’. You know, so, as a CEO, I don't particularly discuss because I know that there is layers in HQ that they will do some, you know – Can I ask you, we now know that the total quantity of earth supplied is not in dispute in this case, for the three payments. So, what is it with regards to these three payments that Mr Chan told you that turned out to be untrue? Like I said, this comes later. [75] On IPC 3, SP 4 had in relation to the same testified that D2 and D3 had made the following representations and assurances: Pages 52 – 53 Nota Keterangan (3)] Again is, the what, but for record purposes again, for IPC No.3 which is in page 267 En Zul, what was the specific advice and representation that Mr Chai gave to you in respect of IPC No.3? Ok, this No.3 is special. This one I remember, because why, because the representation that was, which was made to me because he attended, remember in my witness statement I said, that I have met, I have bumped into Mr Lim Soon Seng, alright, in sometimes November December or February. I cannot be seeing Lim Soon Seng without the accompany by Chan and Chai, right? Both ada, and I remember in that site cabin, both of them were there. In fact, they were the one, I did not know Mr Lim Soon Seng, Kwang Li. I never met him before that particular… so it was them, definitely it was them who introduced that to me and that's when you know that particular, what you call it short discussion took place and that's when the invoice of machinery start to become an issue, alright? So definitely this one, I know that he was there. Who was there? We are talking about – Mr Chai and Mr Chan both are there. Ok. So again, what did, again, perhaps let me repeat it again En Zul. For Mr Chai, I'm acting for Mr Chai, what did Mr Chai specifically advice and represented to you for IPC? What did he say to you? You say you met 28 him there. What did he told you specifically? So again, what did, again, perhaps let me repeat it again En Zul. For Mr Chai, I'm acting for Mr Chai, what did Mr Chai specifically advice and represented to you for IPC? What did he say to you? You say you met him there. What did he told you specifically? Exactly he said, I cannot recall, but issue about machinery was brought up. Right. Machinery. No, but, En Zul, let's look at it slowly. You see, we are at IPC No.3 now, ok and you can see at page 267, you signed there, yes we can see Mr Chan Kah Wai's signature there and there's another one Aldela Puspa Nordin there. So on this specific matters arising from IPC No.3, your witness statement says, like ‘when consulted, Chan Kah Wai and Chai Yee Hin, both of them again advised and represented to me that the 6 documents are in order and I can prove the same’. So, you mentioned yourself about this meeting that you clearly remember both of them. My question to you is simple, what did Mr Chai, ok, Mr Chan will be asked later. What did Mr Chai specifically say to you that constituted advice and representation? Two things were confirmed. Alright? Sorry, one thing that confirm that they said that the supply of earth took place in September, alright? No.2, is that the issue about machinery, alright? The issue about machinery where invoices was not paid. Yes, so – Alright? So these are the two things I remember that was how the words that he uttered exactly I cannot remember, alright, but I remember the issue. I remember the issue that was raised. The supply in September happened and the machine, invoiced machine not being paid. Two things. So that's brought to my attention during that time. [76] It is also in evidence that Patrick Hwang (SP3) had also testified, which testimony I find as not being convincingly rebutted by the Defendants, that SP4 was satisfied that D1 was properly appointed only due to the misrespresentation by D2 as to the urgency of the matter. page 16 of NOP 2 Ok. So, you were satisfied that the Plaintiff. Sorry, you were satisfied that the First Defendant was properly appointed by the Plaintiff and based on that you proceeded to sign this purchase order. Correct? Yes. Based on the urgent matter that presented by the project director to me during that times. [77] Thus I am on a balance of probabilities convinced after looking and considering in detail at the entire evidence before me, that the Plaintiff had only agreed to appoint D1 to supply the earth based on the alleged misrepresentation made by D2 and D3 as outlined above as to the urgent need for the said supply of earth at the Projects. [78] I also hold that after a through assessment and examination of the evidence before this Court, which I have considered in my grounds herein, the Plaintiff has proven that the Plaintiff’s contention that it’s Chief Operating Officer, Zulbahari Abu Bakar had approved D1’s claims for RM67,893.00 (With GST) was only made due to the representations and assurances by D2 and D3 has been on a balance of probabilities been proven to be true. The Purchase Order (PO) [79] It is the Plaintiff’s submissions that D2 had informed Patrick Hwang (PW3) that there was a urgent need of earthwork at the construction site, and that he had recommended D1 as the sub-contractor to carry out the earthwork. This can be found at the NOP:

[Page 4 PW3-WS] “Q12: Please refer to page 56 of Ikatan Dokumen Bersama (Bahagian A & B)(Enclosure 156). Do you recognise this document? A: Yes, this is a Purchase Order dated 30.6.2016 issued by MRCB Builders to Kwang Li Construction and Transportation Sdn Bhd. I was the authorised signatory for MRCB Builders. You can see my name and signature on this document dated 30.6 .2016. “Q14: Can you explain why did you sign it? A: It was part of my job responsibility to such sign such documents on behalf of MRCB Builders. As I recall, prior to signing, I made enquiry from the site, from Chan Kah Wai on this Purchase Order. I was informed that the site required the supply of earth urgently. Therefore I signed the Purchase Order to allow the work to commence.”

(ii) [Pages 19 – 20 Nota Keterangan (2)] You cannot remember. Alright. Now can I refer you to paragraph 40 or rather Question 14 of your witness statement. You said that, ‘I was informed that the site required the supply of earth urgently. Who informed you that the site required the supply of earth urgently? Mr Chan Kah Wai. Mr Chan Kah Wai. And Mr Chan Kah Wai, the Second Defendant. Correct? Yes. [80] The Plaintiff then submits that due to the urgency of the matter, the Plaintiff had on 30.6.2016 vide a Purchase Order appointed and instructed D1 to carry out earthwork for a period of 1 month for the contract sum of RM250,000.00. Patrick Hwang (PW3) explained that the rate contained in the Purchase Order was intended to include supply of both earth and machineries (which were required for earthwork) where PW testified :-

[Pages 5 – 6 PW3-WS] “Q18: Please refer to the Purchase Order dated 30.6.2016 again at page 56 of Ikatan Dokumen Bersama (Bahagian A & B)(Enclosure 156). It says “supply earth by using tipper lorry 10 wheels”. Please explain what is the actual scope of work for this. A: It means that Kwang Li Construction and Transportation Sdn Bhd is to supply earth and the machineries for the leveling and compaction. It is not limited to supply of earth only. Looking at the price of RM350 per trip, anyone in the construction industry line will know that at this price, it shall include the supply of earth and the machineries for the leveling and compaction for the earthwork.”

(ii) [Page 21 Nota Keterangan (2)] And you would agree that the PO does not include the supply of machineries by the First Defendant? No. Not really. Looking at the rate of RM350 dollars, it should be include. So you say that the PO also includes machineries? Yes.

(iii) [Pages 23 – 24 Nota Keterangan (2)] You disagree. Now can I refer you to page… sorry, Question and Answer 18 of your witness statement. Now if I refer you to the… to your Answer the last paragraph, last page of your witness statement. You said here ‘Anyone in the construction industry line will know that at this price, looking at the price of RM350 per trip, anyone in the construction industry line will know at this price it should include the supply of earth and the machineries for the levelling and compaction for the earthworks. When you say ‘anyone in the construction line’ who are you referring to, Mr Patrick? Market price you can verify that with the professional QS. RM350 dollar is equivalent to RM35/m3 for supplying imported earth including compaction that kind of thing. During that time there about six years ago 1 RM35/m3 is really a good price already including compaction. [81] It is further shown that Patrick Hwang (PW3) had futher explained that the Plaintiff had issued a Purchase Order instead of a Letter of Award for earthwork, due to the purported urgency alleged by D2. For this particular case like earthwork, it’s quite rare. That’s why I can remember this being done because due to urgency they need it to be done immediately that’s why we do and the… like the PO basis. Normally for earthwork we issue a letter of award in the contract basis. Ok. So, did you ask why in this case there was no letter of award? Yes because they been presented to me, like project director due to urgency of the works and they want to immediately start to mitigate the delay at site. That’s why I agreed just to issue the PO. [82] In re examination PW3 had again reiterated his testimony on this issue of ‘urgency’ when he testified that: Ok, when the, I got to sign this PO, and first things I spoken with the project director on the site, because he are the one that who present to me and explain that this earthwork need to be urgently carry out. If not, it will delay the work progress at the sites. And into that necessity, and he had, also had negotiated with this Kwang Li Construction on the scope, and the price as well. When that have been presented to me, and I think that is a reasonable date to go ahead with it, due to the urgency, what he had presented, in order not to delay the work on ground. That’s why we have signed this PO and go on. And earlier I did say that, in fact, this nature of purchase order for earthwork to be awarded under PO, in fact it’s quite rare, the way that we manage in MRCB. But due to the urgency, where I agreed that it go ahead in that manner. Normally on the earthwork, this kind of things, we will issue a contract with letter of award that would clearly specify the scope of work and the specification to it. But due to the urgency of it, and I had agreed to proceed with it without go through normal process of a letter of award and contract to it. And, again, this is only to a very specific period of times, that is until the end of July only. [83] Be that as it may, it was contended by the Plaintiff that the rate contained in the Purchase Order was intended to include supply of both earth and machineries (which were required for earthwork). [84] Following from all of the above and the entire chain of evidence before me which is referred to in my grounds herein, I find on a balance of probabilities that the Plaintiff has proven on the facts before me that D2 had informed Patrick Hwang (“PW3”) that there was a urgent need of earthwork at the construction site, and that he had recommended D1 as the sub-contractor to carry out the earthwork, which resulted in the Plaintiff issuing a Purchase Order instead of a Letter of Award for earthworks. Witnesses Credibility & Failure To Produce Key Witnesses [85] The Defendants had in essence submitted that the testimony of the Plaintiff’s witnesses ought not to be given weight considering the inconsistencies in their statements during the course of the proceedings. [86] It is also submitted that the Plaintiff’s have failed to produce key witnesses and that adverse inference should be drawn from the same in accordance with section 114 (g) of the Evidence Act 1950 which states that “evidence that could be and is not produced would if produced be unfavourable to the person who withholds it”. [87] In furtherance of the same, the Defendants contended that many of the Interim Payment Certificates [Site Verification] and Interim Payment Certificates were actually prepared and approved by various Site Quantity Surveyors and Contract Managers, and that the failure to call all these witnesses and produce certain documents such as bimonthly reports for the progress of construction at site would amount to an adverse inference against the Plaintiff. [88] I have thus considered the Defendants submission that the Plaintiff should call all of its officers to testify as to how D1’s claims were approved and how payments were made to D1. [89] The law states that an interim certificate merely contains an estimate of the value of the work done and is not final in nature as per the Federal Court case of Usima Sdn Bhd v Lee Hor Fong (trading under the name and style of Pembinaan LH Fong) [2017] 5 MLJ 273, where the Apex Court held that:- “[20] By its very nature, an interim certificate can never be considered as a final determination of the value of works done or programmed in the contract. We reproduce below what the learned author Chow Kok Fong states in his book titled Law and Practice of Construction Contracts (4th Ed) Vol 1 at pp 441–442:

8.12 Interim certificates are certifications of payments made in accordance with some timeline stipulated in a construction contract. In essence, a certificate is a statement by the certifier (typically the architect, engineer, contract administrator or Superintending Officer) that during the period covered by the certificate, the contractor has carried out the works and supplied materials up to the value shown in the certificate as well as the net amount which the contractor is entitled to be paid, after allowing for the adjustments permitted by the terms of the contract. These certifications are never intended to be a precise or final determination of the value of the works. Thus, Hobhouse J in Secretary of State for Transport v Brise-Farr Joint Venture (1993) noted: At the interim stage, it cannot always be a wholly exact exercise. It must include an element of assessment and judgment. Its purpose is not to produce a final determination of the remuneration to which the contractor is entitled but is to provide a fair system of monthly progress payments to be made to the contractor.

8.13 In the absence of any provision to the contrary, the sum certified in an interim certificate is thus taken to be an estimate of the value of the work done up to the date shown in the certificate. Thus, while the employer or owner is obliged to pay what is certified, the amount certified is not binding on the parties and may be adjusted upon the completion of the works. [21] Speaking on the same subject matter, Keating on Construction Contracts by Stephen Furst (8th Ed) London Sweet and Maxwell, 2006 at p 139 says: Interim certificates are thus approximate estimates, made in some instances for the purpose of determining whether the employer is safe in making a payment in advance of the contract sum, in others whether he is under a duty to pay an instalment and, if so, how much he is to pay. A contractual right to receive payments for the value of work done and materials supplied arises not upon the work being done but upon the issue of the interim certificate in respect of such work and materials. Such certificate are not normally binding upon the parties as to quality or amount and are subject to adjustment on completion. They have been described as having ‘provisional validity’ or being ‘provisional estimates of the sum to which the contractor is entitled by way of instalment payments’. The sum certified is not the true final value of the work done and materials supplied but what in the opinion of the engineer is due on the basis of the monthly statements.” [90] Based on the concept of what an IPC is as mentioned in the aforesaid case, I therefore cannot accept and hold that the said Defendants contention that the Plaintiff should call all of its officers to testify as to how D1’s claims were approved are baseless. I further hold that the Court can and should assess the totality of the evience before it based on the facts, documents and submissions of the parties before deciding on any point or issue and that the failure to call some witnesses on any such point or issue would not necessarily cause the Court to draw an adverse inference from the same in accordance with section 114 (g) of the Evidence Act 1950. [91] The Defendants had futher submitted that the Plaintiff’s key witness Mr. Venkitesen (SP-1), who was from the Plaintiff’s Integrity Department, allegedly conducted investigations for this case and that his findings led the Plaintiff in filing this suit. [92] It was then submitted by the Defendants that throughout his evidence, SP1 / Mr. Venkitesen did not appear to be a credible witness as he could not remember many salient information allegedly obtained from his purported investigation. [93] With respect, I find that the failure to remember certain information in SP 1’s investigation is not by itself an indication of SP 1’s lack of credibility as a witness in these proceedings. It must be remembered that the investigation conducted by SP1 was sometime in the year 2020 and that his testimony in Court was done in the month of April of 2022, which is approxiamtely 2 years later, and that it would in the circumstances inter alia be normal not to remember or recollect some specific details such as when SP1 met up with the D1’s representatives, when SP1 left the Plaintiff company, as well as the exact names of who assisted SP1 in the investigations. [94] Although I was not the presiding judge at the time when SP1 had testified as I only took over the matter later, I had perused the NOP and found from my assessment of the same that SP1 appeared to be objective and truthful although he could not remember the exact details to some of the questions posed to him under cross examination. [95] Thus I have accepted SP1’s evidence as to be believed and that SP1 was a credible witness after testing his testimony and evidence agaisnt other contemporaneous and corroborating evidence such as the documents and/or records before this Court. Tax Invoices & Interim Payment Certificates (IPC) [96] The evidence before this Court thus shows that the Plaintiff had issued a Purchase Order No. MSBS/Westin/02 dated 30.6.2016 (“Purchase Order”) to D1 and following the same, D1 had purportedly supplied earth for the Projects and had issued invoices to the Plaintiff being as follows: No. Tax Invoices Date Project(s) Amount 1 Tax Invoice 961606- 015 21.6.2016 Westin 64,050.00 2 Tax Invoice 961606- 044 30.6.2016 Westin 68,950.00 55 3 Tax Invoice 961606- 027 15.9.2016 Westin 44,100.00 4 Tax Invoice 961609- 047 30.9.2016 Westin 36,750.00 [97] I have however found that tax invoice no. 961606-015 was:

not signed by D1’s representative; and

the Plaintiff had not acknowledged receipt of the same [98] It was contended by D1 that the Plaintiff had subsequently certified the above invoices by way of 3 interim payment certificates (“IPC”): IPC No. Date 1st Defendant’s Tax Invoice No. Amount (RM) IPC No.1 June 2016 961606-015 64,050.00 IPC No.2 July 2016 961606-044 68,950.00 IPC No. 3 September 2016 961609-027 44,100.00 961609-047 36,750.00 Total RM213,850.00 [99] D2 therefore submits that the Plaintiff was satisfied that D1 had been appointed as the Plaintiff had verified the above three IPCs for the supply of earth given by D1. It was further submitted by D2 that the Purchase Order corresponded with the Quotation issued by D1 to the Plaintiff. With respect I find this submissions as being misconceived for the reasons I will allude to later. [100] At this point however I would like to address the contention by D2 that En. Zulbahari (PW-4) had also agreed during cross examination that the Plaintiff is not disputing D1’s appointment and this Court was referred to the NPO where it SP4 had testified (page 70 of NOP 3) HR So would you then agree, if I put it to you, that you're not disputing that the First Defendant was appointed, and they did work? You are only disputing how much they did and how much they're claiming. ZUL At the point of the PO, purchase order, the purchase order was issued, yes, the appointment was there [101] From my assessment of the above said testimony, I do not agree with D2’s contention that En. Zulbahari (SP4) had agreed that the Plaintiff is not disputing D1’s appointment as SP 4’s testimony on D1’s appointment was related to and in the context specifically at the point of the evidence of the alleged PO being issued and not that D1’s appointment itself was valid at any material time. From the NOP, I have also found that SP 4 also did not testify in his evidence or testimony before this Court that the PO itself was valid. [102] In coming to my decision I have also considered and examined the document entitled “Limits of Authority” produced by the Plaintiff, at page 14 of Bundle C, whereby D2 alleges that D2 as a Project Director does have authority to appoint subcontractors for projects that do not exceed RM250,000.00. [103] I have also read En. Zulbahari (SP4) testimony during cross examination on this point at page 97 of NOP 3 where SP4 testified this was based on the Project Director under a grade 7 who holds a General Manager (“GM”) position whilst D2 only had a grade 6 position and was not a GM. This position is consonant with the document entitled “Limits of Authority” at page 14 of Bundle C, whereby there is a heading entitled “PD GM” at the top row second last column which I find indicates that only a Project Director who is a GM can make such approvals. [104] The above finding of mine is further corroborated by D2’s Letter of Appointment which can be found at page 55 of Bundle B where SP4 has under re examination referred to the same and where D2 is clearly referred to as “Senior Manager” and not a GM, which thus supports my above finding. [105] If I may continue, thereafter the evidence shows that the Plaintiff had made payment in the sum of RM213,850.00 to D1 for invoices 961606-015, 961606-044, 961609-027, and 961609-047. [106] D2 alleges that in the IPC at page 219 of Bundle B there is a “Note” or a remark that says the first payment to the contractor would not be paid unless the Finance Department sees documents showing that the contractor was rightly appointed. To this I have examined the said IPC concerned and found that the remark did not state as contended by D2 but stated and I quote “The first payment is to be attached with a copy of the duly signed appointment letter concerned…”. [107] This was as per SP 4’s testimony done via theNPOP attached as per his testimony as follows: - page 84 of NOP 3 Now, you look at below remarks there is a note there. Below... ok, alright. The first payment is to be attached with a copy of the duly signed appointment letter concerned. So, would you agree what it means is before they make the first payment to this subcontractor, they must have the signed appointment letter? Yes, a PO was attached. [108] Thus, I hold that “Note” or the remark in the IPC at page 219 of Bundle B is not evidence that D was rightly appointed as contended by D2. [109] D1 then alleges that sometime between June to November 2016, D1 had also supplied machineries to the Plaintiff for the Projects based allegedly on the Plaintiff’s instructions and had issued the following invoices to the Plaintiff:

Tax Invoice No. 961606- 021 20.6.2016 27,321.50

Tax Invoice No. 961606- 047 30.6.2016 55,500.16

Tax Invoice No. 961607- 039 31.7.2016 108,847.63

Tax Invoice No. 961608- 050 31.8.2016 126,809.26

Tax Invoice No. 961609- 045 30.9.2016 114,249.51

Tax Invoice No. 961610- 031 31.10.2016 119,749.09

Tax Invoice No. 961611- 044 30.11.2016 112,795.96 Total Outstanding (RM) 665,273.11 [110] D1 also contends that at all material times, the Plaintiff did not object and/or dispute the invoices for the machineries issued by the Plaintiff. [111] I have observed and it is pertinant to note that D1’s tax invoice dated 30.6.2016, at Bundle G page 6, which is for the sum of RM55,500.16 (with GST) came with an attached rental card belonging to one Kuang Yi Machinery & Trading Sdn Bhd , as seen in Bundle G page 7, and that the same was not verified by any independant testimony. I cannot therefore accept this rental card as being proven to my satisfaction. [112] Further to this I accept learned counsel for the Plaintiff’s submission that the total hours of “OT” stated in the rental card for excavator is 21, which is inconsistent with the total number of “OT” for supply of excavator in the tax invoice (19 hours). [113] This Court has further observed that D3 testified under cross examination, as seen in pages 230 to 231 NOP, and admitted that he had realised the defects in D1’s claims when he first received the tax invoices but had elected not to alert the Plaintiff as it was purportedly somebody else’s work. Meeting Between the Plaintiff and the Defendants and the Issuance of Work Orders [114] I have further found, from the testimony of SP4 that at that time, the Plaintiff’s Chief Operating Officer, SP4 ,Zulbahari Abu Bakar and D5 (D1’s director) had a meeting between December 2016 and February 2017 to reconcile D1’s claims where SP4 testified: Page 13 of PW4 – WS “During one of the site visits between December 2016 until February 2017, I had a face-to-face meeting with the 5th Defendant, Lim Soon Seng. During the meeting, I informed Lim Soon Seng that MRCB Builders were unable to certify the 7 tax invoices. These invoices made no reference to any appointment from MRCB Builders.” [115] SP4 then testified that as a result of the meeting between SP4 / Zulbahari Abu Bakar and D5 between December 2016 until February 2017, the Plaintiff decided to issue 2 Work Orders to reconcile D1’s claims and that D1 agreed to the same. SP4’s testimony is as follows: Pages 14 – 15 of PW4 – WS “At that time, MRCB Builders was not aware of the false claims by Kwang Li. MRCB Builders was under the impression that Kwang Li’s tax invoices were legitimate and genuine as it were duly stamped and signed. Further, both the 2nd and 3rd Defendant as Project Director and Project manager did not raise any complaint on the same. Since there were certain discrepancies and to overcome the same, MRCB Builders decided to issue the 2 Work Orders to resolve any discrepancies.” [116] From the facts before this Court, the Plaintiff had subsequently issued two work orders (Work Orders”) to D1 for the Projects to reconcile D1’s claims which were to operate retrospectively, details of which are as follows: No Work Order(s) Date Amount (RM) Project 1 MBSB/15002/WK

8.3.2017 111,840.60 Westin 62 2

8.

3.2017 94,128.00 Conference [117] It was therefore contended by D1, and agreed by the Plaintiff, that the earth supplied by D1 pursuant to the Work Orders will be calculated according to the rate and units stated in Appendix B of the Works Orders which was to be at the rate of RM25 per m3 for the supply of earth and which is to be inclusive of machineries. [118] I have also noted and observed that by the deletion of 2 vital clauses in the 2 Work Orders dated 8.3.2017 relating to the clauses on “Progress Claim” and “Maintenance Period/ Defects Liability Period” respectively, I find that the Plaintiff and D1 did not intend to have any future works upon issuance of the Work Orders dated 8.3.2017 and which therefore is evidence that the 2 Work Orders dated 8.3.2017 were to operate retrospectively. [119] This finding of mind is corroborated by D1’s Admin Manager, Lee Chee King (“DW7”) in his testimony under cross examination, page 127 NOP, where he testified that there was no further supply of earth after the tax invoices dated 31.3.2017. [120] I also hold after examining the 2 Work Orders and the testimony of SP4 that the same had effectively combined D1’s tax invoices for supply of earth and machineries and settled the same under the label of “earthworks” and that the 2 Work Orders dated 8.3.2017 defined “earthworks” as seen in Bundle B pages 329 and 352 as: “Bulk excavation to the required formation level and load, transport, deposit and spread excavated material in areas to be filled and thoroughly compact in layers to the required formation level as the works proceed Supply approved imported structural soil earth filling to make up levels and deposit, spread and levelled in area to be filled including forming embankments and thoroughly compact in layers to the required level as the works proceed and including all the accessories plant and machineries” [121] DW7, who is D1’s Admin Manager, had also confirmed during cross-examination that the price of RM25 per m3 (meter cube) is inclusive of supply of earth and machineries and based on SP4’s testimony, the amount of earth in “m3 (meter cube)” can only be determined by way of an as-built survey. The Discrepancies [122] I now turn my attention to when SP4 discovered the discrepancies in relation to the alleged delivery of earth and machineries. In this respect SP 4 had testified and explained during cross-examination that he decided to visit the site after realising the inconsistent delivery of earth and machineries after SP4 had signed IPC No 3. In SP-4’s re examination he thus testified:- Pages 202 – 203 Nota Keterangan (2) “So, I said that, because I want to investigate. So, that’s what I said dalam my witness statement. Alright. That’s what I am trying to say. So, I went there. Alright. I went there. I said that, what is happening? You know why? Because simple sahaja, because masa itu I detect some discrepancy but I tak, I think it’s my nature lah, I tak fikir jahat lah, ya. I tengok ada discrepancy. Sebab apa? Simple. Ok, now, NTP, masa itu I tak tahu. PO, PO issue valid July, until July. Alright. Sebab sepatutnya is after July, then that’s it. There is no appointment for anything anymore. But suddenly, September delivery. Who instructed that delivery? I want to know. Definitely comes from either D1 or D2. Because clear cut that whatever appointment yang kita try to rectify sebelum ini, it happening again, in September. So, why, who is instructed to lead, you know? So, that’s why I went to the site. I went to the site, then I said, now, this cannot be happening anymore. Why is this happening? So, that’s when I try to resolve this thing by having a work order. So, that is something yang happened during that time, the timeline. Jadi kalau you tanya I that, the question is that would you, you know that, what was your question just now? …. No. My suggestion to you is, if at all these were vague, ambiguous or incomplete, at the time when you were approving these payment certificates, you could have picked these out. Yes, that’s why I cakap, that’s why I cakap, only when I signed No.3, then, I detected that something is not right because of on what basis September punya delivery happened? [123] To surmise, SP4 had stated in his testimony at Court that he found various discrepancies eg from where the machines comes from, under which contract and so on and so forth and that the dates and times do not match. SP4’s testimony is as follows: Pages 208 – 209 Nota Keterangan (2) In your chart, they are in dark brown. Box 3, 7, 10, 11, 16, 17 and 18 of your chart. Now, En Zul, I understand from your testimony that subsequently, there were work orders that were issued, sometime in 2017, to correct what you say are discrepancies in these tax invoices. Correct? If you refer to Item – Not tax invoices. There are a lot of discrepancies, when I said discrepancies itu, maknanya, that from where this machine come from, under which contract, so, that the discrepancy yang I am talking about lah. Alright. So, the discrepancy itu, meaning to say that whether, for example, you know, how I start nak resolve the discrepancies itu sebab apa? Because of the September punya delivery. Because kalau Yang Arif ingat, ya, PO Patrick, ya, sampai Julai. Alright. Jadi, sepatutnya that, that’s why bila semalam I explained, sebelum PO, boleh deliver. Kenapa lepas PO itu, stop deliver, tak ada deliver. Tapi machine ada. So, nampak macam tak match lah. What is happening? So, when I say discrepancy itu, that’s what I meant. So, that’s why bila I know that the site verification for September came to me in November, ya, I just nak tunjuk to the Court, ya. Sabar, counsel, ya. Payment Cert No.3, ya. Payment Cert No.3 is Enclosure 156,

Ok, kalau Yang Arif tengok dekat page 269, so, it reach the site office, sorry, from site office when they prepared the cert, site verification, then, dia signed on the 8th of November, so, then, HQ sebenarnya tak buat apa, ya, duduk dulu, sebab my question bila I nampak is that under which contract pula September ini jalan ini? Who instructed? Sebab who is making this commitment to the company? Ok. Jadi, so, what happened is that the discrepancy itu bila I nampak macam ini, so, I nampak, eh, ini tak boleh, cannot be. We have gone through this before which led to the purchase order. That now, it’s happening again. Somebody is instructing and definitely it has to come from D1 or D2 lah, to instruct D1 to supply balik sebulan, after stop for so long. Ya. Jadi, I cakap, I have to go to site, and find out what exactly is happening. So, that’s when that leads to, towards the end of the year itu, bulan November, bulan Disember itu, and that’s when, you know, we concluded that we issue a work order and that will basically cover everything. Ok. I am – So, that is the discrepancy. I just want to mention to you because the discrepancy ini sebenarnya bukan simply, oh, tax invoice, you know, no. The whole thing. [124] I have tested the aforesaid evidence against that given by D5 in this Court where he had testified amongst others tha SP4, Zulbahari and D5 purportedly met on 26.4.2017, and that the purpose of the said meeting was to discuss the purported outstanding works, where D5 had purportedly recorded the conversation; and that the 2 Work Orders were purportedly backdated. [125] I have found that the evidence of SP4 as being more credible and I hold that D5’s allegation is unsubstantiated as:

D5 was not able to produce any of the alleged voice recordings befoe this Court;

the 2 Work Orders dated 8.3.2017 were stamped on 27.3.2017, which meant that they were in existence prior to D5’s alleged meeting on 26.4.2017 as shown by the evidence at Bundle B page 307;

the 2 Work Orders dated 8.3.2017, are from the evidence seen in Bundle B pages 307 and 308, issued before D5 signed on the Work Orders on 17.5.2017, after which I found D1 further issued 2 tax invoices with the first invoice no. 961701-033 dated 31.1.2017 being for the supply of earth carried out from 2.12.2016 to 14.12.2016 and the tax invoice no. 68 961703-019 dated 31.3.2017 which was for the supply of earth carried out from 1.3.2017 to 31.3.2017;

these 2 tax invoices no. 961701-033 dated 31.1.2017 and the invoice no. 961703-019 dated 31.3.2017 respectively were, from my findings after examining Bundle B page 100 and 189 respectively, delivered to the Plaintiff at its site office on 3.4.2017 and that it now for the first time applied the unit price of RM25.00 and unit of measurement of M3 (meter cube). [126] Thus the aforesaid contemporaneous documents which were referred at trial are inconsistent with D5’s testimony and which, with respect, I find makes D5’s testimony suspect and cannot be accepted by this Court. [127] For the record, I have however noted that there is another tax invoice no, 961606-15 dated 21.6.2016, which can be found in Bundle C page 58, which was signed by D5 (D1’s director) and acknowledged receipt by D3, allegedly for the supply of machineries which D1 did not refer to in its submissions and which I have found contains the same exact invoice number, same particulars and same claim amount as per the 1st tax invoice dated 15.6.2016 which allegedly was for the supply of earth. [128] I also find that there is no evidence before me that D1 had attached the delivery orders with the tax invoice dated 69 21.6.2016 and thus it would not be possible for D2 and D3 to verify the particulars in the tax invoice dated 21.6.2016. [129] I therefore agree with learned counsel for the Plaintiff that without the delivery orders being attached, D1’s claim for supply of earth has not been proven. [130] I have also observed that at the trial, D3 however testified that he had never seen the said tax invoice, as shown in the NOP as follows:- Cross Examination of Chai Yee Hin (DW3) on 4.1.2024 [Page 223 Nota Keterangan (3)] So this is a tax invoice issued by Kwang Li as a subcontractor to MRCB Builders for the supply of earth from 2nd of June to the 14th of June. Have you seen this tax invoice before? I don't think so, never. [131] All of the above said evidence thus raises suspicion on why there were 2 different invoices with 2 different dates, one allegedly for the supply of earth and the other for the supply of machines. This piece of evidence leads this Court to the irresistible conclusion that the said invoices were a sham and were done for the purposes of supporting the Defendants allegations that the supply of earth were indeed required, accepted and supplied by D1. [132] I also note that D2 had testified that he has “gone through all the documents” before signing the Interim Payment Certificate No.1(Site Verification) as seen in the NOP as follows. Cross-examination of Chan Kah Wai (DW2) on 4.1.2024 [Page 170 Nota Keterangan (3)] Now for you to verify the IPC No.1 site verification as the project director, obviously you would have gone through all the documents before you put your signature down, right? Correct. Because you are the PD, you're going to verify this claim made by a subcontractor to your employer. Betul? Correct? Correct. [133] However in further cross examination D2 admits to have signed the Interim Payment Certificate No.1 (Site Verification) without sufficient supporting documents and that D2 agreed that he would have rejected D1’s claim and would not sign on the Interim Payment Certificate No.1 (Site Verification) if there is no supporting document:- Cross-examination of Chan Kah Wai (DW2) on 4.1.2024 [Page 174 Nota Keterangan (3)] Nothing? So you will agree that in this Court proceedings today that when Chai Yee Hin, when he signed and acknowledged this document at page 64 and 65, as per today in this Court, in this trial, there is no supporting document to show on what basis did he accept this supply of earth at page 64 and 65 by Kwang Li to MRCB Builders. Agree or disagree? Agree. And you agree that when it comes to supply of earth to site by a subcontractor, the best form of evidence for that subcontractor would be the delivery orders. Correct? Agree. [Pages 170-171 Nota Keterangan (3)] And you will agree if there are no supporting documents, you would not have signed IPC1, site verification, because you will ask for clarification. Correct? Correct. You would have rejected the Progress Claim 1 made by Kwang Li if there is no supporting documents. Correct? Yes, correct. [134] The evidence at trial also shows that D3 was referred to the tables at bundle B pages 63 to 65 allegedly showing the alleged dates and times of the delivery of earth to the Projects but that D3 could not remember and could not explain why he had signed off the tables:-

[Pages 224 – 225 Nota Keterangan (3)] Then the same Bundle B, we go to page 63. This is a table here, it says here, it shows from the 2nd of June to the 11th of June. Then you look at page 64 and page 65. Do you recognize this document, Mr Chai? I don't really remember. Well, your signature is there, confirm? Can you confirm at page 64 and 65, your rubberstamp, Chai Yee Hin, Project Manager, MRCB Builders on both pages and your signature is there. Confirm? Yes. Do you know, since you don't know what document this is, but do you know who prepared this document? Did you prepare this document? I'm not the one who prepared this, but I really cannot really remember. Do you know the purpose of this? If you look at the information in this page, 64 and 65, can you assist us? I can't remember. Sorry, I cannot assist. So would you normally chop and sign on a document in the form like in page 64 and 65 for a subcontractor I can't remember anymore. I think I didn't do such thing. That's very important because you know what happened, Mr Chai? If you can't remember and you say you don't do such thing, page 64 and page 65 is… if you look at the date on 64 is 3rd of June and if you look at page 65 on the top right-hand side, it is dated 2nd of June. Very important. So it is dated 3rd of June and 2nd of June. This is somehow, this is a substitute of the delivery orders of the earth that was supplied by Kwang Li on the 2nd and 3rd of June 2016 to the site. They prepared this table showing that these are the lorries, and these are the numbers of trips the lorries have made to the site supplying earth and they've used page 64 and 65 to issue their tax invoice at page 59. Can’t remember.

(ii) [Page 225 Nota Keterangan (3)] But he also say very important to have delivery orders. For supply of earth. So how? 2nd and 3rd of June 2016, no delivery order but there is two pages of tables here. Explain. I can't remember, so how do I explain.

(iii) [Page 227 Nota Keterangan (3)] Now I want you to help me solve the mystery that how did you acknowledge and verify page 64 and 65 on the vehicle numbers. At 64 there are three vehicles, at 65 there is five vehicles on the exact precise trips and time that they have delivered earth. What did you rely on, Mr Chai, before you place your job and your signature on these two pages? I have answered, I cannot remember. [135] I therefore reiterate it is therefore my decision that the above evidence referred to only goes to show that the Plaintiff had never requested the supply of earth for the Projects on its own accord but had accepted the same based upon the misrepresetations of the Defendants. Delivery Orders (DO) [136] I will now come to the Defendants further contention that the Delivery orders (“DO”) were allegedly used to support the claims for the supply of earth, and that Kong cards were used to support the claims for machineries. [137] This Court was referred to the tables at Bundle B pages 64 – 65 which were prepared by D1 and signed off by D3, allegedly acknowledging the total number of delivery by D1 on 2.6.2014 and 3.6.2014, and to which when D3 was referred to the tables, he could not remember and could not explain why he had signed off the tables:- Cross Examination of Chai Yee Hin (DW3) on 4.1.2024

[Pages 224 – 225 Nota Keterangan (3)] Then the same Bundle B, we go to page 63. This is a table here, it says here, it shows from the 2nd of June to the 11th of June. Then you look at page 64 and page 65. Do you recognize this document, Mr Chai? I don't really remember. Well, your signature is there, confirm? Can you confirm at page 64 and 65, your rubberstamp, Chai Yee Hin, Project Manager, MRCB Builders on both pages and your signature is there. Confirm? Yes. Do you know, since you don't know what document this is, but do you know who prepared this document? Did you prepare this document? I'm not the one who prepared this, but I really cannot really remember. Do you know the purpose of this? If you look at the information in this page, 64 and 65, can you assist us? I can't remember. Sorry, I cannot assist. So would you normally chop and sign on a document in the form like in page 64 and 65 for a subcontractor I can't remember anymore. I think I didn't do such thing. That's very important because you know what happened, Mr Chai? If you can't remember and you say you don't do such thing, page 64 and page 65 is… if you look at the date on 64 is 3rd of June and if you look at page 65 on the top right-hand side, it is dated 2nd of June. Very important. So it is dated 3rd of June and 2nd of June. This is somehow, this is a substitute of the delivery orders of the earth that was supplied by Kwang Li on the 2nd and 3rd of June 2016 to the site. They prepared this table showing that these are the lorries, and these are the numbers of trips the lorries have made to the site supplying earth and they've used page 64 and 65 to issue their tax invoice at page 59. Can’t remember.

(ii) [Page 225 Nota Keterangan (3)] But he also say very important to have delivery orders. For supply of earth. So how? 2nd and 3rd of June 2016, no delivery order but there is two pages of tables here. Explain. I can't remember, so how do I explain.

(iii) [Page 227 Nota Keterangan (3)] Now I want you to help me solve the mystery that how did you acknowledge and verify page 64 and 65 on the vehicle numbers. At 64 there are three vehicles, at 65 there is five vehicles on the exact precise trips and time that they have delivered earth. What did you rely on, Mr Chai, before you place your job and your signature on these two pages? I have answered, I cannot remember. [138] For the record I have also sighted the kong cards in support of the DO’s at page 9 to 38 of Bundle G and find that some of the kong cards are completely empty, the kong cards do not contain the names and identification number of the persons, whilst some only contain some particulars. [139] My findings also show that these kong cards do not show any purported supply of machineries such as tractors, road rollers or lorries. Thus, in my view as a whole these render the said kong cards as unreliable and questionable evidence of work done. [140] I also find there is no evidence either way of whether the said kong cards were genunine, accurate or otherwise and I am therefore unable to give much weight to the same although I am aware that En. Ikmal (“SP2”) had testified that he was instructed by D2 and D3 to sign off D1’s delivery orders and kong cards blindly and agreed under cross examination that there was no evidence to prove that the information in the kong cards were inaccurate. This however in this Court’s opinion does not mean on a balance of probabilities that the kong cards were genuine and reflect the actual value of work done as this Court has to look at the evidence presented to it was a whole. [141] In the circumstances, I have attached little weight to the said tables and the kong cards referred to as proof the said DO’s. [142] D2 had also under cross examination testified that the best form of evidence when it comes to the supply of earth would the DO’s themselves as seen at Page 174 Nota Keterangan (3) being:- Nothing? So you will agree that in this Court proceedings today that when Chai Yee Hin, when he signed and acknowledged this document at page 64 and 65, as per today in this Court, in this trial, there is no supporting document to show on what basis did he accept this supply of earth at page 64 and 65 by Kwang Li to MRCB Builders. Agree or disagree? Agree. And you agree that when it comes to supply of earth to site by a subcontractor, the best form of evidence for that subcontractor would be the delivery orders. Correct? Agree. [143] Without proof of all delivery orders attached, I find that the tables do not support D1’s claim for supply of earth. Conspiracy [144] From each of the evidence and the law on conspiracy which I have alluded to earlier on above, I hold that the Plaintiff has on a balance of probabilities, successfully established and proven all the elements of conspiracy i.e that the Defendants had conspired together, assisting D1 to submit false claims and misleading the Plaintiff into paying D1. [145] As such the Plaintiff’s case must be allowed. This is consonant with the case of Tekital Sdn Bhd v Sarina bt Kamaludin & Ors, [2012] 8 MLJ 734 where the Court held “..... if the plaintiff can show on a balance of probabilities that the various requisite elements in the cause of action have been made out, then it has proved its claim. If it fails to establish any one of the elements then it will fail.” Miscellaneous [146] Based on the Work Orders there is a requirement of D1 submitting as-built drawing as stated and agreed upon in Clause 17 but D1 had failed to submit the as-built survey as required and the Plaintiff is unable to determine the final value of earthwork as testified by SP4. [147] The Plaintiff then submits assuming 1 truckload of earth equals to 10 m3 (meter cube) of earth, the Plaintiff had overpaid D1 in the sum of RM3,100.00. The calculation is at below:- Description The 1st Defendant’s Claim (at the rate of RM35.00 per m3 according to the 1st Defendant’s tax invoice) The Plaintiff’s Payment (based on the rate of RM25 per m3 according to the Work Orders) First Payment RM64,050.00 Based on the Invoice 961606-015 (2.6.2016 until 14.6.2016) Quantity calculation method: 183 truck loads RM45,750.00 (Adjusted based on the Work Orders rate of RM25 per m3) Quantity calculation method: 1830 m3 Second Payment RM68,950.00 Based on the Invoice 961606-044 (16.6.2016 until 29.6.2016) Quantity calculation method: 197 truck loads RM49,250.00 (Adjusted based on the Work Orders rate of RM25 per m3) Quantity calculation method: 1970 m3 Third Payment RM44,100.00 Based on the Invoice 961609-027 RM31,500.00 (Adjusted based on the Work Orders rate of RM25 per m3) (6.9.2016 until 15.9.2016) Quantity calculation method: 126 truck loads RM36,750.00 Based on the Invoice 961609-047 (18.9.2016 until 30.9.2016) Quantity calculation method: 105 truck loads Total: RM80,850.00 Quantity calculation method: 1260 m3 RM26,250.00 (Adjusted based on the Work Orders rate of RM25 per m3) Quantity calculation method: 1050 m3 RM57,750.00 Further 2 tax invoices after Works Order RM44,000.00 Invoice 961701-033 RM14,000.00 Invoice 961703-019 (Adjusted based on the Work Orders rate of RM25 m3) Total: RM58,000.00 RM44,000.00 Invoice 961701-033 RM14,000.00 Invoice 961703-019 (Adjusted based on the Work Orders rate of RM25 m3) RM58,000.00 Table B The Amount payable to the 1st Defendant based on the Work Order rate of RM25 per m3 RM210,750.00 The amount previously paid to the 1st Defendant in the Payment Certificate No.1, No.2 and No.3 RM213,850.00 Overpayment Amount RM3,100.00 *All amount in RM are excluding GST [148] After considering and analysing the above calculations and the evidence before this Court, I do agree and hold that the Plaintiff has overpaid D1 and that D1 should repay the Plaintiff in the sum of RM3,100.00. [149] I have also found, as indicated in my grounds above that there is a lack of contemporaneous evidence in support of the Defendants claims and I quote and respectfully apply the ratio of the Federal Court in Tindok Besar Estate Sdn Bhd v Tinjar Company [1972] 2 MLJ 229, where Lee Hun Hoe CJ (Borneo) in delivering the judgment of the Court held “For myself, I would with respect feel somewhat safer to refer to and rely on the acts and deeds of a witness which are contemporaneous with the event and to draw the reasonable inferences from them than to believe his subsequent recollection or version of it, particularly if he is a witness with a purpose of his own to serve and if it did not account for the statements in his documents and writings. Judicial reception of evidence requires that the oral evidence be critically tested against the whole of the other evidence and the circumstances of the case.” [150] This Court therefore holds that the said lack of contemporaneous documents resulted in a failure to explain the numeorus irregularities, non-compliance and discrepancies which had taken place on the part of the Defendants. [151] For the sake of completeness, after the tax invoices issued by D1 dated 31.1.2017 no. 961701-033 and 31.3.2017 no. 961703-109, various police reports were then made by the Plaintiff between January 2020 to June 2020, against the Defendants alleging conspiracy between the Defendants. [152] The Defendants submits that the said police reports were made more than 3 years after receiving D1’s invoices, which delay suggests that the allegations raised are an afterthought and appears to be an attempt by the Plaintiff to evade payment to D1 for the Works carried out. I have rejected this contention based on all of my grounds which I have made herein. [153] It is also pertinent at this juncture for me to address the ‘elephant in the room’ being the issue of the alleged ‘urgent need for the supply of earthworks. After going through the entire evidence presented at the trial, the pleadings of the parties, in particular that of the Defendants, and both the respective written and oral submissions before this Court, I find that this issue of the alleged ‘urgency’ was never explained and not a single piece of evidence was shown to this Court of the reasons for the said ‘urgency’. This in my opinion is very telling and plays an important part in this Court’s determination of the matter before me. [154] I can only respectfully conclude that there was no valid or justifiable reason for the said urgency for the supply of earth and thus after looking at the body of evidence in toto especially the contemporaneous documents or lack of the same before me, I hold that that the said ‘urgency’ for the supply of the earth had never existed from day one and thus the entire case of the Defendants are a sham. Claim Against D4 & D5 [155] As to D4 and D5 who are the directors of D1, they had submitted that they had no direct contractual relationships with the Plaintiff. [156] Under the law, it is trite that both D4 and D5 are a separate legal personality from that of D1 and that in order to lift the corporate veil it must be shown to this Court that D1 was being used a mere façade to conceal the true facts. [157] The Federal Court had in Ong Leong Chiou & Anor v Keller (M) Sdn Bhd & Ors [2021] MLJU 393; [2021] 3 MLJ 622 had in this respect held: “[2] However the veil of incorporation is not entirely inviolable. One of the well-recognised and accepted exceptions to the principle of the separate personality of a company is where the legal entity of a corporate body is utilised for fraudulent, dishonest or unlawful purposes. Those seeds of limitation were set out in the locus classicus of Saloman v Saloman (above) itself by Lord Davey: “If … the company was formed for an unlawful purpose, or in order to achieve an object not permitted by the provisions of the [Companies] Act, the appropriate remedy (if any) would seem to be to set aside the certificate of incorporation, or to treat the company as a nullity, or, if the appellant has committed a fraud or misdemeanour... he may be proceeded against civilly or criminally….” [158] In the Plaintiff’s Amended Statement of Claim it was pleaded inter alia that D4 and D5 were the controlling mind / alter ego of D1 which was the vehicle used against the Plaintiff with assistance from D2 and D3 whereby the Plaintiff claimed exemplary damages from them. [159] It was further pleaded by the Plaintiff that D4 and D5 had acted dishonestly and the fraud committed by D4 and D5 were in ‘continuing, authorising, instructing and/or requesting their employees to issue additional tax invoices’ as well as colluding with D2 and D3 to commit amongst others a fraudulent scheme against the Plaintiff by misrepresenting the supply of earth and machineries needed. [160] I have found after looking at and carefully considering and analyzing the entire chain and body of evidence as well as the submissions and pleadings of the parties that there is sufficient evidence on a balance of probabilities that D4 and D5 had consented to and agreed for D1 to be used as the vehicle to be utilised for fraudulent, dishonest or unlawful purposes or actions mentioned in the Plaintiff’s Statement of Claim. [161] I am therefore lifting the corporate veil in this matter vis a vis D4 and D5 and I hereby hold that by the act of instructing, directing and/or allowing D1 to be used to participate in the scheme as contended by the Plaintiff as well as requesting their employees to issue additional tax invoices is by itself evidence that D4 and D5 knew of such actions perpuated by D1, D2 and D3 and as such were complicit in the misrepresentations made to the Plaintiff and thereby defrauding the Plaintiff herein that there were indeed a supply of earth and machineries by D1 for the projects when in fact there was no such supply of earth and machineries. [162] I must for the record state that the fact that it is alleged that none of the Plaintiff’s representatives had met D4 or that both D4 and D5 testified that D4 was not personally involved in the projects is insufficient to rebut the fact that D4 was not personally involved in the alleged actions of D1, as he would in my view know the workings of and operations involving a company the size of D1 which would include the alleged supply of earth herein where D1 had received the sum of RM213,850.00 from the Projects and which after looking at the Suruhanjaya Syarikat Malaysia (SSM) search dated 10.6.2020 on D1 as found in Bundle B, I found that D1 is a small company with a revenue of approximately only RM5.3 million in the year 2018. Decision [163] It is therefore ultimately my decision, based on all the evidence and this Court’s findings I have referred to, that D1, D2, D3, D4 and D5 had caused a deliberate plan among the Defendants to effect an unlawful purpose and cause loss and damage to the Plaintiff and abused their positions in misleading the Plaintiff into believing that D1 had been validly appointed and had carried out the said works. [164] I therefore dismiss D1’s counterclaim for the release of the retention sum and performance bond. [165] For the record, learned counsels for the respective parties were then directed by this Court to submit both in written form and subsequently orally before this Court on the issue of damages and costs. [166] I have after reading the Written Submissions and hearing the respective learned counsels for the parties hold that Special damages have not been proven by the Plaintiff and thus no amounts will be awarded under this heading. [167] Accordingly, this Court hereby now makes an order as follows:-

A declaration that the 1st Defendant did not / never supplied machineries to the Plaintiff in the sum of RM665,273.11 (Inclusive GST);

(ii) A declaration that the Plaintiff is not liable to pay the 1st Defendant for the rental of machineries in the sum of RM665,273.11(Inclusive GST);

(iii) That the Defendants jointly and severally pay the Plaintiff a sum of RM3,100.00 (Exclusive GST) being the overpayment sum;

(iv) A declaration that the 1st Defendant is barred / prevented from enforcing the above pleaded fabricated claims in any other legal forum;

General damages for breach of contract against the 2nd, 3rd , 4th and 5th Defendants and for colluding with / through the 1st Defendant to cause loss to the Plaintiff Defendants as well as for the fraudulent acts in the sum of RM 100,000.00 to be paid jointly and severally by the said Defendants;

(vi) Aggravated and exemplary damages as pleaded in paragraph 80, 86 and paragraph 93 of the Plaintiff’s Re-Amended Statement of Claim in the sum of RM25,000.00 to be paid by the Defendants jointly and severally;

(vii) Pre-judgment interest from the date of the Writ until the date of the judgment at the interest rate of 4% per annum;

(viii) Post-judgment interest from the date of judgment until the date of full and final realisation at the interest rate of 5% per annum; and

(xiii) Cost being payable as follows a. the 1st Defendant to pay the costs of RM50,000.00 to the Plaintiff b. the 2nd Defendant to pay the costs of RM20,000.00 to the Plaintiff c. the 3rd Defendant to pay the costs of RM20,000.00 to the Plaintiff d. the 4th Defendant to pay the costs of RM10,000.00 to the Plaintiff e. the 5th Defendant to pay the costs of RM20,000.00 to the Plaintiff Dated: 9th day of June 2025 NADZARIN WOK NORDIN HIGH COURT JUDGE CONSTRUCTION COURT 1 COUNSEL FOR THE PLAINTIFF: Amrit pal Singh & Ng Jun Wei (Messrs Amrit & Company] COUNSEL FOR THE 1st, 4th, 5th RESPONDENT: Rohan Arasoo a/l Jeyabalah, Lynn Foo and Ooi Hui Ying (Messrs Harold & Lam Partnership) COUNSEL FOR THE 2nd RESPONDENT: Harikannan Ragavan (Messrs Jayadeep Hari & Jamil) COUNSEL FOR THE 3rd RESPONDENT: James Ding Tze Wen (Messrs CH Tay & Partners)