Mrcb Builders Sdn Bhd v Efco (Malaysia) Sdn Bhd (WA-12BNCvC-52-04/2023)

This judgment deals with two appeals from the Sessions Court. Both appeals are related and arose from one trial.

The plaintiff [“EFCO”] has sued the defendant [“MRCB Builders”] for unpaid rentals of equipment and other claims relating to those equipment totalling a sum of RM 540,829.39, interest and costs at the Sessions Court. [See Statement of Claim in Appeal Record Part A Volume 1 Enclosure 3 pages 9 - 30].

MRCB Builders filed a Defence and Amended Counterclaim for a sum of RM 128,527.54 for unlawful set-off of the security deposit and other breaches of the contract, in the alternative damages to be assessed, interest and costs. [See Defence and Amended Counterclaim in Appeal Record Part A Volume 1 Enclosure 3 pages 93 - 130].

On 27-03-2023 after a full trial of 7 days the Sessions Court has dismissed EFCO’s suit with costs of RM 10,000 and also dismissed MRCB Builders’ Amended Counterclaim with costs of RM 5,000.

The learned Sessions Court judge’s Grounds of Decision can be seen in the Additional Appeal Record Enclosure 9 from pages 1 to 26.

A point to note is that the Sessions Court has dismissed EFCO’s suit on the ground that EFCO’s suit was premature due to a lack of certification of payment for EFCO’s invoices by MRCB Builders’ CEO. The learned judge thereafter dismissed the suit by EFCO without considering the merits of the suit. [See Enclosure 9 Grounds of Judgment at paragraphs 24, 26 and 27].

EFCO appealed to me in Appeal No. WA-12BNCvC-50-04/2023. [“Appeal 50”].

MRCB Builders appealed to me in Appeal No. WA-12BNCvC-52- 04/2023. [“Appeal 52”].

I heard both appeals together on 20-10-2023, 22-11-2023, 13-12-2023 and 02-02-2024. EFCO filed Enclosures 24 and 25 to be used in both appeals.

MRCB Builders filed Enclosures 12 and 19 to be used in Appeal 50. MRCB Builders filed Enclosures 17 and 23 to be used in Appeal 52. Enclosure 12 in Appeal 50 is identical to Enclosure 17 in Appeal 52. Enclosure 19 in Appeal 50 is identical to Enclosure 23 in Appeal 52.

I delivered decision on 29-03-2024.

I had allowed the appeal in Appeal 50 with costs. I held that EFCO’s suit was not premature and proceeded to hear the merits of the suit. I set aside the order of the Sessions Court and allowed the prayers in the Statement of Claim at paragraphs 24 [i] to [iii]. I also ordered MRCB Builders to pay costs of RM 20,000 here and below subject to allocatur.

For Appeal 52, consequential from my decision in Appeal 50, I dismissed Appeal 52 with costs of RM 8,000 subject to allocatur.

MRCB Builders filed appeals to the Court of Appeal against both my decisions on 24-04-2024.

These Grounds of Judgment will be my grounds for both Appeal 50 and Appeal 52.

EFCO is a limited liability company incorporated in Malaysia in the business of renting of formwork materials and/or related equipment.

MRCB Builders is a limited liability company incorporated in Malaysia with its principal business activity being that of a building and civil works contractor.

There is a project known as “Projek Penswataan Lebuhraya Bertingkat Damansara – Shah Alam Section B – Kota Damansara to Penchala Interchange – Package CB2”.

MRCB Builders was the main contractor responsible for the construction works. A company called Lian Fatt Trading Sdn Bhd was one of the sub-contractors hired by MRCB Builders to undertake some portions of the construction works. [“Lian Fatt”].

EFCO had entered into two rental agreements with Lian Fatt to provide rental equipment and materials.

Subsequently, MRCB Builders decided to take over the subcontract works from Lian Fatt. At that time, EFCO had already delivered a large portion of the formworks material and equipment requested by Lian Fatt to the Project site. MRCB Builders and EFCO agreed for MRCB Builders to take over and to use the formwork and materials which were being used by Lian Fatt. [See Appeal Record Part B and C Volume 2 Enclosure 4-page 45 Witness Statement of Andhi Irawan/PSP4 the District Manager of EFCO in Q and A 5; and Enclosure 4-page 4 Witness Statement of Khor Kok Keong/PSP1, the District Engineer of EFCO in Q and A 7 and 8].

EFCO and MRCB Builders thereafter entered into two rental agreements - i. EFCO Rental Agreement No. 1916003 and Special Conditions to EFCO (M) Sdn Bhd Rental Agreement both dated 28-03-2019. [“First Contract”]. [See pages 594 to 642 of the Record of Appeal (Volume 2) Enclosure 5]. ii. EFCO Rental Agreement No. 1916024 and Special Conditions to EFCO (M) Sdn Bhd Rental Agreement both dated 31-07-2019. [“Second Contract”]. [See pages 568 to 593 of the Record of Appeal (Volume 2) Enclosure 5].

Subsequently in 2020 disputes arose between the parties regarding non-payments by MRCB Builders.

EFCO filed a suit at the Sessions Court against MRCB Builders for unpaid rentals of equipment and other claims relating to those equipment totalling a sum of RM 540,829.39, interest and costs. [See Statement of Claim in Appeal Record Part A Volume 1 Enclosure 3 pages 9 - 30].

MRCB Builders filed a Defence and Amended Counterclaim for a sum of RM 128,527.54 for unlawful set-off of the security deposit and other breaches of the contract, in the alternative damages to be assessed, interest and costs. [See Defence and Amended Counterclaim in Appeal Record Part A Volume 1 Enclosure 3 pages 93 - 130].

EFCO contends in its Written Submissions Enclosure 24 from paragraphs 5.1 to 5.34 that its claim is not premature.

On the merits of its suit EFCO contends in its Written Submissions Enclosure 24 from paragraphs 3 to 3.17, reproduced verbatim below, as follows.

On or about April 2019, MRCB Builders had taken over and continued using the formwork and materials which were being used by Lian Fatt.

On or about 05-04-2019, EFCO and MRCB Builders had conducted a joint site inspection for the purpose of identifying the formwork equipment on the project site. The equipment was then transferred, on a “as is where is” basis, by Lian Fatt to MRCB Builders.

EFCO, MRCB Builders and Lian Fatt had signed off on EFCO’s Equipment Transfer Forms to indicate and verify the number and types of equipment that were identified and transferred. Subsequently, EFCO had delivered the residual materials and equipment required.

Pursuant to the Second Contract, EFCO had delivered all the formwork equipment needed by MRCB Builders to the Project site. MRCB Builders did not reject any of the deliveries nor did MRCB Builders raise any complaints to EFCO as regards to the same. In this connection, MRCB Builders had used all the equipment delivered to them.

During the rental periods of the said rental agreements, after MRCB Builders had completed a particular segment of the said project, MRCB Builders would periodically return portions of the formwork material and equipment to EFCO.

Upon receipt of each batch of equipment, EFCO had conducted an inspection and assessment of the returned formwork material and related equipment to determine the condition of the same, to wit, whether the said returned equipment was damaged, required cleaning and/or had parts that were missing. In this connection, EFCO had invited MRCB Builders to send its representative to carry out a joint inspection and assessment together with EFCO but the invitation was not taken up by MRCB Builders at any point in time.

Upon completion of each of the abovementioned inspection and assessment, EFCO had issued invoices charging MRCB Builders the rentals due, the costs of cleaning and/or the replacement costs of damaged beyond repair material and/or equipment (“DBR”).

On or about February 2021, MRCB Builders had indicated to EFCO that the last batch of EFCO’s formwork and equipment had been returned. EFCO had then proceeded to carry out the aforementioned counting and assessment of the said returned formwork and equipment.

Thereafter, EFCO had issued out invoices specifically for the formwork and equipment that were not returned and/or considered lost (“URE”). Each time these invoices were issued and rendered on MRCB Builders, MRCB Builders had not disputed and/or rejected the same. In fact, MRCB Builders had made payments on most of the invoices issued by EFCO.

However, on or about April 2019, MRCB Builders had stopped making payments altogether prompting EFCO to issue out several email reminders and demands for payment.

It was only on or about 09-04-2020, that MRCB Builders had then responded and had merely requested for time to effect payment.

As no payments were forthcoming, EFCO had issued several further demands for payments. It was only two months later before the 11 defendant responded again, this on 26-08-2020, requesting for discounts to be given on some of EFCO’s invoices.

EFCO had initially agreed to provide discounts on a number of their invoices, subject to the condition that MRCB Builders settle payments within a specified period of time.

However, MRCB Builders had failed to meet the various agreed discount conditions deadlines.

As a result, EFCO had issued a final warning to MRCB Builders indicating that EFCO will proceed to commence file legal proceedings for the full amount should MRCB Builders fail to agree to the EFCO’s settlement proposal by 30-07-2021.

It was only at this juncture that MRCB Builders started raising issues as regards EFCO’s claims.

Thereafter, EFCO’s solicitors, Messrs P C Choong & Co., had issued a letter of demand dated 03-08-2021 to MRCB Builders to demand for payment of the full sum of RM 660,933.39. However, despite receiving the same, MRCB Builders had failed, neglected and/or omitted to effect any payment to EFCO, let alone respond to the said Letter of Demand.

Following thereto, pursuant to MRCB Builders’ failure to effect payment, EFCO had proceeded to set off the Security Deposit amounting to RM 120,104.00 and had filed the instant proceedings to recover the balance differential, amounting to RM 540,829.39.

EFCO had then commenced proceedings in the Sessions Court in Kuala Lumpur against MRCB Builders to claim for unpaid rentals, cleaning and/or replacement costs for the damaged beyond repair equipment and costs for unreturned equipment.

MRCB Builders contends in its Written Submissions Enclosure 12 at paragraph 54 that EFCO’s claim is premature.

On the merits of EFCO’s suit, MRCB Builders contends that EFCO has failed to prove its claim.

On its counterclaim MRCB Builders contends that once the Sessions Court has dismissed EFCO’s suit, it necessarily follows that the set-off of the security deposit by EFCO is wrong and the monies must be refunded to MRCB Builders.

As I see it there are three issues relevant to the appeal before me.

The three issues are - i. Whether EFCO’s suit was premature due to a lack of certification of payment of EFCO’s invoices by MRCB Builders’ CEO as held by the learned Sessions Court judge? ii. If EFCO’s suit is not premature, whether EFCO’s claim is proven? 13 iii. Whether MRCB Builders’ counterclaim is valid?

I will consider each issue one by one. I begin by reminding myself on the law on appellate intervention.

Typically, counsel for a respondent to an appeal will urge the appellate court to dismiss an appeal without subjecting the evidence to scrutiny on the ground an appellate court should not readily interfere with the findings of fact arrived at by the court of first instance.

In my view, an appellate court should still subject the findings of fact arrived at by the court of first instance to strict scrutiny.

Firstly, an appellate court proceeds to consider an appeal by way of rehearing. On the rehearing it is equally charged with the task of doing justice between the parties. [See Sivalingam A/L Periasamy v Periasamy & Anor [1995] 3 MLJ 395 CA per Gopal Sri Ram and Mahadev Shankar JJCA, and The ‘Eurymedon’ (1942) 73 Lloyd LR 217 House of Lords per Lord Atkin at page 220]

In Sivalingam A/L Periasamy v Periasamy & Anor [1995] 3 MLJ 395 CA Gopal Sri Ram and Mahadev Shankar JJCA when reversing the findings of fact by the trial judge said at pages 398 and 399 – It is trite law that this court will not readily interfere with the findings of fact arrived at by the court of first instance to which 14 the law entrusts the primary task of evaluation of the evidence. But we are under a duty to intervene in a case where, as here, the trial court has so fundamentally misdirected itself, that one may safely say that no reasonable court which had properly directed itself and asked the correct questions would have arrived at the same conclusion… … Lord Atkin, while recording a vigorous dissent, said (at p 220): My Lords, this is an appeal from the Court of Appeal, who affirmed a decision of Langton J, holding that in a collision between the Eurymedon, belonging to the appellants, and the British Reliance, belonging to the respondents, the Eurymedon was alone to blame. The learned judge, of course, saw the witnesses, and had that initial advantage which, as I have said elsewhere, an appeal tribunal can never recapture. But judges have before this been mistaken in their acceptance of witnesses’ stories; and if the appellate tribunal is satisfied that a mistake has been made, I apprehend that it is their duty to say so. [Emphasis added]

Secondly, an appellate court should not readily interfere if the finding of a specific fact by the court of first instance is based purely on a determination of facts, such as whether to believe a particular witness i.e. credibility of witness issue.

However, an appellate court should readily interfere if a finding of fact is based on an interpretation of documents and/or upon inference drawn from other facts. An appellate court is generally in as good a position to evaluate such evidence as the court of first instance.

The two categories of findings of fact and their critical differences were stressed by the Court of Appeal in Wasal Construction Sdn Bhd v Boh Huat Chan Timber Products Sdn Bhd [2014] 4 MLJ 294 CA by Abdul Aziz Abdul Rahim JCA who said when allowing an appeal – In exercising its judicial discretion to interfere with the finding of fact by a trial court, the appellate court draws the distinction between a case where the finding of a specific fact depends upon the credibility of witnesses and one which depends upon inference drawn from other facts. The appellate court would readily interfere in the latter case and form its own opinion on those facts than in the case of the former — … And it was said by House of Lords in Benmax v Austin Motor Co Ltd [1955] 1 All ER 326 at p 329 that ‘where there is no question of the credibility or reliability of any witness, and in cases where the point of dispute is the proper inference to be drawn from proved facts, an appeal court is generally in as good a position to evaluate the evidence as the trial judge, and ought not to shrink from that task, though it ought, of course, give weight to his opinion.’ [Emphasis added]

I now proceed to consider the three issues raised in this appeal. Issue 1 - Whether EFCO’s suit was premature due to a lack of certification of payment of EFCO’s invoices by MRCB Builders’ CEO as held by the learned Sessions Court judge?

The Sessions Court held the suit is “pramatang” in the Malay language i.e. premature due to a lack of certification of payment for EFCO’s invoices by MRCB Builders’ CEO. The learned judge relied on clause 5b of the First Contract and Second Contract. [See Enclosure 9 Ground of Judgment at paragraphs 24, 26 and 27].

The Sessions Court thereafter dismissed the suit by EFCO without considering the merits of the suit. The Sessions Court further informed the parties that EFCO can refile the suit after obtaining the certification of payment for EFCO’s invoices by MRCB Builders’ CEO [See Enclosure 9 Ground of Judgment at paragraphs 26 and 54].

In arriving at its decision, the Sessions Court relied on, what the Sessions Court said was, an amendment to clause 5b whereby the requirement of certification by MRCB’s CEO was amended to certification by quote, “defendant’s CEO”, unquote, i.e. MRCB Builder’s CEO. [See Enclosure 9 Ground of Judgment at paragraphs 30, 42 and 49].

In my respectful view, the Sessions Court erred as there is no evidence clause 5b of the First Contract and Second Contract was amended whereby the requirement of certification by MRCB’s CEO was amended to certification by “defendant’s CEO”, i.e. MRCB Builder’s CEO. My reasons are as follows. i. Clause 5b states the requirement of certification by “MRCB’s CEO” which is the holding co of MRCB Builders, and not the defendant which is “MRCB Builders”. For the First Contract see page 596 of the Record of Appeal (Volume 2) Enclosure 5. For the Second Contract see page 570 of the Record of Appeal (Volume 2) Enclosure 5. ii. There was no evidence led at the Sessions Court trial that clause 5b was amended to change the requirement of certification by “MRCB’s CEO” - which is the holding co of MRCB Builders - to the defendant’s CEO. iii. In fact, the evidence at trial showed the certification was by MRCB Builders’ Supervising Officer/SOR and not MRCB Builders’ CEO. [See testimony by MRCB Builders’ witness Winston Yeoh PSD-1 who is the SOR at Notes of Proceeding Enclosure 4 page 341]. iv. I also note that MRCB Builders has not pleaded in its Defence that Clause 5b has been amended to certification by their SOR or their CEO. It was also not mentioned in MRCB Builders’ Witnesses’ Statements that were filed. The alleged amendment was only 18 raised by MRCB Builders’ witness Winston Yeoh PSD-1 when subjected to cross-examination by EFCO’s counsel. [See Enclosure 4 Notes of Proceeding pages 340 - 341]. v. Therefore, I hold that MRCB Builders cannot raise the defence that Clause 5b had been amended and that MRCB Builders is not obliged to pay the invoices because they were not certified by MRCB Builders’ CEO or SOR. vi. All MRCB Builders pleaded was certification was required from MRCB Builders CEO which is contrary to clause 5b. MRCB Builders is bound by its pleadings. The Federal Court in Munchy Food Industries Sdn Bhd v Hussain Food Industries Sdn Bhd [2021] 10 CLJ 329 said - “[41] The reason for the decision of the Court of Appeal is clearly inconsistent with … the basic principle that parties are bound by their pleading. The Court of Appeal departed from the well-trodden path of procedure. Pleadings represent the cornerstone of any litigant’s case. The court should confine its decision to the question raised in the pleadings. A court cannot make out a case not pleaded. Nor can it grant a relief which is not claimed. … (Emphasis added) vii. Further MRCB Builders pleaded in paragraph 36.2.5 of its Defence and Amended Counterclaim that they overpaid the invoices by RM 128,527.54. [See Enclosure 3 Appeal Record Part A page 128]. This shows certification by MRCB’s CEO was not required for payment. viii. There is also no letter from MRCB Builders to EFCO saying they can’t pay because there was no certification. ix. Further the certification requirement applies only to clause 2.7 which is for payment for rental invoices. For the First Contract see page 596 of the Record of Appeal (Volume 2) Enclosure 5. For the Second Contract see page 570 of the Record of Appeal (Volume 2) Enclosure 5. x. EFCO also contends in its Reply at paragraphs 8a and 11 that MRCB Builders has also waived by conduct the need for certification. I agree there is waiver by the very fact that MRCB Builders pleaded in paragraph 36.2.5 of its Defence and Amended Counterclaim that they overpaid the invoices by RM 128,527.54. [See Enclosure 3 Appeal Record Part A page 128]. xi. Testimonies by MRCB Builders’ two witnesses also admitted payments were made although there was no certification by MRCB Builders’ CEO. The two witnesses are Winston Yeoh PSD-1 and Nurhayati binti Muhamad Nor PSD-3. Cross-Examination of Winston [Pages 344 – 345 of the Record of Appeal] EC Ok. But you confirm that none of the certification process per 5b was adhered to? WINSTON Not signed by my CEO, yes. ... EC Ok. So be very clear, these special conditions, there were a number, agree with me or disagree, a number of waivers and a number of agreements not to follow the strict letter of the contract between parties. Agree? WINSTON Agree. Cross-Examination of Nurhayati [Page 506 of the Record of Appeal (Volume 2)] EC Ok. So you agree with me that this particular clause was also not followed, correct? Because there was no certification by MRCB’s CEO, agree? HAYATI MRCB CEO… EC Let me repeat the question. This particular clause also was not followed, agree? HAYATI Yes. EC Not followed, yes? That clause was not followed? Was it followed or not followed? Don’t have to think too hard, Cik Nurhayati. HAYATI No.

A condition precedent to payment can be waived by consent or by conduct of the parties. [See Top Speed Holding Sdn Bhd v Conlay Construction Sdn Bhd [2011] MLJU 121 per Nallini Pathmanathan J].

After such a waiver, MRCB Builders is estopped from contending that EFCO is required to obtain certification prior to payments for the invoices. [See Boustead Trading (1985) Sdn Bhd v Arab-Malaysia Merchant Bank Bhd [1995] 3 MLJ 331 FC].

In conclusion I hold that the Sessions Court was wrong to hold EFCO’s suit is premature.

The next step for me is to decide whether I should send the case back to the Sessions Court to adjudicate on the merits. I decided not to do so as it would mean further delay to the parties’ claims and will also lead to more legal costs. Further the trial at the Sessions Court had taken 7 days from September 2022 to 13-01-2023, the Notes of Proceedings are available and both counsel have submitted at length on the merits of the suit before me.

I thus now consider the merits of the quantum claimed by EFCO. Issue 2 - If EFCO’s suit is not premature, whether EFCO’s claim is proven?

EFCO’s claimed sum of RM 540,829.39 is derived from - RM 660,933.39 [comprising rental arrears, cleaning and repair costs, replacement costs for DBR/damage beyond repairs equipment and or URE/Unreturned items and late payment interest as provided in clause 5 of the rental agreements] Less security deposit of RM 120,104 Balance - RM 540,829.39 [See Statement of Claim in Appeal Record Part A Enclosure 3-page 29 paragraph 22 and page 30 paragraph 24 [i]].

The emails exchanged between the parties show the following - i. MRCB Builders never disputed the debt and the quantum. ii. MRCB Builders asked for discounts and waivers which were given provided payments were made by a certain deadline. iii. MRCB Builders failed to pay.

These emails are - i. EFCO sent reminder to MRCB Builders by letter dated 14-04- 2020 of unpaid invoices of RM 260,965. [See Enclosure 6 Appeal Record page 1149]. There was no reply from MRCB Builders. Neither was the debt denied. 23 ii. A reminder from EFCO dated 07-04-2020 [See Appeal Record page 1158]. MRCB Builders sent a reply dated 09-04-2020 apologising for the delay in certifying claim. [See Enclosure 6 Appeal Record page 1157]. iii. Another reminder was sent from EFCO dated 15-05-2020 saying the accounts were over 3 months’ old [See Appeal Record page 1160]. There was no reply from MRCB Builders. Neither was the debt denied. iv. Another reminder was sent from EFCO dated 12-06-2020 saying the accounts were over 3 months’ old [See Appeal Record page 1161].

The correspondence shows admissions of debt by MRCB Builders. These documents are - i. MRCB Builders asked for discount for invoices. EFCO agreed to give a 50% waiver for MCO Rental Period [See email dated 29- 07-2020 in Enclosure 6 pages 1162 - 1163]. ii. A letter from EFCO to MRCB Builders dated 27-08-2020 stating that MRCB Builders has paid RM 38, 011.93 and has to pay the balance by 28-08-2020 and agreeing to extend time for payment to 16-09-2020. [See Enclosure 6-page 1168]. 24 iii. By a letter dated 29-09-2020 MRCB Builders thanked EFCO for extending the deadline for payment of balance sum and asked for zero rental during the MCO period from 18-03-2020 to 09-06-

There was no dispute on the rest of the debt. [See Enclosure 6-page 1169]. iv. A letter from EFCO to MRCB Builders dated 20-10-2020 confirming a discount of 70% if payment was made by end October 2020. [See Enclosure 6-page 1181]. No payment was made by MRCB Builders. v. An email from MRCB Builders to EFCO dated 28-07-2021 attaching a table that shows amounts due to EFCO but inserted discounts unilaterally without the consent of EFCO. [See Enclosure 6-page 1227 - 1228]. The discounts are not available as payments were not made earlier as per deadline. [74] Tan Siew Hoon PSP2 has also testified that MRCB Builders only started to refuse to pay in the later parts of 2020 as they wanted discounts and waivers on rental for the MCO period of March to June 2020. [See Appeal Record Part B and C Volume 2 Enclosure 4-page 19 Witness Statement of Tan Siew Hoon PSP2 the Senior Sales Administrator of EFCO in Q and A 11, 15 to 16 and in Additional Witness Statement of Tan Siew Hoon PSP2 in Q and A 1]. [75] Andhi Irawan/PSP4 has also testified that EFCO chased MRCB Builders for payment and that MRCB Builders wanted discounts and waivers on rental. [See Appeal Record Part B and C Volume 2 Enclosure 4-page 45 Witness Statement of Andhi Irawan/PSP4 the District Manager of EFCO in Q and A 12 to 27]. Late payment interest [76] EFCO has claimed for late payment interest. The claim for late payment interest is provided in Clause 5[b] of the First Contract and Second Contract at 18% p.a. For the First Contract see the Record of Appeal (Volume 2) Enclosure 5 at page 598. For the Second Contract see the Record of Appeal (Volume 2) Enclosure 5 at page 573. [77] In conclusion therefore, I hold that EFCO has proven its claim for RM 540,829.39 with interest. Issue 3 - Whether MRCB Builders’ counterclaim is valid? [78] Arising from my decision for issue 2, it follows that EFCO was entitled to set off the security deposit for the debt. [79] In the premises, MRCB Builders’ counterclaim is not valid. [80] Lastly, I thank both counsel for their helpful submissions.

[81] For the reasons above, I allow the appeal in Appeal 50 with costs. I set aside the order of the Sessions Court and allow the prayers in the Statement of Claim at paragraphs 24 [i] to [iii]. I also order MRCB Builders to pay costs of RM 20,000 here and below subject to allocatur. [82] For Appeal 52, consequential from my decision in Appeal 50 I dismiss Appeal 52 with costs of RM 8,000 subject to allocatur. ………(signed)……….. Leong Wai Hong Judicial Commissioner High Court of Malaya Kuala Lumpur (NCVC 10) Dated: 14th May 2024 COUNSEL APPEAL 50: 1) Eugene Choong Kuok Yuen and Wong Jing Wei for appellant. (P C Choong & Co. (Kuala Lumpur)) 2) Kevin Wong Gia Meng and Hashimah Abdul Halim for respondent. (Jason Teoh & Partners (Kuala Lumpur)) COUNSEL APPEAL 52: 1) Kevin Wong Gia Meng and Hashimah Abdul Halim for appellant. (Jason Teoh & Partners (Kuala Lumpur)) 2) Eugene Choong Kuok Yuen and Wong Jing Wei for respondent. (P C Choong & Co. (Kuala Lumpur)) CASES REFERRED TO: 1) Benmax v Austin Motor Co Ltd [1955] 1 All ER 326. 2) Boustead Trading (1985) Sdn Bhd v Arab-Malaysia Merchant Bank Bhd [1995] 3 MLJ 331 FC. 3) Munchy Food Industries Sdn Bhd v Hussain Food Industries Sdn Bhd [2021] 10 CLJ 329. 4) Sivalingam A/L Periasamy v Periasamy & Anor [1995] 3 MLJ 395 CA. 5) The ‘Eurymedon’ (1942) 73 Lloyd LR 217. 6) Top Speed Holding Sdn Bhd v Conlay Construction Sdn Bhd [2011] MLJU 121. 7) Wasal Construction Sdn Bhd v Boh Huat Chan Timber Products Sdn Bhd [2014] 4 MLJ 294 CA.