seconds and 110% for sixty (60) seconds of full rated power output.” Kalau saya tanya En. Anas, overload yang dinyatakan di sini adakah ianya current/voltage/frequency? DW1 : Dalam proses ini overload adalah berkaitan dengan voltage, frequency, current dan resistant. Ini adalah berdasarkan hukum Ohm’s law di mana V sama dengan IR so V dengan R adalah berkaitan. Tolong terangkan apakah Ohm’s law tersebut? V itu apa, I tu apa, R tu apa? DW1 : Dalam Ohm’s law V is equal to IR. V adalah voltage, I adalah arus current R adalah resistant ...V adalah berkaitan terus bersama dengan I. Jika dapatkan overcurrent, adakah akan terdapat overvoltage ke tidak? DW1 : Ya. AEA : Kenapa? Page 9 of 24 DW1 : Ini kerana V adalah berkaitan terus dengan I. Jadi kalau V increase I akan increase. Ialah berkaitan dengan satu sama lain. [35] It thus bears emphasis that based on Ohm’s principles, an over-current or over-voltage must necessarily be accompanied by or result in an overload. According to Oxford Living Dictionaries, Ohm’s law states that electric current is proportional to voltage and inversely proportional to resistance. This is further corroborated by PW2’s own testimony where he gave evidence that power, in terms of the load is a product of voltage and current. [36] Under Clause 9.3 of the Murphy Specifications, the MTG should be able to withstand such overloads, overvoltage and/or over current for a period of at least 10 seconds at 150% of the full rated voltage before it trips. All the readings however showed that at less than the 150% full rated voltage, the MTG had already tripped in a matter of a few seconds, and in fact in less than 10 seconds. This in my view is a patent non-adherence on the part of the plaintiff to the relevant requirements of Clause 9.3 of the Murphy Specifications, which clearly mandates what the capacity threshold for the MTG ought to be. [37] In this regard, it bears emphasis that it is manifest that the MTG’s voltage readings fell short of the minimum threshold because the MTG tripped even within a matter of a few seconds less than 10 seconds at a voltage level that was far less than 150% of the rated voltage capacity of 415V. It is simply not tenable for the plaintiff to maintain that it had fully complied with the Murphy Specifications when the MTG could not sustain a time period of a mere 10 seconds without tripping, and worse, even exploded thereafter. [38] As confirmed by the witness for the plaintiff, PW2, (the representative of PQE, the consultant appointed by the defendant), the damage to the MTG which occurred during the fifth test on 16 May 2015 was because of overcurrent or overvoltage. [39] And this, crucially, runs contrary to the clear requirements of the important Clause 10.0 of the Murphy Specifications which stipulates that the MTG must be equipped with the protection functions to enable it to withstand any “consequences of short circuits, over voltage and any main or control circuit malfunction, howsoever caused.” Clause 10.2 of the Murphy Specifications is equally clear in prescribing that the status of the protection functions of the MTG must be visually verifiable. Page 10 of 24 [40] In my view, the tripping and damage to the MTG meant that the MTG supplied by the plaintiff did not have the necessary protection functions to withstand the same. [41] It is clear beyond peradventure that Clause 10.0 of the Murphy Specifications makes it clear that the MTG supplied by MHSB must have:- “all necessary equipment to enable operation, protection and controls to safeguard the unit and components from the consequences of short circuits, over voltages and any main or control circuit malfunctions, howsoever caused”. [emphasis added] [42] Clause 10.2 of the Murphy Specifications further speaks of no qualification on the manner in which such over-currents or over-voltage can occur. It only mandates that the MTG shall have the requisite protection functions to enable it to withstand any over currents and over voltage. [43] As such, the plaintiff’s argument that the injection of high current and voltage somehow came from an external source such as the issues on the wrong wire termination, sync check relay settings and the over-testing of the MTG before it suffered damage on 16 May 2015, and not due to the functioning of the MTG, is not sustainable. [44] Moreover, Clause 10.1 of the Murphy Specifications required the MTG to have a functional common alarm system and an emergency remote stop to provide the necessary warnings to users of the MTG during the functioning of the same. DW1 confirmed that none of these were provided. The plaintiff too was not able to show that any of these had been made available as required. [45] Even if there were any real difference between overload and over voltage, the Murphy Specifications, as particularly stated in Clauses 9.3 and 10, required the MTG to be equipped with the requisite protection functions to enable it to withstand any damage to its components. This, the plaintiff failed to comply with, resulting in the damage which occurred. [46] It is bordering on being disingenuous that the plaintiff is arguing that the fact that the MTG tripped due to the over-current and over-voltage showed that the protection functions of the MTG as per the Page 11 of 24 Murphy Specifications existed and they worked. For one, the MTG was severely damaged. That is hardly the result expected of the protection functions. By definition, it is axiomatic that the functions as specified were designed to protect, not to damage. [47] Secondly the alleged external factors are entirely of no consequence in so far as the clear provisions of Clauses 10 (“howsoever caused”) and 9 are concerned. And plainly the inability of the MTG to withstand the over-current and over-voltage which have been established to have caused the trips meant that the protective functions were certainly less than effective and well below the threshold requirements of the Murphy Specifications. [48] And that is not all. No less significantly, the plaintiff itself had on record stated during a meeting held on 28 August 2015 that the built in protection of the MTG could not be proved or verified. This absolutely violates Clause 10.2 which mandates the existence of visually verifiable protection functions for the MTG. [49] The value of the contemporaneous documents in the form of the said minutes cannot be emphasised enough. In the case of Hijau Bumi Petroleum Sdn Bhd v Platinum Green Chemicals Sdn Bhd & 2 Ors [2017] 8 AMR 684, I stated thus:- “[44] I am, in this context reminded of the observation by Chang Ming Tat FJ on the importance and value of contemporaneous acts and documents, and the need to test oral testimonies against them, who in the case of Tindok Besar Estate Sdn Bhd v Tinjar Co [1979] 2 MLJ 229, expressed as follows:- “Nevertheless the learned trial judge expressed himself to be completely satisfied with the veracity of the respondent's witnesses and their evidence. He purported to come to certain findings of fact on the oral evidence but did not notice or consider that the respondent's oral evidence openly clashed with its contemporaneous documentary evidence. 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. Plausibility should never be mistaken for veracity...” [emphasis added] Page 12 of 24 [50] An evaluation of the acts and documents contemporaneous with the event, when tested against the evidence given by the witnesses would, in my view lead to lend greater credibility to the case of the defendant. It would, I reiterate, be too conveniently self-serving and perfunctory for the plaintiff to now assert the trips were attributed to external sources and testament to the effectiveness of the protection functions. They were so crystal clearly neither one nor the other. [51] As such, it is almost an inevitable a conclusion that the damage to the MTG was as a result of the failure of the plaintiff to have ensured the supply of an MTG to the defendant which complied with the Murphy Specifications. This also meant that the protection functions of the MTG were inadequate and not incorporated in conformity with the requirements of the Murphy Specifications. Whether the damage to the MTG occurred because the defendant ignored the warning from the plaintiff to stop the synchronization process [52] It is clear from the evidence that the warning from the plaintiff, if any, was at best verbal in nature. Considering the contract, and, the seriousness of the implications of damage to the MTG, that is surely insufficient. A warning ought to have been properly given in writing. The plaintiff referred to an email from the plaintiff dated 21 April 2015 as evidence of a warning. That is not the case. There is nothing in PW1’s email dated 21 April 2015 to the defendant informing the latter that further tests should be ceased. [53] I accept that the manufacturer’s report (referred to earlier) which was attached by the plaintiff in the said email did express concern about the conduct of further tests, and that could arguably be construed as a form of warning. But despite that, the plaintiff itself did not draw the attention of the defendant to such concerns. [54] Thus, under cross examination, PW1 agreed that that he did not provide any written warnings or notices either to the defendant or even to PQE who was subsequently appointed to examine the issues, and further testified as follows:- AEA : Page 202 to 206? Okay, you said here, “please see attached the report by MTG vendor with regards to synchronization issue between DEG and TG. Please take note that the report TE100 is referred to MTG, BPS also requires site to Page 13 of 24 investigate what recommendation to solve the synchronization issue immediately. Can you tell the Court, where in your email that says do not undertake any test? PW1 : It is not in the email but it is in the report in page 429. AEA : I understand that and that is Quincy’s explanation to you that he says that “please stop this transfer test until a solution is found, until then keep trial and error, process may cause IGBT failure. We’re not responsible to failure caused by DEG, need to understand why DEG sync control face lose control. This is at page 26, my question to you is where is your email saying that says please follow or in the instructions of Quincy can stop the work? PW1 : There is no email but we verbally insisted a number of time to stop. AEA : But there’s no emails right? There’s no email, there’s no written instruction, there’s no letters that say “do not undertake the test”, correct? PW1 : Yes. AEA : Did you at that time issue any notices to PQE or to Boustead not undertake the test? Because PQE was going to do a synchronization test, correct? PW1 : This is not a... AEA : First question first, I’m jumping the gun, my apologies Mr William but you were aware that PQE were appointed to undertake a synchronization test, correct? PW1 : This is not... AEA : Were you aware or not? PW1 : We were aware but we were not focusing on the synchronization test. We were supposed to monitor what happened during the synchronization. So, in other words, there was going to be a synchronization test and PQE was supposed to monitor it and find out why it wasn’t working, correct? PW1 : Correct. AEA : So did you issue a notice to Boustead in letter or in email saying that this text should not be undertaken? Page 14 of 24 PW1 Not in writing. [55] In fact, the contention of the plaintiff in this regard is further weakened by its very conduct at the material time. Not only did the plaintiff not highlight any warnings in the said email of 21 April 2015. The plaintiff did also not raise any such concerns even subsequently in its several emails to the defendant between 13 May 2015 and 15 May 2015, or in (or following) the discussions between the parties on reverse power protection for the MTG, or in its response to the defendant’s invite to conduct the tests on that eventful day of 16 May 2015 when the MTG finally suffered damage. [56] That is not all. Soon after the damage on 16 May 2015, the plaintiff prepared an email report dated 18 May 2015. That too is silent on the presence of any warnings. Events subsequent thereto, especially the meetings involving the parties similarly do not reveal, in any minutes of meetings conducted since May 2015 to January 2016 any mention of the claim of any warnings having been made by the plaintiff against further synchronisation tests of the MTG. None whatsoever. [57] The assertion that the MTG was damaged because the defendant did not heed the warning of the plaintiff is clearly an afterthought. The plaintiff should be estopped from taking this contrary position now (see the leading Federal Court decision in Boustead Trading (1985) Sdn Bhd v Arab-Malaysia Merchant Bank Berhad [1995] 4 CLJ 283). Whether the damage occurred because the sync check relay settings for the DEG synchronization controller did not comply with the IEEE1547 standards [58] The plaintiff also submits that the sync check relay settings did not comply with the IEEE1547 Standard. In the main, the plaintiff drew support from the testimony of PW2 from PQE who agreed with the manufacturer (Novelek)’s report which stated that the settings did not comply with the IEEE1547 Standards. [59] I fail to appreciate how this assertion by the plaintiff could truly advance its case. First, it now becomes less than clear what the plaintiff asserts as the cause of damage to the MTG. It appeared to have earlier accepted that it was attributed to issues of wrong wiring. Now the plaintiff suggests that sync relay settings were to blame. Page 15 of 24 [60] But the evidence of PW2 himself confirmed that the sync check relay settings is not the cause of the non-synchronisation and damage. He testified that the settings to the synchronizer was not the issue that caused the MTG damage and stated in no uncertain terms that the damage occurred because of over-voltage. Therefore, the adherence or otherwise with the IEEE 1547 Standards is not relevant to the question of the cause of damage. [61] In any event, and this is basic - there is absolutely nothing proffered by the plaintiff in documentary evidence to exhibit what exactly the so-called IEEE1547 Standards are and even in what fashion were the said standards of relevance to the MTG damage. I cannot therefore but agree with the submissions of the defendant that in the absence of this, there is insufficient evidence before this Court to enable it to arrive at any finding that the said standards had been infringed, let alone that this purported breach was the root cause of the MTG damage. [62] Furthermore, despite the wiring issues and the sync check relay settings which were alleged by the plaintiff to be the causes of the damage to the MTG, themselves having been rectified by August 2015, the MTG continued to experience problems thereafter. As such, one cannot but conclude that this argument of the plaintiff does nothing other than further confirming the plaintiff’s MTG’s non-conformity with the Murphy Specifications. [63] I am thus satisfied that the plaintiff has not adduced sufficient evidence to demonstrate the relevance of IEEE1547 Standards to the case of the plaintiff. Whether the defendant failed to adhere to good engineering practice [64] The plaintiff also highlighted that PW2’s testimony further stated that good engineering practices requires that there should only be two or three tests before the cause of a problem be identified and rectified before proceeding with further tests. The plaintiff therefore alleged that the defendant did not adhere to the said good engineering practice in its handling of the tests for the MTG. [64] In the first place the point about good engineering practices only surfaced during PW2’s testimony. More importantly, PW2 himself, from PQE, also admitted when cross examined by the defendant, that despite being appointed by the defendant to identify the reasons for the Page 16 of 24 tripping of the MTG, PQE who were present during the tests on 16 May 2015 did not give any warnings, notwithstanding the alleged good engineering practices. [65] Thus, reliance by the plaintiff on this argument of the defendant not following good engineering practices is lacking in merits. Whether the resistor box installed by the plaintiff is a part of its MTG’s original supply package to the Defendant and whether the installation of the resistor box to the MTG was agreed by the Defendant. [66] The plaintiff claims for the rental for the resistor box which it says is part of the original supply package of the MTG. The resistor box was proposed to be fixed on the platform by the plaintiff’s manufacturer, and later also insisted by Murphy for it be made part of the whole protection scheme, as also mentioned in a letter from the defendant dated 31 March 2016. [67] The plaintiff highlighted that even though the defendant instead suggested that a feeder management relay be fixed to replace the needs of a resistor box, which was not objected by the plaintiff, the defendant had however not taken any steps to purchase the feeder management relay for the last two years. Since a quotation for purchase was given but the defendant did not purchase the resistor box, the plaintiff submits that the rental of the said resistor box is fair and reasonable. [68] I observe however that in the first place, there is no evidence adduced by the plaintiff to show that either Murphy or the defendant actually required the installation and also agreed to bear the costs of the resistor box. On this basis alone, the plaintiff claim for rental of the resistor box must fail. [69] Notwithstanding, and no less importantly, how did the resistor box feature in the MTG specifications? Was it necessary? PW1 himself had given evidence under cross examination that the purpose for installing the same was to limit and filter high current during synchronisation. [70] In my judgment, the proposed introduction of the resistor box installation subsequent to the delivery of the MTG, what more to be featured as part of the synchronisation process meant that what had Page 17 of 24 been earlier supplied were inadequate for the purpose it was acquired. Clearly the resistor box was now required because the MTG could not properly function to protect itself against over-current during the synchronization process, when in the first place, the in-built protection functions of the MTG were, as earlier stated, supposed to have been able to withstand issues of over-current, over-voltage and overload. [71] When cross-examined, PW1 too could not offer a credible reply as to why the resistor box was required at all if the protection functions had been duly incorporated into the MTG as per the Murphy Specifications. [72] As such, certainly, as the resistor box only became essential given the inadequacies of the protection functions in breach of Clause 10.2, the costs associated with the resistor box should rightfully be borne by the plaintiff. Surely it could not be reasonably suggested, as the plaintiff now does, that the rentals ought to be borne by the defendant. Indeed, Clause 17.1 of the Murphy Specifications itself stipulates that any failures to the MTG should be rectified at the expense of the plaintiff. [73] If it were otherwise, the law would permit a party in default to benefit from its own breach. This is not acceptable. In Bank Simpanan Nasional v Rudysham Abdul Raof [2017] 4 CLJ 234, I had stated thus:- “No Benefit from Own Default [88] It is also my finding that the appellant is additionally subject to the trite principle of law that a party cannot benefit from his own wrong or default, which in this case, being the negligent mistake by the appellant. It is an established presumption in law that parties to a contract do not intend that either party should be able rely on its own breach of obligations to avoid a contract or obtain any benefit under it, unless the contrary is clearly provided for by the contract (see the House of Lords decision in New Zealand Shipping Co v. Société des Ateliers et Chantiers de France [1919] AC 1” Whether the defendant had agreed that the rates and scope of work to be done by the engineers and the consultant engineer appointed by the plaintiff [74] The plaintiff in its claim for engineers’ and consultants’ costs had provided the relevant scope of works and argued that the defendant failed to cross examine PW1 on the issue of their costs mobilisation (on the engineering rates of RM300 per hour and USD300 per hour for the Page 18 of 24 consultant engineer’s rates) such that his evidence should thus be deemed accepted in its entirety in light on the leading case of Aik Ming (M) Sdn Bhd & Ors v Chang Ching Chuen & Ors And Another Appeal 1995 2 MLJ 770 where Gopal Sri Ram JCA (as he then was) stated: “Now, all this is contrary to two fundamental rules of procedural fairness that operate in the environment of private law. The first of these rules relate to the pleaded case, while the second has to do with the cross-examination of witnesses….. The content of the second rule may be stated thus. It is essential that a party’s case be expressly put to his opponent’s material witnesses when they are under cross-examination. A failure in this respect may be treated as an abandonment of the pleaded case and if a party, in the absence of valid reasons, refrains from doing so, then he may be barred from raising it in argument. It is quite wrong to think that this rule is confined to the trial of criminal causes. It applies with equal force in the trial of civil causes as well”. [75] The plaintiff’s assertions are unmeritorious. First, contrary to the submission of the plaintiff, the witness was in fact cross examined on the issue of engineering costs. This then already demolishes the argument of the plaintiff. [76] But secondly, it is at any rate important to note that failure to cross examine will not always amount to an acceptance of a witness’s testimony, such as where the witness already has notice to the contrary beforehand (see the High Court decision of Buncho (M) Sdn Bhd v Q-Stationers Sdn Bhd [2010] 7 CLJ 359 and the Court of Appeal decision in China Road & Bridge Corporation & Anor v DCX Technologies Sdn Bhd [2014] 7 CLJ 644). [77] In the instant case before me, it is undeniable that the defendant had already pleaded in its Defence and stated in its Statement of Issues to be Tried, that the defendant had at all times denied the existence and liability for payment of these costs. There is therefore also no issue of surprise or prejudice to the plaintiff. [78] The truth is the legal burden of proof rests firmly on the plaintiff to prove what it seeks to allege and assert, in line with the fundamental rule as encapsulated in Section 101 of the Evidence Act 1950. Page 19 of 24 [79] The claim of the plaintiff for engineering and engineers as well as consultants’ costs cannot be sustained for a patent lack of evidence. The plaintiff has not adduced any documents to substantiate such claims when surely such existed if true. There is therefore absolutely no actual worksheet or time sheet to demonstrate the scope of work and the time spent by these engineers. Whether the warranty period for the MTG under the Subcontract is valid and whether there was any extended warranty given by the plaintiff to the defendant [80] In respect of the warranty claims, I agree that it is fundamental that any claim for extended warranties alleged by the plaintiff must be shown to have been agreed to by the parties before such claims can be made. But no agreement has been exhibited to exist between the parties. [81] Further, the defendant was also able to give evidence that there are still outstanding items for the MTG to be rectified and addressed by the plaintiff before any effective handover can take place between the defendant and Murphy. The warranty under article 9.2 of the Sub Contract between the parties has yet to run since final handover has not occurred. The warranty period under Clause 20 of the Murphy Specifications would thus still continue to apply. [82] In addition, as the plaintiff cannot show that the MTG has been running for 10 days without system faults, its claim that the defendant had breached Article 9.4(a) of the Subcontract and Clause 17.1 of the Murphy Specifications by improperly utilising the MTG, and rendering the warranty void, is thus without merit. [83] The case of the plaintiff is that as testified by PW1, since the defendant had not handed over the MTG to Murphy despite it having been in operation since 29 December 2015, and that the plaintiff had been supporting Murphy directly whenever required, the extended warranty in the Sub-Contract would come into play. Further, DW1 in his re-examination referred to Clause 8.11 in the Purchase Order which reads:- “The Supplier (Plaintiff) hereby warrants that the period of warranty in respect of the Goods shall be twelve (12) months after delivery and acceptance of the Goods, by the Purchaser (Defendant) or the Client (Murphy), whichever is later.” Page 20 of 24 [84] Article 9.4 of the Sub-Contract provides thus:- The foregoing warranty shall be only warranty and there are no other warranties, express or implied. The warranty provided herein under ARTICLE 9 - WARRANTY shall not apply to the following:- a) Improper use and operation by COMPANY; b) Fair wear and tear. [85] The plaintiff argued that by virtue of article 9.4 of the Sub-Contract, Clause 8.11 in the Purchase Order is rendered not applicable. Clause 9.4 ousts the applicability of Clause 8.11. [86] However, again PW1 was asked whether the defendant had ever agreed to the warranty claims. He answered in the negative. Also, surely any claim for extended warranties must be demonstrated to have been agreed to by the parties before such claims can be advanced at all. This is trite for it seeks to change a position previously agreed by the contracting parties. It is for the plaintiff to give evidence of such an agreement. The plaintiff failed to do so. [87] And the plaintiff must be able to prove that the MTG had actually been running effectively for ten 10 days continuously for there to be valid handover of the MTG from the plaintiff to the defendant or alternatively that there had been an improper use of the MTG by the defendant to void the warranty under Clause 9.4(a) of the Subcontract. The plaintiff showed neither. [88] Thus, the defendant should not be made liable to any extended warranty claim when even Murphy has not accepted handover of the MTG. Since the plaintiff cannot show that MTG has in fact been running for 10 days without system faults, its claim that the defendant had infringed Article 9.4(a) of the Sub-Contract and Clause 17.7 of the Murphy Specifications cannot be sustained. Whether the defendant had breached article 9.4(a) of the Sub-Contract and clause 17.7 of the MTG Specifications [89] The plaintiff alleged that the defendant had violated articles 9.2 and 9.4 of the Sub-Contract. Article 9.2 of the Sub-Contract reads: SUB-CONTRACTOR warrants and guarantees the design by it of any of its sub-contractor or supplier against all defect from the Page 21 of 24 date of final handover by the COMPANY to Murphy only to the extent – a) Design was created by Sub-CONTRACTOR solely for COMPANY for the application of WORKS; b) The defect not caused by fair wear and tear. [89] And article 9.4 of the Sub-Contract, as stated earlier, reads: The foregoing warranty shall be only warranty and there are no other warranties, express or implied. The warranty provided herein under ARTICLE 9- WARRANTY shall not apply to the following:- a) Improper use and operation by COMPANY; b) Fair wear and tear. [90] Clause 17.7 of the Murphy Specifications provides:- That the equipment shall be in operation for a minimum of 10 days without any system faults and meeting guaranteed performance after commissioning of equipment offshore before being handed over to PURCHASER operations personnel. [91] The plaintiff claimed that the MTG had been running since 29 of December 2015. The MTG had been running for about one year and eight months at the time of the trial. It is operated by Murphy’s operational personnel on the platform without a handover from the plaintiff to the defendant. If the warranty had not begun to run, and the defendant has all the benefits in terms of the MTG being operational and manned by Murphy and at the same time the risks, in terms of warranty liability has not commenced, lie with the plaintiff. [92] It bears repetition that the plaintiff argued that there was a breach Clause 9.4(a) of the Sub-Contract because the MTG was improperly used by the defendant, thus rendering the warranty void. But the plaintiff must show that the MTG was in fact improperly used by the defendant which caused its damage. This the plaintiff could not demonstrate, because it has already been established that the non-adherence by the plaintiff to Clause 10.2 and Clause 9.3 meant that the Murphy Specifications had not been complied with by the plaintiff in the first place. [93] Additionally, there is no valid basis for the plaintiff to contend that the MTG had been running without interruptions for 10 days within the requirement of Clause 17.7 of the Murphy Specifications since Page 22 of 24 reliance by the plaintiff for this assertion is on the testimony of PW1 who however was himself not present at the platform offshore at Bintulu when the commissioning process was undertaken. [94] Furthermore there were also a number of items which are considered outstanding as requested by the defendant from the plaintiff for supply and rectification which still remain not forthcoming. These issues must be addressed first before any effective handover could take place between Murphy and the defendant. The issues are as documented in various letters issued by the defendant to the plaintiff such as the letter dated 12 January 2016 on the emergency start and stop issue, the letter dated 3 February 2016 on resistor box and remote start/stop MODBUS communication, the letter dated 31 March 2016 inviting the parties to a meeting to discuss outstanding issues, and the letter dated 4 August 2016 on the need for detailed schematic drawings to show reverse power protection requested by Murphy no less, and for the software and diagnostic tools, as per the Murphy Specifications. These are still outstanding and unresolved. Whether the costs of spare parts should be borne by the plaintiff [95] The one other contention of the plaintiff is that payments by the defendant in the amount of USD248,149.30 for certain spare parts had been made unconditionally such that the plaintiff should not have to pay the balance sum of USD58,518.33. The defendant is taking the position that the warranty has not begun whilst the plaintiff says the warranty is void. The plaintiff maintains that it does not have to bear the costs of MTG repair or of spare parts replacement given the reasons for the MTG damage. [96] I think it is plain that the costs of spare parts should be borne by the plaintiff because it has been found that it was due to their failure to strictly adhere to the Murphy Requirements that these costs had to be incurred. Further, under Clause 20 of Murphy Specifications, the vendor bears the final and total responsibility for the design and performance of the MTG and has the obligation to “immediately replace and install without cost to the purchaser any … equipment which fails due to defects.” [97] Further, as per Article 9.2 and 9.3 of the Subcontract, any cost for defective works should be borne by the plaintiff. The root of the problem is that the plaintiff did not comply with Clause 10 of the Murphy Specifications. Thus, the costs of spare parts ought to be borne by the Page 23 of 24 plaintiff as its failure resulted in the costs incurred to replace the parts damaged by the tests. I further agree that any payment made by the defendant previously could fall under the scope of Article 4.15 of the Subcontract which states that any payments made by the defendant must not be construed as an admission of liability as to the performance of the plaintiff of its obligations under the Subcontract. I accept the explanation of the defendant that it proceeded to deal with the spare parts so as to expedite the delivery of the MTG to the offshore platform in Bintulu. [98] Thus it is incumbent upon the plaintiff to bear the costs related to the spare parts to repair the MTG. Conclusion [99] In conclusion, I must give emphasis on the important rule that the plaintiff bears the burden of proving its claim. The law is trite that under Section 103 of the Evidence Act 1950, if a person requests that the Court believes in the existence of a certain fact, the burden of proof of establishing that fact is firmly on that person. He who alleges must prove. In this regard, I should refer to the leading decision of the Court of Appeal in Juahir Sadikon v Perbadanan Kemajuan Ekonomi Negeri Johor [1996] 4 CLJ 1 which reaffirms the rule that “he who asserts must prove”, whereby Siti Norma Yaakob JCA (as she then was) instructively held as follows:- “He who alleges must prove such allegation and the onus is on the appellant to do so. See section 103 of the Act. Thus, it is incumbent upon the appellant to produce Tan Sri Basir as his witness to prove the allegation. The fact that the appellant was unable to secure the attendance of Tan Sri Basir as a witness does not shift the burden to the respondent to produce the witness and testify as to what he had uttered, as firstly, the respondent never raised such an allegation and, secondly, has denied even making one. For this very reason, the adverse inference under section 114(g) of the Act relied upon by the appellant cannot be accepted as establishing that if the witness had been produced, his evidence would work against the respondent. There is no obligation in law for the respondent to produce the witness as that obligation rests with the appellant, the party who alleges, and the fact that the appellant was unable to do so is fatal to his case. For this very reason too, the adverse inference under section 114(g) is invoked against the appellant”. Page 24 of 24 [100] In view of the totality of the evidence and the foregoing analysis, it is my judgment that the plaintiff has clearly not succeeded in proving its claim against the defendant on a balance of probabilities. I accordingly dismiss the entire claim of the plaintiff in enclosure 1, with costs. Dated: 24 January 2018 (MOHD NAZLAN BIN MOHD GHAZALI) Judge High Court NCC1 Kuala Lumpur Counsel: Counsel for the Plaintiff Jesvinderjit Singh Tetuan Jesvinderjit Singh Kuala Lumpur Counsel for the Defendant Dato’ Mohd Emran Arief Arifin with Nimisha Jaya Gobi Tetuan Wong & Partners. Kuala Lumpur