(iv) that the letter stating 37% of work done was not the last letter issued on the percentage of work done and was also not the value of work done on site. [16] It was further submitted for the defendant that the learned judge erred in allowing the plaintiff’s claim as the plaintiff did not adduce any evidence to support its claim on percentage of work done and that the learned judge erred in relying on the defendant’s letter dated 6.10.2015 over the calculation by the defendant’s appointed quantity surveyor. The calculation by the defendant’s quantity surveyor was done after every site visit and reported at every site meeting. [17] For the plaintiff, it was submitted that the learned judge was correct in entering judgment for the plaintiff and in dismissing the defendant’s counterclaim. Learned counsel for the plaintiff argued that the defendant failed to issue a notice informing the plaintiff of the defendant’s intention to impose LAD under clause 40.1 and that the certificate of final account under clause 55 of the contract was never issued. Given those failures, the plaintiff contended that the defendant was not entitled to the counterclaim. Civil Appeal No. C-02(NCVC)(W)-1528-07/2017 11 Our Findings [18] Under sections 102 and 103 of the Evidence Act 1950, the burden lies on the plaintiff to prove that they had completed 37% of the project. We found that the plaintiff led no evidence to support its case of 37% completion except to rely on the defendant’s letter. In this regard, the learned judge, in her grounds of judgment alluded to the defendant’s letters dated 13.8.2015 and 6.10.2015. [19] We noted from the statement of claim that the plaintiff did not plead the letters dated 13.8.2015 and 6.10.2015. What was pleaded by the plaintiff as apparent from paragraph 14 of the statement of claim quoted above, was the defendant’s letter dated 12.11.2015. And what was stated by the defendant in its letter dated 12.11.2015 was not that the plaintiff had completed 37% of the work but 32% completion. If the plaintiff were to rely on the defendant’s letter, then surely it cannot choose one letter over the other. Likewise, if the learned judge found the defendant’s letters to be conclusive evidence of the percentage of the plaintiff’s work, her Ladyship ought to have also considered the subsequent letter written by the defendant to the plaintiff dated 12.11.2015, which she failed to do. The letters could not therefore be the basis to determine conclusively the 37% completion claimed by the plaintiff. [20] Further, the plaintiff through its Managing Director, Dato’ Raja Hamzah bin Raja Hitam (SP1) admitted that the 37% was not based on valuation of work on site. Civil Appeal No. C-02(NCVC)(W)-1528-07/2017 12 [21] This being a building contract, the calculation of the work done by the plaintiff must be based on measurement done on site. Indeed, it was the evidence of the defendant’s quantity surveyor, Sharifah Norizzati binti Syed Saifudeen (SD1) that she did the measurement of the plaintiff’s work on site and from her calculation, the plaintiff had only completed 27.15% of the work. SD1 testified as follows (Appeal Record 2A: pg. 90-91): “6 Q: Apakah penglibatan kamu dalam projek ini? A: Saya bertanggungjawab membuat pengiraan nilai kerja kontraktor dan dalam kes ini atas kerja-kerja Plaintif DAN juga kiraan untuk pembukaan tender baru untuk ambilalih dan menyiapkan projek tersebut selepas kontrak Plaintif ditamatkan. … 8 Q: Mengikut perkiraan akhir kamu selepas kontrak ditamatkan berapakah nilai kerja-kerja yang telah siap oleh Plaintif atas tapak projek? A: Hanya 27.15% sahaja 9 Q: Boleh terangkan bagaimana kamu mendapat jumlah 27.15% ini? A: Jumlah yang telah dibayar kepada RM3,648,457.18 kontraktor (termasuk GST untuk interim 18 sebanyak RM10,033.35) Jumlah wang tahanan RM 447,698.18 Jumlah interim 19 RM 45, 867.42} Jumlah kiraan akhir RM217,033.86} RM 262,901.28 Jumlah keseluruhan RM4,525,751.05 Peratusan dari nilai yang telah diambil kira RM4,525,751.05 x 100% = 27.15% RM16,669,379.13 Nilai kerja ditapak oleh Plaintif ialah 27.15% sahaja selama 3 tahun.”. Civil Appeal No. C-02(NCVC)(W)-1528-07/2017 13 [22] The learned judge rejected the evidence of SD1 on the grounds that the amount of 27.15% was not informed to the plaintiff by any letter and that the methodology for calculation was not provided by SD1. [23] Whilst we accept that the Certificate of Non-Completion and the final account was not prepared and served by the defendant to the plaintiff, the percentage of 27.15% was based on measurement done of the plaintiff’s work on site. SD1 had been authorized to do the final calculation and had adduced more than sufficient justification and explanation on the methodology on the final calculation at 27.15% (see Raja Lob Sharuddin bin Raja Ahmad Terzali & Ors v Sri Seltra Sendirian Berhad [2008] 2 MLJ 87). [24] There were 29 site meetings prior to termination of the contract and in the minutes of those site meetings, nowhere was it stated that the plaintiff had achieved 37% completion of the work. In fact, in the minutes of site meeting no. 28 on 31.7.2015, the plaintiff itself reported that their work progress was at 32%. Needless to say, whatever percentage stated by the parties prior to the measurement by SD1 remained provisional and could not be the basis to enter judgment for the plaintiff for the value of work done. [25] We therefore found that the learned judge had misdirected herself in relying solely on the defendant’s letters dated 13.8.2015 and 6.10.2015 and in rejecting the evidence of SD1 who was more than qualified to testify on the final calculation of the plaintiff’s work. More so, when the plaintiff mounted no rebuttal or challenge on SD1’s evidence on 27.15% completion of the work. Civil Appeal No. C-02(NCVC)(W)-1528-07/2017 14 [26] The learned judge in her grounds of judgment stated that “Pembelaan Defendan dengan jelas menyatakan peratusan kerja siap oleh Plaintif adalah 30.5% dan pada masa perbicaraan peratusan kerja siap telah bertukar menjadi 27.15% tanpa penjelasan yang munasabah.”. With respect, the learned judge overlooked the fact that the court had allowed amendment to the statement of defence. The 30.5% was pleaded in the original statement of defence whereas 27.15% was the pleaded case of the defendant in its amended defence. Her Ladyship therefore erred in concluding that “pada masa perbicaraan peratusan kerja siap telah bertukar menjadi 27.15% tanpa penjelasan yang munasabah.”. Obviously, the explanation was the amendment to the defence. [27] One other point on the plaintiff’s claim for the 37% completion. The plaintiff knew that the 37% was not the valuation of work done on site. There was no evidence that the plaintiff had requested the defendant for joint inspection or measurement of the plaintiff’s work. It appeared from the evidence of SP1 that the plaintiff was merely taking an easy way out to claim from the defendant the amount that would cover the plaintiff’s liability to its lender as adverted to in paragraph 20 of the statement of claim and was thus taking advantage of the defendant’s letters. This could be seen from the following testimony of SP1 (Appeal Record 2A: pg. 81): “A: Kita dapat surat terminate mengatakan 37%, jadi kita tuntut hanya 37% sahaja, kita gunapakai yang Pasdec tidak pergi bersama value di site. Jadi tidak mahu buang masa pada masa itu, saya ikut sahaja dengan nilai 37%. Oleh itu saya minta Yang Arif boleh kira daripada 37% surat daripada Pasdec, jadi itu sahaja yang saya tuntut. Kemudian balance itu yang saya tuntut, dia bayar saya baru 3 juta, kalau 37% x 16 juta harga kontrak, bermakna lebih kurang 6 juta lebih. Saya hendak yang balance itu sahaja. Civil Appeal No. C-02(NCVC)(W)-1528-07/2017 15 Sebab projek dibiayai oleh CGC, jadi saya menanggung sekarang ini hutang CGC lebih kurang 1.4 juta lagi, jadi itu saya hendak claim dan hendak cover yang sana. …”. [28] On the counterclaim, we similarly found that the learned judge misdirected herself in failing to consider that the plaintiff did not dispute that the project had been delayed notwithstanding various extensions given and that the plaintiff had agreed to pay RM4,600.00 per day as LAD. On the facts, we found no reason why the defendant should not be paid the LAD as agreed by the plaintiff. [29] The plaintiff argued that the defendant failed to give notice to the plaintiff on the defendant’s intention to claim for LAD as required under clause 40.1. We found no specific format of notice prescribed by the contract. In our view, on the facts and circumstances of the case where, according to the defendant, the plaintiff had prematurely filed this action before the contract flow could be completed, the defendant’s counterclaim is sufficient notice to the plaintiff of the LAD. The failure of the defendant to give a separate notice on the LAD and/or the failure to issue a final account to the plaintiff, in our view did not in itself absolve the plaintiff’s liability to pay the LAD at the agreed rate. [30] On the other two heads of the defendant’s counterclaim, we found no compelling reason to disturb the finding of the learned judge. [31] The defendant had not produced the sale and purchase agreements with the various purchasers to support its claim for LAD in respect of late Civil Appeal No. C-02(NCVC)(W)-1528-07/2017 16 delivery of the houses to the purchasers. There was nothing to show who were the purchasers, what was the period of delay (which depended on the date of the agreements) and how much was the defendant liable to pay to each of the purchasers, to enable the court to make an order on the counterclaim for LAD to the purchasers. [32] Likewise, the defendant failed to prove the amount claimed being the difference between the contract sum and the additional cost and expenses incurred by the defendant to complete the project. The document relied upon by the defendant to prove this claim was the summary of payment (Appeal Record Vol. 2H: pg. 1231-1232). We found the summary of payment bereft of particulars as to who were the new or other contractors or persons engaged by the defendant to complete the project, how much was in fact paid and when was the payment made. We concurred with the learned judge that the summary of payment tendered by the defendant was not sufficient proof of the amount claimed against the plaintiff for the differential sum under clause 55 of the contract. Conclusion [33] For the foregoing reasons, we were unanimous in our decision that there were merits in the defendant’s appeal in respect of the plaintiff’s claim. In our judgment, the plaintiff had failed to discharge the burden of proof on the balance of probabilities on the 37% claimed. [34] We found that the learned judge was plainly wrong in relying solely on the defendant’s letters dated 13.8.2015 and 6.10.2015 without considering Civil Appeal No. C-02(NCVC)(W)-1528-07/2017 17 that the 37% was in conflict with another letter issued thereafter, dated 12.11.2015 and without considering the evidence of SD1, the authorized quantity surveyor who did the final calculation. [35] Except for the claim of LAD against the plaintiff for RM4,600.00 per day, we found no reason to disturb the learned judge’s decision in dismissing the rest of the defendant’s counterclaim. [36] The defendant’s appeal against judgment for the plaintiff was therefore allowed. We set aside the order of the High Court and we substituted with an order that the defendant do pay the plaintiff 27.15% of the work done. As the defendant had made some payments to the plaintiff, we directed that parties work out the figure for the said percentage. [37] As for the defendant’s appeal against the dismissal of the counterclaim, given that there was no dispute on the delay by the plaintiff to complete the project, no further onus lies upon the defendant to prove its claim for LAD. The appeal was thus allowed in part. The order of the High Court was varied to the extent that we allowed the defendant’s counterclaim only in respect of the LAD for late completion of the work by the plaintiff from 6.10.2015 until 2.6.2016 (as per the alternative submission of learned counsel for the defendant) at RM4600.00 per day amounting to RM9,894,600.00 with interest at the rate of 5% per annum from the date of filing of counterclaim until realization and costs. Civil Appeal No. C-02(NCVC)(W)-1528-07/2017 18 Dated: 21st June 2018 Signed (TENGKU MAIMUN BINTI TUAN MAT) Judge Court of Appeal Counsel/Solicitors: For the Appellant : Dato A. Ramanathan (Norhuda bt Abdul Rahman with him) Messrs. Loke Chew & Zainal For the Respondent : Mohd Rafaei b Adnan (Mohd Hazwan b Hamidun with him) Messrs. Rafaei & Co