PCOM Pacific Sdn Bhd v Chu Kok Wei (BA-12BNCvC-8-04/2023)

Plaintiff (Chu Kok Wei) has been successful, on balance of probabilities, to prove that the Defendant (PCOM Pacific Sdn Bhd) had repudiated the Bill of Quantities (BOQ) Forms and Variation Orders by taking a position that there is no timeline in completing the works and there are defective works by the Defendant.

however, the learned SCj held that the Defendant was not be given an opportunity to rectify the defects before the Plaintiff appointed a new contractor to rectify the defects and to complete the unfinished works by the Defendant.

in terms of damages, the SCj finds that the Plaintiff is successful in proving the fact but not the quantum of damages, thus Plaintiff is only entitled to nominal damages.

the SCj make a ruling that the Plaintiff is only entitled for nominal damages in the amount of RM70,000.00 with interest and costs.

the SCj allows the interest of 5% per annum on the judgment sum of RM70,000.00 from the date of filing of summons until the date of full payment and costs.

costs of the trial is fixed at the amount of RM30,000.00 payable to the Plaintiff. The appeal at the Shah Alam High Court (SAHC): [3] The Defendant has filed its appeal at SAHC NCvC11 and the Plaintiff has filed its appeal before this Court (SAHC NCvC12). The case at SAHC NCvC11 has been transferred to this Court and the hearing of these 2 appeals are before me. [4] The Defendant stated in its Notice of Appeal as follows: NOTIS RAYUAN SILA AMBIL PERHATIAN bahawa PCOM PACIFIC SDN BHD (No. Syarikat: 493171 – U), Perayu yang dinamakan di atas, tidak berpuas hati dengan keputusan Hakim Mahkamah Sesyen Shah Alam, Dato’ Haji Ishak bin Bakri, yang telah diberikan pada 17.03.2023 merayu ke Mahkamah Tinggi Malaya di Shah Alam terhadap keseluruhan keputusan tersebut. [5] The parties are given full opportunity to explain and clarify each of their issues pertaining to the errors made by the learned SCj. I have listened to their verbal submissions, read their written submissions, cause papers and the grounds of judgment by the learned SCj. [6] For the purpose of this grounds of judgment both the Parties are refer to as Plaintiff (Chu Kok Wei) and the Defendant (PCOM Pacific Sdn Bhd). [7] On 5-10-2023, my decisions are as follows via eReview: [1] Dua rayuan daripada keputusan Tuan Hakim Mahkamah Sesyen yang bijaksana (selepas ini disebut “Tn HMS”) didengar bersama iaitu Rayuan No. 7 yang difailkan di MTSA NCvC11 telah dipindahkan untuk didengar bersama-sama dengan Rayuan No. 8 di Mahkamah ini. [2] Tuntutan Plaintif (Chu Kok Wei) yang difailkan di Mahkamah Sesyen Shah Alam terhadap Defendan (PCOM Pacific Sdn Bhd) telah didengar melalui perbicaraan penuh. [3] Plaintif (Chu Kok Wei) sebagai pemilik banglo 4 tingkat di Bukit Damansara telah mengambil khidmat Defendan (PCOM Pacific Sdn Bhd) untuk memasang (PCOM Pacific Sdn Bhd) suatu Sistem Rumah Pintar Crestron dengan teknologi HOMEX (selepas ini disebut “Sistem Rumah Pintar”) dalam banglo tersebut. [4] Plaintif memplidkan fakta mengenai – a) pembayaran dan program kerja di mana pada perenggan 14 pernyataan tuntutan menyatakan “setelah pembayaran jumlah yang diterangkan di atas pada 24-4-2018, dengan penyiapan dalam masa 12 minggu iaitu pada 24-7-2018.”. b) Defendan mempunyai pengetahuan bahawa Plaintif dan keluarganya akan berpindah masuk ke banglo tersebut pada 3-8-2018 maka Sistem Rumah Pintar perlu tersedia siap. c) pada 3-8-2018 Plaintif mendapati sistem sekuriti rumah dan sistem kawalan peralatan rumah tidak beroperasi dan kerja pemasangan tidak dibuat dengan betul atau tidak dengan kemahiran yang munasabah. d) hasil perbincangan, kerja pemasangan hanya dapat disiapkan pada 28-9-2018 (hampir 7 minggu selepas Plaintif dan keluarganya berpindah masuk ke banglo tersebut). e) terdapat 4 mesyuarat diadakan antara Plaintif dan Defendan. f) penemuan Plaintif mengenai kecacatan sekuriti rangkaian, kecacatan pemasangan dan kerja pembaikan. [5] Kausa tindakan terhadap Defendan ialah perlanggaran kontrak dan kewajipan berkanun dan kecuaian. Relief yang dipohon adalah – a) ganti rugi khas bagi kos menggunakan pengawal keselamatan berjumlah RM115,796.64; kos melantik pakar IT, kos untuk membaiki kecacatan pemasangan berjumlah RM328,926.00. b) ganti rugi am. c) kos. d) faedah. Perbicaraan penuh di Mahkamah Sesyen: [6] Berdasarkan fakta kes, Mahkamah Sesyen telah mengenal past 3 isu untuk diputuskan oleh Mahkamah dan mencapai dapatannya. [7] Pada perenggan 307, 308 dan 309 Grounds of Judgment (GoJ), Tn HMS memutuskan bahawa Plaintif hanya layak memperoleh nominal damages in the amount of RM70,000.00 with interest (5% per annum on the judgement sums of RM70,000.00 from the date of filing summons until the date of full payment) and costs of the trial is fixed at the amount of RM30,000.00 payable to the Plaintiff.”. [8] Plaintif dan Defendan merayu ke Mahkamah Tinggi terhadap keputusan Tn HMS. [9] Mahkamah ini telah meneliti Notis Rayuan Plaintif dan Notis Rayuan Balas Defendan mengenai kekhilafan fakta dan undang-undang yang dikatakan dicapai oleh Tn HMS. [10] Bagi isu “timeline for the completion and the delivery”, Tn HMS telah meneliti Bill of Quantities Form (BOQ) yang merujuk kepada terma kontrak dan berdasarkan analisa terma Tn HMS mencapai dapatan dari segi fakta dan undang-undang bahawa wujud kelewatan oleh Defendan. Pada perenggan 45 GoJ, Tn HMS memutuskan bahawa “the defendant had repudiated the agreement under the BOQ Form by taking the position that it was not contractually bound to complete the works within certain period of time and there is no timeline to complete the installation works.”. [11] Berkenaan dengan kecacatan (defects) pada kerja Defendan, Tn HMS memperincikan mengenai kerja Defendan. [12] Apabila Tn HMS memutuskan bahawa Defendan telah melanggar terma kontrak, selanjutnya Tn HMS menggunapakai prinsip undang-undang dalam mengira ganti rugi yang diawardkan kepada Plaintif. [13] Perayu (Chu Kok Wei) tidak berpuas hati dengan sebahagian keputusan Tn HMS. Dalam rayuan balas, Perayu (PCOM Pacific Sdn Bhd) merayu terhadap keseluruhan keputusan Tn HMS yang mengawardkan ganti rugi nominal kepada Chu Kok Wei dan menyatakan bahawa kos sebanyak RM30,000.00 yang diawardkan itu adalah khilaf. Berdasarkan skala kos, kos hanyalah RM5,450.00. PCOM Pacific Sdn Bhd merayu terhadap keseluruhan keputusan Tn HMS dan memohon agar tuntutan Plaintif terhadap ditolak. [14] Mahkamah ini telah meneliti hujahan bertulis dan mendengar hujahan lisan pihak-pihak, dengan ini, Mahkamah ini memutuskan seperti yang berikut: a) rayuan oleh Perayu Chu Kok Wei: Ganti rugi nominal yang diawardkan oleh Tn HMS dikekalkan dan ganti rugi khas yang ditolak oleh Tn HMS dikekalkan. Mahkamah ini membenarkan kos yang diawardkan oleh Tn HMS dikurangkan daripada RM30,000.00 kepada RM5,450.00. b) rayuan balas oleh PCOM Pacific Sdn Bhd: ditolak. c) tiada kos rayuan dibenarkan kepada Perayu dan Perayu dalam rayuan balas. [8] The Defendant (PCOM Pacific Sdn Bhd) is not happy and unsatisfied that I affirmed the SCj’s decision that the counter claim by the Defendant is dismissed and the Plaintiff is entitled for damages in the sum of RM70,000.00 (nominal damages) and interest of 5% per annum on the judgment sum of RM70,000.00 from the date of filing of summons until the date of full payment and costs. I have reversed the costs of the trial that is fixed at the amount of RM30,000.00 payable to the Plaintiff by the Defendant. The Defendant is only pay the costs of the trial in the sum of RM5,450.00. For the appeal at High Court, no costs is awarded. [9] Here, I will write my reasons for that decisions and first and foremost, in the notice of appeal, the Defendant (PCOM Pacific Sdn Bhd) stated – “NOTIS RAYUAN SILA AMBIL PERHATIAN bahawa PCOM PACIFIC SDN BHD (No. Syarikat: 493171 – U), Perayu yang dinamakan di atas, tidak berpuas hati dengan keputusan Yang Arif Pesuruhjaya Kehakiman Puan Rozi binti Bainon, di Mahkamah Tinggi Shah Alam, yang telah diberikan pada 05.10.2023 merayu ke Mahkamah Rayuan Malaysia di Putrajaya terhadap sebahagian sahaja daripada keputusan-keputusan tersebut yang memutuskan bahawa –

Penemuan dan/atau dapatan Mahkamah Sesyen berkenaan liabiliti PCOM Pacific Sdn Bhd adalah dikekalkan;

Ganti rugi nominal yang diawadkan oleh Mahkamah Sesyen kepada Responden dalam jumlah RM70,000.00, dikekalkan; dan

Tiada perintah mengenai kos kepada PCOM Pacific Sdn Bhd dalam prosiding Rayuan No. 8 di Mahkamah Tinggi.”. [10] For the Plaintiff’s appeal, my grounds of judgment is written separately and done. The Plaintiff’s claims as per the amended statement of claim [11] The Plaintiff is the house owner (bungalow) at Jalan Setiakasih, Bukit Damansara, Kuala Lumpur. [12] The Plaintiff has appointed the Defendant (PCOM Pacific Sdn Bhd/PCOM), a company incorporated under the laws of Malaysia and having its registered address at Petaling Jaya, Selangor Darul Ehsan. At all material times, PCOM was and is in the business of selling and installing ‘Smart Home Systems’ in residential and commercial properties. The Bill of Quantities Form/BOQ Form: [13] The Plaintiff’s Bungalow, i.e. a 4-storey building with built-up area of approximately 12,000 sq ft, began construction on 2015, and was completed in August 2018. [14] By way of BOQ Form dated 20-10-2016, the Plaintiff agreed to engage the Defendant, and the Defendant agreed to sell to the Plaintiff and install a Crestron Smart Home System with HOMEX technology (“the Smart Home System”) in the Bungalow which includes –

an integrated CCTV and alarm system (“Home Security

(ii) an integrated home automation system to control home appliances automatically or remotely (“Home Appliance Control System”);

(iii) an integrated home entertainment system to control entertainment devices automatically or remotely (“AV Control and Distributions System”);

(iv) an integrated climate / ambiance system to control heat, light intensity, motion and occupancy sensors automatically or remotely (“Climate / Ambiance System”);

a Network security system based on agreed network typology with WiFi access points to connect the above systems and to provide them with the protection of a firewall hardware and an appropriate logical sub-partitioning of network as desired by the Plaintiff (“Integrated Network System”); and

(vi) all associated cabling and installation works required to ensure the proper installation and operation of all the above systems, which are to be integrated by way of a ‘Crestron’ system. [15] The Plaintiff aver that it was an express term of the BOQ Form that –

the installation work would cost approximately RM 439,981.62 (inclusive of 6% of GST) (“the final BOQ sum”);

(ii) it would take approximately 12 weeks (4 weeks of wiring work + 8 weeks of installation work) to complete the said installations in the Bungalow;

(iii) a down payment of 35% was to be paid to PCOM upon confirmation of the total quotation amount;

(iv) an additional 30% was to be paid to PCOM upon final confirmation of the quotation for the hardware devices;

another 30% was to be paid to PCOM upon hardware delivery and commencement of installation; and

(vi) the final 5% was to be paid to PCOM upon the Plaintiff’s approval of the installation work. [16] And according to the Plaintiff, it was an implied term of the BOQ Form that –

the hardware, software and/or electronic devices provided by PCOM would be fit for their intended purposes;

(ii) the hardware, software and/or electronic devices provided by PCOM would be of satisfactory quality;

(iii) the Smart Home System and the installation work would be carried out with reasonable care and skill;

(iv) the wiring installation work carried out by PCOM would be of satisfactory quality; and

all installation work would comply with standards and best practices set by the Smart Home System equipment’s manufacturer, Crestron. [17] The Plaintiff relied on the relevant written laws governing the cabling and installation works as in the Electricity Regulations, 1994 made pursuant to the Electricity Supply Act, 1990 and specifically Regulations 15(1), 15(2), 15(6), 16, 18 and 35 which impose duties on PCOM to, inter alia, ensure that –

any apparatus, conductor (including cables) or accessory for the purpose of connection to an installation shall be sufficient in size, power and number for the purpose for which it is intended and shall be constructed, installed, arranged, protected, worked and maintained in such a manner to prevent danger [Regulation 15(1)];

(ii) any conductor shall be insulated and effectively protected or so placed in such a manner as to prevent danger [Regulation 15(2)];

(iii) any conductor or apparatus that is expose d to the weather and water shall be protected in such a manner as to prevent danger [Regulation 15(6)];

(iv) any fuse or circuit breaker shall be constructed and arranged in such a manner so as to break the current when it exceeds a given value for a sufficient time to prevent danger [Regulation 16];

effective means shall be provided for making dead every part of the system and protecting the same from excess current [Regulation 18]; and

(vi) a complete system of earthing conductors made of an acceptable material shall be provided, connected to the earth, and effectively maintained [Regulation 35]. [18] The Plaintiff supports its claims based on the following facts: A. Payment and Work Programme:

Since the engagement of PCOM in 2016, the Plaintiff had made payments totalling RM423,137.38 in 7 tranches (96.17% of the final BOQ sum) to PCOM and the details of the payments is spelt out in the table in the amended statement of claim.

at the material time, the site on which the bungalow is situated was ready to accommodate the installation works by PCOM and the wiring works of the Smart Home System had commenced thereafter.

the Defendant’s representatives were invited by the Plaintiff, and did participate in regular site meetings for progress updates and various job scheduling to ensure the installation of the Smart Home System would be completed based on the agreed timeline.

on 24-10-2016, the initial BOQ sum was increased by RM52,258 to RM428,056.23 (“the 2nd BOQ sum”) by way of a variation order issued by PCOM.

accordingly, additional payments were made by the Plaintiff to the Defendant.

in April 2017, the 2nd BOQ sum was increased by RM2,544.00 to RM430,600.23 (“the 3rd BOQ sum”) by way of a variation order issued by the Defendant. The Plaintiff paid.

on 28-2-2018, the 3rd BOQ sum was increased by RM6,254.00 to RM436,854.23 (“4th BOQ sum”) by way of a variation order issued by the Defendant.

on 13-3-2018, the 4th BOQ sum was increased by RM3,127.00 to the final BOQ sum, RM 439,981.62, by way of a variation order issued by the Defendant.

on 13 -3-2018 and 24-4-2018, the Plaintiff paid a sum totalling RM134,192.29 to the Defendant (30% of the final BOQ sum) upon hardware delivery and commencement of installation work by the Defendant.

therefore, the Plaintiff avers that the Defendant ought to have commenced its installation works upon payment of the sums by 24-4-2018 at the latest, with completion within 12 weeks, that is, by 24-7-2018.

at all material times, the Defendant and/or its employees and/or its agents had actual knowledge that the Plaintiff and his family would be moving into the bungalow by 3- 8-2018, and would therefore require the Smart Home System, particularly the security system, to be operational and properly functioning at that time. B.

on 3-8-2018, upon moving into the bungalow with his family, the Plaintiff discovered the defects as follows:

the Home Security System and the Home Appliance Control System were not operational; and

(ii) the installation work was not done properly or had not been performed with reasonable care and skill.

prior to the Plaintiff and his family move-in on 3-8-2018, there was no indication or at all by the Defendant and/or its employees, servants and/or agents that an extension of time was required for the Defendant to complete the installation work in the bungalow. C. The Meetings between the Parties:

1st Meeting on 5-8-2018: Plaintiff immediately contacted Mr. Avan Tan, Senior Sales Account Manager of the Defendant and Mr. Eric Goh Ka Han, Regional Sales Director of the Defendant, who agreed to meet the Plaintiff at the bungalow on 5-8-2018.

2nd Meeting on 6-8-2018: upon numerous requests by the Plaintiff, Mr. Guven Togan, Chief Executive Officer of the Defendant also agreed to meet him at the bungalow.

after the Defendant’s staff failed to turn up for work at the bungalow on 4-8-2018 despite not having completed their work, the Plaintiff again raised his grave concerns on the lack of progress of the works to Mr Avan Tan and demanded an updated work schedule to indicate the current state of the project, the remaining work and a timeline for completion.

Mr. Avan Tan indicated that the Defendant’s workers would come in to complete 4 components of the Smart Home System, namely CCTV, alarm, air conditioning and lighting, on 5-8-2018.

on the morning of 5-8-2018, however, only 2 foreign workers attended the bungalow, and performed some checks which demonstrated that a substantial number of cables had not been successfully connected. On the same morning (5-8-2018), Mr. Rizal of the Defendant sent a revised work programme of the installation work to the Plaintiff, which stated that the Defendant’s installation work would only be completed by 28-9-2018, that is, almost 7 weeks after the Plaintiff had already moved into the Bungalow on 3-8-2018.

later, on that same evening (5-8-2018), the Defendant’s programmer, Mr Avan Tan and Mr Eric Goh attended the bungalow. The said programmer also confirmed that a substantial number of cables in the bungalow had not been successfully connected.

at the 2nd meeting, at or around 12 noon, the Plaintiff demanded from Mr. Guven Togan a copy of the system wiring diagram. During the said meeting, Mr Togan himself expressed shock at the rate of progress of the project, and in particular, that the Defendant had allowed the Plaintiff and his family to move into the bungalow on 3-8-2018 knowing that the Plaintiff would be relying on the integrated Home Security System, but without informing or advising the Plaintiff that that Home Security System was in fact not ready for use.

3rd Meeting, on the same evening (6-8-2018) at or around 7 p.m., another meeting was held between the Plaintiff and the Defendant (Mr. Eric Goh and Mr. Avan Tan), when the consolidated BOQ Forms were provided to the Plaintiff. In the 3rd Meeting, the Defendant offered the Plaintiff a sum of approximately RM43,000.00 as compensation for the delay in the installation of the system and the Defendant’s breaches of the terms contained in the BOQ Form, which the Plaintiff did not accept.

4th Meeting, on the afternoon of 7-8-2018, a meeting was held between the Plaintiff and the Defendant (Mr. Avan Tan), when Mr. Avan Tan wrongfully informed the Plaintiff that that BOQ Form apparently did not prescribe any timelines for the completion of the Smart Home System installation by the Defendant. The Plaintiff thereafter demanded that a copy of the system wiring diagrams be provided to him.

however, the Defendant refused and/or failed to comply with the Plaintiff’s demands, and merely handed over the system wiring diagrams and the information in relation to the Smart Home System installation works. The said diagrams were merely system schematic drawing and did not include any actual cable routing diagrams.

the Plaintiff had to engage another contractor to complete the Installation Work. D.

as a high-ranking officer of a financial institution with significant delegated authority in financial market/capital market activities, the Plaintiff pleaded that both the physical and digital security of the Plaintiff and his family are of utmost importance.

the bungalow was also especially exposed to risks of security breaches by reason of its size and location. Therefore, the Plaintiff has engaged 2 additional security guards to provide protection for the Plaintiff and his family, i.e. −

a professional IT security specialist to assess and mitigate the cyber security risks arising from the

(ii) a new Crestron authorised installer, Inthome Linc Solution (“Inthome”) to complete the unfinished work by PCOM, and rectify any defective works by PCOM (“Rectification Works”). E. Particulars of Network Security Defects: The Plaintiff has discovered the following significant defects in the network security (“Network Security Defects”) (resulting in cyber security risks) and installation (“Installation Defects”) of the Smart Home System by the Defendant:

Wi-Fi Network

(ii) Router Administrator Authentication

(iii) Host Enumeration

(iv) Network Switch Configuration

Firewall Configuration

(vi) CCTV System

(vii) Dumpster Diving Risk F. Installation Defects:

in or about early December November 2018, Inthome installers informed the Plaintiff that a significant amount of cables installed by the Defendant were either faulty or did not follow the required engineering standards. The installation of cables by the Defendant were also in breach of the terms of the BOQ.

the significant Installation Defects by the Defendant and the consequential Rectification Work carried out by Inthome therein, were in respect of, inter alia, the following components of the Smart Home System:

Home Appliance Control System.

(ii) Multi Room (6 zones) Audio Distribution System.

(iii) Home Security System.

(iv) General Cabling Works.

Equipment Rack. [19] By the matters aforesaid, the Plaintiff avers and particularize that the Defendant had breached the contract and statutory duties, negligence and undertaken express and/or implied contractual obligations, covenants and duties under the BOQ Form. The Defendant wrongfully failed to meet its contractual obligations under the BOQ Form and its Implied Terms and/or breached its statutory duties under inter alia regulations 15(1), 15(2), 15(6), 16, 18 and 35 of the Electricity Regulations 1994. The loss suffered by the Plaintiff: [20] By reason of the matters abovesaid, the Plaintiff has suffered loss and damage including but not limited to expenses by the Plaintiff in, amongst others, namely –

mitigating the physical hazards and/or cyber security risks arising from the Network Security Defects, CCTV and/or alarm defects, rectifying the Installation Defects, and mitigating his loss.

Special Damages as particularized at paragraph 50.

General Damages.

Costs.

Interest for such period and at such rate as the Court deems fit. The Defendant’s Amended Defence [21] The Amended Defence are the gist for the Defendant cross appeal against the learned SCj’s decision in allowing the Plaintiff’s claims. [22] The Defendant states that at all material time, the Defendant’s business is known to provide high standards of services in the sale and installation of ‘Smart Home Systems’ in both residential and commercial properties. The Defendant’s reputation in the industry is garnered and acknowledged through the various appointments, awards and accolades received in the course of the Defendant’s business such as being appointed as an authorised dealer for Crestron, supply contractor for Tenaga Nasional Berhad, authorised distributor for Fujikura Federal Cables as well as being awarded with awards from Ministry of Domestic Trade and Consumer Affairs, Ministry of Finance, the ISO 9001 certification. [23] The Defendant has been in the industry for 20 years and has worked on various projects and successfully completed hundreds of Smart Home Projects, Smart Building Projects, Railway (LRT & MRT) Projects, projects for the telecommunication industry and IT projects for the finance industry. [24] In fact, this is the first suit initiated against the Defendant on the grounds of faulty or defective installations, which has never happened before. [25] The Defendant strongly pleaded that a more accurate description is as furnished in the original Bill of Quantities Form dated 20-10-2016 (BOQ Form), where the Defendant was to install and implement the HOMEX Smart Home Solution which contains the following items (refer to as “Smart Home System”): i. Automation and Integration System; ii. Multiroom Audio System; iii. Alarm System; iv. CYNICS IP CCTV System; v. Wireless & Networking Solution; vi. Crestron HD Video System 1; and vii. Equipment Rack System, [26] The matters pleaded in the Amended Defence, that are pertaining to the issues of Site readiness to commence and complete wiring works; Site readiness to commence equipment delivery and installation works:; the defects of the works and the rectification works had been argued and testified by 6 Plaintiff’s witnesses and 3 Defendant’s witnesses. [27] The learned SCj has made his findings of facts pertaining to the issues. Therefore, the denials by the Defendant about the Plaintiff’s allegation of defective works and pleaded that the Plaintiff is put to strict proof thereof are the burden to prove and duty due to the Plaintiff. [28] The defence that at all material times, the Defendant exercised reasonable skill, care and diligence in carrying out its works in accordance with recommended standard practices and safety measures, in compliance with the terms of the BOQ Form and based on sound engineering standards, had been testified by the Defendant’s witnesses and been cross examination by the Plaintiff. Errors made by the learned SCj [29] The Plaintiff has called 5 factual witnesses and 1 expert witness, and filed the corresponding witness statements/expert affidavit and the Defendant has called 3 witnesses. [30] The Plaintiff stated in its appeal that the learned trial Judge was plainly wrong in arriving at his decision in 6 critical areas, which warrants appellate intervention, namely − First: the learned trial Judge was plainly wrong in finding that the Plaintiff was not successful in proving the quantum of damages, and is therefore only entitled to nominal damages. The learned trial Judge failed to appreciate that evidence for the quantum of damages claimed were produced, and that the Plaintiff and his witnesses were never challenged by the Defendant on the validity, authenticity and reasonableness of the rectification costs for the defects in the installation of the smart home system, nor have the Defendant provided any alternative evidence as to what was a reasonable cost. Second: the learned trial Judge also erred in law and in fact, in finding that the Defendant has a right to be given an opportunity to rectify the Installation Defects, and that the hiring of the new Crestron authorised installer, Inthome, is “too remote” or “indirect”. In fact, the Defendant was aware that the Plaintiff was looking to appoint another system integrator, and had no objection to it. The learned Judge failed to judiciously appreciate that the Plaintiff only had a duty to take all reasonable steps to mitigate his loss, and that a reasonable and prudent man in the position of the Plaintiff would not have the confidence to allow the Defendant to rectify the defects, given the Defendant’s prior conduct. Third: the learned Judge erred in finding that the Defendant had never agreed to supply a 4K video system to the Plaintiff, when the evidence shows from, inter alia, the proposals made by the Defendant’s sales person to the Plaintiff, that the accessories prescribed by the Defendant and the Whatsapp conversation between the Plaintiff and the Defendant’s sales person is that the Defendant was aware at all time that the Plaintiff requested for a 4K video system, and that the Defendant had misrepresented the video system purchased by the Plaintiff as being 4K compatible. Fourth: the learned trial judge erred in fact and in law, in finding that the “new system integrator” was a form of upgrade, when the Plaintiff was merely claiming for the cost to reinstate or place himself in the position in which he would have been had the Defendant performed its contractual obligations. In any event, the Defendant also had not pleaded upgrade or betterment in its Amended Defence. In the alternative, the learned judge ought to have at least reduced the Plaintiff’s claim for the difference in sum for the ‘upgrade’. Fifth: the learned trial judge erred in law and in fact, in finding that the costs incurred by the Plaintiff to hire additional security guards due to the defective alarm system and CCTV is too remote and indirect. The Plaintiff is entitled to be put in the same position as if the alarm system and CCTV had been operational when he and his family moved into the bungalow, and the cost of additional security guards were therefore a foreseeable loss resulting from the defective alarm system and CCTV installed by the Defendant. Sixth: the learned trial Judge erred in finding that the Plaintiff has failed to prove the costs adjustment in the sum of RM16,028.00 from inappropriate or unnecessary items sold by the Defendant to the Plaintiff. The learned judge failed to judiciously appreciate that the Defendant did not plead unjust enrichment by the Plaintiff for not returning the said inappropriate or unnecessary equipment and items, or counterclaim for the same. [31] Therefore, whether the contentions by the Plaintiff that the learned SCj has made errors that the Plaintiff is only entitled to nominal damages in the sum of RM70,000.00; the Plaintiff is not entitled to his claim for special damages in the sum of RM518,847.64; or his alternative claim for restitution of the sum of RM423,137.38 paid by the Plaintiff to the Defendant are to be determined at the appellate stage. The Sessions Court judge’s (the learned SCj) grounds of judgment [32] Based on the facts of the case, the learned SCj has identified the issues to be tried, namely −

whether the Defendant had repudiated the contract and whether the Plaintiff was entitled to treat the contract with the Defendant as having come to an end on 7-8-2018?

if the question in (a) is answered in the affirmative, whether the Plaintiff is entitled to the costs of rectification works?

whether the Plaintiff is entitled to claim for damages? [33] The learned SCj held that the Defendant is bound to complete the works within the period stipulated in the BOQ Form. The Defendant has failed to meet the timeline; therefore, the Plaintiff is entitled to treat the contract ended on 7-8-2018. [34] The reasons for arriving his findings of facts can be read from the paragraphs as follows:

in paragraph 22 of the learned SCj’s grounds of judgment held that – “22. The Court finds that it is unusual for any parties entering into contract without timeline for its completion. The terms of the delivery terms, though the actual date is not specifically stated in a form of day, month and year, the Defendant own interpretation stated that the wiring works to start within 4 weeks, upon receiving the 35% down payment from the Plaintiff which connotes timeline and ‘if the bungalow was ready for such works to be commenced’”.

via a WhatsApp chat group, all the contractors including the Defendant know about the coordination and synchronization in order to meet the dateline imposed by the Plaintiff (paragraph 24).

in paragraph 28 of the learned SCj’s grounds of judgment held that the Defendant’s own witness i.e. SD3 has admitted that the Defendant was in the knowledge that there was a completion date for the installation works when he prepared the Defendant’s work programme on the basis that it would complete the installation works at the bungalow together with all the other contractors on 30-9-2017.

in paragraph 38, the learned SCj disagree with the Defendant that the various ongoing works carried out by the other contractor contributed to the delay. According to the learned SCj, all contractors including the Defendant were required to work hand in hand to avoid any delay. Factors raised by the Defendant to have affected their delay was only raised for the first time in writing in the Defendant’s solicitors’ letter dated 30-8-2018 after the stop work order was issued by the Plaintiff. [35] Be that as it may, in answering the issue “whether the Plaintiff is entitled to the costs of rectification works”, the learned SCj wrote in length his grounds in arriving to his decisions on damages, and these can be read from paragraphs 46 to 167. [36] In my grounds of judgment I will highlight some of the following facts pertaining to the rectification works. I have read the SCj’s grounds of judgment where he has examined and analyzed the facts in details, namely −

through the evidences from both parties’ witnesses: The Plaintiff’s witnesses are − • Mr. Quah Zheng Wei, architect (SP-1). • Mr. Khoo Yoon Yin, programmer (SP-2). • Mr. Fong Choong Fook, an expert witness (SP-3). • Mr. Wayne Haw Thing Keong, from Inthome (SP-4). • Mr. Baxter Oswald Anak Michael Jodi (SP-5). • Mr. Chu Kok Wei, the Plaintiff (SP-6). The Defendant’s witnesses are − • Mr. Guven Togan (SD-1). • Mr. Avan Tan Cheow Wee (SD-2). • Mr. Muhamad Khairul Rizal bin Abdul Karim (SD-3).

the witnesses had been testified via examination-in-chief, cross examination and re-examination about the facts on – • the defects in the installation of the Smart Home System; • inconsistency in implementation and the System Plotting Drawings; • meetings between both parties; • the Plaintiff’s ask the Defendant to stop work and leave the bungalow; • the Plaintiff’s demands (such as the Defendant to issue public apology to the Plaintiff; • compensation in the sum of RM140,000.00 being the forfeiture of all professional fees and the hardware cost of the security element of the Smart Home System; • cost for all wiring works by the Plaintiff’s own electricians; • installation of new hardware by a new installer, the Defendant to assist the new installer; • re-imbursement of all other costs incurred by the Plaintiff to achieve the state of security and usability (including the cost of engaging an additional security guard until the completion of the installation of the Smart Home System).

the proposal by the Defendant’s vide its solicitors’ letter dated 30-8-2018 where the Defendant proposed that the new installer to be appointed to “conduct a buy-off of the work done” by the Defendant. However, this proposal was rejected by the Plaintiff and no reply to the Defendant solicitors’ letter.

the evidences pertaining to the rectification are – • the Plaintiff has engaged a professional IT security specialist to assess and mitigate the cyber security risks arising from the defects in the network security as installed and configured by the Defendant. • the Plaintiff has engaged Inthome as the new installer to complete the installation of the Smart Home System and to rectify the installation works through the recommendation of SP-2. • Mr. Khoo Yoon Yin, programmer (SP-2) was the Defendant software programmer to carry out the programming of the Smart Home System. SP-2 was retained by the Plaintiff to continue working on the programming of the Smart Home System. • the Plaintiff has engaged another contractor (Pro AV Works) to rectify the Multiroom Audio Distribution System together with Inthome. • the Plaintiff has engaged CNS Electrical Engineering Sdn Bhd for the relaying of power cables. CNS Electrical Engineering Sdn Bhd also assisting Inthome in the relaying of data and audio cables. • the Plaintiff has engaged Mr. Tam Pak Cheong as the Clerk of Works to oversee and coordinate the rectification works. Mr. Tam Pak Cheong was also the Clerk of Works for the construction of the bungalow.

Mr. Wayne Haw Thing Keong, from Inthome (SP-4) testified that the cost of all rectification works carried out by Inthome amounted to RM265,169.00.

the learned SCj has taken into consideration after hearing the Defendant’s defence and its witnesses, where the following facts are extracted: • the Defendant was forced to leave the site, no damage to the tamper switches and cables were detected. No sufficient particulars as to what anti-tamper switches the Plaintiff is referring to nor what kind of damage the Plaintiff is alleging. • with regard to the empty cases, the Defendant stated that they were in the midst of testing and terminating the cables into the cases. However, the Defendant cannot do and complete the works as they were forced to leave the site on 7-8-2018. • with regard to the installation of sensors, the Defendant stated that they had installed the sensors correctly as per the System Plotting Drawing/Device Plotting Layout. And the final positioning of sensors will be subject to the final condition of the site and may require changes as per the Plaintiff’s instructions. And the Defendant cannot do and complete the works as they were forced to leave the site. On the issue of the adhesive for the installation of the sensors, the Defendant had used the adhesive as provided by the manufacturer of the sensors. Therefore, there is no issue that the adhesive is inappropriate. • with regard to the non-weatherproof indoor motion sensor, the Defendant stated that it would depend on the installation circumstances. In areas that were fully exposed to sun and rain, the Defendant had installed weatherproof sensors at outdoors areas that were not exposed to sun and rain, namely ceiling mounted to outdoor roofs. The cables were installed inside the ceiling of the outdoor roofs and were also not exposed to sun and rain. • with regard to the CCTV at the guardhouse and outdoor area of the ground floor, the Defendant stated that during the time the Defendant was forced to leave the site, it was all in good working order. • with regard to install the firewall for the entire Smart Home System, the Defendant stated that the firewall only can be installed once the whole system is configured and implemented. Otherwise, it will expose the firewall to outside risk of malware or hackers and weaken the firewall. • with regard to the CCTV, the Defendant contended that the CCTV were only activated within the closed local circuit (“LAN”) and had not been exposed to any external access or compromised in any manner and the Defendant had yet to complete the network configuration. • with regard to the air-conditioning at certain locations in the bungalow were not functioning, SP-4 and SD-3 had testified and Inthome had completed the cable installation, re-terminated the IR cables with solder and wrapping the terminations with a layer of heat shrink tube. The works on configuration and testing of the air-conditioning control were still in progress. However, the Defendant cannot do and complete the works as they were forced to leave the site with the stop order by the Plaintiff. • with regards to lighting defects, SD-3 and SP-1 had testified on the issue about the light fitting drawings. The Defendant’s witness (SD-3) blamed the electrical contractor (CNS). However, no drawings or documents from CNS were adduced by the Defendant to show that CNS required the Defendant to supply dimmable dins at the first floor of the bungalow. • with regards to momentary switches defects, Mr. Wayne Haw Thing Keong, from Inthome (SP-4) had rectified the momentary switches and SP-2 had programmed them to function as intended. However, the Defendant stated that when they were forced to leave the site on 7-8- 2018, the momentary switches were properly connected to the terminal block and were working as intended. The Defendant avers that the momentary switches can be re-programmed to suit the Plaintiff’s needs.

other than the above defects, the other defects and rectification works had been examined by the learned SCj, where both Plaintiff and Defendant had argued regarding the roller shutter, Switch Socket Outlet (SSO) control, Crestron keypads, motorized projector screen, overloading and poor termination of power cables, excessive data cables length, dumpster diving risk, alarm and control system, curtain control system, lighting control system, TV control and AV distribution system, and general cabling work. The High Court’s decision [37] The learned counsel for the Plaintiff has laid out the summary of the evidences in the table format as attached in Appendixes A and B. This Court also finds that the learned SCj did studied the evidences after hearing the trial. [38] LAW OF EVIDENCE: “HE WHO CLAIMS, PROVES”: the fundamental principle of the law of evidence is that the burden of proving a fact is on the person claiming the existence of that said fact, except where it is stipulated by any law that the proof of that fact lies on another person. [39] This evidentiary principle of “he who claims, proves” is entrenched in the Evidence Act 1950. Sections 101, 102 and 103 of the Evidence Act 1950. [40] The Court of Appeal in Poratha Corporation Sdn Bhd v. Technofit Sdn Bhd [2018] AMEJ 0214 [2019] 1 LNS 941; [2020] 1 MLJ 74, reiterated this principle. It held that the party claiming damages bears the burden of proving the fact and the quantum of the damages suffered and that if the claimant only succeeds in proving the fact and not the quantum, it will only be entitled to nominal damages. Y.A Hasnah Hashim JCA (as she then was) in delivering the decision of the Court of Appeal held – “[44] It is trite law that the party claiming damages bears the burden of proving the fact and quantum of damages suffered. [45] The defendant bears the burden of proving both the fact and the amount of damages suffered as a result of the breach by the plaintiff. Special damages unlike general damages must be specifically pleaded and strictly proved, and recoverable only where they can be included in the proper measure of damages …”. [41] In Chang Hang Guan & Ors. v. Perumahan Falim (Penang) Sdn Bhd [1994] 1 CLJ 19, Edgar Joseph Jr held− “When a plaintiff claims damages from a defendant, he has to show that the loss in respect of which he claims damages was caused by the defendant’s wrong and also that the damages are not too remote to be recoverable. Where precise evidence is obtainable, the court naturally expects to have it, where it is not, the court must do the best it can. General difficulty of proof does not dispense with the necessity for proof.”. [42] In arriving to the decision, the delay in finishing and completing the works was proven by the Plaintiff. I agree. This Court should and never will interfere with this finding. [43] Now, to answer whether the findings by the learned SCj that the Defendant is liable and next on the awarding of the damages by the learned SCj is correct? [44] The Defendant in this appeal said that the learned SCj has made an error in finding that the Defendant is liable because the following facts are the Plaintiff’s faults – Dates Incidents 24-10-2016 • the Plaintiff made the payment of 35% down payment based on the BOQ Form. • from 24.10.2016 to the end of March 2017, the brick walls for the Bungalow were still being built and therefore, the Defendant was not able to commence the hacking for wiring works purposes. 10-4-2017 • the Bungalow was not ready for the Appellant to commence the wiring works. • only on 10-4-2017 the hacking works for purposes of wiring at the basement and ground floor was commenced by the Defendant. • 1st floor and 2nd floor of the bungalow was not ready for the Defendant to commence the hacking works for wiring purposes. the electrical contractor was still installing the electrical trunking and riser. The Appellant will only be able to complete the wiring works after the completion of installation of trunking and riser by the electrical contractor. Dates Incidents pursuant to the Plaintiff’s instructions, additional/variation works were required where there were a total of 4 Variation Orders/VO. Further wiring works were required pursuant to the VO. Before early March 2018 • the Bungalow was not ready for the Defendant to commence equipment delivery and installation because the flooring, internal painting, plaster ceiling, windows and doors and other fixtures were still being installed or pending installation. • furthermore, there was a security issue whereby the Bungalow was exposed (there were no doors or gates) hence the equipment could not be delivered for fear of theft and/or damage. between 12-3-2018 and 7-8-2018, the Appellant had delivered and installed the equipment in batches, depending on the readiness of the Bungalow for such delivery and installation. 31-7-2018 at 8.00pm • the Respondent for the first time unilaterally informed the Appellant that he intended to move into the Bungalow by 03.08.2018. The Appellant stressed that at all material times, no such deadline was agreed between the parties. • at all material times, the Respondent was aware that the Smart Home System, including the security system and control system, will not be ready and delivered by 3-8-2018. Dates Incidents 6-8-2018 7-8-2018 Meetings: • during the meeting, Mr. Eric Goh and SD2 then informed the Plaintiff that the Defendant was willing to give the Plaintiff, a goodwill discount of RM20,000.00 or 5% of the total project sum, whichever is higher, which would be offset from the amount due from the Plaintiff after the handover of the Smart Home System. This offer was made on a without prejudice and without admission of liability basis. However, the Plaintiff demanded for more discount. • in another meeting, Mr. Eric Goh thereafter informed the Plaintiff that the Defendant was willing to give the Plaintiff a goodwill discount amounting to 10% of the total project sum which would be offset from the amount due from the Plaintiff after the handover of the Smart Home System. This offer was also made on a without prejudice and without admission of liability basis. However, the Plaintiff disagreed and demanded for more discount. • at about 12.00p.m., SD2 and SD3 were at the Bungalow to inform the Plaintiff that the Defendant was only willing to offer a 10% goodwill discount. Upon being informed of this, the Plaintiff ordered the Defendant’s team to stop all work, pack all tools and leave the bungalow immediately. The Plaintiff had further threatened, among other threats, that the Plaintiff will sabotage the Defendant’s business and trade and that the Plaintiff would Dates Incidents cause the Immigration Department of Malaysia to prevent SD1 from leaving Malaysia. • the Defendant was prevented from performing the Defendant’s obligation under the terms of the BOQ Form and the VO. • as of 7-8-2018, the Defendant was in the final stages of configuration, testing, troubleshooting (if necessary) and commissioning of the Smart Home System. This includes testing all connectivity and performing termination for all of the relevant installed hardware. • however, pursuant to the Plaintiff’s stop work order on 7-8-2018, the Defendant was prevented from completing the said project and have since also not received any consent from the Plaintiff to re-enter the premises to complete the works, with exception to a meeting on 10.08.2018 with Crestron on which day, no consent was given to continue work. 30-8-2018 the Defendant’s solicitors proposed to the Plaintiff a proper handover of the project to a new system integrator since the parties’ relationship broke down, and again there was also no response from the Plaintiff regarding this matter. 28-9-2018 consequent to the delayed construction project, the Defendant estimated that the Smart Home System could only be completed by 28-9-2018. [45] In paragraph 52 of the written submission, the learned counsel for the Defendant submits that – “52. The Appellant (Defendant) has received a total sum of RM423,137.18 from the Respondent (Plaintiff). The actual value of completed works for the Smart Home System, is estimated by the Appellant (Defendant) to be RM395,953.38 which amounts to 89.99% to the total value of contracted works (including Variation Orders). However, the payment terms agreed between the parties are not based on the value of works performed but on milestones achieved. To date, the Appellant (Defendant) has surpassed 95 percent (%) completion of milestones achieved and hence, the Appellant (Defendant) is entitled to retain all amounts previously paid by the Respondent (Plaintiff). The Respondent (Plaintiff) also has not returned to the Appellant (Defendant) any of the alleged defective and unnecessary items and/or materials. This contradicts the facts given by the Respondent (Plaintiff).”. [46] Paragraph 174 to 206 in the learned SCj’s grounds of judgment, he stated the application of the law to the fact. The learned SCj starts its reasons as follows: “174. The law on damages for breach of contract is trite. the law on damages is set out in s. 74 of the Contract Act 1950. Pursuant to the provision, compensation can only be awarded against the guilty party for breach of contract if the loss or damage suffered by the other party satisfies two conditions.

The first condition is that it arises naturally in the usual course of things from the breach or which the parties knew, when they made the contract, to be likely to result from the breach of it.

The second condition is that it is not to remote or indirect. When a contract has been broken, the party suffers by the breach is entitled to receive, from the party who has broken the contract, compensation for any loss or damage caused to him thereby, which naturally arose in the usual course of things from the breach, or which the parties knew, when they made the contract, to be likely to result from the breach of it.

Such compensation is not to be given for any remote and indirect loss or damage sustained by reason of the breach. It is trite law that the party seeking damages bears the burden of proving both the fact and quantum of damages, which the plaintiff is claiming.

If the plaintiff fails to prove the fact of damage, its claim for damages will fail. However, if the plaintiff only succeeds in proving the fact but not the quantum of damages, it will only be entitled to nominal damages.”. [47] The learned SCj refers to few cases on damages that are Popular Industries Ltd. v. The Eastern Garment Manufacturing Co. Sdn Bhd [1990] 2 CLJ (rep) 635; Leong Hin Enterprise Sdn Bhd v. Chevron Malaysia Ltd [2018] MLJU 1747. [48] Paragraphs 181 to 206 of the SCj’s grounds of judgment did explain the reasons why he only awarded the nominal damages to the Plaintiff. The re-hearing @ appellate stage: [49] The learned counsel for the Plaintiff (Chu Kok Wei) and the learned counsel for the Defendant (PCOM Pacific Sdn Bhd) had submit verbally and also filed their written submissions accordingly. [50] It is true that the Plaintiff has issued the Stop Work Order on 7-8- 2018 and forced the Defendant’s team to leave the Plaintiff’s bungalow. The Defendant contends that they are not given the opportunity to perform any rectification and/or repairs to the alleged defects claimed by the Plaintiff. [51] This Court finds that the defects are not just the allegations by the Plaintiff, the particulars and details of the defects already proved by the Plaintiff. Moreover, it is clearly stated that there was negotiation between the Defendant and the Plaintiff pertaining to giving discount because of the works. The learned SCj had taken into consideration about this fact. [52] I will not interfere with the finding of the learned SCj on the defects. The parties had been given opportunity to prove their case accordingly at the trial court. [53] The case of Bumimetro Construction Sdn Bhd v Sun-Jaya M & E Sdn Bhd [2020] MLJU 136 cited by the learned counsel for the Defendant is applicable in this present case. In Bumimetro Construction Sdn Bhd, the Court at paragraphs 138 and 139, page 201 held that a contractor shall be given opportunity to rectify the defects before the employer can get services of a third party to rectify those defects. [54] Here, the Plaintiff had engaged and appointed the new contractor and installer and/or new system integrator to continue the works and the discussion between the Plaintiff and the Defendant to reach an amicable settlement pertaining to the works came to end when the Defendant was “chased out” from continuing with the works as per the contract. [55] Due to the Plaintiff’s act for preventing the Defendant to rectify the defects, the learned counsel for the Defendant refer to section 54 of the Contracts Act 1950 and cited the decisions in the cases of Mah Sau Cheong v. Tan Eng Chin [2019] 1 LNS 560; Yuk Tung Construction Sdn Bhd v. Daya CMT Sdn Bhd [2020] 1 LNS 1314 where the Court gave judgment on the principle of “Prevention Principle” where a party cannot insist on the performance of a contractual obligation by the other if it is itself the cause of the non-performance; MS Elevators Engineering Sdn. Bhd. v Jasmurni Construction Sdn. Bhd. [2022] 1 LNS 815. [56] In re-hearing of this appeal by the Plaintiff (Chu Kok Wei), this Court has agreed with the finding of facts by the learned SCj that the Defendant (PCOM Pacific Sdn Bhd) is held liable for the defects in performing its obligation to complete the Smart Home System for the Plaintiff. At appellate stage, the best platform to scrutinize the works as per the BOQ Form/s is at the trial Court. The SCj has examined the best evidence before him. [57] However, the quantum of damages as sought by the Plaintiff as per the statement of claim namely, −

Special Damages in the amount of RM115,796.60 for hiring additional security guards from 13-8-2018 to end of September 2019 to ensure the safety of the Plaintiff and his family;

(ii) costs of engaging the IT specialist;

(iii) RM387,023.00 as the costs of rectifying the installation defects;

(iv) RM16,028.00 as costs adjustment from inappropriate or unnecessary items sold by the Defendant;

General Damages for breach of the BOQ Form, negligence and fraudulent and/or reckless misrepresentation;

(vi) further and/or in the alternative, the sum of RM423,137.38 to be restituted to the Plaintiff; and

(vii) costs and interest, are too excessive after considering the circumstances and chronology of events in this case. [58] In reaching to its decision, the learned SCj has evaluating the original suit and also the defence as pleaded by the Defendant. [59] The BOQ Form/s had stipulated the amounts to be paid and the installation works were defective, therefore, the learned SCj concluded that the sum that can be claimed by the Plaintiff is only RM70,000.00 is sufficient. [60] The Defendant has proved that for the Smart Home System as at 7-8-2018 was estimated at RM395,953.38 and this is equivalent to 89.99% of the total contract work value, including Variation Orders. (See the delivery orders refer to all materials, equipment and items sent to the Bungalow for the Smart Home System at RR3(5), pages 118 to 148). [61] At the appellate stage, the learned counsel for the Defendant submits that the payment terms agreed between the parties are not based on the value of works done but rather the milestones achieved, which the Defendant exceeds 95% holistically. Thus, the Defendant is entitled to retain all the sums paid by the Respondent before this. And, to date, the Plaintiff also did not return any of the Defendant’s items and/or materials alleged to be defective and/or unnecessary. As such, this contradicts the Plaintiff’s position that he is not satisfied with the Defendant’s works up until the Stop Work Order was issued. [62] The Defendant should not escape from its obligation under the contract, once the works are not completed therefore, some “token” in the form of compensation must be paid to the Plaintiff. Principles of appellate intervention [63] In the case of Ahmad Zulfendi bin Anuar v. Mohd Shahril bin Abdul Rahman [2022] 4 MLJ 892, the High Court held − “[7] The central feature of appellate intervention is well-established. It is to ascertain whether or not the trial court had arrived at its decision or finding correctly on the evidence and on the basis of the governing law. The Federal Court in the case of Gan Yook Chin (P) & Anor v. Lee Ing Chin @ Lee Teck Seng & Ors [2005] 2 MLJ 1, where the Federal Court held as follows: [14] In our view, the Court of Appeal in citing these cases had clearly borne in mind the central feature of appellate intervention, ie to determine whether or not the trial court had arrived at its decision or finding correctly on the basis of the relevant law and/or the established evidence. In so doing, the Court of Appeal was perfectly entitled to examine the process of evaluation of the evidence by the trial court. Clearly, the phrase ‘insufficient judicial appreciation of evidence’ melerly related to such process. This is reflected in the Court of Appeal’s restatement that a judge who was required to adjudicate upon a dispute must arrive at his decision on an issue of fact by assessing, weighing and, for good reasons, either accepting or rejecting the whole or any part of the evidence placed before him. The Court of Appeal further reiterated the principle central to appellate intervention, ie that a decision arrived at by a trial court without judicial appreciation of the evidence might be set aside on appeal. This is consistent with the established plainly wrong test. [8] Thus in Kerajaan Malaysia v. Global Upline Sdn Bhd and another appeal [2017] 1 MLJ 170 the Court of Appeal held that an appellate court will not intervene unless the trial court is shown to be plainly wrong in arriving at its conclusion and where there has been insufficient judicial appreciation of the evidence. [9] In the leading case of Ng Hoo Kui & Anor v. Wendy Tan Lee Peng (administratrix for the estate of Tan Ewe Kwang, deceased) & Ors [2020] 10 CLJ 1 the Federal Court affirmed with unmistakable clarity that the principle on which an appellate court could intervene with findings of fact by the trial court is ‘the plainly wrong test’ principle. [10] This important principle involves a number of circumstances, but must necessarily extends to situations where it can be shown that the impugned decision is vitiated with plain material errors, or where crucial evidence had been miscontrued, or where the trial judge had so manifestly not taken proper advantage of having seen and heard the witnesses or not properly analysed the entirely of the evidence before him, or where a decision was arrived without adequate judicial appreciation of the evidence such as to make it rationally unsupportable. [11] Above all, the Federal Court in Ng Hoo Kui established that the criterion that is central to appellate intervention must remain that deference to the trier of fact is still the rule and not the exception. And the plainly wrong test should not be used by the appellate court as a means to substitute the impugned decision with its own.”. [64] In re-hearing of the appeal before me, I have applied the test of “insufficient judicial appreciation of evidence” in relation to the process of determining whether the Sessions Court had arrived at its decision or findings correctly on the basis of the relevant law and the established evidence (see the Federal Court in Gan Yook Chin & Anor v. Lee Ing Chin & Ors [2004] 4 CLJ 309). [65] The conclusion made by the learned SCj is in accordance with the law, there is no gross error made by the learned SCj. I would like to quote the following:

in the case of Ineax Engineering Sdn Bhd v. Ineax Process Sdn Bhd And Ng Wee Keat (Third Party) [2017] 1 LNS 1187, the High Court has referred 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.”. Further, in the same case, the High Court referred to the following passage from the judgment of the Court of Appeal in Pernec Ebiz Sdn Bhd v. CCI Technology Sdn Bhd & Ors [2015] 2 MLJ 117− “Even though the burden upon a plaintiff in a civil suit is only to prove its case upon a balance of probabilities, it must present its case sufficiently clearly to do so. It cannot merely file pleadings, file bundles of documents, proceed to trial, call witnesses to testify and argue on the various issues and expect the court to make out the case on its own for one party or the other. The submissions failed to analyze the pleadings, the facts and the evidence as against the issues requiring a decision, and to tabulate the same so that a logical and reasoned decision could be made that satisfied the fundamental requirement of a fair and just decision. Where the party upon whom the burden of proving its case lies fails to do so, it fails to prove its case and its action must be dismissed.”.

in the case of Heritage Grand Vacation Club Bhd V. Pacific Fantasy Vacation Sdn Bhd [2016] 7 CLJ 679, the Court of Appeal laid down the principles on pleading − “[4] It is well-established that it is not the function of the court to build a case for the plaintiff/defendant inconsistent with the pleaded case. In Yew Wan Leong v. Lai Kok Chye [1990] 1 CLJ 1113, the Supreme Court had in strong terms held, and which still stands as a ‘gold standard’ in pleading rules and evidence, as follows: It is not the duty of the court to make out a case for one of the parties when the party concerned does not raise or wish to raise the point. In disposing of a suit or matter involving a disputed question of fact, it is not proper for the court to displace the case made by a party in its pleadings and give effect to an entirely new case which the party had not made out in its own pleadings. The trial of a suit should be confined to the pleas on which the parties are at variance. [5] The above case must be seen to be the ‘gold standard’ for pleading rules and is consistent with a long line of authorities from England as well as Malaysia. (See Janagi v. Ong Boon Kiat [1971] 1 LNS 42; Lee Ah Chor v. Southern Bank Bhd [1991] 1 CLJ 667; KEP Mohamed Ali v. KEP Mohamed Ismail [1980] 1 LNS 169). In Recaliva Design Steel (M) Sdn Bhd v. Vista Access Sdn Bhd & Anor [2008] 10 CLJ 491, the High Court held that on pleading rules and issues to be tried made the following observations: After having heard the evidence of the defendants, it is crystal clear to me that the version defendants attempted to project to me was never part of their defence. In such circumstances, the court is not obliged to consider in its judgment, stories which are not reflective of the pleadings. Pleadings are essential foundation to analyse disputes. Evidence must relate to pleadings and/or directly relevant to pleadings. The court is not concerned what issues the parties have framed for the determination of the court, when such issues cannot be reflective of the issues to be dealt with pursuant to the pleadings. [6] This ‘gold standard’ also plays an important part when parties as per the pleadings have agreed to the issues to be tried. That is to say, the issues to be tried must be as per the pleadings or arising from the pleadings and cannot be one which can be said to be the unpleaded case of the parties. The ‘gold standard’ has a number of exceptions in a restricted sense and those exceptions are not meant to override the ‘gold standard’ for pleading rules in all aspects.”.

in the case of Zainuddin Bin Uyub Dan Jalil Bin Tumirin [2009] 1 LNS 1139, the High Court cited the Court of Appeal case, Karumalay Vanniyan & Anor v. Ananthan Rethinam [2005] 2 CLJ 429, which was held – “A judge who is required to adjudicate upon a dispute must arrive at his decision on an issue of fact by assessing, weighing and, for good reasons, either accepting or rejecting the whole or any part of the evidence placed before him. He must, when deciding whether to accept or to reject the evidence of a witness, test it against relevant criteria. Thus, he must take into account the presence or absence of any motive that a witness may have in giving his evidence. If there are contemporary documents, then he must test the oral evidence of a witness against these. He must also test the evidence of a particular witness against the probabilities of the case. A trier of fact who makes findings based purely upon the demeanour of a witness without undertaking a critical analysis of what witness’s evidence runs the risk of having his findings corrected on appeal. It does not matter whether the issue for decision is one that arises in a civil or criminal case: the approach to judicial appreciation of evidence is the same. There are a number of important and leading cases in which the point has been considered.”.

the principles of “the best evidence rule” must be applied. In the case of Juta Damai Sdn Bhd v. Permodalan Negeri Selangor Bhd [2014] 5 CLJ 318, the Court of Appeal held − “Returning to the question of proof, we observe that there is no provision that requires that such loss is only provable by production of receipts. The best evidence rule requires proof not by the ‘best evidence’ but by the ‘best evidence available’. The unavailability of receipts was explained on the grounds the receipts were not kept for more than six years. The explanation is not inherently implausible.”.

the case of Telekom Malaysia Bhd v. KLK Electronic Sdn Bhd [2019] 4 MLJ 631 pertaining to the burden of proof. The decision of the Court of Appeal held – “[35] It is fundamental principle of law that in a civil case, the legal burden of proof lies on the party who brings the claim. The evidential burden may shift to the defendant once the plaintiff has established prima facie case.”. [66] In my judgment for the Defendant’s cross appeal pertaining to the issue on liability and cost of the trial as decided by the learned SCj, was decided judiciously and fairly. The Defendant only has to pay RM70,000.00 with interest and minimal costs to the Plaintiff. [67] Even though in the verbal submissions, the parties proposed that the costs for this appeal should not more than RM25,000.00, I have decided that no order to costs. Conclusion [68] For the reasons given above, I see no good reason to interfere on the whole findings of the learned SCj’s finding on the liability of the Defendant pertaining to the breach of the contract. [69] Only part of the learned SCj’s findings that is the costs of the trial at the Sessions Court at the amount of RM30,000.00 payable by the Defendant to the Plaintiff is reversed and/or set aside and this Court allows costs is RM5,450-00 payable to the Plaintiff. This is in favour of the Defendant. Dated: 29 November 2023. RoziBainon ( ROZI BINTI BAINON ) Judicial Commissioner Shah Alam High Court NCvC12 The Counsels: For the Plaintiff: Lai Wei Shiung Messrs.Tommy Thomas, Kuala Lumpur For the Defendant: Nur Muhaimin binti Mohd Husaimi with her, Sri Richgopinath & Joel Lim Messrs. Joel & Mei, Kuala Lumpur