Pembinaan Thin Chai Sdn Bhd v Oka Marketing Sdn Bhd (JA-22C-6-09/2022)

The finalized ‘As-Built’ drawings for the said project;

Certificate of Completion and Compliance;

correspondence between the Plaintiff and GJ Runding and/or GJ Runding and MBJB (Majlis Bandaraya Johor Bahru) on the handing over of the ‘As-Built’ drawings; S/N rfuNYcCMk6M12VUyiabig

any other letters and/or approval for the extension of time of the said project. Preliminary objection on affidavit in reply filed by counsel for the Defendant to contest enclosure 13 [2] The objection by the Plaintiff is on the basis that the counsel for the Defendant is not privy to all the material facts arising in this application as counsel is never a party involved in the said project, hence is not equipped with the necessary knowledge to depose the affidavit in reply on behalf of the Defendant. [3] This Court, however having perused the said affidavit by the Defendant’s counsel and having observed the averment by the Plaintiff in the affidavit in support of enclosure 13, noted the following: “5. Saya telah dinasihatkan oleh peguamcara Plaintiff berkenaan isu-isu undang-undang dalam Afidavit ini dan sesungguhnya percaya bahawa permohonan ini adalah perlu untuk pelupusan yang adil untuk guaman di hadapan Mahkamah Yang Mulia”. [4] In addition to this, the affidavit in reply by counsel for the Defendant in replying to the particular facts raised in the said affidavit in support by the Plaintiff, paragraph (2) states as follows: “Saya menyatakan bahawa segala kenyataan-kenyataan yang dinyatakan di sini adalah benar dan mengikut pengetahuan saya sendiri dan melalui dokumen-dokumen yang saya mempunyai akses kepadanya melainkan jika dinyatakan sebaliknya”. S/N rfuNYcCMk6M12VUyiabig Page 3 of 12 [5] For this purpose, facts which are more familiar to the Defendant, the averment by counsel in the said affidavit in reply uses such phrases “saya diarah”. This ‘arahan’ must surely come from the Defendant arising from the authorization given by the Defendant to the deponent counsel as contained in paragraph (1) “… saya telah diberi kuasa untuk mengikrarkan Afidavit ini bagi pihak Defendan”. [6] That being the case, the preliminary objection by the Plaintiff is without basis and therefore dismissed by this Court. The hearing of enclosure 13 proceeded until its determination by this Court, with the result that perusal of the cause papers and upon hearing submissions by both parties, enclosure 13 is dismissed with cost. Background facts [7] The Defendant appointed the Plaintiff as subcontractor for the ‘piling, flyover and bridge works pertaining to the project ‘Cadangan Membina Persimpangan Bertingkat di Persimpangan Jalan Dato Onn Utama dan Jalan Bukit Mutiara, Johor Bahru, Johor’ (referred to as ‘the project’). MBJB is the owner of the said project, Selenggara Maju Trading (SMT) is the main contractor appointed by MBJB and GJ Runding is the project consultant appointed by both MBJB and SMT. None of these are named as parties in this proceeding. [8] The Plaintiff in its statement of claim and enclosure 13 contends that the Project was completed on 31.5.2021. Yet, despite works carried out by the Plaintiff with due diligence, reasonable care and skills, there has been a failure on the part of the Defendant pursuant to the terms of the Subcontract, to certify or make payment for Progress Claims No. 17, 18 S/N rfuNYcCMk6M12VUyiabig Page 4 of 12 and 19 to the Plaintiff, with the outstanding sum owing after material deduction is for the sum of RM1,023,453.80. [9] The Plaintiff further contends that there has been failure by the Defendant to issue the Certificate of Practical Completion (“CPC”) and the Certificate of Completion of Making Good Defects (“CMGD”) to the Plaintiff and this caused the Defect Liability Period (“DLP”) which ought to commence on 31.5.2021, could not commence. [10] The Defendant, on the other hand in its statement of defence and affidavit in reply enclosure 15, said based on the Letter of Award between Plaintiff and Defendant, the completion date of the Project should be 30.6.2020 and any failure to comply, liquidated damages based on clause 3 of the Letter of Award, is due to be paid by the Plaintiff. [11] The Defendant further deposed in paragraph 6 and 7 of the Affidavit-in-Reply, that it is the duty of the Plaintiff (based on clause 10 of the Letter of Award), to submit the documents being the ‘As-Built’ drawings and the ‘Certificate of Completion and Compliance’, the documents requested by the Plaintiff in this application. Clause 10 provides as follows: “i. You are to submit completes sets of shop drawings as required in the Sub Contract. ii. You shall submit complete sets “As Build” drawings and/or Operation and Maintenance Manual (O&M) as stated in the subcontract documents before the date of certificate of completion (CPC) if any.” S/N rfuNYcCMk6M12VUyiabig Page 5 of 12 [12] Arising from the failure on the part of the Plaintiff to do so, the Defendant deposed that the Defendant was moved to obtain the ‘As-Built’ drawings from another source. It is only upon submission of the ‘As-Built’ drawings by the Defendant within the extension of time period granted to the Defendant, moved the issuance of the CPC. [13] It is the submission by the Defendant that the Plaintiff is not entitled to other documents not related to the Letter of Award between the Plaintiff and the Defendant. In answer to this, the Plaintiff did not deny the said clause of the Letter of Award when the Plaintiff in paragraph 11 of the affidavit in reply enclosure 24 deposed as follows: “11. Kecuali setakat mana yang konsisten dengan terma-terma Letter of Award tersebut, baki Perenggan 6 dan 7 Afidavit Jawapan tersebut adalah dinafikan…” and proceeded to maintain the importance of the ‘As-Built’ drawings in order to support, not only the Defendant’s counter-claim but also to either support or break the Plaintiff’s claim. [14] In doing so, the Plaintiff did not refute clause 10 but appears to suggest that if the said ‘As-Built’ drawings are still within the possession and control of the Plaintiff, enclosure 13 would not have been filed. The Plaintiff argued further that in the absence of GJ Runding and/or MBJB’s affidavit opposing this application, the said ‘As-Built’ drawings ought to be allowed based on the discovery application by the Plaintiff. This Court is puzzled by this argument as both GJ Runding and MBJB are not named as parties to this suit. To seek for their affidavits opposing or agreeing to enclosure 13 is therefore, absurd. S/N rfuNYcCMk6M12VUyiabig Page 6 of 12 [15] In addition, this Court agrees with the Defendant that based on the statement of claim, the Plaintiff’s stand is that the ‘As-Built’ drawings have been submitted by the Plaintiff. Although the Defendant contends that the submission, if true, ought to have been made on the Defendant’s consultant and not any other party, takes the position, that surely then there must be no necessity to file this application as it is the same document that have been sought by the Plaintiff in this discovery application as can be seen from the wordings of the application reproduced once more as follows: “correspondence between the Plaintiff and GJ Runding and/or GJ Runding and MBJB (Majlis Bandaraya Johor Bahru) on the handing over of the ‘As-Built’ drawings”. [16] Furthermore, from the letters by GJ Runding dated 10.10.2022 and from MBJB dated 28.2.2023, both annexed by the Plaintiff in the affidavit-in-support, GJ Runding and MBJB have no knowledge of the suit between the Plaintiff and the Defendant. These letters are crucial in determining the position of these entities. The contents of these 2 letters extracted and produced as below: “Letter from counsel for Plaintiff dated 3.10.2022 to GJ Runding with heading: “Cadangan Membina Persimpangan Bertingkat Di Persimpangan Jalan Dato Onn Utama dan Jalan Bukit Mutiara, Johor Bahru, Jahor Darul Takzim (“Projek”): “3. …our client’s progress claims for work done …i.e. Progress Claims No. 17, 18 and 19 respectively, have not been certified and our client has not received the Interim Payment Certificates (“IPC”) for the same… S/N rfuNYcCMk6M12VUyiabig

To this end, our client requires the following documents from your office to facilitate the proceedings of the Suit: …

5.3 The IPC for our client’s Progress Claims No. 17, 18 and 19… Letter from GJ Runding dated 10.10.2022 to Plaintiff’s counsel: “Furthermore, the progress claim mentioned on item 5.3 is beyond our knowledge nor approval”. Letter from counsel for Plaintiff to MBJB dated 13.10.2022 with heading: “Cadangan Membina Persimpangan Bertingkat Di Persimpangan Jalan Dato Onn Utama dan Jalan Bukit Mutiara, Johor Bahru, Jahor Darul Takzim (“Projek”) “3. Namun begitu, kontraktor utama (‘main contractor’) bagi Projek tersebut, OKA Marketing Sdn Bhd (No. Syarikat: 931288-M) (“OKA”) telah gagal untuk membayar Anak Guam kami bagi kerja-kerja yang telah Anak Guam kami selesaikan dalam penyempurnaan Projek tersebut.

Oleh yang demikian, Anak Guam kami telah memulakan suatu tindakan undang-undang terhadap OKA dalam Guaman Sivil No: JA- 22C-6-09/2022 (“Guaman” tersebut) untuk menuntut, antara yang lain, pembayaran bagi kerja-kerja yang telah selesai namun masih belum dibayar (‘unpaid word done’).” Letter from MBJB dated 28.2.2023 to Plaintiff’s counsel: “2. Sebagaimana pihak tuan sedia maklum, Tetuan Selenggara Maju Trading adalah lantikan kontraktor bagi projek yang tersebut di atas. Oleh kerana tiada sebarang dokumen yang melibatkan Syarikat OKA Marketing Sdn Bhd bersama pihak Majlis, pihak Majlis tidak boleh membekalkan sebarang dokumen berkaitan kepada pihak tuan”. S/N rfuNYcCMk6M12VUyiabig Page 8 of 12 The law on discovery application [17] It is pertinent to sight O.24 r.7a of ROC 2012 which provides as follows:

“Discovery against other person (O. 24, r. 7a)

An application for an order for the discovery of documents before the commencement of proceedings shall be made by originating summons and the person against whom the order is sought shall be made defendant to the originating summons.

An application after the commencement of proceedings for an order for the discovery of documents by a person who is not a party to the proceedings shall be made by a notice of application, which shall be served on that person personally and on every party to the proceedings.

An originating summons under paragraph (1) or a notice of application under paragraph (2) shall be supported by an affidavit which shall—

in the case of an originating summons under paragraph (1), state the grounds for the application, the material facts pertaining to the intended proceedings and whether the person against whom the order is sought is likely to be party to subsequent proceedings in Court; and

in any case, specify or describe the documents in respect of which the order is sought and show, if practicable by reference to any pleading served or intended to be served in the proceedings, that the documents are relevant to an issue arising or likely to arise out of the claim made or likely to be made in the proceedings or the identity of the likely parties to the proceedings, or both, and that the person against S/N rfuNYcCMk6M12VUyiabig Page 9 of 12 whom the order is sought is likely to have or have had them in his possession, custody or power.” [18] Firstly, the documents contended must be shown its relevancy and ought to be in the Defendant’s possession, custody or power. If the documents are with a person not a party to the proceeding (in this case either MBJB, GJ Runding or STM), then O24 r.7a contains particulars that stipulates the procedure to be complied by the Plaintiff. This is important as the statement of fact by the Plaintiff itself is uncertain as to who in fact had prepared those documents and to whom the documents were submitted to, as each parties ventured into this project on different legal capacities. [19] For an application filed pursuant to O. 24 r.7a of the Rules of Court 2012 (ROC), the Supreme Court decision in Yekambaran s/o Marimuthu v. Melayawata Steel Berhad [1994] 2 CLJ 581 which was then expounded further by the Federal Court in Kerajaan Negeri Kelantan v Petroliam Nasional Berhad & Other Appeals [2014] 7 CLJ 597 centered on the principles that it must relate to the core issues. The burden is on the party seeking for the discovery of those documents (in this case the Plaintiff) to show on the balance of probability, the documents being necessary towards disposing the matter fairly and towards saving costs. [20] For this purpose too, O. 24 r.8 like O.24 r.13 stand as a guide on whether to allow or otherwise the discovery application and the inspection of the said documents on the basis it being necessary. S/N rfuNYcCMk6M12VUyiabig Page 10 of 12 “Discovery to be ordered only if necessary (O. 24, r. 8)

On the hearing of an application for an order under rule 3, 7 or 7a, the Court, if satisfied that discovery is not necessary, or not necessary at that stage of the cause or matter, may dismiss or adjourn the application and shall in any case refuse to make such an order if and so far as it is of the opinion that discovery is not necessary either for disposing fairly of the cause or matter or for saving costs.

Production to be ordered only if necessary (O. 24, r. 13)

An order for the production of any documents for inspection or to the Court shall not be made under any of the foregoing rules unless the Court is of the opinion that the order is necessary either for disposing fairly of the cause or matter or for saving costs.

Where on an application under this Order for production of any document for inspection or to the Court, privilege from such production is claimed or objection is made to such production on any other ground, the Court may inspect the document for the purpose of deciding whether the claim or objection is valid.” [21] It is to be noted that the reasons put forward by the Plaintiff in seeking for the discovery of those documents apart from just identifying and listing them in their OS, did not elaborate further in the affidavit in support why they are necessary. This is added further by the fact that the Plaintiff had suggested the ‘As-Built’ drawings were prepared by them and submitted by the Plaintiff to GJ Runding and/or MBJB, instead of submitting them to the Defendant’s consultant. S/N rfuNYcCMk6M12VUyiabig Page 11 of 12 [22] GJ Runding vide their letter dated 10.10.2022 exhibited as “PTC-8” to the Plaintiff’s affidavit in support enclosure 14, in response to the letter of request dated 3.10.2022 by counsel for the Plaintiff seeking for the supply of the ‘As-Built’ drawings and Interim Partial Certificate for the progress payment 17,18 and 19, however was not aware of the claims made by the Plaintiff. As to the drawings, GJ Runding’s stand for the consent of MBJB would be needed. MBJB vide their letter dated 28.2.2023 exhibited as “PTC-10” of enclosure 14, in reply to the counsel for the Plaintiff’s letter dated 13.10.2023 which had erroneously stated the fact of OKA Marketing Sdn Bhd being the ‘main contractor’. MBJB’s response was that “MBJB is not in possession of any documents relating to OKA Marketing Sdn Bhd”. This definitely would include the EOT papers (extension of time) and the certificates sought. [23] All these re-emphasize the earlier finding by this Court that GJ Runding and MBJB are not named as parties in this suit as the appointment of the Defendant was by the Plaintiff and not MBJB or GJ Runding nor SMT; as subcontractor for the ‘piling, flyover and bridge works pertaining to the main project ‘Cadangan Membina Persimpangan Bertingkat di Persimpangan Jalan Dato Onn Utama dan Jalan Bukit Mutiara, Johor Bahru, Johor’. MBJB being the owner of the said project appointed Selenggara Maju Trading (SMT) as the main contractor and GJ Runding is the project consultant appointed by both MBJB and SMT. Both MBJB and GJ Runding’s dealing including SMT, if any are with the Plaintiff and not with the Defendant, OKA Marketing Sdn Bhd. [24] This finding strengthened the Defendant’s argument that those necessary documents sought by the Plaintiff were never submitted to the Defendant as the above correspondences from the Plaintiff’s counsel S/N rfuNYcCMk6M12VUyiabig Page 12 of 12 clearly indicate the uncertain position that had occurred. For all these reasons, the application enclosure 13 by the Plaintiff failed to satisfy the requirement that the documents (in which Plaintiff was responsible to prepare), are in the Defendant’s possession, custody or power and therefore is dismissed with cost awarded to the Defendant. -Signed- (NURULHUDA NUR’AINI BINTI MOHAMAD NOR) Judge High Court of Malaya Johor Bahru Dated: 30th April 2024 COUNSEL For the Plaintiff: Lee Sin Yee Messrs. Thomas Philip Advocates & Solicitors No. 5-1, Jalan 22A/70A Wisma CKL, Desa Sri Hartamas 50480 Kuala Lumpur For the Defendant: Datuk Hj. Khutubul Zaman Bin SNS Bukhari (Anis Syarizad binti Datuk Hj. Khutubul Zaman with him) Messrs. Syarizad Zaman & Seah Advocates & Solicitors #5-05, Level 5, Menara TJB No. 9 Jln Syed Mohd Mufti 80000 Johor Bahru S/N rfuNYcCMk6M12VUyiabig