Pesat Bumi Sdn Bhd v Cescon Engineers Sdn Bhd (WA-22C-38-04/2021)

1.1 By a letter dated 7/7/2014, Cescon had submitted a proposal to Pesat Bumi for the appointment of the Cescon as the consultant for civil and structural engineering services and mechanical engineering services for a project known as “Proposed Development Consisting of Bungalows, Low Rise Town House/ Apartment on Lot 17737, Mukim Genting, Daerah Bentong, Pahang Darul Makmur” ("the Project") upon the terms and conditions stated in the letter that had been agreed by Pesat Bumi on 27.3.2015 ("the Contract).

1.2 The Contract contains, inter alia, the express terms as follows:- a) Clause 2.1 of the Contract “a. To prepare and submit Earthworks, Road and Drain, Sewerage and Water Supply plans as required for local authorities’ approval; b. To prepare and submit Earthworks, Road and Drain, Sewerage and Water Supply plans as required for local authorities’ approval; c. To prepare design calculations and drawings for structural and foundation works; d. To conduct periodical site inspections during construction; and e. To apply for Certificate of Completion and Compliance

clearances from relevant local authorities”. b) Clause 2.2 of the Contract “a. To submit electrical, telephone, fire protection system and street lighting plans as required for local authorities’ approval; b. To prepare Tender Documents and advise on award of tender for Mechanical and Electrical Engineering subcontract works, if applicable; c. To prepare Contract Documents for Mechanical & Electrical Engineering subcontract works, if applicable; d. To conduct periodical site inspections during construction; and e. To apply for Certificate of Completion and Compliance (“CCC”) clearances from relevant local authorities”.

1.3 The Master Title of the Project was Lot PT17737. Lot PT17737 was then subdivided into two plots of land, i.e. Lot PT23025 and PT23026.

1.4 On or around 19/10/2018, Planning Approval for all three phases of the Project on Lot PT23026 was approved and obtained.

1.5 On or around 28/3/2019, Planning Approval for all three phases of the Project on Lot PT23026 was subsequently amended and approved to reflect the amendment on the title of the Project.

1.6 On or around 11/7/2019, Phase 3 of the Project was proposed to be revised to two blocks of service apartments, which involves Phase 3A comprising of 462 units of service apartment and Phase 3B comprising of 526 units of service apartment. (“Revised Phase 3 Project”) Plaintiff’s Claim 2) The Plaintiff had in its Statement of Claim pleaded as follows:- a. the Defendant had committed various breaches of contract throughout the period of July 2019 to September 2019. b. the Defendant had failed to provide their basic input and comment on the preliminary layout plans for the said Proposed Revised Phase 3 Project and/or the updated architectural layout plans for the said Proposed Revised Phase 3 Project and to proceed diligently with all the necessary actions including but not limited to working out the proposed civil and structural design, planning for submissions and to obtain clearance letters from the relevant technical departments and/or authorities on an urgent basis so as to facilitate the submission process for the amendment to the Planning Permission approval within the stipulated timeline given despite numerous reminders. c. The Defendant had also failed and/or refused and/or neglected to attend the CCM held at the Project Site Office at Genting Permai on 9.8.2019, 26.8.2019 and 6.9.2019 as well as the scheduled meeting between the Plaintiff’s appointed architect, DCA and the Defendant on 3.9.2019 of which the aforementioned meetings are crucial and compulsory in order for all parties to resolve the issues on technical and authority submissions, in view of the urgent need for submission of the amendment to the Planning Permission approval. d. As a result of the aforesaid breaches by the Defendant, the Plaintiff had no choice but to terminate the said Contract. On or about 19.10.2020, the Plaintiff wrote to the Defendant informing them that the Plaintiff will be terminating the Contract with immediate effect, and the Defendant was required to furnish the Plaintiff with their Letter of Release within seven days from the date thereof. e. On 28.10.2020, the Defendant sent an email to the Plaintiff, enclosing its letter dated 27.10.2020 of which the Defendant had acknowledged the termination of the said Contract and claimed for outstanding fees for the sum of RM651,449.50 (inclusive of 6% SST) for the Defendant’s alleged completed works as well as for the sum of RM325,724.75 (inclusive of 6% SST) for the alleged disruption fee arising from the termination of the said Contract. f. By reason of the Defendant’s breach of contract, the Plaintiff had suffered considerable loss, damage and expenses. As a result of the Defendant’s failure to furnish their Letter of Release promptly, the said PT23026 Project was put to a standstill as the Plaintiff was unable to appoint a Second Engineer to provide C&S services. Defence 3) In its Statement of Defence (Defence), the Defendant had inter alia contended as follows:- a. that there is no contract formed between the Plaintiff and itself on the appointment of the Defendant as the civil and structural engineering (C&S) consultant for the Revised Phase 3 Project. b. that there were changes in the scope, coverage of works and variation to the term of the said Contract, the Defendant then issued new letters of appointment for the Plaintiff’s execution for the respective development as follows:

4.10.2017 – said PT23026 Project (“2nd LOA”).

8.8.2019 – said Proposed Revised Phase 3 Project (“3rd LOA”). c. however, the Plaintiff did not execute the aforesaid LOAs. d. that there was a need for the Plaintiff to execute the 3rd LOA due to the following reasons: i. The Plaintiff’s non-signing of the 2nd LOA. ii. The sudden termination of the Defendant’s services during the CCM No. 22 on 29.7.2019. iii. The change of nature and scope of works. e. there is no contract formed between the Plaintiff and the Defendant on the appointment of the Defendant as the civil and structural engineering consultant for the Revised Phase 3 Project. f. The Defendant counterclaims RM651,449.50 for the works done and rendered for the Project under the original Contract calculated as of 2/8/2019 from the Plaintiff. g. The Defendant further counterclaims the disruption fee of RM325,724.75 following the termination by the Plaintiff in accordance with Paragraph 5(1)(b) in Part C of the Notification of Scale of Fees for Housing Development enacted under the Registration of Engineers Act 1967. Plaintiff’s Reply and Defence to Counterclaim 4) The Plaintiff pleaded in its Reply and Defence to Counterclaim that notwithstanding the subdivision of the Master Title, the Defendant was retained by the Plaintiff to provide C&S services for the said PT23026 Project on the same terms and conditions as per the said Contract. a. The 2nd LOA issued by the Defendant was irrelevant and does not affect the Defendant’s role as the C&S engineer on record for the said PT23026 Project. b. The 3rd LOA provided by the Defendant was an afterthought created after the Defendant had failed and/or refused and/or neglected to provide their basic input and comment to the said Architectural Drawings and/or the updated architectural layout plans for the said Proposed Revised Phase 3 Project within the given deadline. c. The works for the said PT23026 Project had not reached to the stage as claimed by the Defendant. The Defendant’s work done was based on the percentage of the total construction costs as per the said Contract and that the amounts presently sought by the Defendant are excessive, unfair and/or unreasonable. d. As to the disruption fee claimed by the Defendant, it was made without any valid basis as the disruption fee only will be valid if the termination of the Defendant’s services was not occasioned by the default or negligence of the Defendant. e. As to the stake holding procedure by BEM, it is merely a suggestive approach and not mandatory. Issues To Be Tried 5) The Plaintiff’s Issues to be Tried consisted of the following: a) Whether the Defendant was required to provide M&E services as per the said Contract of 7.7.2014? b) Whether the Plaintiff was required to execute the 2nd LOA and 3rd LOA with the Defendant for the said PT23026 Project and the said Proposed Revised Phase 3 Project? c) What were the terms of the Defendant’s contract throughout the entire project (said Project, said PT23026 Project and said Proposed Revised Phase 3 Project)? d) Whether there was a breach of contract on the part of the Defendant entitling the Plaintiff to terminate the Defendant’s services? e) Plaintiff’s claim for damages i.e., loss of profits f) The Defendant’s Counterclaim 6) The Defendant contends that the issues to be tried are as follows:- a) Whether there is any contract between the Plaintiff and the Defendant on the appointment of the Defendant as the civil and structural engineering consultant for the Revised Phase 3 Project; b) Whether there is any breach of contract by the Defendant; c) If this Court finds that there is a contract between the Plaintiff and the Defendant for the Revised Phase 3 Project, whether the Plaintiff’s alleged loss of profit is solely caused by the Defendant or self-inflicted; and d) Whether the Defendant is entitled to the sum of RM651,449.50 for the work done for the Project as of 2/8/2019 and the disruption fee of RM325,724.75. Analysis & Findings Whether There Was A Contract Between the Plaintiff and The Defendant Where the Defendant Was Required to Provide M&E Services as Per the Said Contract Of 7.7.2014 7) I will now deal with the issue of whether there was a contract between the Plaintiff and the Defendant where the Defendant was required to provide M&E services as per the said Contract of 7.7.2014 (Contract). 8) It is, from the evidence before me, an undisputed fact that both the Plaintiff and the Defendant had executed for the said project, known as “Proposed Development Consisting if Bungalows , Low Rise Town House /Apartment on Lot 17737, Mukim Genting Daerah Bentong, Pahang Darul Makmur (“Project”), a written Contract dated 7.7.2014 and after perusal of the said Contract I find that the Defendant’s scope of works as stated in the said Contract was expressly stated to provide both Civil and Structural Engineering and Mechanical & Electrical Engineering (“C&S and M&E”) services for the Project. 10 9) I have also noted that during the trial, DW2, the Defendant’s managing director, Mr. Sha Chaim Chuan, when cross-examined, admitted that the Defendant was at all material times, merely a licensed or duly registered C&S engineer and thus, allowed to provide C&S services only. 10) This was further corroborated by PW3, Mr Hiew Thien You, The Plaintiff’s Project Manager, who gave evidence during re-examination that since the start of the project, the Defendant had only provided C&S services and nothing on M&E works. 11) Following from the above, the evidence thereafter shows that the Plaintiff had in fact appointed Perunding Kontrek Sdn Bhd as its M&E Engineering Consultant and according to DW2 under cross examination, this was not objected to by the Defendant. 12) It is further in evidence as testified by DW2 that the fees payable was only 1.3% of the total construction costs and not 1.95% of the total construction costs of the project as per the Contract, as the Defendant only does C&S works and not M&E works. This was also confirmed by the Defendant’s counsel when a question was posed on this point by the previous learned Trial Judge (YA Dato’ Lim Chong Foong, as he was then). 13) The Defendant thus alleges that due to the changes to the terms of the Contract, the Defendant had previously prepared and which this Court observes is in evidence, a revised letter of appointment dated 11 4/10/2017 (“LOA 2”) to reflect the changes in the Defendant’s job scope which included: - a) the scope of the Defendant’s C&S works; and b) their fee of 1.3% of total construction costs of the Project (exclusive of 6% Government Services Tax). 14) I am therefore convinced on a balance of probabilities that there was indeed a written Contract on 7.7.2014 for the Project and that the Defendant was to provide both C&S and M&E services thereto which was later amended by mutual consent to the Defendant providing C&S services only and that the fees payable was only 1.3% of the total construction costs. Issues on Revised Phase 3 Project 15) The question which follows from this which the Court has to decide is whether the Plaintiff was required to execute the 2nd LOA and 3rd LOA with the Defendant for the said Proposed Revised Phase 3 Project and if there is any contract between the Plaintiff and the Defendant on the appointment of the Defendant as the Civil and Structural engineering consultant for the Revised Phase 3 Project. 16) It was shown to this Court, and I do agree, that the Master Title for the said Project was Lot PT17737 which was eventually subdivided into Lots PT23025 and PT23026 and the respective land titles thereafter being issued on 8.8.2016. 17) It was contended by the Plaintiff that Phase 3 of the said PT23026 Project was then proposed to be revised to 2 blocks of service apartment which are Phase 3A comprising of 462 units of service apartments and Phase 3B comprising 526 units of service apartments, i.e., the Proposed Revised Phase 3 Project which I found from the evidence informed to the Defendant at a meeting 29.7.2019 as per the minutes of the document known as the ‘Client Consultant Meeting No. 22’ issued by the architect for the Project, Messrs Design Collective Architecture Network Sdn Bhd. 18) The said Client Consultant Meeting No. 22 had also stated that the Project’s main contractor, Geo Hill Sdn. Bhd. (“GHSB”), informed all the parties who attended the said meeting that the Plaintiff had the intention to terminate the Defendant’s service for the Revised Phase 3 Project, and would engage Zeal & Tan Associates Sdn. Bhd. as the new C&S consulting engineer and the Defendant had responded that it would withdraw the services for the Project, provided that Pesat Bumi shall settle all Cescon’s claim and payment by 12/8/2019. 19) There is thereafter produced in Court: -

the Defendant’s letter to the Plaintiff dated 1.8.2019 stating inter alia that it would issue the letter of release when all its outstanding fee is settled in full by the Plaintiff by 12/8/2019.

the Defendant’s letter dated 2/8/2019 enclosing its invoices for the sum of RM651,449.50 (inclusive of 6% SST), being the works done for the Project until 2/8/2019.

the Defendant’s email to the Plaintiff dated 2.8/2019 detailing the particulars, description and relevant documents evidencing the works done by the Defendant in respect of the Project as of 2/8/2019 and reiterating that the letter of release will be issued once the Defendant’s fee is settled. 20) The Plaintiff had thereafter issued a letter dated 2/8/2019 to the Defendant and informed that neither the architect nor Mr Leong Poh Whye of Geo Hill Sdn. Bhd.) were authorised to terminate the Defendant’s service and confirmed the Defendant’s position as the consultant for the Project. 21) The evidence then shows that the Defendant had issued an email dated 5/8/2019 which sought the Plaintiff’s confirmation of the Project Title, Development Data and Submission Requirement Checklist. This is contrary to the Defendant’s submissions at the trial that it was to seek the Plaintiff’s confirmation of the design change to the layout and building plans are in accordance with the Plaintiff’s intention. 22) Thereafter the documents before this Court shows that: -

the Project’s Architect via its letter dated 5/8/2019 instructed the Defendant to submit its input and comments for the architectural layout including the proposal for the C&S design of the new buildings and to plan for submissions to the respective authorities for the Revised Phase 3 Project.

(ii) the Defendant prepared a new letter of award dated 8/8/2019 (“3rd LOA”) for the Plaintiff to confirm the Defendant’s terms of appointment in respect of the Revised Phase 3 Works. 23) The Defendant has submitted that there are significant changes in the works in the original Contract, in particular the Revised Phase 3 Project, which amounts to a material change and variation to the Contract, as it is a revision of design entirely different from the original Phase 3 Project. In return the Plaintiff submits that there was never a need to sign any new or subsequent letter of appointment with the Defendant for the said Revised Phase 3 Project for reasons being that: - i. the proposed new developments are still within the same development land. ii. the proposed condominium and serviced apartments for Phase 3 are similar in nature as the structural design of these buildings are reinforced concrete framed high rise building. iii. the Plaintiff is still the same developer for the entire projects. iv. the Defendant’s C&S fees are the same, i.e., 1.3% of the total construction cost. 24) From this Court’s observation, the main difference in the Revised Phase 3 Project is the change in the 368 units of residential condominium in the original Contract to two blocks of service apartments with two phases, i.e. Phase 3A of 462 units and Phase 3B of 526 units. All other conditions in the Contract pertaining to the proposed new developments still being within the same development land and the Defendant’s C&S fees are the same. 25) I have therefore, after due consideration of the evidence and testimonies before me, accepted the evidence of PW 3 and PW 2 that: -

25.1 there was only one letter of appointment for all the respective consultants (i.e., Architect, Quantity Surveying consultant, Civil and Structural consultant and Mechanical and Electrical Engineering consultant) for the Project and the Revised Phase 3 Project.

25.2 all the other respective consultants did not ask for fresh letter of appointment to be signed.

25.3 the Defendant was already the appointed C&S consultant throughout the entire project.

25.4 the Defendant was already registered with the relevant Authorities (Majlis Perbandaran Bentong) since the 1st day of the Defendant’s appointment regardless whatever changes there might be to the project description and components (condominium to apartments or to hotel etc.).

25.5 so long the plot of land to be developed is still within the same land (PT23026 is part of the Master Title of PT17737), then the Defendant is still registered with the Authorities and the Defendant can only be excused or released from their job upon issuance of their Letter of Release. 26) In fact, DW1, the Defendant’s expert witness, Ir Ting Chek Choon, when cross-examined also concurred that until the Letter of Release is issued by the Defendant, the Defendant is still the C&S consultant on record for the entire project. 27) I am therefore not prepared to accept that the signing of the 3rd LOA is of paramount importance as contended by the Defendant as there is no change in the Defendant’s scope of works as mentioned above. 28) I am also unable to accept that the alleged termination via the Client Consultant Meeting No. 22 was in fact a termination of the Defendant as the C&S Consultant for either the Project or the Revised Phase 3 Project as it is my finding that there was never any termination from the Plaintiff pertaining to the Defendant’s C&S services for the entire project at all relevant time as the same was only an expression of intent to terminate the services of the Defendant and there was no actual termination from the Plaintiff. 29) This finding is further corroborated by the Plaintiff’s letter to the Defendant dated 2.8.2019 clarifying and confirming that neither DCA nor Mr. Leong Poh Whye were authorized by the Plaintiff to terminate the Defendant’s C&S services and confirming that the Defendant still remained as the C&S consultant. 30) This Court has also accepted that there is ample evidence before this Court of the Plaintiff’s affirmation and acknowledgment of the Defendant’s services after the meeting on 29.7.2019 i.e. the ‘Client Consultant Meeting No. 22’ such as inter alia: -

30.1 the Defendant’s services as the C&S consultant for the said Project and the said Revised Phase 3 Project was still discussed during the Client Consultant Meeting No. 23, Consultant Meeting No. 24 and Consultant Meeting No. 24 on 9.8.2019, 26.8.2019 and 6.9.2019 respectively.

30.2 extension of Defendant’s deadline to furnish their basic civil and structural input and comment in relation to DCA’s architectural drawings by 16.8.2019 via DCA’s letter dated 9.8.2019. 17 30.3 reminder to the Defendant on their outstanding works via DCA’s email dated 19.8.2019 and letters dated 20.8.2019 and 30.8.2019.

30.4 the notification to all the consultants, including the Defendant on the targeted deadline submission of the amendment in respect of the Planning Permission approval for the said Revised Phase 3 Project via DCA’s email dated 22.8.2019.

30.5 the Defendant still proceeded to request for more time to review the architectural drawings for the said Revised Phase 3 Project as evident in their email to DCA on 5.8.2019. 31) There is also evidence that the Defendant still proceeded with the preliminary works for the Revised Phase 3 Project after the Plaintiff’s letter dated 2/8/2019 as evidenced by the following: - Defendant’s email dated 6/8/2019 - Defendant’s follow-up email to the email dated 5/8/2019 - Defendant provided timeline for its works Defendant’s letter dated 8/8/2019 - Defendant informed Architect that there are 9 missing floor plans - Defendant sought Architect’s assistance to follow up on the signing of the new LOA in order to commence its works Defendant’s letter dated 19/8/2019 and Defendant’s letter dated 29/8/2019 - Defendant sought Architect’s assistance to follow up on the signing of the new LOA in order to commence its works - reminded Architect that the 9 missing floor plans were not furnished 32) It is a fact that LOA 2 & LOA 3 were not executed but that the Defendant had proceeded to carry out its works for the Revised Phase 3 Project as admitted by the Defendant in paragraph 5.5 of the Statement of Defence and via the Defendant’s letter to the Plaintiff dated 27.10.2021. The Defendant pleads in its Defence that the Defendant had proceeded to carry out its works for the Revised Phase 3 Project was done in good faith and under the honest and bona fide belief that the Plaintiff would honour the varied terms in the LOA 2 and/or the 3rd LOA. 33) I hold from all of the above evidence that the Defendant had by its conduct accepted its appointment for the Revised Phase 3 Project and that it is clear that the Defendant had, from the facts and the chronology of events, accepted their appointment as the C&S consultant for both the Project and the Revised Phase 3 Project and had in fact carried out part of their work scope. 34) The Defendant having taken the stance that there should be a new contract entered into between the parties for the Project and / or the Revised Phase 3 Project should have made it known to the Plaintiff in no uncertain terms that it was no longer proceeding with its services for the said Project and / or the Revised Phase 3 Project and should not have continued to work or provide services on the said Project and / or the Revised Phase 3 Project albeit in part by for example requesting for more time to review the architectural drawings for the said Revised Phase 3 Project. 35) The Defendant should have also expressly communicated in writing to the Plaintiff and its agents such as the architect, DNA, had the Defendant considered that it would no longer proceed with the Project and / or the Revised Phase 3 Project without a fresh contract being executed, and that it would not accept any further communications or be part of any of the meetings including any discussions on any works pertaining to the Project and / or the Revised Phase 3 Project, as the case maybe. 36) The Defendant’s silence and failure to respond when it was sent with the various documents, letters, emails and communication by the Plaintiff or DNA as highlighted above, showed that the Defendant was, in this Court’s view, not wanting to be removed from the Project or in other words, the Defendant still wanted to participate in the Project and / or the Revised Phase 3 Project but at the same time wanting its position to be complimented with a new contract. 37) I am however not prepared to accept that the request by the Defendant for the LOA 2 or the 3rd LOA as an afterthought, but I hold that such request was made on the mistaken legal assumption by the Defendant that there was no certainty in its terms of the contract between the Plaintiff and the Defendant. 38) Thus, the issue of an estoppel as contended by the Plaintiff does not in my view arise in the matter before me but I agree that the Defendant cannot approbate and reprobate its position and that it must elect between them and having elected to adopt one stance, cannot thereafter be permitted to go back and adopt an inconsistent stance, as highlighted in the Court of Appeal case of Cheah Theam Kheng v City Centre Sdn Bhd (In Liquidation) & Other Appeals [2012] 2 CLJ 16 of which I am guided and which I apply herein which had quoted the words of Sir Nicholas Browne-Wilkinson VC in Express Newspapers plc v News (UK) Ltd and others [1990] 3 All ER 376, at pp 383–384: “There is a principle of law of general application that it is not possible to approbate and reprobate. That means you are not allowed to blow hot and cold in the attitude that you adopt. A man cannot adopt two inconsistent attitudes towards another: he must elect between them and, having elected to adopt one stance, cannot thereafter be permitted to go back and adopt an inconsistent stance.” 39) Accordingly, I do not find that there is a need to execute the new LOA’s as the original Contract is both certain and clear as to its terms What Were the Terms of The Defendant’s Contract Throughout the Entire Project 40) Following from my above decision, this Court will now turn to the next issue of what were the terms of the Defendant’s Contract throughout the entire Project. 41) I hold that the terms of the Defendant’s Contract throughout the entire Project and the Revised Phase 3 Project is the Contract dated 7.7.2014 were that: - a) the fees payable is now only 1.3% of the total construction costs as the Defendant only undertook C&S works and not M&E works as mentioned previously, b) the scope of the Defendant’s C&S works will continue at Clause 2.1 therein being: - i. Preparation and Submission of Earthworks, Road and Drain, Sewerage and Water Supply plans as required for local authorities approval. ii. Preparation of Tender Drawings and Specifications and advise on award of tender for Civil and Structural Engineering subcontract works, if applicable. iii. Preparation of design calculations and drawings for structural and foundation works. iv. Conducting periodical site inspections during construction. v. Application for CCC clearances from relevant local authorities. c) the proportion/schedule of payment as stated at Clause 5 of the said Contract to remain valid and binding. 42) The Plaintiff’s learned counsel had also urged this Court to imply certain terms into the Contract as per its Statement of Claim and its written submissions. In this respect I refer to the Federal Court decision in Arkitek Tenggara Sdn Bhd V Mid Valley City Sdn Bhd [2007] 5 MLJ 697; [2007] MLJU 404; [2007] 5 AMR 453; [2007] 6 CLJ 93 where Augustine Paul FCJ stated as follows: - [41] It is now appropriate to consider the circumstances in which a term can be implied in a contract. Chitty on Contracts (28th Ed) Vol I contain a summary of the position at para 13-004 in the following words: In many cases, however, one or other of the parties will seek to imply a term from the wording of a particular contract and the facts and circumstances surrounding it. The court will be prepared to imply a term if there arises from the language of the contract itself, and the circumstances under which it is entered into, an inference that the parties must have intended the stipulation in question. An implication of this nature may be made in two situations: first, where it is necessary to give business efficacy to the contract, and, secondly, where the term implied represents the obvious, but unexpressed, intention of the parties. These two criteria often overlap and, in many cases, have been applied cumulatively, although it is submitted that they are, in fact, alternative grounds. Both, however, depend on the presumed intention of the parties. [42] The distinction between the two types of implied terms was explained by Lord Cross of Chelsea in Liverpool City Council v Irwin [1977] AC 239 at pp 257–258: "When it implies a term in a contract the court is sometimes laying down a general rule that in all contracts of a certain type — sale of goods, master and servant, landlord and tenant [2007] 5 MLJ 697 at 721and so on — some provision is to be implied unless the parties have expressly excluded it. In deciding whether or not to lay down such prima facie rule the court will naturally ask itself whether in the general run of such cases the term in question would be one which it would be reasonable to insert. Sometimes, however, there is no question of laying down any prima facie rule applicable to all cases of a defined type but what the court is being in effect asked to do is to rectify a particular — often a very detailed — contract by inserting in it a term which the parties have not expressed. Here it is not enough for the court to say that the suggested term is a reasonable one the presence of which would make the contract a better or fairer one; it must be able to say that the insertion of the term is necessary to give — as it is put — 'business efficacy' to the contract and that if its absence had been pointed out at the time both parties – assuming them to have been reasonable men — would have agreed without hesitation to its insertion.” 43) Applying the principles mentioned in the said case of giving business efficacy to the contract, and, secondly, where the term implied represents the obvious, but unexpressed, intention of the parties, I am prepared, based on the circumstances before me, to imply into the Contract the following implied terms on the Defendant: -

43.1 to provide a design to meet the Plaintiff’s requirements, including those of amenity, durability and ease of maintenance.

43.2 to ensure efficient supervision to ensure that the works carried out conform in detail to the design and specification.

43.3 to ensure efficient administration of the said Contract so as to achieve speedy and economical completion of the said Project.

43.4 to provide reasonable skill and care. 24 43.5 to provide services of an acceptable quality to the Plaintiff.

43.6 to ensure the works undertaken are performed with care and skill.

43.7 to ensure the works undertaken will meet the timeframe scheduled.

43.8 to render full co-operation and assistance to the appointed architect.

43.9 to attend Client Consultant Meetings. 44) This Court is further prepared to imply onto the Defendant its statutory obligations under the Registration of Engineers Act 1967 (Notification of Scale of Fees (P.U. (B) 548/1998) under Part A Professional Services and Part IV Code of Conduct of the Registration of Engineers Regulations 1990 as submitted by the Plaintiff. Whether There Was A Breach of Contract on The Part of The Defendant Entitling the Plaintiff to Terminate the Defendant’s Services and Whether the Plaintiff’s Alleged Loss of Profit Is Solely Caused by The Defendant or Self-Inflicted? 45) Under the heading of ‘Whether there was a breach of contract on the part of the Defendant entitling the Plaintiff to terminate the Defendant’s services; the Plaintiff had submitted that the Defendant had not been compliant with the instructions that were given by DCA which ultimately caused the entirety of the Revised Phase 3 Project to be severely delayed. 46) In return the Defendant submits that it could not be compelled to carry out further work in respect of the Revised Phase 3 Project in the absence of the signing of the new LOA. 47) In coming to my decision, I have also taken into consideration that DW2 had testified as to the importance of having complete plans and that the Defendant was waiting for the 9 missing floor plans in order to complete their study as well as the structure of the whole tower and that the timeline fixed by the Architect was not reasonable. 48) To this I have found from the evidence that the Architect, DCA, sent the preliminary layout plans for the said Revised Phase 3 Project to the Defendant via email on 29.7.2019 and later confirmed via its letter to the Defendant dated 5.8.2019, the new design change for the Revised Phase 3 and instructed the Defendant to provide a swift input and comment on the preliminary layout plans for the said Revised Phase 3 Project on or before 9.8.2019. 49) There were then another 2 correspondences via email dated 6.8.2019 and via WhatsApp on 9.8.2019 respectively from DCA to the Defendant which amongst others, DCA informed the Defendant was required to provide basic input only and not final drawings and that DCA expect the preliminary civil and structural input to be completed within a week and in the WhatsApp, DCA had reminded the Defendant to provide their basic C&S input and comment for the said Architectural Drawings and to furnish all the necessary documents required in the checklist for the amendment to the Planning Permission approval on the same day itself due to the urgency of the matter. 50) The documents then show that DCA had written to the Defendant on 9.8.2019 after the Defendant failed to attend the CCM No. 23 which was held on the same day itself, whereby DCA once again urged the Defendant to provide their basic C&S input and comment for the preliminary architecture layout plans issued earlier without further delay and where the Defendant was given an extension of time to furnish their basic C&S input and comment by 16.8.2019. 51) Subsequently there were an email from DCA to all the Consultants including the Defendant on 22.8.2019 with regards the targeted deadline submission of the amendment in respect of the amendment to the Planning Permission approval for the said Revised Phase 3 Project by the following week and a letter dated 30.8.2019 from DCA to the Defendant reiterating the Defendant’s delay in fulfilling its contractual responsibility to the Plaintiff despite having received all the architectural drawings earlier and instructed the Defendant to perform their contractual and professional duties diligently without any further delay as the consequences in cost as a result of the said delay are unacceptable to the Plaintiff. 52) A final warning was then issued by a letter from DCA to the Defendant on 9.9.2019 on the impending termination of Defendant’s services as the C&S consultant by the Plaintiff should the Defendant failed to perform its work diligently and the Defendant was given 3 days to reply by 12.9.2019 on whether the Defendant was still keen to remain on the job and that in the event the Defendant decides to discontinue their services, the Defendant shall issue the Letter of Release to the Plaintiff immediately without delay. 53) It is also to be noted that the Defendant had failed and/or refused to attend the CCM 24 and 25 on 26.8.2019 and 6.9.2019 respectively. 54) As I have decided that the execution of any new LOA was not required, I do hold that there was non-compliance by the Defendant’s conduct in its failure and/or refusal to provide their basic input and comment of the architectural drawings and/or the updated architectural layout plans within the given deadline as well as its failure to attend the numerous CCM’s. 55) The record then shows that via the Plaintiff’s letter dated 19.10.2020, the said Defendant was terminated as the C&S Engineers for the Project due to amongst others its failure, refusal and/or neglect to perform its Works diligently. 56) From the evidence I have found I hold that all the required information necessary for the Defendant to provide their basic input and comment have been provided to the Defendant and I accept the testimony of PW2 in re-examination where he testified: - “...So, what you need the information ah, uh is basically the total areas, or sometimes total units’ number of units, so that they can compute what are the demands the size and predict the size. Because they need to know the occupants number total to do all this uh calculations ah to get the size correct. So, but the problem is when we send to drawings to them already ah even the first items ah the input ah they still continue not to give us la. That’s why we we are stuck to the point. Ah. We haven’t asked them to go for the structure the second stage ah which is mentioned in this email, the second stage, uh which we also uh still waiting la for the so called first item, the preliminary input la. So, they, refused to give us and they start to give us issues on these drawings. And then later subsequently is not become an issue of drawings anymore. It becomes the issues of letter of appointment.” 57) I am also, from the evidence before me, aware that the town planner and the M&E engineer had received the same layouts and yet were able to revert with their input and feedback on 8.8.2019. This would thus further corroborate my finding that the Plaintiff had thus provided the required information necessary for the Defendant to provide their basic input and comment. 58) It is therefore untenable for the Defendant to claim that they were not able to provide their input and comment for the architectural drawings due to a lack of sufficient information. 59) I am also persuaded in coming to my decision by learned counsel for the Plaintiff’s submission, and agree thereto, of the fact that DW1 during cross-examination was referred to an email written by the Defendant’s representative to DCA on 5.8.2019 where the Defendant stated that upon receiving the project title, development data and submission requirement checklist, the Defendant would be able to furnish their engineering input and comment within 2 to 3 weeks. DW1 was then cross-examined on this where DW1 agreed that by taking the longest period of 3 weeks, the Defendant ought to have furnish the basic input and comment accordingly within the timeline of 29.8.2019 but yet failed to do so. This has thus resulted in a breach of the Contract by the Defendant. 60) It is thus my decision, from the facts before me, that the actual reason for the Defendant not providing their input and comment was due to the issue of the non-execution of the new letters of appointment requested by the Defendant. 61) Following from this, it would be inevitable that that the application for amendment to the Planning Permission for the Revised Phase 3 Project would be held back. This was also agreed by DW 1 when he was cross examined. 62) One of the obligations of the Defendant, as stated above, which this Court has implied into the Contract was the duty to ensure the works undertaken will meet the timeframe scheduled. 63) I am prepared to accept that there is a prima facie acceptance that in commercial contracts, time would be of the essence as per the Federal Court in Damansara Realty Bhd v Bungsar Hill Holdings Sdn Bhd & Anor [2011] 9 CLJ 257 where Richard Malanjum CJ Sabah and Sarawak reading the judgment of the Court had held: “That rule, in our view, applies with even greater force in construction contracts. It can of course be rebutted if the parties indicate otherwise by words or conduct, but for a starting point, it must be assumed that the parties intended for time to be of the essence. It would not make much commercial sense if otherwise.” 64) In the matter before me, the Defendant had failed to revert with their confirmation within the given timeline by DCA of 12.9.2019 and the Defendant had also failed to issue their Letter of Release accordingly which resulted in the Revised Phase 3 Project coming to a standstill. This had resulted in the termination of the Defendant’s Contract on 19.10.2020 which I find as being lawful and valid based on the facts and chronology of events before me. 65) I further hold that the Defendant had failed in its obligation to: -

65.1 furnish their Letter of Release so as to enable the appointment of new C&S consultant to take over their works.

65.2 ensure the works undertaken would meet the timeframe scheduled.

65.3 provide their basic input and comment by the extended time lines given.

65.4 discharge its professional duties with due skill, care and diligence. 66) Accordingly, this Court finds that the Defendant had breached the Contract. 67) I have however considered the Defendant submission that the Plaintiff’s claim for damages was remote and/or not reasonable as the Plaintiff’s alleged losses was self-inflicted. 68) Although I do accept that Letter of Release from the Defendant was only done on 15.9.2021, I find from the evidence before this Court that the Plaintiff had however failed to opt for the BEM stakeholder procedure which had in part attributed to the delay in procuring the Letter of Release due to the alleged cash flow problems, as testified by PW 3, as this procedure would require the Plaintiff to deposit the sum of RM651,449.50 for the alleged outstanding fee and RM325,724.75 for the alleged disruption fee. Under the said BEM stakeholder procedure which is provided in paragraph 3.2(b) of Board of Engineers Malaysia Circular No. 008 it is stated that: “the First Engineer or First Engineering consultancy practice is claiming there are fees due from the Client (i.e. there is a “Dispute of Fees”),

he or it shall reply accordingly within fourteen (14) days of the request. The Second Engineer or Second Engineering consultancy practice may then advise the Client to submit a request in an SH Form appointing BEM to act as a stakeholder, where the terms in the SH Form shall apply and bind both parties.

(ii) if he or it did not do so, the Second Engineer or Second Engineering consultancy practice may refer the matter to BEM for its consideration on whether a Letter of Release by the First Engineer or First Engineering consultancy practice is no longer necessary (“Confirmation Letter”).” 69) I also hold that the occurrence of the MCO is also a factor which must be taken into account when considering if the Defendant is indeed to be fully responsible for any delays as claimed by the Plaintiff with regards the Proposed Phase 3 Project. 70) Accordingly, after due consideration of the Defendant’s above submissions, this Court holds that the Defendant’s liability is therefore to be reduced by 20% and the Plaintiff is only entitled to 80% of whatever claim that this Court allows. Plaintiff’s Claim for Damages and Loss of Profits 71) I will now address the issue of the Plaintiff’s claim for damages i.e. loss of profits. 72) The Plaintiff submits that the claim for loss of profit are damages that flows naturally in the normal course of things from the Defendant’s breach, and that the claim for loss of profit may reasonably be contemplated as the probable result of the Defendant’s breach and delay in issuing their Letter of Release. The Plaintiff had therefore relied on the case of Kumpulan Prasarana Rakyat Johor Sdn Bhd v Emercon Bina Sdn Bhd and another appeal [2021] 1 MLJ 629 in support of their contention. 73) PW1’s expert, Sr Nazireah Abd Rahim, testified with regards the quantification of the Plaintiff’s loss of profits and that there were subject to the revised planned milestones/ work program based on the proposed design change to Phase 3 (i.e., the said Proposed Revised Phase 3 Project, Phases 3A and 3B for serviced apartments) prepared by DCA as follows: No. Key Activity Original Finish Revised Finish

Planning Permission (Approval)

30.11.2017 19.10.2018 2. Building Plan (Submission)

31.8.2018 31.3.2019 3. Building Plan (Approval)

30.11.2018 30.11.2019 4. Tendering Stage 30.11.2018 31.10.2019 5. Construction Stage (Earthworks and

Substructure)

10.2018 31.3.2022 6. Construction Stage (Building Works)

28.2.2021 30.6.2024 74) It was submitted by the Plaintiff that: -

74.1 pursuant to the aforesaid revised timeline, the Building Plan approval for the said Proposed Phase 3 Project had been planned to be achieved on 30.11.2019 and that the evidence had shown that the Defendant had earlier failed and/or refused to provide their basic input and comment for the submission process for the amendment to the Planning Permission approval by 9.8.2019 or even by the extended timeline of 16.8.2019 or even by the longest timeline of 29.8.2019 despite being reminded numerous times and knowing the urgency of the works.

74.2 the said Proposed Phase 3 Project had to endure a series of the Malaysia Movement Control Order (MCO) in view of the severity of the Covid-19 pandemic which further delayed the progress of the amendment to the Planning Permission approval. 34 74.3 the Defendant had refused to issue the Letter of Release timeously and expeditiously and only did so on 15.9.2021 despite the termination of the Defendant’s C&S services much earlier on 19.10.2020. 75) The news articles produced in PW1’s report showing the purported increase in construction costs and the alleged significant increase in the steel pricing due to the MCO restrictions are in my view hearsay evidence which this Court cannot rely on. 76) PW1 had in her assessment of the Plaintiff’s loss of profits, for the Proposed Revised Phase 3 Project was to be measured against the Feasibility Study (“FBS”) which has been prepared by the Plaintiff and in doing so had inter alia testified that the realistic way in forecasting the potential overall profit from the construction project should be based on the approved Building Plan design for Phase 1 as this is the maximum units which the Plaintiff had received approval for construction (8 Lots of Semi-Detached Houses and 1 Lot of Bungalow House total up to 9 units), disregarded Phase 2 as it did not proceed and revised Phase 3, to 368 condominium units, which all in all amounted to 377 units. 77) PW1 had hence adjusted: -

the FBS and the Development Profit thereto from RM210,514,717.00 being the original figure under the FBS to RM96,658,875.00 as the revised FBS.

(ii) the revised FBS to solely reflect the commercial information relating to Phase 3 only and omitted items and costs relevant to Phase 1 of the revised FBS, including applying the apportionment of 90% (condominium) and 10% (houses) for external works, professional fees, statutory payments and company overheads which then showed a figure of RM86,571,764.00 which is about 23% of the Gross Development Value (GDV) based on the common presumption in terms of forecasted profit would be in the region of minimum 20% to maximum 30% from the GDV. 78) PW1 had thereafter computed 2 months for the new C&S Engineering Consultant to finalize the submission works for the Building Plan approval application for Phase 3 from the issuance of the Defendant’s Letter of Release, another 3 months to obtain Building Plan approval, another 3 months to finalize the tendering process and another 27 months, for the overall construction completion of Phase 3. The revised timeline are as follows: No. Key Activity Revised Finish 1. Building Plan (Submission) November 2021

Building Plan (Approval)

Tendering Stage

Construction Stage (Earthworks and

Construction Stage (Building Works) February 2025 79) PW 1 after reviewing the Malaysian House Price Index between the 1st quarter of 2020 to the 2nd quarter of 2021, showed a declining trend in the average price showing a -2.7% reduction in the price, and a press release dated 15.9.2021 from the National Property Information Centre stipulated that the property sales trend between the 1st quarter of 2021 showed an increase when compared against similar quarter in 2020; PW 1 then , using the ‘before and after’ method, made a comparison between the Phase 3 FBS (November 2019) and Phase 3 FBS (February 2022) are as follows: No. Key Item Phase 3 FBS (Building Plan approval by November 2019) (RM) Phase 3 FBS Building Plan approval by February 2022) (RM) A Sales Revenue / GDV 383,893,920.00 383,893,920.00 B Project Costs 248,722,156.00 390,904,944.00 C Land Cost 48,600,000.00 48,600,000.00 Development Profit 86,571,764.00 -94,336,675.00 80) PW1 then testifies that the Plaintiff would only be able to collect the full forecasted development “profit” by end February 2025, which is by way of interest earning, i.e., by putting them into a deposit account. 81) Thus, PW1 calculated the Plaintiff’s loss here by assuming the annual simple interest rate of 5% per annum, the interest amount that the Plaintiff may generate from June 2024 to February 2025 (8 months) is RM2,885,725.47. Alternatively, if based on compounded interest rate of 5% per annum, the interest that may be generated is RM2,928,161.49. 82) In response to the Plaintiff’s above estimation of their loss of profit, the Defendant had through their expert DW1 Ir. Ting Chek Choon, produced their own report but I find that the same did not challenge PW1’s method of computation and assessment. 83) I have noted that the Court of Appeal case of Kumpulan Prasarana Rakyat Johor Sdn Bhd v Emercon Bina Sdn Bhd and another appeal [2021] 1 MLJ 629 where it was contended by the Plaintiff that this Court should accept PW1’s assessment of the Plaintiff’s loss of profit if the assessment stood unrebutted and contradicted. 84) However, this Court is to balance this against the principle in Malayan Cement Industries Sdn Bhd v Golden Island Shipping (L) Bhd [2018] 1 CLJ 228 where the Court of Appeal held: “[21] In addition, there is a general duty requiring that reasonable steps to be taken to mitigate losses flowing a breach particularly in the case of anticipatory breach. The party who has failed to mitigate the losses cannot later recover any such loss flowing from his neglect” 85) Be that as it may, I find after due consideration that PW1’s findings are based on an estimated feasibility study and not on actual figures which are backed by any documents provided to PW1 or produced by PW1 in the course of the trial. PW1’s said report in fact expressly states under the heading “Key limitations and Assumptions” that PW1’s report was ‘…solely based on the Feasibility Study…which was prepared by Pesat Bumi Sdn Bhd (“the Plaintiff”) and that there was no real data as to costs information made available by the Plaintiff. 86) A feasibility study is at most an estimate of the figures referred to therein as its purpose is to evaluate the project's potential for success and which is normally prepared for potential investors and lending institutions. There are of course, many factors which may arise which would vary or change the figures subsequently when the Project is kicked off and when the Project is eventually completed due to lack of sales target, escalating construction costs, potential delays and the like. As such this Court cannot consider the feasibility study as a document which proves actual profit. 87) In the circumstances the evidence of PW1 is with the greatest of respect not of guidance to this Court and I rely on Sime UEP Properties Sdn Bhd v Woon Nyoke Lin [2002] 3 CLJ 719 where the Court of Appeal held: “…in order to succeed in claims for damages for loss of profit one must establish the actual losses one would have suffered as a result of the breach. A projection as in this case is not sufficient to establish the would-be losses of profit. A venture into a business would not necessarily mean that one can make a profit out of it because there are instances where people suffer losses. Not all businesses end up with profit. It is clear to us that the Respondent failed to establish the expected losses as a result if the breach …” 88) I hold that in the overall analysis the Plaintiff had failed to show proof of the actual losses incurred and in the circumstances this Court is unable to compute or award the same. This Court will thus only award nominal damages based on the authority of Popular Industries Limited v Eastern Garment Manufacturing Sdn Bhd [1989] 3 MLJ 360, where Edgar Joseph Jr J (as he then was) had this to say: “In this context, I am reminded of Lord Goddard's dictum in Bonham-Carter v Hyde Park Hotel [1948] WN 89 quoted with approval by Thomson CJ in Lee Sau Kong v Leow Cheng Chiang [1961] MLJ 17, namely, that: [2009] 4 MLJ 610 at 666 The plaintiffs must understand that if they bring actions for damages it is for them to prove their damage; it is not enough to write down the particulars, and so to speak, throw them at the head of the court, saying, 'This is what I have lost, I ask you to give me these damages'. They have to prove it. Accordingly, all I can do is to make an award of nominal damages of US$500 that being the currency of the contract (see Miliangos v George Frank (Textiles) Ltd [1975] QB 487) which I hereby do.” 89) As to what amounts to nominal damages and the nominal damages to be awarded, I refer to and rely on the Court of Appeal authority of Koperasi Kastam Diraja Malaysia Bhd v Yi Go Group Sdn Bhd [2021] 5 MLJ 590 where the said Appellate Court held: “[72] Where there is loss or damage suffered but the party claiming has failed to prove the damages, then only nominal damages would be awarded. [73] The Federal Court in Guan Soon Tin Mining Co v Wong Fook Kum [1969] 1 MLJ 99 at p 100 enunciated this principle as follows: The respondent, as plaintiff, of course had to discharge the burden of proving both the fact and the amount of damages before he could recover. Where he succeeded in proving neither fact nor amount of damage he must lose the action or, if a right was infringed, he would recover only nominal damages. Where he succeeded in proving the fact of damage, but not its amount, he would again be entitled to an award of nominal damages only. This statement of the law is concisely stated in Mayne & McGregor on Damages (12th Ed) para 174 … (Emphasis added.) [74] The learned registrar had awarded RM100,000 as nominal damages. We are rather uncomfortable in calling such a substantial amount as ‘nominal’. Generally, the term ‘nominal’ means minuscule or small in terms of amount or just a token sum. [75] In Beaumont v Greathead (1846) 2 CB 494 at p 449, Maule J described nominal damages as ‘a sum of money that may be spoken of, but that has no existence in point of quantity’. Often nominal damages are referred to as a token sum awarded where the amount could be small or miniscule (see Sapwell v Bass [1910] 2 KB 486). [76] However a sum of RM100,000 as nominal damages for breach of contract is not without precedent as can be seen in the case of Delpuri-Harl Corp JV Sdn Bhd v Perbadanan Kemajuan Negeri Selangor [2015] 2 MLJ 24 where the Court of Appeal explained as follows: [71] As the appellant had failed to elect to claim either for loss of profits or for wasted expenditure only, and the claim being bad for uncertainty in the circumstances, we decided to award the sum of RM100,000 which sum included the sum of RM70,575.45 assessed by DW1, as nominal damages to the appellant. This is on the basis that this court recognises the fact that the appellant did suffer some loss as a result of the wrongful termination. [72] As for nominal damages they are said to be ‘a sum of money that may be spoken of, but that has no existence in point of quantity’ as held by Maule J in Beaumont v Greathead (1846) 2 CB 494 at 499. [73] A token sum is usually awarded for nominal damages and the amount could be small or miniscule. Just like sixpence in Feize v Thompson (1808) 1 Taunt 121; a farthing in Mostyn v Coles (1862) 7 H & N 872 and a shilling in Sapwell v Bass [1910] 2 KB 486. [74] Undoubtedly, the cases cited above were decided in England in yester years. However, today it is not uncommon for nominal damages to be awarded in Malaysia in the thousands of ringgits, depending of course on the circumstances of the case. And in the case ofTahan Steel Corp Sdn Bhd v Bank Islam Malaysia Bhd [2012] 2 MLJ 314 (CA), my learned brother Justice Mohd Hishamudin had occasion to say that the learned trial Judge was correct in awarding nominal damages of RM50,000 in the circumstances of that case. [75] Where it is clear that the appellant had failed to furnish credible evidence to prove the amount of damages it claimed to have suffered but where it is equally clear that the appellant did suffer some loss and damage , then it will be an appropriate case for the court to award nominal general damages (see Lee Sau Kong v Leow Cheng Chiang [1961] 1 MLJ 17 per Thompson CJ).” 90) Taking the cue from the aforesaid case, I am thus awarding the sum of RM100,000.00 as nominal damages to the Plaintiff for breach of contract but this sum is to be reduced by 20%, as per my decision above on liability of the Defendant, making the sum awarded to the Plaintiff as RM 80,000.00 only. I am also awarding 5% interest per annum on this Judgement Sum from the date of filing of this Suit until full settlement, as well as cost to the Plaintiff for their claim. 91) The Plaintiff had also claimed in its Statement of Claim for General Damages to be assessed by this Court, but had not made any submissions to this Court on the same. I am thus not allowing such claim. 92) For the record, the Court has also disregarded prayer a in paragraph 65 of the Plaintiff’s Statement of Claim vis a vis the Letter of Release as it is now academic in view of the Consent Order dated 9.9.2021 recorded before this Court for the said Letter of Release. The Defendant’s Counterclaim 93) In this matter before the Court, the Defendant has also filed a Counterclaim against the Plaintiff for a sum of RM651,449.50 for alleged work done for the Project which is calculated up to 2.8.2019, the breakdown of which is as follows: - Phase 1 (8 units of semi-detached house and 1 unit of bungalow) Progressive Claim No. 1 Stage A – Upon Approval of Layout Plans (5%) Stage B - Upon Approval of Engineering Plan (10%) Stage C – Upon Completion of Tender Drawings (5%) Progressive Claim No. 2 Stage E – Upon Completion and Issuance of Construction Drawings (5%) RM25,079.60 RM6,269.90 Phase 3 (386 units of condominium) Progressive Claim No. 1 Stage A – Upon Approval of Layout Plans (5%) Stage B - Upon Approval of Engineering Plan (10%) Stage C – Upon Completion of Tender Drawings (5%) Stage E – Upon Completion and Issuance of Construction Drawings (5%) Progressive Claim No. 2 Stage E – Upon Completion and Issuance of Construction Drawings (5%) RM496,080.00 RM124,020.00 94) In the trial, PW2, Low Kheng Hua, who is the architect of the Project, had confirmed during examination-in-chief, that the Defendant’s completed works as per the Plaintiff’s instruction were only as follows:- Stage Professional fee Stage Claim Percentage Phase 1 Phase 2 1 Upon Approval of Layout Plans 5% Completed (19.10.2018) -- 2 Upon Approval of Building Plans 10% Completed (12.6.2019) -- 95) The above is corroborated by by DW1 based on the evidence furnished. I therefore hold that such works/services above stated were indeed provided by and completed by the Defendant. 96) The main contention here in the Defendant’s counter claim would be for the works /services upon completion of tender drawings (5%). Here PW2 had testified during examination-in-chief that the approval of the Planning Permission had encountered delay due to compliance of technical requirements and that the Plaintiff had intention to review the components from Condominium to Serviced Apartments, where after the Plaintiff had then requested all Consultants to put on hold all works while pending for them to work with DCA on the new serviced apartment design after the CCM No.21 held on 27.6.2018. 97) It was then alleged that CCM No.22 was then called on 29.7.2019 to resume the works and that there should be no works from any Consultants as per the Plaintiff’s instruction between the period of 27.6.2018 to 29.7.2019. With respect I have, after reading the said documents in toto, agree with the aforesaid Plaintiff’s contention. 98) My said decision above is also in consonant with the evidence at trial that none of the other consultants had actually worked beyond the Planning Permission stage as testified by PW2. 99) It is in evidence that DW2, Sha Chaim Chuan, the Defendant’s Managing Director, had at the trial explained that the drawings submitted for building plan approval are also the drawings for tender purpose and the tender can be called for. This is contrary to the evidence of the Plaintiff via PW 2 who testified that the Defendant should not have produced the Tender Drawings without the approved layout plans and the instruction by the Plaintiff to proceed further as the work programme distributed on 26.10.2017 was no longer relevant as the works were delayed by the approval of layout plans and planning permission. 100) After due consideration of the above contradictory testimonies, and based on the evidence of CCM no. 21 and 22 respectively, I hold that the Defendant should have halted its works / services between the period of 27.6.2018 to 29.7.2019 with regards the drawings submitted for building plan approval for the Phase 3 (386 units of condominium) drawings. I find that the Defendant had failed to prove or show any evidence at the trial that the Plaintiff had instructed them to commence work for the said phase 3 (386 units of condominium). 101) I therefore hold that the Defendant is consequently not entitled to the sum of RM496,080.00 for Progressive Claim No.1 and RM 124,020.00 for Progressive Claim No. 2 in respect of the Phase 3 (386 units of condominium) drawings. 102) As this Court had earlier held that the Defendant was to provide by mutual consent to the Defendant the C&S services only and that the fees payable was only 1.3% of the total construction costs and that only stage 1 and 2 of the Defendant’s professional services were completed and rendered for the Approval of Layout Plans and the Approval of Building Plans respectively for Phase 1 and 2 of the Project and that neither stages thereafter were done by the Defendant and/or were not approved by the Plaintiff’s architect as well that the alleged works carried out for Phase 3 were also not approved by the Architect; I am awarding the Defendant the claims for stage 1 and 2 only i.e. a total of only 15% of the professional works/services which were done and approved for Phase 1 and 2 of the Project. 103) However, I am again unable to quantify the quantum of professional fees, reasonably entitled by the Defendant for services which it has completed in accordance to the said Contract of 7.7.2014 as the same was subject to the Construction Costs of the Project which was based on the Feasibility Studies conducted by the Plaintiff and were, as indicated by me above, not proven to this Court to be the actual figures or amounts for the Project. 104) I am therefore again constrained to only award nominal damages for the services rendered by the Defendant to which I am making the award of RM10,000.00 only to the Defendant with interest at the rate of 5 % per annum on the Judgement Sum until full settlement and party to party costs of the Defendant’s Counter Claim. 105) As I have decided that the Plaintiff had rightfully terminated the Contract, I am disallowing the Defendant’s claim for the disruption fee of RM325,724.75 (inclusive of 6% SST) which the Defendant’s states it is entitled to for the unlawful termination of the Contract. Conclusion and Final Decision 106) In conclusion this Court holds that the Defendant is in breach of the Contract dated 27.3.2017 and the amount assessed by this Court to be paid to Plaintiff by the Defendant is the nominal sum of RM80,000.00 to which I have found that liability is partly attributable to and therefore apportioned to the Plaintiff on a liability of 20% of the said breach. The Court has also awarded interest at the rate of 5 % per annum on the Judgement Sum until full settlement and costs to the Plaintiff for their claim. 107) The Defendant’s Counter Claim for work done or services rendered is only allowed for stages 1 and 2 of the Defendant’s professional services for the Approval of Layout Plans and the Approval of Building Plans respectively for Phase 1 and 2 of the Project only being 15 % of the services rendered only. 108) I have also only awarded nominal damages of RM10,000.00 to the Defendant for their Counter Claim as mentioned above together with interest at the rate of 5 % per annum on the Judgement Sum until full settlement. I have further awarded party to party costs only to the Defendant for their Counter Claim. Dated: 15th day of January 2024 sgd. NADZARIN WOK NORDIN HIGH COURT JUDGE CONSTRUCTION COURT 1 COUNSEL FOR THE PLAINTIFF: Ringo Low Kim Leng and Brandon Lim Zhung (Messrs Ringo Low & Associates] COUNSEL FOR THE DEFENDANT: Alan Lim Wei Lun (Messrs The Law Office of Anil & Tan]