The Defendant is primarily focused on three core business sectors namely property management, plantation, and consulting services. The main objective of the Defendant is to generate revenue for MRB through their commercial properties and the provision of management services. [5] The Defendant issued a Tender Form/Quotation Serial No: UAP1/2021 No. 03 (“the Tender Document”) to invite contractors to undertake a chilli fertigation project (“the Project”) at Ladang LGM Pahang Tenggara, Muadzam Shah, Pahang on a contract basis. [6] On 23.7.2021, the Plaintiff submitted its quotation for the Project, offering a total contract price of RM2,528,500.00 over a three-year period: RM1,149,500.00 for the first year (August 2021-July 2022), RM679,500.00 for the second year (August 2022-July 2023), and RM699,500.00 for the third year (August 2023-July 2024). [7] On 6.8.2021, the Defendant issued a Letter of Award to the Plaintiff, appointing it as the contractor for the Project. The S/N dhCVmsynEGiKMdrqSwNqQ Plaintiff accepted the Letter of Award on 12.8.2021 and deposited a sum of RM126,425.00 as security deposit (also referred to as “the Retention Sum”). [8] According to the terms of the contract, the Defendant agreed to provide 7 hectares of land at the Project site, and the Plaintiff was required to develop it for chilli fertigation with not less than 100,000 polybags. The contract was for a period of three years commencing from 1.8.2021 until 31.7.2024. [9] Clause 13.2 of the Tender Document states that the Defendant would make an advance payment equivalent to 30% of the contract price (i.e., RM758,550.00) for mobilisation and commencement of works, purchase of materials, and site preparation. The payment was to be made immediately after the Plaintiff's acceptance of the Letter of Award. [10] However, the Defendant requested the Plaintiff to revise the first payment invoice to 30% of the first-year contract price (i.e., RM344,850.00) instead of 30% of the total contract price (RM758,550.00). The Plaintiff agreed to this revision and submitted a revised plan for progressive claims on 3.9.2021. [11] On 13.8.2021, the Plaintiff took possession of the Project site and commenced work. Upon conducting a detailed survey, the Plaintiff discovered that the usable land area S/N dhCVmsynEGiKMdrqSwNqQ was only approximately 4.18 hectares, not the 7 hectares specified in the contract. [12] On 26.8.2021, the Plaintiff wrote to the Defendant highlighting three critical issues requiring variation orders (VOs): (i) additional land to complete the 7 hectares through “cut and fill” earthworks; (ii) clean water supply; and (iii) electrical supply. The Plaintiff estimated the cost of these variations at RM344,000.00. [13] On 1.9.2021, the Defendant's CEO, Ir. Hj. Ariffahmi Ab Rahman, visited the Project site and allegedly approved the “cut and fill” earthworks. This was recorded in the Weekly Progress Report No. 4 submitted by the Plaintiff. [14] On 7.10.2021, a meeting was held where the Defendant's representatives, including DW2, Tn. Hj Iskandar Zulkarnain Bin Tn. Hj. Hussin, and the consultant, Dr. Hj. Ibrahim Selamat (“Dr Ibrahim”), agreed “in principle” to the proposed variation works. This was recorded in the minutes of the meeting prepared and signed by DW2. [15] The Defendant made payment for the first invoice (RM344,850.00) and the second invoice (RM180,870.00), totalling RM525,720.00. [16] On 15.10.2021, the Plaintiff submitted its third invoice for RM317,685.60, which included claims for variation works. The Defendant did not pay this invoice. S/N dhCVmsynEGiKMdrqSwNqQ [17] On 21.10.2021, the Plaintiff revised the third invoice, supposedly removing the variation works. However, the amount remained the same at RM317,685.60. [18] On 22.10.2021, the Defendant instructed the Plaintiff to withhold variation works until 1.11.2021. Subsequently, on 1.11.2021, the Defendant issued a “stop work order” for the variation works. [19] On 10.11.2021, the Plaintiff issued a further revised third invoice for a lesser sum of RM114,968.60, explicitly removing the variation works. Despite this revision, the Defendant still did not make payment. [20] On 8.12.2021, the Plaintiff issued a notice of termination due to the Defendant's non-payment. However, following discussions, the Plaintiff retracted this notice on 9.12.2021 and agreed to continue with the Project with a reduced scope. [21] On 21.12.2021, the Defendant informed the Plaintiff that its Board of Directors had rejected the variation works, despite previous approvals from management. [22] On 15.1.2022, the Defendant locked the main gate of the Project site, denying access to the Plaintiff and its staff. The Plaintiff's assets valued at approximately RM271,956.00 remained at the Project site. S/N dhCVmsynEGiKMdrqSwNqQ [23] On the same day, the Plaintiff lodged a police report against the Defendant for wrongfully detaining the Plaintiff's assets. [24] The Plaintiff subsequently filed this suit, seeking declarations, injunctions, and damages for breach of contract and negligence. The Defendant counterclaimed for breach of contract and loss of profits. THE PLAINTIFF'S CASE [25] The Plaintiff contends that the Defendant committed several breaches of the contract: a) Failing to pay the 30% advance payment from the total contract price as required by Clause 13.2 of the Tender Document; b) Failing to pay the third invoice despite the work being completed; c) Failing to provide a 7-hectare plot of land as specified in the contract; d) Failing to issue written approval for variation works despite verbal agreements and minutes of meetings confirming approval “in principle”; and e) Locking the Project site and denying the Plaintiff access without prior written notice. S/N dhCVmsynEGiKMdrqSwNqQ [26] The Plaintiff also alleges that the Defendant was negligent in: a) Failing to disclose the actual condition of the Project site, including uneven terrain and flood risks; b) Failing to disclose that the actual usable land was only 4.18 hectares and not 7 hectares as stated in the contract; c) Insisting on the appointment of Dr. Ibrahim as consultant, who allegedly was not impartial and acted only in the Defendant's interests; and d) Unreasonably delaying decisions and payments, which affected the Plaintiff's cash flow and ability to complete the Project. [27] The Plaintiff seeks, among other reliefs, payment of the third invoice amount of RM317,685.60, refund of the retention sum of RM126,425.00, return of its equipment worth RM271,956.00, and various damages for loss of profits and expenses incurred. THE DEFENDANT'S CASE [28] The Defendant denies any breach of contract or negligence. Its key contentions are: S/N dhCVmsynEGiKMdrqSwNqQ a) The Plaintiff agreed to revise the payment schedule to receive 30% of the first-year contract price instead of 30% of the total contract price, and the Defendant fully settled the payment claims based on this revised schedule; b) The Plaintiff failed to provide sufficient evidence to support the third invoice amount; c) The variation works required approval from the Defendant's Board of Directors as per internal procedures, and this requirement was communicated to the Plaintiff; d) The Plaintiff breached the contract by failing to complete the works within the stipulated timeline and by unilaterally withdrawing from the Project; and e) The Plaintiff's negligence claims are unfounded as it had the opportunity to inspect the site before submitting its bid. [29] The Defendant counterclaims for breach of contract and loss of profits amounting to RM1,950,000.00, calculated based on the anticipated production from 100,000 polybags at 3kg per bag, sold at RM6.50 per kg. S/N dhCVmsynEGiKMdrqSwNqQ THE PLAINTIFF'S SUBMISSIONS [30] The Plaintiff submits that the Defendant's failure to pay the third invoice, despite the Plaintiff having provided detailed progress reports and supporting documentation, constitutes a fundamental breach of contract. The Plaintiff argues that there was no contractual requirement for consultant approval of payments, and this requirement was arbitrarily imposed for the third invoice. [31] The Plaintiff contends that it had obtained approval “in principle” for the variation works from the Defendant's management, as evidenced by the meeting minutes dated 7.10.2021. The subsequent requirement for Board approval was never communicated until after the works had commenced. [32] Regarding the negligence claim, the Plaintiff submits that the Defendant owed it a duty of care to disclose material information about the Project site and to act reasonably in administering the contract. The Defendant's failure to do so caused the Plaintiff significant losses. [33] The Plaintiff argues that the Defendant's detention of its assets is unlawful and that the joint inspection requested by the Defendant was unnecessary as all the Plaintiff's equipment was clearly tagged as “on loan PRSB.” S/N dhCVmsynEGiKMdrqSwNqQ [34] As for the Defendant's counterclaim, the Plaintiff submits that it is the Defendant who breached the contract by failing to provide the contracted 7 hectares of land and failing to make payments. The Defendant's claim for loss of profits is speculative and unsubstantiated. THE DEFENDANT'S SUBMISSIONS [35] The Defendant submits that the Plaintiff is estopped from claiming breach based on the original payment schedule as it had agreed to the revised schedule and acted upon it. [36] The Defendant argues that the burden of proving entitlement to payment under the third invoice rests with the Plaintiff, and mere submission of progress reports without specific evidence linking them to the claimed amount is insufficient. [37] On the variation works, the Defendant contends that the Plaintiff proceeded with these works without obtaining proper written approval, contrary to Clause 15 of the contract. The agreement “in principle” mentioned in the meeting minutes was subject to further approvals. [38] The Defendant denies any negligence, arguing that all bidders, including the Plaintiff, had the opportunity to inspect the site before submitting their bids. Any issues with the site condition should have been raised before contract execution. S/N dhCVmsynEGiKMdrqSwNqQ [39] Regarding the counterclaim, the Defendant submits that the Plaintiff's premature withdrawal from the Project constitutes a breach of contract, entitling the Defendant to claim for loss of profits. The calculation of RM1,950,000.00 was not disputed by the Plaintiff during the trial. [40] On the issue of the Plaintiff's assets, the Defendant argues that it requested a joint inspection to verify ownership, which the Plaintiff refused. This refusal constitutes a failure to mitigate losses. WITNESSES [41] Three witnesses appeared for the Plaintiff as follows: a) PW1 is Muhammad Amirul bin Nordin, the former Farm Master (Pengurus Ladang) of the Plaintiff. His evidence centres on his position as the on-site supervisor who was present at the project site daily during his 2 years 7 months employment with the Plaintiff. He testified about the Plaintiff's equipment and machinery at the project site, the work progress completed, and the issues surrounding access denial and wrongful detention of the Plaintiff's assets. His evidence emphasises that the Plaintiff had properly tagged all their equipment to distinguish them from the Defendant's assets, and that the Defendant failed to implement adequate security measures which resulted in theft and damage to the S/N dhCVmsynEGiKMdrqSwNqQ Plaintiff's equipment. He maintained that after leaving the project site in January 2022, the Plaintiff was denied access by the Defendant. b) PW2 is Dato' Haji Azhar bin Anuar, the Chief Executive Officer of the Plaintiff. He testified on behalf of the Plaintiff regarding the company's nature of business, previous experience in precision farming and agriculture, and the contractual relationship with the Defendant for the chili fertigation project. His evidence focused on defending the Plaintiff's capability to undertake the project despite the Defendant's challenges to their experience in large-scale chili farming. He testified that the Plaintiff had sufficient assets worth approximately RM6 million and relevant experience in precision farming for chili, eggplant and similar crops from their previous projects. c) PW3 is Adzam bin Anuar, Director cum Chief Finance Officer of the Plaintiff. His evidence was central to the financial and administrative aspects of the case. He testified about the invoices submitted, progress reports, variation works, and correspondence between the parties. His evidence emphasises the Plaintiff's frustration with the Defendant's demands for additional documentation despite having submitted comprehensive weekly progress reports and detailed drawings approved by S/N dhCVmsynEGiKMdrqSwNqQ the consultant. He adopted a dismissive attitude towards the Defendant's later requests for further documentation, stating that the Plaintiff had become “malas nak layan” (tired of entertaining) such requests as they appeared to be delaying tactics to avoid payment. [42] Four witnesses appeared for the Defendant as follows: a) DW1 is Shahrul Nizam bin Mohamad Razali, Farm Supervisor of LGM Pahang Tenggara. His evidence was brief as he testified primarily about site supervision and confirmed during cross-examination that only the Plaintiff's assets were stolen from the project site. He testified that theft occurred at the site and confirmed that no Defendant's property went missing during the incident. b) DW2 is Iskandar Zulkarnain bin Hussin, Farm Unit Manager of LGM Properties Corporation. He testified extensively about project management decisions, variation works approval processes, and the requirement for board approval for additional works. His evidence emphasised that all variation orders required approval from the Defendant's board of directors and that the Plaintiff had been informed of this requirement. He disputed the Plaintiff's claims regarding the scope and approval of variation works, S/N dhCVmsynEGiKMdrqSwNqQ maintaining that proper procedures were not followed by the Plaintiff. c) DW3 is Fakril Zamani bin Mahmud, former Chief Operating Officer of the Defendant. He testified regarding the communication between parties, particularly about the RM190,000 claim for cut and fill works. His evidence challenged the Plaintiff's documentation and questioned whether proper supporting documents were provided for the variation works claimed. He maintained that alternative solutions to cut and fill works were available but the Plaintiff chose the more expensive option. d) DW4 is Asri bin Abd Ani, Head of Agricultural Plantation Unit of the Defendant. His evidence focused on the terms of the agreement, approval processes for additional works, and the Defendant's lack of prior experience in chili fertigation projects. He testified that variation works required board approval due to budget constraints and the need for detailed documentation. He confirmed that the Defendant had no previous experience in chili farming and had been in his position overseeing plantation projects for 9 years. S/N dhCVmsynEGiKMdrqSwNqQ ISSUES [43] From the facts of the case and the defences relied on by parties in the main action and the counterclaim, and the submissions of parties, the court frames the following main issues for deliberation which this court considers pivotal to the resolution of this case: a) Whether the Defendant was in breach of Clause 13.2 of the Tender Document by failing to pay 30% advance payment of the total contract price; b) Whether the Defendant’s refusal to pay the Plaintiff’s third invoice constituted a breach of contract; c) Whether the Plaintiff had obtained valid approval from the Defendant for the variation works in accordance with the contract; d) Whether the Defendant’s act of locking the Project site gate on 15.1.2022 without prior written notice amounted to a wrongful denial of the Plaintiff’s contractual right of access and thereby constituted a breach of the agreement; e) Whether the Defendant’s act of locking the Project site gate on 15.1.2022 amounted to a wrongful detention of the Plaintiff’s assets; S/N dhCVmsynEGiKMdrqSwNqQ f) Whether the Plaintiff breached the contract in relation to the completion of the works and withdrawal from the Project; g) Whether the Defendant is entitled to retain the Retention Sum of RM126,425.00 under the contract; h) Whether the Plaintiff has established its entitlement to damages under the contract, including payment of the third invoice, refund of the Retention Sum, and any further sums claimed; i) Whether the Plaintiff has established an entitlement to general and exemplary damages in addition to the specific sums claimed; j) Whether the Plaintiff has established the essential elements of negligence so as to succeed in its alternative claim in tort alongside its contractual claim; and k) Whether the Defendant has proven its counterclaim for loss of profits in the sum of RM1,950,000.00. ANALYSIS AND FINDINGS Whether the Defendant breached the contract by failing to pay 30% advance payment of the total contract price S/N dhCVmsynEGiKMdrqSwNqQ [44] The Plaintiff contends that Clause 13.2 of the Tender Document requires the Defendant to pay 30% of the total contract price (RM758,550.00) as advance payment. The Defendant argues that the Plaintiff agreed to revise this to 30% of the first-year contract price (RM344,850.00) and is now estopped from claiming otherwise. [45] Clause 13.2 of the Tender Document clearly states: “LGMPC akan membuat bayaran pendahuluan sebanyak 30% dari harga tawaran sebagai bayaran kerja-kerja permulaan seperti penyediaan tapak dan pembelian peralatan. Bayaran akan dibuat sebaik Surat Akuan Terima tawaran diterima dari pihak kontraktor dan ia adalah sebahagian daripada bayaran keseluruhan tawaran.” [46] The plain reading of this clause indicates that the 30% advance payment should be calculated from the total contract price, not just the first-year price. However, it is undisputed that the Plaintiff agreed to revise the payment schedule and submitted a revised invoice for RM344,850.00 on 3.9.2021, which the Defendant duly paid. [47] While the Plaintiff claims it agreed to this revision “under protest,” there is no contemporaneous documentary evidence to support this assertion. However, PW3's testimony during cross-examination provides insight into the circumstances surrounding the revision. When questioned about the revised third invoice, PW3 testified: S/N dhCVmsynEGiKMdrqSwNqQ “Ok 405 ini apabila kita dah menemui jalan buntu. Bila kita dah menemui jalan buntu, LGMPC banyak bagi alasan tak bayar amaun itu, tiba-tibalah cakap tak ada approval dan sebagainya, jadi kita take out dulu apa itu variation ini. Sebab itu kita padam ini development padam variation order ini supaya kita boleh dapat payment ini. Sebab saya nak selesaikan, sebab kerja berjalan dekat site. Kalau kita tak ada duit tak boleh jalanlah. Sebab itu kita compromise ambil ini dengan bantahan. Kita memang bantah tapi kita nak buat macam mana? Dia orang pegang duit.” (Page 171 Notes of Evidence) [48] When further questioned whether payment was made for the revised invoice without VO works, PW3 answered: “Tidak ada. Tidak ada. Bayaran ke-3 ini dengan VO pun tak dibayar, kita dah compromise pun tak dibayar.” (Page 171 Notes of Evidence) [49] Despite PW3's testimony that the Plaintiff made this compromise “dengan bantahan” (with objection), the Plaintiff revised the payment schedule and continued to work under it. By accepting and acting upon the revised payment schedule, the Plaintiff is now estopped from claiming that the Defendant breached the contract by not paying 30% of the total contract price. [50] As stated by the Federal Court in Bato Bagi & Ors v Kerajaan Negeri Sarawak and another appeal [2011] 6 MLJ 297, a party cannot approbate and reprobate – they cannot S/N dhCVmsynEGiKMdrqSwNqQ accept a benefit under an instrument and then contend that it is void or invalid. The Plaintiff, having accepted payment under the revised schedule and continued to work under it, cannot now claim breach based on the original schedule. [51] I find that the Defendant did not breach the contract with respect to the advance payment, as the parties had mutually agreed to a revision of the payment schedule, which the Defendant complied with. Whether the Defendant breached the contract by failing to pay the Third Invoice [52] The Plaintiff claims that the Defendant breached the contract by failing to pay the third invoice for RM317,685.60. Although the Plaintiff later revised this invoice to RM114,968.60, the Plaintiff maintains entitlement to the original amount. The Defendant contends that the Plaintiff failed to provide sufficient evidence to support this claim and did not obtain the required consultant's approval. [53] It is established that the Defendant paid the first and second invoices without requiring consultant approval. DW2 and DW4, as farm managers, verified and approved these invoices based on the work progress. There is no provision in the contract that explicitly requires consultant approval for payment claims. [54] Clause 13.1 of the Tender Document states: S/N dhCVmsynEGiKMdrqSwNqQ “LGMPC akan membuat pembayaran berdasarkan kepada kerja-kerja yang telah dijalankan dengan sempurna dan disiapkan mengikut spesifikasi yang ditetapkan setelah mendapat pengesahan daripada pegawai LGMPC yang berkenaan.” [55] This clause only requires verification by the Defendant's relevant officers, not by an external consultant. The imposition of this additional requirement for the third invoice, when it was not required for the first two invoices, appears to be an arbitrary change in procedure. [56] I must address the apparent inconsistency regarding the third invoice amount. The Plaintiff initially issued an invoice for RM317,685.60, which was later revised to RM114,968.60 purportedly to exclude variation order costs. This revision has led to some confusion. Having examined the evidence carefully, I must evaluate whether this revision constituted an admission by the Plaintiff that only the lesser amount was due. [57] PW3 testified during trial that this revision was made as a compromise to secure some payment flow while the Variation Order (VO) issues were being resolved. In his testimony, PW3 explained: “Ok 405 ini apabila kita dah menemui jalan buntu. Bila kita dah menemui jalan buntu, LGMPC banyak bagi alasan tak bayar amaun itu, tiba-tibalah cakap tak ada approval dan sebagainya, jadi kita take out dulu apa itu variation ini.” S/N dhCVmsynEGiKMdrqSwNqQ (Page 171 Notes of Evidence) [58] While I acknowledge that there is no contemporaneous documentary evidence showing that any protest was communicated to the Defendant at the time of revision, I find that the commercial context lends credibility to the Plaintiff's explanation. The revised invoice was submitted after several unsuccessful attempts to secure payment of the original invoice, and in the context of a fast-track project where cash flow was crucial. [59] The Plaintiff's letter dated 23.11.2021 (Pages 472-473 Bundle B2) provides compelling evidence of their ongoing concerns about payment delays impacting project viability, specifically detailing how the Plaintiff had expended RM1,286,026.29 for year 1 work despite non-payment of invoices, had already advanced RM163,000.00 to subcontractors and suppliers, and had provided substantial equipment worth RM227,586.00 to the project site. The letter expressly requested approval of at least the revised invoice “bagi membolehkan PRSB menyiapkan Plot A, B dan C dahulu” (to enable PRSB to complete Plots A, B and C first), demonstrating that the Plaintiff's primary concern was maintaining cash flow to continue operations rather than conceding the reduced amount as the total entitlement. [60] The Plaintiff's email dated 5.11.2021 had already highlighted that “delays is causing us major financial S/N dhCVmsynEGiKMdrqSwNqQ constraints due to the manpower and hurting us further on our future commitments,” while noting their inability to secure external bank funding due to the fast-track nature of the project and their reliance on the promised 30% advance payment to mobilise initial works and infrastructure. [61] The Plaintiff's subsequent behavior, including their persistent efforts to secure payment and their refusal to concede on their entitlement to payment, is consistent with their position that the revision was merely a pragmatic compromise rather than an acknowledgment that only the lesser amount was due. Significantly, despite this compromise, the Defendant still failed to pay even the reduced amount. DW4 could not provide any explanation for this continued non-payment during cross-examination. It is important to note that even this reduced amount was never paid by the Defendant [62] The evidence shows that the Plaintiff submitted 16 Weekly Progress Reports detailing the work completed. Progress Report No. 9 dated 12.10.2021, in particular, provided comprehensive details of the work done corresponding to the third invoice. While the Defendant argues that the Plaintiff has not specifically demonstrated that all works included in the third invoice were properly documented, I find this argument unconvincing. The comprehensive nature of the weekly progress reports, which included photographs and percentage completion for each component, provided sufficient documentation to enable verification. This is S/N dhCVmsynEGiKMdrqSwNqQ particularly evident in Progress Report No. 9 (Pages 298- 310 Bundle B1) which detailed the completion status of various project components with corresponding photographic evidence: a) Site Preparation showed 77% accomplishment with completed land clearance, area plotting and surveying for phase 1 at 100%, land compacting 100% for phase 1, row orientation 100% for phase 1, equipment & chemical storage at 100%, layout for planting at 100% for phase 1, and polybag layout at 41% for phase 1; b) Irrigation system showed 44% accomplishment with PAIP water from Loji Sg Aur at 25%, fertigation station at 42%, electricity & wiring at 49%, polypipe at 20%, tree stakes at 42%, water pump at 20%, and piping pathway at 100%; c) Nursery showed 95% accomplishment with completion of structure at 100%, purchasing of seeds, preparation of seeds, seed nursing, buying of peat moss and preparation of media at 100% for P1 & 41% for P2, buying of fertilizer and equipments at 100%, misting system at 100%, and additional black netting 90% to be cover roof of nursery house; d) MyGAP Certification showed 34% accomplishment with appointment of MyGAP Officer at 100%, S/N dhCVmsynEGiKMdrqSwNqQ submission of MyGAP at 100%, and currently at 30% drafting; e) Project Services showed 94% accomplishment with completed land survey, irrigation system design, power requirement design, camp site and support system, water system, raw treated water, solar power system survey, project scheduling, and various management components at substantial completion levels; and f) Workers Amenities showed 93% accomplishment with shelter and facilities comprising hostel cabin, toilet, canteen & kitchen, surau, office, cover area, and water tank at various completion percentages. [63] Each section was supported by detailed photographic evidence and precise percentage calculations based on the weightage system explained by PW2 during testimony, who testified that the payment calculations were based on the weightage of every component of the development progress, and that these reports were prepared by taking into account the program of every component to determine the percentage for each task. [64] As to whether the work quality met the required specifications, DW4 testified that it was his obligation to supervise the work progress, yet he admitted during cross-examination that he had not read all the progress reports: S/N dhCVmsynEGiKMdrqSwNqQ Baik. Berkenaan soalan ke-3, Encik. Asri menjawab Saya ditugaskan untuk menyelia kemajuan kerja bagi Projek tersebut dari semasa ke semasa. Jadi untuk seliaan kemajuan kerja ini saya cadangkan Encik. Asri akan membacalah laporan kemajuan, progress report yang disediakan secara mingguan oleh Plaintiff. Betul? Ada, ada. Dah semak semua 15 laporan kemajuan yang diberikan oleh Plaintif? Saya mengaku saya tak dapat nak baca semualah. Ada yang saya sempat baca, ada yang saya tak sempat nak baca. Cuma pada masa material, pada masa projek ini Tengah berjalan ada baca setiap minggu? Saya tak pasti saya sempat membaca semua atau tidak.” (Page 303 Notes of Evidence) [65] More significantly, DW2's own testimony during cross-examination conclusively established that work quality was not the issue preventing payment. When asked directly about this matter, DW2 admitted: “Walaupun tak ada masalah kerja namun bayaran tetap tidak dibuat untuk invoice ketiga” (Page 246 Notes of Evidence). When the Plaintiff's counsel pressed further asking “Setuju?” (Do you agree?), DW2 responded “Setuju” (I agree). This clear and unequivocal admission from the Defendant's own witness demonstrates that despite there being no problems with the work, the Defendant still refused to make payment for the third invoice. S/N dhCVmsynEGiKMdrqSwNqQ [66] This key admission is further reinforced by DW4's inability to provide any reasonable explanation for non-payment during cross-examination: Dan saya cadangkan invoice yang dipinda pun tak dibayar? Tak dibayar. Apa sebab invoice yang di muka surat 405 ini tak dibayar walaupun VO dikeluarkan? Ini saya tak pasti” (Page 332 Notes of Evidence) [67] The Defendant's senior farm manager's admission that he was “not certain” why payment was not made, even after variation works were excluded, further confirms that work quality was never the real issue. [68] Furthermore, when the Defendant requested additional supporting documents for audit purposes on 3.12.2021 at 8:56 p.m. with only three days' notice, the Plaintiff provided extensive documentation (Bundles B6, B7, and B8, comprising over 1,000 pages) by 6.12.2021. During cross-examination, DW2 acknowledged receipt of all these documents and confirmed their authenticity: Baik. Sekarang ini saya rujuk Ikatan yang agak tebal sikit, sebelah sana itu. B6, B7, B8. Encik. Iskandar sahkan ini semua dokumen resit, purchase order, semua dokumen-dokumen yang diperlukan untuk tujuan audit diserahkan bersama surat di muka surat 542, betul? S/N dhCVmsynEGiKMdrqSwNqQ Ya.” (Page 252 Notes of Evidence) [69] More significantly, DW2 verified that the Plaintiff had spent approximately RM500,000 on the Project: Dan keterangan Encik. Iskandar di soalan 32, lepas terima semua dokumen ini Encik. Iskandar tadi pagi ada buat pindaan sikit, jumlah voucher resit semua ini anggaran dia dalam RM500,000. betul? Ya . Maksudnya telah dibayarlah. Itu anggaran kasarlah RM500,000. Betul? Betul.” (Page 252 Notes of Evidence) [70] Despite this verification of expenditure and the submission of comprehensive supporting documentation, DW2 admitted that the Defendant still refused to pay the third invoice: “PC: Baik. Lepas dokumen-dokumen audit diberikan ini pada 6.12.2021 saya cadangkan bayaran invoice ketiga masih tak dibayar? Ya betul.” (Page 252 Notes of Evidence) S/N dhCVmsynEGiKMdrqSwNqQ [71] Moreover, DW2 cannot confirm that audit findings were ever communicated back to the Plaintiff: “PC: Dan saya cadangkan tak ada pun surat maklum balas daripada Defendan untuk maklumkan apa hasil audit. Setuju? Saya tak ingatlah” (Page 252 Notes of Evidence) [72] The Defendant's requirement for consultant approval appears to be an internal procedure that was not communicated to the Plaintiff at the outset of the contract. As such, it cannot be retroactively imposed to deny payment. As held in the case of Chee Lui Teen v Kiet Hoe Development Sdn Bhd [1988] 1 MLJ 514 (High Court), “It is not the function of the court to re-write an agreement which the parties had entered into nor should it allow a party who subsequently found that the terms of the agreement were unfavourable to him, and to avoid performance of the agreement, sought the assistance of the court to rectify it under the guise that the agreement did not reflect the common intention of the parties.” The Defendant's attempt to introduce additional payment requirements not specified in the contract must be rejected on this basis. [73] This is particularly so when the consultant, Dr. Ibrahim, had refused to sign the appointment letter prepared by the Plaintiff and had stated that he would only act for the Defendant, not the Plaintiff. S/N dhCVmsynEGiKMdrqSwNqQ [74] PW2 (Dato' Haji Azhar bin Anuar) in his evidence (WS PW2, page 5) stated, “Namun demikian, Dr. Hj. Ibrahim enggan menandatangani Perjanjian / Surat Pelantikan Konsultan tersebut. Beliau juga menyatakan di dalam forum awam / kumpulan aplikasi Whatsapp yang dinamakan “Projek Fertigasi” bahawa beliau hanya akan mewakili Defendan (LGMPC) dan tidak akan mewakili Plaintif.” [75] In the WhatsApp group “projek fertigasi” exchanges at page 89 of Bundle B1, Dr. Ibrahim explicitly stated “Sy tidak akan mewakili petrogas sebab petrogas sangat pandai” and “Saya akan mewakili lgmpc shj”, clearly indicating his refusal to represent the Plaintiff and his intention to act solely for the Defendant. [76] This refusal was confirmed during cross-examination when DW3 testified that Dr. Ibrahim refused to sign both the appointment letter dated 17.8.2021 and the simple agreement for appointment of consultant: Ok. And you are not sure as to reason why Dr. Ibrahim refused to accept this appointment? DW3: Because being informed by Dato' Azhar saying that he did not sign any, That Dr. Ibrahim did not sign? Same goes to page 83, 84, a simple agreement as to the appointment of consultant. Again, Dr. Ibrahim refused to sign.” S/N dhCVmsynEGiKMdrqSwNqQ (Page 278 Notes of Evidence) Ok. Because the true reason is that Dr. Ibrahim is the one who refused to sign the agreement. Agree? DW3: Yes” (Page 279 Notes of Evidence) [77] This contemporaneous documentary evidence, corroborated by witness testimony, establishes that Dr. Ibrahim's bias toward the Defendant was not merely perceived but was explicitly declared by him. [78] Furthermore, in the meeting on 9.12.2021, after the Plaintiff initially issued a termination notice, the parties reached an understanding that the Defendant would pay the original third invoice amount. This is reflected in the Plaintiff's letter dated 9.12.2021, where it states that as part of the reconciliation: “LGMPC bersetuju dengan syarat berikut: Melunaskan Invoice PRSB bernombor 001170 bertarikh 15.10.2021 berjumlah RM317,685.40” [79] It is also worth noting the principle established in Perangsang Dagang Sdn Bhd v Tanjung Teras Sdn Bhd & Ors [2008] 2 CLJ 199 (High Court), which holds that “failure to raise any objections as to the amount stated in the documents... would give rise to a situation of 'non query of account stated'. The non-query would estop the defendant from raising now any disputes that they could have raised S/N dhCVmsynEGiKMdrqSwNqQ earlier.” In this case, the Defendant did not provide specific objections to the items claimed in the invoice but instead raised procedural barriers that were not part of the original contractual arrangement. [80] The full amount of RM317,685.60 represents work actually performed according to the contract. The Plaintiff's temporary willingness to accept a partial payment to maintain project momentum does not negate their contractual right to full payment, especially after the Defendant failed to honour even this compromise arrangement. [81] I find that the Defendant's failure to pay the third invoice constitutes a breach of contract. The Plaintiff provided sufficient evidence of the work completed through the progress reports and supporting documentation, and the Defendant's arbitrary imposition of additional requirements not specified in the contract cannot justify its refusal to pay. The Plaintiff is entitled to the full amount of RM317,685.60 as originally invoiced. Whether the Plaintiff carried out variation works without the Defendant's consent [82] The Plaintiff contends that it obtained approval “in principle” for the variation works from the Defendant's management. The Defendant argues that the Plaintiff proceeded with S/N dhCVmsynEGiKMdrqSwNqQ these works without obtaining proper written approval as required by Clause 15 of the contract. [83] Clause 15 of the Tender Document states: “15.1 LGMPC berhak menambah, memansuh, mengubah atau meminda mana-mana bahagian dalam dokumen tawaran ini pada bila-bila masa yang difikirkan perlu.