Phocea Limited v Mectra Synergy (M) Sdn Bhd (WA-27NCC-60-12/2021)

The Plaintiff’s claim against the Defendant is primarily based on 2 causes of action. i) Breach of contract by the Defendant ii) negligence

The Plaintiff is the owner of the Yacht “PHOCEA” (hereinafter referred to as “the PHOCEA”).

The Defendant was engaged by the Plaintiff to carry out refurbishment works on the PHOCEA. The refurbishment works undertaken by the Defendant were limited to works described in the invoices issued to the Plaintiff (hereinafter referred to as “the Refurbishment Works”). The invoices are in the Common Bundles of Documents (CBOD) pages 38-

The invoices forms the contractual basis of the legal relationship between the Plaintiff and the Defendant. [4] Before the Defendant undertook the Refurbishment Works, there was an inspection carried out on the PHOCEA’s generator set (Port), main engine, rudder indicator, pumps and others on 11.12.2020 and 13.12.2020 at the anchorage near Teluk Baru, Island Hopping Jetty, Langkawi. [5]

Additional three (3) inspections were carried out on 08.01.2021,

01.2021 and 02.02.2021 for the air-conditioning system, port generator, freshwater system, sewage system (toilet), and anchor windlass controller socket male/female, MCR board, lighting and wiring. [6] Based on the inspections, a quotation was issued to the Plaintiff on 29.12.2020 (hereinafter referred to as “the Quotation”) proposing refurbishment works as contained in quotation (See the CBOD page 32-37 which provide details of the proposed refurbishment works). After receiving the Defendant’s quotation the Plaintiff engaged the Defendant to carry out the refurbishment works as specified in the invoices. [7] Thus, the contractual obligations owed by the Defendant towards the Plaintiff are those specified by the terms and condition as contained in the invoices. THE FIRE INCIDENT [8] On 18.02.2021, at approximately 8.00 a.m., a fire broke out at the stern of the PHOCEA. [9] At the material times, Wan Faizal Enterprise was contracted by the Defendant to undertake the maintenance works for the air-conditioning system of the PHOCEA from 08.02.2021 till 21.02.2021. [10] At the time of the fire incident, the owner of Wan Faizal Enterprise (DW4) and three (3) other employees of the said contractor stayed on board of the PHOCEA together with the Plaintiff’s crew members, namely Naserun bin Ramli and Faizal bin Ramli. [11] it was undisputed that the fire started at approximately 8.00 a.m. from the stern of the PHOCEA. At the said time, no works were being carried out by the Defendant’s air conditioning sub-contractor. (See Q+A 13 – DW4 Witness Statement) PLAINTIFF’S PLEADING [12] The Plaintiff in its Statement of Claim (“SOC”) contends that: a) the Defendant breached its contractual obligation which was to provide the Vessel with safe and functioning operations while conducting its work without any risks to the vessel including risk of fire. The Plaintiff alleged the Defendant failed to provide safety equipment against fire risks. b) Defendant was negligent in removing fire fighting equipment (the sea water pump) which could have assisted in preventing or fighting the fire once it starts. c) Defendant failed to provide stand-alone emergency motor pumps. d) The Defendant dismantled the fire bilge pumps for repair without providing back up equipment. DEFENDANT’S STATEMENT OF DEFENCE (SOD) [13] The Defendants defence based on its SOD was a denial that the Defendant or its contractor caused the fire for the following reasons. a) At the material time, the Vessel was under the control of the Plaintiffs crew member. The Defendant’s contractor was still asleep. b) The Plaintiffs crew members had failed to operate the remaining fire extinguishing system on the Vessel particularly the CO2 system. [14] Defendants Statement of Defence contends at para 17.1, 17.2 and 17.3 that at the material time the Vessel was under the control of the Plaintiffs crew members. Para 17.2 – Defendant contractor was still asleep until awakened by the Plaintiffs crew members. [15] a) This event was caused or contributed by the Plaintiff. See para 17.1 and 17.2 SOD. The fire could not have been cause by the Defendant’s contractor because they were still asleep at the time the fire occurred. b) The Defendant contends that Plaintiff has contributed solely, if not, substantially to the fire incident on the PHOCEA. The particulars, are amongst others, as follows:

The Plaintiff has failed to employ qualified crew members to be on board on the PHOCEA;

(ii) The crew members employed by the Plaintiff have failed to operate the fire extinguishing system of the PHOCEA;

(iii) The crew members employed by the Plaintiff have negligently managed the PHOCEA and have caused fire on the PHOCEA. FINDINGS BY THE COURT [16] Before making a determination on the issues arising from the allegations by the Plaintiff it is necessary to first make a finding of the cause of the fire on the Yacht. [17] It is averred that the fire broke out immediately after Plaintiffs crew Faisal woke up and started the generator. (See witness statement by PW5 Faizul bin Razali Q+A-5). [18] Since this particular evidence shows that the Defendant’s contractor was still asleep when the fire started, it is unlikely that the fire incident was caused by the Defendant “in the cause of performing the contract works” as alleged by the Plaintiffs SOC. [19] Specifically the Plaintiffs pleadings as to the cause of fire is as follows: SOC 16.2 On or about 18.2.2021, while the Defendant was undertaking work on the Phocea, the Defendant’s workers caused a fire to break out on the Phocea.

16.4 Caused a fire to break out on board the Phocea in the course of performing the works. [20] (i) PW5 testified that his daily routine was – after waking up, he will start the generator of the Vessel (notes of proceedings page 186 - line 22). For the Defendant’s contractor to start the works, there must be electricity from the generator on the vessel. It is not disputed that the Defendants contractor had yet to start work at the time the fire started. Instead the Plaintiffs crew member woke up and started the generator, thereafter the fire broke out at the stern of the Vessel (see PW5 witness statement Q+A-5). [21] On this issue I find that the Plaintiffs allegation that the Defendant had caused the fire “in the cause of performing the contract works” to be unproven and in fact untrue. Thus, the cause of fire remains undetermined. [22] Additional, the Plaintiff has failed to adduce any expert or forensic investigation report on the actual cause of the fire. (The Plaintiff’s submission on the issue is just conjecture). Thus, the Plaintiff had failed to establish on a balance of probabilities that the fire was caused by Defendant’s contractor while performing the works as pleaded in the Plaintiff’s SOC. ALLEGED NEGLIGENCE ON THE PART OF THE DEFENDANT [23] (i) The Plaintiff contends that the fire was caused by the faulty generator. The Plaintiff avers that the Defendant had serviced the generator on the vessel on 16.2.2021 and 17.2.2021, 2 days before the incident, and the faulty generator caused the fire.

(ii) The Defendant however contends that at the time of the fire the Defendant had yet to service the generator (starboard) as it was waiting for spare parts. (see notes of proceedings page 201, line 5-7).

(iii) The Defendant contends that on the day before the fire, its workers went to ‘inspect’ not to service the generator (starboard) at the request of PW3. (see notes of proceedings page 235 line 18-33, 39-

Inspection does not equate to ‘servicing’. [24] Thus for the reasons above I find even if the fire had started from the generator, the Plaintiff has failed to prove the faulty generator was caused by the Defendant when it allegedly “serviced” the generator. [25] In any event this allegation was not pleaded by the Plaintiff in its SOC or Reply. Particulars of negligence must be specifically pleaded. It is trite law that parties are bound by their pleadings. Thus this allegation is not an issue for this court’s determination since it was not specifically pleads. ISSUE OF FAILURE TO PROVIDE ALTERNATIVE PUMPS [26] (i) the Plaintiff also alleged that the Defendant was negligent in failing to replace the general service pump (which was removed for maintenance) with an alternative pump. Again this allegation was not pleaded in the SOC but only raised in the Plaintiff's reply.

(ii) On this issue I accept the Defendants submission that the Plaintiffs submission raised new grounds in its reply, thus contravening the provision of Order 18 rule 10 of the Rules of Court 2012 (“ROC 2012”). The Plaintiff is attempting to augment its case by adding fresh causes of action not pleaded in the SOC. (See the case of Accolade Land Sdn Bhd v Mass Rapid Transit Sdn Bhd (2017) MLJU 1868 paragraph 195. It is trite law that Plaintiff is not allowed to improve its claim by pleading particulars of negligence in its reply, instead of its SOC. [27] I agree with the Defendant’s submission that the Plaintiff’s failure to call any expert witness or adduce any forensic expert report to assist this Court to determine the actual cause of the fire is fatal to the Plaintiff’s pleaded case that the fire was cause by the Defendant’s contractor in the course of performing the contract works. [28] For the reasons above I find on a balance of probabilities that the Plaintiff has failed to prove its case against the Defendant for breach of contract or for negligence. QUANTUM [29] The Plaintiff claims for the loss of the full value of the Vessel in its SOC. However as submitted by the Defendant the Plaintiff has failed to plead or quantify the value of the Vessel in its SOC. [30] It is trite law that a claim for total loss of any property including moveable property is classified as a claim for Special Damages. Special Damages are awards where damages suffered is quantifiable in monetary value (see Laksamana Realty Sdn Bhd v Hok Eng Hwa

1 MLJ. The Plaintiff has failed quantify the monetary value in its SOC. On this basis alone I find the Plaintiff is not entitled to the value of the Vessel as it was not pleaded as Special Damages. [31] (i) On this issue I am persuaded by the decision of the Court in Inspira Maju Sdn. Bhd. v Majlis Bandaraya Miri (2016) MLJU 898, where the learned JC held as follows: [31] Even assuming that the Plaintiff had pleaded a cause of action, the Plaintiff is required to state specifically the amount of costs or compensation that they are claiming against the Defendant. Upon perusing paragraph 26(ii) of the Plaintiff’s statement of claim it clearly shows that the amount of costs or compensation is not stated for this Court to evaluate whether such amount is reasonable or appropriate in the light of the oral and documentary evidence produce by the Plaintiff. Through the evidence of PW1, the loss and damages incurred by the Plaintiff as a result of the removal of the car parks was estimated at RM250,000.00 but no supporting documents were produced in Court by the Plaintiff to substantiate 5 its claim. In my view, the plaintiff’s claim for the costs of the car parks being demolished by the Defendant falls under the category of special damages and the law is trite that such claim not only needs to be specifically pleaded but proved (Tan Kuan Yau v Suhindrimani [1985] 2 MLJ 22).

(ii) In Leong Hon Loon v Nasim Sdn Bhd (2021) MLJU 2508, the learned Judge held: [39] In this matter I agreed with the Defendant that it is trite law that the Plaintiff bears the burden of proving special damages. All the more so when special damages must be specifically pleaded and specifically proven. [40] On this point, reference must be made to the oft-quoted passage in the case of Bonham-Carter v Hyde park Hotel Ltd cited in several Malaysian cases including Sum Kum v Devaki Nair & Anor [1963] 1 LNS 131: “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 what I have lost; I ask you to give me these damages’. They have to prove it.” [41] In PB Malaysia Sdn Bhd v Samudra (M) Sdn Bhd [2009] 7 MLJ 681 the Court of Appeal at pg 698 held that: “Damages must be proved with real or factual evidence (as opposed to mere particulars, summaries, estimations or general conclusions) in order for a party to recover them.” [32] For the above reason I dismiss the Plaintiff’s claim with costs. Dated 9 April 2025 …………t.t…………………. Ahmad Murad Bin Abdul Aziz Judge High Court of Malaya Kuala Lumpur COUNSEL FOR THE PLAINTIFF: EVELYN NG LEE JIE ZING WITH MR. PHILIP TEOH SOLICITORS FOR THE PETITIONER: TETUAN AZMI & ASSOCIATES COUNSEL FOR THE DEFENDANT: RAZLAN HADRI WITH LEE GUO WEN SOLICITORS FOR THE DEFENDANT: TETUAN TAN, HO & RAZLAN HADRI Cases Referred to: ➢ Laksamana Realty Sdn Bhd v Hok Eng Hwa (2006) 1 MLJ ➢ Accolade Land Sdn Bhd v Mass Rapid Transit Sdn Bhd (2017) MLJU 1868 ➢ Inspira Maju Sdn. Bhd. v Majlis Bandaraya Miri (2016) MLJU 898 ➢ Leong Hon Loon v Nasim Sdn Bhd (2021) MLJU 2508 Legislation Referred to: ➢ Rules of Court 2012 Decision date: 20 March 2025