Pristar Housing Development Sdn. Bhd. v Success Input Sdn Bhd (AA-12BNCvC-8-11/2022)

7.4, and 4.2, which according the SCJ have collectively established conditions for the release of the retention sum that is contingent on the satisfactory completion of any necessary 160 rectification work. [13]. The SCJ finds that Pristar had proved its defence by supported evidence such as the Architect's letters indicating incomplete rectification work. This evidence according to the SCJ, weakened Success Impact’s claim that the work had been completed 165 satisfactorily. The SCJ gave importance to Clause 7.4, which permits the Developer to withhold payments until the Architect/Engineer is satisfied with the rectification. As Success Impact allegedly could not demonstrate that the work met the required standards of satisfaction, the SCJ finds Pristar justified 170 in retaining the sum, leading to the dismissal of Success Impact’s claim for the return of the retention sum. Success Impact’s inability to conclusively prove that the rectification work was completed as per the contractual terms and to the satisfaction of the Architect/Engineer was the basis of the SCJ’s decision. 175 [14]. Append below a passage from the grounds of judgment of SCJ in dismissing the claim for the retention sum: “Based on the evidence before this Court, it is clear that Clause 10.2 is subject to Clause 7.4 and applies where there is non-satisfaction of contract works. The construction 180 undertaken by the Plaintiff must reach the satisfaction of the Architect/Engineer. The Plaintiff tendered a series of letters to show that the alleged rectification works has been completed. Although the Plaintiff is alleging that the rectification works has been 185 completed, the Architect, Cipta Teguh Sdn Bhd via letter dated 29.1.2019 to the Plaintiff had clearly stated that preliminary checking of the rectification works done shows that there are still many incomplete rectifications works on site (Exhibit P24, pg 98- Bundle F). Further to this, the Architect also wrote a 190 letter dated 11.3.2019 to the Plaintiff requiring all rectifications works to be completed a per their letter dated 4.10.2018 (Exhibit D32, pg 67- Bundle F). This is supported by the evidence of SD3, the Director of Cipta Teguh Sdn. Bhd. As such, this Court finds that the Plaintiff has failed to show that 195 the rectification works was done to the satisfaction of the Architect/Engineer and as such, the Defendant is fully justified in withholding the retention sum as per Clause 7.4 of Contract Agreement.” [15]. Append below a passage from the grounds of judgment of the 200 SCJ in dismissing the counterclaim for CCTV rectification work, based on documentary evidence and testimony of witness: “The first CCTV Report that was prepared by Kent Lik was marked as D46 (page 256 to 372 Bundle G). SD4, the Consultant Engineer in his testimony confirmed that it is 205 common practice that after a CCTV is done and if there is any defect, IWK would issue an instruction letter to Consultant Engineer on what to rectify (page 9 Line 25 onwards Notes of Proceeding 2). However, in this case, the Defendant did not adduce any such letter from IWK to support the items stated 210 in the quotation (Exhibit D51A) that needed to be repaired. Based on the above, this Court finds that the Plaintiff had completed all its obligation under the Sewerage Agreement. There is no independent evidence from IWK to prove that there is any defective sewerage works. As such, the Defendant's 215 counter claim was dismissed.” [16]. In respect of appeal No. AA-12A-27-10/2021, which stems from Sessions Court suit No. AA-A52-16-6/2021, Pristar’s claim for RM194,300.00, being cost of third-party contractor repair works, was struck out pursuant to Order 18 r.19. From the outset, Pristar 220 attempted to challenge the application by arguing that the affidavit supporting the application was invalid and therefore the application should fail in limine. The SCJ disallowed this challenge and proceed to hear the application on its merits and decided the principle of res judicata is applicable and that Pristar’s suit 225 constitutes an abuse of process. [17]. Append below a passage from the grounds of judgment of the SCJ in dismissing Pristar’s claim in Appeal No. AA-12A-27- 10/2021 for cost of third-party contractor repair works: 230 “By applying the observation made by the Supreme Court in the Asia Commercial Finance case, plaintiff in present action is estopped from filling a claim against defendant for rectification works simply because it directly connected to the issue of whether defendant is entitled to the release of retention sum. 235 If indeed defendant is liable to do rectification works but failed to do so, plaintiff is then entitle to make deduction from the retention sum. This issue is for the court in the previous pending case to decide. Hence, to allow this present suit to proceed is tantamount to 240 multiplicity of proceedings. It is an abuse of process and liable to be struck out” Decision of the Court 245 Civil Appeals No. AA-12BNCVC-8-11/2022: appeal on the dismissal of the counterclaim by Pristar [18]. This court finds that the SCJ did not err in her judgment, as Success Input had fulfilled all obligations under the Sewerage 250 Contract, notably performing CCTV inspections twice, which enabled Pristar to secure an approval letter from IWK. These efforts were in compliance with specific clauses of the contract, essential for Pristar to receive a Completion Certificate from IWK. I find there was no duty on the part of Success Input to perform 255 “additional” CCTV inspection for the purpose of retrieving its Bank Guarantee, and there was no substantiated claim or evidence from Pristar requesting rectification of any defective works post-CCTV. The lack of directives from IWK post-inspection, which was further confirmed by the evidence of the Consultant Engineer, 260 supports the conclusion that there were no defective sewerage works. Therefore, I cannot find any grave error of law or facts or that the SCJ had drawn an unreasonable conclusion, for my intervention in this respect of Pristar’s appeal on the counterclaim. Civil Appeals No AA-12BNCVC-9-11/2022 & No AA-12BNCVC-10- 265 11/2022; appeals on the dismissal of Success Input’s claim for retention sum in suit 24 and suit 135 respectively. [19]. In respect of these two appeals, I find the SCJ had primarily erred in fact and/or the SCJ had insufficient judicial appreciation of the evidence whereby the SCJ had misdirected herself on the issue 270 before her. [20]. The learned SCJ had erred in fact in not appreciating that the retention sum of 5.0%, arising from a contract agreement dated 3 May 2016, is split evenly between the first tranche of 2.5%, amounting to RM270,701.19, that was due and payable on 14 275 July 2018, while the subsequent 2.5% being the second tranche was due a year later on 14 July 2019. [21]. The claim for the 1st tranche is by suit 24 (appeal No. AA- 12BNCVC-9-11/2022) and the 2nd tranche is by suit 153 (appeal No. AA-12BNCVC-10-11/2022). 280 [22]. I find there was no list specifying the defects in writing to the Success Input by Pristar ever provided during the first half of the Defect Liability Period. The first defect list received by Success Input was dated 1 August 2018 which was well after the lapse of 10 days after the first half of the Defect Liability Period i.e. 14 July 285

Had the SCJ not misdirected herself on this fact, she would have come to a different decision. [23]. As for the second tranche of the retention sum of 2.5%, the learned SCJ took into consideration irrelevant considerations and failed to consider relevant ones. Pristar’s architect did not facilitate 290 a joint inspection nor specify the so-called "incomplete rectification works" by Success Input, in his letter (P24(i)). Success Input disputed this and requested a joint inspection, which the architect avoided by claiming the work was not ready for inspection and intentionally omitted specifying the details of 295 the "incomplete rectification works". This behaviour of the architect is evident from his testimony during the trial which suggests a deliberate intention on the part of Pristar not to release the retention sum to Success Input. The law on appellate intervention 300 [24]. In the case of Perembun (M) Sdn Bhd v. Conlay Construction Sdn Bhd [2012] 4 MLJ 149; [2012] 2 MLRA 71, the Court of Appeal has stated as follows:- “[8] Hence, the proper approach is that if (a) it is shown that the judgment cannot be explained or justified by the special advantage 305 enjoyed by the trial judge by reason of having seen and heard the witnesses testify and being tested before him, and (b) an injustice is demonstrated to have been occasioned by any error by the trial judge, for example: 310

The judgment is based upon a wrong premise of fact or of law;

There was insufficient judicial appreciation by the trial judge of the evidence of circumstances placed before him;

The trial judge has completely overlooked the inherent probabilities of the case;

That the course or events affirmed by the trial judge could not have occurred;

The trial judge had made an unwarranted deduction based on faulty judicial reasoning from admitted or established facts; or

The trial judge had so fundamentally misdirected himself that one 320 may safely say that no reasonable court which had properly directed itself and asked the correct questions would have arrived at the same conclusion; An appellate court will intervene to rectify that error so that injustice is not occasioned.” 325 [25]. Given these misdirections by the learned SCJ, this court in its appellate capacity must intervene to rectify the errors and ensure justice is served for Success Input. As such I allow both appeals No. AA-12BNCVC-9-11/2022 and No. AA-12BNCVC-10-11/2022 330 in favour of Success Input. In respect of appeal No. AA-12A-27-10/2021, from Sessions Court suit No. AA-A52-16-6/202, which was struck out pursuant to Order 18 r.19. [26]. In respect of appeal No. AA-12A-27-10/2021, I am fully in 335 agreement with the decision and the reasoning of the SCJ. I do not find any error in fact or in law that would require this court to interfere with the decision. Furthermore, I have considered the merits of the case, which are the appeals after a full trial from Civil Suit No: AA-A52NCVC-24-02/2019 (Suit 24) and Civil Suit No: 340 AA-A52NCVC-153-09/2019 (Suit 153) which I have deliberated in the preceding paragraphs. However, for the purposes of this particular appeal No. AA-12A-27-10/2021, I am not to decide on the merits of the claim by Pristar, as that is not the appeal before me. The appeal concerns the decision of the SCJ, who struck out 345 Pristar’s suit on the grounds of res judicata and abuse of process. However, having apprised the facts of the case from deciding the appeals from Suit 24 and Suit 153, I am absolutely certain that the principle of res judicata is applicable here in the instance of suit AA-A52-16-6/2021, where this claim ought to have been brought 350 in either Suit 24 or Suit 153, as Pristar deemed fit. In Chee Pok Choy & Ors v. Scotch Leasing Sdn Bhd [2001] 2 CLJ 321, [2001] 1 MLRA 98, it was stated: “[2] Res judicata is not merely a technical rule of pleading. It is a process whereby justice is achieved procedurally by 355 precluding a party from reagitating in subsequent proceedings a complaint or an issue that has, or could have been disposed of in earlier proceedings between the same parties. It is merely equity in action in the procedural arena. Since the doctrine is designed to achieve justice, a court may decline to apply it 360 where to do so would lead to an unjust result.” [27]. Also, succinctly provided by the Supreme Court in Asia Commercial Finance (M) Bhd V Kawal Teliti Sdn Bhd [1995] 3 CLJ 783, [1995] 3 MLJ 189; [1995] 3 AMR 2559 and [1995] 1 MLRA 611 in these words: 365 “[2] The doctrine of res judicata is not confined to causes of action or issues which the Court is actually asked to decide or has already decided. It covers also causes of action or issues or facts which, though not already decided as a result of the same not being brought forward due to negligence, 370 inadvertence or deliberately, are so clearly part of the subject matter of the litigation and so clearly could have been raised, that it would be an abuse of the process of the Court to allow a new proceeding to be started in respect of them.” 375 [28]. As such, I concur with the SCJ's decision to strike out Sessions Court suit No. AA-A52-16-6/2021, as the claim therein should have been brought in either Suit 24 or Suit 153. Accordingly, this appeal No. AA-12A-27-10/2021 should fail as intervention from this court is not warranted. 380 Conclusion [29]. For the reason stated above, I allow the appeals by Success Input (No. AA-12BNCVC-9-11/2022, No. AA-12BNCVC-10-11/2022) and dismiss the appeals by Pristar (AA-12BNCVC-8-11/2022 and No. AA-12A-27-10/2021), with one set of costs of RM30,000.00 385 for all the appeals in favour of the Success Input. Date : 31st July 2024 390 Moses Susayan MOSES SUSAYAN Judicial Commissioner 395 High Court in Malaya at Ipoh, Perak 400 Counsel: 405 Civil appeal no.: AA-12BNCvC-8-11/2022 Civil appeal no.: AA-12A-27-10/2021 410 For the Appellant : Robin Lim Advocates and Solicitors [Messrs Chan & Associates] Ipoh, Perak 415 For the Respondent : Siti Aishah binti Mohamed Azahari Advocates and Solicitors [Messrs BH Koh, Soong, Zarin & Partners] Ipoh, Perak 420 Civil Appeal No. : AA-12BNCvC-9-11/2022 Civil Appeal No.: AA-12BNCvC-10-11/2022 For the Appellant : Siti Aishah binti Mohamed Azahari 425 Advocates and Solicitors [Messrs BH Koh, Soong, Zarin & Partners] Ipoh, Perak 430 For the Respondent : Robin Lim Advocates and Solicitors [Messrs Chan & Associates] Ipoh, Perak 435 (Notice: This Grounds of Decision is subject to official editorial revision) Headnotes Contract — construction contract — retention sum and cost of rectification — whether the respondent is entitled to claim the retention sum — 440 whether the appellant can counterclaim for the cost of rectification works done by a third party. Civil Procedure — whether a claim for third-party contractor repair work should be struck out based on the principle of res judicata and abuse of process — the claim ought to have been brought in an earlier suit. 445