Schedule
Schedule 2: Articles of Agreement, Instruction and Conditions of Tender, Personal Data Protection Act 2010 Appendix – Privacy Policy, Sub-Contract Conditions and Appendix I, II, III, IV and V (Where Quantities form part of the contract), Supplementary Conditions to Contract, Undertaking on Employment of Workmen, Undertaking on Compliance with CIDB Malaysia, Specification, 5-S 31 May 2022 ……………………………………………………………………………………………… ________________________________________________________________________ 5 Practice, Construction Quality Assurance System (CONQUAS 6th Edition) and Standard Practice at Project Site. The Sub-Contract Documents are to be taken as mutually explanatory but in the event of any discrepancy and/or inconsistency in any of the Sub-Contract Documents or any requirements therein, the more stringent requirement shall prevail. [11] However, after the Plaintiff had filed its claim, the Defendant, in November 2019, filed an application to refer the matter to arbitration (“the Application”). The Application was premised on paragraph 2 of the Letter of Award, read together with the LOA between Plaintiff and PPC and Clause 32 of the Sub-Contract between the Plaintiff and PPC. [12] In the Application, which was dismissed by the Court, which dismissal was upheld by the Court of Appeal, the Plaintiff argued that not only did the arbitration clause not apply to the Defendant, but that the Defendant was not privy at all to the LOA between Plaintiff and PPC in its entirety. [13] In light of the Plaintiff’s contention in resisting the Application, that is, that the Defendant was not privy at all to the entire LOA between the Plaintiff and PPC, it was my view that the Plaintiff should not now blow hot and cold and claim that the Defendant was indeed bound by the LOA between the Plaintiff and PPC, as allowing the Plaintiff to do so would amount to approbating and reprobating, which would be extremely unjust and inequitable to the Defendant. I drew guidance from the Court of Appeal case of PB Securities Sdn Bhd v. Autoways Holdings Bhd [2000] 4 CLJ 811, where in referring to Halsbury's Law 31 May 2022 ……………………………………………………………………………………………… ________________________________________________________________________ 6 of England (4th Edn) vol 16 para 1507, it was stated by Shaikh Daud JCA, in the following passage: The principle that a person may not approbate and reprobate expresses two propositions, (1) that the person in question, having a choice between two courses of conduct, is to be treated as having made an election from which he cannot resile, and (2) that he will not be regarded, in general at any rate, as having so elected unless he has taken a benefit under or arising out of the course of conduct which he has first pursued and with which his subsequent conduct is inconsistent. [Emphasis added.] [14] Pursuant to the reasons given by the Court of Appeal, its grounds of judgment and also the Plaintiff’s admission itself, after excluding paragraph 2 of the Letter of Award, it was my view that the Defendant was bound only by the remaining terms and conditions stipulated in the Letter of Award, which incidentally did not contain any clause for defects to be rectified. [15] This was fortified by the Plaintiff’s witness, one Chong Lei Hung (“PW3”), Head of Project at Orangebeam Construction Sdn Bhd, which was formerly PPC, who confirmed that it was the Plaintiff which had to rectify the defects at its own expenses, and that it had nothing to do with the Defendant. Whether the Defendant was bound by the Deed of Warranty [16] In support of its claim, the Plaintiff had relied heavily on a deed of warranty (“the Deed of Warranty”) which it claimed was binding on the parties. The Defendant, however, claimed it was not. The issue, 31 May 2022 ……………………………………………………………………………………………… ________________________________________________________________________ 7 therefore, was whether the Deed of Warranty was binding on the Defendant. [17] The Defendant’s witness, one Shee Wein Huat, its director (“DW1”), indicated that the Deed of Warranty was a mere draft and was never finalised, and I had no reason to disbelieve him. In fact, a perusal of the Deed of Warranty indicated that it was neither dated nor signed by the Plaintiff. It was, therefore, untenable to conclude that a document of such nature was binding on the parties. [18] The Court’s attention was brought to the case of RS & L Marine Sdn Bhd v Ventures Bhd & Anor [2016] 9 CLJ 56, where it was reminded that before concluding that parties were bound by terms of a contract, it must be clear that they had agreed to such terms. [19] As such, the Defendant could not be said to be bound by terms that were not finalised and agreed upon. Whether the Defendant was bound to pay management fees [20] The Plaintiff’s claim comprised of management fees in the amount of MYR354,000, which was based on a monthly charge of MYR15,000 calculated from October 2017 to August 2019. The Plaintiff alleged that the Defendant had agreed to the imposition of such management fees in the sum of MYR15,000, and in support thereof, the Plaintiff relied on Minutes of Meeting dated 29 September 2017 (“Minutes of Meeting”). The relevant part of the Minutes of Meeting, namely item 6, read: 31 May 2022 ……………………………………………………………………………………………… ________________________________________________________________________ 8 6. Mr. CK Lim of Rainbow Marble informed that with effect from Oct 17 will charge RM15,000 per month as per charges for Rainbow staff Mr. KL Wong and Ms Wong YP to follow up the Daily Work Progress and Update and Co-ordinate the work for Southkey Project Site. [21] In my view, such term for the management fees was imposed unilaterally, as the Minutes of Meeting did not in any way indicate that there was any mutual agreement between the parties to the imposition of the management fees. [22] In addition, via letters dated 22 August 2019, 5 September 2019, and 30 October 2019 to the Plaintiff, the Defendant had expressly indicated that it had not agreed to the imposition of the management fees by the Plaintiff. [23] The Plaintiff claimed that the Defendant had received and acknowledged certain Notes of Memorandum, pertaining to the Minutes of Meeting. I was unable to accept this contention in light of fact that there was no proof of such receipt and acknowledgment, and secondly, and more importantly, even if there was receipt and acknowledgment of such Notes of Memorandum, that by itself did not constitute an agreement on the part of the Defendant to the imposition of the management fees, particularly in the amount that the Plaintiff had claimed. Credibility/ creditworthiness of the Plaintiff’s witness [24] Although the Plaintiff had adduced numerous documents, in the final analysis, its case depended predominantly on the evidence of its witness, one Tan Cant Ling (“PW1”), who was purportedly engaged by 31 May 2022 ……………………………………………………………………………………………… ________________________________________________________________________ 9 the Plaintiff to manage the works pertaining to the rectification of the defects. [25] It was crucial to note that PW1 was previously employed by the Defendant as project manager and had resigned in August 2017. Although she had resigned from the Defendant in August 2017, she claimed that she was engaged by the Plaintiff also in August 2017. This brought to the forefront the confidentiality clause in her contract of employment with the Defendant. Clause 15 reads: During the continuance of the employment or at any time thereafter, you shall not disclose to any person or company of the company’s trade secret, financial and trade information or policy of the company or information concerning its client. [Emphasis added.] [26] During cross-examination, PW1 admitted that she was given the project by the Plaintiff whilst she was still employed by the Defendant. This fact itself had compromised her creditworthiness as it had rendered her honesty and integrity highly questionable. Furthermore, based on the chronology of events, it appeared that even after her resignation, PW1 had signed documents on behalf of the Defendant, culminating in a police report lodged by the Defendant. These events had added dents to the honesty and integrity of PW1. [27] PW1 further testified that she was appointed by the Plaintiff through her newly formed company, NJ Home Deco Resources in August 2017 to do the works pertaining to the rectification of the defects. However, during cross-examination, PW1 admitted that NJ Home Deco 31 May 2022 ……………………………………………………………………………………………… ________________________________________________________________________ 10 Resources was incorporated on 5 June 2018, which was almost 10 months after PW1 claimed that she was appointed by the Plaintiff. [28] The Plaintiff contended that this conflict of interest that PW1 had put herself in had nothing to do with her involvement in the works for the rectification of the defects, and hence her employment contract with the Defendant was not relevant. [29] I was unable to agree with the Plaintiff since PW1’s conduct had compromised her creditworthiness, which in turn was relevant to her standing as a witness. At this juncture it is crucial to refer to section 146 of the Evidence Act 1950 (“Evidence Act”) which reads: Section 146 – Questions lawful in cross-examination When a witness may be cross-examined he may, in addition to the questions hereinbefore referred to, be asked any questions which tend – (a) to test his accuracy, veracity or credibility; (b) to discover who he is and what is his position in life; or (c) to shake his credit by injuring his character, although the answer to such questions might tend directly or indirectly to criminate him, or might expose or tend directly or indirectly to expose him to a penalty or forfeiture. [Emphasis added.] [30] Both credit and credibility are referred to in section 146 of the Evidence Act and the distinction was explained in R v. Sweet-Escott [1971] 55 Cr App R 316, as follows: Credit involves antecedents, associates, character, impartiality and consistency while credibility concerns the opportunities for a power of 31 May 2022 ……………………………………………………………………………………………… ________________________________________________________________________ 11 observation of the witness, his accuracy for recollection, and capacity to explain what he remembers. [31] PW1 had also contradicted herself when she first claimed that her company was appointed by the Plaintiff but later backtracked and claimed that it was an individual appointment when it was put to her that the company that was purportedly appointed by the Plaintiff was incorporated only in June in 2018. [32] I also found it odd that in all the correspondence between the Plaintiff and Defendant, the Plaintiff had never indicated that it was PW1 or NJ Home Deco Resources who was appointed as the third party to do the works pertaining to the rectification of the defects. [33] The fact that rendered even more improbable that either PW1 nor NJ Home Deco Resources was appointed by the Plaintiff was the absence of a letter of appointment between the Plaintiff and PW1/ NJ Home Deco Resources engaging the latter for the works pertaining to the rectification of the defects that the Plaintiff claimed it had incurred in the amount of MYR788,062.24. [34] To fortify the contention that there was no appointment by the Plaintiff of PW1/ NJ Home Deco Resources was the absence of proof of payment to the latter, although invoices were exhibited by the Plaintiff. Although the Plaintiff claimed that it had made payments via cheque, there was no proof whatsoever that such sums had been paid. [35] Based on the aforesaid reasons, it was my view that PW1’s creditworthiness and credibility had been compromised, and as a result thereof, her evidence was unreliable. 31 May 2022 ……………………………………………………………………………………………… ________________________________________________________________________ 12 Whether the Plaintiff had proved its case [36] In the final analysis, the issue was whether the Plaintiff had proved its case. It is trite law that the Plaintiff had the legal burden of proof, as prescribed by sections 101 and 102 of the Evidence Act which read: Section 101 – Burden of proof (1) Whoever desires any court to give judgment as to any legal right or liability, dependent on the existence of facts which he asserts, must prove that those facts exist. (2) When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person. ********** Section 102 – On whom burden of proof lies The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side. [37] Reference was made to both sections 101 and 102 of the Evidence Act in MGI Securities Sdn Bhd v Teong Teck Leng & Ors [2000] 1 MLJ 354, by KL Rekhraj J in the following passage: … sections 101 and 102 of the Evidence Act 1950 require ‘whosoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts, which he asserts, must prove those facts do exist’; and here the plaintiff having chosen and elected not to lead the evidence of the oral agreements through its witnesses, the court could only hold that there was no evidence of the plaintiff’s before the court to adjudicate upon; and accordingly dismissed the plaintiff’s claim with costs. [Emphasis added.] 31 May 2022 ……………………………………………………………………………………………… ________________________________________________________________________ 13 [38] I also drew guidance from the Federal Court case of U Television Sdn Bhd & Anor v Comintel Sdn Bhd [2017] 10 CLJ 580, and Court of Appeal case of Kam Pau Siong & Anor v Wilayah Fabrication Sdn Bhd & Ors [2004] 3 MLJ 599, on the interpretation of sections 101 and 102 of the Evidence Act. [39] The reminder on who has the burden to prove was administered by the Federal Court in Hong Yik Trading v. Liziz Plantation Sdn Bhd [2017] 8 CLJ 491 and Wong Thin Yit v. Mohamed Ali [1971] 1 LNS 151, where in the latter case, it was stated by Ong CJ in the following passage: In a negligence action the onus of proof rests wholly on the plaintiff, whether or not the defendant gives evidence. The plaintiff cannot succeed without proof of the defendant's negligence. Evidence is the foundation of proof, with which it must not be confounded. Proof is that which leads to a conclusion as to the truth or falsity of alleged facts which are the subject of inquiry. Evidence, if accepted and believed, may result in proof, but it is not necessarily proof of itself. [Emphasis added.] [40] It was further emphasised in the case of Hong Yik Trading v. Liziz Plantation Sdn Bhd, by Arifin Zakaria CJ, in the following passage: It is settled law that the burden of proof rests throughout the trial on the party who asserts that the facts exist (section 101 of the Evidence Act 1950). Where a party on whom the burden of proof lies has discharged that burden, then the evidential burden shifts to the other party. However, if the party on whom the burden of proof lies fails to discharge it, the other party need not call any evidence. [41] The standard of proof on the Plaintiff to prove its claim was on a balance of probabilities, a term which was described in Miller v Minister of Pensions [1947] 2 All ER 372 by Denning J (as he then was) 31 May 2022 ……………………………………………………………………………………………… ________________________________________________________________________ 14 as ‘more probable than not’ and which is ‘not so high as required in a criminal case…but if the probabilities are equal, it is not discharged’. Miller v Minister of Pensions has been assimilated into Malaysian jurisprudence through several cases including Inas Faiqah bt Mohd Helmi (an infant suing through her father and next friend, Mohd Helmi bin Abdul Aziz) v Kerajaan Malaysia & Ors [2016] 2 MLJ 1. [42] The concept of balance of probabilities was further explained in Unsung Rasad v. PP [2019] 1 LNS 662, in which Abang Iskandar Abang Hashim JCA (as he then was), in adopting the English case of Re B [2008] UKHL 35, stated in the following passage: In the celebrated case of Miller v. Minister of Pensions [1947] 2 All ER 372, Denning J (as he then was) said: If the evidence is such that the tribunal can say 'we think it more probable than not' the burden is discharged, but if the probabilities are equal it is not. [17] That would invariably require that party involved having to lead or adduce affirmative evidence to prove his case, as the court shall presume the absence of those circumstances, to reach a level of proof of at least 51% probability against his adverse party. We would cite the English case of Re B [2008] UKHL 35, where Lord Hoffman had used a mathematical analogy to illustrate what needed to be proven by a party desirous of having judgement entered in his favour, like so: If a legal rule requires a fact to be proved (a 'fact in issue'), a judge or jury must decide whether or not it happened. There is no room for a finding that it might have happened. The law operates a binary system in which the only values are 0 and 1. The fact either happened or it did not. If the tribunal is left in doubt, the doubt is resolved by a rule that one party or the other carries the burden of proof. If the party who bears the burden of proof fails to discharge it, a value of 0 is returned and the fact is treated as not having happened. If he does discharge it, a value of 1 is returned and the fact is treated as having happened. [Emphasis added.] 31 May 2022 ……………………………………………………………………………………………… ________________________________________________________________________ 15 [43] In the present case, the evidence adduced by the Plaintiff was vague, ambiguous and dubious and as such had failed to meet the threshold of proof required for its claim. In fact, the Plaintiff had not pleaded with clarity on how it had arrived at the amount that was purportedly owed by the Defendant. At this juncture, it was crucial to note that pleadings are intended to prevent the adverse party from being bewildered or taken by surprise, and as such, facts must be pleaded with clarity. This is trite law as expounded by the Federal Court through Ramly Ali FCJ in Samuel Naik Siang Ting v. Public Bank Bhd [2015] 6 MLJ 10, in the following passages: [29] It is a cardinal rule in civil litigation that parties are bound by their pleadings and are not allowed to adduce facts and issues which they have not pleaded…. [30] The Supreme Court in Lee Ah Chor v. Southern Bank Bhd [1991] 1 CLJ 667; [1991] 1 CLJ (Rep) 239; [1991] 1 MLJ 428, had also emphasised the importance of pleadings and ruled that where a vital issue was not raised in the pleadings it could not be allowed to be argued and to succeed on appeal (see also Ambank (M) Bhd v. Luqman Kamil Mohammed Don [2012] 3 CLJ 551; [2012] MLJU 56 FC). [Emphasis added.] [44] The ambiguity also arose from how the Plaintiff had arrived at the sum of MYR788,062.24 for costs of rectifying the defect works, without providing particulars of the same. Furthermore, although the Plaintiff claimed that the documents adduced were indicative of the expenses that it had incurred for rectifying the defects, there was no proof that the Defendant had even acknowledged receipt of such documents. [45] This had also gone against the Defendant’s insistence that the back-charge for expenses and wages for the works for the rectification of the 31 May 2022 ……………………………………………………………………………………………… ________________________________________________________________________ 16 defects were strictly subject to the Defendant's verification, inspection and approval. However, despite requesting for the same via letters dated 22 August 2019, 5 September 2019 and 30 October 2019, the Plaintiff had failed to accede to such request. [46] I am also compelled to say that the Plaintiff’s witness, one Wong Yoke Peng (“PW2”), the Plaintiff’s marketing and sales manager, was not convincing in his testimony and seemed unsure of what the Plaintiff’s claim was. He was unable to put his finger on the pulse, and was haphazard in his testimony and on many occassions, had even supported the Defendant’s Defence and Counterclaim. Whether the Defendant had proved its counterclaim [47] The Defendant’s Counterclaim was for the total sum of MYR921,305.57, which was divided into the retention sum of MYR826,414.04, and MYR94,891.53 for the outstanding payment pursuant to the certificate approved by the Plaintiff itself. [48] The completion of the works by the Defendant was indicated by the Defendant’s letter dated 22 May 2017. Although it was not signed on behalf of the Plaintiff, PW2 confirmed that it was received. This was fortified by the Certificate of Practical Completion (“CPC”), issued by NWKA Architects Sdn Bhd to PPC dated 30 August 2016 and 20 July 2017, which documented the completion of the works pertaining to the Project. [49] From the evidence of PW2, it appeared that, except for the GST that was charged, the Plaintiff had not actually disputed the sums that the 31 May 2022 ……………………………………………………………………………………………… ________________________________________________________________________ 17 Defendant had counterclaimed. In fact, the tax invoice dated 31 August 2018 in the sum of MYR826,414.04, was prepared after the invoice for Certificate No. 19 was approved by the Plaintiff, which showed the retention sum of MYR779,635.89 prior to the inclusion of the GST. The Defendant had also adduced evidence through DW1 of how the sum was calculated, beginning with completion of part of the tiling works, issuance of certificates of payment, confirmation of certificates of payment by the Plaintiff, issuance of the invoice based on the amount confirmed by the Plaintiff, approval of the invoice and ultimately payment by the Plaintiff to the Defendant [50] In fact, the only reason for refusing to make the necessary payment to the Defendant was because the Plaintiff claimed that the back-charges for the defects that the Defendant had purportedly owed the Plaintiff, would cancel off any debt owing by the Plaintiff to the Defendant. [51] I was unable to accept the Plaintiff’s contention regarding the Defendants counterclaim simply because, as alluded to earlier, I had taken the view that the Plaintiff had failed to prove that the Defendant was liable for the costs of the defects that the Plaintiff had purportedly incurred. As such, the Plaintiff had no right to retain any sum from the Defendant. [52] The Plaintiff alleged that there was miscalculation by the Defendant regarding the payments. It was pertinent to note however that all along, there was no objection or complaint by the Plaintiff regarding the amount due. In fact, this objection which was raised very late in the day leading to the inference that such objection was purely an afterthought. 31 May 2022 ……………………………………………………………………………………………… ________________________________________________________________________ 18 [53] In the final analysis, after perusing the numerous documents adduced by the Defendant in support of its Counterclaim, I was of the view that the Defendant, through such documents and its witnesses, had in fact met its threshold of proof of its Counterclaim. Conclusion [54] Based on the aforesaid reasons, and after careful scrutiny and judicious consideration of all the evidence before this Court, including the submissions of both parties, the Plaintiff’s claim was dismissed whilst the Defendant’s Counterclaim was allowed, with costs. Dated: 31 May 2022 SIGNED …………………………………………. (EVROL MARIETTE PETERS) Judge High Court, Johor Bahru 31 May 2022 ……………………………………………………………………………………………… ________________________________________________________________________ 19 Counsel: For the Plaintiff – YT Pang and TS Goh; Messrs SK Song For the Defendant – T Gunawati and BT Lee; Messrs Albert Ding, Lee & Partners Cases referred to: ➢ Hong Yik Trading v. Liziz Plantation Sdn Bhd [2017] 8 CLJ 491 ➢ Inas Faiqah bt Mohd Helmi (an infant suing through her father and next friend, Mohd Helmi bin Abdul Aziz) v Kerajaan Malaysia & Ors [2016] 2 MLJ 1 ➢ Kam Pau Siong & Anor v Wilayah Fabrication Sdn Bhd & Ors [2004] 3 MLJ 599 ➢ MGI Securities Sdn Bhd v Teong Teck Leng & Ors [2000] 1 MLJ 354 ➢ Miller v Minister of Pensions [1947] 2 All ER 372 ➢ PB Securities Sdn Bhd v. Autoways Holdings Bhd [2000] 4 CLJ 811, where in referring to para 1507 ➢ R v. Sweet-Escott [1971] 55 Cr App R 316 ➢ Re B [2008] UKHL 35 ➢ RS & L Marine Sdn Bhd v Ventures Bhd & Anor [2016] 9 CLJ 56 ➢ Samuel Naik Siang Ting v. Public Bank Bhd [2015] 6 MLJ 10 ➢ U Television Sdn Bhd & Anor v Comintel Sdn Bhd [2017] 10 CLJ 580 ➢ Unsung Rasad v. PP [2019] 1 LNS 662 ➢ Wong Thin Yit v. Mohamed Ali [1971] 1 LNS 151 Legislation referred to: ➢ Evidence Act 1950 – sections 101, 102, 146 31 May 2022 ……………………………………………………………………………………………… ________________________________________________________________________ 20 Other sources referred to: ➢ Halsbury's Law of England (4th Edn) vol 16