6 MLJ 1 were cited as support. Absence of a Valid Contract with the Defendant [9] The defendant has strenuously argued that no fully constituted contract could have arisen with them based on the principles of the law of contract as found in section 2 (constituents of a contract) and 7 (that acceptance must be absolute) of the Contracts Act 1950 (Act 136). Further there was no valid offer from the plaintiff to the defendant and there was no absolute acceptance by the defendant. In that regard the Federal Court case of Seni Jaya v Dato Hj Ahmad Tarmizi Hj Puteh (2019) 1 CLJ 713 was cited as support. [10] It was further argued that the wrong party had been sued. The plaintiff's communication and dealings were solely with Borneo Samudera, and not the defendant. The 47 servers do not belong to the defendant but to Borneo Samudera. The instruction relied upon by the plaintiff was from DW4, one Tan, who was an employee of Borneo Samudera, and not the defendant. In fact, the defendant had only one employee and there was no communication with him. Therefore, the plaintiff has no legal basis to claim against the defendant for transactions with Borneo Samudera. It is emphasised that the law applicable is trite, wherein companies in a group are not to be regarded as one, citing the case of Adams v Cap Industries Plc (1990) Ch 433 and Golden Plus Holdings v Teo Sung Ngiap & Another (2021) 2 MLRA 306 (CA). It was also argued that there is absent a case for lifting the corporate veil, as there has been no evidence or pleading to do so and the exception only applies when a legal entity is utilised for a fraudulent or dishonest purpose. Contradictory Evidence [11] The defendant points to major contradictions in the evidence by the plaintiff. It being, while the plaintiff relied on DW4’s email dated 19.4.2018 for instructions to install the software, the plaintiff’s own witness SP1, one Devan, admitted there were no such instructions. He had admitted DW4’s email was only to install an empty data file, and not the iplantation software. Further, the iplantation software was useless as it was not activated, and no activation key or code was provided. In fact, SP1 confirmed that no system logs or files were adduced to prove activation. [12] It was submitted that the plaintiff’s witness SP3, one Ravan is an unreliable witness due to contradictions on project completion; denial of known implementation issues; and claiming no license key was required for activation. In a nutshell [13] The core of the dispute revolves around a failed project for the implementation of the plaintiff's plantation management software, iPlantation, for the Sawit Kinabalu Group. The plaintiff, an IT company, claims a payment of RM1,345,000 plus 5% interest per annum from 17.2.2020, until full settlement. The claim is for providing and implementing the iPlantation management system, which included the installation of 47 licenses/software. The plaintiff asserts the defendant terminated its services in February 2020 without reason. [14] However, the defendant denies the plaintiff's claim and counter-claimed for special damages of RM972,000 (a sum already paid to the plaintiff for the project) and general damages, arguing that the iPlantation system was flawed and unusable, leading to the project's discontinuation. The defendant also contends that the project was carried out with its subsidiary companies, not the defendant directly. [15] The Plaintiff focuses primarily on establishing that the defendant, SKSB, is the legally liable party and that the system's failure was due to the defendant's actions, not the plaintiff's product. It was maintained by the plaintiff that the defendant, SKSB is the contracting party. The plaintiff argues that even though work orders or purchase orders may have been issued by subsidiary companies, like Borneo Samudera Sdn Bhd, the work was commissioned and managed by the defendant, the holding company and head of the Sawit Kinabalu Group. Evidence cited includes: • Group Identity: Defence witnesses (DW2 and DW3) confirmed that employees of subsidiary companies use the email domain @sawitkinabalu.com.my because they are part of the Sawit Kinabalu Group. Furthermore, the servers were delivered to the Sawit Kinabalu Group Head office, and SKSB’s own documents confirm it is the owner and manager of the Group’s investments. • Documentation: All project-related emails and documents, including those from the defendant's staff like Tan Min Choon (DW4), referred to Sawit or Sawit Kinabalu Group, not the subsidiaries specifically. • Head Office/HQ: The plaintiff's witness (SP1) testified that the 47 servers were installed at the Sawit Kinabalu HQ. The defendant's own documents (SSM search and Tax Invoices) indicate that the registered address of its subsidiary, Borneo Samudera is the same as the defendant's, and delivery for servers was to the Sawit Kinabalu Group Head Office, not a subsidiary's HQ • Legal Notices: The defendant never denied its involvement when legal notices and emails about the project's termination and demand for payment were addressed directly to its management, including the Group Managing Director, Masri Pudin, at his @sawitkinabalu.com.my email address. Further, the plaintiff disputes the claim that the iPlantation system was flawed for the following reasons: • User Issues: plaintiff's witness (SP2) confirmed that the issues raised were related to the users, suggesting a problem with the consumer/user and not the plaintiff as supplier. • Changes/Customization: defence witness (DW5) admitted that the primary reason for saying the project was unsuccessful was that there were many changes that had not been fully resolved. The plaintiff counters that they resolved the bulk of the change requests, and the problem started because of changes required by the defendant, not the system itself. • Continued Engagement: despite the alleged problems, the defendant requested the plaintiff to carry on with new projects and additional features, like incorporating handheld system for Sg Menanggol estate well into the year 2018 and 2019, demonstrating an acceptance and continued use of the system. DW4 agreed that the plaintiff has not been paid for the licenses installed in the 47 servers. • Payment Acknowledgment: defendant had paid a sum of RM972,000 and installed the system for seven (7) subsidiaries over nearly two years, which the plaintiff argues amounts to acceptance of the goods and services. • Legal Estoppel (Approbation and Reprobation): The defendant cannot benefit from treating the Group as one entity during the project and then insisting on separate legal entities only when payment is due, thereby seeking to approbate and reprobate. The defendant, having accepted the benefits, used the system for seven subsidiaries over two years, and requested continued work and new features, is not entitled to recover the paid sum. The alleged failure was a result of the defendant’s continuous scope changes and not a fundamental breach by the plaintiff. The defendant is estopped from avoiding the financial burden of the contract after taking the benefit. • Estoppel by Acquiescence, no denial: defendant is barred from denying the contract now as it had acquiesced and consented to the use of its name and logo by tis subsidiaries. The principle of promissory estoppel or estoppel by conduct is relied on, as established in cases like WJ Alan & Co Ltd v El Nasr Export & Import Co (1972) 2 QB 189, as the defendant never denied its involvement when two legal notices and a demand email regarding termination were addressed directly to the Group Managing Director of SKSB. This failure to deny the demand for compensation is strong evidence of liability. • Burden of proof met: plaintiff’s burden was simply to show that services were provided for a value of RM1,354,000, the licenses and implementation charges and that the defendant failed to pay. The defendant argued the project failed because the system was flawed and thus justified the termination. The plaintiff counters this by adopting principles of commercial law concerning the acceptance of goods and services pursuant to the Sale of Goods Act 1957 (Revised 1989) (Act 382) to wit, section 42 and 24, which essentially provides that property passes to the buyer if they retain the goods without giving notice of rejection within a reasonable time. In this case, it is reiterated that the defendant had paid RM972,000 and used the system for several subsidiaries over a period of nearly two years, early 2017 to February 2020, and continued to request new projects and customization, like the Sg Menanggol handheld app well into the year 2019. The final termination was given without reason, undermining the claim that the system was fundamentally flawed. • Sufficient particulars: SOC specified the amount claimed for the installation of the iplantation system in 47 servers. The plaintiff maintains that the software included that the software installed is the license, and the work orders given by the subsidiaries were based on proposals submitted by the defendant. • Existence of a contract: plaintiff maintains that a contract existed with the defendant, the head of the Group, and therefore the counterclaim for the return of RM972,000 must be dismissed on the merits of acceptance. [16] In terms of the law, it was contended by the plaintiff that SKSB, as the holding company and Head of the Group, must be the contracting party, as it directed the work. It cites as support the case of Sunrise Sdn Bhd v First Profile (M) Sdn Bhd (1996) 3 MLJ 533 to argue that where a holding company manages subsidiaries as one group, the court can disregard the notional separateness of the companies, especially when used to evade contractual obligations. Essentially the plaintiff’s arguments are centred on corporate conduct, group management and commercial acceptance by payment and continued use. [17] Ensuing from these, the plaintiff argues that having provided the service for a value of RM1,354,000 and the defendant having failed to pay, the burden is met. The plaintiff urges the court to find the defendant liable based on the evidence of its conduct, which showed it treated the plaintiff as having provided services to the Sawit Kinabalu Group, led by the defendant. The plaintiff prays that its claim be allowed with costs, and the defendant's counterclaim be dismissed with costs. Retort by defendant [18] While contention by the plaintiff attempts to use commercial reality to establish liability, the defendant had relied on strict legal formalities, which in a court of law gains precedence. The core justification being, lack of privity of contract and defective pleadings. The plaintiff had failed to meet the necessary procedural and substantive burden of proof required for a contractual claim against the named or cited defendant. The legal defence of separate legal entity is insurmountable. It is the most critical and legally sound justification for dismissal of the claim by the plaintiff, based on established corporate law. The doctrine of separate legal entity is sacrosanct in company law, established in Salomon v A Salomon & Co Ltd (1897) AC 22 and affirmed in other cases like Adams & Others v Cape Industries Plc and Another (1990) Ch 433. The defendant SKSB and its subsidiary Borneo Samudera, are separate legal persons with distinct rights and liabilities. The plaintiff throughout the trial, had failed to produce any formal contract with offer and absolute acceptance directly between itself and the defendant SKSB. All operative documents including work orders, instructions stemmed from the subsidiary. Its argument that the court should look at the companies as a group or a single economic entity is an attempt to lift the corporate veil. This legal exploit is only permitted under narrow exceptions, typically fraud, tax evasion or injustice, which the plaintiff failed to plead or prove. The entire transaction between parties are at arm’s length and using a shared e mail domain or head office is insufficient to pierce the veil. Findings and Conclusion [19] Based on a meticulous review of the evidence and the submissions, this court makes the following findings: • The plaintiff's claim is fatally flawed due to defective pleadings and a failure to provide the necessary particulars for a cause of action in contract. • The plaintiff failed to adduce credible evidence to establish a valid and fully constituted contract with the defendant, Sawit Kinabalu Sdn Bhd. The evidence clearly points to contractual dealings being with the separate entity, Borneo Samudera. • The plaintiff did not prove a contract with the defendant and failed to establish a legal ground to disregard the subsidiary’s existence. • The claim is against the wrong party and must fail due to lack of privity of contract. Regardless of whether the subsidiary used or accepted the system, the defendant SKSB never became liable for payment because there was no privity of contract. The success or failure of the project only matters in a suit against the right party. • The plaintiff’s clarification that Techsaltants was merely a billing partner and the plaintiff did the implementation further weakens the claim’s foundational paperwork. If the billing partner was Techsaltants, and the work order came from Borneo Samudera, and the suit is against SKSB, the plaintiff’s cause of action is hopelessly confused. • If the plaintiff was appointed by Techsaltants, their proper cause of action is a claim against Techsaltants for payment, not against the ultimate client’s holding company, unless SKSB had guaranteed or directly contracted with the plaintiff. • The attempt by the plaintiff to prosecute its claim beyond its pleaded case is impermissible in law. • The plaintiff’s action against the defendant is against the wrong party, as demonstrated by the facts regarding server ownership and instructions originating from an employee of Borneo Samudera. • Allowing a subsidiary’s employee to use a parent company’s e mail domain does not automatically confer legal authority on that employee to enter a contract on behalf of the parent company. The plaintiff failed to prove the individual DW4 was authorised by the Board of the defendant to bind SKSB to the multi-million-ringgit contract. • Addressing a proposal, an offer to the defendant is irrelevant if the final acceptance, the purchase/work order was issued by the subsidiary Borneo Samudera. An accepted offer requires absolute and unqualified acceptance by the party sued, which the plaintiff failed to establish with SKSB. See section 7 of Act 136. [20] In light of the fundamental and multiple weaknesses in the plaintiff's case, particularly the failure to establish a privity of contract with the defendant, the claim by plaintiff must fail. Accordingly, this has found the claim by plaintiff claim against the defendant to be one without any legal basis. [21] As this Court finds that no contract existed between the plaintiff and the defendant, the prerequisite condition for the defendant’s counterclaim is not met. A decision shall not be made on matters not pleaded. By failing to provide the essential particulars, the plaintiff did not lay a sufficient legal foundation for its cause of action against the defendant, warranting a dismissal of the claim in limine. [22] While secondary to the privity issue, this court is justified in relying on the defendant’s case that the system was a failure because the plaintiff’s own evidence was contradictory. Its witness SP1 admitted that the instruction received was only to install an empty data file, directly contradicting the claim that the full licensed software was installed and completed, which is the basis for the RM1.345 million claim. The plaintiff had failed to adduce crucial evidence in the form of system logs, activation keys to prove that the 47 installations were operational. If the core functionality to wit integration with Microsoft GP was not delivered as represented, withholding final payment was justified, regardless of continued usage by the subsidiary. [23] In sum total, the plaintiff’s claim, despite the commercial facts of payment and usage, crumbled under the weight of fundamental legal requirements regarding who was sued and how the civil suit was commenced. The defendant’s position, centred on strict legal formality, is therefore well-justified. [24] The plaintiff’s attempt to use commercial conduct as substitute for contractual formality is unsuccessful. The dismissal of the claim stands firm on the grounds that the plaintiff had failed to establish privity of contract and to cure the fatal defect of vague and defective pleadings. [25] Hence, the final order is that the plaintiff's claim against the defendant is dismissed with costs of RM80,000. Ensuing from that, the defendant’s counterclaim is accordingly dismissed with costs of RM10,000, as the prerequisite for its activation, to wit a finding of contract between the parties has not been met. The order of costs is subject to an allocatur fee. [26] By way of comment, it could be observed that I was applying brakes particularly during cross-examination of defence witnesses by counsel for plaintiff. This was due to many prevailing factors, including the mode of trial which was hybrid, remotely and in open court; as well as the questioning mode was more like clarification of the case from the witnesses; giving impression to the court that counsel was only understanding and appreciating the case brought by them against the defendant, albeit being a wrong party, during the time of questioning. That led to the interruption by the court as lots of judicial time was taken up when counsel embarked on that mode. This court as bastion of justice, has to take proactive and concrete steps to avoid unwarranted prolixity during trial, especially so when the questions advanced does not jive with the fact in issue, relevant facts and the pleaded case before the court. [27] Back to the case, entirely, the broad grounds of judgment which was read out in open court, mirrors the reasoning as above. It is the following: For decision Case from SA Hg Crt RC Buminiaga Sdn Bhd v Sawit Kinabalu Sdn Bhd Broad grounds of judgment read out in open court