Saiful Safwan Bin Mohamed Ghazi v Goh Eng Shern (WA-22NCvC-179-03/2021)

GOH ENG SHERN (No. K/P: 870926-05-5611) [berniaga di bawah nama G GENESIS HOME DESIGN dengan No. Pendaftaran Perniagaan: 201203167998/002142675-K]

ONG ENG FEI (No. K/P: 800318-14-6153) [berniaga di bawah nama AO ID MAKER dengan No. Pendaftaran Perniagaan: 201503184125/NS0148215-T] ... DEFENDAN-DEFENDAN 01/12/2025 16:57:02 WA-22NCvC-179-03/2021 Kand. 51

This case was set for trial on 21.10.2025. Preceding the commencement of this trial, I have to deal with the Application for adjournment by the Plaintiff.

The writ was filed by the Plaintiff on 23.3.2021. During case management on 27.11.2024, trial dates were fixed from 21 to 23.10.2025 (3 days). On the first day of trial, counsel Syamil Bin Mohd. Othman of Messrs. Azizul Syamil & Co. mentioning on behalf of Messrs. Hadi & Hakim, Plaintiff’s solicitors informed Court as follows:

the counsel in charge, Nurmifatul Shuhadah Binti Mustafa is on medical leaves for 3 days (21 to 23.10.2025); and

the Plaintiff was absent and he is uncontactable.

Counsel for the Defendant objected to this application for adjournment stating that both the Plaintiff and the Plaintiff’s solicitors displayed a nonchalant and disinterested attitude in this case.

A ruling was made by this Court on the application for adjournment by Plaintiff (through counsel mentioning on behalf) as follows:

application for adjournment by a party is not as of right and it is entirely within the discretion of the court to which the application is made;

the application for adjournment shall be granted only with exceptional circumstances. The burden is on the Plaintiff to provide sufficient material to persuade the Court to exercise its discretion in his favour. (see Sheikh Abdul Aziz Sheikh Shukor & Ors. v. Sheikh Mustapha Sheikh Shukor & Ors [2004] 3 CLJ 108 Court of Appeal);

the practice of applying for an adjournment at the eleventh hour shall not be encouraged unless in very rare instances;

the Court is mindful of the Defendants’ counsel letters by email/registered post to inform both the Plaintiff’s counsel (Encl. 37) and the Plaintiff (Encl. 38) of the trial dates;

from the Court’s records, clearly there was a lack of response by the Plaintiff’s solicitors or the Plaintiff especially on the non-filing of the Plaintiff’s witness statement;

in this application for adjournment the Court notes that there is a lack of decorum whereby it is only prudent for Plaintiff’s counsel to write to Court and to obtain agreement of the Defendant’s counsel; and

in exercising the discretion empowered under Order 25 rule 1 (2) Rules of Court 2012, whereby “if, when the trial in an action is called on, one party does not appear, the Judge may proceed with the trial of the action or any counterclaim in the absence of that party”; and

the Court directs that the trial of the action and counterclaim to proceed forthwith in the absence of the Plaintiff or his solicitors.

The Plaintiff’s as reflected in the Amended Statement of Claim (Encl. 8 para. 21) states that the Defendants had breached the contract by supplying goods that were inferior quality and/or defective. The Plaintiff’s claim are as follows:

special damages amounting RM1,390,600.00;

general damages; and

interest of 5% on the above from date of filing to date of realisation.

The breakdown of the claim for special damages of RM1,390,600.00 are (a) RM810,000.00 as the contractual sum allegedly paid to the 1st Defendant and (b) RM580,600.00 as repair costs and refurbishments cost.

The 1st Defendant is Goh Eng Shern (trading as G Genesis Home Design) and the 2nd Defendant is Ong Eng Fei (trading as AO ID Maker). The Defendants state that the Plaintiff failed, neglected and/or refused to settle the balance contract amount of RM569,535.00 as follows:

Agreed contract sum: RM1,249,535.00

Minus amount paid: RM680,000.00

Balance: RM569,535.00

The Defendants counterclaim against the Plaintiff are as follows:

the amount of RM569,535.00 to be paid to the 2nd

pre judgment interest of 5% per annum from date of filing of amended counterclaim (21.7.2025) till date of judgment;

post judgment interest of 5% per annum from date of judgment to realisation; and

costs of this action.

The Defendants called two witnesses to testify in this trial as follows:

Goh Eng Shern (Anson) DW1 (Witness Statement

Ong Eng Fei (Nick) DW2 (Witness Statement Encl. 26).

The cause papers filed in this action are as follows: No. Documents Encl. 1 Amended Pleadings 41 2 Bundle of Documents B1, B2 3 Defendants’ Additional Bundle of Documents B3 4 Statement of Agreed Facts 17 5 Agreed Issues To Be Tried 18 6 Notes of Proceedings 46 7 Written Submissions and Bundle of Authorities 47, 48

The Plaintiff is the registered proprietor of a semi detached house held under H.S.(M) 9385, PT No. 37192, Bandar Batu 18 Semenyih, Hulu Langat, Negeri Selangor, whereas his wife, Nur Fareena Binti Mohd Azmir is the registered proprietor of a semi detached house held under H.S.(M) 9384, PT No. 37191, Bandar Batu 18 Semenyih, Hulu Langat, Negeri Selangor.

Both properties are adjacent to each other and were renovated to become a single unit bearing postal address at No. 1 and 3, Jalan Villa Perdana 6, Taman Villa Perdana 43000 Kajang, Selangor.

The 1st Defendant is the sole proprietor of G Genesis Home Design (G Genesis), a business engaged in interior design and renovation works, with particular emphasis on the supply and installation of cabinetry and related woodwork.

DW1 explained in his witness statement (Q5 (iv), 6 and the clarification questions by the Court) that he was also a business partner of the 2nd Defendant in AO ID Maker at all material times. He left AO ID Maker for while his wife (Chua Swee Yen) continued as a business partner with the 2nd Defendant. The 1st Defendant resumed his partnership with the 2nd Defendant in AO ID Maker subsequently when the business licence was renewed. AO ID Maker’s nature of business is the same as that of G Genesis.

DW1 explained in his witness statement, which was corroborated by DW-2 in his Witness Statement, that on or around mid-2015, the Defendants were introduced to the Plaintiff by the Plaintiff’s contractor, Lok Kong Fatt (known as Kong Ming).

At the material time, extensive structural renovation works were ongoing at the said premises which included wet works. The renovation works also involved a major structural change to the said Premises, wherein the two (2) units of semi detached house were converted into a single unit which appeared like a bungalow. Kong Ming was the contractor engaged to carry out the extensive structural renovations at the said Premises.

Upon introduction, the Plaintiff appointed G Genesis to carry out part of the renovation works at the said Premises, which included designing, supply and installation of cabinets and installation of wooden panels on the wall (wainscoting).

On or about 22.1.2016, the Plaintiff agreed and confirmed the quotation (Quotation No. 1047-5) dated 22.1.2016 for the sum of RM1,042,880.00 with the payment terms (B2 pp. 209-212) as follows:

30% to be paid upfront before commencement of the said works;

subsequent payments of 20%, 25% and 20% respectively to be paid according to the progress of work done; and

5% upon completion of the said works.

DW1 explained in his witness statement that upon the Plaintiff’s request and on a goodwill basis, the Defendants did not charge the Plaintiff for all plans and drawings prepared, including the floor plans, front and side elevation and the virtual graphics for the interior designs (artist’s impression). Although the quotation dated 22.1.2016 was not signed by the Plaintiff, the Plaintiff had by conduct agreed and accepted the said quotation.

The contract between the Plaintiff and G Genesis was transferred to AO ID Maker. DW1 and DW2 explained in their witness statements that it was AO ID that carried out the said works for the Plaintiff.

On or about 25.1.2016, which was approximate to the time the contract was transferred to AO ID, the Plaintiff made an upfront payment for the sum of RM280,000.00 to G Genesis (on behalf of AO ID) through Maybank Islamic cheque (Cheque No. 020521) (B1 p. 16)

At all material times, time was not of the essence for completion of the said works as the works to be carried out by the Defendants would very much depend on the completion of the Wet Works which was still ongoing. Further, the completion period was never expressly stated in any of the Defendants’ quotations.

Upon receiving of the Upfront Payment from the Plaintiff, the Defendants proceeded to order and purchase materials and furniture according to the artist’s impression which was agreed and approved by the Plaintiff.

The Defendants explained that apart from ordering and purchasing materials and furniture, there were nothing else that could be done by the Defendants as the wet works were still ongoing at the said premises as follows:

exact measurements for cabinets could only be obtained after floor tiles are laid and plaster ceilings are installed; and

cabinets and/or furniture could only be affixed to the wall once the cement works or paint was completely dry.

Therefore, the delays by the Plaintiff’s contractor to complete the wet works, would affect the completion of said works as well.

While the Defendants were waiting for the wet works to complete, the Plaintiff had from time to time changed his mind towards the interior design despite he had agreed and confirmed the revised artist’s impression dated 8.1.2016. The Defendants had consistently endeavoured to comply to the best of their ability and made changes to the artist’s impression (B2 pp 88-100, 101-116 and 117-119) as follows:

revised artist’s impression dated 1.2.2016;

revised artist’s impression 14.6.2016; and

revised artist’s impression 19.12.2016.

Following the revisions made to the design as listed above, the quotations for the said works had to be amended. Several revised quotations (B2 pp 202-204, 205-208 and 209-212) were issued to the Plaintiff as follows:

Quotation No. 1047-5 dated 22.1.2016 for the sum of RM920,060.00;

Quotation No. 1047-5 dated 22.1.2016 for the sum of RM730,640.00; and

Quotation No. 1047-5 dated 22.1.2016 for the sum of RM1,042,880.00.

Meanwhile, the Plaintiff had on or about 28.6.2016 insisted for the Defendants to start the said Works although the Wet Works were still ongoing and far from completion.

Besides attending to the changes in design requested by the Plaintiff, the 1st Defendant had also upon the Plaintiff’s request travelled to Guangzhou, China with the Plaintiff and Kong Meng from 3.3.2017 to 7.3.2017 to purchase floor tiles although the installation of floor tiles was not within the Defendants’ job scope. However, the Defendants obliged out of goodwill.

After the Plaintiff’s visit to China, the Plaintiff requested the Defendants to recommend an architect to draw up plans for the said Premises as the Plaintiff intended to convert the two (2) semi detached units into a single unit to look like a bungalow.

The Defendants were at all material times aware that the Plaintiff’s intention to combine the two semi detached units into a single integrated structure was in contravention of the applicable rules, regulations, and by-laws governing building and renovation works. The Defendants expressly advised the Plaintiff of these regulatory prohibitions and the potential consequences thereof. Notwithstanding such advice, the Plaintiff insisted on proceeding with the said modification, thereby acting entirely at his own risk and contrary to the Defendants’ professional guidance.

In due course, and at the Plaintiff’s own request, the Defendants recommended the engagement of an architect, namely Puan Rosmah binti Ramlan of Lakar Reka Sdn Bhd, to undertake the necessary architectural works and submissions. The architect’s professional fees, amounting to RM42,350.00, were duly incorporated into the Defendants’ quotation as specifically instructed by the Plaintiff. Despite this, the said fees remain outstanding and unpaid to date, thereby further evidencing the Plaintiff’s default in honouring his financial obligations under the contract. (B2 pp 202-204, 205-208 and 209-212)

The Plaintiff subsequently received two (2) compounds dated 16.7.2018 from the Kajang Municipal Council (MPKj) for the sum of RM12,500.00 each for the construction of illegal structure without permit and/or approval from the authorities. (B2 pp 185 and 186).

The Defendants have explained in their respective witness statements that, following the Plaintiff’s trip to China, the Plaintiff decided to make substantial alterations to the interior design originally agreed upon for the said Premises. In consequence, the Plaintiff made, inter alia, the following additional requests:

On or about 20.4.2017, the Plaintiff demanded that the Defendants provide a complimentary shoe cabinet, alleging that such concession was warranted due to purported delays by the Defendants in completing the Works. The Defendants firmly dispute this allegation, as no such delay had occurred and the request was in fact gratuitous and beyond the scope of the contractual agreement; and

On or about 21.4.2017, the Plaintiff instructed the Defendants to replace all wood cornices with PVC cornices after the Plaintiff had seen similar PVC cornices during his trip to China and personally preferred the aesthetic appearance of the PVC finish. This constituted a material variation from the original design and necessarily impacted cost, materials, and timeline.

As a direct consequence of the Plaintiff’s numerous design variations, additional costs and expenditures were necessarily incurred. By that stage, the initial upfront payment of RM280,000.00 had already been fully utilised to procure materials and furniture in accordance with the previously approved artist’s impression. The Defendants were therefore compelled to absorb the additional expenses arising from the Plaintiff’s subsequent changes.

Verbal discussions were held between the parties concerning the need to revise the contract price to reflect the Plaintiff’s additional requests and variations. However, the Plaintiff refused to agree to any adjustment of the quoted price notwithstanding that the cost increases were attributable entirely to his own instructions and design modifications.

On or about 17.5.2017, the floor tiles sourced by the Plaintiff from China arrived at the said premises. However, the tiles could not be installed as wet works were still in progress. Notwithstanding the ongoing state of the wet works, the Plaintiff insisted that the Defendants complete all works within a period of five (5) months.

The Defendants, who were frequently present at the site to monitor and supervise the wet works at the Plaintiff’s request despite such supervision falling outside the Defendants’ contractual scope, were fully aware that the Plaintiff’s five-month completion timeline was untenable. The said timeline was unrealistic given the stage and progress of the wet works then being undertaken by the Plaintiff’s own contractors.

The Defendants ultimately had no option but to acquiesce to the Plaintiff’s imposed time frame, as they were concerned that refusal to do so would jeopardise their prospects of receiving payment for the works already completed and ongoing. Despite the ongoing wet works and active wall hacking works carried out by the Plaintiff’s contractors, the Plaintiff insisted that the Defendants commence installation of the wooden wall panels. The Defendants experienced significant difficulty in carrying out such installation under these conditions, as the environment was not yet suitable or ready for such finishing works.

At the same time, the Plaintiff continued to introduce further design alterations. In response, the Defendants prepared a Revised Artist’s Impression dated 31.5.2017 to reflect and accommodate the Plaintiff’s latest instructions and preferences, demonstrating the Defendants’ continued efforts to comply with the Plaintiff’s changing requirements. (B2 pp 120-126)

Throughout the month of May 2017, the Defendants carried out the said works to the extent that they could while the Plaintiff was still making changes to the interior design at least once or twice weekly. Due to the frequent changes to the interior design, additional costs and expenses were incurred and borne by the Defendants. The completion of the said works was also delayed as the Defendants were unable to carry out their works in accordance with the planned timeline.

The Plaintiff had also instructed for the Defendants to affix the cabinets to the wall before the cement was completely dry as the Plaintiff intends to expedite the renovation progress as the renovation works in general was taking too long to complete. Warnings were given to the Plaintiff about the possibility of cracks to occur but the Plaintiff had insisted for the Defendants to proceed with the installation. The Defendants complied to the Plaintiff’s instructions and proceeded to install the cabinets and wall panels at certain areas of the said premises.

On or about 17.9.2017, while the wet works were still ongoing, the materials and cabinets which had been procured by the Defendants were delivered to the said Premises. This was in addition to the cabinet carcasses that had already been fabricated as early as June 2016 in accordance with the Plaintiff’s earlier approved specifications. Notwithstanding the incomplete state of the wet works, and in order to avoid further delay and in compliance with the Plaintiff’s instructions, the Defendants proceeded to carry out the installation of the following wall panels and cabinets at the relevant areas of the said Premises:

Gym, study room, two (2) guest rooms on 18.9.2017;

Karaoke room on 24.10.2017;

Corridors on 2nd and 3rd floor and master bedroom on 25.10.2017;

Entire 3rd floor and children’s rooms on 5.11.2017;

Ground floor piano area on 5.12.2017;

Dry and wet kitchen on 10.12.2017; and

Entire ground floor including the corridors and the helper’s room on 15.12.2017.

The Plaintiff was satisfied with the Defendant’s work progress, wherein the cabinets around the said Premises were installed and affixed within two (2) months. On 13.10.2017, the Defendants issued a quotation (Quotation No. 1047-5) dated 13.10.2017 for the sum of RM1,249,535.00 to the Plaintiff. The Plaintiff agreed and accepted the fees quoted therein. (B1 pp 9-12]

The Defendants continued to diligently carry out the said Works from 18.9.2017 until the month of February 2018. During this period, the Defendants accorded full priority to the project, deploying their full workforce to the said premises in order to expedite progress. This was done with the genuine expectation that substantial portions of the works would be completed before the Chinese New Year period, and with the anticipation that corresponding payments would thereafter be forthcoming from the Plaintiff in accordance with the parties' understanding.

On or about 30.12.2017, the Defendants had completed the installation of the wall panels at the living room area and had applied spray paint finishing in accordance with the Plaintiff’s prior instructions and chosen design. Subsequently, however, the Plaintiff changed his mind and expressed dissatisfaction with the design, stating that he no longer favoured the aesthetic and did not wish to have the gold-coloured cornices which he had originally selected.

This amounted to yet another variation introduced solely at the Plaintiff’s behest, after the works had already been completed in accordance with his earlier specifications. The Plaintiff then instructed the Defendants to remove all the cornice installed and painted at the living room area.

The Defendants complied with the instructions by replacing new cornice and painted the same with a different colour. Due to the replacement work, additional work was done which then resulted in additional costs being incurred and had further delayed the completion of the said Works.

The Plaintiff apparently threw a tantrum for no reason and not because of the said Works carried out by the Defendants. He was reluctant to take into account of any additional costs incurred from the changes made.

Notwithstanding the foregoing, and in recognition of the progress of the Works carried out by the Defendants, the Plaintiff made several part payments amounting in total to RM400,000.00. The said payments were made on various dates, particulars of which are as follows:

RM100,000.00 was paid by way of cheque payment to

RM100,000.00 was paid by way of cheque payment to the 2nd Defendant (Account No. 1142360825353) on 14.12.2017;

RM100,000.00 was paid by way of cheque payment to the 2nd Defendant (Account No. 1142360825353) on 30.1.2018; and

RM100,000.00 was paid by way of cheque payment to Goh Chin Sing (Account No. 512521150268) on 26.1.2018.

Some of the abovementioned payments above were made to one Goh Chin Sing, the 1st Defendant’s father, who received the payment on behalf of AO ID as instructed by the Defendants. Taking into account of the upfront payment and the part payments abovementioned, the Plaintiff paid AO ID a sum of RM680,000.00. There is still an outstanding sum of RM569,535.00 due and payable by the Plaintiff to the Defendants to date based on the final agreed Final Quotation dated 13.10.2017 for RM1,249,535.00.

In early February 2018, the Plaintiff summoned the Defendants to the said Premises and, upon arrival, began kicking the cabinets that had been installed, alleging that cracks had appeared. In truth, the cracks on the cabinets arose from several factors entirely beyond the Defendants’ control, including:

the wet works carried out by the Plaintiff’s contractor, Kong Meng, which were not performed in accordance with proper work standards or industry practices;

the foundation of the said Property, which was inadequately constructed by the Plaintiff’s contractor, resulting in significant soil settlement;

frequent use of hammer drills and vibrators by the Plaintiff’s contractor during renovation works, causing vibrations that compromised the structural integrity of the installed cabinets; and

the wall surfaces on which the cabinets were installed were either improperly prepared or insufficiently dried, as the Plaintiff insisted on commencing cabinet installation while the wet works were still ongoing.

Despite the cracks were not attributed to the Defendants, the Defendant had still rectified and repaired the damages without charging any additional costs. Therefore, the Defendants were forced to bear additional workload as they were carrying out the said Works and rectification works simultaneously, including attending to recurring issues such as warping of the wood and boards.

Apart from the workload, the Defendants had also absorbed the costs of purchasing gold-coloured doorknobs to the liking of the Plaintiff upon the Plaintiff’s instruction. In February 2018, the Defendants had also carried out the following works before the

Installed shoe rack on 3.2.2018;

Ordered aquarium on 5.2.2018;

Installed the aquarium cabinet on 8.2.2018; and

Attended to the changes and amendments of the interior design and touch-up works on 12.2.2018.

Upon completion of the works listed above, the Defendants notified the Plaintiff, and the Plaintiff had full knowledge that AO ID Maker will be closed for 10 days during the Chinese New Year. On or around the 5th or 6th day of Chinese New Year, the Plaintiff instructed the Defendant to return and continue with the said Works at the said Premises. The Defendants and their workers had no other option apart from complying with the Plaintiff’s instructions.

After the Defendants and their workers resumed the said Works, the Plaintiff had on 26.2.2018 instructed the Defendants to remove the cornice installed on the ground floor and to replace it with other designs. The Plaintiff had constantly urged the Defendants to complete the said Works as the Plaintiff intended to move into the said Premises as soon as possible.

In April 2018, the Defendants had completed the said Works and assisted the Plaintiff to supervise the soft finishing works, including arranging sofa, hanging curtains etc, which were completely not within the Defendants scope of work. After the soft finishings were completed, the Defendants then touched up the areas in the said Works which were scratched or damaged by other contractors.

The Defendants had also done additional works for the Plaintiff on a goodwill basis, including:

Installing soundproofing for the karaoke room; and

The 2nd Defendant climbed up to the roof of the karaoke room to insert rockwool.

When the Defendants completed the said works, the final works apparently was far from the Plaintiff’s expectations. This was actually due to the structural problems and wet works of the said Premises. However the Plaintiff refused to accept that to the case.

The Wet Works were finally completed around May 2018 and quality control was carried out on the Defendants’ said Works. In July 2018, the Defendants visited the said Premises for the Plaintiff’s open house and photographs of the interior were taken. (B2 pp 223-294)

Even after the Defendants have completed the said Works including touching up and rectifying any scratch and/or damages, the Defendants even provided an “after-sale service”, wherein contractors were sent to the said Premises to replace the glass wall panel in the karaoke room and living room which cracked on its own due to soil settlement. 62 All replacements, rectification and repair works continued throughout the months of July and August 2018, not due to the Defendants’ doing but the Plaintiff’s own incompetence. In August 2018, the Defendants rectified the cracked cabinets most probably due to structural problems as there were also floor tiles that have cracked.

While monies were still owing by the Plaintiff to the Defendants, on or about 6.10.2020, approximately two (2) years after the said Works were completed, the Plaintiff had through his solicitors, Messrs. Hadi & Hakim issued a demand letter dated 6.10.2020 (“Demand Letter”) to G Genesis and AO ID Maker to demand for damages allegedly suffered by the Plaintiff due to AO ID Maker’s failure to supply materials as agreed and to rectify the damages and defects of the materials supplied. 64 In the Demand Letter, the Plaintiff alleged that he was forced to bear the costs of RM580,600.00 to remove and replace all the defective and damages items supplied and installed by the Defendants. In response, the Defendants through a letter dated 20.10.2020 denied the Plaintiff's allegations in the Demand Letter. The Defendants explained in their evidence that although the response letter was issued under the letterhead of G Genesis, the letter was issued on behalf of both G Genesis and AO ID Maker. (B2 p 222)

At all material times, the Defendants had sufficiently notified and warned the Plaintiff of the possible effect of damages that may arise if the cabinet were installed before completion of the Wet Works. The Plaintiff opted to disregard the Defendant’s advice and warnings and insisted for the said Works to be carried out immediately while the Wet Works were still ongoing, especially the hacking of walls which would clearly affect any fixtures installed on the wall.

The Defendants had even rendered rectification and reparation services to the Plaintiff without any charges imposed even when the various damage was not attributed to the Defendants. There was also never any terms on defect liability period between parties.

Furthermore, such reparation, rectification and/or reparation works were carried out by the Defendants under the circumstance where there is still a sum of RM569,535.00 that remains outstanding and payable by the Plaintiff.

On 10.5.2021, the Plaintiff, dissatisfied with the Defendants’ responses to his repeated demands, commenced the present action against the Defendants seeking to recover alleged rectification and reparation costs amounting to RM580,600.00. Such claims are entirely unfounded, lacking merit, and wholly unsupported by the factual matrix of the case.

The Defendants have, since 2018, completed the Works in accordance with the Plaintiff’s instructions and have accordingly counterclaimed for the outstanding sum of RM569,535.00 in respect of payments due for the said Works, which remain unpaid despite repeated demands

The Defendants submit that the Plaintiff’s claim ought to be dismissed with costs based on his non appearance and the lack of merits in his case and that there was no challenge to the Counterclaim as follows:

The Plaintiff has failed to discharge his burden of proof to prove his case against the Defendants as the Plaintiff and his solicitors did not show up during the trial and no witness statement was filed; and

There was no cross examination conducted by the Plaintiff or his solicitors to challenge the Defendants’ defence and the Defendants’ Counterclaim.

Based on the evidence of the Defendants (DW1 and DW2) and having considered the Defence and the Counterclaim in the light of the Plaintiffs case as reflected in the Statement of Claim, I find that the Plaintiff failed to establish and/or prove his case against both the Defendants.

By reason of the Plaintiff’s or his solicitor’s absence, the Plaintiff is thereby construed to have closed his case without any evidence being adduced before this Court. Furthermore, the witness statement by the Plaintiff was never filed.

Pursuant to sections 101 and 102 of the Evidence Act 1950 (Act 56) the burden of proof lies on the party who asserts a fact. Section 101 EA reads as follows: “(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.

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 EA reads as follows: “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.”

The foregoing provisions are clear and unambiguous. The Court is inclined to agree with the Defendants’submissions that the Plaintiff, having alleged that the Defendants having supplied defective, substandard, or low-quality materials which purportedly caused him to incur losses amounting to RM580,600.00 for repair and rectifications now bears the onus of proving such allegations.

Proof may be established through his witness statement, oral testimony, or supporting documentary evidence, in accordance with the requirements prescribed under the law. Evidence must be proven through examination of witnesses in the open Court pursuant to Order 38 rules 1, 2 and 3 ROC 2012.

The Court of Appeal in the case of Goh Bak Ming v. Yeoh Eng Kong & Other Appeals [2019] 1 CLJ 461 decided as follows: “[33] It is trite that the party who desires the court to give judgment as to any legal right or liability bears the burden of proof (s. 101 (1) of the Evidence Act 1950). The burden of proof on that party is twofold:

the burden of establishing a case; and

(ii) the burden of introducing evidence.”

The burden of proof lies on the party throughout the trial. The standard of proof required of the plaintiff is on the balance of probabilities. The evidential burden of proof is only shifted to the other party once that party has discharged its burden of proof. If that party fails to discharge the original burden of proof, then the other party need not adduce any evidence. In this respect, it is the Plaintiff who must establish his case. If he fails to do so, it will not do for the Plaintiff to say that the Defendants have not established their defence. (Selvaduray v. Chinniah [1939] 1

Be that as it may, the Court is mindful that apart from the failure of the Plaintiff to prove his case, the absence of the Plaintiff and/or his solicitors have also resulted in the Defendants not being cross examined apart from clarifications sought by the Court from the Defendants respectively. (see Encl. 46 Notes of Proceedings at pp 45-55 and 63-66)

The reasons for Questions by Court are twofold:

to seek further explanation or further clarification from that particular witness; and

to assist the Court in arriving at a fair and just decision.

Needless to say, this tantamounts to an acceptance of the Defendants’ testimony as illustrated in the Federal Court case of Wong Swee Chin v. Public Prosecutor [1981] 1 MLJ 212 as follows: “… there is a general rule that failure to cross-examine a witness on a crucial part of the case will amount to an acceptance of the witness’s testimony.”

The Court of Appeal in the case of Aik Ming (M) Sdn Bhd & Ors v. Chang Ching Chuen & Ors and Another Appeal [1995] 2 MLJ 770 decided as follows: “(4) It is essential that a party's case be expressly put to his opponent's material witnesses when they are under cross-examination. A failure in this respect may be treated as an abandonment of the pleaded case and if a party, without valid reasons, refrains from doing so, then he may be barred from raising it in argument.”

The Plaintiff is deemed to have acceded to the facts pleaded in the pleadings (Defence and Counterclaim) to which the same remains unrebutted or unchallenged as follows:

the Defendants had completed all the said works and the total amount paid by the Plaintiff to the Defendants to date is only RM680,000.00 as opposed to the full contract sum of RM1,249,535.00; and

the damages and cracks that occurred in the cabinets were not the Defendants’ fault and the allegations that the Defendants supplied and installed low quality cabinets are untrue and baseless.

Therefore, the Defendants are not liable towards the alleged damages and loss suffered by the Plaintiff for the repairs and refurbishment costs totalling to the sum of RM580,600.00.

The Defendants in their Written Submissions (para. 127.2) acceded that a total of RM680,000.00 was paid for the said works as reflected in B1 pp. 16-20: No. Amount (RM) Date/Bank Reference 1 280,000.00 25.1.2016 Maybank Islamic B1 p. 16 2 100,000.00 1.7.2016 CIMB B1 p. 17 3 100,000.00 14.12.2017 Maybank Islamic B1 p. 18 4 100,000.00 14.12.2017 Maybank Islamic B1 p. 19 5 100,000.00 30.1.2018 CIMB B1 p. 20

The Federal Court in the case of Tekun Nasional v. Plenitude Drive (M) Sdn Bhd and another appeal [2021] 6 MLJ 619 decided as follows: “[66] It is trite law that the party claiming damages, special or general, bears the burden of proving the fact and quantum of damages suffered.”

Therefore, under no circumstances that the Defendants should be held liable for the purported damages and cracks, if at all which appear as usual wear and tear after several years and to compensate a sum of RM580,600.00 which was never incurred by the Plaintiff. In this respect the Defendants’ counsel was deprived of the opportunity to cross examine the Plaintiff nor his witnesses at the trial.

As such, the Plaintiff’s allegations in his Statement of Claim ought to be dismissed on a balance of probabilities. Based on the foregoing, the Plaintiff’s claim against the Defendants is dismissed with costs.

In the absence of the Plaintiff and his solicitors at trial, the Defendants’ Counterclaim remains unchallenged and uncontroverted.

The Defendants’ witnesses were not cross-examined, and thus their evidence remains unrebutted in its entirety. Accordingly, the facts establishing the Defendants’ case must be accepted as proven on a balance of probabilities.

There is also no evidence by the Plaintiff in the Bundle of Documents to show that the Plaintiff had made the payment of RM569,535.00 or any part thereof to the Defendants for the said works.

Therefore, the Plaintiff ought to be held liable towards the outstanding sum of RM569,535.00 after the deduction of RM680,000.00 paid by the Plaintiff. The Defendants referred to the case of BMG Global Sdn Bhd v. Juang-Antara Bina Sdn Bhd [2025] CLJU 1991 High Court. Therefore, the Defendants’ Counterclaim of RM569,535.00 ought to be allowed.

The Court makes the following findings in a nutshell:

the Plaintiff is deemed to have acceded to the facts pleaded in the pleadings (Defence and Counterclaim) to which the same remains unrebutted or unchallenged;

the Defendants are not liable towards the alleged damages and loss suffered by the Plaintiff for the repairs and refurbishment costs totalling to the sum of RM580,600.00;

the Plaintiff is not entitled for the refund in respect of the Statement of Claim (Bundle of Pleadings) in paragraph 12.2 for RM100,000.00 paid to De Concept Homeware Sdn. Bhd. and paragraph 12.7 for RM30,000.00 paid to

there was no evidence whatsoever by the Plaintiff to show that the Plaintiff had made the payment of RM569,535.00 or any part thereof to the Defendants; and

the facts establishing the Defendants’ Counterclaim must be accepted as proven on a balance of probabilities.

The Court finds that on the totality of the evidence adduced by the Defendants’ witnesses, the Plaintiff’s claim for special damages amounting RM1,390,600.00 and general damages against the Defendants are hereby dismissed with costs.

The Court finds that the Defendants’ Counterclaim is proven on the balance of probabilities. Consequently, the Plaintiff is liable towards the outstanding sum of RM569,535.00 payable to AO ID Maker, company of the 2nd Defendant.

Based on the aforesaid reasons, the Court hereby decides that:

the Plaintiff’s claim of RM1,390.600.00 in Encl. 8 prayer (i)

(ii) and (iii) are hereby dismissed with costs of RM30,000.00 (subject to allocatur); and

the Defendants’ Reamended Counterclaim in Encl. prayer 17.1, 17.2, 17.3 and 17.4 is allowed with costs of RM30,000.00 (subject to allocatur). Dated: 25 November 2025 sgd ………………………………………….. (EDDIE YEO SOON CHYE) Judicial Commissioner High Court of Malaya Kuala Lumpur Counsel for the Defendants: Gabriel Daniel & Sabrina Chu Soo Woon Messrs. Paul Ong & Associates Kuala Lumpur. Counsel for the Plaintiff: Messrs. Hadi & Hakim Kuala Lumpur. (absent)