Samudera Wibawa Sdn Bhd v Prudence Energy Sdn Bhd (MA-12BNCvC-11-12/2025)

This is an appeal against the decision of the learned Sessions Court Judge at Melaka delivered on 5 December 2025 in Civil Suit No. MA-A52NCvC-54-07/2023. By that decision, the claim of the plaintiff in the court below, Prudence Energy Sdn Bhd, was allowed in the principal sum of RM102,550.00 together with interest at 5% per annum from the date of judgment until full settlement, and costs of RM10,000.00. The counterclaim of the defendant in the court below, Samudera Wibawa Sdn Bhd, for losses said to be in the order of RM144,180.54, was dismissed with costs of RM9,000.00.

The appeal is brought by Samudera Wibawa Sdn Bhd ("Samudera Wibawa"), and is resisted by Prudence Energy Sdn Bhd ("Prudence Energy"). For convenience I shall refer to the witnesses as they were designated at trial: SP1 for Liew Foo Cheong, the director of Prudence Energy; SD1 for Iswandy, a marine surveyor; SD2 for Yang Xiaowen, the director of Samudera Wibawa; and SD3 for Soon Ka Siang, the contractor formerly engaged by Samudera Wibawa.

The dispute arises out of an oral agreement made in March 2023 by which Samudera Wibawa engaged Prudence Energy to undertake repair works to the bottom plate of a vessel known as "Wei Yang 016", the agreed sum being RM120,000.00. Of that sum, RM60,000.00 was paid; the balance of RM60,000.00 was withheld. Two further items of work were the subject of separate quotations issued by Prudence Energy on 18 May 2023 and 23 May 2023, in the sums of RM32,800.00 and RM12,000.00 respectively, of which the recoverable balances are RM30,800.00 and RM11,750.00. The aggregate sum claimed and awarded by the Sessions Court was therefore RM102,550.00.

The real controversy on appeal has three principal dimensions. The first is whether the two further items of work fell within the scope of the original contract sum or were chargeable separately. The second is whether payment of the balance of RM60,000.00 was conditional upon the vessel being launched and confirmed to be free of leaks, and whether time was of the essence such that completion was required by 31 May 2023. The third is whether the counterclaim was rightly dismissed for want of proof. Subsidiary issues are raised in respect of the exclusion of a Bottom Plate Renewal Survey Report tendered through SD1, the adverse inference drawn under s. 114(g) of the Evidence Act 1950 in respect of the non-calling of one Xiao Zhang, and the assessment of the credibility of the principal witnesses.

The materials before me consist of the Memorandum of Appeal as amended (Enclosure 9 of the Supplemental Record of Appeal), the Record of Appeal in three volumes including the Notes of Proceedings, the Supplemental Record of Appeal containing the Grounds of Judgment of the learned Sessions Court Judge dated 5 December 2025, and the written submissions of both parties including the Appellant's Submission-in-Reply dated 1 May 2026. References hereafter to the Grounds of Judgment are to the Grounds of Judgment of the learned Sessions Court Judge as appearing in the Supplemental Record of Appeal; references to the Notes of Proceedings are to the relevant volumes of the Record of Appeal.

The appeal lies from findings of fact reached after a full trial conducted over seven hearing days between 4 April 2024 and 6 October 2025. It must accordingly be approached against the well-established threshold for appellate intervention with findings of fact, which conditions the manner in which each of the grounds advanced is to be evaluated.

The vessel "Wei Yang 016" was undergoing repair works at a shipyard. By a written contract dated 23 August 2022, Samudera Wibawa had engaged SD3 to carry out hull and bottom-plate repair works for the contract sum of RM250,000.00. A supplementary contract was entered into on 19 January 2023 in the sum of RM60,000.00. By February 2023, Samudera Wibawa was dissatisfied with the progress of those works and elected not to continue with SD3. By that point, on Samudera Wibawa's own evidence, RM236,720.00 had already been paid to SD3.

In or about late March 2023, Samudera Wibawa engaged Prudence Energy to take over the repair of the bottom plate of the vessel. The agreement between the present parties was oral. SP1 gave evidence that he visited the site three or four times in the company of one Xiao Zhang, who was Samudera Wibawa's site representative, before the price of RM120,000.00 was agreed. The contract sum was agreed between SP1 and SD2. Prudence Energy commenced works on or about 27 March 2023.

SD2 is a national of the People's Republic of China and was, for most of the material time, not present at the site in Malaysia. SD2 acknowledged in cross-examination that he was reliant upon Xiao Zhang for updates on the progress of the works. Xiao Zhang was not called as a witness at the trial below.

The performance of the works was attended by frequent communication between SP1 and SD2 by way of voice messages over WhatsApp. Translated transcripts of those messages were placed before the Sessions Court as part of the agreed documentary record, and form a substantial part of the contemporaneous evidence.

On 26 April 2023, Samudera Wibawa had paid RM60,000.00 against the agreed sum of RM120,000.00. The balance of RM60,000.00 was unpaid. On 18 May 2023, Prudence Energy issued a quotation in the sum of RM32,800.00 in respect of additional steel-plating and propeller-related works ("the first quotation"). One item within the first quotation, valued at RM2,000.00, related to "touch up for the side protection pipe/plate at high level zone" and was found by the Sessions Court not to have been performed. The recoverable amount under the first quotation is therefore RM30,800.00. On 23 May 2023, a further quotation was issued in the sum of RM12,000.00 in respect of additional plate works at the bottom of the vessel ("the second quotation"). One item within the second quotation, valued at RM250.00, was related to welding works which could not be carried out because the vessel was wet at the material time. The recoverable amount under the second quotation is therefore RM11,750.00.

Invoices in respect of the additional works were issued in May 2023. They were not paid. The works were not completed by the end of May 2023. By WhatsApp message dated 7 June 2023, SD2 told SP1, in a translation which has not been challenged, "I don't even need it by the end of the month. I don't need it. ... I can wait until my ship is in the water then only do it, no rush." By 8 June 2023, on the evidence of SP1, Prudence Energy had ceased work and the vessel was not in a condition to be launched, the engine and generator-set being separately not ready.

Prudence Energy thereafter demanded payment of the balance of RM60,000.00 under the original contract and the further sums of RM30,800.00 and RM11,750.00 under the additional quotations, the global figure of RM102,550.00. Samudera Wibawa resisted the demand and counterclaimed for losses said to consist of slipway rental in the sums of RM16,200.00 and RM9,300.00, generator-set rental in the sum of RM21,500.00, local worker fees in the sums of RM8,450.00 and RM3,600.00, and salaries paid to workers brought from China in the sums of RM59,116.41 and RM26,014.13, in the global sum of RM144,180.54.

At trial, Prudence Energy called SP1 alone. Samudera Wibawa called three witnesses: SD1, who attended the vessel on 12 June 2023 and prepared a Bottom Plate Renewal Survey Report marked IDD-1; SD2, the director of Samudera Wibawa; and SD3, the previously engaged contractor.

In the course of the trial, the learned Sessions Court Judge declined to admit IDD-1 into evidence. The reason given, at paragraph [22] of the Grounds of Judgment, was that SD1 had originally been brought as an expert witness, but the requirements of Order 40A of the Rules of Court 2012 had not been complied with, and SD1 himself, with the concurrence of counsel for Samudera Wibawa, had accepted that he was not being tendered as an expert.

In the Grounds of Judgment, the learned Sessions Court Judge made the following findings, among others, which are material to this appeal:

the additional works the subject of the quotations dated 18 and 23 May 2023 were not within the scope of the original contract sum of RM120,000.00, and were carried out at the request of Samudera Wibawa through SD2 (paragraphs [27] to [30] of the Grounds of Judgment);

(ii) Samudera Wibawa had enjoyed the benefit of those additional works and had not, prior to litigation, raised any genuine objection to the works or to the price (paragraph [29] of the Grounds of Judgment);

(iii) there was no agreement that the works were to be completed by 31 May 2023, and no such deadline had been effectively communicated to Prudence Energy at the inception of the contract (paragraphs [21] and [50] of the Grounds of Judgment);

(iv) the WhatsApp message of 7 June 2023 from SD2 to SP1 evidenced that Samudera Wibawa had itself extended time and had told Prudence Energy that there was no need for the works to be completed by the end of May or early June 2023 (paragraph [25] of the Grounds of Judgment);

Prudence Energy had been unable to continue with the works because of Samudera Wibawa's refusal to make payment for the additional works, payment for which Samudera Wibawa had earlier promised (paragraph [24] of the Grounds of Judgment);

(vi) Xiao Zhang was a material witness within the power and procurement of Samudera Wibawa; no explanation was given for not calling him; and an adverse inference under s. 114(g) of the Evidence Act 1950 was drawn to the effect that his evidence, if given, would have been unfavourable to Samudera Wibawa (paragraphs [39] to [41] of the Grounds of Judgment);

(vii) SD2 was not a credible witness, his testimony in court being inconsistent with the contemporaneous WhatsApp record and at points with his own witness statement (paragraphs [44] and [53] of the Grounds of Judgment); and

(viii) the counterclaim was unsupported by adequate proof in respect of each of its component heads, and was, in any event, undermined by the absence of credible evidence of causation (paragraphs [33] to [38] and [53] of the Grounds of Judgment). [17] It was on the strength of those findings that the learned Sessions Court Judge entered judgment for Prudence Energy in the sum of RM102,550.00 with interest and costs, and dismissed the counterclaim with costs. [18] A Notice of Appeal was filed by Samudera Wibawa on 18 December 2025. The Memorandum of Appeal as amended advances multiple grounds, which challenge the findings of fact reached at trial, the application of the law to those findings, and the exclusion of IDD-1. C. ISSUES FOR DETERMINATION [19] The grounds advanced in the Memorandum of Appeal are numerous, but they are not all independent. Distilled to their substance, the issues for determination are:

whether the threshold for appellate intervention with findings of fact reached after a full trial is met on the present appeal;

(ii) whether the additional works the subject of the quotations dated 18 and 23 May 2023 fell within the original contract sum of RM120,000.00 or were chargeable separately;

(iii) whether payment of the balance of RM60,000.00 was conditional upon the vessel being launched without leakage, and, if so, what consequence follows from the fact that the works were not fully completed;

(iv) whether the works were required to be completed by 31 May 2023, and whether time was of the essence;

whether the learned Sessions Court Judge erred in declining to admit the Bottom Plate Renewal Survey Report (IDD-1);

(vi) whether the adverse inference drawn under s.114(g) of the Evidence Act 1950 in respect of the non-calling of Xiao Zhang was justified; and

(vii) whether the counterclaim was rightly dismissed for want of proof. [20] Other matters raised by the Memorandum of Appeal, including challenges to the credibility of SP1 and SD2 and to the manner in which the trial court dealt with documents marked IDD, do not stand independently of the issues identified above and are addressed within the analysis of those issues. D. STATUTORY AND LEGAL FRAMEWORK D.1 The role of the appellate court [21] It is settled law that the High Court sitting in its appellate jurisdiction over the Sessions Court does not engage in a rehearing on the merits. Findings of fact made by a trial court after a full trial, and in particular findings dependent upon the credibility of witnesses observed under cross-examination, attract substantial deference. The threshold for appellate intervention is that the trial court is shown to have been plainly wrong, or to have failed to undertake a proper judicial appreciation of the evidence. [22] The locus classicus is the judgment of the Court of Appeal in Lee Ing Chin @ Lee Teck Seng & Ors v Gan Yook Chin & Anor [2003] 2 MLJ 97 (Court of Appeal), in which Gopal Sri Ram JCA (as His Lordship then was) explained that an appellate court will not ordinarily interfere with the findings of a trial court unless the trial court is shown to be plainly wrong or to have failed to undertake a sufficient judicial appreciation of the evidence. That principle was affirmed by the Federal Court in Gan Yook Chin & Anor v Lee Ing Chin @ Lee Teck Seng & Ors [2004] 4 CLJ 309 (Federal Court), and most recently restated by the Federal Court in Ng Hoo Kui & Anor v Wendy Tan Lee Peng & Ors [2020] 12 MLJ 67 (Federal Court), where the Court emphasised that "plainly wrong" connotes a conclusion which no reasonable judge, properly directing himself or herself, could have reached on the evidence. [23] In Sivalingam a/l Periasamy v Periasamy & Anor [1995] 3 MLJ 395 (Court of Appeal), the duty of the appellate court was put in this way: the appellate court will not readily interfere with the findings of fact of the trial court, but it has a duty to intervene where the trial court has so fundamentally misdirected itself that no reasonable court properly directing itself would have arrived at the same conclusion. [24] Within that framework, the appellate court is particularly slow to disturb findings on the credibility of oral witnesses. The trial court alone has the advantage of observing demeanour. Where, however, a finding turns upon contemporaneous documents whose meaning is susceptible of objective assessment, the appellate court is in as good a position as the trial court to evaluate them, and intervention may follow if the trial court has misread or failed to consider them. D.2 Section 71 of the Contracts Act 1950 [25] Section 71 of the Contracts Act 1950 provides that where a person lawfully does anything for another person, or delivers anything to him, not intending to do so gratuitously, and such other person enjoys the benefit thereof, the latter is bound to make compensation to the former in respect of, or to restore, the thing so done or delivered. The provision is restitutionary in character. It does not require the existence of a contract, but supplies an obligation to compensate where one party has accepted and enjoyed a benefit conferred on him by another in circumstances in which payment was expected. [26] In Tanjung Teras Sdn Bhd v Kerajaan Malaysia [2015] 9 CLJ 1002 (Court of Appeal), Lim Yee Lan JCA, delivering the judgment of the Court, treated the principle underlying s. 71 as one against unjust enrichment of one party at the cost of another. The Court of Appeal there approved the reasoning in Ramkrishna Shankarrao v Rangoobai AIR 1959 Bom 519 (Bombay High Court), to the effect that a defendant who has accepted and enjoyed the benefits of work done by the plaintiff, where that work is not gratuitous, is bound to compensate the plaintiff. Section 70 of the Indian Contract Act 1872, considered in Ramkrishna Shankarrao, is in pari materia with s. 71 of the Contracts Act 1950. [27] The High Court has applied s.71 in commercial settings of the present kind. In Kumpulan Teknik Sdn Bhd v Murad Hashim Communication Sdn Bhd & Anor [2012] 8 MLJ 573 (High Court), it was held that a party who has received and benefited from work done cannot refuse payment, and that such refusal would amount to unjust enrichment within the meaning of s.71. [28] At common law, parties to a contract are presumed not to intend that either of them should be entitled to rely upon his own breach of obligation in order to avoid that contract or to obtain a benefit under it, unless the contrary is clearly provided. The principle was authoritatively expressed by the House of Lords in New Zealand Shipping Co Ltd v Société des Ateliers et Chantiers de France [1919] AC 1 (House of Lords), and has been received into Malaysian law. It was applied in Bank Simpanan Nasional v Rudysham bin Abdul Raof [2017] 4 CLJ 234 (High Court), and treated with approval by the Court of Appeal in Paradise Boulevard Sdn Bhd v Badan Pengurusan Bersama Kompleks Pandan Safari Lagoon [2021] CLJU 2559 (Court of Appeal). The principle bears upon any contention that a contracting party is excused from his obligation to pay by reason of a state of affairs which the contracting party itself has brought about. D.4 Time of the essence [29] Section 56 of the Contracts Act 1950 governs the consequences of failure to perform at a fixed time. Where time is alleged to be of the essence of a contract, the contention must be supported either by an express stipulation, or by a sufficiently clear notice making time of the essence, or by inference from the nature of the contract and the surrounding circumstances. The leading authority is the Federal Court decision in Sim Chio Huat v Wong Ted Fui [1983] 1 MLJ 151 (Federal Court). A party who, by his conduct, has waived a stipulation as to time, or who has continued to insist upon and accept performance after the expiry of a stipulated time, may not later treat the contract as discharged for want of timely performance unless he gives clear notice making time of the essence afresh. D.5 Burden and onus of proof [30] Sections 101 to 103 of the Evidence Act 1950 govern the incidence of the burden of proof. The legal burden of establishing a case rests throughout the trial upon the party who asserts the affirmative of an issue. The evidential onus, by contrast, shifts as evidence is adduced. Where a plaintiff has adduced evidence which, if unanswered, would establish his case on the balance of probabilities, the evidential burden shifts to the defendant to displace it. [31] In respect of damages, and special damages in particular, the standard is more demanding. The Federal Court in Ong Ah Long v Dr S Underwood [1983] 2 CLJ 198 (Federal Court) held that special damages must be specifically pleaded and strictly proved. A general allegation of loss is insufficient; specific items must be supported by evidence going both to quantum and to causation. That principle was reaffirmed and applied by the Court of Appeal in PB Malaysia Sdn Bhd v Samudra (M) Sdn Bhd [2009] 7 MLJ 681 (Court of Appeal), in which it was reiterated that damages must be proved with real or factual evidence, and not by particulars summaries or general conclusions. D.6 Section 114(g) of the Evidence Act 1950 [32] Section 114(g) of the Evidence Act 1950 permits a court to presume that evidence which could be, but is not, produced would, if produced, be unfavourable to the person who withholds it. The principle was considered by the Supreme Court in Munusamy v Public Prosecutor [1987] 1 MLJ 492 (Supreme Court), where it was emphasised that the inference is properly drawn where the witness in question is material, is within the power of the party concerned to produce, and is withheld without satisfactory explanation. The presumption is not to be drawn lightly, and is not a substitute for proof. It is, however, a legitimate aid to the assessment of the evidence where its preconditions are satisfied. The application of the principle in a commercial setting is illustrated in Sabah Shell Petroleum Co Ltd & Anor v The Owners of and/or Any Other Persons Interested in the Ship or Vessel the "Borcos Takdir" [2012] 5 MLJ 515 (High Court). D.7 Order 40A of the Rules of Court 2012 and opinion evidence [33] Order 40A of the Rules of Court 2012 governs the reception of expert evidence in civil proceedings. Rule 3 requires that the evidence of an expert be tendered in the form of a written report containing, among other matters, the qualifications of the expert, the substance of the facts and instructions material to the opinions expressed, the literature relied upon, and the reasons for those opinions. The report is to be filed and exchanged in advance of trial in the manner directed by the court. [34] The position at common law and under the Evidence Act 1950 in respect of opinion evidence is that opinions are, in general, inadmissible. The exception is the opinion of a properly qualified expert tendered as such on a matter falling within the expert's field of specialised knowledge. A witness of fact, however well qualified by experience, is not entitled to give opinion evidence of an evaluative character. The principle was restated by the Court of Appeal in Maheswari a/p Eliathamby & Anor v Koperasi Serbaguna Kebangsaan Bhd & Ors [2019] 1 MLJ 440 (Court of Appeal), and most recently and at length by the Court of Appeal in Yeoh Tseow Suan v Musa bin Hassan [2026] 3 CLJ 593 (Court of Appeal). The Court of Appeal in Yeoh Tseow Suan was emphatic that it is a misdirection of law for a court to hold a witness to be an ordinary witness of fact and yet to entertain his evidence of opinion as if he were an expert. D.8 The rule on putting one's case in cross-examination [35] The rule that a party must put its case to the witnesses of the other side originates in the speech of Lord Herschell LC in Browne v Dunn (1893) 6 R 67 (House of Lords), and was received into the law of this jurisdiction by the Federal Court in Wong Swee Chin v Public Prosecutor [1981] 1 MLJ 212 (Federal Court). The rule is one of fairness: a witness whose evidence is to be disbelieved or contradicted should have the opportunity to address what is being put against him. Two qualifications are integral to the rule. The first is that the rule is not absolute; the Federal Court in Wong Swee Chin itself acknowledged exceptions where the matter has been sufficiently raised by other means. The second is that the manner in which a case is put is not confined to a closed proposition formulated by the cross-examiner and answered with a binary yes or no. A case may equally be put by confronting the witness with documents which speak to the substance of the matter, by a structured line of questions which makes the case unmistakable, or by inviting the witness to reconcile his account with material which contradicts it. E. ANALYSIS AND DETERMINATION E.1 The standard of appellate review and its bearing on the present appeal [36] A substantial portion of the Memorandum of Appeal consists of complaints about the manner in which the learned Sessions Court Judge weighed the evidence: in particular, the WhatsApp record, the testimony of SP1, SD1 and SD2, and the documentary materials. Even when stated as errors of law, these complaints are in substance challenges to findings of primary fact and to inferences drawn from primary fact. They engage the deferential standard described above. [37] Three matters must be kept in view. First, the credibility of SP1 and SD2 was a matter peculiarly for the trial court, which had the benefit of observing them under cross-examination. Second, the contemporaneous record consists in large measure of voice-message exchanges between SP1 and SD2; their meaning depends upon their context and the conduct of the parties at the relevant time. Third, where the learned Sessions Court Judge has tied her findings to identified portions of the evidence in numbered paragraphs, those findings should be approached as the product of considered evaluation. I shall accordingly approach each substantive issue not by asking what conclusion this Court would have reached on the evidence at first instance, but by asking whether the conclusion of the learned Sessions Court Judge is one which a reasonable judge, properly directing herself, could have reached. E.2 Whether the additional works were chargeable separately [38] The first substantive issue is whether the works the subject of the first quotation (in the recoverable amount of RM30,800.00) and the second quotation (in the recoverable amount of RM11,750.00) were comprised within the original contract sum of RM120,000.00, or whether they were chargeable separately. [39] Two complementary lines of analysis converge upon the same answer. The first proceeds from the contractual record. The second proceeds from s. 71 of the Contracts Act 1950 as an alternative and freestanding basis for recovery: see Tanjung Teras Sdn Bhd v Kerajaan Malaysia [2015] 9 CLJ 1002 (Court of Appeal); Kumpulan Teknik Sdn Bhd v Murad Hashim Communication Sdn Bhd & Anor [2012] 8 MLJ 573 (High Court). [40] On the contractual record, the contemporaneous WhatsApp exchanges of May and June 2023 point unambiguously in one direction. When the first quotation was issued on 18 May 2023, SD2 began by complaining that the items in question had been within the scope of the work originally undertaken. In the same series of messages, however, SD2 went on to instruct SP1 to "speed up and finish your work", and to confirm the quantities with Xiao Zhang. On 7 June 2023, in the message at p. 59 of Volume 3 of the Record of Appeal, SD2 referred to a figure of "RM30,000 plus" and stated, in his own words: "you said you've lost money, I'll increase the reimbursement for you to do it. I'll give you a bit more, for the added part, I will reimburse you accordingly, I'll do it for you as usual." Those are not the words of a contracting party who maintains that the items in question are comprised within the agreed contract sum. They are, on a fair reading, the words of a party who has accepted that further work is required, that it is to be paid for, and that the only outstanding matter is the quantum. [41] The oral evidence of SD2 at trial supplements the documentary record. SD2 acknowledged in cross-examination that the additional works had been carried out: in respect of the first quotation, that the items at (b), (c), (d) and (e) had been done (Notes of Proceedings, p. 306 of the Record of Appeal Volume 2); and in respect of the second quotation, that the works had been done (Notes of Proceedings, p. 308 of the Record of Appeal Volume 2). SD2 further acknowledged that he had not, at the time of the issue of the quotations, told SP1 not to carry out the works (Notes of Proceedings, p. 305 of the Record of Appeal Volume 2). On those admissions, the position now contended for, namely that the items in question were within the original sum and that no separate payment was due, becomes difficult to maintain. [42] It was urged in reply that the proposition that the additional works fell outside the original scope was not put to SD2 in cross examination in terms, and that, by application of the rule in Wong Swee Chin v Public Prosecutor [1981] 1 MLJ 212 (Federal Court), no finding adverse to SD2 may be made on that point. Reliance was placed in turn upon Capital Corp Securities Sdn Bhd v Abdul Malek Beh bin Abdullah [2005] 7 MLJ 35 (High Court). The submission requires careful examination, because if it were correct it would dispose of a substantial portion of the appeal. It is not correct, for the reasons which follow. [43] The rule is one of fairness; its purpose is to ensure that a witness whose evidence is to be disbelieved or contradicted has the opportunity to address what is put against him. As I have noted at paragraph [35] above, the manner in which a case is put is not confined to a closed proposition formulated by the cross-examiner and answered yes or no. A case may equally be put by confronting the witness with documents which speak to the substance of the matter, or by a structured line of questions which makes the case unmistakable. [44] On the Notes of Proceedings, counsel for Prudence Energy did confront SD2 with the contemporaneous WhatsApp record of May and June 2023, including SD2's own messages telling SP1 to "speed up and finish your work" and stating that he, SD2, would "reimburse sufficiently" for the additional items. SD2 was given multiple opportunities to explain those messages, and to reconcile them with his oral position that the items had been within the original scope. To do so was to put the substance of the case to him through the documents and through the structure of the cross-examination, taken as a coherent whole. SD2 understood what was being put against him; his replies are precisely the replies of a witness endeavouring to displace it. That suffices for the rule in Wong Swee Chin. [45] The decision in Capital Corp Securities Sdn Bhd v Abdul Malek Beh bin Abdullah [2005] 7 MLJ 35 (High Court) does not advance the matter. There, a witness was asked a single question on a particular point and no follow-up was put. Here, the relevant exchanges were extensively explored, and SD2's oral evidence was tested against his own contemporaneous messages. The two cases are not analogous on their facts. [46] The trial court's finding did not in any event rest solely upon the cross-examination of SD2. It rested also on the WhatsApp record itself, the issued quotations of 18 and 23 May 2023, the issued invoices, and SD2's admission recorded at paragraph [11] of the Grounds of Judgment that the additional works were "allowed to enable the work to be done effectively". The legal characterisation of those primary facts is a matter for the court, and the rule in Wong Swee Chin does not preclude the court from drawing legal inferences from facts which the witness has himself accepted. [47] A further point of factual precision should be noted. The first quotation was, on its face, in the sum of RM32,800.00. The Sessions Court found that the item "touch up for the side protection pipe/plate at high level zone" valued at RM2,000.00 had not been performed, and the recoverable amount was accordingly limited to RM30,800.00. That treatment is unimpeachable. It reflects, moreover, the discriminating character of the trial court's overall approach: not a reflexive award of everything claimed, but a component-by-component assessment with credit given for items not performed. [48] For these reasons, the additional works were chargeable separately. The recoverable amounts of RM30,800.00 and RM11,750.00 were properly awarded. [49] Even were that conclusion not reached on the contractual analysis, s. 71 of the Contracts Act 1950 supplies an independent and concurrent foundation. Prudence Energy carried out the works lawfully; it did not intend to do so gratuitously, the issue of quotations and invoices in May 2023 putting that beyond doubt; and Samudera Wibawa has had the benefit of those works. The conditions of s. 71 are therefore satisfied. The principle restated in Tanjung Teras Sdn Bhd v Kerajaan Malaysia accordingly supports the obligation to compensate, available concurrently with, but not dependent upon, the contractual analysis above. E.3 The balance of RM60,000.00: condition precedent substantial performance and prevention [50] Samudera Wibawa's case, both at trial and on this appeal, is that of the contract sum of RM120,000.00, only RM60,000.00 was payable by progress, and the remaining RM60,000.00 was payable only when the vessel had been launched and was confirmed to be without leaks. Reliance is placed upon a WhatsApp message of 17 April 2023 from SD2, in which SD2 referred to leaving "a small portion" to be paid after the launch, and upon the oral evidence of SD2 at trial. [51] The proper analysis proceeds in stages. First, what was the contractual mechanism of payment? Second, has Prudence Energy established performance to a degree which engages the obligation to pay? Third, if not, what is the legal consequence having regard to the cause of any non-performance? [52] (a) The contractual mechanism. The 17 April 2023 message, read in its entirety, refers to the leaving of "a small portion" to be paid after launch. That language is consistent with retention of a portion of the price; it is some distance from the proposition that the entirety of the unpaid balance of RM60,000.00, being half of the contract sum, was to be retained until the vessel could be launched without leakage. SD2 in oral testimony at trial maintained the more rigorous version of the term. The trial court was entitled to prefer the contemporaneous record over the later oral testimony, in line with the principle restated by the Court of Appeal in Guan Teik Sdn Bhd v Haji Mohd Noor bin Haji Yakob & Ors [2000] 4 MLJ 433 (Court of Appeal). For present purposes, however, I shall proceed on the assumption most favourable to Samudera Wibawa: that the parties had agreed an oral retention term to the effect that the balance was payable upon the vessel being launched without leakage. [53] (b) Substantial performance. The doctrine of substantial performance qualifies the rule that a contractor must complete performance before being paid. As Denning LJ observed in Hoenig v Isaacs [1952] 2 All ER 176 (Court of Appeal of England), a party who has substantially performed his obligations under a contract such as this is entitled to the contract price subject to a deduction for the cost of remedying defects, save where the breach is so fundamental as to deprive the other party of substantially the whole of the benefit. The doctrine has been received into Malaysian law and applies to building, repair and ship-repair contracts alike. [54] Applied to the present facts, the question is whether Prudence Energy's performance fell on the side of substantial completion. At paragraph [23] of the Grounds of Judgment, the learned Sessions Court Judge accepted the oral evidence of SD1, the surveyor called by Samudera Wibawa, that Prudence Energy had completed the work save for certain welding works which could not be done because the vessel was wet at the time of inspection. SP1, in his oral evidence, accepted that there remained welding to be carried out. Two findings should accordingly be made plain. First, the substantial contractual scope, namely the bottom-plate works which formed the principal subject of the contract, had been performed. Second, the only residual incompletion related to welding works which could not be carried out because of the physical condition of the vessel, the vessel being wet at the material time. The shortfall was thus a narrow and residual one, and not a wholesale failure of performance. [55] That residual incompletion is not, on any reasonable view, a breach which deprives Samudera Wibawa of substantially the whole of the benefit of the works performed. Prudence Energy has, in the relevant sense, substantially performed the contract. It is therefore entitled to the contract price subject only to such deduction as may be appropriate for items not performed. The trial court has already given effect to that principle by deducting RM2,000.00 from the first quotation and RM250.00 from the second. [56] (c) Prevention. Even if (contrary to the conclusion in (b) above) Prudence Energy had not substantially performed, the cause of the cessation of work is identified in the trial court's findings at paragraphs [24] and [25] of the Grounds of Judgment. Prudence Energy stopped work because Samudera Wibawa had refused to pay for the additional items, payment for which had become due, and Prudence Energy was thereby placed in a position where it could not continue. SD2 himself, in the WhatsApp message of 7 June 2023, told SP1 that he had no need for the works to be completed by the end of the month, and that he could wait until the vessel was in the water before payment was made. That message is the antithesis of a party insisting upon strict and timely compliance with a precondition to payment. [57] That state of affairs engages the principle of prevention, recognised at common law since New Zealand Shipping Co Ltd v Société des Ateliers et Chantiers de France [1919] AC 1 (House of Lords), and applied in Bank Simpanan Nasional v Rudysham bin Abdul Raof [2017] 4 CLJ 234 (High Court) and Paradise Boulevard Sdn Bhd v Badan Pengurusan Bersama Kompleks Pandan Safari Lagoon [2021] CLJU 2559 (Court of Appeal). Where a contracting party has, by his own conduct, made it impossible or impracticable for the other party to fulfil a condition, the first party may not insist upon strict compliance with that condition as a precondition to his own obligation to perform. [58] (d) The argument from Pembenaan Leow Tuck Chui. Reliance was placed in reply upon the decision of the Supreme Court in Pembenaan Leow Tuck Chui & Sons Sdn Bhd v Dr Leela's Medical Centre Sdn Bhd [1995] 2 MLJ 57 (Supreme Court), for the proposition that payment under a construction contract is not an automatic right but arises only upon satisfaction of the contractual mechanism, in particular upon proper certification of the works performed. Pembenaan Leow Tuck Chui must be read in its proper setting. It concerned a formal building contract under which payment was to be made against the certificates of an independent architect, and the issue turned upon the operation of the certification regime, including the conditions under which interim certificates could be opened up and adjusted. The present arrangement is, by contrast, an informal ship-repair contract for the agreed sum of RM120,000.00, made directly between the parties without provision for certification by any third party. The principle that payment requires performance is of course of general application; but the procedural mechanics which formed the focus of Pembenaan Leow Tuck Chui have no analogue here. More fundamentally, neither the decision nor the principle for which it is cited disturbs the doctrine of substantial performance or the principle of prevention. Both doctrines existed before that decision and continue to operate after it. They are the doctrines on which the present case turns. [60] (e) The internal coherence of the trial court's reasoning. It was urged in reply that the Grounds of Judgment contain an internal contradiction: the trial court found, at paragraph [26], that Prudence Energy had failed to perform its obligation by not continuing the work until fully completed, and yet allowed the claim in full. The point requires a direct answer. [61] Paragraph [26] of the Grounds of Judgment cannot be read divorced from paragraphs [24] and [25], which immediately precede it. Read together, those paragraphs make plain that Prudence Energy did not complete the works, but did not complete the works because of Samudera Wibawa's own conduct: namely, Samudera Wibawa's refusal to pay for the additional items, and Samudera Wibawa's express communication on 7 June 2023 that the works need not be completed by the end of the month. The trial court's reasoning, properly understood, is that any non-completion was attributable to Samudera Wibawa. There would be inconsistency only if the trial court had attributed non-completion to Prudence Energy and had nevertheless awarded the contract price; that is not the trial court's finding. The form of expression at paragraph [26] is ungainly, but the substance of the reasoning is internally coherent. [62] (f) The submission as to documentary proof. It was further contended that Prudence Energy did not adduce documentary evidence such as a site diary, and that no expert was called to certify completion. The submission overstates the legal requirements. There is no rule of law that a contractor in a contract of this kind must keep a site diary or procure expert certification of progress in order to recover the contract price. What is required is proof on the balance of probabilities of entitlement to payment under the contractual arrangement as the court finds it to have been. Prudence Energy did so, by adducing the agreed contract sum, the proven part-payment of RM60,000.00, the issued and unrebutted invoices for the additional works, and the contemporaneous WhatsApp record. SP1's answer in cross-examination, when asked how many bottom plates had been repaired, that he "cannot remember" (Notes of Proceedings, p.143 of the Record of Appeal Volume 2), goes at most to weight on a peripheral matter, and does not displace the central facts found by the trial court. [63] Drawing these strands together: Prudence Energy substantially performed the works of repair within the original contract sum of RM120,000.00. The residual incompletion consisted of welding works which were impeded both by the wetness of the vessel and by Samudera Wibawa's withholding of payment for the additional items, the latter being a matter for which Samudera Wibawa alone is responsible. Even on the assumption most favourable to Samudera Wibawa—that the contract contained a strict condition that the vessel be capable of launch without leakage as a precondition to payment of the balance—Samudera Wibawa cannot, in the events which have happened, rely upon that condition. By its own conduct, including its express waiver of urgency on 7 June 2023, Samudera Wibawa prevented Prudence Energy from achieving complete performance. Whether the result is reached by substantial performance, by prevention, or by their concurrent operation, the conclusion is the same: the balance of RM60,000.00 is payable. [64] The next issue is whether the works were required to be completed by 31 May 2023, and whether time was of the essence. Considerable weight was placed in reply upon the number and emphasis of the WhatsApp messages from SD2 in which the end-of-May timing was invoked. The contention requires careful unpacking, because it conflates three distinct propositions, each of which must be evaluated on its own merits. [65] (a) Operational urgency. The first proposition is that SD2 wished the works to be completed by the end of May 2023, and pressed SP1 to that effect. The contemporaneous WhatsApp record amply supports it. The messages of 5 May 2023, 17 May 2023, and 18 May 2023 reflect commercial pressure and operational urgency. They are part of the texture of any commercial relationship in which one party wishes the other to perform with despatch. They are urgings to speed up. They are not, of themselves, alterations of the legal terms of the contract. [66] (b) A target date. The second proposition is that the parties had a target date for completion. The evidence is consistent with the existence of a hoped-for date, namely the end of May 2023. SP1 acknowledged in cross-examination an awareness that SD2 wished to have the works completed by then. The recognition of a target date, however, is a different thing from the constitution of that date as a contractual term making time of the essence. Many commercial relationships have target dates which neither party intends to be conditions, the breach of which entitles the other party to refuse payment or to treat the contract as repudiated. [67] (c) Time of the essence. The third proposition is that 31 May 2023 was a contractual term of such a character that completion by that date was a condition of Samudera Wibawa's obligation to pay the balance, the breach of which entitled Samudera Wibawa to refuse payment. To establish that proposition requires proof under one of the routes recognised by Sim Chio Huat v Wong Ted Fui [1983] 1 MLJ 151 (Federal Court): an express stipulation, or a clear notice making time of the essence in the course of performance, or essence inferred from the nature of the contract or the surrounding circumstances. On none of those tests is the proposition made out. [68] There is no evidence of an express stipulation at the inception of the contract that time was of the essence. The works commenced on or about 27 March 2023. The first WhatsApp messages in which SD2 expressly invoked end-of-May timing were on 17 and 18 May 2023, more than seven weeks after performance had begun. The trial court so found at paragraph [21] of the Grounds of Judgment. There is, on the contemporaneous record, no message from SD2 to SP1 at the inception of the contract communicating either an agreed deadline of 31 May 2023 or that performance by that date was a condition of payment. [69] Nor is there a clear notice making time of the essence in the course of performance. A clear notice is one which makes plain to the other party that, unless performance is rendered by a stipulated date, the contract will be at an end or some legal consequence beyond the natural consequences of breach will follow. The messages of 17 and 18 May 2023 do not bear that character. They press for speed; they convey commercial urgency; they communicate the consequences of late launch for Samudera Wibawa. They do not say, in terms or in substance, that the contract will be discharged or payment refused if performance is not rendered by the end of May. The volume of urgings is not the legal equivalent of a notice making time of the essence: the multiplicity of the messages does not change their character. [70] There is no basis for treating time as of the essence by reason of the nature of the contract. This was a ship-repair contract characterised by the practical exigencies of working on a vessel and by the unpredictable discovery of further defects requiring additional works. It was not a contract for the supply of perishable goods, or for performance on a date with extra-contractual significance. [71] In any event, even if (against the analysis above) the messages of 17 and 18 May 2023 were treated as having made time of the essence, the conduct of Samudera Wibawa thereafter is incompatible with the maintenance of any such position. By the message of 7 June 2023, SD2 in terms told SP1 that he had no need for the works to be completed by the end of the month, and that he could wait until the vessel was in the water. That message is the antithesis of a party insisting upon strict compliance with a deadline. It amounted to a waiver of strict insistence upon completion by 31 May 2023. Once such a waiver had been communicated, Samudera Wibawa could not thereafter treat the contract as discharged for want of completion by that date without giving fresh notice making time of the essence. The Federal Court in Sim Chio Huat is express on that point. No such fresh notice was given. [72] It is also pertinent to recall that the said Ship was not, on the evidence, in a condition to be launched at the end of May or early June 2023 by reason of matters unconnected with Prudence Energy. SP1's evidence (Notes of Proceedings, p. 206 of the Record of Appeal Volume 2) was that the engine and generator-set inside the engine compartment were not ready, with the consequence that the vessel could not be launched by reason of work falling outside Prudence Energy's scope. That evidence, which was unrebutted, was expressly accepted by the trial court at paragraph [23] of the Grounds of Judgment. Even had Prudence Energy completed every aspect of its own scope by 31 May 2023, the vessel would not have been launched by that date for reasons unconnected with Prudence Energy. [73] Samudera Wibawa's case on time accordingly fails at each of three sequential hurdles: the messages of 17 and 18 May 2023 did not, in their proper construction, make time of the essence; even if they had, the message of 7 June 2023 amounted to a waiver of strict insistence upon time; and no fresh notice was given to revive any such requirement. The finding that no such deadline was contractually binding upon Prudence Energy is one which the evidence amply supports. E.5 The exclusion of the Bottom Plate Renewal Survey Report (IDD-1) [74] SD1 was a marine surveyor who attended the vessel on 12 June 2023 and prepared a Bottom Plate Renewal Survey Report. That report was sought to be tendered as part of Samudera Wibawa's case. The learned Sessions Court Judge declined to admit it. The reasons given, at paragraph [22] of the Grounds of Judgment, were that SD1 had originally been brought as an expert witness, but the requirements of Order 40A of the Rules of Court 2012 had not been complied with, and at trial both SD1 and counsel for Samudera Wibawa accepted that he was not being tendered as an expert. [75] Two distinct propositions of law are engaged. The first is that an expert's report must be put before the court in compliance with the procedural requirements of Order 40A. Where those requirements are not satisfied, the report cannot be tendered through the back door under the rubric of factual evidence. The second is that opinions, as opposed to facts, are inadmissible save where given by an expert properly tendered as such. The position is restated by the Court of Appeal in Maheswari a/p Eliathamby & Anor v Koperasi Serbaguna Kebangsaan Bhd & Ors [2019] 1 MLJ 440 (Court of Appeal), and reaffirmed by the Court of Appeal in Yeoh Tseow Suan v Musa bin Hassan [2026] 3 CLJ 593 (Court of Appeal). The Court of Appeal in Yeoh Tseow Suan identified as a misdirection of law the course of treating a witness as an ordinary witness of fact while at the same time receiving his evidence of opinion as that of an expert. [76] Reliance is placed by Samudera Wibawa upon s. 59 of the Evidence Act 1950, which provides that all facts, except the contents of documents, may be proved by oral evidence, and upon the decision of this Court in Dato' Sukri bin Hj Mohamed v Wan Muhammad Azri bin Wan Deris [2016] 3 MLJ 529 (High Court). Section 59 establishes the admissibility of oral evidence of facts; it does not authorise the admission of opinion evidence from a witness of fact. The decision in Dato' Sukri concerned the rejection of direct factual oral evidence about the identity of an internet blogger; it does not establish a rule that the opinion of a non-expert witness of fact is admissible as part of his oral evidence. [77] The proper analysis is that SD1 was, at trial, a witness of fact. He was therefore entitled to depose to what he had observed and done in the course of his attendance at the vessel on 12 June 2023. A witness of fact cannot, ordinarily, give evaluative opinion evidence drawing on specialised knowledge or expert technique unless he has been properly tendered as an expert in compliance with Order

The Bottom Plate Renewal Survey Report, by its nature and structure, is a document of expert evaluative opinion. To admit it would have been to receive expert evaluative opinion evidence from a witness whom both Samudera Wibawa's counsel and SD1 himself accepted was not an expert. The decision to exclude the report was therefore correct in law. It does not follow that Samudera Wibawa was deprived of all evidential support from SD1. The factual content of his observations on 12 June 2023 was received and considered. The trial court expressly observed at paragraph [23] of the Grounds of Judgment that SD1 had testified, as a witness of fact, that Prudence Energy had completed the work save for certain welding works which could not be done because the ship was wet at the time of inspection. That factual matter was treated as part of the trial evidence. What was excluded was the layer of expert opinion on top of those facts, which could not properly be received from a witness who was not tendered as an expert. [79] The submission that there is internal inconsistency between the exclusion of the report and the trial court's reliance on portions of SD1's testimony cannot be accepted. The line drawn by the trial court is the orthodox line: factual observations admissible from a witness of fact; expert evaluative opinion inadmissible because the procedural and substantive requirements for the reception of expert evidence had not been satisfied. Far from being inconsistent, the trial court's treatment of SD1 reflects the proper application of the rule. E.6 The adverse inference under s. 114(g) of the Evidence Act 1950 [80] The complaint under this head is that the learned Sessions Court Judge erred in drawing an adverse inference under s.114(g) of the Evidence Act 1950 from Samudera Wibawa's failure to call Xiao Zhang. The submission has two strands: first, that Prudence Energy had not in the first place established a prima facie case, with the consequence that no evidential burden ever shifted to Samudera Wibawa; and second, that an adverse inference cannot, in any event, be used to make good a deficiency in the case of the party who invokes it. [81] The two strands are interrelated. Section 114(g) permits the court to presume that evidence which could be, but is not, produced would, if produced, be unfavourable to the party who withholds it. As stated by the Supreme Court in Munusamy v Public Prosecutor [1987] 1 MLJ 492 (Supreme Court), three conditions attach to the legitimate operation of the provision: the witness must be material; the witness must be within the power of the party concerned to produce; and the absence of the witness must be unexplained. The presumption is not a substitute for proof. It is an aid to the assessment of evidence, available only after the party invoking it has discharged its own evidential burden. [82] The submission that the inference here did the work of establishing Prudence Energy's case can only be tested by examining what evidence Prudence Energy adduced before the inference is invoked. That evidence included:

proof of the contract for repair works at the agreed sum of RM120,000.00, the existence and terms of which were not seriously in dispute;

(ii) proof of part-payment of RM60,000.00, which was admitted;

(iii) the contemporaneous WhatsApp record between SP1 and SD2 over April to June 2023, including SD2's message of 7 June 2023 referring to a figure of "RM30,000 plus" and instructing SP1 to confirm the quantity with Xiao Zhang;

(iv) the issued quotations of 18 May 2023 and 23 May 2023 in respect of the additional items of work;

the issued invoices for those items, neither of which was met by a contemporaneous denial of liability in the WhatsApp record; and

(vi) SD2's admissions in cross-examination, including that the additional works "were allowed to enable the work to be done effectively" (paragraph [11] of the Grounds of Judgment). [83] Taken in the round, that material was sufficient to constitute a prima facie case for the sums claimed. It established the contractual basis of the sum of RM60,000.00, the contemporaneous arrangements which led to the further sums of RM30,800.00 and RM11,750.00, and SD2's own acknowledgment, by his words and his conduct, that the additional works were necessary and were to be paid for. The legal effect is that the evidential burden shifted to Samudera Wibawa to displace the case which had been made out. It is at that point, and not earlier, that the absence of a material witness becomes properly relevant, and the inference under s. 114(g) becomes available. [84] On a fair reading of the Grounds of Judgment, the trial court did not invoke s. 114(g) in order to establish Prudence Energy's case in the first place. The trial court invoked s. 114(g) only after Prudence Energy's evidence had been received and weighed, and after Samudera Wibawa's case had been heard. The chronology and reasoning are evident at paragraphs [39] to [41] of the Grounds of Judgment, where the trial court first identifies Xiao Zhang as the material witness, then notes the absence of any explanation for not calling him, and only then draws the inference. [85] On the conditions for the operation of the provision: Xiao Zhang was a material witness. SD2 himself accepted in crossexamination that Xiao Zhang was the person at site who monitored the works, who conveyed Samudera Wibawa's instructions to Prudence Energy, and from whom SD2 received his information (Notes of Proceedings, p. 296 of the Record of Appeal Volume 2). SD2 was for the most part not at site. Whether the additional works were truly outside the original scope; what objections, if any, were raised by Xiao Zhang on the ground; whether the alleged 31 May 2023 deadline was conveyed by Xiao Zhang and on what footing all were matters as to which Xiao Zhang would have been the most direct witness. Xiao Zhang was within the power of Samudera Wibawa to produce, being Samudera Wibawa's site representative. His absence was unexplained. [86] The principle stated in Munusamy was duly observed by the trial court. The reasoning is orthodox; it does not invert the burden of proof; and it does not seek to make good a deficiency in Prudence Energy's case. The inference was an additional consideration, properly drawn at the appropriate stage in the chain of reasoning. Ground 13 of the Memorandum of Appeal accordingly fails. E.7 The counterclaim [87] The counterclaim was for an aggregate sum of RM144,180.54, comprising two periods of slipway rental (RM16,200.00 and RM9,300.00); generator-set rental (RM21,500.00); two periods of local worker fees (RM8,450.00 and RM3,600.00); and two periods of salaries paid to workers brought from China (RM59,116.41 and RM26,014.13). The learned Sessions Court Judge dismissed the counterclaim on the ground that none of its components had been adequately proved. [88] The legal point of departure is settled. Special damages must be specifically pleaded and strictly proved: Ong Ah Long v Dr S Underwood [1983] 2 CLJ 198 (Federal Court). The strictness of proof reflects the proposition that the party seeking special damages is in the best position to demonstrate the precise sums lost or expended and the causal relation of those sums to the alleged breach. The court is not at liberty to estimate special damages from general indications: PB Malaysia Sdn Bhd v Samudra (M) Sdn Bhd [2009] 7 MLJ 681 (Court of Appeal). [89] Two difficulties beset the counterclaim. The first concerns proof of quantum. The second concerns proof of causation. Both must be made out before special damages can be recovered. [90] (a) Slipway rental. The supporting document for the slipway rental claim (IDD-6) was a document originating from a third party, the shipyard. No witness from the shipyard was called. The document was therefore unsupported by the evidence of its maker, and was rightly given limited probative value: see Pannir Selvam Sinnaiyah & Anor v Tan Chia Foo & Ors [2019] 1 LNS 2031 (High Court); and on the relationship between the marking of a document as IDD and the rules of admissibility, Bank of Tokyo-Mitsubishi (Malaysia) Bhd v Sim Lim Holdings Bhd & Ors [2001] 2 CLJ 474 (High Court). The trial court's assessment, at paragraph [33] of the Grounds of Judgment, that the alleged expenditure had not been properly proved, is well within the range of permissible findings. [91] (b) Generator-set rental. At paragraph [34] of the Grounds of Judgment, the trial court found that the evidence did not establish that the generator-set rental was attributable to Prudence Energy or that Prudence Energy bore any contractual responsibility for it. The submission that SP1 acknowledged the generator was used on site does not equate to an acknowledgment of contractual responsibility for the cost of hire. The trial court's conclusion is unimpeachable. [92] (c) Salaries paid to workers from China. SD2's own oral evidence was uncertain as to the number of workers and the costs involved; no original employment records were tendered; the documents relied upon (IDD-7 and IDD-8) were prepared in Chinese but tendered before the trial court in English without the requisite certification under s. 90A of the Evidence Act 1950 in respect of computer-generated documents; and no witness from the third party concerned was called (paragraphs [35] to [37] of the Grounds of Judgment). On that footing, this head of claim was not strictly proved. [93] (d) Loss of profit. Although the loss-of-profit claim was reduced by Samudera Wibawa's amendment of its counterclaim, it was, on any view, the most evidently demanding head. It required proof of (a) the lost earning capacity of the vessel, (b) the period of loss, and (c) the causal nexus between any breach by Prudence Energy and the loss. None of these matters was supported by financial records or accounts. The finding at paragraph [38] of the Grounds of Judgment that the claim was speculative is unimpeachable. [94] Beyond questions of quantum, there is the deeper difficulty of causation. The expenses claimed are not, on the evidence, sufficiently tied to any actionable breach by Prudence Energy. The reason is twofold. First, on the trial court's findings, Prudence Energy was placed in a position where it could not continue with the works because Samudera Wibawa had refused to pay for the additional works for which payment had become due. The cessation of work was thus traceable to Samudera Wibawa's own conduct, not to any breach on Prudence Energy's part. Second, and independently, Samudera Wibawa itself extended time and continued instructing performance after May 2023. The 7 June 2023 message from SD2 is the contemporaneous record of that extension. A party who has, by his own words, extended time and directed continued performance cannot then claim, by way of damages, the expenses incurred during the period he has himself permitted. To do so would, in effect, be to manufacture losses by one's own conduct and then to claim them as damages from one's counterparty; the law does not countenance such an outcome. [95] The dismissal of the counterclaim was therefore not only justified, but, on the evidence, was the only conclusion reasonably open to the trial court. [96] The remaining grounds are, on analysis, complaints about the trial court's assessment of the credibility of SP1 and SD2, and about the manner in which the trial court dealt with documents marked IDD-4, IDD-6, IDD-7, IDD-8, IDD-9, IDD-10 and IDD-11. The complaint that the trial court ought to have found SP1 evasive and unreliable is, in substance, an invitation to retake the credibility assessment. That is not the function of an appellate court: Lee Ing Chin; Ng Hoo Kui. The learned Sessions Court Judge's assessment of SD2 as not credible, at paragraphs [44] and [53] of the Grounds of Judgment, is anchored in identified inconsistencies between his oral testimony and both the WhatsApp record and his own witness statement. Those inconsistencies are matters of comparison capable of objective verification on the record, and they support the credibility finding. [97] In respect of the IDD documents, the marking of a document as IDD signifies that it has been identified but not admitted as evidence in the absence of further proof. Where the makers of those documents were not called, or where the foundation of admissibility was not laid, the trial court was not in error in declining to attach probative weight to them. The principle in Bank of TokyoMitsubishi does not displace the rules of admissibility; it informs the assessment of weight where admissibility is established. Reliance upon Guan Teik Sdn Bhd v Haji Mohd Noor bin Haji Yakob & Ors [2000] 4 MLJ 433 (Court of Appeal) does not assist Samudera Wibawa: that authority requires the court to weigh oral evidence against contemporaneous documents, and that is precisely what the trial court did. The complaint, on analysis, is not that contemporaneous documents were not weighed, but that they were not weighed as Samudera Wibawa would have wished. That is not a basis for appellate intervention. F. CONCLUSION [98] The threshold for appellate intervention with findings of fact is a high one. It is not met on the present appeal. The findings of the learned Sessions Court Judge are securely founded upon the contemporaneous record and upon the oral evidence at trial; the legal principles applied to those findings are correct; and none of the criticisms advanced establishes that the trial court was plainly wrong, or that there was a misdirection of law of a kind sufficient to disturb the judgment below. [99] It was urged in reply that the decision below is rendered unsustainable by the apparent contradiction between the trial court's finding of non-completion and its award of the contract price. For the reasons given in the analysis above, that contradiction dissolves on a fair reading of the Grounds of Judgment as a whole. The trial court did not ignore the principle that performance must precede payment; it found that Prudence Energy would have completed performance but for Samudera Wibawa's own conduct. That finding, taken with the principle that a party may not benefit from his own default, supplies a coherent and principled basis for the result. [100] The character of the case advanced by Samudera Wibawa on appeal may finally be observed in this respect. On the additional works, Samudera Wibawa's position has, between the contemporaneous record and the trial, shifted from an acceptance of the works coupled with a promise of reimbursement, to a denial that the works were chargeable separately. On the matter of time, its conduct in extending time on 7 June 2023 cannot be reconciled with the rigour now sought to be attached to a 31 May 2023 deadline. On the matter of the survey report, Samudera Wibawa approached the trial court alternately as if SD1 were and were not an expert. A position so adjusted to the requirements of each successive forum is, in the nature of things, less likely to be one which the law will vindicate. [101] For these reasons, the appeal stands to be dismissed. G. ORDERS OF THE COURT [102] The orders of the Court are accordingly as follows:

the appeal is dismissed;

(ii) the judgment of the Sessions Court at Melaka in Civil Suit No. MA-A52NCvC-54-07/2023 dated 5 December 2025 is affirmed in its entirety;

(iii) the Appellant shall pay to the Respondent costs of this appeal in the sum of RM10,000.00, subject to allocatur. Dated 21 May 2026 Annuario (YA Dato' Sri Raja Segaran A/L S. Krishnan) (Judicial Commisioner) High Court Of Malaya Malacca High Court (MELAKA) Lawyer For Appellant : Puan Lee Jing Jau Tetuan JJ Lee & Co Peguambela dan Peguamcara No. 1-26, Jalan PM 3, Plaza Mahkota, 75000 Melaka. Lawyer For Respondent : En. James Joshua Paul Raj Tetuan Tanes, Khoo & Paulraj Peguambela dan Peguamcara Blok E-13-01, Plaza Mt Kiara., 2, Jalan Kiara, 50480 Kuala Lumpur.