D referred to the schedule of progress billings (issued by P) and payments made (by D), particularly referring to paragraph 6 of the Statement Of Claim, and submitted that while the periods (duration) of work for the 1st to 6th progress bills were particularised in the schedule, the period of work for Progress Bill No. 8 was not. [20] In other words, Progress Bill No. 8 (the subject claim in Suit 11) was not authentic because the period of work applicable to it was not particularised. [21] I found this argument untenable. D has had all the time between P’s issuance of Progress Bill No. 8 until P’s filing of Suit 11 and even until P’s filing of its application to strike out D’s DACC, to raise this issue about not particularising the period of P’s work. But D did not do so. D did not do so in her DACC nor her affidavits in reply filed in the striking out proceeding. [22] Second—D referred to Progress Bill No. 8 and questioned the percentage-of-completion of the “structural & building works” that P performed. D questioned the stated 78% completion for the “below ground -1st floor” works, the 66% completion for the “1st floor-2nd floor” works, and the 57% for the “2nd floor-3rd floor” works. D submitted that there was no documentary evidence to verify these respective percentages of work Page 8 of 12 done. D submitted that there were no disclosed criteria to evaluate the percentage of work done. [23] D’s argument here was also in line with her defence that P’s Progress Bill No. 8 must be verified by an architect’s or a quantity surveyor’s certificate. [24] I found this argument insupportable. The LOA (the contract between the parties) did not require such a verification. No term in the LOA provided that P’s progress bills must be verified by an architect or quantity surveyor. Or that P’s progress bills were subject to an architect’s or quantity surveyor’s certificate. [25] Moreover, there was no affidavit evidence that—before P filed Suit 11 against D—D ever protested against P’s Progress Bill No. 8 for this reason. Or that D ever required P to produce an architect’s or quantity surveyor’s certificate to justify the work done for Progress Bill No. 8, before she would pay it. [26] Further, she who asserts must prove. Since D asserted that the work done did not correspond to the several percentages of work done stated in Progress Bill No. 8, D had the burden to substantiate the assertion, instead of just saying so. There was no evidence or even material on which an inference could have been made that the work actually done did not tally with the percentages of work that P asserted to have been done. [27] Third—D again referred to Progress Bill No. 8, which stated that D made payments that totalled RM419K. D asserted that this amount was Page 9 of 12 incorrect. D asserted that she paid P the total amount of RM430K (not just RM419K). [28] D asserted that Progress Bill No. 8 did not particularise the amount of RM419K. It followed that in D’s DACC, D questioned and denied the claim for RM190K in Progress Bill No. 8. [29] However, I found that D did not challenge the correctness of the RM419K amount until the striking out proceeding. D merely denied P’s claim in Suit 11 for the RM190K related to Progress Bill No. 8. [30] Also, at the hearing of P’s striking out application, D conceded that she did not challenge the correctness of the RM419K amount either in a letter to P, or in her DACC, or in her affidavits in reply in the striking out proceeding. [31] Four—D argued that the LOA did not set out a schedule of progressive billings. As such, P’s Progress Bill No. 8 was not in compliance with any agreed schedule of progressive billings. And so there was no contractual obligation to pay P according to P’s self-serving progressive billings. [32] I found, however, that it was a fact that D signed her acknowledgement and her acceptance of the terms of the LOA. The LOA set out the contract sum of RM1.65 million, and a breakdown of the contract sum into certain descriptions of work, as well as a term that states that D was to pay P within 14 days of the “invoice date” i.e. the progress billing date. In other words, D was bound by the terms of the LOA. Page 10 of 12 [33] Five—concerning D’s counterclaim, D argued that her counterclaim should not be struck out. D’s counterclaim included a claim for RM130K, which D alleged was the amount that she had additionally expended to hire another contractor to complete the works (because P did not complete the works). [34] I did not favour this argument. There was affidavit evidence that D was in breach of the contract (the LOA) by not paying P on the progress billings issued, including Progress Bill No. 8. To make a counterclaim for moneys spent that resulted from D’s own breach of the contract, and to counterclaim that money from the counterparty to the contract that she breached, was to my mind, not a reasonable cause of action. It also tantamounted to an abuse of the process of the Court. [35] Further, D’s letter of demand (dated 9.6.2022), issued to P, concerning her counterclaim, was for RM184,600.00. D demanded that P pay her RM184,600.00. But in D’s DACC, she inconsistently counterclaimed RM130K. CONCLUSION [36] I did not find that the Sessions Court was “plainly wrong” or “fundamentally erroneous” in its judgment to strike out the DACC and accordingly enter judgment against D. I was not inclined to interfere with the Sessions Court’s decision. [37] As for D’s defence, I found that it was plain and obvious that D had no reasonable defence to P’s claim under Progress Bill No. 8. I found D’s defence to be obviously unsustainable and wholly unarguable. Page 11 of 12 [38] As for D’s counterclaim, I found that D’s counterclaim disclosed no reasonable cause of action. I found that it should be struck out summarily. [39] On these grounds, I dismissed D’s appeal with costs of RM5k to be paid by D to P by 9.9.2024. Costs are subject to the allocatur. The Sessions Court’s decision was affirmed. Dated: 8 January 2025 KENNETH ST JAMES Judge Penang High Court Counsel/Solicitors: For the Appellant—N. Ahilan [Messrs. N. Ahilan & Associates (Penang)] For the Respondent—R. Rajendran [Messrs. Rajendran & Co. (Penang)] Legislation referred to: