Scenic Fareast Sdn Bhd v Biforst Logistics Sdn Bhd (BA-12BNCvC-41-10/2023)

The Plaintiff was the tenant claiming the balance of its deposit under the tenancy in the sum RM376,750.60 (a further deposit for utilities in the sum of RM50,000.00 was not in issue). The Defendant was the landlord counterclaiming for reinstatement costs in excess of the said deposit. Background facts [3] There was an earlier suit filed by the Defendant against the Plaintiff for rental arrears. This resulted in a settlement agreement and insofar as it is relevant to the present action, the tenancy was terminated and the Plaintiff agreed to reinstate the demised premises at its cost, the sum of which was to be mutually agreed (“Reinstatement Costs”).

To this end, a joint inspection was carried out by the parties on 31- 3-2020 and 13-5-2020, but they did not agree upon the Reinstatement Costs. There were also disputes on the timing of works and utilization of the deposit, in addition to specific disputes around a separate agreement for the dismantling and removal of a weigh bridge at the premises.

The sole issue in the appeal was whether the Sessions Court was plainly wrong in finding that the Reinstatement Costs amounted to RM120,350.00 as contended by the Plaintiff and not RM515,212.00 (or RM535,012.00 including the cost of dismantling and removing a weigh bridge) as contended by the Defendant. Analysis and findings [6] The Sessions Court Judge who delivered the Judgment was not the trial Judge. It was a non-speaking Judgment. The only discernible basis for the Sessions Court Judgment was that there was an agreement based on estoppel by conduct that the Plaintiff’s contractor’s quote of RM120,350.00 was acceptable.

This Court found that there was no factual basis for the finding of an agreement by estoppel as the evidence quite clearly showed that there were disagreements, and no conduct which could be said to have induced the Plaintiff to believe that the Defendant had agreed to the RM120,350.00. The Plaintiff’s witnesses also agreed that the Defendant had not indicated its agreement to the figure quoted on 19-5-2020 and on 29-5-2020, the Defendant objected to it in a letter as being too low.

As there was no agreement, it was for the Court to determine what was reasonably reflective of the true Reinstatement Costs and to this end, three (3) sets of costs were in evidence, namely:

RM120,350.00 based on the estimate quoted by Messrs Sai Global Engineering Enterprise, the Plaintiff’s contractor.

RM515,212.00 (or RM535,012.00 including the cost of dismantling and removing a weigh bridge) based on the actual sums billed by AR Rayyan Global Services and Avery Malaysia Sdn Bhd, the Defendant’s contractors for work done.

RM572,947.23 based on the professional opinion of a Quantity Surveyor who produced a report and testified to what constituted reasonable Reinstatement Costs. [9] At the hearing of the appeal, counsel for the parties submitted that there were no disputes as to the items of repair to which the 3 sets of costs referred (“List of Defects”). The large disparity in the costs put forward were in relation to the same List of Defects. [10] The Plaintiff relied on the quote of RM120,350.00 given by its contractor following a second joint inspection on 13-5-2020 (the first was on 31-3-2020 and the Plaintiff had at the time, estimated the costs at RM90,230.00). [11] The Defendant relied on evidence of a Schedule of Costs and proof of payments made to the Defendant’s contractor for actual work carried out and the professional opinion of the Quantity Surveyor who was offered as an expert and who testified at the trial as SD2. [12] The Plaintiff challenged the completeness of the Defendant’s records of claims and payments for the work done, but the same argument would apply to a greater extent in evaluating the probative value of a mere quotation relied on by the Plaintiff (Chong Nge Wei & Ors v Kemajuan Masteron Sdn Bhd [2022] 4 CLJ 833). [13] The Plaintiff also challenged SD2’s evidence as an expert opinion because his report was not tendered by way of an affidavit pursuant to Order 40A Rule 3 of the Rules of Court 2012. However, failure to tender a written expert opinion according to the requirements of Order 40A Rule 3 of the Rules of Court 2012 does not render it inadmissible or diminish the opinion expressed (Gee Eng Wah v Teoh Eng Keong & Anor [2019] MLJU 495). [14] SD2 testified at the trial of his 30 years’ experience as a Quantity Surveyor and gave his opinion on the estimated Reinstatement Costs for the same List of Defects in a report which was admitted into evidence. The material he reviewed included the joint inspection report, photographs, drawings and site inspections and measurements. This evidence was largely unchallenged at the trial. [15] Based on the relative cogency of the available evidence, this Court found that the balance of probabilities clearly leaned in favour of a finding that the Reinstatement Costs was more reasonably estimated at RM515,212.00 as contended by the Defendant. There was no good reason to disregard the evidence of SD2 whose skill and expertise is precisely to provide the desktop estimates called for in this case. It was closer to and therefore better corroborated the sums incurred by the Defendant. Conclusion [16] For the reasons set out above, this Court allowed the Defendant’s appeal and set aside the Judgment of the Sessions Court with costs here and below in the sum of RM15,000.00. Consequently, the Plaintiff’s claim was dismissed and the Defendant’s counterclaim was allowed. Bertarikh : 10 Mac 2025 SGD ELAINE YAP CHIN GAIK PESURUHJAYA KEHAKIMAN MAHKAMAH TINGGI MALAYA SHAH ALAM Peguam Untuk Perayu: Mohd Saiful Hadi (with Faradilla Jehan Kadar), Messrs Jehan & Co Untuk Responden: Yong Shu Xhuan, Messrs Alwin