SEIE ENGINEERING SDN BHD v Kerajaan Malaysia (WA-21C-5-08/2022)

This suit involves various claims by the main contractor against the employer in relation to the construction of the Rembau Hospital in Negeri Sembilan.

One of the contractor’s main grouses was the performance of the works by one of the sub-contractors which was nominated by the employer. Hence, one of the issues which had to be determined by the Court was whether the employer can be made liable for the delay in the project which was caused by the Nominated Sub-Contractor (‘NSC’).

After having considered the pleadings, oral and documentary evidence and written submissions and clarifications by the learned counsels representing the parties, the Court allowed the Plaintiff’s claim in the sum of RM18,155,150.80 out of the total claimed amount of RM21,455,331.54.

In the Notice of Appeal filed by the Plaintiff, it is stated that the Plaintiff is appealing against part of my decision in respect of –

back charges which were wrongfully imposed upon the Plaintiff by the Defendant in relation to electricity supply by Tenaga Nasional Berhad (‘TNB’) in the sum of RM653,726.73; and

all loss and expense claims Nos. 1 to 7 for the NSC in the sum of RM2,778,980.89 which was deducted.

Meanwhile, in the Notice of Appeal filed by the Defendant, the Defendant is appealing against part of my decision on –

liability where –

the Defendant was held culpable for delays in the works for the Project which were due to design defects;

(ii) the Defendant was wrong in issuing Certificate of Non-Completion (‘CNC’) No. 2 and in not allowing Extension of Time (‘EoT’) No. 8; S/N RV6xtFhtqkumMTPJbtnjQ

(iii) the Certificate of Practical Completion (‘CPC’) dated 10.10.2019 was issued late to the Plaintiff; and

(iv) liquidated ascertained damages (‘LAD’) were wrongly imposed against the Plaintiff; and

quantum where the Defendant was ordered to pay the Plaintiff damages as follows:

LAD in the sum of RM1,981,455.00;

(ii) claim for losses between the issuance of CNC No. 2 and CPC in the sum of RM436,561.52;

(iii) claim for Variation Works in the sum of RM1,941,665.37;

(iv) claim for idling cost in the sum of RM1,312,348.91;

claim for loss and expense for EoT Nos. 1 to 7 in the sum of RM12,292,883.00; and

(vi) claim for additional costs for the delay in the issuance of the Certificate of Making Good Defects (‘CMGD’) in the sum of RM190,237.02.

These are my full grounds of judgment for purposes of the appeals as above mentioned. S/N RV6xtFhtqkumMTPJbtnjQ

The Plaintiff is a private limited company incorporated in Malaysia and having its business address at D-16-G, Jalan Atmosphere, Bandar Putra Permai, 43300 Seri Kembangan, Selangor. The Plaintiff is a contractor of building, civil and infrastructural works.

The Defendant is the Government of Malaysia, represented by Jabatan Kerja Raya Malaysia (‘JKR’), and the Plaintiff’s employer for the project known as “Cadangan Hospital Rembau, Negeri Sembilan (76 Katil) Fasa 2 – Kerja Bangunan Dan Lain-Lain Kerja Berkaitan” (‘Project’).

On 2.8.2013, the Defendant issued the “Surat Setujuterima Tender” to the Plaintiff to inform that the Plaintiff’s tender for the Project for the sum of RM96,969,582.25 was accepted by the Defendant.

10.

The appointment of the NSC was based on PWD 203N (Rev 1/2010).

The Plaintiff’s applications for EoT which were allowed are as follows:

No. 1 from 8.9.2016 to 29.12.2017;

No. 2 from 29.12.2017 to 18.4.2018;

No. 3 from 18.4.2018 to 15.7.2018;

No. 4 from 15.7.2018 to 3.10.2018;

No. 5 from 3.10.2018 to 18.12.2018;

No. 6 from 18.12.2018 to 3.2.2019; and

No. 7 from 3.2.2019 to 19.6.2019.

On 8.6.2022, the Plaintiff’s solicitors, Messrs. C H Tay & Partners served a Notice of Demand claiming the sum of RM25,613,425.90 to the Defendant.

In paragraph 17 of the Amended SoC, the Plaintiff claimed against the Defendant for the following:

the sum of RM25,613,425.90;

(ii) that the aforesaid sum of RM25,613.425.90 is derived from the declarations sought for, namely that the – S/N RV6xtFhtqkumMTPJbtnjQ

LAD of RM1,981,455.00 and back charges of RM653,726.73 were unlawfully imposed by the

Plaintiff is entitled to the -

loss and damage amounting to RM436,561.52 in respect of the period between the CNC to the date of the CPC;

(ii) losses arising from the Superintending Officer’s (‘S.O.’) failure, refusal or negligence to remove M.S. Time Sdn Bhd (‘MS Time’), one of the NSC, amounting to RM106,730.00;

(iii) balance variation works that was duly completed amounting to RM2,181,913.75;

(iv) idling costs amounting to RM1,312,348.91;

loss and expenses amounting to RM16,041,296.64, in respect of the period of the approved EoT No. 1 to 7; and

(vi) certified sum amounting to RM2,899,393.35; and

sum of RM190,237.02 as the additional costs and losses due to the late issuance of the CMGD. S/N RV6xtFhtqkumMTPJbtnjQ THE PLAINTIFF’S CASE

The Plaintiff asserted that it had duly carried out the works with due diligence to completion.

However, the delays were caused by the NSCs, in particular MS Time, which was the NSC appointed by the Defendant for the works described as “Sistem Penyamanan dan Pengalihan Udara”.

Although the Plaintiff had submitted numerous request(s) to the S.O. to terminate MS Time, the S.O. failed, refused or neglected to give his consent for this matter at the material time.

The late response by the S.O. or MS Time’s delay had materially contributed to, or resulted in, the 1st CNC dated 3.2.2019 (‘CNC No. 1’) issued by the Defendant to the Plaintiff. Through the Defendant’s letter dated 1.10.2020, the Defendant themselves acknowledged that CNC No. 1 was issued due to MS Time’s fault.

The Plaintiff subsequently submitted its final account, in the form of the Final Claim No. 20 to the Defendant in the sum of RM28,248,607.73. Vide the Plaintiff’s solicitors’ letter dated 8.6.2022 to the Defendant, the correct breakdown of the Plaintiff’s final claim in the sum of RM25,613,425.90 was conveyed.

The Defendant has, through its letter dated 15.6.2022, stated that it would deliver its reply within 30 days but it failed to do so.

Through EoT No. 7, the extended completion date for the works in the Project was 19.6.2019 where the Plaintiff had duly notified the Defendant of their practical completion on or about 7.6.2019.

Notwithstanding the above, the Defendant proceeded to wrongly issue CNC No. 2 to the Plaintiff on 19.6.2019 and through the letter dated 9.12.2019, issued the CPC dated 10.10.2019.

To the Plaintiff, time for completion of the Plaintiff’s works had been set at large.

The Defendant had partially approved the Plaintiff’s claim for loss and expenses in respect of EoT Nos. 1, 2, 4, 5 and 6. Accordingly, the Defendant’s conduct was unlawful in failing, refusing or neglecting to promptly or properly address the issue with MS Time and imposing LAD on the Plaintiff.

The Plaintiff has suffered loss and damages as a result of the Defendant’s breach of the terms of the LoA, the Contract or PWD 203N and the implied terms.

In order to carry out the work for the Air Conditioning and Diversion System for the Project, the Plaintiff has agreed to S/N RV6xtFhtqkumMTPJbtnjQ accept the appointed subcontractor, MS Time with a contract price of RM9,538,800.00 through the Letter of Nomination of Sub-Contractor Named to the Main Contractor JKR 203N3 (Pind. 2010) dated 10.12.2014 and Letter of Acceptance of Tender by the Principal Contractor to the Nominated Subcontractor dated 10.12.2014.

Based on Clause 60.2 of PWD 203N and paragraph 6 in the NSC nomination letter to the Plaintiff, the Plaintiff has 21 days to object to the appointment of the NSC, failing which, the Plaintiff was deemed to accept the appointment.

The formal contract agreement between the Plaintiff and the NSC was entered on 10.12.2014. All terms in the PWD 203N were binding on the Plaintiff and the NSC. The Defendant has no contractual relationship with the NSC. Clause 43 of the Contract does not give the Defendant the right to grant an EoT for the default and delay by the NSC.

Based on Clauses 62 and 63 of the Contract, the Plaintiff was solely responsible for the acts and any breach of the contractual provision by the NSC, and it shall be the Plaintiff’s responsibility to perform the works anyway.

The Plaintiff raised the issue of experience and capability concerning the NSC after almost a year after the Surat Setuju Terima was signed between the Plaintiff as the main contractor and the NSC.

The Defendant issued five warning letters to the Plaintiff from 2016 to 2019 listing the late work activities at the site caused by the Plaintiff. CNC No. 2 was issued on 20.6.2019 because the Plaintiff failed to complete the on-site works within the original period of 19.6.2019.

The definition of “practical completion” is when all works have been fully completed in accordance with the provisions of the contract. Vide the meeting to discuss the issuance of the CPC on 17.10.2019, the meeting agreed that the date of issuance of the CPC was on 10.10.2019, which was based on the date of issuance of the Certificate of Completion and Compliance (‘CCC’).

LAD was imposed on the Plaintiff in accordance with Clause 40 of the Contract for the Plaintiff’s failure to achieve the stage of completion of work on site as per the Defendant’s letter dated 2.7.2019 and not solely due to the delay and failure by MS Time. The amount of LAD charged was for a period of 113 days commencing from 19.6.2019 to 10.10.2019 at RM17,535.00 per day.

The Defendant was not liable to pay the Plaintiff for any loss and expense resulting from the default of MS Time.

The Defendant has assessed and made payment on the approved variation works in accordance with the terms of the contract.

The Defendant has reviewed and assessed the Plaintiff’s claim for idling costs and it was dismissed because the Plaintiff failed to prove the same.

Back charge claims by the Plaintiff were denied as the costs claimed should be borne by the Plaintiff as the main contractor at that time when the CPC has not been issued.

The Plaintiff was in arrears for the payment of TNB’s bills starting from 1.6.2018. The Defendant has made payment to TNB for the final adjustment to the electricity bills for Testing & Commissioning works vide Perakuan Plearasan Harga Kontrak (‘PHK’) No. 99 dated 1.3.2021.

The Plaintiff’s claim for the certified amount of RM2,899,393.35 was denied and the Defendant has no knowledge of it as the Plaintiff's responsibility as the main contractor was to complete the scope of the work, including its responsibility to the NSC.

The Plaintiff must produce genuine receipts of expenses or any other documents relating to the costs alleged to have been incurred by the Plaintiff or any loss suffered in the sum of

In accordance with Clause 34 of the Contract on “Prime Cost / Provisional Sums”, Wang Kos Prima (‘WKP’) has allocated a sum of money for the work or services to be performed by the NSC and the Plaintiff was entitled to a profit and service charge.

The Defendant prayed for the Plaintiff’s claim to be dismissed. THE TRIAL & AGREED ISSUES TO BE TRIED 43 The trial was held over nine days. During that period, two witnesses testified for the Plaintiff whilst the Defendant called three witnesses. The particulars of the witnesses are as shown below:

Mr. Jamal Bin Rous, the Plaintiff’s Director and former

Dato’ Seri Ng Teck Long, the Plaintiff’s Chief Executive

Madam Rohaya Binti Abdul Mois, Jurutera Awam Penguasa Kanan, Cawangan Kerja Kesihatan (DW1);

Mr. Onni Dzasman Bin Nasruddin, Jurutera Awam Penguasa Kanan, Cawangan Kejuruteraan Infrastuktur Pengangkutan, Ibu Pejabat JKR (DW2); and

Sr. Ramlah Binti Abdul Rahman, Juruukur Bahan, Penguasa Kanan, Pasukan Projek Khas 1, Ibu Pejabat JKR (DW3).

The Agreed Issues To Be Tried for purposes of the trial dated 19.6.2023 and filed on 2.9.2023 (encl. 61, ‘ITBT’) are as follows: S/N RV6xtFhtqkumMTPJbtnjQ “1. Whether the Plaintiff or Defendant who makes actual decision on the appointment and termination of Nominated Sub-contractor [“NSC”].

Whether the Plaintiff or Defendant is culpable for the delay(s) in the Project, inter alia, the delays caused by –

NSC;

(ii) design defects; and

(iii) issuance of CMGD.

Whether the Defendant had wrongly issued the Certificate of Non-Completion (“CNC”).

Whether the Certificate of Practical Completion [“CPC”] dated 10.10.2019 was issued late to the Plaintiff in view that Notice of Completion of Practical Works was given on 7.6.2019.

Whether the Defendant had wrongly imposed LAD and back-charges on the Plaintiff.

Whether the Plaintiff is entitled to the Plaintiff's claims in this proceeding:

the sum of RM25,613,425.90;

(ii) that the aforesaid sum of RM25,613.425.90 is derived from the declarations sought for, namely that the –

LAD of RM1,981,455.00 and back charge of RM653,726.73 were unlawfully imposed by the Defendant on the Plaintiff;

Plaintiff is entitled to the – i. loss & damage amounting to RM436,561.52, in respect of the period between the CNC to the date of the CPC; ii. losses arising from the S.O.’s failure of refusal or negligence to remove M.S. Time (one of the NSCs), amounting to RM106,730.00; iii. balance variation works that was duly completed, amounting to RM2,181,913.75; S/N RV6xtFhtqkumMTPJbtnjQ iv. idling costs amounting to RM1,312,348.91; v. loss & expenses amounting to RM16,041,296.64, in respect of the period of the approved EOT No. 1 to 7; vi. certified sum amounting to RM2,899,393.35;

(iii) the sum of RM190,237.02 as the additional costs and losses due to the late issuance of the CMGD;

(iv) interest at the rate of 5% per annum on RM25,613.425.90 or on such sum as may be determined by this Court from such time as determined appropriate by this Court; and

(iv) costs”. ANALYSIS & FINDINGS OF THE COURT

The parties, especially the Plaintiff, filed comprehensive submissions, Table of Contractual Clauses, Flow Chart and Scott Schedule (Quantum) [Revised] in relation to all the ITBT and in response to the clarifications sought by the Court (see encls. 102, S/N RV6xtFhtqkumMTPJbtnjQ 104, 106, 108, 111, 112, 114, 117, 118, 120 and 121). As evident by the time taken for me to pronounce the decision, I have carefully read and considered all these submissions in arriving at my findings and conclusions.

For the sake of brevity, in these grounds of judgment, more emphasis will be given to my decision on the issues which are subject to appeal as per the two Notice of Appeal. 1st Issue: Whether the Plaintiff or Defendant who makes actual decision on the appointment and termination of NSC

At the clarification on 26.6.2024, the learned counsels agreed that the appointment of MS Time as the NSC was made by the Defendant. The Plaintiff was given the right to object to the nomination of the NSC within 21 days from the date of the Defendant’s letter (10.12.2024) to the Plaintiff.

Since the Plaintiff did not object to the Defendant’s nomination of MS Time as the NSC within the stipulated period, the Plaintiff was deemed to have agreed with the nomination. In this regard, Clause 60 of the Contract provides as follows: “60.0 NOMINATED SUB-CONTRACTORS AND/OR

60.1 The S.O. shall obtain tenders for Nominated Sub-Contractor’s or Nominated Supplier’s work or S/N RV6xtFhtqkumMTPJbtnjQ services, or for the supply of materials or goods in respect of which Prime Cost Sums or Provisional Sums are included in the Bills of Quantities, and the Contractor shall, on the Written instruction of the S.O. enter into such sub-contracts with the Nominated Sub-Contractor or Nominated Suppliers as the case may be and such sub-contracts shall be in the form as referred to in clause 60.2 (b).

60.2 The S.O. shall not nominate as a sub-contractor or a supplier in connection with the Works:

a person against whom the Contractor shall make in writing twenty one (21) days from the date of the S.O.’s instruction under clause 60.1 hereof what the S.O. considers to be reasonable objection;

a person who will not enter into a sub-contract with terms and conditions as provided in the Government standard form of sub-contract or Nominal Sub-contractor (Form PWD 203N) or for Nominated Supplier (Form PWD 203P), as the case may be; or

a person who will not give to the Government such indemnity with terms and S/N RV6xtFhtqkumMTPJbtnjQ conditions as provided in the Government standard form of Letter of Indemnity for Nominated Sub-contractors (Form PWD 203N7) or for Nominated Suppliers (Form PWD 203P7), as the case may be.

60.3 If pursuant to clause 60.2, the Contactor is not required to enter onto a sub-contract with a Nominated sub-contract or Nominated Supplier, as the case may be, the S.O. shall do one or more of the following:

nominate an alternative sub-contractor or supplier, as the case may be, in which case clause 60.2 hereof shall apply;

by order under clause 24 vary the Works or the works or services, materials or goods, the subject of the Prime Cost Sums or Provisional Sum as aforesaid, including if necessary the omission of any such work or services, materials or goods so that they may be provided by workmen, contractors or suppliers as the case may be, employed by the Government either concurrently with the Works or at some other date in which case the Contractor shall not be entitled to claim for any losses therefrom; or

in accordance with clause 34.4 arrange for the Contractor to execute such work or services, or to supply such materials or goods.”. (see too, the Defendant’s Nomination of Sub-Contractor dated 10.12.2014).

As for the termination of the NSC, the Court accepts the Defendant’s submission on the interpretation of Clause 63 of the Contract and Clause 33.2 of the PWD 203N. These contractual provisions are as follows: “63.0 RESPONSIBILITIES OF CONTRACTOR TO NOMINATED AND/OR SUB-CONTRACTORS

63.1 The Contractor shall be fully responsible to ensure that the Nominated Sub-Contractor or Suppliers shall conform with the terms and conditions of this Contract and shall be fully responsible for the acts, defaults or breach of any terms and/or conditions of this Contract by the Nominated Sub-Contractors or Suppliers on their part in the same way as for his own or those of other sub-contractors or suppliers engaged by himself. The Government shall in no circumstances be liable to the Contractor for the default of any Nominated Sub-Contractors or Suppliers.

63.2 In the event of repudiation or abandonment of his sub-contract by any Nominated Sub-Contractor or Supplier, or the determination by the Contractor of the employment of the Nominated Sub-Contractor or Supplier for any reason whatsoever under the sub-contract, the Contractor shall do one of the following:

with the consent of the S.O. (such consent not to be unreasonable withheld) employ another competent sub-contractor or supplier to complete the sub-contract; or

undertake to complete the sub-contract himself. PROVIDED THAT in any of such events the Contractor is entitled to be paid the same sum for the work or services to be executed, or materials or goods to be supplied, as would have been payable had, the original Nominated Sub-contractor or Supplier completed the sub-contract without any default on its part.”. “33.2 Termination If the Nominated Sub-Contractor fails to remedy the breach within such period, the Contractor shall have the right to forthwith S/N RV6xtFhtqkumMTPJbtnjQ terminate this Sub-Contract by giving a written notice to that effect unless S.O. give prior written approval.”. This means that it is the Plaintiff who makes the decision on the termination of a NSC and no prior written approval of the S.O. is required before the Plaintiff can exercise its right to terminate a NSC such as MS Time. 2nd Issue: Whether the Plaintiff or Defendant is culpable for the delay(s) in the Project, inter alia, the delays caused by –

NSC;

(ii) design defects; and

(iii) issuance of CMGD

Apart from Clause 63, Clauses 62 of the Contract provides as follows: “62.0 NO LIABILITY OF GOVERNMENT TO NOMINATED AND/OR SUB-CONTRACTOR OR SUPPLIER Nothing in clauses 60 or 61 or anything else contained in this Contract shall render the S/N RV6xtFhtqkumMTPJbtnjQ Government in any way liable to any Nominated and/or Sub-Contractor or Supplier.”.

Based on the above quoted contractual provisions, I agreed with the submission by the learned SFC that the Plaintiff was culpable for any delay in the Project which was caused by the NSC.

As for the alleged delay in the Project caused by the design defects, the defendant raised a point on pleadings, namely that the issue of design defects was not pleaded in the Amended SoC and the Reply to the Amended Defence. I found that, while it was correct to say the former, the latter was inaccurate because in subparagraph 8(ii) of the Reply to the Amended Defence, the Plaintiff responded to the Defendant’s statements regarding the meaning of “practical completion” and the fact that the Plaintiff has yet to meet the requirement that work must be completed to the point of fulfilling the construction function and can be safely occupied or “fit for the purpose”, by pleading the following: “… the Plaintiff understood that the Defendant’s failure or refusal to issue the certificate of practical completion for the Project was due to design(s) defects. In this regard, the Plaintiff shall rely on the MOH’s letter dated 10.07.2019 (that was addressed to the defendant) and to the minutes of meeting dated 07.08.2019;”.

The Defendant claimed that it did not have the opportunity to answer the issue regarding design defects in the Defence and S/N RV6xtFhtqkumMTPJbtnjQ that the facts only appeared in the answer to Questions 7 and 8 in WS-PW2.

In my opinion, although the fact on design defects was raised in the Reply to Defence and not in the Amended SoC, delay caused by design defects was agreed by the Defendant to be included in the ITBT and the Defendant also addressed this issue in WS-DW2 and made submission on the same.

The general rule is that parties are bound by the ITBT. The exception to this general principle is when the following facts are present:

the issue was pleaded in the pleadings;

the issue was raised in the course of the trial or in the submission of the parties; and

no objection was taken promptly to the departure from the Agreed Issues [see Bounty Dynamics Sdn Bhd (formerly known as Media Development Sdn Bhd) v Chow Tat Ming & 175 Ors [2016] 1 MLJ 507 (CA), Appraisal Property Management Sdn Bhd & Ors v Singham Sulaiman Sdn Bhd [2023] 2 MLJ 153 (CA) and Chiew Yit Kin v Pengarah Tanah dan Galian Wilayah Persekutuan & Ors [2023] MLJU 601 (HC)].

In the instant case, the Defendant was clearly bound by the ITBT.

Next, the Defendant argued that the Plaintiff failed to prove –

that there were design defects in the Project and that these were caused by the Defendant. The Defendant insisted that there was no design defect problem, but it was a new comment or request by the client, the Ministry of Health Malaysia (‘MOH’), as evident by DW1’s evidence during re-examination as follows: “ROHAYA Saya tak, ok. Untuk yang kitchen ni, Yang Arif, kontraktor telah melaksanakan seperti mana dalam kontrak, lukisan kontrak. Jadi, bila pihak end user, kita punya KKM, klien kita mengatakan sebaliknya, sebab dia kata dia tak bersetuju sebab benda ni duduk atas grating all that. Jadi, dia nak minta pertukaran. Jadi, itu kalau on, dalam kontrak, kontraktor telah fulfilled dia punya requirement. Sekiranya kita nak melakukan pindaan, dia akan merupakan perubahan. Jadi, tapi dalam kes ini, kita tidak mengeluarkan arahan perubahan kepada kontraktor. Jadi, kita terima, jadi, that’s why kita dah berbincang, kita mengemukakan surat kepada KKM, sekiranya ingin menukar, ingin membuatnya, kita akan buat selepas S/N RV6xtFhtqkumMTPJbtnjQ projek ini dikeluarkan CPC. Makna bukan melalui main kontraktor. Sebab kontraktor telah fulfilled dia punya obligation.…”;

that even if there were design defects, that these resulted in delay to the Plaintiff’s work at the site. The Plaintiff’s delays can be seen through the reminder letters, five Warning Letters and Work Progress Reports for the period from 14.12.2016 to 28.6.2018. There was obvious delay on the part of the Plaintiff as it had to apply seven times for EoT to complete the Project; and

that there was a Variation Order (‘VO’) by the Defendant to be performed by the Plaintiff due to the new design.

However, contrary to the stance taken by the Defendant, the Plaintiff had produced sufficient evidence during the trial to discharge its burden of proof whereby –

in relation to MOH’s letter to JKR dated 10.7.2019 on “Laporan Sesi Pemeriksaan Bilik Ke Bilik”, in re-examination, PW1 testified that the Plaintiff had followed the drawings but during the room-to-room inspection from 17 – 26 June 2019, MOH had raised additional or new requirements;

in the column “ULASAN JKR/PERUNDING” in LAMPIRAN A to JKR’s letter to MOH dated 20.9.2019, JKR had provided its comments wherein under “H. ISU S/N RV6xtFhtqkumMTPJbtnjQ MELIBATKAN REKABENTUK”, the comments were, among others, “Tiada di dalam kontrak” or “Telah mengikut lukisan kontrak”;

in the Plaintiff’s letter to JKR dated 17.10.2019, the Plaintiff gave an undertaking, among others, that “Pintu rintangan radiasi akan diganti dan dipasang sepenuhnya berdasar kepada lukisan pindaan yang dibincang dan diminta sebelum penyerahan bangunan kepada End User yang dijangka pada awal November 2019.”. There was no rebuttal from JKR as to this letter;

the Plaintiff had produced and referred to several documents which show its involvement in the design changes arising from MOH’s requirements, which were not challenged or rebutted by the Defendant, namely –

the Plaintiff’s letter dated 6.8.2019 titled “Niat Untuk

(ii) the Minutes of “Mesyuarat Maklum Balas Pemeriksaan Akhir Bilik Ke Bilik” on 7.8.2019 where under Item 3.1 it is stated that “Puan Pengerusi juga mengingatkan kepada semua tentang anggaran kos yang diperlukan bagi keperluan tambahan yang perlu disediakan selewat-lewatnya hari Jumaat minggu hadapan (16.8.2019) dan … SEIE perlu memaklumkan kepada JKR di dalam surat tentang S/N RV6xtFhtqkumMTPJbtnjQ kerja-kerja yang tidak akan dibuat beserta alasan yang munasabah.”;

(iii) the Plaintiff’s e-mail dated 8.8.2019 to JKR submitting the estimated time to complete “kerja tambahan/perubahan kerja yang diminta oleh pelanggan/KKM semasa pemeriksaan akhir bilik ke bilik”; and

(iv) the “Minit Mesyuarat Tapak No. 68” on 21.8.2019 wherein for the item on X-Ray, reference was made to the equipment which was to be supplied by one of the Plaintiff’s NSC in order to “memenuhi komen baru daripada user” and on the issue of grating, the end user’s agreement to cut the grating and the Plaintiff was required to carry out mock-up work for the end user’s inspection on 27.8.2019; and

DW2 admitted during cross-examination that there were design issues.

As regards the numerous reminder letters and Warning Letters which were issued to the Plaintiff concerning the delay in the works, the Plaintiff had applied for, and was granted EoT to complete the Project. DW2 admitted during cross-examination that none of the basis for the granting of EoT was due to the Plaintiff’s fault or breach.

DW2 similarly agreed during cross-examination, when his attention was drawn to the e-mail which he sent to the Director S/N RV6xtFhtqkumMTPJbtnjQ of Rembau Hospital dated 26.8.2022, that as at that date, all defects rectification works have been completed and the CMGD was issued late by JKR to the Plaintiff. In this regard, Clause 48.4 of the Contract stipulates that: “48.4 Certificate of Completion of Making Good Defects When in the opinion of the S.O. the Contractor has made good, the defects, imperfections, shrinkages or any other fault whatsoever which he is required to make good under clauses 48.1(a) or (b), or both, the S.O. shall issue a certificate to that effect, and the date specified in such certificate shall be the date on which the Contractor has completed making good such defects, imperfections, shrinkages or any other fault whatsoever. The said Certificate shall be referred to as the “Certificate of Completion of Making Good Defects.”.

In conclusion, it was my finding that the Defendant was culpable for the delay caused by design defects and the issuance of the CMGD. S/N RV6xtFhtqkumMTPJbtnjQ 3rd Issue: Whether the Defendant had wrongly issued the CNC 4th Issue: Whether the CPC dated 10.10.2019 was issued late to the Plaintiff in view that Notice of Completion of Practical Works was given on 7.6.2019 5th Issue: Whether the Defendant had wrongly imposed LAD and back-charges on the Plaintiff

The 3rd, 4th and 5th Issues are interrelated and shall be addressed together.

For CNC No. 1, DW1 had explained in her answer to Question 17 in WS-DW1 that, after CNC No. 1 was issued, the Plaintiff had submitted an appeal for EoT No. 7 to be given and this was accepted by the Defendant. With EoT No. 7, CNC No. 1 was cancelled (see too, DW1’s evidence in re-examination).

Hence, the 3rd Issue was in connection with CNC No. 2.

Reference is again made to DW1’s evidence where she said that CNC No. 2 was rightfully issued pursuant to Clause 40 of the Contract because the Plaintiff failed to complete the work at the site within the extended period of 19.6.2019.

Clause 40 of the Contract reads as follows: S/N RV6xtFhtqkumMTPJbtnjQ “40.0 DAMAGES FOR NON-COMPLETION

40.1 If the Contractor fails to complete the Works by the Date of Completion or within any extended time granted pursuant to clause 43, the S.O. shall forthwith issue a Certificate of Non-Completion to the Contractor.

40.2 Without prejudice to the Government’s right to terminate this Contract, when the S.O. issues the Certificate of Non-Completion, the Government shall be entitled to recover from the Contractor, Liquidated and Ascertained Damages calculated at the rate stated in Appendix 1 from the period of the issuance of Certificate of Non-Completion to the date of issuance of Certificate of Practical Completion or the date of termination of this Contract. The S.O. may deduct such Liquidated and Ascertained Damages from any money due or to become due to the Contractor, failing which such damages shall be recovered from the Performance Bond or as a debt due from the Contractor. The S.O. shall inform the Contractor in writing of such deduction.

40.3 The Liquidated and Ascertained Damages stated in Appendix 1, shall be deemed to be a reasonable amount of loss which the Government will suffer in the event that the Contractor is in breach of this S/N RV6xtFhtqkumMTPJbtnjQ clause. The Contractor by entering into this Contract agrees to pay to the Government the said amount(s) if the same become due without the need of Government to prove his actual damage or loss.

40.4 The payment or deduction of such Liquidated and Ascertained Damages shall not relieve the Contractor from his obligation to complete the Works or from any of its obligations and liabilities under the Contract.”.

Upon receiving CNC No. 2, the Plaintiff hade submitted its views and objections to JKR vide the letter dated 12.7.2019. DW1 had testified that JKR did not refute the contents of the Plaintiff’s letter.

The Plaintiff applied for EoT No. 8 on 1.8.2019. A reminder letter was sent to the Defendant on 17.9.2019, wherein reference was made to the report of the room-to-room inspection in MOH’s letter dated 10.7.2019, to support the Plaintiff’s stand that the delay in the acceptance of the building was due to, among others, the new requirements by MOH.

The Plaintiff followed up on its application for EoT No. 8 vide the letter dated 2.3.2020. However, JKR remained silent whereas under Clause 43 of the Contract, the S.O. is required to consider any application for EoT and form an opinion whether the EoT should be granted or otherwise.

The Plaintiff contended that the CPC should have been issued soon after 3.7.2019 because –

Minit Mesyuarat Tapak No. 65 dated 19.4.2019 shows that the consultant had informed the meeting that “Sasaran siap kerja pembaikan – 30.4.19” and testing and commissioning by JKR will take two weeks and was expected to be completed by 15.5.2019. No mention was made of any incomplete works. Moreover, the Minute states that as at 15.4.2019, the actual works completed was 99%;

on 7.6.2019, the Plaintiff had given written notice to JKR that the works have achieved practical completion in line with the requirement under Clause 39 of the Contract and requested for an inspection to be carried out with a view of the CPC being issued;

following the room-to-room inspection from 17- 21 June 2019, JKR wrote to the Plaintiff on 2.7.2019 enclosing a “senarai laporan kerosakan dan kecacatan hasil daripada pemeriksaan tersebut” for the Plaintiff’s action and no mention was made of any incomplete works;

Minit Mesyuarat Tapak No. 67 dated 3.7.2019 shows that “Kemajuan Semasa (berdasarkan EOT No. 7)” was 100%. DW1 attempted to explain that “… Memang betul kalua kita nampak sini ada planning 100, actual 100. Kemungkinan ada berlaku kesilapan pun saya kena check baliklah, mungkin. … kita buat pemeriksaan dan kita dapati dari S/N RV6xtFhtqkumMTPJbtnjQ pemeriksaan itu, … ada yang belum disiapkan lagi.”. Nevertheless, DW1 agreed that if the Plaintiff did not complete any works, this would be noted in the item on “Laporan Kemajuan Kerja” in the said Minutes;

DW1 and DW2 agreed that, even with MOH’s letter dated 10.7.2019, there was no outstanding or incomplete work on the Plaintiff’s part. MOH’s letter was regarding new requirements as discussed under the 2nd Issue on “design defects”;

testing and commissioning were a repeated exercise and for DW1 to state that the CPC can only be issued after each and every testing and commissioning were completed is misconceived. Even after the CPC was issued, the Plaintiff was still carrying out the repeated testing and commissioning. In the same vein, any issue on defects would be covered during the Defects Liability Period (‘DLP’);

there was confusion on the part of DW1 and DW2 on the sequence of the issuance of the CPC and CCC. DW 1 stated in re-examination and DW2 stated during cross-examination that CCC must be issued first, followed with the CPC. In fact, CPC was issued on 10.10.2019, CCC on 27.11.2019 and CMGD on 27.10.2022. The Defendant relied on JKR’s letter to the Plaintiff dated 2.7.2019 wherein the definition of “practical completion” was set out, the work for “… Sistem Penyaman dan Pengalihan Udara masih TIDAK SEMPURNA …” and the Plaintiff’s opinion that the S/N RV6xtFhtqkumMTPJbtnjQ defects are de minimis was incorrect. However, these matters were not reflected in the Minit Mesyuarat Tapak No. 67 on the very next day. Instead, the works were said to have been 100% completed.

After having evaluated the oral and documentary evidence and the submissions by the parties, I was persuaded by the Plaintiff’s contention as set out above.

To sum up, it was my finding that the Defendant had wrongly issued CNC 2 and had failed to consider the Plaintiff’s application for EoT No. 8; and that the CPC dated 10.10.2019 was issued late to the Plaintiff. It thus necessarily followed that the Defendant had wrongly imposed LAD in the sum of RM1,981,455.00 and the Plaintiff was entitled to its claim for this amount. - Back charge in the sum of RM653,726.73 for TNB Bill

The Plaintiff argued that the Defendant wrongly back-charged the sum of RM653,726.73 and this amount should be refunded or repaid to the Plaintiff for the following reasons:

the letter from the Negeri Sembilan State Health Department dated 14.2.2018 to Pengurus Cawangan TNB Rembau for “Permohonan Meter Baru” does not involve the

JKR’s back charge for the electricity charges at pp 159 - 162, B59 read together with pp 158 and 185, B59 show that JKR relied on its letter dated 29.9.2020 to impose the electricity back charge of RM653,726.73 on the Plaintiff. In TNB’s bill dated 1.8.2020, “Tunggakan” is stated as RM0.00 and “Caj Semasa” is RM903,809.65. When cross-examined, DW2 agreed that the TNB bill shows that there were no arrears in payment and the amount billed was for the current usage of electricity. Moreover, the account user in the TNB bill is stated as “Ketua Penolong Pengarah, Bahagian Perubatan, Jabatan Kesihatan Negeri Sembilan”, not the Plaintiff; and

the CPC was issued on 10.10.2019. There was no carried forward outstanding sum on TNB.

The Defendant firstly raised a point on pleadings; that the Plaintiff did not plead the material facts on this item in the Amended SoC and this resulted in the Defendant being deprived of the opportunity to answer this issue in the Defence and Witness Statements.

There is no merit to the Defendant’s contention because the Plaintiff had pleaded the alleged unlawful back charge in subparagraph 15(vii) in the Amended SoC, to which the Defendant, in subparagraph 15(vii) of the Defence had denied the same “… as the cost claimed is actually a bill that should be borne by the Plaintiff as the main contractor as at that time the CPC has not been issued yet. The Plaintiff has started had overdue and arrears for the payment of TNB’s bills starting on 1.6.2018. … the S/N RV6xtFhtqkumMTPJbtnjQ Defendant has made payment for the final adjustment to the payment of electricity bills for testing & Commissioning … works to TNB vide PHK No. 99 dated 1.3.2021”.

Clearly, the Defendant understood what the Plaintiff’s claim was all about as it was able to plead a defence, and not only that, in my view, the Defendant had also proven its defence, on a balance of probabilities, based on the following evidence:

in Minit Mesyuarat Tapak No. 68 dated 21.8.2019, it was recorded that: “1. Wakil JKN memaklumkan ada tunggakan bil elektrik sebanyak 560K dan minta kontraktor untuk menjelaskannya.

Pihak kontraktor berniat membuat rayuan disebabkan kadar yang dikenakan lebih tinggi mengikut kadar industri (geran tanah) bukannya Institutional (Hospital).

Kontraktor minta bantuan JKR/JKN untuk membuat rayuan.

Pn. Pengerusi minta kontraktor memaklumkan ke TNB niat untuk rayuan tersebut. TINDAKAN: SEIE”; In cross-examination, PW2 agreed that the Plaintiff intended to appeal against the rate that was imposed and had asked JKR or the State Health Department to assist in making the appeal;

in Minit Mesyuarat Membincangkan Pengeluaran … (CPC) dated 17.10.2019, the issue of “Bayaran Bil TNB yang tertunggak” was discussed and it was recorded that “JKR akan bayar amaun bil TNB yang tertunggak tetapi hanya penggunaan lektrik smeasa T&C sahaja; akan gunapakai kaedah pengiraan sepertimana projek Hospital Bainun &

in the letter from Pasukan Projek Khas 1, JKR to Cawangan Kerja Kesihatan, Ibu Pejabat JKR dated 14.8.2020, the calculation for the electricity bill that has to be paid by the Government for testing and commissioning, including late payment surcharge, from October 2018 to July 2020 was attached. It was also conveyed that “Pembayaran ini telah sekian lama tertangguh akibat ketidakmampuan pihak kontraktor untuk membayar dahulu bil berkenaan sebelum dibayar semula oleh pihak Kerajaan seperti kehendak kontrak.”. This information was relayed by JKR to the Plaintiff vide the letter dated 29.9.2020 with the calculation attached. It can be seen that under “Tunggakan Bayaran Oleh Kontraktor Utama”, TNB’s bills were dated 1.6.2018 (for the month of May 2018) to 1.11.2019 (for the month of October 2019) i.e. for the period prior to the issuance of the CPC. In paragraph 3 of the letter, the reason that the Plaintiff was asked to pay the sum of RM653,726.73 was “Disebabkan kelewatan bayaran bil elektrik oleh pihak kontraktor, pihak Kerajaan telah membuat bayaran ke atas bil elektrik ini termasuk bayaran yang perlu dibuat oleh pihak kontraktor dan akan S/N RV6xtFhtqkumMTPJbtnjQ membuat pelarasan semula ke atas harga kontrak. Ini juga bagi mengelakkan pemotongan bekalan elektrik oleh pihak TNB yang boleh menjejaskan operasi pihak hospital dan juga mengelakkan surcaj lewat bayar daripada meningkat.”; and

the Defendant issued PHK No. 99 dated 1.3.2021 for the sum of RM653,726.73.

Based on the aforementioned reasons, I find that the Defendant did not wrongly impose back charges in the sum of RM653,726.73 on the Plaintiff arising from the TNB bill. It follows that the Plaintiff was not entitled to this claim. 6th Issue: Whether the Plaintiff is entitled to its claims in this proceeding:

the sum of RM25,613,425.90; The Plaintiff adjusted its claim to RM21,455,331.54 as the Defendant had made a payment of RM3,054,802.60 to the Plaintiff during the proceedings.

(ii) that the aforesaid sum of RM25,613.425.90 [RM21,455,331.54] is derived from the declarations sought for, namely that the – S/N RV6xtFhtqkumMTPJbtnjQ

LAD of RM1,981,455.00 and back charge of RM653,726.73 were unlawfully imposed by the Defendant on the Plaintiff; This has been answered under the 3rd, 4th and 5th Issues.

Plaintiff is entitled to the – i. loss and damage amounting to RM436,561.52, in respect of the period between CNC 2 to the date of the CPC; This pertains to the Plaintiff’s claim for expenses from 20.6.2019 to 10.10.2019 [see the Summary attached to the Plaintiff’s letter to JKR dated 20.6.2022; see too, PW2’s evidence in WS-PW2 and the Plaintiff’s reference to the supporting documents therein and in the Written Submission and Revised Scott Schedule (Quantum)]. The Defendant submitted that this amount cannot be claimed by the Plaintiff in accordance with Clauses 40 and 44 of the Contract. Clause 40 was quoted earlier while Clause 44 provides as follows: S/N RV6xtFhtqkumMTPJbtnjQ “44.0 CLAIMS FOR LOSS AND EXPENSE

44.1 If at any time during the regular progress of the Works or any part thereof has been materially affected by reason of delays as stated under clause 43.1 (c), (d), (e), (f) and (h), and the Contractor has incurred direct loss and/or expense beyond that reasonably contemplated and for which the Contractor would not be reimbursed by a payment made under any other provision in this Contract, then the Contractor shall within thirty

days of the occurrence of such event or circumstances or instructions give notice in writing to the S.O. of his intention to claim for such direct loss or expense together with an estimate of the amount of such loss and/or expense, subject always to clause 44.2 hereof.

44.2 As soon as is practicable but not later than ninety (90) days after practical completion of the Works, the Contractor shall submit full particulars of all claims for direct loss or expense under clause 44.1 together with all S/N RV6xtFhtqkumMTPJbtnjQ supporting documents, vouchers, explanations and calculations which may be necessary to enable the direct loss or expense to be ascertained by the S.O.. The amount of such direct loss or expense ascertained by the S.O. shall be added to the Contract Sum.

44.3 If the Contractor fails to comply with clauses 44.1 and 44.2, he shall not be entitled to such claim and the Government shall be discharged from all liability in connection with the claim.”. However, the learned SFC did not elaborate as to how these contractual provisions operate to bar the Plaintiff from claiming this amount. The Defendant further submitted, on one hand, that the claim concerns preliminary works, which should be borne by the Plaintiff, and on the other hand, that it pertains to additional works and requirements by MOH which were not related to the Plaintiff’s scope of work and done under a separate contract. S/N RV6xtFhtqkumMTPJbtnjQ To the Plaintiff, the claim was due to JKR’s failure to timely obtain MOH’s consent to construct the additional works as required by MOH after the issuance of the CPC. As the Plaintiff had issued the notice of intention to claim for this item to JKR and there being no response or rebuttal from the Defendant, and in view of the oral and documentary evidence adduced at the trial, I allowed this claim. ii. losses arising from the S.O.’s failure of refusal or negligence to remove MS Time amounting to RM106,730.00; I found that the Plaintiff was not entitled to this claim on the grounds as submitted by the Defendant, mainly that the Plaintiff has not established which provision in the Contract that allows for these purported losses to be claimed from the Defendant. The Plaintiff is not appealing against this part of the decision. iii. balance variation works that was duly completed, amounting to RM2,181,913.75; S/N RV6xtFhtqkumMTPJbtnjQ This pertains to the Plaintiff’s claim for the following six items for variation works [see PW2’s evidence in WS-PW2 and the Plaintiff’s reference to the supporting documents therein and in the Written Submission and Revised Scott Schedule (Quantum)]. Essentially, I allowed the Plaintiff’s claim for the reason that the S.O.’s representative had instructed the Plaintiff to re-submit these claims with the supporting documents to the new S.O. on 20.6.2022 and the Plaintiff accordingly did so. JKR or the new S.O. did not respond to the Plaintiff’s submission by refuting the claim or stating that the Defendant had paid for these claims. • Steel Column The Defendant alleged that the steel column works were not Variation Works but were part of Bill of Quantities (‘BQ’) in the Contract (see the words “steel structure support” in the Bills at pp 38 - 43, B8 and the construction drawing at pp 31 - 37, B8). Payment was said to have been made (see pp 62 - 63, B48 under item nos. 3, 4, 5, 6 and 9). S/N RV6xtFhtqkumMTPJbtnjQ However, as submitted by the Plaintiff, the description of works in the Contract is itemised and not on a lump sum basis. The 300mm x 300mm rectangular hollow section was shown in the construction drawing but not in the BQ in the Contract. As the specifications according to the construction drawing are not part of the BQ, this item is deemed as a variation and no payment has been made by the Defendant despite the notice of claim having been served by the Plaintiff to the Defendant. There was no contemporaneous denial by the Defendant on this claim at the material time and specifically, the Defendant did not refute on the Plaintiff’s value engineering. Accordingly, the sum of RM69,197.07 for Steel Column was allowed. • Support Fire Rated Ceiling Similarly, the Defendant submitted that these works were not Variation Works but were part of the BQ in the Contract. Payment was said to have been made (see pp 62 - 63, B48 under item nos. 3, 4, 5, 6 and 7). S/N RV6xtFhtqkumMTPJbtnjQ I was persuaded by the Plaintiff’s submission to allow the sum of RM247,680.00 for Support Fire Rated Ceiling for the same reason that all supporting documents were submitted to JKR which then requested its consultant to evaluate the Plaintiff’s claim. The Defendant did not refute this claim at the material time. Moreover, akin to the Steel Column, the reference to pp 62 - 63, B48 under item nos. 3, 4, 5, 6 and 7 do not show anything on Support Fire Rated Ceiling. • Galvanised Double Cover The Defendant claimed that it has evaluated and made full payment under IPC No. 72, which includes both the original and additional scope (APK 49). The Plaintiff drew my attention to “Laporan Penilaian Tuntutan Kepada Jawatankuasa Tuntutan: Tuntutan No. 7 – Kerja-Kerja Penambahan Galvanised Double Cover Untuk Menutup Bahagian Atas Inspection Chamber, Sump Dan Gulley Trap” at p 23, B55 wherein Perunding QS commented that “Tuntutan pihak kontraktor ini telah di proses di bawah … (KPK) No. 46 berjumlah RM 85,002.00. Pihak perunding telah menolak bagi kerja-kerja inspection chamber. Walaubagaimana pun S/N RV6xtFhtqkumMTPJbtnjQ Kerja tersebut telah dilaksanakan oleh kontraktor di tapak. Oleh yang demikian, nilai tersebut perlu ditambah semula kepada pihak kontraktor.”. In “Lampiran 1”, “Jumlah Bersih Tambahan” was stated as RM47,000.00. Therefore, the sum of RM47,000.00 for Galvanised Double Cover was allowed. • Bullnose The same defence was raised i.e. this item was not Variation Works and payment has been made as seen at p 92, B48 under item nos. 3, 4, 5, 6, 9 and 11. However, a scrutiny of the page in B48 does not support the Defendant’s contention. The notice of claim and supporting documents were served to JKR and there was no contemporaneous denial on this variation claim at the material time. Thus, the sum of RM616,284.10 for Bullnose was allowed. • Cold Water & Sanitary Plumbing The Defendant alleged that it has evaluated and made full payment under IPC No. 72 (APK 49). S/N RV6xtFhtqkumMTPJbtnjQ However, I agreed with the Plaintiff’s submission that JKR agreed on the final cold water & sanitary works in the sum of RM2,654,000.00. After taking consideration the original contract sum of RM1,028,090.00, APK 25 (RM939,061.80) and APK 29 (RM20,344.00) which were approved and paid by JKR, the balance of claim on this Variation Order was RM666,504.20. This amount was accordingly allowed. • Built-In Furniture The Defendant alleged that it has evaluated and made full payment under IPC No. 72 (APK 71). The Plaintiff accepted the final revised contract sum for this item as offered by JKR for RM5,173,546.00. After taking consideration the original contract sum of RM4,397,150.00 and APK 71 of RM481,396.00, the balance amount for this variation claim was RM295,000.00 and was accordingly allowed. iv. idling costs amounting to RM1,312,348.91; S/N RV6xtFhtqkumMTPJbtnjQ This claim was in respect of three distinct blocks of the hospital [see PW2’s evidence in WS-PW2 and the Plaintiff’s reference to the supporting documents therein and in the Written Submission and Revised Scott Schedule (Quantum)]. • Idling cost for electrical block - RM 211,922.46 • Idling cost for catering & engineering block (for 22.8.2014 - 31.3.2015) • Idling costs for main building (for 11.11.2014 -

25.5.2015) The Defendant contended that the cost claimed was not related to the delayed work in the three respective blocks/ building and that the machinery/ equipment referred to by the Plaintiff can still be used in the other blocks that were not involved with the delayed work. However, I accepted the Plaintiff’s submission that its claim was based on the method of evaluation used by JKR’s own consultant i.e. Pakatan and JKR did not refute the Plaintiff’s idling cost at the material time. The Defendant did not produce any supporting documents to prove that it had contemporaneously denied that S/N RV6xtFhtqkumMTPJbtnjQ the idling cost in relation to the respective block/ building was not related to the delayed work in the respective block/ building. Hence, the Plaintiff’s claim for idling cost in the sum of RM1,312,348.91 was allowed. v. loss and expenses amounting to RM16,041,296.64, in respect of the period of the approved EoT No. 1 to 7; Basically, I allowed the Plaintiff’s claim on the ground that all the claims and supporting documents were submitted to JKR. The Plaintiff was urged by JKR’s QS to return the disputed PHK for loss and expenses in EoT Nos 1 to 6 to JKR for corrective action as evidenced by the Plaintiff’s letters to JKR dated 8.3.2021 and 4.4.2022. In the former, “PHK 96 (Pelarasan Muktamad ke atas Tuntutan Loss & Expenses (EOT No. 1)” was referred to as well as “… references were made to numerous meetings between your Ukur Bahan representative, the QS consultants with our Datin Sri Peggy and En Diazrehar pertaining to the … claims. … all these supporting documents for actual losses & expenses are with certified true copies and the S/N RV6xtFhtqkumMTPJbtnjQ original Payment vouchers are duly submitted to your office without any dispute after our last resubmission on 10 September 2019 for Consultant QS’s further action.”. No action was taken by JKR to rectify the discrepancies or disputed PHK. The S.O.’s representative, instructed the Plaintiff to re-submit these claims with the supporting documents to the new S.O. on 20.6.2022 and the Plaintiff duly complied. JKR or the S.O. did not refute the Plaintiff’s claims at the material time. Therefore, it was my finding that the Plaintiff was entitled to the claim for loss and expense in respect of the period of the approved EoT No 1 to 7 in the following amounts: • EoT No. 1 The total claim was RM10,960,784.68. The Defendant contended that payment in the sum of RM2,568,925.44 (PHK No. 96) has been made. Hence, the balance outstanding payable by the Defendant was RM8,391,859.24 and this was allowed. S/N RV6xtFhtqkumMTPJbtnjQ • EoT No. 2 The total claim was RM1,806,591.78. The Defendant contended that payment in the sum of RM569,931.09 (PHK 103) has been made. Thus, the balance outstanding payable by the Defendant was RM1,236,660.69 and this was allowed. • EoT No. 3 The Defendant rejected this claim on the basis that Clause 43(j) in the Contract does not allow for loss and expense to be claimed on the ground of delay on the part of the NSC and/ or Nominated Suppliers to perform their works. However, as seen in the “Ringkasan Tuntutan Direct Loss And Expense” prepared by Perunding QS and e-mailed to the project team (at pp 160 - 161, B47), the Consultant had assessed and recommended a figure for this claim due to JKR’s delay in engaging the relevant NSC. Furthermore, the Plaintiff relied on Clause 43(f) in the Contract (see the Plaintiff’s letter to JKR S/N RV6xtFhtqkumMTPJbtnjQ dated 28.3.2018 at p 184, B5) which states as follows: “43.0 DELAY AND EXTENSION OF

43.1 …

the Contractor not having received in due time instructions in regard to the nomination of sub-contractors and/or suppliers provided in this Contract, necessary instructions, drawings or levels for the execution of the Works from the S.O. due to any negligence or default of the S.O. PROVIDED THAT the Contractor shall have specifically applied in writing on a date which having regard to the Date for Completion stated in Appendix or to any extension of time then fixed under this clause, S/N RV6xtFhtqkumMTPJbtnjQ was neither unreasonably distant from nor unreasonably close to the date on which it was necessary for him to receive the same; …”, and read together with Clause 44.1 of the Contract as quoted previously. The Plaintiff’s claim for the sum of RM1,054,360.08 was accordingly allowed. • EoT No. 4 The total claim was RM657,765.07. The Defendant contended that payment in the sum of RM244,354.81 (PHK 104) has been made. Hence, the balance outstanding payable by the Defendant was RM413,410.26 and this was allowed. • EoT No. 5 & 6 The total claim was RM760,347.25. The Defendant contended that payment in the sum S/N RV6xtFhtqkumMTPJbtnjQ of RM90,660.27 (PHK 105) has been made for EoT No. 5 and RM64,486.60 (PHK 106) for EoT No. 6 (total is RM155,146.87). Thus, the balance outstanding payable by the Defendant was RM605,200.38 and this was allowed. • EoT No. 7 The Defendant rejected this claim on the basis of Clause 43(j) in the Contract. Based on the overall reasoning as mentioned at the outset, the Plaintiff’s claim for the sum of RM591,392.33 was allowed. vi. certified sum amounting to RM2,899,393.35; I found that the Plaintiff was not entitled to the certified sum amounting to RM2,899,393.35 as the Plaintiff was paid the sum of RM2,715,464.63 according to the Perakuan Akaun dan Bayaran Muktamad dated 29.11.2023. There is no appeal against this part of the decision.

(iii) the sum of RM190,237.02 as the additional costs and losses due to the late issuance of the CMGD; In paragraph 15A of the Amended SoC, the Plaintiff pleaded that due to the Defendant’s fault and delay in issuing the CMGD, the Plaintiff incurred additional costs and losses in the total sum of RM190,237.02 consisting of – • RM29,095.87 – S.O.’s instruction to extend the performance bond (‘PB’) from 10.10.2022 to 10.4.2023; • RM56,397.06 – salary of the manager of the Project; • RM70,484.65 – Project Coordinator; and • RM34,259.44 – site office maintenance costs, house rental, electricity and water bills. The Defendant argued that there is no provision in the Contract that allows these costs and losses to be claimed. Specifically, the amount of RM29,095.87 was a new claim following the filing of the Amended SoC as the PB was due to expire on 10.10.2022. The obligation to ensure that the PB remain valid and effective until 12 months after the expiry of the DLP or S/N RV6xtFhtqkumMTPJbtnjQ the issuance of the CMGD, whichever is the later, lies on the Plaintiff (see Clauses 13.1 of the Contract). It was the Plaintiff’s failure to rectify the defects within the DLP which caused the PB to be extended by the Plaintiff for six months to allow the Plaintiff to complete the defects repair. For the remaining amount, the Defendant contended that it was the Plaintiff’s responsibility in accordance with Clause 48.1(b) of the Contract which provides that: “48.0 DEFECTS AFTER COMPLETION

48.1 Completion of Outstanding Work and Remedying Defects …

Without prejudice to sub-clause

(a), any defect, imperfection, shrinkage or any other fault whatsoever which may appear during the Defects Liability Period to be made good by the Contractor, shall be specified by the S.O. in the Schedule of Defects which he shall deliver to the Contractor not later than fourteen (14) days after the S/N RV6xtFhtqkumMTPJbtnjQ expiration of the Defects Liability Period. The defects, imperfections, shrinkages or any other fault whatsoever specified in the Schedule of Defects shall be made good by the Contractor at his own costs and to be completed within a reasonable time but in any case not later than three (3) months after the receipt of the said Schedule. PROVIDED THAT the S.O. shall not be allowed to issue any further instruction requiring the Contractor to make good of any defect, imperfection, shrinkage or any other fault whatsoever after the issuance of the said Schedule of Defects or after fourteen (14) days from the expiration of the said Defects Liability Period, whichever is the later.”. In his answers to Questions 17 and 18 in the Witness Statement, DW2 stated that the CMGD was issued late because of the Plaintiff’s delay in rectifying the defects, which was the Plaintiff’s responsibility under the Contract, and that there is no provision in the Contract which entitles the Plaintiff to make this claim. S/N RV6xtFhtqkumMTPJbtnjQ I have made a finding under the 2nd Issue that, at the material time, all defects rectification works have been completed and the CMGD was issued late by JKR to the Plaintiff. The PB was renewed by the Plaintiff in accordance with the letter of instruction from the Defendant dated 30.9.2022 even though JKR had full knowledge that all defects had been fully rectified by the Plaintiff. There was no functional need to extend the PB at that stage but for JKR’s instruction. The Plaintiff had issued the notice of intention to make a as a result of the instruction and JKR did not rebut the Plaintiff’s notice at the material time. Thus, the Plaintiff was entitled to the sum of RM190,237.02 as the additional costs and losses due to the late issuance of the CMGD.

Finally, as regards the Plaintiff’s appeal in respect of all loss and expense claims Nos. 1 to 7 for the NSC in the sum of RM2,778,980.89 which was allegedly deducted, I inadvertently omitted to make any findings and pronouncement on this claim because it was not expressly stated in subparagraph 6(ii) in the ITBT.

Based on all the foregoing considerations, the Plaintiff’s claim was allowed for the total sum of RM18,155,150.80 with interest at the S/N RV6xtFhtqkumMTPJbtnjQ rate of 5% per annum from the date of filing of the Writ and SoC on 23.8.2022 until full settlement, except for the sum of RM190,237.02 where interest at the rate of 5% per annum shall be calculated from the date of filing of the Amended SoC on 28.6.2023 until full settlement.

On the issue of costs, the Plaintiff’s counsel initially prayed for the sum of RM200,000.00, giving oral reasons that five witnesses were called and there were 61 volumes of documents for the trial. This amount was then proposed to be RM85,000.00.

The learned SFC countered that, since there were issues which were decided in the Defendant’s favour, costs should be

Taking into consideration the factors as set out in O. 59, r. 16 of the Rules of Court 2012, I decided to award costs of RM70,000.00 to be paid by the Defendant to the Plaintiff. DATED: 30.9.2025 (ALIZA SULAIMAN) JUDGE HIGH COURT IN MALAYA KUALA LUMPUR S/N RV6xtFhtqkumMTPJbtnjQ Solicitors for the Plaintiff: James Ding (Woo Xiao Thong with him) Messrs. C H Tay & Partners Solicitors for the Defendant: Anisah Normah (Maswirani Mahmud with her) Husniyyah Hanapi (for the clarification and decision)