Semarak Naluri Sdn. Bhd. v Sports Tech Pro Sdn. Bhd. (BA-22C-33-10/2022)

SPORTS TECH PRO SDN BHD (Company No: 200601022603 (742357-U))

THANURAJ A/L IYAVU

SINAR BINA MAJU (M) SDN. BHD. (Company No: 201501011546 (1136991-P)) … DEFENDANTS GROUNDS OF JUDGMENT

This is an action filed by the Plaintiff for a breach of contract and duty of care against the 1st Defendant, negligent misrepresentation and misrepresentation against the 2nd Defendant as well as breach of contract against the 3rd Defendant arising from the project known as “the Proposed Landscape Works for Serenia City Central Park”. 2 | P a g e

The Trial proceeded before this Court for 8 days with 4 witnesses from all parties taking the stand to testify. B. BRIEF BACKGROUND Plaintiff’s claim against the 1st Defendant

The Plaintiff was appointed as the Main Contractor for the “Proposed Landscape Works for Serenia City Central Park (Package 1)” project in Sepang under a Letter of Acceptance dated 04.09.2019 from Sime Darby Serenia Development Sdn. Bhd.

The contract sum was RM4,800,000.00, covering works involving manpower, equipment, transport, and other related works. Pursuant to the Letter of Acceptance, site possession commenced on 26.09.2019, with completion due on 25.05.2020 (eight (8) months thereafter).

Based on the Contract Bill of Quantities, one of the Plaintiff's scope of work is to construct, supply, install and complete a football field in accordance with FIFA approval standards consisting, inter alia, of:

Supply and install synthetic football field grass according to FIFA approval standards;

To install the white line markings of the football field according to FIFA regulations; 3 | P a g e

To supply and install flagpoles based on FIFA rules and regulations;

To supply and install 'goal posts’ based on FIFA rules and regulations;

To supply and install a ‘backstop’ safety fence for the field; and

Obtain approval and certification from FIFA for the football field.

The Plaintiff appointed the 1st Defendant as the Specialist Subcontractor for the football field works via a Letter of Offer dated 28.12.2019 (LOA) for a contract sum of RM1,500,000.00.

7.

The LOA also provides for the progress payments to the 1st Defendant to be paid in accordance to the contents of the letter from the Plaintiff to Sime Darby (Ref: SNSB_SDSDSB/SERENIA/PHA2- FIFA/2019) dated 10.11.2019 and that the 1st Defendant’s claims would be paid directly by Sime Darby according to the work progress as certified by the consultant and Sime Darby.

The works failed to be completed by 09.09.2020. As at 09.09.2020, the works completed by the 1st Defendant was only 30%. On 4 | P a g e

31.03.2022, the 1st Defendant had completed up to 93% of the works and the balance works undone were: i. Goalpost; ii. Flag pole; iii. Backstop; and iv. FIFA certification.

The Plaintiff claims that in order to remedy the delay caused by the 1st Defendant in completing the works under the contract, the Plaintiff had to engage 3rd parties to complete the works and as such had incurred a cost of RM40,282.62 in doing so.

The Plaintiff claims that in not completing the works, the 1st Defendant had not only breached the contract between them but had also breached the duty of care owed under the contract and had failed to carry out its responsibility under the contract with due care, diligence, skill and competence.

Since the 1st Defendant failed to complete the works on time, even within the extended time till 09.09.2020, the Plaintiff is entitled to impose Liquidated Ascertained Damages (LAD) of RM290,000.00.

The 1st Defendant’s non-completion of the works had led to the termination of the Plaintiff’s contract with Sime Darby and as such, the Plaintiff is entitled for loss of profit of RM180,000.00. 5 | P a g e Plaintiff’s claim against the 2nd Defendant

The Plaintiff’s claim against the 2nd Defendant is solely for misrepresentation, whereby it is the Plaintiff’s claim that the appointment of the 1st Defendant was based on the 2nd Defendant’s recommendations.

According to the Plaintiff, the 2nd Defendant had represented to Sime Darby and the Plaintiff as follows: i. that the 1st Defendant has wide experience in construction works of football fields according to the specification and approval of FIFA in Malaysia and Asia; ii. that the 1st Defendant is able to perform administrative works with FIFA to obtain approval and certification from FIFA for the said football field; and iii. that the 1st Defendant is able to complete the construction works of the football field according to the fixed scope and fixed period by Sime Darby.

The Plaintiff claims that since the 1st Defendant had not completed the works within the contracted period, the 2nd Defendant had misrepresented the 1st Defendant’s capabilities in carrying out the task under the contract. As such, the 2nd Defendant is to be held liable for the misrepresentation in recommending the 1st Defendant to the Plaintiff. 6 | P a g e The Plaintiff’s claim against the 3rd Defendant

The Plaintiff appointed the 3rd Defendant as the subcontractor for the Serenia City Central Park (Package 1) Phase 2 project worth RM2,235,230.50 via a letter of appointment dated 20.07.2020. The works included preliminaries, hardscape, softscape, and M&E works, to be completed by 19.09.2020.

The Plaintiff had paid a sum of RM100,000.00 to the 3rd Defendant as deposit which has to be returned to the Plaintiff when the 1st progress claim is paid to the 3rd Defendant. It is also stated in the contract that the Plaintiff and the 3rd Defendant agree to apportion every interim progressive payment upon accounting for costs at 7% to the Plaintiff and 93% to the 3rd Defendant.

When the 3rd Defendant was appointed to continue the Plaintiff’s works on 20.07.2020, the work progress stood at 37.48%. However, the works were not completed on the given due date i.e. on 19.09.2020.

The 3rd Defendant only carried out works from 20.07.2020 till 18.11.2020. The 3rd Defendant had on 16.11.2020 claimed for payment of RM275,554.34 for the works done till then. The 3rd Defendant had subsequently issued a Notice of Mutual Termination through a letter dated 07.12.2020 due to non-payment of the progressive claims made by it. 7 | P a g e

It is the Plaintiff’s claim that the 3rd Defendant had failed to carry out the works assigned to it and as such, the Plaintiff had to take over and complete the works. As such, the Plaintiff via this suit claims from the 3rd Defendant the followings; i. Refund of RM100,000.00 paid as deposit; ii. Material costs, transportation and machinery usage of RM43,775.90; iii. Payments made to the 3rd Defendant’s suppliers being RM35,692.00; and iv. RM75,974.00 being the differential sum owed to the Plaintiff by the 3rd Party after deducting the sum owed to the 3rd Defendant (RM291,956.00) from the sum owed to the Plaintiff for High Mast at Football Area (RM367,930.00).

The Plaintiff was not only imposed with a sum of RM554,400.00 as LAD calculated till 31.03.2022 by Sime Darby for the delay in completing the Project which the 3rd Defendant was engaged to complete but the Plaintiff’s contract was also terminated by Sime Darby.

The Plaintiff claims for LAD against the 3rd Defendant for the sum of RM685,200.00 and a sum of RM179,467.90 for loss of profit.

In its counter claim against the Plaintiff, the 3rd Defendant claims that as at 18.11.2020 the progress of works had increased from 37.48% to 70.50% which was carried out by it. This increase had entitled the 8 | P a g e 3rd Defendant to claim for a payment amounting to RM275,554.34 which it had done so to the Plaintiff via its letter dated 01.12.2020 and a reminder for the same via its letter dated 16.12.2020. However, no payment was made by the Plaintiff to the 3rd Defendant.

Due to non-payment by the Plaintiff, the 3rd Defendant had terminated all operations and surrendered the site to the Plaintiff upon the 3rd Defendant issuing a Notice of Mutual Termination to the Plaintiff.

Consequentially, the 3rd Defendant claims for the following in its counter claim against the Plaintiff, as stated in its Statement of Defence and Counter Claim: “ (a) Gantirugi am yang ditaksirkan oleh Mahkamah;

Gantirugi tauladan yang ditaksirkan oleh Mahkamah;

Perintah taksiran bagi bayaran interim no.4 dan no.5;

Bayaran bagi segala kerja-kerja yang telah dijalankan oleh Defendan Ketiga dari 20/7/2020 sehingga 7/12/2020 yang ditaksirkan oleh Mahkamah;

Faedah pada kadar 5% setahun atas jumlah keseluruhan penghakiman dari tarikh penghakiman ini sehingga penyelesaian penuh dan muktamad;

Kos tindakan ini; dan

Sebarang relif lanjutan atau lain yang dianggap sesuai, adil dan wajar oleh Mahkamah yang Mulia ini mengikut semua keadaan.” C. ISSUES

Based on the pleadings of all the parties in this suit, the issues which this court has to deliberate and decide on are as follows: 9 | P a g e i. Whether the 1st Defendant had breached the contract between the Plaintiff and the 1st Defendant. If so, is the Plaintiff entitled for LAD and or loss of profit. ii. Whether the 2nd Defendant had negligently misrepresented to the Plaintiff and Sime Darby on the capabilities of the 1st Defendant. If so, is the 2nd Defendant liable for his misrepresentation. iii. Whether the 3rd Defendant had breached the contract between the Plaintiff and the 3rd Defendant. If so, is the Plaintiff entitled to claim for LAD and or loss of profit against the 3rd Defendant. iv. Whether the 1st and 3rd Defendants owe the Plaintiff a duty of care and if so, was that duty breached. v. Whether the Plaintiff is liable to pay the 3rd Defendant for works done in accordance to the Interim Payment Nos. 4 & 5 and or any other amount for works done between 20.07.2020 till 07.12.2020. D. FINDINGS OF THE COURT i. Whether the 1st Defendant had breached the contract between the Plaintiff and the 1st Defendant. If so, is the Plaintiff entitled for LAD and or loss of profit.

It is the Plaintiff’s case that the 1st Defendant had delayed in completing its works under the contract even though there was an 10 | P a g e extension of time (EOT) granted till 09.09.2020. It is also the Plaintiff’s case, which is not disputed, that other than the letter of request for EOT dated 18.08.2020 by the 1st Defendant, no other EOT was requested by the 1st Defendant.

Although the Plaintiff had granted EOT to the 1st Defendant up to 09.09.2020, it is not disputed that the Plaintiff had obtained further EOT from Sime Darby i.e., till 24.12.2020 (EOT 2). This EOT was not accorded to the 1st Defendant by the Plaintiff on the basis that there was no EOT no. 2 request by the 1st Defendant.

Whilst it is not disputed that the payments to the 1st Defendant were made via direct payment from Sime Darby, the payments were delayed although progressive claims were made by the 1st Defendant. The 1st Defendant also contends that the Plaintiff did not carry out its obligation under the contract which had led to the 1st Defendant stopping works till the progressive payments were made by the Plaintiff.

On the issue of payment, via the email dated 21.07.2021 from the 1st Defendant to Sime Darby (B4@ pg. 569), the 1st Defendant confirmed that the value of works done as at January 2021 was RM1,355,000.00 and the total sum received by it was RM1,011,045. According to the said email, the total outstanding sum due to the 1st Defendant was RM343,955.00.

There is evidence to show that the 1st Defendant could not contact the Plaintiff and that the works completed as at 10.09.2020 was 80% 11 | P a g e and that payments received by the 1st Defendant as at 10.09.2020 was only for 27% of its works.

Although the Plaintiff had pleaded that the 1st Defendant had only completed 30% of the works as at 09.09.2020 based on the minutes of the site meetings, this 30% (in progress) has been from 05.03.2020 till 10.09.2020. As there is no evidence that these meeting minutes had been distributed to all the attendees of the meeting including the 1st Defendant, the progress of the 1st Defendant’s works (Football field) as stated in the report is not proven.

Additionally, the Plaintiff did not call any other witness to give evidence on the percentage of works done by the 1st Defendant as the only witness for the Plaintiff was Encik Ahmad Fauzi bin Saleh (SP1) being the Plaintiff’s Director. The Plaintiff had also decided not to call or subpoena any of the employees from Sime Darby to confirm or verify the percentage of works done by the 1st Defendant and or the truth of the details in the meeting minutes which are relied on by the Plaintiff.

On the other hand, the correspondences to the Plaintiff by the 1st Defendant and the emails to the Plaintiff and to Sime Darby clearly states that the 1st Defendant had completed 80% of the works as at 10.09.2020. In the absence of any correspondences and or any documentary evidence, may it be letters or emails, denying/rebutting the 1st Defendant’s claims and or stating any updates of works done as at the relevant dates at that material time, it is my considered view 12 | P a g e that the Plaintiff has failed to establish that the 1st Defendant had only completed 30% of the works as at 09.09.2020 as alleged.

It is the Plaintiff’s allegation that the 1st Defendant had failed to complete the works within the time frame given to do so and as such, the 1st Defendant had breached the contract. Due to its delay, the 1st Defendant is liable to LAD being imposed against it.

On the surface, the delay is undeniably proven. As such, it is the burden of the 1st Defendant to prove that the delay is attributable to the Plaintiff in order not to be made liable for LAD for the delay.

Based on a letter dated 17.09.2020 to the Plaintiff by the 1st Defendant, it was evidenced that on the meeting held between the representatives of the Plaintiff and the 1st Defendant, it was discussed and agreed, inter alia, that: “3) Resuming of works by STP

3.You confirmed and agreed that STP will only be required to resume works at the site once STP receives the money for its claim no. 2 (RM336,281.00) from Sime Darby AND the RM39,561.90 from Semarak Naluri. Any delays in the receipt of both these payments by STP will delay the resuming of works at the site. Semarak Naluri will not hold STP responsible for any delays due to this, and this delay will not be included in any LAD charges, if any.” 13 | P a g e

In this case, there is no evidence of any reply to the letter dated 17.09.2020, denying the contents. I refer to Gopal Sri Ram JCA (as he then was) in the case of David Wong Hon Leong v. Noorazman bin Adnan [1995] 4 CLJ 155, at 159, where the following was said:- "During argument, we registered our surprise at the learned Judge's reluctance to enter judgment for this sum of RM100,000. After all, the appellant had failed to respond to the letter of 17 December. If there had never been an agreement as alleged, it is reasonable to expect a prompt and vigorous denial. But, as we have pointed out, there was no response whatsoever from the appellant. In this context, we recall to mind the following passage in the judgment of Edgar Joseph Jr. J. in Tan Cheng Hock v. Chan Thean Soo [1986] 1 LNS 42; [1987] 2 MLJ 479-487: … 'Now there are cases - business and mercantile cases in which the Courts have taken notice that, in the ordinary course of business, if one man of business states in a letter to another that he has agreed to do certain things, the person who receives that letter must answer it if he means to dispute the fact that he did so agree. " (Emphasis added)

There is no evidence produced by the Plaintiff that there was issuance of a Certificate of Non-Completion (CNC) and that the 1st Defendant was put on notice that LAD would be imposed on it upon the expiry of EOT No. 1. 14 | P a g e

Instead, the Plaintiff had issued a letter dated 17.09.2020 (B4 @ pg. 454) in relation to the EOT No. 1 granted by Sime Darby which the Plaintiff correspondingly extended the said EOT to the 1st Defendant. In the same letter, the Plaintiff had also committed in writing that should the EOT No. 2 is granted by Sime Darby to the Plaintiff, the same will also be granted to the 1st Defendant. Hence, through this letter, the Plaintiff has agreed to provide the 1st Defendant with EOT No. 2 upon the same being granted by Sime Darby to it. In this circumstance, it is my view that the EOT to complete the works had been granted to the 1st Defendant till 24.12.2020 and as such, no LAD should be imposed against the 1st Defendant till then. – this space is intentionally left blank – 15 | P a g e

As such, the EOT no. 2 is granted from 10.09.2020 to 24.12.2020 by Sime Darby to the Plaintiff is also enjoyed by the 1st Defendant by the Plaintiff’s own assurance and therefore, no LAD should be imposed against the 1st Defendant till 24.12.2020. Having agreed not to impose LAD, the Plaintiff is estopped from insisting to impose the same till 24.12.2020. The doctrine of estoppel has been defined by the Federal Court in the case of Boustead Trading (1985) Sdn Bhd v. Arab-Malaysian Merchant Bank [1995] 4 CLJ 283; [1995] 3 MLJ 331 where it was held as follows: 16 | P a g e “We would add that it is wrong to apply the maxim "estoppel may be used as a shield but not a sword" as limiting the availability of the doctrine to defendants alone. Plaintiffs too may have recourse to it. The true nature of the doctrine in this context is that stated by Lord Russell of Killowen in Dawsons Bank v. Nippon Menkwa Kabushiki Kaisha LR 62 IA 100, 108: Estoppel is not a cause of action. It may (if established) assist a plaintiff in enforcing a cause of action by preventing a defendant from denying the existence of some fact essential to establish the cause of action, or (to put it in another way) by preventing a defendant from asserting the existence of some fact the existence of which would destroy the cause of action. It is also wrong to think that the doctrine is confined to cases where a representation of fact has been made or where a party has been encouraged by another to believe in the existence or in the non-existence of a fact. The decisions of the Privy Council in Sarat Chunder Dey and The Calgary Milling Co (among others) to which we have referred earlier concerned cases involving representations not of fact but of law. The width of the doctrine has been summed up by Lord Denning in the Amalgamated Investment case (at page 122) as follows: The doctrine of estoppel is one of the most flexible and useful in the armoury of the law. But it has become overloaded with cases. That is why I have not gone through them all in this judgment. It has evolved during the last 150 years in a sequence of separate developments: proprietary estoppel, estoppel by representation of fact, estoppel by acquiescence, and promissory estoppel. At the same time it has been sought to be limited by a series of maxims: estoppel is only a rule of evidence, estoppel cannot give rise to a cause of action, estoppel cannot do away with the need for consideration, and so forth. All these can now be seen to merge into one general principle shorn of limitations. When the 17 | P a g e parties to a transaction proceed on the basis of an underlying assumption either of fact or of law - whether due to misrepresentation or mistake makes no difference - on which they have conducted the dealings between them - neither of them will be allowed to go back on that assumption when it would be unfair or unjust to allow him to do so. If one of them does seek to go back on it, the Courts will give the other such remedy as the equity of the case demands.”

Hence, I find that the Plaintiff is estopped from claiming for LAD against the 1st Defendant.

Additionally, the Plaintiff claims that the 1st Defendant had intentionally and deliberately abandoned its works under the contract from 14.09.2020 till 27.10.2020 and from 13.01.2021 till 12.04.2022. Whilst the 1st Defendant does not deny that it had stopped works from 14.09.2020 till 27.10.2020, the 1st Defendant only admits to have subsequently stopped works from 13.01.2021 till 31.03.2021 and not till 12.04.2022 as alleged by the Plaintiff.

The contents of the letter dated 17.09.2020 as shown hereinabove by the Plaintiff not only addressed the issue of LAD but had also addressed the issue of abandonment of works by the 1st Defendant wherein it was agreed for the 1st Defendant to only resume works when the progressive payment no. 2 was made.

The 1st Defendant claims that it had stopped work the second time from 13.01.2021 till 31.03.2021 because the Plaintiff failed to carry out its 18 | P a g e obligation under the contract to facilitate the progressive payments nos. 4 & 5.

Since there is no express provision for the 1st Defendant to suspend or stop work even if it is due to late or non-payment of its progress payments, the 1st Defendant’s move to stop work according to the common law position pursuant the case of Kah Seng Construction Sdn. Bhd. v Selsin Development Sdn. Bhd [1997]1 CLJ Supp 448 is a repudiatory breach of the contract: “There is no intermediate right in a building contract to suspend works. If the Contractor insists on the continued performance of the contract, i.e. he affirms the contract, he must himself continue to perform his primary obligations under the contract i.e. continue performing the contract works. That is why suspension of the works by the contract, i.e. not continuing with his primary obligations, becomes itself a repudiatory breach by the Contractor”

However, in the case of Ban Hong Joo Mines Ltd v Chen & Yap Ltd [1969] FC which was cited by Lee Swee Seng J (as he then was) in the case of Lexobumi Sdn Bhd v SK M&E Bersekutu Sdn Bhd [2017] CLJU 291 where it was held that the Sub-Contractor had a right to suspend the works if payments were not made: “[14] I would say that it is not unreasonable for the Plaintiff to suspend works if he was not paid for the amount invoiced of RM378,896.00 and was only paid RM84,187.43 thus far. It is also not unreasonable for the Plaintiff to do so if the Defendant had persisted in not certifying the works done by the Plaintiff. “ 19 | P a g e

In this case, it is evidenced that the 1st Defendant had made several attempts to request the Plaintiff to carry out its obligation under the contract in relation to Progress Claim Nos. 4 & 5. In fact, the 1st Defendant had via its solicitors also issued a Notification of Demand to the Plaintiff dated 24.03.2021 (B4 @ pg. 551) with regards to the Progress Claim Nos. 4 & 5. However, the Plaintiff had put the 1st Defendant on notice that should the 1st Defendant fail to remedy the delay within 3 days from 31.03.2021, the Plaintiff will engage a 3rd party to carry out the balance of the 1st Defendant’s works. – this space is intentionally left blank – 20 | P a g e 21 | P a g e 22 | P a g e

Since as at 12.01.2021, the 1st Defendant’s works completed up to almost 95% (not disputed in any of the Plaintiff’s letters/emails) and due to the Plaintiff not paying the 1st Defendant its dues under the contract, it is my view that the Plaintiff’s move to suspend work is justified.

As to the Plaintiff’s claim for loss of profit of RM180,000.00 from the 1st Defendant, since the Plaintiff’s contract was terminated by Sime Darby, this claim will have to fail as the Plaintiff has not establish that its termination was solely due to the 1st Defendant. This view is further strengthened by the fact that the 1st Defendant was engaged directly by Sime Darby via the LOA dated 04.07.2022 to complete the remaining works and rectification works for the same football field.

In the Federal Court’s case of Ng Siew Lan V. John Lee Tsun Vui & Anor [2017] 2 CLJ 245, the following was held: “[88] The fact that the plaintiff issued the letter of disclaimer voluntarily and with open eyes is of no consequence if material facts which affected or might have affected her decision to issue the letter of disclaimer were knowingly and deliberately withheld from her knowledge. For the court to countenance such action by the first and second defendants would be to condone their wrongful acts. They cannot be allowed to benefit from their own wrong. It will be totally inequitable and contrary to conscience to allow them to do so: Letchemy Arumugam v. N Annamalay [1982] CLJU 8; [1982] 1 LNS 8; [1982] 2 MLJ 198; Ong Ban Chai & Ors v. Seah Siang Mong [1998] 3 CLJ 637; [1998] 3 MLJ 346.” 23 | P a g e (Emphasis added)

The 1st Defendant has also referred to this court the Federal Court’s case of Khatijah bt Abdullah & Ors. v Mohd Isa bin Biran [2017] 2 MLJ 1 which had relied on the Supreme Court’s decision in the case of Gimstern Corporation (M) Sdn Bhd & Anor v Global Insurance Co. Sdn Bhd [1987] 1 MLJ 302 where it was distinctively held that one cannot take advantage of his own wrong doing.

As the delay was attributable to the Plaintiff leading to the non-completion of the works, the Plaintiff had brought upon itself the consequences suffered by it when its contract was terminated by Sime Darby. In such circumstances, there is no merits in the Plaintiff’s claim for loss of profit from the 1st Defendant.

The Plaintiff had in its SOC confirmed that the 1st Defendant’s works as at 31.03.2022 had the remaining works of: i. Goalpost; ii. Flag pole; iii. Backstop; and iv. FIFA certification. 24 | P a g e

The Plaintiff’s claim as back charge of RM40,282.62 allegedly for costs incurred to remedy the 1st Defendant’s works also encompasses the remaining undone works being: i. Goalpost; ii. Flag pole; v. Backstop; and vi. FIFA certification.

However, based on several correspondences in January 2021 and March 2021, the 1st Defendant had confirmed that the football field was almost completed on 11.01.2021 i.e. @ 95 % with only the balance works of installing the Safety Backstop and Goal Posts. This fact was not disputed by the Plaintiff in any of its subsequent correspondences.

Be that as it may, this amount was not paid to the 1st Defendant or that this amount if incurred did not cause the contract sum to exceed RM1,500,000.00. There is also no evidence to show that the Plaintiff had incurred this cost as remedial works on the works carried out by the 1st Defendant.

Furthermore, the 1st Defendant had been engaged by Sime Darby directly to complete including to obtain FIFA certification and rectify the works involving the football field on 04.07.2022 i.e. after Sime Darby terminating the Plaintiff. 25 | P a g e

As a matter of fact, which was proven, the 1st Defendant had on 27.10.2022 obtained the FIFA Certification for this very same football field which Sime Darby had engaged the 1st Defendant to complete the same.

Therefore, the Plaintiff failed to substantiate its claim for back charge to have been incurred. As such, I dismiss this claim made against the 1st Defendant. ii. Whether the 2nd Defendant had negligently misrepresented to the Plaintiff and Sime Darby on the capabilities of the 1st Defendant. If so, is the 2nd Defendant liable for his misrepresentation.

The Plaintiff’s action against the 2nd Defendant is on the basis that as the director of the 1st Defendant, the 2nd Defendant is liable in tort for the act or omission of the company. Since the Plaintiff had engaged the 1st Defendant as the specialised contractor to complete the construction of the football field together with FIFA certification and the same was not completed within the given time, the Plaintiff claims that the delay in completing the works established the liability against the 2nd Defendant for the misrepresentation made by the 2nd Defendant.

The Plaintiff relies on the case of Victor Cham & Anor v Loh Bee Tuan [2006] 5 MLJ 359 (Victor Cham’s case) to establish that a director can be made liable for the company’s act or omission. However, the facts of this instant case are completely different from that of Victor Cham’s case where in that case the 3rd and 4th 26 | P a g e Defendants were held liable as the 1st Defendant’s directors because the 1st Defendant being the company was deregistered and the 2nd Defendant had passed away. Since it was found that the act of the 1st Defendant was on the instructions of its directors, it was held that the remaining directors i.e. the 3rd and 4th Defendants are liable for that act.

This is clearly not the case here. In this instant case, having established in the preceding paragraphs that the delay was attributable to the Plaintiff and that the FIFA Certification for the football field was finally obtained by the 1st Defendant, the Plaintiff’s claim against the 2nd Defendant that he had misrepresented on the 1st Defendant’s capabilities as a specialist as represented by the 2nd Defendant is defeated.

Additionally, it cannot be denied that there were many other factors apart from the Plaintiff’s failure to carry out its own obligation under the contract which had prevented the completion of the football field in time, such as the global pandemic of COVID-19. Therefore, in such circumstances, the efficiency and capabilities of the 1st Defendant cannot be assessed by the delay in completing the field with the certification.

Furthermore, there are testimonies relating to the 1st Defendant’s work in this area produced in court i.e. FIFA certifications obtained for other football fields which were successfully completed by the 1st Defendant. These certifications defeat the Plaintiff’s allegation made against the 1st Defendant’s capabilities and shows that the 2nd Defendant did not 27 | P a g e misrepresent the 1st Defendant capabilities to the Plaintiff and to Sime Darby.

As such, I dismiss the claims made against the 2nd Defendant by the Plaintiff. iii. Whether the 3rd Defendant had breached the contract between the Plaintiff and the 3rd Defendant.

Based on the pleadings, the documentary evidences and the oral evidence given by SP1 being the sole witness of the Plaintiff, there are many inconsistencies and contradictions. It is not disputed that the Plaintiff did not make any payments to the 3rd Defendant other than the RM100,000.00 being the deposit.

The many contradictions include the percentage of works done by the 3rd Defendant. The Plaintiff’s witness, SP1 had during cross examination agreed that he had received payments from Sime Darby, however, the same was not paid to the 3rd Defendant.

The Plaintiff also do not disagree that the 3rd Defendant had requested for payments from the Plaintiff and had put the Plaintiff on notice that without payments being made, the 3rd Defendant would terminate the contract, which was done. There is no evidence showing the Plaintiff’s objection against the 3rd Defendant’s termination of contract.

The Plaintiff had also failed to give any notice to the 3rd Defendant on LAD as agreed by SP1. The LAD claimed by the Plaintiff against the 3rd Defendant is till the date of termination of the contract between the 28 | P a g e Plaintiff and Sime Darby i.e. 571 days at RM1,200.00 per day. The fact however remains that the 3rd Defendant had stopped working with the Plaintiff as at 07.12.2020 i.e. way before the Plaintiff’s termination.

In fact, it is not denied that the Plaintiff had received EOT till 24.12.2020 from Sime Darby. Although there was no express EOT given to the 3rd Defendant, it cannot be denied that the Plaintiff did not suffer paying any LAD during the time the 3rd Defendant had been working for the Plaintiff.

Even if LAD may be imposed, the number of days delayed should be calculated from 20.09.2020 till 07.12.2020 only. However, it cannot be ignored that the Plaintiff had not paid the 3rd Defendant any payments for works done which had led to the 3rd Defendant’s termination of the contract.

In the case of Lexobumi Sdn Bhd v SK M&E Bersekutu Sdn Bhd (supra), Justice Lee Swee Seng (as he then was) held as follows: “[24] In a case where the Defendant had refused or failed to certify the works done and with that their failure to pay the Plaintiff for the works done, such a conduct may amount to a repudiatory breach of the Sub-Contract. The Plaintiff had shown its intention to terminate the Sub-Contract in its various oral representations to the Defendant and finally terminated the Sub-Contract by stopping works altogether and leaving the site. [25] I agree with learned counsel for the Plaintiff that Certification of the Interim Payments and/or Invoices and being paid on time are obviously very important matters as without payment on time, the Contractor would 29 | P a g e have no confidence and more importantly, no capital to continue for the Sub-Contract of RM1,006,145.00.”

The delay, if any, has been attributable to the Plaintiff by its sheer refusal to pay the 3rd Defendant. As such, it is my considered view that the Plaintiff is not entitled to impose any LAD against the 3rd Defendant.

On whether the Plaintiff is entitled to back charge the 3rd Defendant, it is my view that when there are no payments made to the 3rd Defendant and the works carried out by the Plaintiff is not one that rectifies the works done by the 3rd Defendant either, the issue of back charge does not arise. Furthermore, there is no evidence to show that the costs incurred to carry out the task had been more than the costs which would have been incurred should the works were carried out by the 3rd Defendant.

Furthermore, apart from copies of vouchers and receipts, there is no evidence to show that these payments were indeed paid for works related to the 3rd Defendant. As such, I am unable to allow the Plaintiff’s claims under the heading of backcharges against the 3rd Defendant.

Based on the foregoing, given the circumstances, the Plaintiff has failed to prove that the 3rd Defendant had breached its obligation under the contract and as such, the Plaintiff is not entitled to claim for loss of profit against the 3rd Defendant. iv. Whether the 1st and 3rd Defendants owe the Plaintiff a duty of care and if so, was that duty breached. 30 | P a g e

The Plaintiff claims that the 1st and 3rd Defendant had breached the duty of care owed to the Plaintiff on the basis that they had failed to complete the works under their respective contract within the contractual period and that they have terminated the contract without completing the works.

Undeniably, the 1st and 3rd Defendant’s obligation towards the Plaintiff is a contractual obligation. Should there be any duty of care owed to the Plaintiff, such duty requires the 1st and 3rd Defendant to exercise reasonable care in carrying out their contractual obligations. A breach occurs when they fail to meet the expected standard of care, leading to foreseeable injury or loss.

As there is evidence via the letter from Acustoscan dated 25.04.2022 to show that the turf on the football field match the requirements of the FIFA Quality Programme for Football Turf Standard – Edition 2015, the Plaintiff fail to establish any allegations with regard to the quality of work done by the 1st Defendant.

As for the 3rd Defendant, the issue between them was only regarding non-payment by the Plaintiff and no other allegations on the quality of work done by the 3rd Defendant.

As it has been established in the foregoing paragraphs, the reason for the non-completion of works under the contract by both the 1st and 3rd Defendants is only due to the Plaintiff’s failure to make the payments due to them pursuant to the contract. 31 | P a g e

Therefore, there is no breach of any duty of care by the 1st and 3rd Defendants as claimed by the Plaintiff. vii. Whether the Plaintiff is liable to pay the 3rd Defendant for works done in accordance to the Interim Payment Nos. 4 & 5 and or any other amount for works done between 20.07.2020 till 07.12.2020.

As it has been established that there are payments due to the 3rd Defendant which has not been paid by the Plaintiff for the works done, the 3rd Defendant is entitled for the same to be paid to it.

The claims under Progress Claim Nos. 4 and 5 amounts to a total of RM489,564.79 (RM296,294.95 + RM193,269.84) – (B5 @ pg. 826 and B7 @ pg. 32). This amount less 7% (being the portion due to the Plaintiff as agreed) is RM455,295.25.

The Plaintiff had paid the 3rd Defendant a sum of RM100,000.00 as deposit. Although the 3rd Defendant claims that this sum was paid back to the Plaintiff, however, the 3rd Defendant admitted that the said sum was paid in relation to another project i.e. Elmina. As such, since there is no further evidence that the sum of RM100,000.00 was paid back to the Plaintiff, this sum is to be deducted from the payment owed to the 3rd Defendant.

Therefore, the counterclaim by the 3rd Defendant against the Plaintiff for the sum of RM355,295.25 is allowed. 32 | P a g e

To conclude, I order as follows: i. The Plaintiff’s claims against the 1st Defendant, 2nd Defendant and 3rd Defendant are dismissed. ii. The 3rd Defendant’s counterclaim against the Plaintiff is allowed for a sum of RM355,292.25 only. iii. Interests of 5% pa to be imposed from the date of this judgment till the full settlement. iv. The Plaintiff is to bear costs of RM50,000.00 to each Defendant i.e. total of RM150,000.00 subject to allocatur fees. DATED: 16th MARCH 2026 Signed ……………………………… (SUMATHI A/P MURUGIAH) Judge High Court of Malaya Kuala Lumpur Counsel: For the Plantiffs – Cik Farah Nadiah Zainudin; Messrs. Farah Z & Co. For the 1st Defendant - Mr. James Ding Tse Wen with Ms. Woo Xiao Thong; Messrs. C H Tay & Partners. 33 | P a g e For the 2nd Defendant: Thanuraj a/l Iyavu – Mr. James Ong with Ms. Chan Kai Min; Messrs. Chan & Associates For the 3rd Defendant – Cik Nurul Amira Mohd. Zaidi; Messrs. Azahir