Seng Yoon Seng Holdings Sdn. Bhd. v Jeks Engineering Sdn. Bhd. (BA-22NCvC-97-03/2023)

This is a claim arising from a subcontract entered into between the Plaintiff and the Defendant for the supply, delivery and installation of performance louvres for an industrial development project situated at Lot DW1 and DW2 (part of PTD 24230), Jalan Tanjung A/2, Pelabuhan Tanjung Pelepas, Mukim Tanjung Kupang, Daerah Johor Bahru, Johor. 21/01/2026 11:18:34

The Plaintiff’s cause of action is founded on the Defendant’s alleged failure to pay the outstanding balance due under the subcontract, amounting to RM226,233.74. The Plaintiff also claimed interest and legal fees.

The Defendant resisted the claim and filed a counterclaim. The counterclaim is premised on alleged delay in the completion of the subcontract works, giving rise to liquidated ascertained damages (LAD), and on back charges said to have been incurred due to the Plaintiff's non-performance and defects.

After a full trial, having heard the witnesses and considered the documentary evidence and written submissions, I found, on the balance of probabilities, that the Plaintiff was entitled to the outstanding sum of RM226,233.74. I also allowed the Defendant's counterclaim for the LAD in the sum of RM2,655,000.00 and back charges in the sum of RM30,859.86. I declined to order a set off between the claim and the counterclaim. As both parties succeeded in part, I ordered that each party bear its own costs, subject to costs previously ordered in the cause.

The Plaintiff is now appealing to the Court of Appeal against my decision in respect of the counterclaim.

The following are my full grounds of judgment.

The Plaintiff is Seng Yoon Seng Holdings Sdn Bhd. The Defendant appointed the Plaintiff as a subcontractor to supply, deliver and install performance louvres for a construction project at Pelabuhan Tanjung Pelepas, Johor. The Plaintiff’s scope of work arose from a Letter of Award dated 20 June 2017.

The Defendant is Jeks Engineering Sdn Bhd. The Defendant was the main contractor for the project. The Defendant entered into the subcontract with the Plaintiff and was responsible for coordinating the works at site, including the handover of work areas to enable the Plaintiff to carry out its installation works.

The project owner was Pali PTP Sdn Bhd. Although the project owner is not a party to this suit, references to its role appear in the evidence and submissions, particularly in relation to certification of completion, defect liability matters and liquidated damages imposed on the Defendant under the main contract.

The dispute before me arises solely from the contractual relationship between the Plaintiff and the Defendant under the subcontract. ~This space intentionally blank~

By a Letter of Award dated 20 June 2017, the Defendant appointed the Plaintiff as a subcontractor to supply, deliver and install performance louvres for an industrial development project at Pelabuhan Tanjung Pelepas, Johor. The agreed subcontract sum was RM1,701,652.55, subject to adjustments in the final account.

The louvers are air ventilations panels that are affix onto the wall and supporting structures that the Defendant is responsible to construct for the project.

The Letter of Award set out the scope of works, payment terms, defect liability period and warranty requirements. It also fixed the work programme. The installation works were to start on 15 August 2017 and be completed by 2 January 2018. Time was stated to be of the essence. The Letter of Award further required the Plaintiff to apply in writing for an extension of time if it could not complete the works within the agreed programme.

The Plaintiff carried out the subcontract works and submitted progress claims from time to time. The Defendant made interim payments, and some payments were also made directly by the project owner. It is not disputed that payments totalling RM1,475,418.81 were made to the Plaintiff.

The Plaintiff’s case is that delays occurred because the Defendant did not hand over work areas on time, shop drawings were not finalised early, and there were design changes and issues with supporting structures at site. The Plaintiff says it completed its installation works in September 2018 and that the delays were not its fault.

The Defendant’s case is that the Plaintiff failed to complete the works by the contractual completion date of 2 January 2018. The Defendant state that the Plaintiff did not submit any application for extension of time as required under the Letter of Award.

A Certificate of Practical Completion under the main contract was issued, with the completion date stated as 23 October 2018. After completion, the Defendant issued a Statement of Final Account dated 12 March 2019. In that document, the Defendant confirmed the value of the work completed by the Plaintiff and stated that an outstanding sum of RM226,233.74 was payable to the Plaintiff.

The Plaintiff relies on the Statement of Final Account as proof that this sum is due and payable. The Defendant accepts that the work was done but state that the Statement of Final Account only records the undisputed value of the work and does not affect its right to claim liquidated damages and back charges.

By letter dated 7 December 2018, the Defendant informed the Plaintiff that it intended to impose liquidated ascertained damages for delay, calculated from 2 January 2018 to 23 October 2018, in the sum of RM2,655,000.00. The Defendant also claimed back charges of RM30,859.86 for costs said to have been incurred in relation to rectification works.

The Plaintiff denied liability for liquidated damages and back charges. The Plaintiff also argued that since liquidated damages were not included in the Statement of Final Account, the Defendant could no longer claim them. It was also submitted that the Letter of Appointment does not contain or stipulate that there will be any back charges enforceable between the parties.

As the outstanding sum of RM226,233.74 remained unpaid, the Plaintiff filed this suit. The Defendant resisted the claim and counterclaimed for LAD and back charges (Defendant had stated that they will no longer pursue the other claims for RM136,500.00, damages on the warranty and general damages). Issues to be Determined

There were no agreed issues jointly filed by the parties. Each party filed its own issues to be tried. For the purpose of this judgment, I merge and restate the issues raised by both parties into the following issues for determination.

Whether the Plaintiff completed the subcontract works under the Letter of Award.

Whether the Plaintiff is entitled to recover the outstanding sum of RM226,233.74 from the Defendant.

Whether there was delay in the completion of the subcontract works, and if so, the date of completion.

Whether the Plaintiff applied for an extension of time in accordance with the Letter of Award.

Whether the Defendant is entitled to claim the LAD in the sum of RM2,655,000.00.

Whether the exclusion of liquidated damages in the Statement of Final Account prevents the Defendant from claiming the LAD.

Whether the Defendant is entitled to claim back charges in the sum of RM30,859.86.

Whether the Plaintiff is entitled to interest and legal fees as claimed. Analysis and Findings

Before I deal with the substantive issues, I must first address the manner in which parts of the submissions were presented. I observed clear elements of quarrelling, insinuation and unnecessary remarks between counsel, particularly in the written submissions. This was too obvious. Counsel are officers of the Court and not parties to the dispute. Attacking the character or conduct of opposing counsel does not assist the Court in resolving the real issues. I repeat the advice I gave orally. Counsel for the Plaintiff, in particular, must be more subtle and careful in the choice of words. Both sides must observe proper etiquette and professional restraint. This Court is concerned with facts, evidence and law, not personal attacks.

I also record that the difficulty in deciding this case did not lie in identifying the issues or the applicable legal principles. The difficulty lay in simplifying the submissions, which were lengthy and at times unfocused, to extract what truly mattered.

I now turn to the issues.

Whether the Plaintiff completed the subcontract works and is entitled to RM226,233.74

On the balance of probabilities, I find that the Plaintiff completed the subcontract works and is entitled to the outstanding sum of

This finding is supported by both the documentary evidence and the Defendant’s own position. The Plaintiff led evidence on the progress of works, the payments received, and the final computation of the outstanding sum. The Plaintiff’s witnesses explained how the total contract sum was reduced by payments made by the Defendant and the project owner, resulting in a remaining balance of

More importantly, the Defendant does not dispute that this sum represents work done by the Plaintiff. The Defendant’s witness expressly acknowledged that the amount of RM226,233.74 is due for work carried out. The Defendant's case is not that the work was incomplete or unperformed, but that this sum should be set off against its counterclaim for LAD and back charges.

This admission is significant. It confirms that the subcontract works forming the basis of the Plaintiff’s claim were completed and valued (I refer and agree with the Plaintiff submission citing the Federal Court case of Yam Kong Seng & Anor v Yee Weng Kai (2014) 6 CLJ 285 on the issue of admission of debt). I therefore find that the Defendant is liable to pay the Plaintiff the sum of RM226,233.74.

The Plaintiff’s claim for legal fees and interest

The Plaintiff claimed RM15,000 as legal fees and interest at the rate of 10% from 12 March 2019.

I did not allow the claim for legal fees. There is no provision in the Letter of Award that entitles the Plaintiff to recover solicitor’s fees as part of its substantive claim. There is also no separate agreement or statutory basis that supports such a claim. During cross examination, the Plaintiff's witness accepted that the claim for RM15,000 was based on a solicitor's quotation and not on any contractual entitlement.

The parties referred me to the Federal Court decision in Golden Star & Ors v Ling Peek Hoe & Anor (2024) 4 MLRA 345. That case affirms the well established principle that legal fees incurred in pursuing a claim are not recoverable as damages unless there is a clear contractual or legal basis. I acknowledge that authority as cited by the parties. Applying that principle to the facts before me, I agree with the Defendant that the Plaintiff's claim for RM15,000 is not legally sustainable.

The same reasoning applies to the claim for interest at 10%. The Letter of Award does not provide for such a rate. The Plaintiff did not point me to any contractual clause or agreed term that fixes interest at that rate. In the absence of an express agreement or statutory entitlement, the Plaintiff cannot unilaterally impose a rate of interest. I therefore maintain my decision to disallow paragraph (b) of the Statement of Claim.

As for interest, I exercise my discretion to award interest at the rate of 5% per annum. This reflects a reasonable and conventional rate in the absence of any agreed contractual rate, and balances the Plaintiff’s entitlement to compensation for late payment against the absence of a contractual basis for the higher rate claimed.

Whether there was delay, whether the Plaintiff applied for extension of time, and whether the Defendant is entitled to LAD

I find that there was delay in completing the subcontract works. Completion only occurred on 23 October 2018, and more importantly, that the Plaintiff failed to prove that it applied for an extension of time. Therefore, the Plaintiff is liable for LAD as imposed.

This finding flows directly from the contractual structure of the Letter of Award. The contract clearly fixed the completion date as 2 January 2018 and stated that time was of the essence. It also clearly required the Plaintiff to apply for an extension of time in writing, with reasons and substantiation, when it became apparent that the works could not be completed within the agreed programme.

I should add that I have considered the Plaintiff’s argument that alleged delay by the Defendant rendered time at large. I reject that contention. The Letter of Award contains a clear and operative mechanism for an extension of time. Where such a mechanism exists, time does not become at large merely because delay is alleged. The contractual machinery must first be invoked. In the absence of any proven application for extension of time by the Plaintiff, the original completion date remains effective, and the Plaintiff cannot rely on alleged site delays to escape the contractual consequences.

The Plaintiff's case focused heavily on alleged delays by the Defendant, such as late handover of work areas, unresolved shop drawings and site readiness issues. These allegations were repeated at length in the Plaintiff's witness statements and submissions. However, even if I accept that there were site related difficulties, that does not remove the Plaintiff’s contractual obligation to apply for an extension of time.

On the evidence before me, the Plaintiff failed to show proof of any extension of time application made in accordance with the Letter of Award. Letters denying delay or blaming the Defendant are not the same as an extension of time application as required by the contract. I appreciate Defendant’s reference to the book “The Construction Law in Malaysia by Sundra Rajoo and Harban Singh KS”, Sweet & Maxwell Asia 2012 to explain the position that if there were requirement for notification of the delay and application for the extension of time, the same are mandatory and failure to comply would be fatal.

On the absence of an extension of time application, it was contended that Plaintiff’s reasons for the delay becomes irrelevant due to its own waiver (see the case of Yuk Tung Construction Sdn Bhd v Daya CMT Sdn Bhd (2020) MLRAU 211).

The Defendant also showed that the Plaintiff was informed of the LAD claim as early as 7 December 2018. This undermines the Plaintiff’s suggestion that the LAD claim was an afterthought. I therefore maintain my finding that the Defendant is entitled to LAD in the sum of RM2,655,000.00. Pursuant to Clause 8 of the Letter of Award, the LAD of RM9,000 per day is chargeable and is mandatorily imposed on the Plaintiff for any delay (in this case the delay was for 295 days).

I am also satisfied that 23 October 2018 is the relevant completion date for the purpose of assessing delay. On the evidence, the Plaintiff’s contractual obligations were not confined to physical installation alone but included outstanding contractual requirements, including matters necessary for completion to be recognised under the contract. Until practical completion was achieved on that date, the subcontract works could not be regarded as completed for the purpose of stopping the running of LAD.

Effect of the final statement of account on the LAD claim

The Plaintiff argued that because the LAD amount was not included in the final statement of account dated 12 March 2019, the Defendant is barred from claiming LAD.

I reject this argument.

I also find no evidence that the final statement of account was intended to operate as a full and final settlement of all contractual rights between the parties. There was no representation that the Defendant had waived its right to LAD, nor was there evidence that the Plaintiff altered its position in reliance on the omission of LAD from the statement. In the absence of clear intention, representation, and reliance, no waiver or estoppel can arise.

In my opinion, the final statement of account merely reflects the undisputed value of work completed. It is an accounting document, not a waiver of contractual rights. I agree with the Defendant that the exclusion of LAD from the final statement of account does not mean that the Defendant has abandoned or waived its LAD claim.

This position is consistent with the Defendant’s evidence. The Defendant accepts that the Plaintiff completed work valued at RM226,233.74 but maintains that this sum is subject to the Defendant's right to claim LAD and back charges. There is nothing in the evidence to show a clear and unequivocal waiver of the LAD claim. I therefore maintain my finding that the Defendant is not prevented from claiming LAD.

Whether the Defendant is entitled to back charges of

I allow the Defendant’s claim for back charges in the sum of

The back charges claimed arise from the Plaintiff’s contractual obligation to rectify defects within its scope of work. Where the Plaintiff failed or declined to carry out such rectification, the Defendant was entitled under the subcontract to engage third parties and recover the reasonable costs incurred. The claim before me relates only to those proven costs and not to any general or unparticularised damages.

The Defendant’s case on back charges was explained by reference to specific costs incurred for rectification works, equipment and related expenses during a defined period. These were put to the Plaintiff’s witnesses during cross-examination. The Defendant relied on the terms of the Letter of Award and the notices issued to the Plaintiff.

The Plaintiff’s response primarily focused on denying responsibility for defects and pointing to later complaints, which it said were unrelated to its scope of work. However, much of this response did not directly address the specific period and nature of the back charges claimed. I find that the Defendant’s evidence on this point was more focused and consistent with the contractual provisions relied upon. The claim for RM30,859.86 was in relation to repairs done between 17.6.2019 and 9.8.2029. This was acknowledged by the Plaintiff's witness (PW2), who stated that the work on the defect was provided; their only contention was that they ought to be free of charge.

Accordingly, I maintain my decision that the Defendant is entitled to recover RM30,859.86 as back charges.

Set off and costs

The Defendant invited me to order a set-off between the Plaintiff’s claim and the Defendant’s counterclaim. I declined to do so. I was not persuaded that a set-off order was appropriate in the circumstances, having regard to how the parties framed their claims and the manner in which relief was sought. The application to expunge Plaintiff's 2nd witness’s Witness Statement

Before concluding the matter, I find it necessary to address this issue briefly, as it was raised by the Plaintiff in its written submission. During the trial, the Defendant's counsel applied to this Court to expunge certain questions and answers from the 2nd Plaintiff's witness statement, which were found to be scandalous to the Defendant. His reason was that those statements were not facts of the case but opinions intended to disparage the Defendant's case or the Defendant’s counsel. Therefore, it was submitted that the statements were not related to the Plaintiff's pleaded case and referred to matters that occurred during the case management stage and were merely the Plaintiff’s opinion; they were therefore irrelevant and scandalous.

The Plaintiff’s counsel expressed his disagreement with the application and submitted that the statement was relevant as their defence to the counterslaim, and further asserted that the application to expunge was a malicious tactical manoeuvre and a contemptuous act of the Defendant to expunge key evidence from the witnesses’ statements.

These were examples of the unnecessary comments by counsel that I mentioned earlier. This could have been addressed in a more serene manner if the Plaintiff had explained to the Court that the statements were not scandalous, rather than attacking the other party for making the allegations.

Anyways, I have perused the witness statement and made the following rulings, I re-produce from my notes (see also the notes of proceeding on 23 April 2025 at page 33 of the Notes of Proceeding): “Ruling On Defendant’s objection and application to expunge certain paragraphs in the QNA by Plaintiff’s second witness, after perusing the witness statement, I agree with Defendant that the evidence given in the listed paragraphs is scandalous in nature and irrelevant to the matter that is as a reply to the Defendant’s counterclaim. I refer to the relevant QNA and make the following rulings: QNA 15 para 2 is expunged QNA 19 para 3 QNA 34 para 5 QNA 41 part of para 2, para 4 and 5 QNA 42 para 2 and 3 QNA 43 para 2 and 3 QNA 44 the whole QNA QNA 47 only the first line allowed, the rest expunged QNA 48 para 2 delete the word “is an abuse of process”, para 4,5,6 expunged QNA50 and 51 – the whole QNA From the evidence given in other QNAs, Plf were given ample opportunity to state their defence to the counterclaim which will be considered by this Court.”

For ease of reference, an example of the repeated expunged statements was as quoted below: “Jeks allegations that the emails are false is a tactical move to delay this trial, abuse of Court’s process, wasting more of SYS’s resources and attempt to gain unfair advantages in Jeks’s Counterclaim against SYS”

I emphasise that the expunged portions did not concern primary facts necessary for the Plaintiff’s case but consisted of opinions, characterisations, and allegations against the Defendant and its counsel. The Plaintiff was not prevented from adducing evidence or advancing its substantive defence to the counterclaim, and no prejudice was occasioned by the expungement.

I am also of the considered view that the expunged statements would not in any way refused or hindered the Plaintiff from sufficiently addressing or adducing evidence to support their case. Testimonies given by a witness can be taken as similar to evidence adduced by affidavit, and according to Order 41 Rule 5 of the Rules of Court 2012, if such an averment were not a statement of fact, of information or belief but rather legal submissions or opinion, it could be struck out as scandalous, irrelevant or oppressive.

For the reasons set out above, I conclude as follows.

I allow the Plaintiff’s claim for the outstanding sum of RM226,233.74 as pleaded. I dismiss the Plaintiff’s claim for legal fees. The Plaintiff’s claim for interest is allowed only to the extent stated in the final order (5% per annum), and not as pleaded at the rate of 10%.

I allow the Defendant’s counterclaim for the LAD in the sum of RM2,655,000.00 and for back charges in the sum of RM30,859.86. I reject the Plaintiff’s arguments that the absence of liquidated damages in the final statement of account bars the Defendant from pursuing its counterclaim.

I, however, decline to order a set off between the Plaintiff’s claim and the Defendant’s counterclaim.

As both parties have succeeded in part and by agreement, I order that each party bear its own costs, subject to costs previously ordered in the cause. Dated this: 17th January 2026 ~signed~ (NOOR HAYATI BINTI HAJI MAT) JUDGE HIGH COURT OF MALAYA SHAH ALAM, SELANGOR For the Plaintiff : Amos Ong Weng Mun together with Elaine Foong Hui Ling Messrs Elaine, Yun & Associates For the Defendant :