Syarikat Letrik Chen Guan Sdn Bhd v Imej Tenggara Sdn Bhd (WA-22C-3-01/2020)

(a) a total sum of RM6,520,412.22 was paid by BGB vide 12 cheques between 31.5.2011 and 5.4.2012; and

(b) a total sum of RM2,158,375.48 was paid by the Defendant vide 4 cheques dated 18.5.2012, 21.5.2013 and 28.1.2014, thus leaving the total sum of RM879,954.60 as the balance amount due and payable by the Defendant to the Plaintiff for the 1st Sub-Contract Works (‘Total Outstanding 1st Sub-Contract Sum’). [15] The Plaintiff had, through its solicitors, demanded for the Total Outstanding 1st Sub-Contract Sum from the Defendant vide the letter dated 13.8.2019. Several correspondences followed thereafter without any payment in sight. - The 2nd Sub-Contract Works [16] By the Letter of Award dated 8.3.2011 and the Supplementary Letter of Award dated 8.10.2011 (collectively referred to as the ‘2nd Letter of Award’) issued by BGB, the Plaintiff was also appointed as the sub-contractor for the rainwater down pipe works for the additional amount of RM61,338.00 and the sanitary wares and fittings installation for the additional amount of RM82,500.00 as stipulated in Appendix ‘A’ and Appendix ‘B’, respectively, to the Supplementary Letter of Award. [17] The Plaintiff claimed that it has duly completed the 2nd Sub-Contract Works and it relied on the Statement of Sub-Contract Final Account which was issued by BGB to contend that the original sub-contract sum of RM110,359.70 had been remeasured to the total sum of RM151,963.00 (‘Final 2nd Sub-Contract Sum’) including a sum of RM3,799.08 as the retention sum under the 2nd Sub-Contract Works. [18] The Plaintiff pleaded that only a sum of RM61,000.00 had been paid by BGB vide a cheque dated 23.11.2012, leaving a sum of RM90,963.00 as the outstanding amount to be paid to the Plaintiff for the 2nd Sub-Contract Works (‘Total Outstanding 2nd Sub-Contract Sum’). [19] Since BGB has been wound-up, it is the Plaintiff’s case that the Defendant is the party responsible to make payment to the Plaintiff for the Total Outstanding 2nd Sub-Contract Sum. This is because, as the employer of the Project, the Defendant had enjoyed the benefits from the 1st Sub-Contract Works and/ or the 2nd Sub-Contract Works. [20] Alternatively, the Plaintiff relied on s 71 of the Contracts Act 1950 [Act 136] (‘CA 1950’), quantum meruit and/ or unjust enrichment to support its claims against the Defendant. - The Supply and Installation Works [21] The Plaintiff alleged that the Defendant had instructed the Plaintiff to supply and fix 500 table lamps, 1,000 flexible reading lights and 1,000 bedside wall lights under the Project for Hotel Ibis Style KL to be completed by the end of June 2012. A Purchase Order dated 7.3.2012 for the contract value of RM605,000.00 (‘Total Sum of the Supply and Installation Works’) was issued by the Defendant to the Plaintiff. [22] The Plaintiff asserted that it had completed the Supply and Installation Works, however, only a sum of RM505,500.00 was paid by the Defendant to the Plaintiff leaving a balance of RM99,500.00 (“Total Outstanding Sum for the Supply and Installation Works’). [23] Based on the foregoing, the Plaintiff’s claims against the Defendant are essentially for –

(a) the Total Outstanding Sum for the 1st Sub-Contract Works of RM879,954.60;

(b) the Total Outstanding Sum for the 2nd Sub-Contract Works of RM90,963.00;

(c) the Total Outstanding Sum for the Supply and Installation Works of RM99,500.00;

(d) as an alternative to all of the above, general damages to be assessed by this Court;

(e) interest at the rate of 5% per annum on each of the sums as abovementioned from the date of the SoC until the date of full and final settlement; and

(f) costs of the proceedings. The Defendant’s Case [24] The defences raised by the Defendant are as follows:

(a) in respect of the 1st Sub-Contract Works –

(i) that the Defendant has never entered into any contract with the Plaintiff;

(b) in respect of the 2nd Sub-Contract Works and the Supply and Installation Works, to deny the claims and to put the Plaintiff to strict proof; and

(c) as a further or alternative defence to all the Plaintiff’s claims, that the facts and the cause of action as pleaded by the Plaintiff occurred more than 6 years before the filing of the Writ and therefore, the Plaintiff’s claim is barred pursuant to s 6(1)(a) of the Limitation Act 1953 [Act 254] (‘LA 1953’). The Trial and Issues To Be Tried [25] As previously stated, the trial took four days where the following witnesses were called to give evidence: [26] The Issues To Be Tried as agreed by the parties consist of Preliminary Issues and Specific Issues relating to each of the Plaintiff’s claim under the 1st Sub-Contract Works, the 2nd Sub-Contract Works and the Supply and Installation Works. Witness Name Occupation PW1 Mr. Choong Pin Han Plaintiff’s Director PW2 Mr. Heng Boon Huat (Tony Heng) Director of F & B, Mandarin Express Sdn Bhd and the Defendant’s former Project Director and Director PW3 Mr. Cheong Sam Hong Director of Perunding PCT Sdn Bhd (Quantity Surveyor) PW4 Mr. Chiang Teng Guan Director of Messrs. Rodgers Reidy & Co (assisted Mr Lim Tian Huat, the Liquidator of BGB) DW1 Mr. Lee Choon Peng Defendant’s Director [27] The Specific Issues will be set out in my analysis of each of the Plaintiff’s claim as above mentioned whilst the Preliminary Issues are listed below:

(a) Whether there is privity of contract between the Plaintiff and the Defendant under the 1st Sub-Contract Works?

(b) Whether there is privity of contract between the Plaintiff and the Defendant under the 2nd Sub-Contract Works?

(c) If the answer to subpara(a) and/ or subpara(b) above is “No”, under the circumstances of this suit, including and not limited to the Specific Issues relating to the 1st Sub-Contract Works and the 2nd Sub-Contract Works, whether the Plaintiff could rely on s 71 of the CA 1950, the doctrine of quantum meruit and/ or the doctrine of unjust enrichment to claim against the Defendant for the 1st Sub-Contract Works and/ or the 2nd Sub-Contract Works?

(d) If the answer to subpara(c) is “No”, whether the Plaintiff’s claim under the 1st Sub-Contract Works and/ or 2nd Sub-Contract Works is an abuse of court process and/ or malicious prosecution?

(e) Whether the Plaintiff’s claim pursuant to the 1st Sub-Contract Works is barred pursuant to s 6(1)(a) of the LA 1953?

(f) Whether the Plaintiff’s claim pursuant to the 2nd Sub-Contract is barred pursuant to s 6(1)(a) of the LA 1953?

(g) Whether the Plaintiff’s claim for the Supply and Installation Works is barred pursuant to s 6(1)(a) of the LA 1953? The Defendant’s Preliminary Objection [28] The Defendant’s solicitors had sent a Notice of Preliminary Objection dated 21.1.2021 to the Plaintiff’s solicitors stating that, having perused PW1’s and PW2’s Witness Statements (marked as ‘WS-PW1’ and ‘WS-PW2’), notice was given that the Defendant will be raising a preliminary objection to all evidence in WS-PW1 and WS-PW2 of alleged assurances of the Defendant that the Plaintiff would be fully paid for all works under the Project (‘Objected Evidence’; attached as ‘A’ and ‘B’ to the said Notice) by reason that the same was never pleaded by the Plaintiff. [29] The Plaintiff’s solicitors replied vide the letter dated 24.1.2021 that –

(a) the Objected Evidence was pleaded in subparas 6.5, 6.7 and 8.2 of the Amended Reply to Amended Defence;

(b) the facts concerning the Objected Evidence has been sufficiently pleaded as it is trite that every pleading shall contain only a statement in summary form of the material facts on which the party pleading relies for its claim or defence but not the evidence by which those facts are to be proved;

(c) the facts relating to direct payment made by the Defendant to the Plaintiff for the 1st Sub-Contract Works and the Plaintiff’s appointment as NSC were pleaded. The fact that the Defendant had made direct payment to the Plaintiff is an agreed fact (see para 4 of the Agreed Facts);

(d) the Objected Evidence was introduced in order to explain the underlying reasons as to why there was direct payment made by the Defendant to the Plaintiff and why the Plaintiff was appointed as NSC when the Quotation was initially submitted directly to the Defendant; and

(e) by virtue of ss 5 to 9 of the Evidence Act 1950 [Act 56] (‘EA 1950’), the Objected Evidence is a relevant fact forming part of the same transaction; and is the occasion, cause or effect of the facts as stated in subpara (c) above. The Objected Evidence is also relevant as it shows or constitutes previous and subsequent conduct of, and is necessary to explain or introduce the facts as stated in subpara (c) above. [30] The learned counsels had submitted on the issue of the Defendant’s Preliminary Objection in their Written Submissions after the full trial and after having considered the respective contentions of the parties, I had decided to allow the Preliminary Objection. My reasons are as follows:

(a) O. 18, r. 7 of the Rules of Court 2012 (‘RC 2012’) provides that: “7. Facts, not evidence, to be pleaded (O. 18 r. 7)

(b) Turning now to the part of the Plaintiff’s pleadings where the Plaintiff asserts that it has pleaded the Objected Evidence, specifically subparas 6.5, 6.7 and 8.2 of the Amended Reply to Amended Defence, these subparas must be read in the context of the entire paras 6 and 8 which are re-produced below: “6. Paragraphs 6, 6(i) to (iv) of the Amended Defence and Amended Counter Claim is denied by the Plaintiff and the Defendant is put to strict proof thereof. In replying thereto, the Plaintiff repeats paragraphs 4 to 13 of the Statement of Claim and paragraph 5 herein and further states that: -

6.1 The Quotation was received by the Defendant and the same is confirmed by the Main Contract vide the 1st Letter of Award;

6.2 The Defendant’s denial of knowledge and/or existence and/or relevance of the 1st Letter of Award and/or 1st Sub-Contract Works is clearly a bare denial for the purpose of avoiding the Defendant’s liability towards the Plaintiff as the Employer of the Project whom had nominated the Plaintiff for the 1st Sub-Contract Works;

6.3 The denial by the Defendant is clearly contradictory to the existence of the fact that there are direct payments being made by the Defendant to the Plaintiff for the 1st Sub-Contract Works;

6.4 As the Nominated Sub-Contractor nominated by the Defendant through the Main Contractor for the 1st Sub-Contract Works, the Defendant is privy to the 1st Letter of Award and/or 1st Sub-Contract Works and therefore is responsible and/or obligated for the full payment to the Plaintiff as the party who had completed the 1st Sub-Contract Works whereas the Defendant is a party who received and enjoyed the benefit arising thereto;

6.5 The agreement and/or arrangement for direct payment from the Defendant to the Plaintiff had started as early as before the Main Contract been wound up;

6.6 Therefore, the Plaintiff states that the denial by the Defendant towards the responsibility and/or obligation towards the Plaintiff respecting the outstanding sums claimed in this Suit is clearly an afterthought to avoid responsibility and/or liability.

6.7 Vide the correspondences and/or interim valuations from the consultant of the Project, Perunding PCT Sdn Bhd for the Project including the 1st Sub-Contract Works, it was verified that there is an existence of an agreement between the Defendant and the Main Contractor that the Defendant is agreeable to bear the responsibility to make direct payment to the Plaintiff; …

Paragraph 9 of the Amended Defence and the Amended Counter Claim is denied by the Plaintiff and the Defendant is being put to strict proof thereof. In replying thereto, the Plaintiff repeats all the above paragraphs and states that: -

8.1 the particulars therein paragraph 9 of the Statement of Claim, particularly (13) to (16) are the direct payments from the Defendant to the Plaintiff; and

8.2 Therefore, the Defendant is actually aware of and agreeable to the obligations and responsibility on payment as the Employer of the Project to the Plaintiff as the Nominated Sub-Contractor.”. Upon scrutinising the above said pleadings together with the paras in the other parts of the pleadings which are mentioned therein, I find that the pleadings in subparas 6.5, 6.6 and 8.2 of the Amended Reply to Amended Defence do not relate to the Objected Evidence but to an entirely different matter, namely, that there was an agreement between the Plaintiff, the Defendant and BGB for direct payments to be made by the Defendant to the Plaintiff and that the Defendant was aware of its obligation to pay the Plaintiff as the NSC for the Project. As submitted by the Defendant, the Objected Evidence, being alleged specific assurances made by the Defendant that the Plaintiff would be fully paid for all works under the Project, do not fall within the above quoted pleadings which refer to the direct payments that were made by the Defendant.

(c) The Court agrees with the Defendant’s submission that the Plaintiff has to plead the material facts surrounding the alleged assurances and/ or representations i.e. who made the assurances/ representations, who was were present at that time and when and where were the assurances/ representations made. To allow the Plaintiff to rely on the Objected Evidence under ss 5 to 9 of the EA 1950 as implored by the Plaintiff would not only circumvent the rules of pleadings, but would also be prejudicial to the Defendant as the Plaintiff would then be able to rely on the principles of equitable estoppel as expounded in Boustead Trading (1985) Sdn. Bhd. v. Arab-Malaysian Merchant Bank Berhad [1995] 4 CLJ 283 without even having pleaded the same. [31] Flowing from the decision to allow the Defendant’s Preliminary Objection, all evidence in WS-PW1 and WS-PW2, which were marked as ‘A’ and ‘B’, respectively, to the Notice of Preliminary Objection, and all evidence given in the course of the trial which relate to the Objected Evidence, was not admitted by reason of the Plaintiff’s failure to plead the same. With this determination, there is no necessity for the Court to consider the Defendant’s alternative submission on the weight to be given, if any, to the Objected Evidence. I. The Plaintiff’s Claim under the 1st Sub-Contract Works [32] The Specific Issues relating to the 1st Sub-Contract Works are as follows:

(a) Whether the Plaintiff is the NSC by the Defendant as the Employer for the 1st Sub-Contract Works and under the Project?

(b) Whether the 1st Sub-Contract Works had been duly completed by the Plaintiff?

(c) Whether there were direct payments by the Defendant to the Plaintiff?

(d) Whether the sum of RM879,954.60 is the balance sum due and payable to the Plaintiff for the 1st Sub-Contract Works?

(e) Whether the Defendant had enjoyed benefits from the completion of the 1st Sub-Contract Works by the Plaintiff?

(f) If the answer to subparas (a), (b), (c), (d) and/ or (e) is “Yes”, whether the Defendant is the party responsible for the payment of the balance sum of RM879,954.60 due to the Plaintiff for the 1st Sub-Contract Works? [33] However, before embarking on a discussion of the Specific Issues, the Preliminary Issues must first be examined and determined. My analysis of each of the Preliminary Issues is elaborated in the ensuing part of this judgment. 1st Preliminary Issue: Whether there is privity of contract between the Plaintiff and the Defendant under the 1st Sub-Contract Works? - The Parties’ Submissions [34] The Plaintiff does not dispute that the 1st Letter of Award was entered into between the Plaintiff and BGB. It therefore sought to rely on the contemporaneous documents, the Defendant’s conduct and the surrounding circumstances of the case in submitting that a contractual relationship between the Plaintiff and the Defendant has been established. [35] In opposing the Plaintiff’s contentions, the Defendant argued that since the Defendant is not a party to the 1st Letter of Award, the Plaintiff can only claim the Total Outstanding 1st Sub-Contract Sum from BGB. It was further argued that the Defendant recognises such a legal position as it had filed its Proof of Debt on 31.10.2014 with BGB’s Liquidator for the sum of RM1,791,681.31, which includes the sums now being claimed by the Plaintiff for the 1st Sub-Contract Works and the 2nd Sub-Contract Works. - Findings of the Court [36] In his submission for the Defendant, Mr. L.M. Leslie cited the following passage from the decision of the High Court in Bauer (Malaysia) Sdn Bhd v Hundred Vision Construction Sdn Bhd & Anor [2020] 1 LNS 442 on the concept of privity of contract: “[41] The term "privity of contract" in law has come to attain a universally consistent meaning in the law of contract. It expresses the concept that only parties who are privy to the contract may sue and be sued by each other. Parties not privy as in not a party to a contract cannot sue under the contract even though it might suffer a wrong or a grievance under the contract. The rights given in the contract would entitle one to sue the defaulting party in the contract and likewise the liability arising under the contract would expose one to being sued. No one but the parties to a contract can be bound by it or entitled under it. See the Court of Appeal's decisions in Boustead Naval Shipyard Sdn Bhd v. Dynaforce Corp Sdn Bhd [2015] 1 MLJ 284; [2014] 5 CLJ 533; and Tsang Yee Kwan v. Majlis Perbandaran Batu Pahat [2011] 8 CLJ 913 and the Privy Council’s case of Kepong Prospecting Ltd & Ors v. Schmidt [1968] 1 MLJ 170.”. [37] Being well aware that the Defendant did not issue the 1st Letter of Award, Mr. Y.F. Lai drew support from another High Court case, Halim Bin Sutarjo v KPMB Builder Bhd (Formerly Known as Konsortium Peladang (M) Bhd) [2005] 4 MLJ 273 wherein the Court stated, among others, that: “[24] In relation to the existence or otherwise of a contractual relationship between the plaintiff and the defendant, it is trite law that a contractual relationship can be established expressly eg by way of a written agreement; or orally by word of mouth supported by credible evidence, or even implied from the conduct of the parties and contemporaneous documents. In the instant appeal, although there is no express or written agreement executed by the parties and notwithstanding the denial by the defendant of such an agreement, it is necessary to consider if such an agreement may properly be implied from the conduct of the parties and contemporaneous documents.” (emphasis added). [38] After having considered the witnesses’ evidence, including their testimonies regarding the documents which were produced at the trial, and the written submissions by the learned counsels who represented the parties, I was inclined to accept the Plaintiff’s submission that, although there is no privity of contract between the Plaintiff and the Defendant for the 1st Sub-Contract Works in the sense of there being a written agreement which was entered into by the parties, the Plaintiff has nevertheless proven, on a balance of probabilities, that a contractual relationship between the Plaintiff and the Defendant in relation to the 1st Sub-Contract Works can be implied from the conduct of the parties and contemporaneous documents. My reasons for this conclusion are as follows:

(a) In WS-PW1, PW1 testified that PW2 had introduced the Plaintiff to DW1 and since the parties are in the same industry, the Defendant had invited the Plaintiff to submit a quotation for the mechanical and electrical works for the Project. PW2, who was the Defendant’s Project Director since 2009 and its Director from May 2012 until January 2014, said that he was DW1’s friend and also a friend of Datuk Choong Yew Lim, the Plaintiff’s Managing Director. PW2 had introduced Datuk Choong Yew Lim to DW1. PW2 corroborated PW1’s testimony that the Defendant had invited the Plaintiff to submit a quotation for the mechanical and electrical works for the Project (see WS-PW2). Subsequently, the Plaintiff did submit the Quotation to the Defendant and attention to DW1 with the breakdown for the mechanical works in the sum of RM5,178,882.00 and electrical works in the sum of RM6,153,002.00. When cross-examined by the learned counsel for the Plaintiff, DW1 agreed that the Quotation was addressed to, and accepted by, the Defendant. The 1st Letter of Award, which was copied to DW1, starts with the words “We were informed by the Employer, Imej Tenggara Sdn. Bhd. via their letter dated 1st Sept 2010 that your tender with a revised price of … (RM11,331,884.00) has been accepted and you have been selected to become our … (NSC) for the above captioned work.” and it goes on to say that: “In compliance with the aforesaid letter, we hereby agree to award the whole of the above captioned work to you subject to the terms and conditions as stipulated in your letter ref: … and dated 21st June 2010 … The Sub-Contract Agreement is in preparation for signing. Pending formalisation of the Sub-Contract Agreement, this letter and your tender shall constitute a legal and binding contract between yourself and ourselves. Period of honouring progress payment shall be back to back basis upon received payment of main contract. …”. In his evidence, DW1 agreed with the suggestion by the Plaintiff’s counsel that BGB, in issuing the 1st Letter of Award, was merely complying with the Defendant’s decision in appointing the Plaintiff. In view of the fact that the Plaintiff’s claim for the Total Outstanding 1st Sub-Contract Sum was premised on the 1st Letter of Award, the Sub-Contract Agreement was presumably not executed by the Plaintiff and BGB. Further, the fact that the Quotation was addressed to the Defendant and that the 1st Letter of Award was copied to the Defendant, in both instances specifically to DW1, debunks the Defendant’s defence that it has no knowledge of the Quotation and the 1st Letter of Award. Based on the foregong evidence, the Court was satisfied that the Plaintiff had proven the fact that it was invited by the Defendant to submit the quotation for the 1st Sub-Contract Works and the Quotation was accordingly accepted by the Defendant.

(b) PW1 had explained what happened after the acceptance of the Quotation in these words: “When the Plaintiff enquired the Defendant further on the formalization of the Plaintiff’s appointment, the Plaintiff was informed by the Defendant that the Defendant intended to place the Plaintiff as sub-contractor to BGB, who will be appointed as main contractor for the Project by the Defendant. The Plaintiff had initially objected to the same as the Plaintiff concerned about the promptness or punctuality of the payment from the intended main contractor, BGB as there were some other outstanding still due and owing by BGB to the Plaintiff at the material time for other projects. The Defendant had explained their reason in that such arrangement was mainly for convenience of coordination of sub-contracts by a main contractor.”. PW2 again gave the same account of the events. He testified that: “Notwithstanding that the quotation was submitted by the Plaintiff to the Defendant and accepted by the Defendant, due to the need for the convenience of coordination of sub-contract works, it was arranged that the Plaintiff will be appointed as nominated sub-contractor under the main contractor, Bina Goodyear Berhad (“BGB”). In other words, BGB was requested by the Defendant to appoint the Plaintiff as nominated sub-contractor.”. In cross-examination, DW1 agreed that the Plaintiff was appointed as the NSC for the Project for convenience of coordination or administration of the sub-contract by one main contractor. In the light of the aforesaid evidence, there is no doubt in my mind that the Plaintiff’s appointment by BGB as the NSC for the Project was at the request of the Defendant. The Plaintiff had additionally proven that this arrangement was with a view of better coordination of the sub-contract works under one main contractor namely, BGB.

(c) The first para in Interim Valuation No. 13 (Direct Payment to sub-contrators) dated 28.2.2012 which was issued by Perunding PCT Sdn Bhd (‘PPCT’) to DW1 as the Project Director and copied to the Defendant and BGB, states that: “With reference to the above captioned project and further to your instruction on your additional agreement with the Main Contractor, Bina Goodyear Berhad, with regards to make direct payments to certain of his sub-contractors, we hereby append below the amounts of payment due for the Main Contractor and the designated sub-contractors:- …”, and it goes on to include the interim valuation of work done by, among others, the Plaintiff in the sum of RM2,214,776.98. The same wordings as above quoted are seen in the first para of Interim Valuation No. 14 (Direct Payment to sub-contrators) dated 1.3.2012 where the interim valuation of work done by the Plaintiff is stated as RM984,410.11 and the document is copied to the Defendant and BGB. The first para in Interim Valuation Nos. 15, 16 and 18 starts with the words “Pursuant to Clause 41 of the Conditions of Contract” before the words “and your instruction on the additional agreement with the Main Contractor ... to make direct payments to certain of his sub-contractors ...”. These Interim Valuations are similarly copied to the Defendant and BGB. In his evidence before the Court, PW3 had explained the reason as to why the wrote the first para in the above mentioned Interim Valuations in that manner: “… Because we acted on instruction by the mutual agreement to make some payment on behalf of the main contractor, Syarikat Chen Guan and also CP Consultant. There was an instruction, there was an instruction letter, agreement mutually agreed between Imej Tenggara and Bina Goodyear, the main contractor. … It was a letter signed by Imej Tenggara and consented by Bina Goodyear Sdn Bhd. … Yes, I understood from their letter that it is their mutual financial arrangement. …”. PW3 further confirmed that after he prepared and signed the Interim Valuations, he had submitted the same to DW1 and copied to the Defendant and BGB, but none were given to the Plaintiff. During cross-examination, PW3 said that the letter regarding the financial arrangement between the Defendant and BGB was in his file and that he did not bring it for purposes of the trial. PW3 was also questioned by Mr. L.M. Leslie on the different format for Interim Valuation Nos. 1 to 12 as compared with the format for Interim Valuation No. 13 and onwards. However, this was clarifed during re-examination with PW3’s evidence that for Interim Valuation Nos. 1 to 12, only one payment was made i.e. to BGB whilst starting with Interim Valuation No. 13, there was an instruction on the mutual payment to make separate payments to the sub-contractors. In my asessment, the oral evidence given by PW3 taken together with the documentary evidence supports the Plaintiff’s contention that there is an additional agreement between the Defendant and BGB for payments to be made to the Plaintiff.

(d) The Plaintiff had produced the following documents as evidence of the direct payments made by the Defendant to the Plaintiff for the 1st Sub-Contract Works:

(i) the letter from Malayan Banking Berhad (‘MBB’) dated 17.5.2012 to the Defendant enclosing two banker’s cheques for the sum of RM1,310,003.98 and RM923,378.94, respectively, made out in favour of the Plaintiff. With regards to the latter cheque, PW1 testified that the sum of RM335,007.44 was part payment made by the Defendant on behalf of BGB to the Plaintiff for another sub-contract works known as Wangsa Walk Mall. To support its version of the events, the Plaintiff produced the letter dated 12.7.2012 from BGB to the Defendant and attention to DW1 and PW2 titled “Contra of Payment of RM335,007.44” wherein BGB confirmed that it was agreeable to the terms as stated in the Plaintiff’s letter dated 11.7.2012 which was enclosed therewith. The Plaintiff’s letter dated 11.7.2012 was signed by Datuk Choong Yew Lim and was sent to BGB to the attention of one Mr. Eng Kim Leng. Reference was made to the discussion between these two gentlemen on 6.7.2012 where it was confirmed that the sum of RM335,007.44 which the Plaintiff received from the Defendant in relation to the Project shall instead be used to set off for the same amount arising from the Wangsa Walk Mall project as the total amount outstanding by BGB to the Plaintiff for that project is RM341,345.05. The set off arrangement was said to be “... just for this transaction and it does not in any way affect either party’s right or liabilities in connection to the projects.”. The Plaintiff’s letter was copied to the Defendant, specifically to DW1 and PW2. When cross-examined, DW1 agreed that the Defendant did not issue any letter to dispute the contents of the 11 and 12 July 2012 letters.

(e) After the issuance of the two banker’s cheques dated 17.5.2012, the Plaintiff had submitted its Penultimate Progress Claim to BGB vide the letter dated 17.8.2012 for the sum of RM900,986.04. This letter was copied to the Defendant and attention to DW1 and PW2. In the Interim Valuation No. 18 dated 3.1.2013 addressed to DW1, PPCT had submitted the total amount valued as RM2,277,456.69 (see too, The Certificate of Payment 18 (Penultimate) issued by MK Looi Architect) which includes the interim valuation of the work done by the Plaintiff in the sum of RM216,187.01. PPCT additionally mentioned that the Certificate of Practical Completion dated 12.6.2012 (‘CPC’) had been issued. According to PW1, the subsequent payments by the Defendant on 20.5.2013 and 28.1.2014 were as a result of numerous reminders to the Defendant. As adverted to earlier, DW1 admitted that the Defendant had made direct payments to the Plaintiff under the 1st Letter of Award, one of which is the sum of RM60,000.00 on 28.1.2014 towards the sum payable under Interim Valuation No. 18. The Plaintiff’s reminders and requests for payment from the Defendant were made verbally as no documents to this effect were shown at the trial until the correspondence which was initiated with the Plaintiff’s solicitors letter dated 13.8.2019. In that letter, the solicitors demanded for the sum of RM879,954.60 from the Defendant as the amount which remained due and payable to the Plaintiff for the “Design, Suppy and Installation of Mechanical & Electircal Works” i.e. the 1st Sub-Contract Works, and after taking into account the last payment received from the Defendant on 28.1.2014. The Plaintiff’s solicitors wrote to the Defendant again on 22.10.2019 with reference to DW1’s e-mail which was received on 17.9.2019. The Plaintiff’s solicitors stated that they have been instructed to reply that the Defendant is the party responsible for the outstanding sum of RM879,954.60 and that the Plaintiff had received the sum of RM8,678,787.70 for the 1st Sub-Contract Works including the last payment vide PBB cheque for the sum of RM60,000.00. The Defendant’s solicitors replied to the Plaintiff’s solicitors on 5.12.2019 disputing the Plaintiff’s allegations and claiming that the Plaintiff has failed to account for some payments made such that the total amount paid is actually RM9,519,295.14. Based on the final account of RM9,382,086.30, the Defendant alleged that the sum of RM137,208.84 has been overpaid to the Plaintiff. This was the amount which was intially counter-claimed by the Defendant and subsequently withdrawn on the first day of the trial. PW1 proferred an explanation as to why the Plaintiff filed the instant suit only on 23.1.2020 during the re-examination: “Actually before I mean this, before we filed this suit case, from the project we taken from CP Lee, actually CP Lee is a very good friend of my father, that’s why we trust what he said, even he did a verbal promise la, then also from the contract part also we see that even from PCT side also they write to us the direct payment, even from the certificate they show direct payment to us, and then also even CP Lee also even they pay us on 2014, they give us a 60k payment, so we trust him to pay us even we looked for him many time he say he will promise will settle our payment, so we even if even after 2014 we keep on chasing them la. So from that that’s why we didnt get a written confirmation from them, we trust he will pay us, that’s why until now only after the 60k they didnt pay us, that’s why now only we filed this suit case, even before, after 2014 actually 2016 also they actually got offered before us to contra apartment, then later he pulled out already, no contra to us.”. What is significant from the above chronology of events is the fact that the Defendant had made direct payments to the Defendant on 20.5.2013 and 28.1.2014 following the issuance of Interim Valuation No. 18. At that time, the Defendant did not deny responsibility to pay the Plaintiff on the ground that the Defendant is not a party to the 1st Letter of Award. 2nd Preliminary Issue: Whether the Plaintiff’s claim pursuant to the 1st Sub-Contract Works is barred pursuant to s 6(1)(a) of the LA 1953? - The Parties’ Submissions [39] The Plaintiff invoked s 26(2) of the LA 1953 and relied on the cases of Petronas Nasional Bhd (PETRONAS) v Syed Hashim bin Ahmad [2015] 4 MLJcon 214 and Ssangyong Engineering & Construction Co Ltd v Tridant Engineering (M) Sdn Bhd and another case [2015] MLJU 1124 in submitting that the Plaintiff’s right of action accrues on the date of the partial payment of RM60,000.00, namely 28.1.2014. [40] On the other hand, Mr. Y.F. Lai argued for the Defendant that the Plaintiff’s cause of action had crystalised on either of the following dates:

(a)

17.8.2012 being the date of the Penultimate Progress Claim submitted by the Plaintiff to BGB; or

(b)

3.1.2013 being the date of issue of Interim Valuation No. 18, and since this suit was filed on 23.1.2020 which is more than 6 years from either of the said dates, the claim for the Total Outstanding 1st Sub-Contract Sum is time-barred under s 6(1)(a) LA 1953. [41] The learned counsel further argued that there is no accrual of a fresh cause of action based upon the payment of RM60,000.00 on 28.1.2014 due to the following reasons:

(a) the intent and purpose of the RM60,000.00 payment by way of DW1’s personal cheque which is for sums due under Interim Certificate No. 18 for the 1st Sub-Contract Works and for the account of BGB;

(b) s 26(2) LA 1953 cannot be applied since the said payment is not made by the person who owes the obligation in the first place; and

(c) alternatively, the said payment was not intended to be part payment towards the balance sums for works done under the 1st Sub-Contract and there is no evidence submitted at trial as such. - Findings of the Court [42] Para 6(1)(a) and sub-s 26(2) of the LA 1953 provide as follows: “6. Limitation of actions of contract and tort and certain other actions

(a) actions founded on a contract or on tort; … …

Fresh accrual of action on acknowledgment or part payment …

(a) the Plaintiff relied on the Penultimate Progress Claim dated 17.8.2012, which it had prepared and submitted to BGB, to support the essential starting figure of “Final 1st Sub-Contract Sum” of RM9,558,742.30. However, the Penultimate Progress Claim was never evaluated and certified by BGB or by PPCT. As the name suggests, the Plaintiff’s claim is “Penultimate” and not “Final”;

(b) the Interim Valuation No. 18 dated 3.1.2013 would be a better gauge of the value of the works done by the Plaintiff for the 1st Sub-Contract Works since it is the last valuation of the Plaintiff’s works in evidence with a corresponding Certificate of Payment 18 (Penultimate) dated 12.7.2012 being issued by the Architect of the Project; and

(c) the Plaintiff had erroneously referred to the total sum of Mechanical & Electrical Works of RM9,959,008.00 as per Interim Valuation No. 18 which included the Lift Installation sum of RM842,609.00 as particularised in the same document. The total sum of Mechanical & Electrical Works within the scope of the 1st Sub-Contract Works carried out by the Plaintiff would thus be RM9,116,399-00. Nonetheless this figure is not “Final” as there was no final valuation by PPCT nor was a Final Certificate issued by the Architect. The Plaintiff did not appoint a third-party quantity surveyor as an expert witness to quantify and verify the “Final 1st Sub-Contract Sum” of RM9,558,742.30 as claimed and neither did the Plaintiff examine PW4 to establish evidence of the same. [52] As for the Contra Payment of RM335,007.44, the Defendant argued that the Plaintiff had wrongfully omitted to credit this amount as payment made toward the 1st Sub-Contract Works. - Findings of the Court [53] In its Amended Statement of Defence, the Defendant had –

(a) pleaded that any amount due and owing should be claimed from the Main Contractor;

(b) denied the particulars of the Plaintiff’s claim amounting to RM879,954.60 as set out in para 9 of the SoC;

(c) admitted para 12 of the SoC wherein the Plaintiff had stated the particulars of the correspondences including the letter dated 5.12.2019 from the Defendant’s solicitors to the Plaintiff’s solicitors. In that letter, the solicitors conveyed the Defendant’s position that RM9,519,295.14 has been paid to the Plaintiff and that there is an overpayment in the sum of RM137,208.84. There was no pleading on the SFA for the 1st Sub-Contract Works. Hence, applying the legion of case authorities, among others as cited in para 67 in the judgment in Aseambankers’s case (supra), the Court declines to consider the issue relating to the absence of a SFA for the 1st Sub-Contract Works to defeat the Plaintiff’s claim. [54] During the examination in chief of PW3, the witness had explained that he had prepared a final account for the sub-contractors for the Project after the CPC was issued and it was endorsed by PPCT, the Architect and the developer, but there was no respond from BGB. In cross-examination, PW3 was questioned regarding the valuation of Section 2(b) for the Mechanical & Electrical Works in Progress Valuation No.

Although the Final Contract Amount therein is stated as RM9,959,008.00, PW3 clarified that an adjustment has to be made because that amount is inclusive of the sum of RM842,609.00 for Lift Installation, which is actually not within the Plaintiff’s scope of work (see pp 126 and 133 of the Common Bundle of Documents marked as “B1”). PW3 confirmed that the final account figure is not RM9,959,008.00, but a lower figure around RM9.3 million. No question was posed by the Plaintiff’s counsel on this matter during the re-examination of PW3. [55] Based on PW3’s testimony, the Defendant submitted that the Final 1st Sub-Contract Sum is RM9,116,399.00 (RM9,959,008.00 - RM842,609.00). [56] Returning to the Defendant’s solicitor’s letter dated 5.12.2019, the Plaintiff’s solicitors had replied by way of the letter dated 3.1.2020 and the Court finds that the statement in para 2.3(i) therein i.e. that the sum of RM505,500.00 is part payment towards the Supply and Installation Works is supported by the evidence of PW1 and PW2 as well as PW2’s hand written document at p 174, B1. [57] As for the statement in para 2.3(ii) of the Plaintiff’s solicitor’s letter as to the Disputed Contra Deduction in the sum of RM335,007.44, the Court accepts the Plaintiff’s submission that DW1 had knowledge of the contra payment and did not, prior to the filing of the suit, conveyed the stance that the said sum should be taken into account as part of the amounts which had been paid by the Defendant for the 1st Sub-Contract. This was also not pleaded in the Amended Statement of Defence. [58] Based on the oral and documentary evidence before the Court, the Plaintiff’s claim for the 1st Sub-Contract Works in the sum of RM437,611.30 was allowed with interest at the rate of 5% per annum from 23.1.2020 until full settlement. The computation of RM437,611.30 is set out below: 1st Sub-Contract Sum RM9,116,399.00 Less Payment from BGB (RM6,520,412.22) Payment from Defendant (RM2,158,375.48) Disputed Contra Deduction (RM 335,007.44) ______________ Total Outstanding Sum RM 437,611.30 ______________ II. The Plaintiff’s Claim under the 2nd Sub-Contract Works [59] The following are the Specific Issues in respect of the 2nd Sub-Contract Works:

(a) Whether the Defendant as the Employer of the Project has knowledge about the appointment of the Plaintiff for the 2nd Sub-Contract Works vide the 2nd Letter of Award?

(b) Whether the 2nd Sub-Contract Works had been duly completed by the Plaintiff?

(c) Whether the sum of RM90,963.00 is the balance due and payable to the Plaintiff for the 2nd Sub-Contract Works?

(d) Whether the Defendant had enjoyed benefits from the completion of the 2nd Sub-Contract Works by the Plaintiff?

(e) If the answer to subparas (a), (b), (c) and/ or (d) above is “Yes”, whether the Defendant is the party responsible for the payment of the balance sum of RM90,963.00 due to the Plaintiff for the 2nd Sub-Contract Works? [60] The same process of first analysing the Preliminary Issues shall be undertaken and as the discussion will unravel, unlike the 1st Sub-Contract Works, the Preliminary Issues are determinative of the Plaintiff’s claim for the 2nd Sub-Contract Works. 1st Preliminary Issue: Whether there is privity of contract between the Plaintiff and the Defendant under the 2nd Sub-Contract Works? - The Parties’ Submissions [61] The Plaintiff referred to the cases of Syarikat Ong Yoke Lin Sdn Bhd v. Giant Cash & Carry Sdn Bhd & ors [2000] MLJU 519 and Seloga Jaya Sdn Bhd v. UEM Genisys Sdn Bhd [2010] 5 CLJ 745 in acknowledging that there is no quotation furnished by the Plaintiff to the Defendant in respect of the 2nd Sub-Contract Works and there is no privity of contract between the Defendant as the employer and the Plaintiff as the sub-contractor, and going by the general principle of the law of contract, the Plaintiff cannot seek redress against the Defendant for BGB’s failure to pay the outstanding sum under the 2nd Sub-Contract Works. [62] The Plaintiff sought to overcome this legal obstacle to its claim by contending that –

(a) the 2nd Sub-Contract Works is part and parcel of the Project;

(b) the Defendant has knowledge of the circumstances surrounding the appointment of the Plaintiff as the sub-contractor for the 2nd Sub-Contract Works and as stated in WS-PW1, the Plaintiff often took site instructions directly from the Defendant. The Plaintiff had also attended to rectify the defects as per the Defendant’s request; and

(c) after the winding up of BGB, the Defendant ought to be the responsible party to pay for the Total Outstanding 2nd Sub-Contract Sum as the Defendant had enjoyed the benefits of the completion of the 2nd Sub-Contract Works whereby the Project was subsequently sold to a purchaser. [63] The Defendant refuted the Plaintiff’s contentions and emphasised that the contract upon which the 2nd Sub-Contract Works have been carried out is strictly between BGB and the Plaintiff. - Findings of the Court [64] The Plaintiff, having acknowledged the facts as set out in para 61 above, it is a foregone conclusion that there is no privity of contract between the Plaintiff and the Defendant for the 2nd Sub-Contract Works. [65] As regards the grounds on which the Plaintiff maintained that liability could nevertheless be attached to the Defendant, I am of the view that, unlike the 1st Sub-Contract Works, there is insufficient evidence upon which a contractual relationship between the parties can be imputed. [66] In the circumstances, I am constrained to find and hold that the answer to the 1st Preliminary Issue must be answered in the negative. In the light of this answer, I shall now proceed to consider the next Preliminary Issue as agreed in the Issues To Be Tried. 2nd Preliminary Issue: Whether the Plaintiff could rely on s 71 of the CA 1950, the doctrine of quantum meruit and/ or the doctrine of unjust enrichment to claim against the Defendant for the 2nd Sub-Contract Works? - The Parties’ Submissions [67] The Plaintiff relied on similar arguments as the 1st Sub-Contract Works to support its submission on this Preliminary Issue i.e. that the Defendant has direct control and influence over the Plaintiff for the 2nd Sub-Contract Works as the Defendant had given site instructions directly to the Plaintiff for the same. [68] The Plaintiff asserted that the Defendant has been unjustly enriched at the expense of the Plaintiff wherein the Plaintiff had incurred cost for materials and labour to complete the 2nd Sub-Contract Works. Therefore, drawing support from the case authority of Tanjung Teras Sdn Bhd v. Kerajaan Malaysia [2015] 9 CLJ 1002; [2015] MLJU 2161, the Plaintiff is entitled to a just compensation for the completion of the 2nd Sub-Contract Works under s 71 CA 1950 which is based on the equitable principle of conscionable conduct and restitution. [69] On the other hand, the Defendant highlighted the following distinguishing facts as per the evidence tendered which is said to lend support to its submission that the Plaintiff’s claim under s 71 CA 1950, quantum merit and/ or unjust enrichment is not applicable:

(a) the Defendant was never given a quotation and the Defendant did not nominate the Plaintiff for the 2nd Sub-Contract Works;

(b) the Defendant did not have any knowledge of the 2nd Sub-Contract Works;

(c) the Defendant was never involved in the valuation of the 2nd Sub-Contract Works; and

(d) the Defendant never made any direct payments to the Plaintiff for the 2nd Sub-Contract Works. - Findings of the Court [70] Section 71 of the CA 1950 provides that: “Where a person lawfully does anything for another person, or delivers anything to him, not intending to do so gratuitously, and such other person enjoys the benefit thereof, the latter is bound to make compensation to the former in respect of, or to restore, the thing so done or delivered.”. [71] Both parties had cited the Privy Council decision in Siow Wong Fatt v Susur Rotan Mining Ltd & Anor [1967] 1 LNS 161 as it had laid down the four conditions which must be satisfied to establish a claim under s 71 CA 1950 namely that the doing of the act or the delivery of the thing –

(a) must be lawful;

(b) must be done for another person;

(c) must not be intended to be done gratuitously; and

(d) must be such that the other person enjoys the benefit of the act or the delivery. [72] I have considered the juxtaposed arguments of the parties and I am inclined to agree with the Defendant that the Plaintiff has no established any entitlement to the claimed amount under s 71 CA 1950, unjust enrichment and/ or quantum meruit for the reasons as mentioned in para 69 above. [73] Assuming that I am wrong in arriving at this conclusion, the Plaintiff’s claim is nevertheless time-barred as discussed in the next Preliminary Issue. 3rd Preliminary Issue: Whether the Plaintiff’s claim pursuant to the 2nd Sub-Contract Works is barred pursuant to s 6(1)(a) of the LA 1953? - The Parties’ Submissions [74] The Plaintiff submitted that its claim based on the doctrine of quantum meruit and/ or unjust enrichment for the 2nd Sub-Contract Works is within the limitation period of 6 years from the date that the cause of action accrued which is from the date that the Defendant is unjustly enriched and/ or retains the benefits and this is equivalent to the date when BGB was wound up via Court Order dated 10.9.2014. In this regard, reference was made to the judgment in the case of Madu Jaya Development Sdn Bhd v Kosbina Konsult (K) Sdn Bhd [2017] MLJU

[75] Further and in the alternative, the Plaintiff contended that the 1st Sub-Contract Works, the 2nd Sub-Contract Works and the Supply and Installation Works are for the same Project. Therefore, the computation of the limitation period for the 2nd Sub-Contract Works should run concurrently with the 1st Sub-Contract Works namely, the date of the last partial payment in the sum of RM60,000.00 on 28.1.2014. [76] The Defendant remained steadfast that the Plaintiff’s claim is time barred under s 6(1)(a) of the LA 1953 because the Plaintiff’s cause of action had crystalised on 5.10.2012 as per the date of the Plaintiff’s acceptance of the Statement of Sub-Contract Final Account. However, this suit was filed only on 23.1.2020 which is clearly more than 6 years later. - Findings of the Court [77] The Plaintiff’s claim is additionally time barred as the Plaintiff’s submission that time starts to run from 10.9.2014 or 28.1.2014 is misconceived. The former date (10.9.2014) cannot apply in view of the finding of the Court that the cause of action based on unjust enrichment and/ or quantum meruit is baseless. The latter date (28.1.2014) had been pleaded by the Plaintiff as the date of payment of RM60,000.00 for the 1st Sub-Contract Works only (see para 9, item 16 under the Particulars SoC). [78] However, at the submission stage, the Plaintiff attempted to persuade this Court to conclude that 28.1.2014 is the date of the last partial payment of the Project. In this respect, the Plaintiff’s desperation to attach the start of the limitation to the date of 28.1.2014 is understandable as any other date will render the Plaintiff’s claim as being out of time. III. The Plaintiff’s Claim for the Supply and Installation Works [79] The Specific Issues to be tried in respect of the Plaintiff’s claim for the Supply and Installation Works for the Project had been agreed by the parties as follows:

(a) Whether the Plaintiff and/or its Supplier and/or its relevant contractor had supplied the Supply and Installation Works for the Project to the Defendant vide a Purchase Order dated 7.3.2012 issued by the Defendant to the Plaintiff?

(b) Whether the Supply and Installation Works had been duly completed by the Plaintiff and/ or its Supplier and/ or its relevant contractor?

(c) Whether the sum of RM99,500.00 is the balance due and payable to the Plainitff for the Supply and Installation Works for the Project? [80] However, the Court has found that the Preliminary Issue as to whether the Plaintiff’s claim is time-barred under the LA 1953 is determinative of the matter. [81] In WS-PW1, PW1 explained that, after the Plaintiff was appointed as the NSC for the 1st Sub-Contract Works and during the progress of these Works, the Defendant had requested the Plaintiff to carry out the Supply and Installation Works as part of the Project and “additional works ... under the interior and renovation works on top of the 1st Sub-Contract Works”. [82] Similarly, in WS-PW2, PW2 said that, after the completion of the building structural works, he had continued to supervise the interior and renovations works and had coordinated the contractors and suppliers for the Budget Hotel, to which the Plaintiff was one of the parties for such interior and renovations works. [83] The Plaintiff had obtained a quotation dated 16.12.2011 from its supplier for the supply of the required items whereby a sum of RM605,000.00 was quoted. This was followed with a Purchase Order dated 7.3.2012 issued by the Defendant to the Plaintiff for the supply and installation of the same items as per the quotation and in the same quantities and at the same price. [84] Further, PW1 gave evidence that the Defendant had paid a total sum of RM505,500.00 vide one cheque dated 7.3.2012, three cheques dated 16.10.2012 and one cheque dated 28.5.2013. This leaves the sum of RM99,500.00 as the balance sum payable under the Purchase Order. The Plaintiff also relied on PW2’s handwritten note dated 8.10.2012 to support its claim. [85] The Defendant’s defence to this claim is solely that the Plaintiff’s claim is time barred by limitation under s 6(1)(a) LA 1953. The Defendant’s counsel submitted that the Plaintiff’s cause of action had crystalised on either –

(a)

8.10.2012 being the date of the handwritten note;

(b)

31.12.2012 being the date that the Supply and Installation Works were completed as admitted by PW1 and PW2 during cross-examination; or

(c)

28.5.2013 being the date of the last payment made by the Defendant to the Plaintiff under this claim, and irrespective of which of the above stated date is applicable, it is incontrovertible that the filing of this suit on 23.1.2020 took place more than 6 years from any of these dates. [86] The Plaintiff repeated its contention that the 1st Sub-Contract Works, 2nd Sub-Contract Works and Supply and Installation Works are part of the same Project and the last partial payment of RM60,000.00 by the Defendant on 28.1.2014 marks the commencement of the limitation period. Hence, the Plainitff maintained that the claim for the Supply and Installation Works was initiated within the statutory limitation period. [87] In my view, the date on which the cause of action accrued is 28.5.2013, which is the date of Maybank cheque no. 149991 for the sum of RM24,000.00 issued by the Defendant to the Plaintiff for the Supply and Installation Works. The Court is unable to accept the Plaintiff’s argument that time starts to run only from 28.1.2014 on the grounds as deliberated in respect of the Plaintiff’s claim for the 2nd Sub-Contract Works. [88] In the premises, the Court is constrained to dismiss the Plaintiff’s claim for the Total Outstanding Sum for the Supply and Installation Works of RM99,500.00. [89] In closing, there is one final matter which needs to be addressed and that is the Defendant’s submission concerning the Plaintiff’s Proof of Debt pursuant to the winding up of BGB. In his evidence, PW4 said that the Liquidator was in the midst of realising all assets of BGB and subsequently distributing the surplus assets to BGB’s creditors on pari passu basis whilst in respect of the proof of debts submitted by the creditors of BGB, the Liquidator was adjudicating the same. PW4 confirmed that to date, there has not been any payment of dividend to the creditors of BGB, including the Plaintiff. [90] In the light of PW4’s evidence, there is no impediment to the filing of the Plaintiff’s suit and for its claims to be ventilated in this Court. The liquidator has yet to decide on the Plaintiff’s Proof of Debt and the issue of double claim or there being double payment simply does not arise. The Defendant did not submit any case authority to show that the Plaintiff is barred from making its claim by way of a civil suit and that the Court is prevented from making a determination on the same just because the Plaintiff has filed its Proof of Debt. In fact, with the suit being resolved, the debt due to the Plaintiff has been proven, albeit for a lesser sum than what the Plaintiff desires. Pronouncement [91] Based on all the aforesaid reasons, I had thus concluded that the Plaintiff had successfully established its claim for only the 1st Sub-Contract Works in the sum of RM437,611.30 with interest at the rate of 5% per annum from 23.1.2020 until full settlement. [92] The Plaintiff’s counsel proposed costs of RM25,000.00 to be paid by the Defendant to the Plaintiff. The Defendant’s counsel left the issue of costs to the discretion of the Court. In the circumstances, costs of RM25,000.00 was ordered, subject to allocatur, and this amount is inclusive of the costs to the Plaintiff following the Defendant’s withdrawal of the counterclaim. Dated: 12 August 2022 (ALIZA SULAIMAN) Judge Construction Court 2 High Court Kuala Lumpur Counsels/ Solicitors: For the Plaintiff: Lai Yee Fan (Fyiona Lai Phik-Wy and Vivien Wong Chiau El with him) Messrs. Fyiona, Lai & Dennis Thong Advocates & Solicitors 13A-5, Menara 1 Mont Kiara No. 1, Jalan Kiara Mont Kiara 50480 Kuala Lumpur For the Defendant: Leslie Looi Meng Messrs. Dennis Nik & Wong Advocates & Solicitors Suite 601-602, Bangunan Ang No. 1, Jalan Jeram Taman Tasek 80200 Johor Bahru Johor Cases, legislation and other sources referred to in the submissions by learned counsels and in the Grounds of Judgment: Cases: Aseambankers Malaysia Bhd & Ors v Shencourt Sdn Bhd & Anor [2014] 4 MLJ 619 Ayoromi Helen v. PP [2005] 1 CLJ 1 Bauer (Malaysia) Sdn Bhd v. Hundred Vision Construction Sdn Bhd & Anor [2020] 1 LNS 442 Bespile Sdn Bhd (in liquidation) v Asianshine Sdn Bhd & Ors [2010] 4 MLJ 824 Boustead Trading (1985) Sdn Bhd v Arab-Malaysian Merchant Bank Berhad [1995] 3 MLJ 331; [1995] 4 CLJ 283 Choy Ching Wan @ Chua Cheng Wan (P) v Land Development Specialist Sdn Bhd & Anor [2008] 7 MLJ 96 Cosmos Infratech Sdn Bhd v. Melati Evergreen Sdn Bhd [2020] 1 LNS 1305; [2020] MLJU 890 Easy Region Engineering Sdn Bhd v Bureau Veritas (M) Sdn Bhd [2017] MLJU 2284 Ekuiti Setegap Sdn Bhd v Plaza 393 Management Corp (established under The Strata Tiles Act 1985) [2018] MLJU 247 GDP Architects Sdn Bhd v Universiti Teknologi Mara [2016] MLJU 943 Gee Eng Wah v. Teoh Eng Keong & Anor [2019] 1 LNS 783 Geoforce East Sdn Bhd v. Melati Evergreen Sdn Bhd & another appeal [2020] 1 LNS 862 Halim Bin Saad v Chan Yok Peng [2020] MLJU 1900 Halim Bin Sutarjo v KPMB Builder Bhd (Formerly Known as Konsortium Peladang (M) Bhd) [2005] 4 MLJ 273 ING Insurance Bhd v Rathinasamy a/l Kasinathan [2018] 2 MLJ 369 Intan Permata Properties Sdn Bhd v. AEJB Engineering (M) Sdn Bhd [2020] 1 LNS 664 Janagi v Ong Boon Kiat [1971] 2 MLJ 196 Ktl Sdn. Bhd. v Leong Oow Lai [2014] MLJU 1405 Liew Ah Onn v Kean Soon Hardware Sdn Bhd [2019] 1 LNS 2066 Madu Jaya Development Sdn Bhd v Kosbina Konsult (K) Sdn Bhd [2017] MLJU 1517 Majlis Amanah Rakyat (MARA) v Dato’ Abd Rahim bin Abd Halim & Ors [2019] 7 MLJ 381 Mega Mayang M & E Sdn Bhd v Utama Lodge Sdn Bhd and another appeal [2018] MLJU 1323; [2018] 1 LNS 1452 Meng Holdings Sdn Bhd v Tan Sri Datuk Ibrahim Bin Mohamed Dan Ambank

(M) Berhad (Pihak Ketiga) [2010] MLJU 1181 Michael C. Solle v United Malayan Banking Corporation [1986] 1 MLJ 45 NGV Tech Sdn Bhd (receiver and manager appointed) (in liquidation) v Ramsstech Ltd [2015] MLJU 671 Novaviro Technology Sdn Bhd v Ql Plantation Sdn Bhd & Anor (Watermech Engineering Sdn Bhd, third party) [2018] 11 MLJ 392 Petronas Nasional Bhd (PETRONAS) v Syed Hashim bin Ahmad [2015] 4 MLJcon 214 Q2 Engineering Sdn Bhd v PJI-LFGC (Vietnam) Ltd & Ors [2013] 8 MLJ 157 RHB Bank Berhad (Dahulunya dikenali sebagai DCB Bank Berhad) v Dong Haeng Industries Sdn Bhd [2000] MLJU 657 RM Leopad Sdn Bhd v Sime Engineering Sdn Bhd (Dahulunya dikenali sebagai Sime Crest Sdn Bhd) [2010] MLJU 2157 Samuel Naik Siang Ting v Public Bank Bhd [2015] 6 MLJ 1 Seloga Jaya Sdn Bhd v. UEM Genisys Sdn Bhd [2010] 5 CLJ 745 Siow Yong Fatt v Susur Rotan Mining Ltd [1967] 2 MLJ 118; [1967] 1 LNS 161 Soon Peng Yam & Anor v. Bank of Tokyo-Mitsubishi (Malaysia) Bhd [2004] 1 CLJ 532 Ssangyong Engineering & Construction Co Ltd v Tridant Engineering (M) Sdn Bhd and another case [2015] MLJU 1124 Superintendent of Lands and Surveys, 4th Division & Anor. v. Hamit B. Matusin & 6 Ors. [1994] 3 CLJ 567 Syarikat Binaan Utara Jaya (a firm) v Koperasi Serbaguna Sungai Glugor Bhd [2009] 2 MLJ 546 Syarikat Faiza Sdn Bhd & Anor v Faiz Rice Sdn Bhd & Anor and another suit [2017] MLJU 1595 Syarikat Ong Yoke Lin Sdn Bhd v. Giant Cash & Carry Sdn Bhd & ors [2000] MLJU 519 Tanjung Teras Sdn Bhd v. Kerajaan Malaysia [2015] 9 CLJ 1002; [2015] MLJU 2161 Tengku Dato’ Ibrahim Petra bin Tengku Indra Petra v Petra Perdana Bhd and another appeal [2018] 2 MLJ 177 Wong Hon Leong David v Noorazman Bin Adnan [1995] 3 MLJ 283 Legislation: Contracts Act 1950, s 71 Evidence Act 1950, ss 5, 9 & 114(g) Limitation Act 1953, ss 6(1)(a) & 26(2) Rules of Court 2012, O. 18, r.