Tech Art Sdn Bhd v Metropolitan Bumi Sdn Bhd (WA-22C-10-02/2018)

the decision after full trial where –

the final sum to be paid by the Defendant to the Plaintiff is RM745,161.18 (out of the pleaded claim of RM6,512,019.49) with interest at the rate of 5% per annum from the date of judgment (as pleaded) until the date of full settlement;

(ii) the Defendant’s counterclaim for the sum of RM6,838,927.08 was allowed with interest at the rate of 5% per annum from the date of filing of the Counterclaim (on 3.10.2018) until full settlement. This amount was S/N yrQ9pKi3j0eIe9E7JkAWjw allowed to be set off against the sum as stated in subpara

above; and

(iii) costs of RM60,000.00 to be paid by the Plaintiff to the Defendant, subject to allocatur; and

the decision to allow a stay of the nett judgment sum of RM5,713,247.03 pending the disposal of the appeal by the Court of Appeal on condition that this amount is deposited with the Defendant’s solicitors as stakeholder in an interest-bearing account within 30 days from the date of the decision of the Plaintiff’s application in encl. 153. The said sum and the accrued interest thereon shall be released in accordance with the order that will be made by the Court of Appeal. Cost was ordered to be in the cause of the Plaintiff's appeal. S/N yrQ9pKi3j0eIe9E7JkAWjw THE SALIENT FACTS [3] The Plaintiff is a company incorporated under the laws of Malaysia and has its main business address at B-5-7, 5th Floor, Block H, Ostia Bangi Premier Business Avenue, Jalan Ostia Utama, Seksyen 14, 43650 Bandar Baru Bangi, Selangor Darul Ehsan. [4] The Defendant is similarly a company incorporated under the laws of Malaysia and has a registered address at 36-2, Medan Setia 2, Plaza Damansara, Bukit Damansara, 50490 Kuala Lumpur, Wilayah Persekutuan. The Defendant’s nature of business is in general trading, land and property investment and investment holding. [5] Konsesi Kota Permatamas Sdn Bhd (‘KKP’) had, vide the Letter of Award dated 8.5.2013 (‘KKP’s LoA’), appointed the Plaintiff as the main contractor of the total development for the project known as “Proposed Development & Construction of UiTM Campus On Lot 472, Mukim Kundor, District of Rembau, Negeri Sembilan Darul Khusus On Private Finance Initiative (PFI) Basis” (‘Project’) for the lump sum fixed S/N yrQ9pKi3j0eIe9E7JkAWjw price of RM230 million. The construction period was 30 months from the date of site possession. [6] On the same date, the Plaintiff issued the Letter of Award to irrevocably appoint the Defendant as the Sub-Contractor, Management Consultants and Payment Agents for a range of works (‘LoA’). [7] Clause A(i) of the LoA states that the contract sum shall be a lump sum fixed price of RM108,811,854.83. The detailed scope of works can be found in the same Clause which is re-produced below: “(ii) Scope of Works RM

Miscellaneous 530,000.00

Contribution to Local Authority 850,000.00

TNB Contribution 4,000,000.00

Professional Fees of Consultants 17,319,300.00

CFMS 2,004,262.00

Management, Structural Consultancy and Risk Management Fees. 26,190,200.43 Sub Total 50,893,762.43 S/N yrQ9pKi3j0eIe9E7JkAWjw

(iii) Nominated Sub-Contractors (NSC) We grant you the rights to nominate Sub-Contractors (NSC) for us to award for the following scope of works for which we will be paid Profit & Attendance of 2% of the respective amounts awarded to them as instructed by you. Scope of Works RM

Air Conditioning Works 8,258,904.40

ICT Services 7,852,145.00

Landscape 1,011,728.00

Signages 1,382,250.00

Special Equipment 29,413,065.00

Loose and Built In Furniture 10,000,000.00 Sub Total 57,918,092.40 TOTAL 108,811,854.83 In the event of a default termination of any NSC’s employment, we will not be made responsible to complete the Works under any of the above NSC contracts and to bear extra costs incurred to complete the Works. You shall be responsible and bear all costs in completing the above Works in an orderly and timely manner to ensure completion of the Project. We reserve S/N yrQ9pKi3j0eIe9E7JkAWjw the rights to claim for any loss and/or extra expenses incurred due to any delay caused by this event.”. [8] The Financial Arrangement as between the Plaintiff and Defendant is stipulated in Clause C of the LoA and of importance to the determination of this dispute are the following subparas thereunder: “C. … …

Payments for all works under Item A above including all differences between our contract sum to you and the contract sum to NSCs shall be made to you within 7 working days from the receipt of our claims subject to 3 (a), (b), (c) and

below and such payments to the NSCs appointed by you at the contract sum determined by you and after the proportionate deduction of our 2% profit and attendance.

We hereby confirm our undertaking to you that:- … S/N yrQ9pKi3j0eIe9E7JkAWjw c. You agree to reimburse us an amount equivalent to 47.3% of the following expenses incurred by us for the Project: i. CIDB levy; ii. Premium for insurances under the Contract; iii. Stamp Duty of the Contract between us and the Employer, and iv. Any another costs related to the project.” [9] Among the agreed facts for purposes of the trial are that –

the Defendant does not dispute the percentage rate of 47.3% as stated in the LoA;

the Defendant agreed to pay the Plaintiff the profit and attendance fee for all the subcontractors which were nominated S/N yrQ9pKi3j0eIe9E7JkAWjw by the Defendant to carry out the works at site for the sum of RM447,972.48;

the Plaintiff has the right to profit and attendance fee on the following subcontractors nominated by the Defendant:

Stitec M & E Sdn. Bhd. (‘Stitec’);

(ii) ASC Synergy Sdn. Bhd. (‘ASC’); and

(iii) Nova Nexus Design Studio (‘Nova Nexus’);

at the Defendant’s request, the Plaintiff had advanced the sum of RM2.5 million to the Defendant to help the Defendant to bear the expenses for the Project (‘Loan’);

the Project Architect had issued the Certificate of Practical Completion (‘CPC’) on 23.9.2016; and S/N yrQ9pKi3j0eIe9E7JkAWjw

the Plaintiff is continuing with arbitral proceedings initiated by KKP and that as a result of the directions by the mutually agreed replacement Arbitrator, the Plaintiff became the claimant in the arbitration (see the Supplementary Fact). [10] It is the Plaintiff’s case that –

it had paid the following amounts:

RM120,708.09 for the insurance premium;

(ii) RM136,250.00 for the CIDB levy; and

(iii) RM109,000.00 as stamp duty;

it is entitled to profit and attendance fees upon the contractors nominated by the Defendant as follows:

RM178,000.00 for Stitec; S/N yrQ9pKi3j0eIe9E7JkAWjw

(ii) RM123,972.48 for ASC; and

(iii) RM146,000.00 for Nova Nexus; and

the Defendant has to pay the Plaintiff –

for the difference in the Gross Floor Area (‘GFA’) amounting to RM4,291,071.76; and

(ii) a sum of RM1,237,500.01 being the repayment of a loan taken out by the Defendant from the Plaintiff to assist the Defendant to bear the expenses of the Project. [11] The Plaintiff had filed an application for summary judgment against the Defendant. On 2.10.2018, Lee Swee Seng J (now JCA) allowed the Plaintiff’s application whereby the Defendant is to pay to the Plaintiff, among others, as follows:

RM31,599.54 for the Contractors All Risk insurance premium; S/N yrQ9pKi3j0eIe9E7JkAWjw

RM37,250.58 for payment of the levy to CIDB;

RM29,808.48 for stamp duty;

profit and attendance fees of –

RM178,000.00 for Stitec;

(ii) RM123,972.48 for ASC; and

(iii) RM146,000.00 for Nova Nexus; and

RM717,194.55 for the Loan. [12] The learned Judge had summarily decided that the Plaintiff was entitled to 27.4% of the total amount which was claimed by the Plaintiff for the insurance premium, CIDB levy, stamp duty and the Loan and the rest (19.9% of the amount as prayed) is to be decided at the trial. Hence, for these items, the only issue is on quantum as the issue of liability has been decided by the learned Judge. S/N yrQ9pKi3j0eIe9E7JkAWjw [13] In the Annexure to the Agreed Issues For Trial, the Defendant does not dispute liability for the following claims:

CIDB levy in the sum of RM98,726.92 (RM135,987.50 – RM37,260.58);

stamp duty in the sum of RM78,981.54 (RM108,790.00 – RM29,808.46); and

the outstanding amount for the Loan in the sum of RM520,305.46 (RM1,237,500.01 – RM717,194.55). [14] The total sum that was admitted by the Defendant is thus RM698,013.92. THE TRIAL AND THE ISSUES TO BE TRIED [15] The trial was held for 14 days where the Court heard the evidence of the following witnesses: S/N yrQ9pKi3j0eIe9E7JkAWjw [16] The Issues To Be Tried which were agreed by the parties are as follows: “The Plaintiff’s Claim

Whether the Plaintiff had paid the amounts claimed towards the Contractor’s All Risk Policy for this Project? Witness Name Designation PW1 Sr Azlan bin Pawanteh Quantity Surveyor PW2 Zolkifly bin Mohd Plaintiff’s Chief Executive Officer PW3 Mazian binti Hassan Plaintiff’s Senior Project Manager PW4 Yasmin binti Zolkifly Plaintiff’s Executive Director DW1 Nik Ahmad Fazlan Bin Nik Ali KKP’s Director DW2 Jasvinjit Singh a/l Gurcharan Singh Advocate and Solicitor DW3 Dato’ Mohd Nadzri Bin A. Halim Defendant’s Director S/N yrQ9pKi3j0eIe9E7JkAWjw

Whether the Defendant is liable to pay the Plaintiff for the provision of the Hyundai Starex, Perodua Kembara and rental cars under the Letter of Award?

Whether the Defendant is liable to pay the Plaintiff for the Gross Floor Area difference under the Letter of Award? And if so, how much?

Whether the Defendant has shown that the Plaintiff owes any amounts to the Defendant under the Letter of Award for the Project?

And if so, whether such amounts are due and payable to the Defendant at the time of filing of the counterclaim.

If due and payable, whether such amount can be set-off against the Plaintiff’s claim (if successful).”. S/N yrQ9pKi3j0eIe9E7JkAWjw I. THE PLAINTIFF’S CLAIM 1st Issue: Whether the Plaintiff had paid the amounts claimed towards the Contractor’s All Risk Policy for this Project? [17] The Defendant admits its liability to reimburse the Plaintiff for this expense, however the Plaintiff is put to strict proof in terms of quantum (see paras 16 and 17 of the Amended Statement of Defence And Counter-Claim (‘Amended Defence and CC’) and the decision in the summary judgment application). [18] Midway through the trial and for the purpose of narrowing the issues, the Defendant agreed not to dispute the percentage rate of 47.3%. This means that the quantum representing 47.3% of the expenditure for the insurance premium is RM115,326.86. [19] The sole challenge raised by the Defendant in this regard was that the policy or its cover-note was not produced at the trial. Furthermore, even though the Plaintiff did produce the receipts of payments issued by MAA Takaful Berhad (‘MAA’) (see pp 71 - 75, B1), none of the S/N yrQ9pKi3j0eIe9E7JkAWjw receipts show that the sums received by MAA were in respect of the “Contractor All Risk” Policy as alleged by PW3 in her answer to Question 7, WS-PW3. [20] The Defendant submitted that, while the receipts show that some sort of payment was made to MAA, there is no evidence that MAA received the same in consideration of any purpose related to the Project as envisaged by Clause C.3.c. of the LoA. Hence, the claim for the reimbursement of 47.3% of the alleged insurance premium payment has not been made out. [21] I have considered the oral evidence of PW3, PW4 and DW3 on this matter and the documentary evidence at pp 71 - 75, B1 and I find that there are –

a copy of MAA’s invoice dated 26.8.2013 for “CONTRACTOR ALL RISK Situation of risk @ UiTM Rembau, Lot 472, Mulim Kundor District of Rembau, Negeri Sembilan (Sum Covered of RM230,000,000.00) – (refer Cover Note TG13-0004176)” in the sum of RM207,240.00; S/N yrQ9pKi3j0eIe9E7JkAWjw

a copy of the Plaintiff’s Payment Voucher dated 2.9.2013 for the sum of RM207,240.00 in respect of “Cadangan pembangunan kampus universiti teknologi mara di atas sebahagian lot 472 seluas 80 ekar, mukim kundur daerah rembau, negeri sembilan darul khusus ( package ) Contractor All Risk (26/08/2013- 25/08/16) + 24 month maintenance period”; and

copies of two receipts issued by MAA on 12.9.2013 being payments via two MBB cheques for –

Cover Note TG13 – 0004175 in the sum of RM36,580.00; and

(ii) Cover Note TG13-0004176 in the sum of RM207,240.00. [22] At the clarification session with the learned counsels, the Court had pointed out the absence of MAA’s invoice and the Plaintiff’s Payment Voucher for the sum of RM36,580.00. S/N yrQ9pKi3j0eIe9E7JkAWjw [23] MAA’s receipt dated 12.9.2013 merely shows that it is payment for Cover Note TG13 – 0004175 whereas the invoice issued by MAA dated 26.8.2013 for the total sum of RM207,240.00 and the receipt dated 12.9.2013 for that amount shows that it is not only payment for Cover Note TG13-0004176, but the words “Contractor All Risk” and the name of the project are stated in MAA’s invoice for the sum of RM207,240.00 and the Plaintiff’s Payment Voucher dated 2.9.2013. [24] It is also observed that, vide letter dated 2.10.2013 to DBA Akitek (M) Sdn Bhd and copied to KKP, the Plaintiff had forwarded the original insurance policy for Contractor’s All Risks and Workmen’s Compensation to the Architect for safekeeping (see p 70, B1). The original or a copy of the insurance policy was not tendered in court. [25] As the Defendant had pleaded that the Plaintiff is put to strict proof as to quantum and the Plaintiff has not discharged the burden of proof to establish that the MAA receipt dated 12.9.2013 was issued for the Contractor’s All Risk premium for the Project, the Court had allowed the Plaintiff’s claim for the trial sum of RM83,727.26 (RM115,326.86 – S/N yrQ9pKi3j0eIe9E7JkAWjw RM31,599.54; the attention of the Plaintiff’s counsel was drawn to the error in the figure “RM83,767.26” as stated in subparas 14(a) and 101(a) of the Written Submissions) less RM36,580.00 i.e. in the sum of RM47,147.26 only. 2nd Issue: Whether the Defendant is liable to pay the Plaintiff for the provision of the Hyundai Starex, Perodua Kembara and rental cars under the Letter of Award? [26] As opposed to the 1st Issue, the quantum in relation to the Plaintiff’s claim as to the provision of vehicles is not disputed and the Defendant’s challenge is on the aspect of liability. [27] It is an agreed fact that the Plaintiff has –

provided the Hyundai Starex (W 5635 D) for the UiTM staff;

provided the Perodua Kembara (NBE 7773) for the use of the Consultants for the Project; and S/N yrQ9pKi3j0eIe9E7JkAWjw

rented vehicles for attendance at the site meetings. [28] In addition, the Defendant agreed that, if the Defendant is found liable for this claim, the sum to be paid is as pleaded in para 10 of the Amended Statement of Claim (‘Amended SoC’) i.e. RM96,422.15 on 100% basis (RM67,451.00 for the Hyundai Starex, RM25,158.60 for the Perodua Kembara and RM3,812.55 for the rental of cars). [29] Mr. Balbir Singh’s argument for the Defendant was mainly premised on the point of pleadings. The attention of the Court was drawn to para 9 of the Amended SoC and the fact that the relevant clause of the LoA on which this liability arises is not mentioned. [30] Para 9 of the Amended SoC (emphasis added) reads: “Selaras dengan Surat Awad tersebut, Defendan telah bersetuju untuk bersama-sama dengan Plaintif menanggung kos kenderaan yang diperlukan untuk Projek tersebut serta kos pengangkutan.” S/N yrQ9pKi3j0eIe9E7JkAWjw (English translation: “Pursuant to the Letter of Award, the Defendant has agreed with the Plaintiff to jointly bear the vehicle costs which are necessary for the Project as well as transportation costs.”). At the clarification session, Mr. K. Selva explained that the words “Pursuant to the Letter of Award” means “Based on the Letter of Award”. [31] The Defendant’s counsel then referred to WS-PW3 and the answer to Question 21 in contending that, at the trial, the Plaintiff completely abandoned its pleading and sought to justify the claim on a different and unpleaded basis that the Defendant had instructed the Plaintiff to provide the vehicles. The relevant excerpt from the Witness Statement is shown below: “21: Why did the Plaintiff charge the whole costs of transportation to the Defendant? A: This is due to the fact that the agreement between the Plaintiff and the Defendant does not provide for the S/N yrQ9pKi3j0eIe9E7JkAWjw costs for the transportation to be borne by the Plaintiff. In fact, as for the Hyundai Starex, I was instructed by Nik and Datin Salmah to procure the said vehicle for the use of the UiTM staff. As for the Perodua, I was instructed by Puan Yasmin bin Zolkifly to purchase the said vehicle for the usage of the project consultants. I was instructed by the Plaintiff’s Board of Directors to charge the Defendant for the entire costs of transportation including the rental.”. [32] In the Plaintiff’s Written Submission in Reply, it was acknowledged that there is no provision in the LoA for transportation costs. Nevertheless, the Plaintiff contended that the Defendant remains liable for the costs of vehicles for the Project on the following grounds:

the cause of action is pleaded in paras 9 to 11 of the Amended SoC and specifically, the fact that the Defendant is bound to pay the transportation cost under the contract between the Plaintiff and the Defendant. As such, the Defendant is not caught by surprise;

that PW3 had testified during re-examination that the provision S/N yrQ9pKi3j0eIe9E7JkAWjw of the vehicles was not in the Plaintiff’s preliminaries and so, it must be the balance of the contract. PW3 is said to have given a correct version of the events surrounding the provision of transportation which is uncontroverted by the Defendant;

that PW4 had given the following evidence in her Witness Statement: “20. Q: How are the charges being made as for the transportation costs? A: The Defendant has instructed my office to purchase Hyundai Starex on their behalf to accommodate solely on the usage by KKP’s Client, UiTM staff. The purchase of Kembara was also instructed by them solely for the usage by their Consultants. Same goes for the car rental request by them for site meetings between and UiTM which did not include our participation. These items were never priced for in our contract. The purchase and usage were entirely based on the Defendant’s decision and instructions. Therefore, they have to pay the entire transportation costs. And this has been made S/N yrQ9pKi3j0eIe9E7JkAWjw known to the Defendant during the entire course of the project.”; and

the presumption in s. 114(g) of the Evidence Act 1950 [Act 56] should be invoked against the Defendant for its failure in not calling Datin Salmah as a witness. [33] The Court has considered the submissions of the parties concerning this claim and is in agreement with the Defendant that the Plaintiff has failed to prove, on a balance of probabilities, that the Defendant is liable for this claim. The justifications for this finding are as follows:

The Plaintiff submitted that the basis for the claim is the fact that DW3 and Datin Salmah, who is DW3’s wife, had requested and/ or instructed for the transportation to be provided. Consequently, the Plaintiff had procured, and the Defendant’s staff and consultants had used, the vehicles. As the costs for the transportation were not factored into the LoA, these would have to be borne by the Defendant pursuant to the relationship created between the Plaintiff and Defendant under the LoA. S/N yrQ9pKi3j0eIe9E7JkAWjw It is obvious that the alleged request and/ or instruction by DW3 and Datin Salmah is nowhere to be found in the Amended SoC and the Amended Reply and Defence to Counterclaim. It is clear from paras 9 to 11 of the Amended SoC that the basis for the claim as contended by the Plaintiff at the trial is not reflected therein. This has led the Defendant to plead its defence in the manner as can be seen in paras 19 to 28 of the Amended Defence and CC, namely that –

even if the Defendant is to reimburse the Plaintiff for the value of the Hyundai Starex and Perodua Kembara, the Defendant’s liability is only until 3.1.2017 and the value of the vehicles as at that date must be accounted for;

(ii) the Plaintiff’s liability to account for the value of the two vehicles arises because the Defendant has acquired a right of ownership to the vehicles and the Plaintiff would otherwise be unjustly enriched (s 71 of the Contracts Act 1950 [Act 136] was cited); and S/N yrQ9pKi3j0eIe9E7JkAWjw

(iii) it is an implied term of the LoA that the Plaintiff must account for the value of the two vehicles if the Defendant is to indemnify the Plaintiff for the cost of the acquisition and maintenance of the vehicles, the particulars of which were pleaded in para 24C. By pleading the Plaintiff’s case in the way that it did, the Defendant had no opportunity, and in fact had no good reason, to plead its case in defence to the allegations surrounding the request and/ or instruction by DW3 and Datin Salmah and what were the terms of the agreement between the parties, if any, on the costs associated with the provision of the transportation. If this Court was to decide in favor of the Plaintiff as to liability for this claim, there would be a failure of natural justice as the Defendant is denied the right to present its case fully on the unpleaded issue before the decision is made. It is not the duty of the court to make a case for a party when that party does not raise or wish to raise a point in the litigation (see Janagi v. Ong Boon Kiat [1971] 1 MLRH 360 and RHB Bank Bhd (substituting S/N yrQ9pKi3j0eIe9E7JkAWjw Kwong Yik Bank Bhd) v Kwan Chew Holdings Sdn Bhd [2010] 2 MLJ 188). Further, Mr. Balbir Singh had aptly relied on the following passage from the judgment of the Court of Appeal in Ketua Pengarah Jabatan Kerja Raya v Strongkota Development Sdn Bhd & Another Appeal [2016] MLJU 820: “[16] From the submissions of the learned counsel for the Appellants, it was clear that the main thrust of this appeal had centered upon whether the trial Judge had correctly adjudged this case according to the parameters as set out by the parties well before trial. This set parameters could be seen from what was pleaded in the pleadings of parties. The Statement of Claim would set out the cause or causes of action of the Plaintiff against the Defendant. The Statement of Defence would, of necessity, set out basically what the answer to that claim would be. By the close of pleadings, parties would know exactly what is being claimed by the Plaintiff and what the answer to that claim would be. Pleadings therefore prevents surprises during trial as both parties are sure and certain as to S/N yrQ9pKi3j0eIe9E7JkAWjw what they are supposed to do in terms of establishing their respective positions in court. There is no element of trial by ambush where a party would be taken by surprise by the other party introducing evidence outside the contemplation of what had been the pleaded cause or causes of action or of defence. It is trite law that parties to a suit are bound by what have been pleaded in their respective pleadings. To further refine the dispute, parties would normally agree with each other as to what are the issues to be tried. Although the pleadings would expressly bind parties, it has the effect of also limiting the power of the adjudicating court, in that the decision of the court, at the end of the trial of the suit, must be in consonance with what had been pleaded by the parties. The reliefs granted by the court must therefore be tailor-made, so to speak, to fit into what had been agreed by the Plaintiff as per his Statement of Claim, in particular based on his cause of action. In other words, if the cause of action had been premised upon the negligent act of the Defendant, then once proven by evidence to be so, the court must then proceed to grant the damages to compensate for the losses suffered by the Plaintiff as a result of the negligent conduct of the Defendant. It would be amiss if the court were to give relief to the Plaintiff against the Defendant, for a S/N yrQ9pKi3j0eIe9E7JkAWjw cause of action which was not pleaded, even remotely, in the Plaintiff’s Statement of Claim. As such, pleadings have the effect of not only binding the parties, inter se, but it also operates to ensure that the court only grants the reliefs that have been prayed for as pleaded as forming the Plaintiff’s causes or causes of action. There may be exceptions to this rule of the thumb, but only rarely will the courts depart from this crucial rule of civil litigation.” (emphasis added). Applying the legal principles as above quoted to the instant case, there is no doubt in my mind that the Plaintiff had abandoned its pleaded case and set up an entirely new case during the trial.

With regards to PW3’s evidence on the Plaintiff’s preliminaries, the Defendant’s counsel had correctly submitted that there is an item on “Preliminaries” in KKP’s LoA but there is none in the LoA between the Plaintiff and the Defendant.

Section 114(g) of the Evidence Act 1950 [Act 56] provides that: S/N yrQ9pKi3j0eIe9E7JkAWjw “Court may presume existence of certain fact

The court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct, and public and private business, in their relation to the facts of the particular case. The court may presume:- …

that evidence which could be and is not produced would if produced be unfavourable to the person who withholds it; ….” However, the Court is of the view that the application of the presumption in the circumstances of this case is not justified because the fact that Datin Salmah had requested and/ or instructed for the purchase and rental of the vehicles was not even pleaded by the Plaintiff. Moreover, DW1 was called to testify for the Defendant and yet the Plaintiff’s counsel did not S/N yrQ9pKi3j0eIe9E7JkAWjw question DW1 as to the request and/ or instruction which he allegedly gave to PW3 as well on the procurement of the Hyundai Starex and whether there was any agreement between the parties on the issue of costs for the provision of the vehicles, and if so, what were the terms of the agreement. 3rd Issue: Whether the Defendant is liable to pay the Plaintiff for the Gross Floor Area difference under the LoA? And if so, how much? - The basis of the claim [34] The same issue on pleadings bears relevance to the 3rd Issue. In para 15 of the Amended SoC (emphasis added), the Plaintiff pleaded as follows: “Melalui Surat Awad tersebut, Defendan perlu membayar Plaintif perbezaan harga kontrak akibat perubahan dalam ukuran kasar kawasan lantai (“Gross Floor Area”). Perubahan Gross Floor Area ini menyebabkan Defendan perlu membayar Plaintif wang sebanyak RM4,291,071.76.” S/N yrQ9pKi3j0eIe9E7JkAWjw (English translation: “Through the Letter of Award, the Defendant has to pay the Plaintiff the difference of contract sum as a result of the changes in the measurement of Gross Floor Area. The changes of this Gross Floor Area caused the need of the Defendant to pay the Plaintiff for the sum of RM4,291,071.76.”). [35] As the aforesaid statement makes reference to the LoA, the Defendant firstly denied the Plaintiff’s averments and went on to plead that: “32A. … Liability in respect of the Gross Floor Area, if any, which is denied, is not covered under the Letter of Award and is not with regard to the distribution of work or indemnity between the Plaintiff and the Defendant. The Defendant also disputes the calculation of the difference in floor area and the formula by which the sum of RM4,291,071.76 RM1,426,184.20 was calculated.

Further, todate, the Plaintiff has yet to provide the ‘as-built drawing’ and other plans to show fully what S/N yrQ9pKi3j0eIe9E7JkAWjw is the actual gross floor area that was constructed. Therefore, even if the Defendant is to indemnify the Plaintiff, the Defendant is unable to study what the new area is.” (see paras 15 and 16 of the Amended Defence and CC). [36] In its Amended Reply, the Plaintiff stated that it will refer to the correspondence between the parties to prove its claims during the trial and that all the as-built drawings had been provided to KKP, which is the Defendant’s alter ego. [37] Basically, the Plaintiff claimed for the difference between the Agreed GFA and the Actual GFA on site, which was calculated by PW1, the Quantity Surveyor who was appointed by the Plaintiff vide the letter dated 19.3.2019 to calculate the GFA for the Project. In order to carry out his task, PW1 was furnished with the as-built drawings which are listed in Appendix C to PW1’s Expert Report (see PB4 and PW1’s Affidavit as the Plaintiff’s expert). S/N yrQ9pKi3j0eIe9E7JkAWjw [38] The Agreed GFA of 51,161 m2 can be seen in Appendix 1 to the Plaintiff’s letter dated 19.9.2013 to the Defendant titled “Confirmation of Contract Amount of RM121 million For The Relevant Work Scope” (‘19.9.2013 Letter’). The 19.9.2013 Letter was sent pursuant to Clause F of the LoA which reads as follows: “Proposal for Joint Venture We also wish to refer to our discussions relating to your proposal for a joint venture for the total scope of our work packages as follows: a. Package 1 – Site Clearance & Earthworks b. Package 2 – Piling, Infrastructure & Building Works (incl. internal plumbing) c. Package 3 – Electrical Works d. Package 5 – Fire Protection Works e. Package 6 – Lift Services We hereby agree that within 6 weeks from the date of our receipt of the full contract drawings and pricing document from our Employer but not later than 15th of July 2013, we shall confirm whether we could agree to your proposal for the joint venture. Upon our confirmation in writing to you of our election to undertake our scope of works totally on a joint venture with S/N yrQ9pKi3j0eIe9E7JkAWjw you, you shall be bound to irrevocably accept the same on the following terms and conditions: …”. [39] As the 19.9.2013 Letter is significant in the current discussion, the salient part is re-produced below for ease of reference: “We wish to refer to Clause Item F – Proposal for Joint Venture in our Letter of Award to you dated 8th May 2013 with regards to the above matter. We wish to confirm herewith that we would like to decline to your JV proposal and will complete the Relevant Work Scope (Appendix 1) ourselves with the contract amount of RM 121 million. We list herewith the following qualifications to be included in our confirmation of the contract amount above:

The contract amount for the Building Works is derived from the agreed GFA which is as per Appendix 1. …”. S/N yrQ9pKi3j0eIe9E7JkAWjw [40] Appendix 1 to the 19.9.2013 Letter sets out the breakdown of the preliminary cost estimate for, among others, –

Item A: “KEMUDAHAN BERPUSAT DAN PELBAGAI” with the GFA of 12,056 m2 and the price of RM13,898,892.00;

Item B: “KEMUDAHAN AKADEMIK” with the GFA of 15,200 m2 and the price of RM18,808,480.00; and

Item C: “KOMPLEKS ASRAMA DAN KEDIAMAN KAKITANGAN” with the GFA of 23,905 m2 and the price of RM25,468,920.00. [41] The Agreed GFA of 51,161 m2 is also set out in the copy of the Preliminary Detailed Abstract which was enclosed to the Plaintiff’s letter dated 30.5.2017 to the Defendant regarding the claim for differences in GFA. [42] In PW4’s Supplementary Witness Statement (WS(S1) – PW4), the witness had prepared a table showing the Agreed GFA of 51,161 m2, S/N yrQ9pKi3j0eIe9E7JkAWjw the Actual GFA based on as-built drawings as calculated by PW1 which is 54,982.47 m2, the GFA difference of 3,821.47 m2 and the cost difference of RM4,291,071.76 which is being claimed by the Plaintiff in this suit. [43] The Defendant’s first line of defence against this claim is, again, on pleadings. It was submitted that, contrary to the Plaintiff's own pleading, there is nothing in the LoA which provides for any additional payment to the Plaintiff by the Defendant arising from any increase in the GFA. [44] The Plaintiff seems to accept this position since, in para 35 of its Reply Submission, the Plaintiff “… reiterates that the right to claim the difference in the GFA arises from the letter dated 19.09.2013 …”, however this “… should be read with the Letter of Award to the Defendant dated 08.05.2013 specifically in response of Clause F - Proposal for Joint Venture.” (emphasis added). [45] The Plaintiff further contended that – S/N yrQ9pKi3j0eIe9E7JkAWjw

the Defendant did not reply or make any objections to the 19.9.2013 Letter. Hence, by relying on the decision by the Court of Appeal in David Wong Hon Leong v. Noorazman Adnan [1995] 1 MLRA 708 wherein reference was made to the judgment of Lord Esher M.R. in Wiedemann v. Walpole [1891] 2 Q.B. where His Lordship said that, in business and mercantile cases, 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.” (see too, Small Medium Enterprise Development Bank Malaysia v. Lim Woon Katt [2017]1 MLRA 206), the Plaintiff posited that the non-denial of the 19.9.2013 Letter means that the Defendant had agreed to pay the difference in the GFA;

the Defendant also did not reply or make any objections to the letter dated 30.5.2017 from the Plaintiff to the Defendant (‘30.5.2017 Letter’). In the 30.5.2017 Letter, the Plaintiff referred to the LoA and the 19.9.2013 Letter, specifically to item 1 which “… qualifies that our confirmation of contract amount for building S/N yrQ9pKi3j0eIe9E7JkAWjw works is to be derived from the agreed GFA …”. The Plaintiff claimed for RM1,426,184.20 for the differences of 1,191 m2 between the agreed GFA and the actual on site based on the consultants’ latest drawings. The non-denial of the claim in the 30.5.2017 Letter shows that the Plaintiff could charge the Defendant for the difference in GFA;

the Plaintiff has sufficiently pleaded its claim for the difference in

the Defendant failed to request further and better particulars with regards to the Amended Reply. Therefore, the Plaintiff is entitled to refer to the 19.9.2013 Letter and the 30.5.2017 Letter which constitute a separate or collateral contract and exists side by side with the LoA. Citing the cases of Tindok Besar Estate Sdn Bhd v. Tinjar Co [1979] 2 MLJ 229, Industrial & Agricultural Distribution Sdn Bhd v Golden Sands Construction Sdn Bhd [1993] 3 MLJ 433 and Tan Swee Hoe Co Ltd v. Ali Hussain Bros [1979]1 MLRA 71, the device of collateral contract “ … does not offend the extrinsic evidence rule because the oral promise is not S/N yrQ9pKi3j0eIe9E7JkAWjw imported into the main agreement. Instead it constitutes a separate contract which exists side by side with the main agreement.”; and

the findings and tabulations on to the difference between the Agreed GFA and Actual GFA as calculated by PW1 and resulted in the GFA claim as tabulated in WS(S1) – PW4 are not disputed by the Defendant. [46] Having considered the evidence and submissions of the parties, it is apparent that the basis for the claim for the difference in the GFA is not the LoA, as was pleaded by the Plaintiff. Clearly, there is no express provision in the LoA which stipulates the Defendant’s obligation to pay the Plaintiff for the difference in the GFA. All that Clause F of the LoA says is that the Defendant has proposed for a joint venture for the total scope of the Plaintiff’s Package 1 to Package 6 works and that the Plaintiff shall confirm its agreement or otherwise within the specified timeline. As it turned out, the Plaintiff turned down the Defendant’s proposal. S/N yrQ9pKi3j0eIe9E7JkAWjw [47] There is absolutely no mention of the 19.9.2013 Letter and the 30.5.2017 Letter in the Amended SoC. Whilst the Plaintiff states in its Amended Reply that it will refer to “the correspondence between the parties to prove its claims during the trial”, this goes to show the Plaintiff’s intention of producing certain correspondence as evidence, the details of which were undisclosed, but as submitted by the Plaintiff, the Defendant could have applied for further and better particulars. Nevertheless, this does not invalidate the Defendant’s argument that the Plaintiff must specifically plead and identify its cause or causes of action against the Defendant in the SoC (see Yap Seong Yee v Eureka Property Management Sdn Bhd and another appeal [2018] 6 MLJ 799). [48] In this regard, O. 18, rr. 7(1), 8(1) and 10 of the Rules of Court 2012 (‘RC 2012’) provide that: “Facts, not evidence to be pleaded

(1) Subject to the provisions of this rule and rules 10, 11 and 12, every pleading shall contain, and contain only, a statement in a summary form of the material facts on which the party pleading relies for his claim or defence, as the case S/N yrQ9pKi3j0eIe9E7JkAWjw may be, but not the evidence by which those facts are to be proved, and the statement shall be as brief as the nature of the case admits. … Matters which shall be specifically pleaded

(1) A party shall in any pleading subsequent to a statement of claim plead specifically any matter, for example, performance, release, any relevant statute of limitation, fraud or any fact showing illegality –

which he alleges makes any claim or defence of the opposite party not maintainable;

which, if not specifically pleaded, might take the opposite party by surprise; or

which raises issues of fact not arising out of the preceding pleading. … S/N yrQ9pKi3j0eIe9E7JkAWjw

(1) A party shall not in any pleading make an allegation of fact or raise any new ground or claim inconsistent with a previous pleading of his.

Paragraph (1) shall not be taken as prejudicing the right of a party to amend, or apply for leave to amend, his previous pleading so as to plead the allegations or claims in the alternative.”. [49] It is trite law that a plaintiff must not set up in his reply a new cause of action which was not raised in the Writ or the SoC, or in other words, the reply must not contradict or depart from the SoC (see Mat bin Lim & Anor v Ho Yut Kam & Anor [1967] 1 MLJ 13). A plaintiff who intends to set up a new or an alternative basis to his claim is required to make an application to amend the SoC and he cannot, supplement his SoC by including in his reply, matters which ought to have been included in the SoC (see the function of a reply in the overall scheme of pleadings in a civil action as elucidated in Nirumalan K Pillay & Ors v A Balakrishan [1997] 1 SLR 322 and Romar Positioning Equipment Pte Ltd v Merriwa Nominees Pty Ltd [2004] 4 SLR 574). S/N yrQ9pKi3j0eIe9E7JkAWjw [50] In this case, the Plaintiff did not exercise its right to amend the SoC and to plead that the 19.9.2013 Letter and the 30.5.2017 Letter constitute a collateral contract. Reliance on this correspondence is a major shift from the Plaintiff’s Amended SoC which simply states that the LoA, standing alone, stipulates that the Defendant has to pay for the differences in the GFA. [51] Therefore, the evidence given at the trial is, in my considered opinion, a radical departure from the Plaintiff’s pleaded case and is not a “mere development, variation or modification of pleadings” (see Ang Koon Kau & Anor v Lau Piang Ngong [1984] 2 MLJ 277 and Superintendent of Lands and Surveys (4th Div) v Hamit Bin Matusin [1994] 3 MLJ 185). [52] In the Plaintiff’s submission, it sought to rely on part of PW4’s evidence where she had –

outlined the “origin of the whole arrangement” between the Plaintiff and the Defendant and their intention at the onset of the relationship based on the letter issued by the Plaintiff to KKP dated 30.4.2013 (‘30.4.2013 Letter’); and S/N yrQ9pKi3j0eIe9E7JkAWjw

explained that at the time of the issuance of KKP’s LoA and the LoA between the Plaintiff and the Defendant, the drawings have not been finalised. [53] The 30.4.2013 Letter regarding the appointment of the Plaintiff as a Total Development Contractor (‘TDC’) and Project Management Consultant states, among others, that: “… We wish to inform that we are very keen and enthusiastic to accept your offer of appointing us as the Total Development Contractor for the above project based on the terms and conditions that have been discussed earlier at your office on Thursday, 25/4/2013 which is also attached herewith. We also note that the softcopy of the drawings and BQ which you have given to us on the same day will be further revised to meet the agreed proposed contract amount of RM127 million as discussed. …”. S/N yrQ9pKi3j0eIe9E7JkAWjw and the proposed Terms and Conditions were enclosed thereto. [54] However, as was submitted by the learned counsel for the Defendant, the 30.4.2013 Letter was issued before the execution of the LoA. It would thus be caught by the parol evidence rule as expressed in s 91 EA 1950 as follows: “Evidence of terms of contracts, grants and other dispositions of property reduced to form of document

When the terms of a contract or of a grant or of any other disposition of property have been reduced by or by consent of the parties to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, no evidence shall be given in proof of the terms of the contract, grant or other disposition of property or of the matter except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions hereinbefore contained.”. Hence, no evidence can be accepted by the Court of the terms of the contract except the contract itself, namely, the LoA. S/N yrQ9pKi3j0eIe9E7JkAWjw [55] Assuming for a moment that this Court has erred and the issue of pleadings ought to be determined in the Plaintiff’s favour, the other aspect of this claim which requires consideration is whether, as a matter of evidence, the Plaintiff has proven its claim on a balance of probabilities. [56] The Defendant contended that there is no provision under the LoA which involves building works where the question of addition to the GFA would become relevant. The scope of the Defendant’s work is as quoted in para 7 above. The fact that the express provision on building works can only be found in Clause F of the LoA on the proposal for the joint venture is indisputable. [57] Mr. Balbir Singh had conveniently provided the relevant pages of the Notes of Evidence (‘NoE’) of PW4’s and DW’3 evidence in his Written Submissions (No. 2). Based on PW4’s evidence, it can be summarised that the alleged agreement between the parties as to the Plaintiff’s obligation to carry out the building works and for the Defendant to pay the Plaintiff the difference between the Actual GFA and the Agreed S/N yrQ9pKi3j0eIe9E7JkAWjw GFA is premised on the 30.4.2013 Letter, KKP’s LoA, the LoA between the parties and the 19.9.2013 Letter, all read together. [58] DW3 was asked about the Plaintiff’s position on this matter in Q. 32 of his Witness Statement and this was his answer: “The letter of 30.04.2013 was a JV proposal. But after this meeting, there was a change of heart on all three sides. On KKP's side, time was running short – they needed to conclude an agreement as KKP needed the same to furnish the same to the bank to secure financing. Financing was a condition precedent for the Concession Agreement with the Government and UiTM to become unconditional and this condition precedent had to be met by 23-8-2013. However, to conclude the terms of a JV would be too tedious and would take time. As such, some time before the letters of award dated 8.5.2013 were issued, I spoke to Zolkifly (PW2) and I was told by Nik (DW1) that he too spoke to Zol. The end result was that we all S/N yrQ9pKi3j0eIe9E7JkAWjw agreed that a direct award would be issued, meaning there will be an award by KKP to the Plaintiff for RM230 million and another award from the Plaintiff to the Defendant for RM108 million. The contents of such awards would be exactly what was said in it, namely that it created a client-contractor and contractor-subcontractor relationship. That JV proposal was however still kept open as an alternative to the Defendant's award. Because time was of the essence, the option was given to the Plaintiff to accept or reject the JV proposal by 15.07.2013. They did not do this and this was the end of any JV proposal. The 19.9.2013 letter merely stated the obvious which was that there won’t be any JVA and is consistent with what I stated above. It provided for the demarcation of works, the appointment of the NSCs (to be under the purview of the Defendant) and did not provide for any liability on the Defendant for any increase in the GFA. Having rejected the JVA, and thereby accepting the terms of the Letters of Award as they should be accepted, there is no basis to say that liability for any dues to the NSC or for S/N yrQ9pKi3j0eIe9E7JkAWjw increase in the GFA should be borne by the Defendant whether with or to the exclusion of KKP.”. [59] Crucially, DW3’s evidence as above quoted was not challenged by the Plaintiff’s counsel as the cross examination was limited to merely confirming the contents of the 19.9.2013 Letter. It is essential that a party’s case be expressly put to his opponent’s material witness when they are under cross-examination lest the party may be barred from raising it in submissions at the end of the trial (see Sivalingam A/L Periasamy v Periasamy & Anor [1995] 3 MLJ 395). Moreover, as submitted by the Defendant, there is nothing incredible, implausible or unreasonable about DW’3 account of the events. In comparison, PW4’s evidence is a clear departure from the Plaintiff’s pleaded case. [60] Having scrutinised these pages and the NoE in its entirety together with the contemporaneous documents, this Court is persuaded to find that –

there are no documents or correspondence that connects the Defendant’s scope of works under the LoA to the building works S/N yrQ9pKi3j0eIe9E7JkAWjw or to establish that there is any superintendence of the Defendant’s alleged obligations relating to any work affecting the GFA;

PW4 had testified that “So, despite the fact that we have been awarded RM230 million contract, we are supposed to undertake only item (2) which is the relevant construction works.”. GFA is part of the construction works. Hence, the claim for the difference of contract sum arising from the difference in the Actual GFA and the Agreed GFA in fact relates to the contract sum under KKP’s LoA. Surely, the Defendant cannot be made liable for any price variation to the main contract between KKP and the Plaintiff, and more so pursuant to the unpleaded 19.9.2013 Letter. At this juncture, it is pertinent to mention two points. Firstly, the Plaintiff has commenced arbitration proceedings against KKP whereby Claim No. 10 in para 41 of the Points of Claim is in respect of the alleged failure by KKP and/ or the Defendant to pay the Plaintiff for the increase of the GFA amounting to RM4,291,071,76. The Plaintiff has evidently taken the stance S/N yrQ9pKi3j0eIe9E7JkAWjw that the liability for this claim is joint and several as between KKP and the Defendant, contrary to the pleadings in this civil suit. Secondly, at the trial, the Plaintiff pursued the “alter ego” issue which was pleaded in para 9 of the Amended Reply to rebut the Defendant’s statement in para 32B of the Amended Defence and CC. These pleadings are set out below for the ease of reference: “32B. Further, todate, the Plaintiff has yet to provide the ‘as-built drawing’ and other plans to show fully what is the actual gross floor area that was constructed. Therefore, even if the Defendant is to indemnify the Plaintiff, the Defendant is unable to study what the new area is.”; and “9. Paragraph 32B of the Defendant’s Defence (Third Amendment) is denied and the Plaintiff insists that all the ‘as-built’ drawings had been provided to the Employer which is the Defendant’s alter ego.”. However, in the Points of Claim for the arbitration, the Plaintiff stated that: S/N yrQ9pKi3j0eIe9E7JkAWjw “10. The Claimant did not have control over MB [the Defendant in this case] and/or the parties nominated by the Respondent [KKP] and/or MB as they were controlled and managed by the Respondent and/or MB. The Respondent and/or MB had agreed to be responsible for the Remainder Works and only the Claimant’s Works were to be the Claimant’s responsibility. MB is effectively the alter ego of the Respondent with respect to the Project.”. In the Plaintiff’s Written Submissions before this Court, it made the same submission as it had done in the arbitration viz. that the Defendant is the alter ego of KKP. Strangely, in para 80 of the Written Submissions, the Plaintiff stated that it had pleaded the fact that the Defendant is the alter ego of the Plaintiff in para 9 of the Amended Reply. The basis for the assertion on “alter ego” can be found mainly in PW1’s Witness Statement wherein the following relationships are said to exist: S/N yrQ9pKi3j0eIe9E7JkAWjw • DW3 is also KKP’s Director • The Plaintiff’s founder and former Managing Director is DW3’s elder brother According to PW1, KKP and the Defendant were represented by the same group of people i.e. DW3, DW1 (DW3’s son), Datin Salmah (DW3’s wife) and Mohd Adfzal (DW3’s son and KKP’s Director). In his evidence, DW3 admitted that he was the promoter for the changes in KKP’s shareholding. The Plaintiff contended that at most times, DW1 and DW3 dealt with the Plaintiff and there was a blurring of the lines as to whether they were representing KKP or the Defendant (see too, KKP’s Corporate Structure at p 5, DB4). In my considered view, the Plaintiff has glaringly taken inconsistent positions as to which company is the alter ego of another company. The Plaintiff cannot be allowed to abandon its pleading and to now seek to establish a different fact. S/N yrQ9pKi3j0eIe9E7JkAWjw Furthermore, even though Mr. K. Selva conceded that the Plaintiff’s claim is purely contractual and that it is not attempting to pierce the corporate veil, the very allegation that either KKP or the Defendant is the alter ego of the Defendant or KKP, respectively, must necessarily involve the lifting of the corporate veil (see Aspatra Sdn Bhd & 21 ors v Bank Bumiputra Malaysia Bhd & anor [1988] 1 MLJ 97). In such circumstances, the cases of Alcatel-Lucent (M) Sdn Bhd (formerly known as Alcatel Network Systems (M) Sdn Bhd) v Solid Investments Ltd and another appeal [2012] 4 MLJ 72, Law Kam Loy and anor v Boltex Sdn Bhd and others [2005] MLJU 225, Giga Engineering & Construction Sdn Bhd v Yip Chee Seng & Sons Sdn Bhd & Anor [2015] 6 MLJ 449 as cited by the Defendant on the requirement to plead actual or equitable fraud are applicable (see too, the decisions by the Court of Appeal in Tenaga Nasional Bhd v. Irham Niaga Sdn Bhd & Anor [2011] 1 CLJ 491, Theta Edge Bhd v. Infornential Sdn Bhd & Another Appeal [2017] 7 CLJ 53 and Takashimaya Construction & Development Sdn Bhd & Anor v. My Influx Sdn Bhd & Other Appeals [2019] 1 LNS 689). It is incontrovertible that the Plaintiff did not plead fraud in this case; S/N yrQ9pKi3j0eIe9E7JkAWjw and

having adverted to the position of the 30.4.2013 Letter vis-à-vis s 91 EA 1950, in so far as the 19.9.2013 Letter goes, s 92 of the same statute bears relevance and it stipulates that: “Exclusion of evidence of oral agreement

When the terms of any such contract, grant or other disposition of property, or any matter required by law to be reduced to the form of a document, have been proved according to section 91, no evidence of any oral agreement or statement shall be admitted as between the parties to any such instrument or their representatives in interest for the purpose of contradicting, varying, adding to, or subtracting from its terms: Provided that – …

the existence of any separate oral agreement constituting a condition precedent to the attaching S/N yrQ9pKi3j0eIe9E7JkAWjw of any obligation under any such contract, grant or disposition of property, may be proved;

the existence of any distinct subsequent oral agreement, to rescind or modify any such contract, grant or disposition of property, may be proved except in cases in which the contract, grant or disposition of property is by law required to be in writing, or has been registered according to the law in force for the time being as to the registration of documents; …” (emphasis added). Based on the foregoing, proviso (c) or (d) is clearly not applicable to the present case as the 19.9.2013 Letter is in writing and it cannot be said to be an “agreement”. [61] In summary, the Court finds, as it did with the 2nd Issue, that the Plaintiff must be held to the causes of action as pleaded in the Amended SoC. The Defendant has successfully defended itself against the Plaintiff’s S/N yrQ9pKi3j0eIe9E7JkAWjw claim for the difference in the GFA on the grounds of both pleadings and evidence. [62] In the upshot, the Court held that the final sum that must be paid by the Defendant to the Plaintiff is RM745,161.18 (RM47,147.26 + RM698,013.92) with interest at the rate of 5% per annum from the date of judgment (as pleaded) until the date of full settlement. S/N yrQ9pKi3j0eIe9E7JkAWjw II. THE DEFENDANT’S COUNTERCLAIM The Issues: Whether the Defendant has shown that the Plaintiff owes any amounts to the Defendant under the LoA? And if so, whether such amounts are due and payable to the Defendant at the time of filing of the counterclaim If due and payable, whether such amount can be set-off against the Plaintiff’s claim (if successful) [63] The crux of the Defendant’s counterclaim is that the final contract sum between the parties is RM63,018,535.83 and the Defendant is entitled to the amount which remains outstanding, after taking into account Progress Payment Nos. 1 to 33 in the total sum of RM54,141,102.65, pursuant to the issuance of the CPC. In addition, the Defendant claimed for other amounts which it alleged were owed by the Plaintiff. [64] The particulars of the Defendant’s counterclaim is tabulated in para 45 of the Amended Defence and Counterclaim. A summarised version of S/N yrQ9pKi3j0eIe9E7JkAWjw the table was prepared by the Defendant’s counsel in his Written Submissions (No. 2) and is re-produced below: NO. ITEM AMOUNT

Original Contract Sum RM 108,811,854.83 2. Less omissions arising from the direct award to the NSCs

REVISED CONTRACT SUM: RM 63,018,535.83 4. Less the sums received by the Defendant by progress payments

Add the payments by the Plaintiff on behalf of the Defendant RM 4,052,320.09 6. Less the Loan Sum outstanding

Less the payments made by the Defendant to the NSCs.

AMOUNT DUE TO DEFENDANT: RM 6,838,927.88 [65] With reference to Item No. 6 above, it is an agreed fact that the Defendant owes the Plaintiff the sum of RM1,237,500.01 whilst Item No. 5 was naturally not disputed by the Plaintiff and the minor S/N yrQ9pKi3j0eIe9E7JkAWjw calculation error for Item No. 7 (which should be RM3,251,314.00) was acknowledged by the Defendant’s counsel. [66] In the resolution of the issues related to the counterclaim, the Court had to undertake a meticulous examination of the Draft Final Account (Revision 4) – 31/10/2019 which was prepared by PW4 and marked as p 522(A), Bundle B2 (‘Plaintiff’s Draft FA’), the Defendant’s Revised Table with comments denoted in green at p 522(A), B1 in Annexure ‘A’ to WS-DW3 (‘Defendant’s Table’) and the table of payment amounts disbursed by KKP and received by, among others, the Plaintiff, the Defendant and the NSCs as annexed to WS-DW2 (‘DW2’s Table’). [67] The issues which were raised by the parties in respect of the counterclaim are addressed in the following part of this judgment. S/N yrQ9pKi3j0eIe9E7JkAWjw - The Plaintiff’s pleaded defence to the counterclaim [68] In what has become a dominant feature of this case, the issue of pleadings is again foremost in the Defendant’s submissions at the end of the trial. [69] The Defendant invited the Court to peruse the Defence to the Counterclaim which consists of three paragraphs of denials to the Defendant’s allegations on the counterclaim. Even when read with the averments made in the Amended Reply (see para 13 of the Defence to the Counterclaim), no material facts to defend the counterclaim were pleaded apart from the statement that “… the Plaintiff does not owe to the defendant and therefore the Defendant has no right to any set-off of any sums with the Plaintiff.”. [70] Mr. Balbir Singh had earlier referred to O. 18, rr. 7, 8 and 10 RC 2012 and for present purposes, the learned counsel also cited O. 18, r. which reads: S/N yrQ9pKi3j0eIe9E7JkAWjw “Admissions and denials

13.

Subject to paragraph (4), any allegation of fact made by a party in his pleading is deemed to be admitted by the opposite party unless it is traversed by that party in his pleading or a joinder of issue under rule 14 operates as a denial of it.

A traverse may be made either by a denial or by a statement of non-admission and either expressly or by necessary implication.

Subject to paragraph (4), every allegation of fact made in a statement of claim or counterclaim which the party on whom it is served does not intend to admit must be specifically traversed by him in his defence or defence to a counterclaim, as the case may be; and a general denial of such allegations or a general statement of non-admission of them is not a sufficient traverse of them.

Any allegation that a party has suffered damage and any allegation as to the amount of damages is deemed to be traversed unless specifically admitted.”. S/N yrQ9pKi3j0eIe9E7JkAWjw [71] In addition, the learned counsel cited the compelling authorities of Kiaw Aik Hang Co Ltd v Tan Tien Choy [1964] 1 MLJ 99, Lee Ah Chor v Southern Bank Bhd [1991] 1 MLJ 428 and Gerard Jude Timothy Pereira v Kasi a/l KL Palaniappan [2017] 6 MLJ 54 to support the submissions, among others, that the Plaintiff’s bare denial is not a sufficient traverse of the counterclaim; it is not the duty of the Court to invent a defence which was not pleaded under the guise of doing justice; and a judgment on issues which are not raised by the pleadings is susceptible to being set aside. [72] The Plaintiff’s sole point of rebuttal is found at para 76 of its Submissions In Reply wherein the Plaintiff maintains that it has sufficiently pleaded its defence and emphasised that, by virtue of s 103 EA 1950, it is for the Defendant to prove its counterclaim. [73] The Plaintiff’s assertion that it has sufficiently pleaded its defence flies in the face of the Amended Reply and Defence to Counterclaim. It is irrefutable that the Plaintiff’s defence to the counterclaim is a bare denial and hence, it has the effect as contended by the Defendant, namely that the Plaintiff is deemed to have admitted the factual matters S/N yrQ9pKi3j0eIe9E7JkAWjw as pleaded in the Amended Defence and CC and it cannot rely on any evidence having the effect of mounting a positive answer to the counterclaim. However, as acknowledged by the Defendant, by raising a negative defence, the Plaintiff has, at best, put the Defendant to prove its counterclaim on the legal issues as opposed to the factual issues. [74] Nevertheless, for purposes of this Grounds of Judgment, I shall provide my analysis of the issues as raised by the Plaintiff in the event that I am found to be wrong in my conclusion on pleadings. - Whether the contract sum is reduced from RM108,811,854.83 to RM63,018,535.83 as a result of the appointment of the Nominated Sub-Contractors [75] The Defendant’s pleaded case in paras 9 to 13 of the Amended Defence and CC may be summarised as follows: S/N yrQ9pKi3j0eIe9E7JkAWjw

that at the time before, during and after the acceptance of the LoA, it had been agreed among PW4, DW1 and DW3 that, if the contract value between the parties under the LoA was reduced, a percentage of the costs to be reimbursed by the Defendant would also reduce;

the aforesaid agreement is binding on the parties as an implied term or alternatively, a collateral agreement or a pre-condition to any liability of the Defendant to reimburse the Plaintiff for any expenses contained in the LoA;

the implied term, the collateral agreement or the pre-condition are as follows:

the value of the 47.3% which the Defendant must bear was achieved by rounding the percentage of the contract sum under the LoA (RM108,811,854.83) compared to the contract sum under KKP’s LoA (RM230 million); and S/N yrQ9pKi3j0eIe9E7JkAWjw

(ii) since the Defendant is granted the right to nominate the Nominated Sub-Contractors (‘NSCs’) under Clause A(iii) of the LoA for the Plaintiff to award for the scope of works as stated therein, the Plaintiff will be paid profit and attendance fees of 2% of the respective amounts awarded to the NSCs; and

after the execution of the LoA, the contract sum was reduced by RM45,793,319.00 upon the nomination by the Defendant, and the corresponding award by the Plaintiff to Stitec, ASC, Nova Nexus and Super Sun Sdn Bhd (‘Super Sun’) for various scope of works. [76] The Defendant’s position is neatly encapsulated in its Case Summary by way of the following table: S/N yrQ9pKi3j0eIe9E7JkAWjw [77] Apart from Clause A(ii) of the LoA, the Defendant drew support for its position by referring to –

Clause C.2 of the LoA which provides that it is the Plaintiff who will pay the NSCs. The said Clause reads (with my added emphasis): Value of works contracted out by KKP RM230,000,000.00 Value of works awarded to the Defendant Value of works retained by the Plaintiff RM108,811,854.83 RM121,188,145.17 Award to Stitec. (RM8,900,000.00) Award to Nova Nexus (RM7,300,000.00) Award to ASC (RM6,198,624.00) Award to Super Sun (RM23,394,695.00) TOTAL: (RM45,793,319.00) (RM45,793,319.00) RM 45,793,319.00 FINAL CONTRACT SUM BETWEEN PARTIES RM63,018,535.83 RM166,981,464.17 % of the final contract sum as it bears to the RM230 million 27.40%

72.60% S/N yrQ9pKi3j0eIe9E7JkAWjw “Payments for all works under Item A above including all differences between our contract sum to you and the contract sum to NSCs shall be made to you within 7 working days from the receipt of our claims subject to 3

(a), (b), (c) and (d) below and such payments to you shall be after deducting our payments to the NSCs appointed by you at the contract sum determined by you and after the proportionate deduction of our 2% profit and attendance.”; Since the obligation to pay the NSCs is on the Plaintiff, the Plaintiff would not need to pay the Defendant and hence, the Defendant’s contract sum is lowered by that amount paid or payable by the Plaintiff to the NSCs;

DW3’s Witness Statement which has established, as he was not contradicted on this, that the Defendant did exercise the said right of nomination and the Plaintiff had then issued the awards to Stitec, ASC, Nova Nexus and Super Sun as the NSCs for the Project. With the nomination and these awards, the obligation to S/N yrQ9pKi3j0eIe9E7JkAWjw pay the NSCs became vested with the Plaintiff pursuant to the doctrine of privity of contract; and

the summary judgment which was entered by the Plaintiff against the Defendant for profit and attendance fees for Stitec, ASC and Nova Nexus (see subpara 11(d) above). The Plaintiff benefitted from the arrangement, and it affirmed the same by applying for, and obtaining, the said summary judgment. As such, the Plaintiff cannot, through the testimony of PW4 and the Plaintiff’s Draft FA, contend that payment for any sum due under the nominated sub-contracts to these NSCs was never its responsibility, and that the Defendant’s sub-contract price was not reduced correspondingly by the value of the sub-contracts awarded to these NSCs and remained at the original sum of RM108,811,854.83. [78] The Plaintiff’s retort by way of its pleadings was, as outlined previously, a bare denial. Legally, the Plaintiff is not allowed to set up a positive case. In any event, the Plaintiff’s reliance on the second part of Clause A(iii) of the LoA in submitting that the scope of works remains under the Defendant’s responsibility and that the contract sum is not reduced S/N yrQ9pKi3j0eIe9E7JkAWjw by virtue of the NSCs’ contracts, is totally misconceived. The relevant part of Clause A(iii) of the LoA states as follows: “In the event of a default termination of any NSC’s employment, we will not be made responsible to complete the Works under any of the above NSC contracts and to bear extra costs incurred to complete the Works. You shall be responsible and bear all costs in completing the above Works in an orderly and timely manner to ensure completion of the Project. We reserve the rights to claim for any loss and/or extra expenses incurred due to any delay caused by this event.”. [79] By reading the clear words in the said part of Clause A(iii) of the LoA, it is obvious that it does not apply in the factual matrix of this case because there is no “default termination of any NSC’s employment”. In such situation, the sums due to the Defendant will be reduced corresponding to the amounts paid or payable to the NSCs. In effect, the Plaintiff does not have to pay the Defendant that part of the NSCs’ contract sum as it is the Plaintiff who will pay the NSCs. It is only in the event of default of any NSCs resulting in termination of the NSCs’ S/N yrQ9pKi3j0eIe9E7JkAWjw employment that the remaining scope of works which is left unfinished by the NSCs becomes the Defendant’s responsibility to complete. [80] Mr. Balbir Singh has rightfully articulated that the Plaintiff’s argument is circular, in that the net effect is still the same as what the Defendant is contending. Instead of saying that the Defendant’s contract sum has been reduced, it can be expressed that the amount due to the Defendant has been reduced. In both cases, the sums due to the NSCs must be paid. In the end, the monies will end up in the NSCs’ pockets, only by a different route. [81] Based on the oral and documentary evidence, the Court is satisfied that the Defendant has proven, on a balance of probabilities, that the contract sum has been reduced to RM63,018,535.83. S/N yrQ9pKi3j0eIe9E7JkAWjw - Whether the counterclaim is premature in view of Clause C.2 of the LoA [82] Proceeding next to the Plaintiff’s contention that the counterclaim is premature, this argument was premised on Clause C.2 of the LoA as quoted earlier, specifically the words “Payments for all works under Item A above including all differences between our contract sum to you and the contract sum to NSCs shall be made to you within 7 working days from the receipt of our claims subject to 3 (a), (b), (c) and (d) below …” (emphasis added). According to the Plaintiff, its obligation to pay the Defendant the amount due upon the issuance of the CPC does not arise until the Plaintiff and all the NSCs are paid first. PW4 had testified that up to the stage of the issuance of the CPC, the Plaintiff did not receive payment from KKP in the sum of RM25 million, inclusive of Goods and Services Tax. [83] The Defendant takes the position that Clause C.2 of the LoA is a “pay when paid” clause as opposed to a “pay if paid” clause. S/N yrQ9pKi3j0eIe9E7JkAWjw [84] In Globe Engineering Sdn Bhd v Bina Jati Sdn Bhd [2014] 5 MLJ 145, Jeffrey Tan FCJ, in delivering the judgment of the Federal Court, extensively discussed the approach of the courts within the country and beyond in determining whether a contractual provision is a “when” clause or an “if” clause and legal articles which have been written on this matter. The Court finally answered the first leave question that upon proper construction of the clause in question, it was a provision that merely fixed time for payment but did not absolve the respondent of liability to pay the amount certified and attributable to the work executed by the appellant. In the course of the analysis, the Court held: “[32] Time to honour payment to the appellant was contingent upon the time that the respondent would receive payment from the employer. That which was contingent was time for payment. But the fact that time for payment was so contingent could not reasonably extend to mean that even liability of the respondent was contingent, in the sense that the respondent would walk free MP the employer defaulted on the contract. For such a construction, there must be clear and unambiguous provisions to the effect that the liability of the respondent to pay the appellant, as opposed to time for payment, was S/N yrQ9pKi3j0eIe9E7JkAWjw contingent upon receipt of payment by the respondent from the employer. It must be universal truth that it need not even be said between contracting parties, that goods and services will naturally be paid by the receiving party. That is self-evident. ‘So when one is concerned with a building contract one starts with the presumption that each party is to be entitled to all those remedies for its breach as would arise by operation of law, including the remedy of setting up a breach of warranty in diminution or extinction of the price of material supplied or work executed under the contract. To rebut that presumption one must be able to find in the contract clear unequivocal words in which the parties have expressed their agreement that this remedy shall not be available in respect of breaches of that particular contract’ (Gilbert-Ash (Northern) Ltd v Modern Engineering (Bristol) Ltd [1974] AC 689 at p 718 per Lord Diplock). The burden is on the party who proposes otherwise, to show that payment was on an NP basis. Hence, the burden was on the respondent to show that liability for payment was contingent. Since there were no such provisions to that effect or from which that could be so construed, it could not be so read into the subcontract where it was silent, that the liability of the respondent was contingent. Time for payment of the certificates was contingent. But under para 14 and cl 11(b), the liability of the respondent was not contingent. The respondent was liable even MP the employer defaulted on the S/N yrQ9pKi3j0eIe9E7JkAWjw contract (for an analogy, see Scobie & Mcintosh Ltd v Clayton Bowmore Ltd (1990) 23 ConLR 78, where it was held that with repudiation of the subcontract by the main contractor and which was accepted by the subcontractor, the primary obligations of the party in default which remained unperformed was substituted by a secondary obligation to compensate the subcontractor for loss sustained in consequence of the non-performance of the primary obligations).” (emphasis added). [85] Guided by the aforementioned case of high authority, I have considered the wordings in Clause C.2 of the LoA and in my view, it is undoubtedly a “pay when paid” clause as it speaks of the time for payment rather than of there being a condition precedent that the Plaintiff will only pay the Defendant if KKP pays the Plaintiff and if all NSCs are paid first. There are no words in Clause C.2 of the LoA which allows for it to be interpreted in the manner as urged by the Plaintiff upon this Court. The Plaintiff has clearly not discharged the burden of proving that payment to the Defendant is contingent on the Plaintiff receiving payment from KKP. S/N yrQ9pKi3j0eIe9E7JkAWjw [86] It follows from the above finding that the Defendant’s counterclaim is not premature because the Plaintiff’s liability to pay the Defendant is not contingent on the Plaintiff having received payment from KKP or on an outcome of the arbitration in the Plaintiff’s favor. And nor can the Plaintiff contend that “… payment can only be made to the Defendant after deducting out the Plaintiff’s payment to the NSCs” (see para 76 of the Plaintiff’s Written Submissions) as this Court has held that the obligation to pay the NSCs lies on the Plaintiff and the Plaintiff cannot take the benefit of its own wrong in not paying the NSCs to claim that the Defendant’s counterclaim is premature. [87] Moreover, by relying on PW4’s evidence and Clause C.2 of the LoA, the Plaintiff was attempting to prove the facts which have the effect of mounting a positive answer to the counterclaim. This the Plaintiff cannot do when all that it has pleaded is a negative defence. S/N yrQ9pKi3j0eIe9E7JkAWjw - Whether the total amount paid by the Plaintiff to the Defendant as progress payments is RM54,141,102.65 (Defendant’s version) or RM54,291,102.64 (Plaintiff’s version) resulting in the difference of RM149,999.00 [88] The Plaintiff asserted that it has paid RM149,999.00 (or RM150,000.00 as was stated by PW4 in her evidence) to the Defendant for project management fees under KKP’s LoA. This payment was made following correspondence from Datin Salmah. [89] The Defendant’s counsel drew the attention of the Court to PW4’s and DW2’s evidence and the documents showing the amount which was disbursed to the Defendant. Under Claim No. 1 for the Certificate of Payment dated 26.7.2013 for the amount of RM10,988,086.11 in the Annexure to WS-PW4, the payment received by the Defendant on 30.9.2013 is stated as the same amount as the Certificate of Payment. Although KKP, in the Form of Disbursement Notice dated 26.7.2013 issued to Malaysia Building Society Berhad (‘MBSB’), had requested that RM10,988,086.11 be disbursed to the Defendant, the Plaintiff’s General Ledger 1 for the entry on 31.12.2015 shows an adjustment of account for the Project in the sum of RM10,838,086.11. In the S/N yrQ9pKi3j0eIe9E7JkAWjw Statement of Account issued by MBSB to KKP, among the particulars for 4.9.2013 are the disbursement in the sum of RM10,838,086.11 to the Defendant and RM150,000.00 to the Plaintiff. [90] It can thus be safely concluded that the Defendant received RM10,838,086.11, and not RM10,988,086.11 as alleged by the Plaintiff. This means that the total amount paid by the Plaintiff to the Defendant as progress payments is as per the Defendant’s version, namely RM54,141,102.65. [91] At this juncture, it would be appropriate to mention that the Plaintiff did attempt to convince the Court to disregard DW2’s evidence on the ground of bias as DW2 had previously represented the Defendant in this suit and he admitted that he wants to assist the Defendant. It was also contended that DW2’s evidence is replicated by DW3 as both had produced a statement of account laying out the quantum that is owed by the Plaintiff to the Defendant. [92] The Plaintiff submitted that the statement of account is the only evidence that the Defendant has provided to support its claim and S/N yrQ9pKi3j0eIe9E7JkAWjw hence, by virtue of s 34 EA 1950 and the decisions in Sim Siok Eng & Anor v. Poh Hua Transport and Contractor Sdn Bhd [1980] 1 MLRA 618 and Tey Por Yee & Anor v. Protasco Bhd [2020] MLRAU 69 this evidence on its own is insufficient as proof of the Plaintiff’s liability for the counterclaim. Section 34 EA 1950 provides that: “Entries in books of account when relevant

Entries in books of accounts regularly kept in the course of business are relevant whenever they refer to a matter into which the court has to inquire, but the entries shall not alone be sufficient evidence to charge any person with liability. ILLUSTRATION A sues B for RM1,000 and shows entries in his account books showing B to be indebted to him to this amount. The entries are relevant, but are not sufficient without other evidence to prove the debt.”. [93] The above statutory provision speaks of entries in a book of accounts. In Sim Siok Eng (supra), the Federal Court said at pp 619 - 620: S/N yrQ9pKi3j0eIe9E7JkAWjw “The law does not prescribe any special type or form of books of account to be kept by a businessman, nor does it specify any system by which these books are to be kept. Of course it is far more satisfactory if books are kept in a generally recognised form or system showing debts and credits entries between the parties, thus indicating on the face of the account the liability of the party against whom the account is tendered. A book of account kept by an illiterate tradesman is just as admissible as that kept by a highly educated merchant and banker. All that is necessary to show to the Court is that the book must be one that is "regularly kept in the course of business". This expression implies some sort of system which is followed in the making of entries in the book in question, although such system need not be elaborate (Kesheo Rao v. Ganesh AIR 1926 Nag 407). Where there is a system, the fact that entries in the book are not entered hour by hour or day by day as transactions took place does not mean that the book is not “a book of account regularly kept in business” …”. [94] The purported “statement of account” which is said to have been produced by DW2 and DW3 is actually DW2’s Table. The documents which were used as a refence in the preparation of DW2’s Table are the Annexure to WS-PW4, the Plaintiff’s General Ledger 1 and General Ledger 2 and the Disbursement Notices. The General Ledgers and the S/N yrQ9pKi3j0eIe9E7JkAWjw Disbursement Notices were included in the Common Bundle of Documents (‘CBoD’) for the trial marked as “B2”. The Annexure to WS-PW4 was used as a base and the parts highlighted in yellow indicate the alleged errors in PW4’s Annexure, green indicate the correct figure as contended by the Defendant and blue indicate further additions arising out of Interim Payment Certificate 34. DW2’s Table is clearly not a “statement of account” or entries in a book of accounts which would attract the application of s 34 EA 1950. [95] As for DW2’s evidence, I am not persuaded by the Plaintiff’s reasons in asking the Court to ignore his testimony. In WS-DW2, the witness had explained that –

he prepared DW2’s Table to reconcile the various figures in the documents as these have a direct bearing to the counterclaim;

although the Defence to Counterclaim has not traversed the figures pleaded by the Plaintiff in the counterclaim, the Plaintiff had filed WS-PW4 with the Annexure and had produced the Plaintiff’s Draft FA and the General Ledgers. This indicates that S/N yrQ9pKi3j0eIe9E7JkAWjw the Plaintiff intends to dispute the figures stated in the

the entries in the Annexure to WS-PW4 is unhelpful as it only has the headings for payments received by the Plaintiff, the Defendant and others. A breakdown was thus prepared to assist the Court in determining the correct figures in relation to each heading and in the process, DW2 had to reconcile the figures. [96] I found that DW2’s Table contains a more detailed breakdown of the amounts which were received by the Plaintiff, the Defendant, the NSCs, LK Construction and the Consultants and these were extremely helpful in the determination of the issues related to the counterclaim. Moreover, I did not simply accept the figures in DW2’s Table at face value. The parts highlighted in green carried the reference to the relevant pages in the CBoD and the figures as stated were checked against the documents with the outcome that the figures as inserted in DW2’s Table represent the correct amounts. For completeness, the Court also took cognizance of paras 105 - 110 in the Defendant’s Reply Submissions, including the table which sets out the summary of DW3’s S/N yrQ9pKi3j0eIe9E7JkAWjw criticisms of the Plaintiff’s Draft FA when compared against the contemporaneous documents. - Whether the Plaintiff is liable for the payments which were made by the Defendant on behalf of the Plaintiff to Nova Nexus and Super Sun [97] Among the items in the counterclaim is the sum of RM924,994.00 and RM2,326,320.00 which the Defendant alleged that it had paid Nova Nexus and Super Sun, respectively, before they were appointed as the Plaintiff’s sub-contractors. The total sum which was paid is RM3,251,314.00. [98] The Plaintiff’s stance at the trial was that it was under no obligation to pay these amounts as it is unaware of where the payments originated from and the Plaintiff did not consent to the payments and nor was it informed of the same. The Plaintiff asserted that it was natural for it to be wary of the purported payments by the Defendant as these were made before the Plaintiff issued the Letters of Award As NSC to Nova Nexus on 2.1.2014 and to Super Sun on 23.6.2015. S/N yrQ9pKi3j0eIe9E7JkAWjw [99] Based on DW3’s evidence and the documents produced at the trial, the Defendant paid Super Sun between the months of February 2014 to April 2015 (see the Defendant’s Public Islamic Bank Statement of

Accounts dated 28.2.2014, 31.7.2014, 31.10.2014, 31.12.2014,

2.2015 and 30.4.2015 and Super Sun’s Official Receipts dated 5.2.2014, 11.7.2014, 23.10.2014, 12.12.2014, 13.2.2015 and 13.4.2015 at pp 26 - 37, DB1). [100] The Defendant does not deny that at the time that it paid Nova Nexus and Super Sun, these NSCs were not the Plaintiff’s sub-contractors yet. In this regard, the contention that the Defendant must obtain the Plaintiff’s prior consent before making the payments to Nova Nexus and Super Sun simply does not arise. [101] As for the Plaintiff’s allegation that it was not informed and has no knowledge of these payments, the Defendant has proven, on the balance of probabilities, that it is in fact the opposite. In the case of –

Nova Nexus, based on PW4’s, DW2’s and DW3’s testimonies, the Court finds that PW4 had signed the undated letter to Nova S/N yrQ9pKi3j0eIe9E7JkAWjw Nexus and had placed her initial on the first page of the letter and on each page of the attachments (which PW4 testified was sent by registered post to Nova Nexus on 19.10.2016) and, among others, enclosed “our record of payments to you”. In Attachment 2 to the letter, the Payment Record for Nova Nexus shows in the first two items, Payment Nos. 1 and 2 by the Defendant in the sum of RM450,000.00 and RM474,994.00, respectively (totaling to RM924,994.00; see pp 19 - 25, DB1). It is incredulous for PW4 to disagree to the suggestion by the Defendant’s counsel that she was well aware of the payment by the Defendant to Nova Nexus when she had already admitted to have co-operated in the preparation of the letter and to propose that the Payment Record be enclosed with the letter. In an e-mail dated 10.10.2016 from PW to DW2 and copied to DW1 (at p 4, DB3), PW4 said “i suggest we state and attach the account statement for furniture works and outstanding amount based on our records. The argument seems to be on the non-payment.”. During the cross-examination of DW2, the Plaintiff’s counsel asked, “… When she says “our” she could be meaning “our” S/N yrQ9pKi3j0eIe9E7JkAWjw collectively meaning KKP, Metropolitan, Tech Art’s record. Our record as opposed to Nova Nexus’s record. …”. This question itself shows that the Plaintiff admits that “our record” includes the Plaintiff’s record; and

Super Sun, the Tax Invoice issued by Super Sun to the Plaintiff dated 9.7.2018 shows that Super Sun has received payments in the sum of RM18,853,97285 and that it has a total claim of RM6,936,680.90. The sum of RM18,853,97285 includes the amounts which were paid by the Defendant to Super Sun between February 2014 to April 2015 as alluded to earlier (see pp 512 and 670, B2). Further, in the Plaintiff’s Draft FA, a sum of RM6,936,680.90 is shown as being owed to Super Sun. Hence, the Plaintiff has clearly taken into consideration the sum of RM2,326,320.00 which was paid by the Defendant to Super Sun. [102] In the light of the above discussion of the oral and documentary evidence, the sum of RM3,251,314.00 which was paid by the S/N yrQ9pKi3j0eIe9E7JkAWjw Defendant to Nova Nexus and Super Sun were treated by the Plaintiff as though it were payments made by itself to these NSCs. In this sense, the Plaintiff enjoyed the benefit of these payments as it reduced the amount which it would otherwise be obligated to pay to Nova Nexus and Super Sun. This Court is satisfied that the Defendant has established its counterclaim for this head of claim. - The “alter ego” argument [103] The Plaintiff relied on the same “alter ego” argument as was alluded to in respect of the Plaintiff’s claims in denying any liability for the counterclaim for the reason that “there seems a blurring of lines between the Defendant and KKP in the counterclaim” (see para 88 of the Plaintiff’s Written Submissions). [104] In my view, the Plaintiff cannot go far with this argument for the simple and, what has become a repeated reason in the determination of the dispute between the parties, that it was not pleaded by the Plaintiff. As was shown in para 60(b) above, the fact as to “alter ego” was pleaded S/N yrQ9pKi3j0eIe9E7JkAWjw in para 9 of the Amended Reply in the context of the as-built drawings. It was certainly not expressly pleaded as one of the defences to the counterclaim. - Demeanor of the witnesses [105] The Plaintiff’s counsel dedicated a whole section of his written submissions on this aspect, insisting that the Defendant’s witnesses were vey evasive during cross-examination, feigning ignorance and giving contradictory answers. The excerpts from the NoE which were relied upon by the Plaintiff in support of this contention are in respect of DW1’s and DW3’s testimonies on the issue of “alter ego”. [106] Similarly, throughout the written submissions of the Defendant’s counsel, he had highlighted the occasions when PW4’s credibility is questionable and how her evidence is self-serving and orchestrated to avoid liability on the counterclaim. S/N yrQ9pKi3j0eIe9E7JkAWjw [107] On this note, I am reminded that demeanour is not always the touch-stone of truth and it is only one ingredient in arriving at a finding of credibility. Any impression as to the demeanour of any of the witnesses in the trial must be critically tested against the totality of the evidence given by the witness concerned (see Tara Singh v Public Prosecutor [1949] MLJ 88 and Tengku Mahmood v Public Prosecutor [1974] 1 MLJ 110). [108] In Lee Ing Chin @ Lee Teck Seng & Ors v Gan Yook Chin & Anor [2003] 2 MLJ 97, the Court of Appeal elucidated at p 116 that: “A judge who is required to adjudicate upon a dispute must arrive at his decision on an issue of fact by assessing, weighing and, for good reasons, either accepting or rejecting the whole or any part of the evidence placed before him. He must, when deciding whether to accept or to reject the evidence of a witness, test it against relevant criteria. Thus, he must take into account the presence or absence of any motive that a witness may have in giving his evidence. If there are contemporary documents, then he must test the oral evidence of a witness against these. He must also test the evidence of a particular witness against the probabilities of the case. A trier of fact who makes findings based purely upon the S/N yrQ9pKi3j0eIe9E7JkAWjw demeanour of a witness without undertaking a critical analysis of that witness' evidence runs the risk of having his findings corrected on appeal. It does not matter whether the issue for decision is one that arises in a civil or criminal case: the approach to judicial appreciation of evidence is the same.”. [109] Later, the same Court, this time constituted of a different panel of judges, expounded the following in Tan Ah Kow & Anor v Tan Chaui En [2017] 6 MLJ 297 at p 306: “[20] Having considered the judgment of the learned JC, we are of the view that the learned JC erred in making her decision based mainly on the demeanour of the first appellant, and the learned JC’s perception of the lack of credibility of the first appellant. We agree that demeanour and credibility are important in determining which of the two versions of the parties can be believed and accepted. However, we are of the view that the trial judge should first of all determine, on a balance of probabilities, whether the plaintiff has discharged the burden of proving his case. This will then be considered by the trial judge, and taking into account at the same time the demeanour and credibility of the witnesses. The demeanour and credibility of witnesses should not be accorded such disproportionate weight by the trial judge to the extent of S/N yrQ9pKi3j0eIe9E7JkAWjw ignoring and not giving due weight and importance to the facts established from the totality of the evidence.”. [110] By applying the legal principles derived from the above said cases and following from the analysis of the Court on the issues which arose for consideration as discussed thus far, I do not think that the evidence given by any of the witnesses at the trial should be rejected in their entirety purely on the ground of his or her demeanour. In weighing the evidence in the course of determining whose version of the events to believe and whether the Plaintiff or the Defendant has discharged the burden of proof, as the case may be, I have considered the totality of the evidence and have tested the oral testimonies of the witnesses against the contemporaneous documentary evidence which is in abundance in this case (see OSK Securities Bhd v Probo Pacific Leasing Pte Ltd & Anor [2009] 3 MLJ 712). [111] As both the Plaintiff and the Defendant are pursuing their respective claims, it is not safe to rely solely on the demeanour of, especially PW4, DW 1 and DW3, as the barometer in the final outcome of the dispute. S/N yrQ9pKi3j0eIe9E7JkAWjw In Tindok Besar Estate Sdn Bhd v Tinjar Co (supra, at p 234) Chang Min Tat FCJ said: “ … For myself, I would with respect feel somewhat safer to refer to and rely on the acts and deeds of a witness which are contemporaneous with the event and to draw the reasonable inferences from them than to believe his subsequent recollection or version of it, particularly if he is a witness with a purpose of his own to serve and if it did not account for the statements in his documents and writings. Judicial reception of evidence requires that the oral evidence be critically tested against the whole of the other evidence and the circumstances of the case. Plausibility should never be mistaken for veracity. …”. - Ancillary matter [112] In its Written Submission in Reply, the Plaintiff submitted that Clause A(ii)(6) of the LoA on the scope of works relating to “Management, Structural Consultancy and Risk Management Fees” in the sum of RM26,190,200.43 is a sham in that the risk management scope was S/N yrQ9pKi3j0eIe9E7JkAWjw merely for the purpose of withdrawing project funds. The Defendant retorted, once again, that this fact was not pleaded by the Plaintiff. I agree. Conclusion [113] Based on all the foregoing considerations, the Defendant’s counterclaim for the sum of RM6,838,927.08 was allowed with interest at the rate of 5% per annum from the date of filing of the Counterclaim until full settlement. This amount was allowed to be set off against the sum of RM745,161.18 which was awarded pursuant to the Plaintiff’s claim resulting in the nett judgment sum of RM5,713,247.03. [114] On the issue of cost, the Plaintiff’s counsel prayed for cost in the cause since “the Plaintiff won some and lost some and the Defendant won on its counterclaim”. [115] The Defendant’s counsel disagreed, giving the reason that what the Plaintiff won was already conceded before the trial, and the fact that S/N yrQ9pKi3j0eIe9E7JkAWjw the Defendant succeeded in the substantive part of the case which revolve on the GFA related claim and the counterclaim. A sum of RM100,000.00 as costs was sought in view of the length of the trial, the amount of work that was dedicated to this case and the change of solicitors which happened thrice. [116] The Plaintiff’s solicitors then suggested the sum of RM60,000.00 as costs and this was duly ordered as the Court viewed it as a befitting amount in the circumstances of the case. The order for costs was made subject to the payment of the standard allocatur fees. S/N yrQ9pKi3j0eIe9E7JkAWjw III. THE PLAINTIFF’S APPLICATION FOR STAY OF EXECUTION OF THE JUDGMENT [117] Soon after the decision after the full trial was pronounced, the Plaintiff filed the application in encl. 153 for, among others, a stay of the execution of the judgment pursuant to O. 45, r. 11 RC 2012 and/ or the Court’s inherent jurisdiction under O. 92, r. 4 RC 2012, including the winding up of the Plaintiff, pending the final determination of the Plaintiff’s appeal against the judgment (‘Appeal’). [118] On the date of the hearing of the application, the Plaintiff’s counsel informed the Court that the Plaintiff does not wish to pursue prayer 2 in encl. 153 which is an order for stay of the execution of the judgment pending the determination by the Arbitrator in the arbitration proceedings between KKP and the Plaintiff. [119] The cause papers for the application are as follows:

the Plaintiff’s Affidavit In Support (‘AIS’) affirmed by PW4 (encl. 154); S/N yrQ9pKi3j0eIe9E7JkAWjw

the Plaintiff’s Additional Affidavit affirmed by the same deponent (encl. 164);

the Defendant’s AIR (No. 1) affirmed by DW3 (encl. 172); and

the Plaintiff’s Affidavit In Reply (‘AIR’) affirmed by the same deponent (encl. 171). [120] After an oral hearing and taking into consideration the evidence on affidavit and the submissions of the parties, the Court had allowed the Plaintiff's application for stay of the execution of the judgment sum pending the disposal of the appeal by the Court of Appeal on condition that this amount is deposited with the Defendant’s solicitors as stakeholder in an interest bearing account within 30 days from the date of the order (‘Condition’). The said sum and the accrued interest thereon shall be released in accordance with the order that will be made by the Court of Appeal. [121] As the Defendant did not appeal against the decision of this Court in respect of encl. 153 and the Plaintiff’s current appeal is only against S/N yrQ9pKi3j0eIe9E7JkAWjw the Condition, I now provide the full justifications to warrant the order for the Condition. [122] O. 45, r. 11 RC 2012 stipulates that: “Matters occurring after judgment: Stay of execution

Without prejudice to Order 47, rule 1, a party against whom a judgment has been given or an order made may apply to the Court for a stay of execution of the judgment or order or other relief on the ground of matters which have occurred since the date of the judgment or order, and the Court may by order grant such relief, and on such terms, as it thinks fit.” [123] The Plaintiff accepts that it has the burden to prove the existence of special circumstances which render the order for stay of execution necessary in line with the high authorities and all the subsequent cases which have applied the legal principles accordingly (see Ming Ann Holdings Sdn Bhd v. Danaharta Urus Sdn Bhd [2002] 1 MLRA 214 and Kosma Palm Oil Mill Sdn Bhd & Ors v Koperasi Serbausaha Makmur Bhd [2004] 1 MLJ 257). S/N yrQ9pKi3j0eIe9E7JkAWjw [124] Special circumstances mean something exceptional in character, something that exceeds or excels in some way that which is usual or common. There is a myriad of circumstances that could constitute special circumstances and the list of factors that could establish such circumstances is not closed (see The Government of Malaysia v. Datuk Kadir Mohamad Mastan & Another Case [1993] 3 MLRH 207). It is trite that merits of the appeal against the judgment and fear of execution are not special circumstances. [125] Having read the Defendant’s AIR and submission, it is apparent that it admits that it has not filed its annual statement of accounts. In this situation, the Defendant’s financial standing and the ability to repay the judgment sum to the Plaintiff (which was calculated as RM7,870,430.37 inclusive of interest and cost, less the full judgment of RM2,157,183.35 in favor of the Plaintiff, resulting in the sum of RM5,713,247.03; see para 6, encl. 172), if the Plaintiff’s appeal is allowed, is indeed questionable. The Defendant contended that nonetheless, a blanket stay should not be granted because –

an appeal does not automatically attract a stay of execution; S/N yrQ9pKi3j0eIe9E7JkAWjw

the Court should not lend a hand to grant a stay which has the mere effect of facilitating the Plaintiff to avoid or delay the execution or the Plaintiff’s legal obligation to honour the judgment debt;

the Plaintiff has not disclosed in its AIS and AIR the state of its finances such as its fixed and current assets, the amounts payable to its creditors in the immediate and medium term, the conduct of its payment to these creditors and whether it is facing any threat of execution or winding-up by its other creditors;

the Plaintiff was not willing to give an undertaking to preserve its assets when the Plaintiff sought an order for an ad interim stay until encl. 153 was heard and disposed and further, the Plaintiff did not give any assurance to the Court that it is able to meet the judgment sum in the event the appeal is unsuccessful and to fortify the assurance with evidence; and S/N yrQ9pKi3j0eIe9E7JkAWjw

there is a risk that the Plaintiff may suffer execution or winding-up in the hands of some other creditor. The Defendant, as execution creditor, is entitled to the fruits of its litigation being first in time to realise the assets of the judgment creditor. Applying the decision in the case of Pritchard v Westminister Bank Ltd. [1969] 1 AII ER 199, the Defendant does not need to share the fruits of its diligence with other creditors. [126] It is observed that, when the Court heard the Plaintiff’s application for an ad interim stay on the first date of case management for encl. 153, the undertaking by the Plaintiff that it will not dispose of its assets pending the disposal of encl. 153 was not immediately given. The matter was stood down to enable Mr. K. Selva to obtain instructions from his client. The undertaking was then obtained and later formalised by way of the Plaintiff’s averment in para 5, encl. 164. [127] Having considered the submissions of the parties, the Court was inclined to agree with the Defendant that this is a case suited for a conditional stay for the following reasons: S/N yrQ9pKi3j0eIe9E7JkAWjw

After outlining the Plaintiff’s efforts in claiming the amounts which were purportedly due and owing by KKP to the Plaintiff vide two adjudication proceedings and an arbitration proceeding, the Plaintiff then affirmed in para 21 of the AIS that “… by virtue of the non-payment of KKP, the Plaintiff is constrained in their ability to settle the dues to their sub-contractors including the nominated sub-contractors …”. By its own averment, the Plaintiff admits that there are sums of monies owing to the sub-contractors and this lends credence to the Defendant’s contention of a threat of execution or winding up by the Plaintiff’s other creditors in future and the risk that the Plaintiff may dispose of its assets and leave the Defendant with a barren judgment.

If a blanket stay is granted and there is an intervening winding up of the Plaintiff while waiting for the Plaintiff’s appeal to be heard, the Defendant will lose its ranking as being the first in time to realise the assets of the Plaintiff. It is likely that the Plaintiff will end up being ranked in pari passu with other creditors. The Defendant would be deprived of the benefit of execution of the S/N yrQ9pKi3j0eIe9E7JkAWjw judgment, and this will occasion an irreparable prejudice to the Defendant.

In Jaya Harta Realty Sdn Bhd v Koperasi Kemajuan Pekerja-Pekerja Ladang Bhd [2000] 6 MLJ 493, the High Court, in allowing the plaintiff’s application to stay the execution of an order setting aside a garnishment order and the return of the garnished money to the garnishees, pending the disposal of the plaintiff’s appeal to the Court of Appeal, had, at pp 499 - 501, expounded that: “The terms in which the court’s jurisdiction is conferred on stay of execution pending an appeal are general and unlimited. How the judicial discretion conferred by that jurisdiction should be exercised must be guided by proper rules founded on principle. The justice of the case on stay is arrived at by striking a judicious and equitable balance between the principle that the successful party in the litigation ought to be allowed to reap the fruits of that litigation and not obtain a mere barren success, S/N yrQ9pKi3j0eIe9E7JkAWjw and the countervailing principle that should the unsuccessful party in litigation be ultimately successful in his appeal, he ought not be deprived of the fruits of his litigation due to the result of his appeal being rendered nugatory. Yet, it must always be borne in mind that the successful party in litigation has acquired a vested interest in the outcome of his case whereas the other party who appeals only has an interest contingent upon a successful outcome on his appeal — obviously, one has to be mindful that such considerations pertaining to the compelling concept of 'fruits of litigation' is wholly irrelevant to stay of proceedings applications. And, it is primarily for this latter reason and the implied caveat that courts should discourage parties who lose their cases upon merits, from wrenching the fruits of litigation from the successful parties — by keeping the litigation alive through spurious appeals without any real prospect of success and simply in a hope of gaining respite against immediate execution upon the judgment — that the courts have been and are only moved to grant such stay upon a set of certain requirements which, for want of a more appropriate term, the courts have been driven to use, quite rightly, the expression ‘special circumstances’. Thus, ‘special circumstances’ does not mean very special or exceptional or peculiar S/N yrQ9pKi3j0eIe9E7JkAWjw circumstances but is a term to denote a combination of certain determining factors that are demonstrated by affidavit evidence to persuade the court that it is a just and appropriate case to grant a stay of execution in the circumstances. … In Alexander v Cambridge Credit Corp Ltd, although Kirby P, when delivering the judgment of the Court of Appeal of New South Wales, had frowned upon the use of the expression ‘special or exceptional circumstances’ in preference to ‘an appropriate case’, he nevertheless quite correctly (in my view) set out the following three essential ingredients (the traditional core ingredients) that are necessary to demonstrate ‘an appropriate’ case to warrant the exercise of discretion in favour of a stay, namely:

where ‘the balance of convenience’ is in favour of the applicant/appellant (see also AG v Emerson & Ors; Clyne v Deputy Commissioner of Taxation); and such balance of convenience may sometimes be maintained by the stay being made subject to certain conditions imposed by the court (as per provision ‘… may order … on such terms as it thinks fit’, in O 45 r 11 S/N yrQ9pKi3j0eIe9E7JkAWjw of the Rules, and also see Andrews & Anor v John

(ii) where ‘it is apparent that unless a stay is granted an appeal will be rendered nugatory …’ (see also Wilson v Church No 2 and Scarborough v Lew's Junction Stores Pty Ltd); and

(iii) that the applicant/appellant ‘has an arguable’ appeal. In my view, shorn of its contending terminology, the courts here and in the Commonwealth jurisdictions have in essence traditionally adopted as its core ingredients the above three generic ingredients for granting stay, with some variations where appropriate depending on the peculiar facts and circumstances of the case. One may term it ‘special circumstances’ or ‘appropriate case’ yet the basic ingredients for granting stay bears insignificant variation from the said three traditional core ingredients. …” (emphasis added). S/N yrQ9pKi3j0eIe9E7JkAWjw The common feature of applications of this nature is the need to strike the appropriate balance between the competing interests of the parties. In the instant case, there is on one hand, the Defendant who has obtained judgment after a full trial, and on the other hand, the Plaintiff who has cast doubt on the Defendant’s ability to repay the judgment sum if the Plaintiff’s appeal is successful. I should add that I am not persuaded by any of the Plaintiff’s arguments premised on the rehashed issue of “alter ego” for the reasons already elaborated under Part I of this judgment. Critically to the Defendant, its objective is to ensure that whatever actions that may be taken by the Plaintiff’s other creditors against the Plaintiff do not affect the Defendant. In my considered view, the balance of convenience in the circumstances of this case can be achieved by subjecting the order for stay of execution to the Condition.

The learned counsel for the Plaintiff cited the case of Perkapalan Dai Zhun Sdn Bhd & Anor v. Formosa Plastics Marine S/N yrQ9pKi3j0eIe9E7JkAWjw Corporation & Ors & Another Case [2021] 2 MLRH 199 to illustrate a case scenario where there was some evidence in the form of the 2015 financial statement of the company concerned, albeit there was no information at all for the four years after that, as compared to the present case where the state of the Defendant’s finances was not made known at all. The admiralty court was of the view that there were special circumstances to warrant the exercise of the court’s discretion to stay the execution of the judgment. The court found that the defendant’s financial resources were such as to raise serious doubts as to their ability to repay the judgment sum to the plaintiffs in the event the appeal was allowed. The court thus allowed the stay application subject to two conditions, one of which was for the plaintiffs to make cash payments over three consecutive months into a joint stakeholder account to be maintained jointly by the partners of the plaintiffs’ and defendants’ solicitors. The court further ordered that in the event any of the conditions are not complied with, the stay order is set aside. S/N yrQ9pKi3j0eIe9E7JkAWjw [128] The Court, having decided that a conditional stay is the most appropriate order to be made given the present set of facts, then addressed the issue of cost. [129] Mr. Balbir Singh prayed for RM10,000.00 as cost on the ground that it was a highly contested application. However, the Court agreed with the Plaintiff that it is befitting for cost to be in the cause of the Plaintiff's appeal. Order accordingly. Dated: 25 January 2023 (ALIZA SULAIMAN) Judge Construction Court 2 High Court Kuala Lumpur S/N yrQ9pKi3j0eIe9E7JkAWjw Counsels/ Solicitors: For the Plaintiff: K. Selva Kumaran (Shankar Gunaratnam and Yau Jie Luan with him) Messrs. Rose Hussin Advocates & Solicitors Suite 2-6-5 & 2-6-6 6th Floor, Wisma Menjalara Jalan 7A/62A, Bandar Menjalara 52200 Kuala Lumpur For the Defendant: Balbir Singh (Daniel Ong with him) Messrs. Najiana Wan Balbir Advocates & Solicitors 11-2(A), Jalan Solaris 3 Solaris Mont Kiara 50480 Kuala Lumpur Cases and legislation referred to in the submissions by learned counsels and in the Grounds of Judgment: Cases: Alcatel-Lucent (M) Sdn Bhd (formerly known as Alcatel Network Systems

(M) Sdn Bhd) v Solid Investments Ltd and another appeal [2012] 4 MLJ 72 Ang Koon Kau & Anor v Lau Piang Ngong [1984] 2 MLJ 277 S/N yrQ9pKi3j0eIe9E7JkAWjw Aspatra Sdn Bhd & 21 ors v Bank Bumiputra Malaysia Bhd & anor [1988] 1 MLJ 97 China Harbour Engineering Company Ltd v. Lunar Shipping Agencies Sdn Bhd [2017] 1 MLRH 538 Citibank Na v. Mrs Nd Chandrasegaran Nee Nirmala Devi P Ratnadurai [2007] 4 MLRH 48 David Wong Hon Leong v. Noorazman Adnan [1995] 1 MLRA 708 Gerard Jude Timothy Pereira v Kasi a/l KL Palaniappan [2017] 6 MLJ 54 Giga Engineering & Construction Sdn Bhd v Yip Chee Seng & Sons Sdn Bhd & Anor [2015] 6 MLJ 449 Globe Engineering Sdn Bhd v Bina Jati Sdn Bhd [2014] 5 MLJ 145 Hassan Mat Yaacob v. Pentadbir Tanah Perak Tengah & 2 Ors [2001] 6 MLRH 100 He-Con Sdn Bhd v. Bulyah Ishak & Anor And Another Appeal [2020] 5 MLRA 98 Industrial & Agricultural Distribution Sdn Bhd v Golden Sands Construction Sdn Bhd [1993] 3 MLJ 433 S/N yrQ9pKi3j0eIe9E7JkAWjw Janagi v. Ong Boon Kiat [1971] 1 MLRH 360 Jaya Harta Realty Sdn Bhd v Koperasi Kemajuan Pekerja-Pekerja Ladang Bhd [2000] 6 MLJ 493 Kiaw Aik Hang Co Ltd v Tan Tien Choy [1964] 1 MLJ 99 Kosma Palm Oil Mill Sdn Bhd & Ors v Koperasi Serbausaha Makmur Bhd [2004] 1 MLJ 257; [2003] 1 MLRA 536 Law Kam Loy and anor v Boltex Sdn Bhd and others [2005] MLJU 225 Lee Ah Chor v Southern Bank Bhd [1991] 1 MLJ 428 Lee Ing Chin @ Lee Teck Seng & Ors v Gan Yook Chin & Anor [2003] 2 MLJ 97 Mammoth Empire Construction Sdn Bhd v. Kenwise Sdn Bhd & Other Cases [2021] MLRHU 54 Mat bin Lim & Anor v Ho Yut Kam & Anor [1967] 1 MLJ 13 Ming Ann Holdings Sdn Bhd v. Danaharta Urus Sdn Bhd [2002] 1 MLRA 214 Nirumalan K Pillay & Ors v A Balakrishan [1997] 1 SLR 322 S/N yrQ9pKi3j0eIe9E7JkAWjw Perkapalan Dai Zhun Sdn Bhd & Anor v. Formosa Plastics Marine Corporation & Ors & Another Case [2021] 2 MLRH 199 Pritchard v Westminster Bank Ltd (Westminster Bank Ltd Garnishee) [1969] 1 All ER 999 RHB Bank Bhd (substituting Kwong Yik Bank Bhd) v Kwan Chew Holdings Sdn Bhd [2010] 2 MLJ 188 Romar Positioning Equipment Pte Ltd v Merriwa Nominees Pty Ltd [2004] 4 SLR 574 Sim Siok Eng & Anor v. Poh Hua Transport and Contractor Sdn Bhd [1980] 1 MLRA 618 Sivalingam A/L Periasamy v Periasamy & Anor [1995] 3 MLJ 395 Small Medium Enterprise Development Bank Malaysia v. Lim Woon Katt [2017]1 MLRA 206 SS Precast Sdn Bhd v. Serba Dinamik Group Bhd & Ors [2020] 5 MLRH 212 Superintendent of Lands and Surveys (4th Div) v Hamit Bin Matusin [1994] 3 MLJ 185 Takashimaya Construction & Development Sdn Bhd & Anor v. My Influx Sdn Bhd & Other Appeals [2019] 1 LNS 689 S/N yrQ9pKi3j0eIe9E7JkAWjw Tan Swee Hoe Co Ltd v. Ali Hussain Bros [1979]1 MLRA 71 Tara Singh v Public Prosecutor [1949] MLJ 88 Tenaga Nasional Bhd v. Irham Niaga Sdn Bhd & Anor [2011] 1 CLJ 491 Tengku Mahmood v Public Prosecutor [1974] 1 MLJ 110 Tey Por Yee & Anor v. Protasco Bhd [2020] MLRAU 69 The Government of Malaysia v. Datuk Kadir Mohamad Mastan & Another Case [1993] 3 MLRH 207 Theta Edge Bhd v. Infornential Sdn Bhd & Another Appeal [2017] 7 CLJ 53 Tindok Besar Estate Sdn Bhd v. Tinjar Co [1979] 2 MLJ 229 Wiedemann v. Walpole [1891] 2 Q.B. Windsor Aims Construction Sdn Bhd v. Mnq Builders Sdn Bhd & Ors [2017] MLRHU 1484 Yap Seong Yee v Eureka Property Management Sdn Bhd and another appeal [2018] 6 MLJ 799 S/N yrQ9pKi3j0eIe9E7JkAWjw Legislation: Companies Act 2016, s 368 Contracts Act 1950, s 71 Evidence Act 1950, ss 34, 91, 103 & 114 Rules of Court 2012, O. 18, rr. 7, 8, 10 and 13, O. 45 r. 11 & O. 92 r. S/N yrQ9pKi3j0eIe9E7JkAWjw