Tte Construction Sdn Bhd v Yhf Construction Sdn Bhd (WA-22C-79-10/2024)

The trial of this action involved the determination of the following claims and counterclaims between the parties:

the Plaintiff's claim for the sum of RM972,193.19 for services such as supplying labour, materials and machinery that it had supplied to the Defendant when the Defendant carried out a construction project in Semenyih ("Semenyih Project Claims");

(ii) the Defendant's counterclaim for the sum of RM450,909.60 for its works and services on a Project that the Plaintiff was carrying out ("UNITEN Project Counterclaim");

(iii) the Defendant's counterclaim for the sum of RM827,698.46 for its works and services on a Project that the Plaintiff was carrying out ("Jinjang Project Counterclaims"); and

(iv) the Defendant's claim for 50% of the Plaintiff's profits from the Jinjang Project ("Jinjang Profit Sharing Counterclaim")

Each claim / counterclaim shall now be discussed in turn.

At the trial, the Plaintiff had adduced copies of the 28 Invoices and other supporting documents to support its Semenyih Project Claims. They were all placed in the Bundle of Documents marked as "B1".

The 28 Invoices were issued between 31.3.2019 to 31.3.2020. All were addressed to the Defendant, and the amounts therein cumulatively totaled the sum of RM972,193.19. They were all categorized as Part B documents.

The Plaintiff further adduced and relied on a document titled "Confirmation of Balances" that the Defendant had issued to it. That document was signed by the Defendant's director, one Wong Yeow Seng. The salient part of that document states: "As at 31st DECEMBER 2020, according to our records the balances of your accounts with us were: Amount due to us RM785,698.46 (DR) Amount due to you RM972,193.19 (CR)" For audit purposes, we shall be obliged if you will confirm and sign this letter in the space provided below, and return it DIRECTLY in the enclosed stamped addressed envelope to our auditors:

That kind of document is not alien to this Court, this Court being part of the Commercial Division of the Kuala Lumpur High Court. It is reasonable to assume that Messrs. Y.C. Wong & Co. were the Defendant's external independent auditors, engaged for the purpose of preparing the Defendant's accounts and annual returns for its Annual Report. From the Defendant's own documents, Messrs. Y.C. Wong & Co. had found evidence of trading between the Plaintiff and Defendant, and had surmised, inter alia, that there was a sum of RM972,193.19 payable by the Defendant to the Plaintiff. On the balance of probabilities, I find that the fact that the said auditor's finding tallies exactly with what the Plaintiff contends is owing to it by the Defendant and what the Plaintiff's Invoices show is not mere coincidence, but leaning towards being factually correct and accurate.

In the Court of Appeal case of Hasrat Usaha Sdn Bhd v Pati Sdn Bhd [2011] 3 MLJ 343, the appellant (defendant) had appointed the respondent (plaintiff) to carry out certain construction works. The respondent claimed for amounts still owing to it by the appellant, and relied, inter alia, on an undated letter from the appellant seeking the respondent's confirmation of the amount that the respondent claimed. In paragraph 38 of the Judgment, Azhar Ma'ah JCA said: "... As can be seen from the facts of the instant case, the letter ex RS-3 emanated from the defendant's own office and presumably the contents of that letter must have come from the defendant's own accounts department. Although the plaintiff disputed the correctness of the amount stated in the said letter, claiming that a bigger amount was due and owing from the defendant, we are of the view that there is a clear and unequivocal admission by the defendant that there was a balance due to the plaintiff to the tune of RM1,310,806.02. Up to that amount, the defendant is undr an obligation to pay to the plaintiff. It did not make any difference that the defendant was merely enquiring and seeking confirmation of the correctness of the figure. The fact still remained that the defendant's own accounting records show that there was an outstanding sum of RM1,310,806.02 payable to the plaintiff..."

Somewhat similarly, in the Court of Appeal case of Sagujuta (Sabah) Sdn Bhd v Trane Malaysia Sales & Services Sdn Bhd [2014] 5 MLJ 535, Ramly Ali JCA said: [19] The learned judge also relied on the audit certification request dated 21June 2010 made by the appellant's group accountant. Paragraph 1 of the said audit certification reads: 'Our auditors are now engaged in an examination of our financial statements. In this connection, they wish to confirm the balance due from on your account at 31 December 2010, which was shown in our record as RM3,887,555.12'. [20] In short, the significance of the audit certification request can be seen from the statement contained therein. It specifically states that in the appellant's financial book, the amount due to the respondent is RM3,887,555.12. This is a clear admission of debt based on the amount stated as at the date 31 December 2010. An audit confirmation request is an important step in an audit of a company's financial accounts. It is a way of ensuring that the amount as appears in the company's book is correct and the only manner to confirm this amount is by way of confirmation by the creditor concerned. [21] Based on the above documents, namely the certification of payments by the appellant's appointed consultant, Messrs JSPEC and the audit confirmation request by the appellant's group accountant, we are satisfied that the learned High Court judge was correct in coming to a conclusion that the appellant's defence to the respondent's counterclaim is unlikely to succeed in a trial as it raises no triable issue. We are in agreement with such findings and find no reason to disturb it. To us, the position is clear ie upon certification by the appellant's consultant payment must be made to the respondent. The certification was confirmed by the appellant's itself when it issued an audit confirmation request. The authenticity of the audit confirmation request issued by the appellant is not in dispute in view of those documents above, the appellant cannot possibly deny the same."

In its Written Submissions, the Defendant's sole line of attack on the Semenyih Project Claims was that it was not sufficiently pleaded and that the Plaintiff had failed to provide sufficient particulars of its claims even on the Court ordering it to do so on the Defendant's application. I reject these contentions.

I find that in paragraphs 7-9 of its Statement of Claim, the Plaintiff had pleaded to providing works and services to the Defendant for the Semenyih Project, had issued invoices to the Defendant for those works and services, and that there remained an amount of RM972,193.19 payable by the Defendant to the Plaintiff. I find that those details were sufficient for this Court and for Defendant to identify the Plaintiff's cause of action against it.

Though ideally the Plaintiff could have listed out the 28 invoices that it was basing that sum claimed on, falling short of ideal is not the line in the sand for allowing or dismissing a claim.

As for the Plaintiff's alleged failure to provide sufficient particulars of its claims, that was obviously something that had transpired at the interlocutory stage of the action, and should have been dealt with and remained there. Thus, if the Defendant believed that the Plaintiff had not sufficiently complied with the order for further and better particulars of its claim, then the Defendant should have taken that up there and not at the trial. Matters occurring at the interlocutory stage of an action are not ordinarily matters that the Court must again decide on at the trial. It was certainly not one of the issues that the parties had come to a consensus on to be decided at trial.

Based on the foregoing, I find that, on the balance of probabilities, the Plaintiff has successfully proven its entitlement to the sum of RM972,193.19 that it seeks from the Defendant. This Court's task now is to ascertain how much, if any, that claim is to be set-off or extinguished altogether by the Defendant's various counterclaims.

The UNITEN Project was for the construction of open lab facilities for Universiti Tenaga Nasional.

A company called Landasan Kapital (M) Sdn Bhd ("LKSB") had by a Letter of Award dated 21.12.2018 ("UNITEN Project LOA") appointed the Plaintiff as subcontractor to carry out site preparation and earthworks ("UNITEN Project Works") at the subcontract sum of RM2,773,620.00.

Paragraphs 9(a) and 10 of the "Fakta-Fakta Yang Dipersetujui "9. Selanjutnya, terdapat dua projek-projek pembinaan, iaitu "Projek UNITEN" dan "Projek Jinjang" yang telah dianugerahkan kepada Plaintif seperti berikut:

Menurut Surat Awad bertarikh 21.12.2018 Plaintif telah dianugerahkan Projek UNITEN oleh Landasan Kapital (M) Sdn Bhd; dan

Menurut tiga Surat-Surat Awad oleh Struktur Satria Sdn Bhd yang masing-masing bertarikh 4.05.2018, 16.07.2018 dan 7.01.2019, Plaintif telah dianugerahkan Projek Jinjang.

Setelah mendapat surat-surat awad yang dinyatakan dalam perenggan 9 di atas, Plaintif telah kemudiannya melantik Defendan untuk menjalankan kerja-kerja dalam Projek UNITEN dan Projek Jinjang."

This means that the Plaintiff concedes that it had engaged the Defendant to provide services to the Uniten Project.

In paragraph 4 of its Statement of Defence and Amended Counterclaim, the Defendant had expressly pleaded the eleven invoices that supported the Defendant's UNITEN Project Counterclaim for the sum of RM450,909.60 ("UNITEN Project Invoices").

At the trial, the Defendant had adduced copies of the UNITEN Project Invoices and other supporting documents, in the Bundle of Documents marked as "B2". The Defendant had further adduced and relied on a Customer Ledger, which named the Plaintiff as the customer ("Customer Ledger"). Ms. Yong Fei Ching (DW2), the Defendant's Accounts Manager, had testified that the Customer Ledger had been generated by the Defendant's internal system. She also testified that, although the said Customer Ledger did show that seven payments totaling RM2,430,000.00 had been received from the Plaintiff, the entries did not show to which of the Defendant's invoices those payments were accorded.

I find that there was no dispute by the Plaintiff that these Uniten Project Works were carried out. The Plaintiff essentially contends that these Uniten Project Invoices have been settled.

Since the Plaintiff contends that there eleven Uniten Project Invoices have been settled, the burden was on the Plaintiff to show how and when payment for those eleven invoices was made. That burden required the Plaintiff to adduce its own evidence to establish that, rather than just rely on the Defendant's Customer Ledger. Surely in making payment of that sum of RM2,430,000.00 to the Defendant there must have been some paper trail on the Plaintiff's side from the time each of the Uniten Project Invoices were received up until the times the seven payments amounting to RM2,430,000.00 were effected. But there were none.

It was certainly not for the Court to see those seven payments and make that conclusion that the Uniten Project Invoices were thereby paid up in full.

Based on the foregoing, I find that, on the balance of probabilities, the Defendant has successfully proven its entitlement to the sum of RM450,909.60 that it seeks from the Plaintiff under the UNITEN Project Invoices.

The employer for the Jinjang Project was Dewan Bandaraya Kuala Lumpur, and it was for "Cadangan Pemindahan Dan Penempatan Depoh Kenderaan Jabatan Kejuruteraan Mekanikal & Eletrikal Dan Setor Sitaan Jabatan Penguatkuasa Di Lot PT 27089, Lebuhraya Lingkaran Tengah 2, Kepong, Wilayah Persekutuan Kuala Lumpur (Reka Dan Bina) (2018/A042) Utk Tetuan Dewan Bandaraya Kuala Lumpur."

The documents suggest that DBKL had appointed a company called Struktur Satria Sdn Bhd ("SSSB") as the contractor for the Project, as SSSB had issued three letters of award to the Plaintiff as subcontractor for certain works on the Jinjang Project. They were:

A Letter of Award dated 4.5.2018 ("Jinjang Earthworks LOA") for earthworks ("Jinjang Earthworks") for the sum of RM1,264,800.00;

(ii) A Letter of Award dated 16.7.2018 ("Jinjang Drainage & Roadworks LOA") for earthworks ("Jinjang Drainage & Roadworks") for the sum of RM4,929,170.00; and

(iii) A Letter of Award dated 7.1.2019 ("Jinjang Nurseryworks LOA") for earthworks for nursery jinjang ("Jinjang Nurseryworks") for the sum of RM1,884,170.00.

According to the Defendant's pleaded counterclaim the following six invoices have not been settled in full by the Plaintiff: Jinjang Nurseryworks Invoices Invoice No:Invoice AmountUnpaid BalanceSum received19/07/34RM36,948.80RM10,844.72RM26,104.0819/08/11RM16,611.00RM16,611.00-Nil-19/08/13RM1,400.00RM1,400.00-Nil-19/12/26RM4,953.34RM4,953.34-Nil-RM33,809.06 Jinjang Earthworks & Jinjang Drainage & Roadworks Invoices Invoice No:Invoice AmountUnpaid BalanceSum received20/01/18RM300,979.80RM300,979.80-Nil-20/01/26RM 42,000.00RM 42,000.00-Nil-RM342,979.80

At the trial, the Defendant had adduced copies of all six Invoices and other supporting documents, in the Bundle of Documents marked as "B3".

One of the supporting documents at page 92 of B3 shows the partpayment of RM26,104.08 for Invoice No: 19/07/34

Based on paragraphs 9(a) and 10 of the "Fakta-Fakta Yang Dipersetujui" that I had referred to earlier, I find that the Plaintiff concedes that it had engaged the Defendant to provide services to the Jinjang Project.

In its Written Submissions, the Plaintiff does not at all take issue with any of the four Jinjang Nurseryworks Invoices. Instead, its focuses on the two Jinjang Earthworks & Jinjang Drainage & Roadworks Invoices.

I therefore find that, on the balance of probabilities, the Defendant has successfully proven its entitlement to the sum of RM33,809.06 that it seeks from the Plaintiff under the Jinjang Nurseryworks Invoices.

Moving on now the other two Invoices. Invoice No: 20/01/18 in the sum of RM300,979.80 is for "Crusher Run". But it actually mentions "Project: Layang-Layang" and not the Jinjang Project. Layang-Layang is a town in the District of Kluang, Johor, almost 300km away. I find that the Defendant has failed to adduce any sufficient evidence to substantiate that the reference to "Project: Layang-Layang" in Invoice No: 20/01/18 means the Jinjang Project.

In these circumstances, I am inclined to believe and accept the evidence of Madam Liew Lee Mei (PW1) that the five invoices that the Defendant had issued to it for "Crusher Run", all for the Jinjang Project, all paid-up and copies of which were adduced in the Bundle marked as "B4", were for those services for the Jinjang Project.

The Defendant relies on Progress Payment Certificate No: PPC 0006 dated 12.4.2019 that SSSB had issued to it, particularly Item 5 titled "Premix", which had certified $ 3 3, 7 8 0 \mathrm{m}^{2} $ as having been carried out. The Defendant argues that that correlates to the information in Invoice No: 20/01/18. However, I find that does not explain that reference to "Project: Layang-Layang"in Invoice No: 20/01/18.

I therefore find that, on the balance of probabilities, the Defendant has failed to prove its counterclaim for the sum of RM300,979.80 under Invoice No: 20/01/18.

Invoice No: 20/01/26 dated 31.1.2020 in the sum of RM42,000.00 is for Quantity Surveyor Fees for 14 months from June 2018 to August 2019.

However, as the Plaintiff had pointed out, it is not even mentioned in the Defendant's Statement of Account as at 29.2.2020, nor in the Defendant's subsequent Statement of Account as at 31.8.2021. It also does not appear in the Defendant's Confirmation of Balance emailed to the Plaintiff on 21.9.2021.

That claim for Quantity Surveyor Fees then appears for the first time in the Defendant's Statement of Account dated 4.4.2024, which I find to be somewhat of an afterthought.

I also find it exceedingly odd that, after 14 months of the Defendant allegedly paying fees to a Quantity Surveyor, the Defendant was not even able to adduce a single payment voucher, bank statement or receipt to evidence that engagement and that payment.

I therefore find that, on the balance of probabilities, the Defendant has failed to prove its counterclaim for the sum of RM42,000.00 under Invoice No: 20/01/26. Counterclaim for 50% profit sharing

This Counterclaim is pleaded in paragraphs 2, 5.6, 6 and 16.2 of its Statement of Defence And Amended Counterclaim, which may be summarized as follows:

Since around 2005, the Defendant had corroborated with the Plaintiff and/or one of the Plaintiff's related entities called Tuck Thean Enterprises ("TTE Enterprises") on many construction projects;

(ii) Whenever the Plaintiff was awarded a construction project as contractor and wanted to collaborate with the Defendant or TTE Enterprise, the Plaintiff would engage either of them to provide various services, including the rental of construction and heavy machinery, logistics, the supply of labour, supervisory services, supply of site materials, etc (collectively, "Defendant's Services");

(iii) In such instances, the Defendant would carry out the Defendant's Services, and the Plaintiff would issue all relevant progress claims and invoices, including for the Defendant's Services, to the party appointing it and, upon receiving payment, the Plaintiff would pay over to the Defendant its portion for the Defendant's Services based on the Defendant's invoices;

(iv) Alternatively, if the Defendant were awarded a construction project and wanted to collaborate with the Defendant or TTE Enterprises, then the Defendant would appoint either the Plaintiff or TTE Enterprises to carry out the project works;

On all of these projects on which the Defendant collaborated with either Plaintiff or TTE Enterprises, they would share the profits equally between them;

(vi) Despite the Plaintiff having received full payment from the employer for the works in the Jinjang Project, which to the best of the Defendant's knowledge is RM7,799,888.54, the Plaintiff has yet to pay the Defendant on those invoices or its 50% share of the profits;

(vii) The Defendant had then issued to the Plaintiff Invoice No: INV/20/01/27 for 50% share of the profits, which remain unpaid.

The relief the Defendant counterclaims against the Plaintiff for the 50% share of the profits from the Jinjang Project is reflected in the following paragraphs of the Statement of Defence And Amended Counterclaim: "18.2 The Plaintiff to provide an account of its profits in the Jinjang Project to the Defendant;

3 The Plaintiff to pay the Defendant the Plaintiff's 50% share of profits in the Jinjang Project to the Defendant;

4 Alternatively, general damages to be assessed;

6 Judgment interest at the rate of 5% per annum on the sums awarded in paragraphs 18.1 to 18.3 above calculated from the date of Judgment until full and final payment."

The question to be answered is whether there was in fact any agreement between the Plaintiff and the Defendant that they would share the profits from the construction projects that they had collaborated on, including in this instance the Jinjang Project. As the Defendant is making this allegation, it bears the burden of proving it.

In its Written Submissions, the Defendant contended that equal profit sharing arrangement between the Plaintiff and the Defendant is amply established by the following documents that it had adduced in the Bundle of Documents marked as "B3":

the Defendant's "Profit and Loss Statement from 1.08.2007 to 31.01.2008" in respect of the Saujana Subang project, which the Defendant states that the profit of RM267,066.90 was shared equally between the Defendant and Tuck Thean Enterprises;

(ii) the Defendant's "Account List" in respect of the Kajima-Shah Alam (Site 1) project, which the Defendant says shows that the Defendant had paid a sum of RM148,831.60 to Tuck Thean Enterprises as its 50% share of profits;

(iii) the Defendant's "Expenses List" for the Kajima-Shah Alam Site 2 project, which the Defendant says shows that profits totalling RM165,099.48 was shared equally between the Defendant and Tuck Thean Enterprises, with each receiving RM82,549.40;

(iv) Tuck Thean Enterprise's ledger in respect of the KK257 project, which the Defendant says shows profits totalling RM127,451.29 was split between Tuck Thean Enterprises and the Defendant, with RM63,725.64 stated as being payable to the Defendant;

handwritten annotations in documents relating to the the KK257 Project, which the Defendant says state that the final sums from October 2016 to December 2017, January 2018 to December 2018 and January 2019 to July 2019 were to be shared between Tuck Thean Enterprises and the Defendant; and

(vi) Tuck Thean Enterprise's "Profit and Loss Statement (Joint Venture)” updated on 27.5.2020 in respect of the Bangi Project, which the Defendant says state that the total profits as RM121,434.53 were being shared equally between Tuck Thean Enterprises and the Defendant.

The Defendant pleaded that this arrangement was reached many years ago between Mr. Wong Yeow Seng ("Wong") from the Defendant and Mr. Liew Yoon Choy ("Liew"), who was the principal of Tuck Thean Enterprise and that this arrangement had continued even after Liew had incorporated the Plaintiff in 2017.

At the trial Wong testified to this arrangement, but in the obvious absence of Liew who had passed away on 27.1.2025, just months before the trial. His widow, Madam Liew Lee Mei ("Madam Liew"), the Plaintiff's Account Manager, had testified for the Plaintiff. She denied any such profit sharing arrangement.

Having perused the documents and having carefully listened to the testimony of the witnesses, particularly Wong and Madam Liew, I am inclined to believe and therefore find that there was no such profit sharing arrangement between the Plaintiff and the Defendant.

Firstly, if the Defendant alleges that there was a 50-50 profit sharing arrangement between the Defendant and the Plaintiff for all of the construction projects that they had collaborated on, why was there not one for the Semenyih Project and the UNITEN Project? Wong did not proffer any satisfactory explanation for that.

Secondly, while the six documents hereinbefore mentioned that the Defendant had relied may have shown such an arrangement between the Defendant and Tuck Thean Enterprises, there was no evidence that that arrangement had continued with the Plaintiff.

In his evidence, Wong also alleged that there was a meeting between him and Liew on 23.6.2023 at Tuck Thean Enterprises at which Liew had asked for a 70% discount on the amounts that the Defendant owed the Plaintiff. Not only was this allegation crucial to the Defendants' case, but it was further not pleaded. I suppose Wong found it rather convenient to say that now that Liew was not around to rebut him. Having closely observed his demeanour in cross-examination, I found Wong to be an untruthful witness, and therefore reject his testimony, particularly on this alleged meeting on 23.6.2023 and on the alleged profit sharing arrangement.

The documents that the Defendant relies on are also all self-serving. Tuck Thean Enterprises' Profit and Loss Statement on the Bangi Project further expressly mentioned " (Joint Venture)". Thus, while I can accept that it would have been natural for there to have been some profit sharing arrangement where the Defendant and Tuck Thean Enterprises were engaged on a construction project on a joint-venture basis, the other documents the Defendant relies on do not evidence any joint-venture with Tuck Thean Enterprises, let alone with the Plaintiff. Therefore, no profit sharing arrangement.

In summary, my findings are these:

on the balance of probabilities, the Plaintiff has successfully proven its entitlement to the sum of RM972,193.19 that it seeks from the Defendant under the Semenyih Project Invoices;

(ii) on the balance of probabilities, the Defendant has successfully proven its entitlement to the sum of RM450,909.60 that it seeks from the Plaintiff under the UNITEN Project Invoices;

(iii) on the balance of probabilities, the Defendant has successfully proven its entitlement to the sum of RM33,809.06 that it seeks from the Plaintiff under the Jinjang Nurseryworks Invoices;

(iv) on the balance of probabilities, the Defendant has failed to prove its counterclaim for the sum of RM300,979.80 under Invoice No: 20/01/18;

on the balance of probabilities, the Defendant has failed to prove its counterclaim for the sum of RM42,000.00 under Invoice No: 20/01/26; and

(vi) on the balance of probabilities, the Defendant has failed to prove its counterclaim for the alleged profit sharing arrangement between the Defendant and the Plaintiff.

Judgment is therefore entered in favour of the Plaintiff against the Defendant for the sum of RM487,474.53, being the difference between the sums adjudged between them.

I further order that interest is to accrue on that sum of RM487,474.53 at 5% per annum from the date of this Judgment until full payment.

As for costs, I order the Defendant to pay to the Plaintiff costs of RM60,000.00 subject to an allocator, even taking into account that the Defendant had proven some but not all of its counterclaims. I had dismissed its counterclaim for RM2.5m under the alleged profitsharing arrangement. If not for that counterclaim, this action would have remained in the Sessions Court where it was originally filed to be heard and disposed of. The Plaintiff's claim was within the monetary jurisdiction of the Sessions Court. This case was transferred to the High Court purely because of that Defendant's counterclaim. There must surely be a price to pay for the High Court dismissing a counterclaim that was the sole cause of the whole case being transferred to the High Court for disposal after a full trial. Dated the $ 2 3 ^{r d} $ day of April 2026 Counsel Ms. Choong Jing Yen (Messrs. Keppy Wong & Associates) For TTE Construction Sdn Bhd Ms. Sovitra Sukahut (Messrs. Clinton Tan) For YHF Construction Sdn Bhd Cases Hasrat Usaha Sdn Bhd v Pati Sdn Bhd [2011] 3 MLJ 343 Sagujuta (Sabah) Sdn Bhd v Trane Malaysia Sales & Services Sdn Bhd [2014] 5 MLJ 535