Yeng Ying Sdn. Bhd. v LLC Infra Sdn Bhd (WA-22C-32-05/2022)

Pursuant to a Letter of Award dated 19.04.2019 (Ref: LLCISB/EDT3E/YYSB/LOA/19-04-2019) (“LA”), the Defendant had appointed the Plaintiff as the Sub-subcontractor to provide Earthwork 2 service (Earthwork Section 3.3 from Ch 680.000 to Ch 690.150) (“Works”) for a Project known as “Electrified Double Track Gemas to Johor Bahru Section 3 – Civil Works – Site Clearance and Embankment Earthwork With All Associated Works” (“Project”) with the Contract sum awarded being RM22,170,296.37 (“Contract Sum”).

The Works that the Plaintiff was to carry out under the LA comprised of various locations and chainages, which were set out in Appendix 1A of the LOA which are as follows:

Before this Court, the Plaintiff seeks to claim the sum of RM1,236,762.13 being the Retention Sum retained by the Defendant and the sum of RM943,137.69 being the work done by the Plaintiff.

The Defendant has however subsequently submitted a payment transfer slip which showed the sum of RM100,000.00 having been 3 paid to the Plaintiff, which reduced the amount claim to RM843,137.69.

The Plaintiff’s main witness (PW1) further reduced the amount claimed to RM834,788.49 (being the Claim for work done by the Plaintiff) and maintained the amount claimed for the retention sum at RM1,236,762.13. Thus, the total amount claimed by the Plaintiff accumulated to the sum of RM2,071,550.62.

The Defendant states that the dispute in this action concerns two primary issues: a. The Plaintiff’s incomplete and defective works; and, b. The Plaintiff’s delayed works.

The Defendant further alleges that it is not in dispute that the Plaintiff’s works are incomplete and that the question then that arises is the Plaintiff’s entitlement to payment for the work that it did carry out, and the retention sum under the Contract.

The Defendant therefore seeks to counter claim a sum of RM1,336,342.22 being the back charges which is allegedly for the work done for the Plaintiff. 4 [9] The Defendant further seeks to counter claim a sum of RM21,068,000.00 being the liquidated ascertained damages (“LAD”) as the Defendant claims that the Plaintiff has delayed in handling the work to the Defendant as per KAHD mentioned in the contract.

The Plaintiff has contended that the contract between the parties is provisional and not a lump sum contract, whereby the amount claimed by the Plaintiff is only for the amount of work done by the Plaintiff.

The Plaintiff further avers that at all material time, the Defendant has never stated that the Plaintiff has delivered the site to the Defendant late, and that the Defendant is aware that the handing over is on an “as is where is basis” as per the instruction given by the Defendant.

The Plaintiff also contends that it has via letter dated 21.12.2020 informed the Defendant that the Plaintiff can return to the site to perform work if the Defendant instructs it to do so.

It is also pleaded by the Plaintiff that if the Defendant avers that the Plaintiff has failed to complete its work:-

14.1 the Defendant should have asked the Plaintiff to return to the site to complete the work.

14.2 nevertheless, the Defendant never demanded the Plaintiff nor gave any specific instruction to ask the Plaintiff to return to the site. Defendant’s Reply to Defence to Counterclaim [14] The Defendant has denied that the sum of RM17,433,758.82 was the amount of work done by the Plaintiff. [15] The Defendant has also pleaded that the Plaintiff cannot on the one hand accept the sum of RM17,433,758.82 being the work done by the Plaintiff but on the other hand denied the back charge of RM1,336,342.22 as recorded in the Final Certificate No. 17. [16] It was further pleaded by the Defendant that the Plaintiff should be aware that Defendant has via a letter dated 16.11.2020 informed the Plaintiff that they failed to complete the work in the condition which is acceptable by the Defendant. Issues To Be Tried [17] The following were the agreed Issues To Be Tried in the matter herein:

17.1 Whether the Plaintiff has supplied, performed, completed and handed over the Contract Works as per the request of the Defendant or as per the requirement under the Contract or as per the agreement between the Parties or its representatives;

17.2 If not, whether the Defendant agreed to the hand over of the site and/or informed the Plaintiff that the hand over is not as per the Defendant’s request and/or as per the requirement under the Contract or as per the agreement between the Parties or its representatives;

17.3 Whether the work done by the Plaintiff amounts to RM17,433,758.82;

17.4 Whether the Defendant still owes RM2,179,899.82 (formed by the work done of RM834,788.49 and the retention sum of RM1,236,782.13) to the Plaintiff;

17.5 Whether the Defendant has the right to hold the Retention Sum of RM1,236,782.13 if a. Main Contractor’s final account has yet to be issued; or b. there are back charges and/or payment evidence which needs to be paid by the Plaintiff to the Defendant; or c. there are Works not certified to have been done by the Plaintiff.

17.6 Whether the Plaintiff has a claim for work not done by itself against the Defendant in this action;

17.7 If yes, what is the amount of work not completed by the Plaintiff which required other parties to be appointed by the Defendant and/or the Defendant itself to perform it;

17.8 If yes, whether the Defendant has rights to impose a set-off on the Plaintiff as costs borned by the Defendant;

17.9 Whether the Defendant has borned expenses of RM1,336,342.22 due to the Plaintiff’s failure in performing the work as per Defendant’s request or as per the contract agreed between the parties or its representatives;

17.10 Whether Plaintiff has delayed in handling over the site to the Defendant to allow the Defendant make a claim for Liquidated Ascertained Damages against the Plaintiff for a sum of RM21,068,000.00 or any portion of it;

17.11 Whether the Defendant has made the advance payment of RM100,000.00 to the Plaintiff. If Yes, whether the Defendant is entitled to claim for the said payment from the Plaintiff. Analysis & Findings Did The Defendant Agree To The Hand Over Of The Site [18] From an analysis of the Issues To Be Tried, I find that the core issue in the matter before me is whether there is an agreement to hand over incomplete works. [19] It is undisputed in the case before me that the Plaintiff did not complete the works under the Contract. [20] It is the Defendant’s case that the Plaintiff had failed to complete its works and that the works carried out by the Defendant contained defects. [21] To this the Plaintiff alleges that there was purportedly an agreement not to complete its works by the Defendant’s actions which led the Plaintiff to believe that the hand over was valid. [22] I have found that the Plaintiff is not the only sub-subcontractor working in the Project and that the project also involves other trades but I must state, even at this early stage of my decision, that the Plaintiff has an obligation to work in co-ordination with other sub-subcontractors appointed and or to interface other related activities for the execution of the erection of work to prevent any physical disruption to the overall construction work. This is pursuant to the Addendum to the LOA which states [23] The Plaintiff has also raised its concern that certain areas of work consists of obstruction and hindered the progress of the Plaintiff’s work. To this I find that the Plaintiff has under the LOA an obligation to ensure that it has inspected the site and to satisfy itself of the conditions of the site including any physical obstructions for which the LOA states as follows [24] I also note that the Plaintiff submits that it was the instruction given by DW5, Low Keng Mun, to hand over the Works on an as is where is basis to the Defendant. [25] I have found that there are various letters dated 25.7.2020, 28.8.2020 and 14.9.2020 from the Plaintiff to the Defendant for various hand over of contract works for different locations, which can be found at Bundle AL pages 10,13,15, 23, 26 ,27, 28, 32, 33 and 34 respectively which, from the evidence before me, the Defendant did not appear to challenge nor by its conduct denied such handover letters. [26] I have observed that the Plaintiff’s letter dated 3.3.2021 had stated that it had completed the works including that under Locations 14 and 16 as of 25.2.2021: [27] The above evidence would from my findings however contradict the Plaintiff’s assertions that the Defendant had agreed to any handover prior to 3.3.2021 when the Plaintiff’s own evidence, as indicated above, shows that the Plaintiff had only completed its works on 25.2.2021. [28] This Court had also noted that the Plaintiff had in the aforesaid letters relied on alleged joint surveys allegedly proving the Defendant’s acceptance of the Plaintiff’s handover of the Works. However, from the Plaintiff’s Statement of Reply and Defence to Counterclaim (“SOR”), it was pleaded in paragraph 10 (a) therein that the joint surveys were carried out with the Defendant as a basis to allege that the Plaintiff’s Works were completed. [29] Thus, I have examined the said joint surveys, and I find that the same had only evidenced at best that the Plaintiff carried out its works in terms of the earthworks up until a certain level. The evidence in the said surveys do not show the quality of work done or that the Plaintiff completed the works up until the level that ought to have been completed by the Plaintiff under the Contract. [30] The above can also be seen from the testimony of PW2, Mohd Hafizul bin Hashim, when questioned by the Court on the purpose of the joint survey and where PW2 then testified as seen in NOP stated 17.7.2024 at page 50 lines 5 to 27 Saya ada satu soalan sebelum saya lepaskan En Hafizul. Berdasarkan dokumen yang telah dirujuk kepada En Hafizul berkenaan dengan joint survey, ingat lagi? Ya. Ada isu point dan apa-apa yang tertulis di sana. Boleh sahkan tak dengan Mahkamah, adakah joint survey tersebut menunjukkan apa-apa defect? Kalau dilihat daripada dokumen itu sahaja. Defect tak boleh menunjukkan di joint survey. Jadi, tujuan joint survey ialah untuk? Untuk hand over benda yang tak ada defect. Yang tak ada defect? Tak ada defect. Dan yang mana kerja telah dijalankan? Dijalankan dengan sempurna. [31] I acknowledge the case of United Exploration (M) Sdn Bhd v IJM Corp Bhd [2011] 8 MLJ 161; [2010] MLJU 894, where the Court therein held the defendant had adduced evidence of having written to the plaintiff reminding them to take measures to move on with their work in order to avoid delay in completing the project but the plaintiff did not see it fit to reply to the letter or to express any disagreement. If there had never been any failure on the part of the plaintiff in carrying out the project, it was only reasonable to expect from it a prompt and vigorous denial. [32] I have also found that the Defendant’s witness, Suah Choo Heang (DW6) the project manager, had at the trial testified that he did not see a need to reply to the letter and admitted that the Defendant did not make any demand to the Plaintiff to come back to complete the Works upon its handover to the Defendant. The NOP states Ok. So, my question, my instruction is the Plaintiff is just a few kilometres away, and this handover is actually proposed and accepted between the parties, it’s a mutual agreement. Agree or disagree? Disagree. I suggest to you that at the point of time the Plaintiff is just slight kilometres away, you can at any time just tell the Plaintiff to come back and finish the work. Agree or disagree? Disagree. But, you never take any action to tell or convey the message to the Plaintiff that their work is not acceptable. Agree or disagree? Disagree. So, what have you done to tell the Plaintiff that come back to work, your work is incomplete? The work has been delayed so long, and I have been imposed penalty by my client with the amount of close to, possible between RM50,000 to RM100,000 per day. So, with the impact I’m facing, I have to finish the work as soon as possible, rather than still calling them back to finish the work. It will cause further delay. That means you never informed the Plaintiff, and you decided to do it yourself. I had to do it, not I decided to do it. I am compelled or forced to do it by myself to avoid further damage. Everyday I can’t afford the RM50,000 to RM100,000 penalty. [33] I also refer to the Court of Appeal case of David Wong Hong Leong v Noor Azman bin Adnan [1995] 4 CLJ 155 which is authority for the fact that 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. In delivering the judgement of the Appellate Court, Gopal Sri Ram JCA had stated “In this context, we recall to mind the following passage in the judgment of Edgar Joseph Jr. J. in Tan Cheng Hock v. Chan Thean Soo [1986] CLJU 42; [1986] 1 LNS 42[1987] 2 MLJ 479-487: In Wiedemann v. Walpole [1891] 2 Q.B. 534, 537 an action for breach of promise of marriage, it was held, that the mere fact that the defendant did not answer letters written to him by the plaintiff in which she stated that he had promised to marry her, was no evidence corroborating the plaintiff's testimony in support of such promise. Lord Esher M.R., in his judgment, remarked, Here, we have only to see whether the mere fact of not answering the letters, with nothing else for us to consider is any evidence in corroboration of the promise.' (Emphasis added). Earlier, in his judgment, he said, 'Now there are cases - business and mercantile cases in which the Courts have taken notice that, in the ordinary course of business, if one man of business states in a letter to another that he has agreed to do certain things, the person who receives that letter must answer it if he means to dispute the fact that he did so agree. (The emphasis is ours.)” [34] Applying the aforesaid cases to the matter before me, I find that the evidence before this Court shows that there was a letter from the Defendant to the Plaintiff dated 16.11.2020 at page 310 of Bundle T stating that the Works for Locations 14,15 and 17 (Phase 1) were incomplete and that the Plaintiff had “..intentionally demobolized all your machinery and manpower…without finishing the Works as per specification and to the Client acceptable conditions.” [35] The aforesaid letter appears to have been issued a few months after the Plaintiff started to allegedly hand over the Works i.e 10.7.2020 and the same was verified by DW6, Suah Choo Heang, the Defendant’s Project Manager in his testimony before the Court. [36] There is however also before this Court a letter dated 21.12.2020 from the Plaintiff to the Defendant, as per Bundle AL page 51, where the Plaintiff had expressly stated inter alia that they “…disagree on the words of ‘Non Completion of Works’ due to mutual agreement from both parties during handing over stage” and stated that this was “..an afterthought action…” as well as “..we have not yet demobilize our machinery and manpower…..but we are proceeding with the second stage work before Renggan Viaduct…” [37] From the trial, it appears that the above letter was not replied to by the Defendant. However, on a balance of probabilities and the facts before this Court, I do hold that there is before me only sufficient evidence to show that the handover of the Works from the Plaintiff to the Defendant was requested upon but that the same did not necessarily amount to an agreed handover. [38] In any event, the handover of the Works to the Defendant based on the Plaintiff’s pleaded case, as seen in its Reply to the Amended Defence and Defence to the Amended Counter Claim is that there was a failure by the Defendant to give clear instructions which led to the handover of the Works to the Defendant and not that there was a mutual agreement to handover. This again flies against the evidence relied on by the Plaintiff at the trial. [39] After looking at the totality of the evidence before me, I further find that only Location 13 was properly handed over on 23.1.2020 by the Plaintiff where the Plaintiff submitted the Inspection Checkpoint Forms, ref no.: CRJGR-SIPY-ICF-INF-S3.3-QAL-ALL-0002, dated 20.1.2020 , refer to Bundle AD pages 7 to 12 ref no. CRJGR-SIPY-ICF-S3.3-QAL-ALL-0004, dated 22.1.2020, Bundle AD pages 13 to 16, and ref no. CRJGR-SIPY-ICF-S3.3-QAL-ALL-00005 dated 22.1.2020 as per Bundle AD pages 17 to 24. [40] The documents above are in my considered view proof that the Plaintiff recognised the proper procedure to handover the works by submitting the requisite inspection checkpoint forms and conducting a joint inspection with the Main Subcontractor. I have consequently observed that these requirements were not observed by the Plaintiff for any of the other Locations. [41] I also hold that the Plaintiff did not deny that as of 3.3.2021 i.e the date the Plaintiff wrote in to apply for the issuance of the certificate of practical completion, the alleged practical completion had not been achieved, see the testimony of Chai Ying Kong (PW1) under cross examination which can be found in the Notes of Proceedings (NOP) at enclosure 159 page 56 lines 2 to 29 where PW 1 testified: Jadi, bila dalam surat 03/03/2021 di sini, En Chai atau Plaintif meminta certificate of practical completion. Apa yang dinyatakan atau direpresentasikan oleh pihak Plaintif adalah bahawa practical completion telah pun dicapai ya. Ya. Tetapi En Chai bersetuju bahawa practical completion untuk seluruh skop kerja pihak Plaintif sebenarnya tidak dicapai setakat 03/03/2021. Sebab kita sudah siap kerja. Jawab soalan. Kita tak ada kerja yang perlu buat. Practical completion untuk seluruh skop kerja pihak Plaintif belum lagi disiapkan setakat 03/03/2021. Saya mahu kata skop kerja saya yang boleh saya siapkan pada masa itu sudah disiapkan. Jadi, saya menyatakan kepada En Chai bahawa setakat 03/03/2021, practical completion belum lagi dicapai. Untuk skop kerja Plaintif yang boleh dicapai telah disiapkan, sebab tak ada arahan baru daripada Defendan untuk kita buat kerja lagi. Mesin semua ada – [42] During the trial the Plaintiff claims that it was constrained to handover the Site as a result of inter alia other drainage works ongoing that obstructed the Plaintiff from completing the Works. From the facts before me I find that the Works site is about 10km long as seen from a copy of the site plan as found in Bundle AM page 163. [43] I have further observed that the Works site is such that works can proceed concurrently at several locations, as one location does not depend on the completion of another. This is explained by DW6 in his evidence at the NOP at enclosure 160 pages 292 to 293 lines 34 to 10 Can I just get you to explain, when you say works should proceed concurrently, what did you mean? Can you just explain? Yes, for example, if the drainage work is ongoing, so you don’t have to finish all the drainage work then only you start the sand or sub-ballast work. For example if the drainage work finish 50%, then you can just continue the, no, the 50m then you can just start the 50m and coordinating with each other to complete the work concurrently. Alright. And when you say the major works were the Plaintiff’s, what did you mean? Yes. Because before the drainage work start, the Plaintiff have to get ready the platform for the Plaintiff work to start as well. Without the Plaintiff’s work ready, the drainage work cannot start. So everything is related to the Plaintiff. So it’s some sort of the coordinating. Without the Plaintiff, the drainage work also cannot start. [44] I therefore hold that the Plaintiff’s remedy in such a situation would be to seek an extension of time. [45] It is my further decision that it is no excuse under law for the Plaintiff to abandon the balance of the Works, as the Plaintiff could have, but did not, apply for EOT. [46] Looking at the case as a whole, I therefore accept that the other respective chainages could only be handed over to the Defendant Main Subcontractor on the dates as follows, which are as recorded in the respective Quality Inspection Checkpoint Forms which I have examined and confirmed and with the dates in bold and underlined representing the last dates the Works for each Location could be regarded as being handed over and the KAHD being attained:- Chainage Location KAHD eventually achieved by Defendant Quality Control Inspection Checkpoint Form 1.1. CH684975 – CH685450 14 1.9.2020 S3.3-QAL-ALL-00009 [Bundle AD / pp 76 – 94] Chainage Location KAHD eventually achieved by Defendant Quality Control Inspection Checkpoint Form 1.2. CH687050 – CH687400 14 6.10.2020 S3.3-QAL-ALL-00013 [Bundle AD / pp 124 – 144]

1.3. CH685450 – CH687050 14 25.9.2020 S3.3-QAL-ALL-00012 [Bundle AD / pp 108 – 123]

1.4. CH689825 – CH689875 15 2.12.2020 S3.3-QAL-ALL-00017 [Bundle AD / pp 175 – 182]

1.5. CH689875 – CH690000 15 2.12.2020 S3.3-QAL-ALL-00018 [Bundle AD / pp 183 – 190]

1.6. CH679800 – CH680250 16 3.3.2021 S3.3-QAL-ALL-00033 [Bundle AD / pp 245 – 255]

1.7. CH681850 – CH682225 16 3.11.2020 S3.3-QAL-ALL-00014 [Bundle AD / pp 145 – 157] Chainage Location KAHD eventually achieved by Defendant Quality Control Inspection Checkpoint Form 1.8. CH683000 – CH683400 16 23.9.2020 S3.3-QAL-ALL-00011 [Bundle AD / pp 95 – 107]

1.9. CH683400 – CH683750 16 1.9.2020 S3.3-QAL-ALL-00008 [Bundle AD / pp 57 – 75]

1.10. CH679400 – CH679800 16 9.12.2020 S3.3-QAL-ALL-00020 [Bundle AD / pp 195 – 204]

1.11. CH680925 – CH681625 16 10.5.2021 S3.3-QAL-ALL-00037 [Bundle AD / pp 270 – 277]

1.12. CH677560 – CH678550 16 11.1.2021 S3.3-QAL-ALL-00024 [Bundle AD / pp 212 – 219] Chainage Location KAHD eventually achieved by Defendant Quality Control Inspection Checkpoint Form 1.13. CH682575 – CH683000 16 12.11.2020 S3.3-QAL-ALL-00015 [Bundle AD / pp 158 – 174]

1.14. CH684125 – CH684625 16 13.8.2020 S3.3-QAL-ALL-00006 [Bundle AD / pp 25 – 41]

1.15. CH683750 – CH684125 16 19.8.2020 S3.3-QAL-ALL-00007 [Bundle AD / pp 42 – 56]

1.16. CH677200 – CH677250 16 21.1.2021 S3.3-QAL-ALL-00027 [Bundle AD / pp 220 – 227]

1.17. CH677250 – CH677512 16 21.1.2021 S3.3-QAL-ALL-00028 [Bundle AD / pp 228 – 235] Chainage Location KAHD eventually achieved by Defendant Quality Control Inspection Checkpoint Form 1.18. CH677512 – CH677560 16 21.1.2021 S3.3-QAL-ALL-00029 [Bundle AD / pp 236 – 243]

1.19. CH678615 – CH679400 16 22.12.2020 S3.3-QAL-ALL-00022 [Bundle AD / pp 205 – 211]

1.20. CH679800 – CH680250 16 3.3.2021 S3.3-QAL-ALL-00033 [AD / pp 245 – 255]

1.21. CH682225 – CH682575 16 27.4.2021 S3.3-QAL-ALL-00034 [Bundle AD / pp 256 – 260]

1.22. CH680250 – CH 681075 16 27.5.2021 S3.3-QAL-ALL-00031 [Bundle AD / pp 292 – 300]

1.23. CH680250 – CH681075 16 27.5.2021 S3.3-QAL-ALL-00038 [Bundle AD / pp 278 – 284] Chainage Location KAHD eventually achieved by Defendant Quality Control Inspection Checkpoint Form 1.24. CH 680250 – CH681075 16 27.5.2021 S3.3-QAL-ALL-00040 [Bundle AD / pp 292 – 300]

1.25. CH681625 – CH681850 16 28.4.2021 S3.3-QAL-ALL-00035 [Bundle AD / pp 261 – 269]

1.26. CH0 – CH475 (CS10) 17 5.12.2020 S3.3-QAL-ALL-00019 [Bundle AD / pp 191 – 194] Sub Ballast Works [47] I also find that it is the Plaintiff’s scope of works to carry out sub-ballast works, which is provided for under the Bill of Quantities under the Contract and which the Plaintiff agrees. This can be seen from the testimony of PW1 in the NOP page 16 at enclosure 159 at lines 29 to 35 Saya merujuk kepada muka surat 26 BQ ini. Item 8.1, 8.2 dan 8.3. Supply and lay sand blanket to specifications, supply and lay of geotextile material to specifications, non-woven geotextile separators, dan supply and lay of sub-ballast to specifications. En Chai boleh sahkan bahawa kesemua ini adalah dalam skop kerja pihak Plaintif? Ya, betul. [48] I find that the sub ballast works as agreed to be done by the Plaintiff were not carried out in full as evidenced by the Plaintiff’s letters dated: a. 25.7.2020 (ending ref: 1261) wherein no sub-ballast works are recorded in the survey data, see Bundle AM page 52 to 61; and, b. 25.7.2020 (ending ref: 1259) wherein no sub-ballast works are recorded in the survey data, see Bundle AM page 62 to 64. Defects in The Works [49] I also hold on a balance of probabilities, that the Defendant has proven that there are defects in the Plaintiff’s Works. Such evidence, in my finding has not been contradicted by the Plaintiff. The supporting documents for the same can be found in Location Particulars of Defects Documents 13 The Defendant had to carry out the rectification works in respect of the sub ballast (please refer to

Quality Control Inspection Checkpoint Form dated 22.1.2020 Location Particulars of Defects Documents IDO EDT3E/YYSB/050 dated 25.2.2021 [Bundle AH / pp 79 – 80], and EDT3E/YYSB/057A dated 25.4.2022 [Bundle AJ / p 6]) [Bundle AD / pp 17 – 24]

Photographs [Bundle AE / pp 98 – 105]

Daily Report Summary prepared by the Defendant [Bundle AD / pp 306 – 307]

Resources Summary prepared by the Defendant [Bundle AD / p 308] 14 Incomplete works containing defects (please refer IDO ref. no.: i. EDT3E/YYSB/022b dated 25.7.2020 [Bundle AF / pp 16 – 18]; ii. EDT3E/YYSB/023b dated 25.8.2020

Defendant’s letter ref. no.: LLCI/EDT3E/YY/20- 005, dated 16.11.2020 [Bundle T / pp 310 – 315].

Photographs [Bundle AE / pp 106 – 124].

Daily record of works carried out at Location Particulars of Defects Documents [Bundle AF / pp 154 – 155]; iii. EDT3E/YYSB/024b dated 25.9.2020 [Bundle AF / pp 199 – 200]; iv. EDT3E/YYSB/028b dated 25.7.2020 [Bundle AF / pp 216 – 219]; v. EDT3E/YYSB/29b dated 25.8.2020 [Bundle AG / pp 18 – 24]; vi. EDT3E/YYSB/030b dated 25.9.2020 [Bundle AG / pp 274 – 275]; vii. EDT3E/YYSB/035a (Revised) dated 25.4.2022 [Bundle AG / p 275]; and, Location 14 [Bundle AD / pp 309 – 331]. Location Particulars of Defects Documents viii. EDT3E/YYSB/056A (Revised) dated 25.4.2022 [Bundle AK / pp 236 – 238]) 15 & 17 Sub Ballast rectification (refer to IDO ref. no: i. EDT3E/YYSB/037A dated 25.12.2020 [Bundle AH / pp 12 – 13]; ii. EDT3E/YYSB/038A dated 25.12.2020 [Bundle AH / pp 24 – 25]; iii. EDT3E/YYSB/041A dated 25.2.2021 [Bundle AH / pp 132 – 133]; iv. EDT3E/YYSB/042A dated 25.1.2021 [Bundle AH / pp 151 – 152];

Defendant’s letter ref. no.: LLCI/EDT3E/YY/20- 005, dated 16.11.2020 [Bundle T / pp 310 – 315].

Photographs [Bundle AE / pp 125 – 128; 133].

Record of sub-ballast work prepared by Low Chin Chong [Bundle AD / pp 332 – 335].

Summary of sub-ballast work prepared by Low Chin Chong Location Particulars of Defects Documents v. EDT3E/YYSB/046 (Revised) dated 25.4.2022) [Bundle AI / p 191] [Bundle AE / p 336]. 16 Over-excavation at J25 road and repair of shotcrete and rip rap (refer to IDO ref. EDT3E/YYSB/047 dated 25.2.2021 [Bundle AH / p 174]) Defendant’s letter ref. LLCI/EDT3E/YY-20- 001, dated 29.6.2020 [Bundle O / pp 350 – 356] 16 Rectification works at road J25 by the Defendant (IDO EDT3E/YYSB/048 (Revised) dated 25.4.2022 [Bundle AH / pp 294 – 302]) Photographs [Bundle AE / pp 126 – 132] [50] Hence, I agree with the Defendant’s submission that the Plaintiff’s remedy where there is a material breach by the Defendant, is to terminate the Contract and not to abandon the Works. As the Plaintiff did not terminate for breach, the Plaintiff was obliged to proceed to complete the Works in accordance with its contractual obligation. [51] It is thus my decision that the Defendant was constrained to carry out the remaining works which were left in an uncompleted state. [52] I therefore accept the cases of Godell Parking Sdn Bhd v Majlis Bandaraya Petaling Jaya [2018] MLJU 1766, and Kah Seng Construction Sdn. Bhd. v Selsin Development Sdn. Bhd. [1996] MLJU 359 to support the Plaintiff’s aforesaid contention. Variation Of Works [53] I further hold that completion of anything less than the contracted scope of Works must amount to a variation of the Contract. In the circumstances the Plaintiff is bound by the terms of the Main Subcontract pursuant to Clause 20.1 of the LOA. [54] Consequently, I make reference to Clause 18 of the Main Subcontract at Bundle D page 21, between Syarikat Pembinaan Yeoh Tiong Lay and the Defendant which defines the term ‘variation’ as “… any alteration or modification of the design, quality or quantity…”: [55] I therefore also hold that the Plaintiff’s partial completion of the Works is a modification to the quantity of the Works and falls within the definition of a variation under Clause 18 of the Main Subcontract. [56] I further find that pursuant to Clause 10 of the LOA, any variation must be made in writing on the instruction of the Defendant (as the Subcontractor), see Bundle B pages 8 to 9, which states as follows:- [57] I have in the proceedings before me observed that the Plaintiff has not adduced such a variation or any proof of a written agreement for the Plaintiff to be allowed to vary its Works which will enable it to prematurely abandon its Works. [58] The Federal Court in Kuala Dimensi Sdn Bhd v Port Kelang Authority [2025] CLJU 142, has held that the validity of a variation can be subject to challenge if there is no fresh consideration. In that case the Apex Court had held “[91] It is trite that in contract law, the validity of a variation can be subject to challenge if there is no such consideration. The issue of variation of contract and the requirement of consideration is extensively explained by the Court of Appeal in 555 Film Sdn Bhd & Ors v Adamancy Construction Sdn Bhd [2023] 1 LNS 884. For a variation to be contractually binding, all of the legal requirements to form a valid contract, including the provision of valuable consideration by each party. [92] The general rule is that past consideration is not sufficient consideration and traditionally, a promise to perform an existing obligation will not be good consideration (see Wigan v Edwards

47 ALJR 586 at 594). In other words, the performance of existing contractual obligations under the original contract is not to be taken as sufficient consideration for any subsequent variation. This means, fresh consideration in addition to that already owing will need to be provided for the variation to be binding.” [59] Therefore, based on the Court of Appeal case of Sritharan Naidu a/l Sundara Rajoo v Dr. Gengatharan @ Jeganathan a/l Venkatesan & Anor [2019] MLJU 1088, such an agreement is not binding in law given the lack of consideration. [60] I also find that it has not been proven in the proceedings herein that there has been a variation of the contract for the Plaintiff to allegedly be allowed to complete the Works up to the level that it is able to and I therefore hold that the Defendant’s obligations under the Main Subcontract remains as the Plaintiff’s failure to complete its Works under the LOA would adversely affect the Defendant’s ability to meet its obligations to the Main Subcontractor. Breach Of LOA [61] I further hold that it is the Plaintiff’s obligation to meet the KAHDs under the LOA pursuant to Clause 20.1 of the LOA. The failure by the Plaintiff to meet these stipulated completion dates as per the LOA and such dates as extended pursuant to the Plaintiff’s applications for EOT is a breach of the LOA. [62] Accordingly, I hold that the Defendant therefore is to be entitled to the costs that it had to incur in order to ensure that the KAHDs under the LOA could be met. [63] It is thus my decision that the Defendant was constrained to carry out the remaining works which were left in an uncompleted state and that as the Plaintiff having decided not to terminate the Contract, the Plaintiff must be obliged to see it through. [64] In the circumstances, any failure to complete the Plaintiff’s Works under the Contract is a breach. See the “Law and Practice: Construction Contracts, Fourth Edition, Volume 1 (2012) by the learned author Chow Kok Fong where he had written that

4.1. … A breach of contract is essentially a less than complete performance of a contractual obligation in a situation for which no legal excuse for the performance exists. Accordingly, a party is liable to answer for any of the obligations which he has failed to discharge completely and it is no defence to an action for incomplete performance that the party has done everything that can be reasonably undertaken if the end result falls short of that required by the contract. The Plaintiff’s Claim For RM2,071,570.62 & Plaintiff’s Pleaded Case [65] Before this Court, the Plaintiff’s claim the sum of RM2,071,570.62 [RM1,236,782.13 (being the retention sum) and RM834,788.49 (being the Claim for work done by the Plaintiff). [66] I have observed that based on the Plaintiff’s Statement of Claim, which consists of 9 paragraphs, the Plaintiff’s pleaded claim is only based on Certificate No.17, for RM17,433,758.82. See paragraph 6 of the Plaintiff’s Statement of Claim which states as follows:- [67] There is nothing from a perusal of the entire Plaintiff’s Statement of Claim which states that Certificate No.17 applied the wrong rates. [68] Upon examination of Clause 3.3 of the Letter of Award, I find that it is expressly stated that “the rate entered against each item in the Bill of Quantities shall be fixed and binding throughout the contract period and shall not subject to any change on account of whatever reason or cause…” . [69] I have also observed that pursuant to clause 10 of the Letter of Award, it is stated that “The value of valuation shall be determined in accordance with applicable provisions for valuation (except Subcontract rates) laid down in the Subcontract”. [70] From the evidence before this Court, the Draft Certificate No. 17 for the period ending 25 April 2022, had shown that the final contract sum is RM17,433,758.82, which included a sum of RM591,933.26 being the work done by the Defendant. [71] Based on the testimony of PW1, Chai Ying Koi, this figure is based on the Defendant’s own draft Certificate No. 17 and that PW1 in his testimony in Court himself testified and confirmed that Progress Claim 24 is not the basis of the Plaintiff’s claim and that the Plaintiff’s only basis of its claim is Certificate No. 17. [72] I thus agree with counsel for the Defendant that the Plaintiff must therefore necessarily be taken to have accepted the Defendant’s certification and measurement of actual work done, as it is the Defendant who prepared Certificate No. 17. [73] I must categorically state that it was rather difficult and confusing for this Court from the Plaintiff’s submissions as to how they had arrived at the sum of RM2,071,570.61 as the work done being owed to them by the Defendant when the Plaintiff’s Statement of Claim had not averred to this figure or given any particulars whatsoever as to how the sum was derived. [74] The Plaintiff submits that after deducting the amount of work allegedly done by Defendant on behalf of the Plaintiff, the balance amount is the sum of RM16,841,825.56 was agreed by the Defendant as being the amount of work done performed by the Plaintiff. [75] This the Plaintiff submits can be seen from the testimony of DW1, Low Chin Chong, the commercial manager of the Defendant, where under cross examination he had testified as follows: DW1 : [Notes of Proceeding-Part 2, Page 26] Can I refer to Bundle AF, page 14? The printing on the hardcopy is quite small, you can refer to the screen. If I may read what is stated here is “in the event, if back charge at RM1.336 million is unsuccessful, that the value of work done in draft final account No.17 shall reduce value. Total amount RM591,933.26 is not carried out by YYSB.” So, based on this indication, I put it to you that in the final certificate No.17, what has been added is just RM591,933.26. Correct? Yes, correct. The rest would be the amount of work done that agreed by the Defendant and certified by the Defendant. Yes. So, I’ll need you to do some calculation. Maybe I can borrow you the calculator. So, allow me to cross-reference your Certificate No.17, which is at Bundle AE, page 171. Yes. So, in Bundle AE, 171, is the gross value of work done and material on site that Defendant’s position is this has include the sum which remarked in the table we referred earlier at page 14 of Bundle AF. The sum of RM591,933.26 need to be deducted from RM17,000 in this certificate No.17. Correct? Correct. So, you may calculate now. I propose to you that the work done, certified and agreed by the Plaintiff, the work done, certified by the Defendant being the work done of Plaintiff based on this draft shall be at RM16,841,825.56. RM16 million? 16,841,825.56. You can agree or disagree. Can I have the computer version for AF, page 14? I agree. So, this is work done, certified by the Defendant as the Plaintiff work done? Yes. Nothing to do the work on behalf, correct? None. [76] I have noted that from the document entitled “Certificate No. 17 (Draft Final Account)” for the period ending 25.4.2022 from the Defendant, which can be found at Page 171, bundle AE, the total amount previously certified by the Defendant is stated to be the sum of RM15,263,859.00 but there is no evidence from a reading of Certificate No. 17 to show that the entirety of the RM17,433,758.82 is the value of the Plaintiff’s works which have been done. [77] In fact, I hold that the Plaintiff cannot overlook the sum of RM1,336,342.22 of set-offs in the same Certificate No. 17. The Plaintiff has to be bound by what is contained in Certificate No. 17 and I accept the Defendant’s contention that the Plaintiff cannot cherry-pick isolated portions of the same in its favour. On this I rely on the case of Hap Sheng Timber Enterprise Sdn Bhd V Timberwell Plywood Sdn Bhd [2003] MLJU 657. [78] The Plaintiff’s submissions now appear to me to be an attempt to challenge the rates applied in Certificate No.17 which departs from their pleaded case. [79] The Plaintiff now further submits before this Court that from the Plaintiff’s claim herein for the sum of RM2,071,570.62 [RM1,236,782.13 (being the retention sum) and RM834,788.49 (being the Claim for work done by the Plaintiff), the Defendant has agreed that RM1,487,966.56 (inclusive retention sum - 5% of the Contract Value) is due for the Plaintiff’s work done. [80] The Plaintiff also submits that the work done which remains in dispute includes the following:- a. Items in which quantity of work done are agreed but Defendant unilaterally departed from the rate provided in Bills of Quantities (BQ) or market rate and certify lower rate in certification b. Items of which the rate is as per BQ but quantity of work done is in disputed [81] In support of the above I note that the Plaintiff had referred to and relied on inter alia the following

Item 4.1.2 : (i.e Cert 17 item 38.1):

(ii) the Quality Control Inspection Checklist dated 26.06.2019

(iii) Item 4.3.8 (ie. Cert 17 item 7.8 & 40): Additional Cut at Stock Pile Area

(iv) VO2 item 6: Excavate Unsuitable Material (Cert 17, item 38.3, 38.4, 39.1, 39.2)

item 6.1: JMS/EDT/Surplus_Material_GUOCERA at Bundle AN, Page 263, item 6.2: JMS/EDT/Surplus_Material/02 item 6.3: JMS/EDT/Surplus_Material/03 item 6.4: JMS/EDT/Excavation/02 referring to item 4.1 of BQ.

(vi) Progress Claims no. 6, 8, 9 and 24 [82] I hold that all of the above was never the basis of the Plaintiff’s pleaded claim and the Plaintiff must be precluded from raising such claims or arguments. It is settled law, that the Plaintiff should not be allowed to depart from its pleaded case and therefore this Court cannot entertain such claims. See: The Carbon Co Sdn Bhd & Anor v Ng Lee Hoon (conducting under ‘Forest Wood Flooring’) [2017] 4 MLJ 791 and the Federal Court in Samuel Naik Siang Ting v Public Bank Bhd [2015] 6 MLJ 1. [83] I would also quote the case of RHB Bank Bhd (substituting Kwong Yik Bank Bhd) v Kwan Chew Holdings Sdn Bhd [2010] 2 MLJ 188; [2010] 1 CLJ 665 which was cited in The Carbon Co Sdn Bhd & Anor (supra) where the Federal Court held as follows: “[35] On this, we would like to add that it is not the duty of the court to invent or create a cause of action or a defence under the guise of doing justice for the parties lest it be accused of being biased towards one against the other. The parties should know best as to what they want and it is not for the court to pursue a cavalier approach to solving their dispute by inventing or creating cause or causes of action which were not pleaded in the first place. Such activism by the court must be discouraged otherwise the court would be accused of making laws rather than applying them to a given set of facts.” [84] In the circumstances I agree with learned counsel for the Defendant that the Defendant is not required to meet or rebut or challenge a case premised on anything which is not pleaded. [85] The Federal Court in KEP Mohamed Ali V KEP Mohamed Ismail [1981] 2 MLJ 10 has made it clear that:- “As one of the objects of modern pleadings is to prevent surprise, we cannot for one moment think that the defendant was taken by surprise. To condemn a party on a ground of which no material facts have been pleaded may be as great a denial of justice as to condemn him on a ground on which his evidence has been improperly excluded”. Alleged Discounts [86] It has been submitted to this Court by the Plaintiff that in the progress of finalizing the final account, the Defendant had on multiple occasion requested the Plaintiff to give some discount, resulting in the final claim being amended a number of times in attempt to match the Defendant’s request. [87] Once again with respect, this issue was not raised in the Plaintiff’s Statement of Claim and cannot therefore be conceded by this Court. The Plaintiff is bound by the four corners of its Statement of Claim and cannot be allowed to transgress outside the said four corners. Defendant’s Counter Claim [88] With regards the Defendant’s counter claim, the Defendant contends that as the Plaintiff’s said Works remain incomplete, the Defendant has incurred the sum of RM1,336,342.22 as set-off against the Plaintiff, as recorded in Certificate No.17 under the item entitled “Less: Deduction for this Certificate”. Back Charges /Set Offs [89] It is contended by the Plaintiff that the Defendant ought to have given an instruction to the Plaintiff to return to site , as can be seen in the testimony of PW1-WS(A) at page 10 / Q&A 15, and that this was the purported reason for the Defendant not being entitled to its claims for set-off. [90] The Defendant on the other hand contends that there is no requirement under the Contract that notice must be given to the Plaintiff to require it to return to complete any incomplete works. [91] The Plaintiff had relied on the case of KC Leong Holdings Sdn Bhd v Datin Moh Bee Ling [2015] 7 MLJ 10, where it was held that “55.1 the Defendant should have given a list of defects to the Plaintiff as held in the aforesaid case where Lim Chong Fong J ( as he then was) held …the requirement of proof of damages as held by the court of appeal in Sony Electronics (M) Sdn Bhd v Direct Interest Sdn Bhd [2007] 2 MLJ 229; [2007] 2 AMR 229. In building contract litigation, I have expected the complainant to carefully sieve through and tabulate each and every relevant defect and the costs of remedying them systematically preferably also in a Scott schedule.”

55.2 it is incumbent on the Defendant to satisfy the court that they have mitigated their damages 55.3 the Defendant should appoint “rectification contractors” and avoid any exorbitant rectification contractors [92] From the facts before me, I find that the said case of KC Leong Holdings Sdn Bhd (supra) concerned only the issue of defects but was not one of incomplete works and therefore I choose not to follow the aforesaid case based on the factual circumstances before me. [93] In any event, I have observed that pursuant to Clause 7.3 of the LOA, the Plaintiff is contractually obliged to indemnify the Defendant from any costs, expenses, losses, damages and other liabilities incurred and the Defendant has the rights to set off from any of the payment certificates such costs, expenses, losses, damages and any other liability suffered or incurred by the Defendant [94] I also note that delay damages that would be payable to the Main Subcontractor by the Defendant ranges from rates of RM1,000.00 a day for Location 17 to a hefty RM59,000.00 a day for Location 16 and I therefore find the Defendant was justified in proceeding to carry out the works as soon as possible on the Plaintiff’s behalf. [95] In the circumsatnces, I therefore hold that the Defendant is entitled to make its claim for set off and back charges. [96] It is further submitted by the Defendant that DW1 has explained that the back-charges would be set out in Internal Delivery Orders (“IDO”) sent to the Plaintiff vide several emails. I have examined the said respective IDO’s but I do not find from the IDO’s itself that they were acknowledged as received or confirmed as agreed by the Plaintiff or that the Plaintiff was aware of such decision to back charge. [97] At the course of the trial, a document found at page 207 of Bundle AF was referred to which appears to this Court to contain evidence which was altered with the same being as follows:- [98] After examining the said document mentioned above, I find, on a balance of probabilities, that the signature and the wording “YY” are from two different pens. [99] Be that as it may, my analysis of the entire evidence before me shows that prior to the Plaintiff abandoning its works or seeking to handover its works from 10.7.2020 there is no evidence of the Plaintiff’s scope of works being undertaken by other contractors apart from the Plaintiff. [100] In any event, the Defendant thus submits that it has incurred the sum of RM1,336,342.22 as set-off against the Plaintiff which is the amount recorded in Certificate No.17 on which the Plaintiff now relies. [101] As to how the sum of RM1,336,342.22 was arrived at, the Plaintiff claims the sum consists of the Defendant sourcing material and workers in order to carry out the remaining works and the Defendant relies on the testimony of DW1 in his Witness Statement at Q&A 4 where he testified as follows: Particulars of Work Sums (RM) Particulars as Annexed to these Submissions Engaging Bentara Gemilang Industries Sdn Bhd for the supply of quarry material 460,896.78 Annexure F Engaging Gagasan Rhema Sdn Bhd for shotcrete and guniting work 88,611.47 Annexure G Engaging Sim Kee San in respect of backhoe and roller compactor rental 46,848.99

1.27.

1.28.

1.29.

1.30. Engaging Hong Sheng Earthworks Construction in respect of backhoe rental 22,014.13

Annexure I

Engaging W&S Hardware Sdn Bhd in respect of excavator and motorgrader rental 107,870.57

Annexure J

Defendant’s own plant and labour 529,154.77

Annexure K

Engaging Mekar Beringin Sdn Bhd in respect of diesel supply Costs included in the respective IDO tabulated in Annexure H, I, J, K and O

Annexure L

Engaging Hock Chuang Petroleum Sdn Bhd in respect of diesel supply Costs included in the respective IDO tabulated in

H, I, J, K and O

Engaging STM Builder Sdn Bhd for supply of general workers 19,164.18

Annexure N

Engaging Sim Soon Heng for backhoe rental 10,321.33

Annexure O

Engaging Tencate Geosynthetics Malaysia Sdn Bhd 51,460.00 Annexure P Total (RM) 1,336,342.22 [102] I have gone through the rather voluminous documents provided and save for the evidence at item 1.32 of the above said table being the Defendant’s own plant and labour where there are no specific invoices and payment vouchers to corroborate the same, I am however satisfied from the documents provided that the Defendant did on a balance of probabilities incur the rest of the amounts of back charges as a calculation and analysis of the amounts shows that

102.1 an amount of RM460,896.78 less RM857.74 for IDO No. EDT3E/YYSB/041A dated 25.2.2021 which was not before this Court were paid to Bentara Gemilang Industries Sdn Bhd (“Bentara”) for the supply of quarry material from the documentary evidence before this Court based on Delivery Orders from Bentara , Invoices produced and Payment Vouchers in support thereof

102.2 for back charges in respect of Gagasan Rhema for shotcrete and guniting work a sum of RM109,969.74 based on Payments certified in respect of rectification works to slope collapse and the invoice and remittance advice in support thereof

102.3 re payments in engaging Sim Kee San in respect of backhoe and roller compactor rental is the sum of RM46,848.99 based on the payment vouchers and transactions lip enclosed

102.4 for engaging Hong Sheng Earthworks Construction in respect of backhoe rental with fuel, an amount of RM22,014.13 which is supported by the Invoices and proof payment via payment vouchers enclosed

102.5 with respect of the engagement of W&S Hardware Sdn Bhd for excavator and motorgrader rental, the sum of RM107,870.57 based on the invoices and payment vouchers enclosed

102.6 for engaging Mekar Beringin Sdn Bhd in respect of diesel supply based on the respective delivery orders, invoices, payment vouchers and remittance advice, the amount of RM1,515,177.30 48 102.7 in respect of the engagement of Hock Chuang Petroleum Sdn Bhd for diesel supply, the sum of RM51,979.20 which are supported by the delivery order, payment voucher and remittance advice provided

102.8 for engaging STM Builder Sdn Bhd for supply of general workers based the amount of RM 19,164.18 on the supporting payment voucher and remittance advice

102.9 to the engagement of Sim Soon Heng for backhoe rental, the sum of RM10,321.33 as per the payment vouchers and remittance advice provided to this Court

102.10 for engaging Tencate Geosynthetics Malaysia Sdn Bhd, the sum of RM51,460.00 for materials used for the Plaintiff’s scope of works carried out by the Defendant based on the Defendant’s records, delivery orders, invoices, payment vouchers and remittance advice. [103] For the record, I am aware of the Plaintiff asserting that some of the Key Access Handover Dates (KAHD) precede the date of the LOA, but with due respect, I am not satisfied that the said contention has been proven by the Plaintiff to this Court’s satisfaction and my reasons for the same will be stated forthwith in the later part of my grounds herein. The LOA & The Liquidated And Ascertained Damages Claim [104] As to the Defendant’s Liquidated And Ascertained Damages Claim, I find that the Key Access Handover Dates (“KAHD”) and completion dates as set out in Appendix 1A of the LOA are the dates which the Plaintiff were required to meet for the purposes of the LOA, as well as the dates which the Defendant is required to meet under the Main Subcontract. [105] The revised completion dates and KAHD in respect of the different locations in of the Works are as set out as follows: Annexure C A/1 Key Access Handover Date Sub Secti on Location Chainage Key Access Handover Date Contractu al Date EOT 1 EOT 2 EOT 3 EOT 4 3.3. Location 13 687450 to 688750 (CS8 &

15.

2.2019 31.12.2019 30.4.2020

3.3. Location 14 684425 to 687450 27.5.2019 31.12.2019 30.4.2020 30.7.2020

3.3. Location 15 688650 to 690200 22.5.2019 31.12.2019 30.4.2020 30.7.2020

3.3. Location 16 677200 to 684750 10.7.2019 31.12.2019 30.4.2020 30.7.2020

3.3. Location 17 690075 to 690200 (CS10)

30.5.2019 31.12.2019 30.4.2020 30.7.2020 15.9.2020 K/2 Date for Completion (Balance of Sub Contract Works / Stage 2) Sub Section Location Chaina ge Date for Completion Contractu al Date EOT 5 EOT 6 EOT 7 EOT 8 EOT 9 EOT 10 3.3. Location 13 687450 to 688750

15.

2.2019 22.11.2020 15.1.2021 30.3.2021

3.3. Location 14 684425 to 687450 27.5.2019

30.5.2021 30.8.2021 15.9.2021 3.3. Location 15 688650 to 690200 6.9.2019

30.5.2021 30.8.2021 15.9.2021 [106] From the facts before me, these KAHDs have been extended pursuant to the Plaintiff’s applications for EOT, of which I have found that the Plaintiff had applied for 10 extensions of time (“EOT”) which were confirmed by DW6 from various letters dating from 26.7.2019 to 6.9.2021 wherein EOT was extended to 15.9.2021. [107] I note that Clause 5.1 of the LOA sets out the documents forming part of the Contract which includes the appendices annexed to the LOA and the documents referred to in Bundle B, pages 5 – 6, which includes amongst others the Bill of Quantities (BQ), the Schedule of Rates and the Work Programme. [108] Pursuant to Clause 7.3 and 17.1 of the Letter of Award, the rights under these clauses to claim for LAD shall only be triggered if the Defendant has suffered losses and damages as shown in Bundle B page 13, as follows: [109] From Clause 17 of the LOA here, it is clear that the said clause expressly states that the LAD payable “…shall be a genuine value of losses and damages suffered by the Defendant...” . [110] I further find that Appendix 1A sets outs the differing LAD sums payable for each Location. These are found at Bundle B, at page 33 which are [111] I have also found that pursuant to Clause 20.1 of the LOA, as seen in Bundle B page 14, the terms of the Main Subcontract apply mutatis mutandis to the LOA. [112] I have thus in the course of coming to my decision considered the Plaintiff’s submission, which consists of inter alia:-

some of the KAHD lapsed before parties entered into contract and no new dates were informed to the Plaintiff about the KAHD;

at all material of time, the Plaintiff never delayed in handing over the site to the Defendant and that the handover is as per the mutual agreement between the Defendant;

the Defendant never issued any notice and/or drew the Plaintiff’s attention to the KAHD and recorded its intention to charge for LAD against the Plaintiff until this suit;

the Defendant has failed to provide the work programme as per clause 7.1 to the Plaintiff in indicating the progress and targets of the Subcontract; and

the Defendant never indicated to the Plaintiff, in writing, that the Plaintiff has caused Defendant delay beyond the EOT granted. [113] I however reject the aforesaid Plaintiff’s submissions as being misconceived as

113.1 prior notice need not to be given as per clause 32.5 of the Main Sub Contract Agreement 113.2 the only requirements giving rise to the Defendant’s entitlement to LADs are that:

113.3 there is a delay caused by the Plaintiff; and 113.4 the Plaintiff has failed to achieve the handover by the KAHD [114] Consequently, as I have found that the Plaintiff had belatedly handover the Works, the Defendant is contractually entitled to claim for liquidated damages pursuant to Clause 17 of the LOA. [115] For the record, I have noted that pursuant to Clause 32.6 of the Main Subcontract, as seen in Bundle B page 13 (which applies mutatis mutandis pursuant to Clause 20.1 of the LOA) contractually provides that there is no need for actual damage or loss to be proven by the Plaintiff. The said Clause 32.6 of the Main Subcontract is as follows:- [116] Consequently, the LADs which the Defendant claims is in the sum of RM21,068,000.00, a breakdown of which are as follows:- [117] After carefully analysing the said details above and making my calculations of the said dates and figures, I hereby allow the said LAD claim for RM 21,068,000.00 based on the total of 579 numbers of days delayed and the different LAD rates as specified above for each respective location and chainage respectively. Retention Sums [118] Pursuant to Clause 9.6 and Part 8 of Schedule A therein of the Contract, as referred to in Bundle B, pages 7,8 &16, the amount of retention sum to be held shall be ten percent (10%) to maximum five per cent (5)) of the Sub-subcontract sum or the subsequent adjusted Sub-Subcontract Sum or Final sub-subcontract Sum, whichever is higher. [119] Under Part 9 of Schedule A therein of the Contract it is expressly stated that 50% of the retention sum shall be released upon N o . Location Chainage LAD (RM rate/Day as provided under Appendix 1A of the LOA) Revised Completi on Date (KAHD) Plaintiff Handove r / surrend er Date Handover to Main Subcontr actor Date (KAHD) No. of days in delay LAD amount 1 14 684425 to 687450 24,000.00 30.7.2020 8.9.2020 6.10.2020 69 (30.7.2020 to 6.10.2020) 1,656,000.00 2 15 688650 to 690200 12,000.00 30.7.2020

2.12.2020 126 (30.7.2020 to 2.12.2020) 1,512,000.00 3 16 677200 to 684750 59,000.00 30.7.2020 14.9.202 0 27.5.2021 302 (30.7.2020 to 27.5.2021) 17,818,000.00 4 17 690075 to 690200 (CS10) 1,000.00 15.9.2020

5.12.2020 82 (15.9.2020 to 5.12.2020) 82,000.00 Total (RM) 21,068,000.00 21,068,000.00 finalization and certification of final Sub-subcontract Works and the remaining balance 50% shall be released upon 30 days after the issuance of Final Account under the Main Subcontract (Contract between the Defendant and YTL). [120] This Court has observed that the Plaintiff is relying on the Interim Payment Certificate No. 15 and Interim Payment Certificate No. 16 issued by the Defendant to the Plaintiff, which can be seen at Pages 167 & 169 of Bundle AE, where it is alleged that the Defendant has fixed the retention sum at RM1,236,782.13. [121] Before this Court, the Plaintiff has prayed for the release of 50% retention sum on the basis that this Court has the value of finalization and certification of final Sub-subcontract Works. For the remaining 50%, the Plaintiff prays for the court’s intervention in allowing the Plaintiff’s claim by giving an order to release within 30 days upon the delivery of the judgement after taken the period of delay in payment of this case into account. [122] In this respect I am of the view that what has to be initially determined before the Court can consider the release of the retention sum is the actual Contract Sum which is to be based on the quantity of actual work done. [123] This is due to the fact that pursuant to Clause 3.1 of the LOA, the total sub-subcontract sum (i.e. the Contract Sum) is RM22,170,296.37 (“Contract Sum”) is subject to remeasurement based on actual quantity of work done as shown below [124] As the actual quantity or value of works has, on the facts, not been finalised, there can be no release of the retention sum currently pursuant to Clause 9.6 of the LOA read together with Part 9 of