Yesb Sdn Bhd v Barcon Industries Sdn Bhd (WA-12BC-3-03/2023)

by YESB Sdn Bhd (‘YESB’) against part of the decision by the learned Sessions Court Judge (‘SCJ’) on 17.3.2023 where the SCJ had –

dismissed YESB’s claim for general damages, punitive damages and/ or exemplary damages, interest and solicitor-client costs in the sum of RM100,000.00; and

(ii) allowed the counterclaim by Barcon Industries Sdn Bhd (‘Barcon’) against YESB for liquidated and ascertained damages (‘LAD’) at the rate of RM1,000.00 per day from 20.11.2017 to 4.9.2019 with interest at the rate of 5% per annum on the judgment sum calculated from the date of judgment until settlement and costs of RM20,000.00 to be paid by YESB to Barcon (‘Appeal No. 3’); and

by Barcon against the entire decision by the SCJ, except for the decision in allowing Barcon’s counterclaim (‘Appeal No. 5’). [2] After giving due consideration to the Record of Appeal and the oral and written submissions by the parties together with the clarifications by the learned counsels, I had –

allowed YESB’s appeal in Appeal No. 3; and

allowed Barcon’s appeal in Appeal No. 5 only in part, namely, in respect of granting the Order for YESB to submit the documents as stated in subparagraphs 16.2(a) and (e) in the Amended Defence and Counterclaim (‘D & CC’) to Barcon by 30.4.2024 (‘Documents Submission Order’). [3] Barcon is aggrieved by the decision of this Court in –

allowing YESB’s appeal;

making the Documents Submission Order; and

dismissing Barcon’s appeal in respect of the SCJ’s decision in allowing YESB’s claim for the sum of RM656,868.93 with interest and costs. [4] I now provide my full grounds of judgment for the decision in Appeal No. 3 and Appeal No. 5. SALIENT FACTS [5] YESB is a company incorporated in Malaysia with a registered address at No. 2-1A (Bilik 2), Jalan Pandan 2/1, Pandan Jaya, 55100 Kuala Lumpur. Its business address is at No. 7, Jalan YTN 3, Industri Desa Aman, 52200 Kuala Lumpur. YESB is a supplier of total solution in the field of mechanical and electrical engineering. [6] The Defendant is a company incorporated in Malaysia with its registered address at B-3-9, 3rd Floor, Block B, Megan Phileo Avenue, 12 Jalan Yap Kwan Seng, 50450 Kuala Lumpur and business address at 2, Jalan Jurubina U1/18, HICOM Glenmarie Industrial Park, 40150 Shah Alam, Selangor Darul Ehsan. The Defendant is a main contractor in the construction business. [7] Barcon was awarded with a contract to build a 3½ storey building with one mezzanine floor known as the “Audi 4S Sales and Service Gallery” on a piece of land in Shah Alam, Selangor. [8]

Ruang Pameran;

Ruang Pejabat;

Ruang Servis Kereta;

Ruang Setor;

Ruang Rehat;

Ruang TNB (Single Chamber);

Satu (1) unit Kebuk Sampah; dan

Satu (1) unit Pondok Pengawal Di Atas No. 22A, Persiaran Setia Dagang, Setia Alam, Seksyen U13, Mukim Bukit Raja, Daerah Petaling, 40170 Shah Alam, Selangor Darul Ehsan Untuk Tetuan Unipac Corporation Snd Bhd” (‘Project’). [9] The Original Contract Sum is RM1,271,981.90 and it does not include additional works or variation works. [10] Clause 3 of the LoA provides that the completion period shall follow the main contractor’s overall master program for the building works with the original completion date of 19.11.2017. YESB claimed that Barcon failed to complete the Project within the original completion date. [11] YESB also alleged that Barcon had instructed YESB to do additional works whereby these completed works had been verified and approved by the Consultant of the Project. [12] The final value of the Project is RM1,728,555.81. The parties agree that Barcon paid YESB the sum of RM1,071,686.88. YESB took the position that Barcon refused to pay the outstanding amount of RM665,868.93 for the certified works done, the additional works and the release of the retention sum. [13] Therefore, YESB claimed against Barcon for –

the sum of RM656,868.93;

interest at the rate of 5% per annum on the judgment sum, from the date of filing of the suit until full and final settlement;

general damages;

punitive damages and/ or exemplary damages;

solicitor and client costs of RM100,000.00;

costs; and

all the judgment sum and costs are to be paid within 14 days from the date of judgment. [14] On the other hand, Barcon contended that, among others, YESB had failed to complete the original works and the additional works and consequently, the Certificate of Practical Completion (‘CPC’) could not be issued and Barcon had suffered losses. [15] Specifically, Barcon alleged that YESB failed to complete the Electrical Works in accordance with the terms and specifications under the LoA by –

constructing or installing the Sub-Switch Board G-ISO on the Ground Floor escape staircase, labelled as “Stair-1”, without complying with the Consultant Engineer’s or Architect’s drawing and obtaining their approval;

unilaterally relocating the Sub-Switch Board G-ISO to the Ground Floor escape staircase and thereby creating a fire hazard which would render an escape, in the event of a fire, more difficult. It is also in breach of the provisions of the Uniform Building By-Laws 1984 and the Fire Services Act 1988 and it caused a delay in the issuance of the Fire Safety Certificate or approval by the Fire Department of Malaysia;

unilaterally relocating the standby generator without complying with the Consultant Engineer’s or Architect’s drawing and obtaining their approval; and

unilaterally increasing the length of the cables for the Electrical Works without following the agreed quantities provided in YESB’s tender submission dated 2.5.2017 or without obtaining approval from the Consultant Engineer or Architect. [16] Barcon pleaded that as a result of YESB’s failure to complete the Electrical Works pursuant to the terms and specifications under the LoA, Barcon delayed in handing over the Project site to Unipac Corporation (M) Sdn Bhd (‘Unipac’). [17] In addition, Barcon claimed that YESB failed to –

rectify the defective and non-compliant Electrical Works in the Project even though Barcon, the Consultant Engineer and Architect have repeatedly requested YESB to do so. As a result, Barcon has suffered loss and damages; and

hand over the following documents to Barcon although Barcon made repeated requests for the same:

the Operation & Maintenance Manuals;

(ii) the relevant “protection setting certificate”;

(iii) the earth testing results for lightning protection;

(iv) the duly marked or highlighted material standard catalogue;

the updated, amended and verified As-Built Drawings to include the on-site comments on 28.1.2019 and Engineer’s Instructions No. 27 with the schematic diagram; and

(vi) the amended site plan and layout plan of all floors, reflecting the actual work done at the Project site (collectively known as the “Guide and Manuals”) (hereinafter referred to as the ‘Said Documents’). As a result, YESB has caused a delay in the issuance of the CPC for the Project. The CPC was only issued on 4.9.2019. [18] The breakdown of loss and damages as pleaded by Barcon is as follows: No. Description Amount (RM)

Loss of rental due to late delivery of Project site. 300,000.00 2. Engagement of 3rd party service providers to make good all defective works 100,000.00 3. Costs incurred in relocating Sub-Switch Board G-ISO to its original intended location 270,000.00 Total 670,000.00 [19] Barcon counterclaimed against YESB for, among others, the following:

loss and damages in the sum of RM670,000.00;

LAD at the rate of RM1,000.00 per day from 20.11.2017 (original completion date) to 4.9.2019 (date of issuance of the CPC);

an order that YESB hands over the Said Documents to Barcon;

general damages;

aggravated and exemplary damages; and

pre-judgment and post-judgment interests. [20] On 17.3.2023, the SCJ adjudged that YESB’s claim against Barcon is allowed in the sum of RM656,868.93 with interest at the rate of 5% per annum from the date of judgment until settlement and costs of RM20,000.00. The SCJ also allowed Barcon’s counterclaim against YESB subject to LAD at the rate of RM1,000.00 per day from 20.11.2017 until 4.9.2019 with interest at the rate of 5% per annum from the date of judgment until settlement and costs of RM20,000.00. THE GROUNDS OF APPEAL [21] The grounds appeal in respect of Appeal No. 3 are that the SCJ had erred when she –

failed to consider that –

YESB is entitled to interest, general damages, punitive and/ or exemplary damages for the losses suffered by YESB due to Barcon’s breaches;

(ii) YESB is entitled to solicitor-client costs in the sum of RM100,000.00 incurred by YESB for the suit against Barcon; and

(iii) Barcon had instructed YESB to do additional works after the original completion date on 19.11.2017. All the instructions for the additional works came from Barcon and/ or the owner and was not due to YESB’s fault and/ or failure; and

allowed Barcon’s counterclaim for LAD, specifically, she failed to consider that –

the delay in completing the works was caused by Barcon’s own acts of prevention;

(ii) Barcon had failed and/ or did not fix a revised completion date after the original completion date of 19.11.2017 had lapsed;

(iii) the completion date has become at large due to Barcon’s failure to fix a revised completion date; and

(iv) the LoA did not provide any term for extension of time (‘EoT’) for Barcon to impose LAD. Therefore, the term on LAD is void and inapplicable and Barcon is not entitled to claim the same from YESB. [22] The grounds appeal in relation to Appeal No. 5 are that the SCJ had erred in fact and in law when she –

arrived at her decision by taking into account factors which are not relevant to the pleaded case before the court;

failed to take into account factors which are relevant to the pleaded cause of action;

allowed YESB’s claim of RM656,868.93 with interest at the rate of 5% per annum on the judgment sum and costs in the sum of RM20,000.00;

failed to appreciate that YESB deliberately withheld the As-Built Drawings, which YESB has contracted to deliver by virtue of

dismissed Barcon’s counterclaim for loss and damages in the sum of RM670,000.00. [23] Barcon contended that the SCJ had misdirected herself in law and misapprehended the facts which resulted in a miscarriage of justice. THE LEGAL PRINCIPLES [24] In submitting for YESB, Mr. CS Tan drew the attention of this Court to the following excerpt from the judgment in Nor Azlina Abdul Aziz v. Expert Project Management Sdn Bhd [2017] 5 CLJ 58 (CA): “[20] Nevertheless there are occasions when appellate interference is warranted and these occasions have been well set out in numerous cases. Some of these occasions are:

where the trial judge took into account irrelevant considerations and failed to give due weight to relevant considerations (see Director of Forestry, Sabah & Anor v. Mau Kam Tong & Ors And Another Appeal [2010] 3 CLJ 377; [2010] 3 MLJ 509);

where there was no proper evaluation of the evidence by the trial judge (see Lee Nyan Hon & Brothers Sdn Bhd v. Metro Charm Sdn Bhd [2009] 6 CLJ 626; [2009] 6 MLJ 1);

where the decision arrived at by the trial court was without judicial appreciation of the evidence (see Gan Yook Chin & Anor v. Lee Ing Chin & Ors [2004] 4 CLJ 309; [2005] 2 MLJ 1);

where a trial court has so fundamentally misdirected itself, that no reasonable court which had properly directed itself and asked the correct questions, would have arrived at the same conclusion (see Raja Lob Sharuddin Raja Ahmad Terzali & Ors v. Sri Seltra Sdn

where the trial judge was plainly wrong in arriving at his decision (see Lee Ing Chin & Ors v. Gan Yook Chin &

where a trial judge had so manifestly failed to derive proper benefit from the undoubted advantage of seeing and hearing witnesses at the trial, and in reaching his conclusion, has not properly analysed the entirety of the evidence which was given before him (see First Count Sdn Bhd v. Wang Yew Logging & Plantation Sdn Bhd [2013] 1 LNS 625; [2013] 4 MLJ 693 which followed the Privy Council case of Choo Kok Beng v. Choo Kok Hoe & Ors [1984] 1 LNS 40; [1984] 2 MLJ 165); and

where the judgment is based upon a wrong premise of fact or of law (see Perembun (M) Sdn Bhd v. Conlay Construction Sdn Bhd [2012] 1 LNS 1416; [2012] 4 MLJ 149).”. [25] In Zone Nine Sdn Bhd (previously known as GBH Ceramics Sdn Bhd) v Kien Wai Plumbing Construction [2024] MLJU 2399, this Court had referred to two judgments of the apex court which had enlightened on the legal principles of appellate intervention as follows: “[24] The learned counsel for the Defendant, Mr. Jeffry Wong cited the decision of the Federal Court in Gan Yook Chin & Anor v Lee Ing Chin & Ors [2004] 4 CLJ 309 for the central feature of appellate intervention, which is to determine whether the trial court had arrived at its finding correctly on the basis of the relevant law and established evidence. A decision by the trial court which was arrived at without judicial appreciation of the evidence may be set aside on appeal. In determining whether the trial judge’s appreciation of the evidence is sufficient or otherwise, the process of evaluation of the evidence by the trial judge i.e. the assessment of the evidence, the weight that was given to the evidence and the reasons for accepting or rejecting the whole or any part of the evidence, must be examined. … [26] Gan Yook Chin’s case was among the many case authorities discussed in Ng Hoo Kui & Anor v Wendy Tan Lee Peng (administratrix for the estate of Tan Ewe Kwang, deceased) & Ors [2020] 12 MLJ 67 (FC). It is settled law that an appellate court will not intervene with the decision of a trial court unless the trial court is shown to be plainly wrong in arriving at its decision. If, in arriving at the decision, it could not reasonably be explained or justified and the decision of the trial court is one which no reasonable judge could have reached, the decision is susceptible to appellate intervention. The plainly wrong test is not intended to be used by the appellate court as a means to substitute its own decision for that of the trial court on the facts [see pp 81 - 96 of the law report, especially paragraphs 62 - 78; see too, among others, Azman bin Mahmood & Anor v SJ Securities Sdn Bhd [2012] 6 MLJ 1 (FC, at paragraphs 24 and 25, p 12), Dream Property Sdn Bhd v Atlas Housing Sdn Bhd [2015] 2 MLJ 441 (FC, at paragraph 60, p 464) and MMC Oil & Gas Engineering Sdn Bhd v Tan Bock Kwee & Sons Sdn Bhd [2016] 2 MLJ 428 (CA, at paragraph 17, p 437)].”. [26] In determining each of the grounds of appeal as shall be elaborated in the succeeding part of this judgment, I was guided by the above mentioned legal principles. ANALYSIS & FINDINGS: GROUNDS OF APPEAL IN APPEAL NO. 3 1st Ground: Whether the SCJ had erred when she failed to consider that YESB is entitled to interest, general damages, punitive and/ or exemplary damages for the losses suffered by YESB due to Barcon’s breaches [27] The SCJ in her Grounds of Judgment (‘GoJ’) stated that: “[43] Walaupun Mahkamah membenarkan tuntutan Plaintif di subperenggan 22(a), 22(b) serta kos seperti dalam Pernyataan Tuntutan Terpinda, Mahkamah tidak membenarkan tuntutan Plaintif yang lain terutamanya mengenai tuntutan ganti rugi kerana Mahkamah mendapati pihak Plaintif gagal membuktikan apa-apa kerugian yang dialami oleh pihak Plaintif. Pihak Plaintif juga gagal mengemukakan keterangan dan dokumen sokongan bagi menyokong tuntutan ganti rugi oleh Plaintif.”. [28] I have scrutinized YESB’s written submissions after the trial before the SCJ and I find that, despite pleading the reliefs for general damages, punitive, exemplary damages and solicitor-client costs in the sum of RM100,000.00 in the Amended Statement of Claim (‘SoC’), YESB did not make any submissions regarding these reliefs. This was conceded by YESB’s counsel during the clarification session. Therefore, YEB must be taken to have abandoned these reliefs. [29] In Nur Farzana Aida Faizal & Ors v Kerajaan Malaysia [2022] 1 CLJ 692, the Court of Appeal affirmed the decision of the High Court in rejecting the plaintiff’s claims for cost of special needs, wheelchair and Botox Injection because the plaintiff failed to submit on these claims and as such it was deemed to have been abandoned. 2nd Ground: Whether the SCJ had erred when she failed to consider that YESB is entitled to solicitor-client costs in the sum of RM100,000.00 incurred by YESB for the suit against Barcon [30] The general rule is that the court is obliged to order party to party costs on a standard basis. O. 59, r. 23(1) of the Rules of Court 2012 (‘RC 2012’) provides on the “Scale of costs for trial in the Subordinate Courts” as follows: “Subject to the provisions hereunder, upon the conclusion and determination of any trial in the Subordinate Courts, the party entitled to costs shall, unless the Court otherwise orders, be paid fixed costs in accordance with the following scale: …”. [31] The SCJ allowed YESB’s claim for the sum of RM656,868.93. The award of costs is discretionary and for the sum of claim which was allowed, costs shall not exceed RM40,000.00. In the exercise of her discretion, the SCJ awarded party to party costs of RM20,000.00. The SCJ said: “[54] Bagi isu kos tindakan yang diputuskan oleh Mahkamah terhadap Plaintif dan Defendan, Mahkamah telah menggunakan budi bicara Mahkamah untuk memutuskan jumlah kos tersebut. Jika merujuk kepada peruntukkan mengenai skala kos bagi perbicaraan di Mahkamah Rendah dalam Aturan 59 Kaedah 23 KKM 2012, Mahkamah berhak mengarahkan kos dibayar pihak yang berhak kepada kos mengikut skala seperti yang disenaraikan dalam peruntukan ini. Jumlah kos yang diperintahkan oleh Mahkamah dalam kes ini adalah sangat munasabah jika dibandingkan dengan kelayakan yang pihak-pihak berjaya dalam tuntutan mereka.”. [32] Among the reliefs sought by YESB in the SoC are for both solicitor-client costs in the sum of RM100,000.00 and costs. [33] In YESB’s post-trial written submissions, no submission at all was made on the prayer for solicitor-client costs. No invoices issued by YESB’s solicitors to YESB were produced and nor was there any Bill of Costs with the itemised legal fees and disbursements. [34] During the clarification session, YESB’s counsel similarly conceded that no submission was made with regards to this matter. Therefore, YESB is deemed to have abandoned its claim for costs to be paid on solicitor-client basis. 3rd Ground: Whether the SCJ had erred when she failed to consider that Barcon had instructed YESB to do additional works after the original completion date on 19.11.2017 and that all the instructions for the additional works came from Barcon and/ or the owner and was not due to YESB’s fault and/ or failure [35] In the Amended SoC, YESB pleaded the following facts. [36] Based on instructions issued by Barcon, YESB had carried out the following additional works:

Additional works to the Main Contract due to omissions by Barcon Barcon had instructed YESB to do works in addition to the Main Contract in relation to LV Electrical Works (Package 2) and Internal Phone Works (Package 2) for the Project. YESB completed the additional works around 12.9.2018. The completion of the additional works was verified by Barcon in that –

for LV Electrical Works (Package 2), in the sum of RM44,557.10; and

(ii) for Internal Phone Works (Package 2), in the sum of RM6,828.00. Around September 2018, YESB had surrendered these additional works to Barcon and a Handover Checklist was verified by Barcon. During the performance of the additional electrical works and works for the Main Contract, YESB was also instructed to complete “kerja-kerja arahan perubahan”. These instructions were issued by Barcon’s Engineer and from the project site as well as oral instructions which were issued after YESB had handed over the works in relation to the Main Contract to Barcon.

Additional works before the Project was handed over Between the middle of June 217 and middle of June 2018, YESB had completed additional works following the instructions issued by Barcon’s Engineer and from the project site in the sum of RM287,552.30. These works were verified by Barcon.

Additional works after the Project was handed over YESB had completed additional works based on Barcon’s instructions, including oral instructions, in the sum of RM23,266.00 and these works were verified by Barcon. In addition, YESB had completed additional works based on the instructions issued by Barcon’s Engineer and from the project site in the sum of RM42,939.00. These works were similarly verified by Barcon. [37] Barcon has accepted the works carried out by YESB and the “Audi 4S Sales and Service Gallery” was in operation since around September 2018. [38] YESB had, from time to time, submitted its Progress Claim to Barcon. Barcon had made payment by setting off the amounts from the retention sum in accordance with the terms of the LoA. The total retention sum which was set off is RM119,872.84. [39] The value of works which were completed by YESB under the Main Contract, including additional works based on the variation instructions, oral instructions, site instructions and other instructions by Barcon, is RM1,728,555.81. [40] In her GoJ, the SCJ stated that: “[27] Selanjutnya, bagi tuntutan Plaintif bagi kerja-kerja tambahan, Defendan menyatakan bahawa kerja-kerja tambahan tersebut dilakukan di luar Kontrak tersebut, jika ada. Mana-mana pihak mempunyai pilihan untuk menolak permintaan di luar Kontrak tersebut sebaik sahaja ia diminta. [28] Bagi isu ini, defendan berhujah bahawa adalah terpulang kepada kedua-dua pihak untuk mewujudkan terma tambahan yang dijanjikan. Jika gagal, semua kerja-kerja yang dilakukan di atas Projek tersebut semestinya disifatkan sebagai sebahagian Projek tersebut dan tertakluk kepada terma-terma yang dijanjikan. [29] Oleh itu, tuntutan bayaran bagi apa yang dikatakan kerja-kerja tambahan adalah di luar terma-terma Kontrak tersebut. Oleh kerana tiada kontrak tambahan, atau kontrak selain daripada Kontrak tersebut, maka tuntutan Plaintif adalah terkhilaf. Hujahan kerja-kerja tambahan sekadar tambahan kepada kontrak bertulis dan ditegah di sisi undang-undang. … [37] Selanjutnya, bagi kerja-kerja tambahan, Plaintif berhujah bahawa Plaintif telah diarahkan untuk melakukan kerja-kerja tambahan dan/atau perubahan kerja-kerja yang telah ditentusahkan oleh perunding projek bahawan semua kerja-kerja tambahan/perubahan adalah telah disiapkan berdasarkan fakta-fakta seperti berikut:

Plaintif telah memajukan tuntutan untuk bayaran bagi kerja-kerja tambahan/perubahan kepada perunding projek Perunding Mekanikal dan Elektrikal projek daripada United Premier Consultants Sdn Bhd, iaitu Encik Chin Fui Lik untuk pengesahan dan kelulusannya;

Perunding Mekanikal dan Elektrikal projek daripada United Premier Consultants Sdn Bhd telah mengesahkan bahawa beliau telah meluluskan kerja-kerja tambahan/perubahan pada 19.3.2019 dan telah memberitahu Defendan, iaitu Cik Alice Chai, selaku Chief Operation Officernya, bahawa semua kerja-kerja tambahan telah diluluskan melalui suatu email bertarikh 19.3.2019; sila rujuk Ikatan B, mukasurat 41;

Dokumen/rekod yang berkenaan dengan kerja-kerja tambahan telah diluluskan oleh Perunding pada 19.3.2019 dengan tandatangan perunding tersebut;

P4 jelas menunjukkan bahawa kelulusan adalah dilakukan pada 19.3.2019 (Sila rujuk Ikatan C, mukasurat 221-370, yang ditandakan sebagai Eksibit P4); dan

Seterusnya, Perunding UPC telah mengesahkan lagi melalui suatu email bertarikh 20.9.2018 bahawa kerja-kerja ujian dan applikasi Plaintif telahpun siap dilakukan oleh Plaintif.”. [41] Barcon submitted that YESB claimed to have carried out additional works and that the LoA contains all the terms in relation to the Project. However, a scrutiny of the LoA and the Bundle of Documents would show that no reference is made to additional works. Therefore, YESB’s allegation of additional works is YESB’s own omissions which must be rectified according to the specifications as promised. [42] Basically, Barcon takes the position that YESB is not entitled to its claim for additional works done because the parties did not enter into a Supplemental or Collateral Agreement. [43] I have given careful consideration to the Record of Appeal and submissions of the parties in this appeal and in my view, there is overwhelming evidence that Barcon had instructed YESB to do additional works after the original completion date on 19.11.2017. [44] Firstly, there are the Consultant’s letters, e-mails and instructions where YESB was instructed to carry out additional works as follows:

e-mail dated 13.12.2017 from Barcon to YESB concerning additional works;

Engineer’s Instructions (‘EI’) from the Consulting Engineer (‘UPC’) to Barcon dated 26.1.2018, 9.4.2018 and 23.5.2018 to do additional/ variation Electrical and Telephone Services which involved YESB’s works;

(b)

EI from UPC to Barcon dated 9.8.2017, 20.3.2018, 26.3.2018,

3.2018 and 3.4.2018 to do additional/ variation works;

Site Memo issued by Unipac to Barcon dated 18.5.2018 to do additional/ variation works; and

e-mail dated 24.10.2018 from Unipac to the Consultant stating that Barcon has not completed its works at the material time. [45] The evidence shows that the additional works originated from Barcon or Unipac and was not due to YESB’s failure or fault. [46] Secondly, Barcon’s witness (SD1) had admitted during the trial as follows: “PP: You as the main con, do you agree that you have to comply to the consultant’s instruction? SD1: Yes, we have to. SD1 turut setuju bahawa memang ternyatanya dalam arahan perunding bahawa terdapat perubahan kerja pada skop asal Plaintif seperti berikut:- PP: Mr Yap, do you agree that this instruction note by the UPC, is about a medication works to be done at the training room? SD1: Yeah, it is what it say. Yes yes.”. [47] Clause 14 of the LoA provides for the “Sub-Contract Documents” in these terms: “The following letters and documents shall constitute the Sub-Contract Document • Tender document and drawings as prepared by Barcon Industries Sdn Bhd. • The DSC’s tender submission, via letter ref. YESB/TCL/17/334 Revised 03 dated 02nd May 2017 • The DSC’s tender submission, via letter ref. YESB/TCL/17/334 Revised 04 dated 11th May 2017 • This Letter of Award”. [48] Clause 15 of the LoA states that “In the event of discrepancies between the contents of this Letter of Award and the tender document or contract documents, the contents of this letter shall prevail.”. [49] There is no specific clause on additional or variation works in the LoA. Based on Clause 1 of the LoA on “Sub-Contract Sum”, Barcon appears to have anticipated that there may be variation works as it contains a statement to say that “The sub-contract sum shall not be subjected to any upward adjustment for any reasons whatsoever, except only in the event of variation instructions issued by the Engineer.”. [50] In the light of the evidence which was adduced at the trial, the SCJ was plainly wrong when she did not consider the evidence on the numerous instructions given by Barcon to YESB to do additional works after the completion date and the additional works which were performed by YESB as a result of these instructions. YESB, having carried out the additional works, is entitled to be paid for the same. [51] The 3rd Ground is therefore answered in the affirmative. 4th Ground: Whether the SCJ had erred when she allowed Barcon’s counterclaim for LAD [52] Based on paragraphs 7, 8 and 15A of the D & CC, Barcon pleaded that YESB failed to give the Said Documents to Barcon and this caused delay to the issuance of the CPC for the Project. Consequently, Barcon claimed LAD at the rate of RM1,000.00 per day for the delay from 20.11.2017 (original completion date) to 4.9.2019 (date of issuance of the CPC). [53] Clause 4 in the LoA on LAD reads as follows: “Time is of the essence to this contract and the DSC is to complete the works within the time stipulated hereinafter and/or within whatever extended period granted by the S.O. In accordance with the terms and conditions of the contract. Failing which Liquidated and Ascertained Damage would be imposed on the DSC at a rate of RM1,000.00 per calendar day.”. [54] In allowing Barcon’s counterclaim for LAD, the SCJ opined that: “[51] Dalam isu ini, Plaintif menyatakan bahawa Kontrak tersebut mengandungi segala syarat-syarat, adalah jelas Kontrak tersebut tidak mengandungi lanjutan masa sama sekali. Maka lanjutan masa bukan kehendak kedua-dua pihak. [52] Plaintif tidak pernah mengemukakan sebarang bukti permohonan lanjutan masa dan Plaintif juga tidak pernah menyoal mana-mana saksi Defendan bagi mengemukakan apa-apa bukti lanjutan masa. [53] Oleh yang demikian, Mahkamah membenarkan tuntutan balas Defendan bagi ganti rugi tetap dan tertentu pada kadar RM1,000 sehari dari 20.11.2017 hingga 4.9.2019 kerana menurut Perenggan 4 Surat Anugerah, tarikh siap yang dijanjikan adalah pada 19.11.2017. Walau bagaimanapun, CPC hanya di isukan pada 4.9.2019.”. [55] Akin to additional or variation works, there is no specific clause in the LoA on EoT. However, again, Barcon seems to have anticipated that there may be an EoT in view of the phrase “within whatever extended period granted by the S.O. in accordance with the terms and conditions of the contract” in Clause 4 of the LoA. However, there is no evidence that the Sub-Contract Documents contain any “terms and conditions” on the procedure for the application of an EoT and assessment of such an application by the S.O. [56] In Clause 7.2 of the LoA, the possibility of an EoT is addressed in these terms: “A detailed Main Contract Programme Incorporating the DSC’s works will form the basis of establishing performance on site. No claim for extension of contract time shall be allowed due to shortage or interruption on the supply of any materials, plant or labour for the Works.”. [57] Further, it is observed that there is no clause on the issuance of a Certificate of Non-Completion in the LoA. Based on Clause 4 of the LoA, LAD would be imposed once there is a failure by YESB to complete the works within the completion period or any extended period as may be granted by the S.O. [58] However, flowing from the findings and conclusions of the Court in respect of the 3rd Ground above, by instructing YESB to do additional works after the completion date and not providing for a revised completion date, time was set at large. In the circumstances, Barcon has no right to impose LAD on YESB. [59] The SCJ clearly failed to appreciate the evidence submitted before her which establishes that the delay in the issuance of the CPC was not caused solely by YESB, but rather there were acts of prevention by Barcon in instructing additional works to be carried out beyond the completion date. [60] The 4th Ground is similarly answered in the affirmative. ANALYSIS & FINDINGS: GROUNDS OF APPEAL IN APPEAL NO. 5 1st Ground: Whether the SCJ had erred in law and in fact when she allowed YESB’s claim of RM656,868.93 with interest at the rate of 5% per annum on the judgment sum and costs in the sum of RM20,000.00 [61] The computation for the claimed sum of RM656,868.93 was pleaded in paragraph 18 of the SoC. [62] The SCJ’s analysis of the issue on YESB’s entitlement to this claim is in the following excerpt from the GoJ: “[30] Bagi pihak Plaintif pula, Plaintif berhujah bahawa Plaintif telah menyiapkan kerja-kerjanya termasuk Kerja-kerja tersebut dan juga Kerja-kerja Tambahan. [31] Plaintif menyatakan bahawa ini adalah jelas kerana Defendan telah menerima Sijil Siap Kerja bertarikh 9.1.2019 (CPC) daripada perunding projek tersebut yang jelas menyatakan bahawa kerja-kerja Defendan telah siap dengan mencapai kepuasan perunding, termasuk Arkitek dan semua kerja-kerja projek tersebut telah diambilalih oleh Pemiliknya pada 28.12.2018. [32] Dalam CPC tersebut, arkitek telah menyatakan CPC tersebut adalah syarat (conditional) bahawa Defendan telah menyempurnakan semua kerja-kerjaldokumen yang dinyatakan di bawah kontrakllukisan dan dokumen dengan Pemilik/ Majikannya seperti yang berikut:

Full set of as built drawings, warranty letters & operation manual;

To rectify all defects aa per the defects list and subsequent verbal comments & instructions;

To rectify all M&E defects as per UPC’s comments/instruction;

To submit all documents for M&E works as per UPC’s comments/instruction. [33] Mahkamah mendapati dan bersetuju dengan hujahan Plaintif bahawa berdasarkan huraian di atas dengan adanya CPC, maka ianya jelas bahawa kerja-kerja Defendan, termasuk bahagian Plaintif telahpun disiapkan dan diambil alih (hand over) oleh Pemiliknya. [34] Apabila Arkitek mengeluarkan CPC, semua kerja di bawah kontrak dengan Defendan, termasuk kerja-kerja Plaintif di bawah sub-kontrak telah disiapkan. Kerja-kerja dengan kecacatan remeh adalah tidak menjejaskan kesiapan kerja-kerja sama sekali dan ia boleh dibaiki semasa Tempoh Tanggungan Libailiti. Dalam CPC tersebut, Arkitek telah menyatakan bahawa kerja-kerja telah diambil alih daripada Defendan meninggalkan kerja-kerja remeh/kecacatan yang boleh dibaiki semasa tempoh tanggungan kecacatan. [35] Seterusnya, Mahkamah juga mendapati bahawa Defendan telah mengesahkan dan/atau mengakui bahawa semua kerja Plaintif telah disiapkan pada 4.9.2019, iaitu tarikh CPC dikeluarkan. [36] Defendan juga telah menyewa premis tersebut lebih awal kepada Pihak Ketiga iaitu PSD3. Ini menunjukkan bahawa Defendan telah memperolehi kelulusan yang sepenuhnya sebelum menyewa kepada penyewanya. Maka, adalah tidak munasabah bahawa CPC kepada Plaintif adalah selewat 4.9.2019, iaitu 6 bulan selepas penyewa pindah masuk.”. [63] In paragraphs 4, 6 and 15 of the D & CC, Barcon pleaded that YESB had failed to complete the Electrical Works according to the terms and specifications in the LoA and to rectify the defective works and consequently, Barcon suffered losses and damages in the total amount of RM670,000.00. [64] However, in Barcon’s post-trial submissions, no submissions were made on the pleaded facts as above mentioned and the evidence which supports the quantum for losses and damages. [65] In this Court, Barcon argued that there is no proof of completion and the claim for RM656,868.93 is excessive and beyond the scope of the LoA because –

the pleaded contract sum as per the LoA is RM1,271,981.90 while the pleaded progress payment is RM1,071,686.88. The balance, if any, is therefore RM200,295.02. According to Barcon, the total outstanding sum as of Progress Claim No. 9 is as follows: “RM1,226,981.90 – RM1,071,686.88 = RM155,295.02 (RM6,409.84 for Progress Claim No. 1 to 8 and RM148,885.18 for Progress Claim No. 9)”; and

any claims in excess of RM200,295.02 must fall within the ambit of the LoA by way of a Supplementary or Collateral Agreement, of which none was pleaded. There can be no liability for a relief which was not pleaded. [66] I have considered the Record of Appeal and the parties’ submissions and I find that there is no appealable error on the part of the SCJ for the following reasons:

Proof of completion of the Works is by way of the issuance of the CPC by the Architect to Barcon on 9.1.2019 in these terms: “In accordance with our Standard Form of Contract, I/we certify that subject to the making good of any outstanding items, or of any defects, shrinkages and other faults which appear during the defects liability period. a the works were completed to our satisfaction and taken into possession on: 28th December 2018 and that the said defects liability period will end on: 28th June 2020 This … (CPC) is issued with condition of completion of all works / documents stated in contract drawings and document inclusive items highlighted below:- 1) Full set of as built drawings, warranty letters & operation manual (to refer enclosed checklist) 2) To rectify all defects as per our defect list and subsequent verbal comments & instructions. 3) To rectify all M&E defects as per UPC's comments / instruction. 4) To submit all documents for M&E works as per UPC's comments / instruction.”. Practical completion means that “the works have reached a state of readiness for use or occupation by the owner with exception of trivial omission or defects. This state of completion would thus allow for completion of minor outstanding works and rectification of defects which do not detract from the enjoyment or utility of the facility by the owner.” (see Construction Contracts Dictionary by Chow Kok Fong at pp 66 and 67; see too, Construction Law in Malaysia, Sweet 7 Maxwell Asia, 2012 by Sundra Rajoo and Harbans Singh KS at pp 446 - 454). Barcon’s works including YESB’s portion have therefore been completed and the Defect Liability Period (‘DLP’) had started on 28.12.2018 and ended on 28.6.2020.

Barcon had accepted YESB’s works without any objection or dispute at all. Based on the Handover Checklist which was verified by Barcon’s representative by the name of Nazhif on 12.9.2018, YESB’s original works were completed on that date. Mr. Yap Cheng Kee, Group Chief Executive Officer of Barcon (SD1) agreed that it looks like Barcon’s employee had signed the Handover Checklist. The Project Consultant had also confirmed vide an e-mail that YESB’s works were completed on 20.9.2018. At the trial, Barcon’s witness, the Director of Rimau International Sdn Bhd, the occupier and tenant of Audi Setia Alam 4S Showroom/ Centre (SD3) testified that they had moved into the building in March 2019.

YESB had produced evidence to support the quantum of its claim (the breakdown is tabulated in paragraph 18 of the SoC). As discussed earlier, YESB had been instructed to carry out additional works. The Project Consultant confirmed that all the additional works have been completed whereby YESB had submitted its claim for payment for additional works to Mr. Chin Fui Lik from UPC for confirmation and approval. The Consultant from UPC had, vide his e-mail dated 19.3.2019, confirmed that he had approved the additional works. The e-mail was sent to the Chief Operation Officer of Barcon, namely Ms. Alice Chai. The documents and records related to the additional works were approved by the Consultant on 19.3.2019 with the Consultant’s signature. The Consultant had further confirmed vide an e-mail dated 20.9.2018 that YESB had completed its testing and commissioning works.

In so far as YESB’s claim for retention sum is concerned, Clause 6 of the LoA provides that: “6. Payment Terms and Retention Sum Progress claim shall be submitted monthly in accordance with the terms and conditions specified in the Tender Documents. Period for honouring progress claim certificate issued by SO shall be 30 days. The mode of payment as follows: • 10% retention will be hold on all the certificates. •

7.5% upon architect’s Certificate of Practical Completion. •

2.5% upon completion of 18 months defects liability periods.” The SCJ dealt with this matter in the GoJ as shown below: “[40] Plaintif menuntut pulangan balik Wang Tahanan sebanyak RM119,872.84 seperti yang dinyatakan dalam PC-9. Walaubagaimanapun, Defendan telah mengaku bahawa Defendan telah menolak RM122,698.19 sebagai Wang Tahanan tanpa apa-apa asas sama sekali. Oleh yang demikian, Defendan hendaklah memulangkan Wang Tahanan yang telah dipegang sebanyak RM122,698.19 tersebut. [41] Defendan seterusnya telah memberikan CPC-nya pada tarikh 4.9.2019. Dalam apa-apa keadaan, wang tahanan tersebut adalah wajib dipulangkan mengikut terma-terma dalam Surat Anugerah tersebut. Oleh kerana Defendan telah mengaku bahawa Wang Tahanan RM122,698.19 telah ditolak, maka ianya hendaklah dipulangkan.”. The CPC was issued on 4.9.2019. Hence, 7.5% of the retention sum is to be released. There is no error by the SCJ in her findings on this issue.

It is evident from Barcon’s written submissions after the trial that it only raised the argument pertaining to Clause 16 of the LoA i.e. non-submission of the As-Built Drawings and Operation & Maintenance Manuals. There were no submissions on the accuracy of the quantum of claim or the facts as pleaded in paragraphs 4, 6 and 15 of the D & CC. 2nd Ground: Whether the SCJ had erred in fact and in law when she failed to appreciate that YESB deliberately withheld the As-Built Drawings, which YESB has contracted to deliver by virtue of Clause 16 of the LoA [67] Clause 16 of the LoA provides that: “16. As-Built Drawings and Operation & Maintenance Manuals The DSC are required to submit Four (4) copies of as-constructed or as-built drawings and Operation & Maintenance Manuals in print for this project prior to issuance of the Certificate of Practical Completion.”. [68] As alluded to earlier, the CPC makes reference to the “Full set of as built drawing” and “operation manual”. [69] The SCJ in her GoJ stated that: “[38] Plaintif juga menyatakan bahawa Plaintif telah menyerahkan dokumen yang diminta sepertimana terma dalam Surat Anugerah tersebut iaitu:

Dalam Senaraisemak serahan kerja, wakil Defendan telah mengesahkan bahawa dokumen tersebut telah diserahkan dan diterima olehnya; dan

Perunding Encik Chin Fui Lik telahpun mengesahkan bahawa dokumen tersebut telah diterima olehnya melalui suatu emel bertarikh 1.2.2019.”. [70] Barcon submitted that, even if YESB is able to bring the claim for the purported balance of RM656,868.93 within the ambit of the LoA, payment is due only for the Works which have been completed and the only accepted proof of completion as intended and agreed by the parties in 16 of the LoA is the submission of the As-Built Drawings and Operation & Maintenance Manuals by YESB to Barcon. The delivery of these documents is said to be mandatory. [71] Barcon drew my attention to the SCJ’s reasoning when YESB’s application for summary judgment was dismissed (the appeal against this decision was subsequently withdrawn) as follows: “[28] Daripada keterangan affidavit, Mahkamah berpuashati dan mendapati bahawa Plaintif sendiri telah mengakui bahawa mereka telah tidak membekalkan dokumen dan maklumat yang diperlukan kerana belum menerima bayaran penuh untuk perkhidmatan mereka daripada Defendan dan bukan kerana mereka gagal mematuhi kehendak Klausa 16 Surat Anugerah tersebut.”. [72] Apart from the above said affidavit evidence by YESB, Barcon’s counsel had additionally responded to my question for clarification on whether there is any correspondence apart from the e-mail dated 1.2.2019 wherein YESB was asked to amend, include comments and re-submit the As-Built Drawings and Operation & Maintenance Manuals to Barcon, by stating that in the subsequent e-mail dated 30.5.2019, Mr. Chin Fui Lik from UPC had reminded YESB on the need to clear and submit these documents prior to the issuance of the CPC by the SO and that these documents “have been commented many months already”. [73] Even though Clause 16 stipulates that the As-Built Drawings and Operation & Maintenance Manuals must be submitted before the issuance of the CPC, nevertheless the CPC was issued with condition of completion of these documents. As there is no evidence to show that YESB has submitted the documents as pleaded in subparagraphs 16.2(a) and (e) in the D & CC to Barcon, I therefore allowed Barcon’s appeal in Appeal No. 5 in part by making an Order for YESB to submit the documents to Barcon by 30.4.2024. 3rd Ground: Whether the SCJ had erred in fact and in law when she dismissed Barcon’s counterclaim for loss and damages in the sum of RM670,000.00 [74] The SCJ’s findings on Barcon’s counterclaim are as follows: “[45] Seterusnya, bagi tuntutan balas yang dibuat oleh Defendan, Defendan berhujah bahawa Defendan telah mengalami dan masih mengalami kerosakan dan kerugian akibat Kerja-Kerja Elektrik Plaintif yang defektif dan layak menuntut ganti rugi atas Kerja-Kerja Elektrik yang defektif dan/atau ketidakpatuhan syarat-syarat dan spesifikasi Surat Anugerah Plaintif iaitu sebanyak RM670,000.00 seperti yang dinyatakan secara jelas di perenggan 20 di atas. [46] Bagi tuntutan ini, Mahkamah mendapati bahawa Defendan tidak dan/atau gagal mengemukakan apa-apa bukti sama sekali terhadap tuntutannya. [47] Saksi Defendan iaitu SD1 telah menyatakan semasa sesi perbicaraan bahawa tidak ada dokumen atau rekod dalam Mahkamah untuk membuktikan tuntutannya seperti keterangannya di bawah: “PP: Page 24, ok, Mr Yap, so my question related to Q&A number 9, that you complained there is a lot of defective works, and in your claim, you actually claimed for RM100,000.00 the engagement of third party service provided to make good all the defective works, so Mr Yap I want to ask you, do you agree with me that there is no any document in the bundle today to show there is any work done for the defective works? SD1: In this bundle, there is no details given, but we have the document, but not in this bundle. Mah: Whatever you claimed, you must prove by document. SD1: Ha. Mah: you must support your claim. SD1: I have document but not in this bundle, yeah, not in this bundle.” [48] Oleh itu, Mahkamah mendapati dan bersetuju dengan hujahan Plaintif bahawa bahawa Defendan memang tidak ada apa-apa dokumen/rekod langsung untuk membuktikan tuntutannya. Dengan itu, Mahkamah telah membuat keputusan untuk membenarkan sebahagian dari Tuntutan Balas seperti yang dinyatakan dan diputuskan dalam perenggan 24 di atas. [49] Mahkamah mendapati pihak Defendan gagal membuktikan apa-apa kerugian yang dialami oleh pihak Defendan dalam Tuntutan Balas. Pihak Defendan gagal mengemukakan keterangan dan dokumen sokongan bagi menyokong tuntutan ganti rugi dalam tuntutan balas Defendan. Oleh itu, tuntutan balas Defendan bagi kerosakan dan kerugian berjumlah RM670,000.00 serta ganti rugi lain ditolak.”. [75] It is indisputable that Barcon has the burden to prove its counterclaim. However, the counterclaim for the alleged loss and damages was not supported by any evidence at all. [76] In the circumstances, the SCJ was correct to dismiss Barcon’s counterclaim. As Barcon failed to adduce even a single document to prove its counterclaim, there can surely be no error in law and/ or in fact in the decision of the SCJ in this regard. CONCLUSION [77] Premised on all the foregoing reasons, I had pronounced the decision as stated in paragraph 2 above. [78] Following the outcome of Appeal No. 3 and Appeal No. 5, I was inclined not to make any order as to costs, to which the learned counsels appearing for both parties had agreed. Thus, no order was made as to costs. Dated: 7 January 2025 (ALIZA SULAIMAN) Judge High Court in Malaya Kuala Lumpur Counsels/ Solicitors: For the Appellant in Appeal No. WA-12BC-3-03/2023 and the Respondent in Appeal No. WA-12BC-5-04/2023: Tan Chi Sian (Rosamirah Insyirah Binti Zamri with him) Messrs. C.S. Tan Seah & Partners Advocates & Solicitors Unit 312, Level 3, Block C (Lobby 6), Damansara Intan No. 1, Jalan SS 20/27 47400 Petaling Jaya Selangor For the Appellant in Appeal No. WA-12BC-5-04/2023 and the Respondent in Appeal No. WA-12BC-3-03/2023: Cheong Sek Kwan (Leow Chai Fah with him) Messrs. Leow & Associates Advocates & Solicitors 5A, Jalan Bukit Desa 5