Zamil Steel Buildings Vietnam Co. Ltd. v Technofit Sdn. Bhd. (WA-22C-17-03/2024)

This Plaintiff's action against the Defendant is two-fold. Firstly, for the sum of USD724,380.80 that the Defendant had received on what the Plaintiff alleges are unlawful demands that the Defendant had made on a bank guarantee and on a performance bond that the Plaintiff had caused a bank to provide to the Defendant. The Plaintiff alleges that those demands were unlawful as it was the Defendant that had caused the events that delayed the Plaintiff's performance of its obligations under the contract between them beyond the scheduled completion date.

The Plaintiff secondly has various claims for damages, loss and expense of USD95,972.61.

Apart from contesting all of the Plaintiff's claims, the Defendant is counterclaiming from the Plaintiff for back-charges of approximately USD972,899.81.

This Judgment is after a full trial of those claims and counterclaims. Factual overview

Pulau Indah Power Plant Sdn Bhd ("PIPP") was the owner of the Pulau Indah Power Plant Project ("Project"). The Project was an EPC contract for the construction of that Power Plant.

One of the contractors appointed by PIPP for the Project was a company called PEC Powercon Sdn Bhd ("Posco"). Posco had appointed the Defendant as subcontractor for the steel structure and panel work for the Project.

By a Letter of Award dated 22.10.2021 ("LOA") and a Subcontract dated 22.10.2021 ("Subcontract"), the Defendant had appointed the Plaintiff as its own subcontractor for the fabrication and material supply of the steel structure and panel work for the Project. Under the Subcontract, the Plaintiff was to procure, fabricate and deliver the steel structure and panel work to the Project site, but its job scope did not include installation. The Contract Price was USD7.34m, and Appendix 2 of the Subcontract set out schedule for the orderly performance all of the works by the Defendant. Clause 6.2a of the Subcontract further provided: "The Sub-Contractor shall complete the Works following Work Schedule set out in Appendix 2 and Project Overall Schedule."

Clause 6.3 of the Subcontract provides clarity on the meaning of "Project Overall Schedule": "6.3 Programmed a. The first updated Project Overall Schedule shall be provided to the Sub-Contractor within seven (7) working days after this Contract signed by both parties. Thereafter, the Project Overall Schedule shall be updated monthly and provided to the Sub-Contractor every month. b. The Sub-Contractor shall submit a detail time program to the Contractor for the Contractor's approval within seven (7) working days after the receipt of the updated Project Overall Schedule from the Contractor. The Sub-Contractor shall also submit a revised program whenever the previous program is inconsistent with actual progress or with the Sub-Contractor's obligations. Unless otherwise stated in this Agreement."

As required by the Subcontract, the Plaintiff had caused HSBC Malaysia ("Bank") to issue to the Defendant as beneficiary, inter alia:

an Advance Payment Guarantee in the sum of USD425,003.66 ("APG"), as security for the Advance Payment of that same sum ("Advance Payment") that the Defendant was to make to the Plaintiff; and

(ii) a Performance Bond also in the sum of USD602,235.44 ("PB") being 10% of the Contract Price, as security for the performance of the Defendant's obligations under the Subcontract.

On the basis that the Plaintiff had delayed in its execution of the Works under the Subcontract, the Defendant had demanded payment of USD724,380.80 on both the APG and the PB on HSBC Bank on 28.3.2023.

The Plaintiff filed this action against the Defendant on 5.3.2024. The relief it claims is essentially:

a declaration that the Defendant's encashment of the APG and the PB was invalid;

(ii) the sum of USD724,380.80 that the Defendant had received on the encashment of the PB and APG; and

(iii) USD95,972.61 being the alleged loss and damages.

The Defendant's counterclaim is for the sum of RM4,660,190.09 (USD972,899.81) consisting of several claims which may be summarized as follows:

Loss and damage due to defective work:RM 51,440.00

(ii) CIDB related costs and expense: RM 51,313.24

(iii) Fees/charges for shipments 5-15: RM 985,663.00

(iv) Idling costs: RM2,248,248.00

LAD: RM1,071,739.03 Validity of the Defendant's encashment of the APG and PB

As I had said at the outset, the Plaintiff alleges that the Defendant's demands on the APG and the PB were unlawful as it was the Defendant that had caused the events delaying the Plaintiff's performance of its obligations under the contract between them beyond the scheduled dates.

The Plaintiff's allegations of the Defendant's delay are essentially on three areas, namely:

delay in issuing Advance Payment;

(ii) delay in relation to the IFC drawings; and

(iii) delay in issuing Letters of Credit.

It is established that an event of delay in itself is insufficient. The party alleging the delay must show that that event of delay must have caused a delay to the progress of the works, and that that delay to the progress of the works has then caused or in the very least is likely to cause a delay to the completion of the works after the completion date in the contract.

In Daya Cmt Sdn Bhd v Yuk Tung Construction Sdn Bhd [2018] MLJU 871, Lee Swee Seng J (now FCJ) approved of the following passage in Hudson's Building and Engineering Contracts, 13th Edition at page 780 paragraph [6-050] as follows: "An event causing delay will cause delay generally to one activity, occasionally more than one activity. This activity will be one task among many that the Contractor has to perform in order to complete the works. The assessment of extension of time involves the assessment of a delay to the completion of the whole of the works (or where sectional completion is provided for, to a section). The question therefore is whether the activity which has been delayed will cause delay to subsequent activities which will then lead to a delay to the completion of the whole. This assessment involves an identification of the so-called critical path, that is, whether the activity in delay and the subsequently affected activities lead through to a delay in the completion date. Activities which are on the critical path are usually referred to as critical activities. Activities which are not are usually said to involve a period of float and are usually referred to as sub-critical activities, that is, an activity which will not come into the critical path until the period of float has been used up."

The analysis must then be about whether any of the Defendant's delays that the Plaintiff complains about had in fact caused a delay to the progress of the works that had then caused or in the very least had likely caused a delay to the completion of the works after the completion date in the contract.

However, before doing so, there is one contention that the Defendant makes which should aptly be dealt with first. It is the Defendant's contention in its written submissions that the Plaintiff's entire allegations of delay should be dismissed altogether simply because it had failed to call on any expert witness to provide a delay analysis to establish:

that the delays it complained of were critical delays;

(ii) the exact number of days and critical delays it suffered; and

(iii) its prevention and prolongation expenses.

I do not agree with that contention.

The role of an expert is to assist the Court in providing their opinion in their specialist area where the Court needs it. Section 45(1) of the Evidence Act, 1950 provides: "When the court has to form an opinion upon a point of foreign law or of science or art, or as to identity or genuineness of handwriting or finger impressions, the opinions upon that point of persons specially skilled in that foreign law, science or art, or in questions as to identity or genuineness of handwriting or finger impressions, are relevant facts."

In Syed Abu Bakar bin Ahmad v Public Prosecutor [1984] 2 MLJ 19 Abdul Hamid FCJ said: "Our law is clear in that under s 45 of our Evidence Act 1950 it is provided that ... The scope of this section can be found in the commentary in Sarkar on Evidence (12th Ed) at p 488 where, while recognising that opinion in so far as it may be founded on legal evidence shall be the function of the tribunal whose province alone it is to draw conclusions of law or fact: There are however cases in which the court is not in a position to form a correct judgment without help of persons who have acquired special skill or experience on a particular subject, e.g. when the question involved is beyond the range of common experience or common knowledge or when special study of a subject or special training or special experience therein is necessary. In such cases the help of experts is required. In these cases, the rule is relaxed and expert evidence is admitted to enable the court to come to a proper decision."

In PB Malaysia Sdn Bhd v Samudra (M) Sdn Bhd [2009] 7 MLJ 681, Ramli Ali J said: "Opinions of experts are admissible to furnish the court with scientific information which is unlikely to be within the experience and knowledge of a judge (s 451(1) of the Evidence Act 1950)."

In Junaidi bin Abdullah v Public Prosecutor [2017] 5 MLJ 292 at 309 [1993] 3 MLJ 217, Mohamed Azmi SCJ said: "In our view, the test to be applied for the purpose of s 45 of the Evidence Act 1950 is this. First, does the nature of the evidence require special skill? Second, if so, has the witness acquired the necessary skill either by academic qualification or experience so that he has adequate knowledge to express an opinion on the matter under enquiry? The answer to both questions must necessarily depend on the facts of each particular case. The specialty of the skill required of an expert witness under s 45 would depend on the scientific nature and complexity of the evidence sought to be proved. The more scientific and complex the subject matter, the more extensive and deeper will the court be required to enquire into the ascertainment of his qualification or experience in the particular field of art trade or profession."

Thus, expert evidence is called upon to assist the Court on matters which may be beyond the likely experience and knowledge of a judge.

However, it must also be remembered that, while an expert may be called, it is ultimately the Court that makes the decision, including whether to accept or reject that expert evidence. Simply because one party calls upon an expert and the other does not would not in itself mean that the Court will make a finding in favour of the former. It is ultimately the quality and the veracity of the evidence that matters. In short, calling an expert is not a prerequisite of every action in which the Court is required to make a delay analysis.

Moreover, in this case we have the terms of the Subcontract including Appendix 2 to the Subcontract ("Appendix 2")) and the entire facts and circumstances disclosed by the documentary evidence for determining the sequence of the works and to further assist the Court in deciding whether any of those delays complained of were critical or not. That Appendix 2 set start and time dates for twenty events that fell under the five headings of "Contract & Payment", "Engineering Stage", "Procurement", "Fabrication" and "Delivery". How the parties had abided by that Appendix and the effect of non-compliance is crucial.

Thus, I believe that, in the facts and circumstances of this case, the Court could decide on its own whether any of those alleged delays were critical or not. This meant that there was no imperative need to call upon any expert, and that the omission of the Plaintiff to do so is in itself neither damaging nor fatal to the Plaintiff's case. Defendant's alleged delay in issuing the Advance Payment

Clause 3.3.1 of the Subcontract provides: "Advance Payment and Advance Payment Bond a. The Contractor shall make the Advance Payment by T/T as for design and material, within Thirty (30) Days or earlier of receiving from the Sub-Contractor an irrevocable, unconditional, on demand bank guarantee in the amount equivalent to ten percent (10%) of the Contract Price and substantially in the form and on the terms set out in the Advance Payment Bond to be issued by a bank licensed and operating in Malaysia and to be approved by the Contractor." b. The Sub-Contractor shall maintain and renew, if necessary, the Advance Payment Bond so that it shall remain in full force and effect until 1 month after issuance of the Taking Over Certificate. c. VOID d. VOID $$ e. \quad VOID" $$

By Sub-Item 1.2 of Item 1 of Appendix 2, the time-frame for Plaintiff to provide the Advance Payment Bond to the Defendant was between 2.11.2021 and 15.11.2021.

In this case, the Plaintiff had caused the Bank to issue the Advance Payment Guarantee to the Defendant only on 17.11.2021. By Clause 3.3.1 of the Subcontract, the Defendant was to have paid the Advance Payment to the Plaintiff by 17.12.2021. It only did on 4.1.2022.

Focusing on the Defendant's delay whilst wholly ignoring its own, the Plaintiff contended that the 21-day delay in making that Advance Payment delayed its procurement of raw materials, and had thereby delayed its works under the Subcontract and also delayed the completion of its works under the Subcontract. Consequently, the Defendant's call on the APG and the PB was invalid.

Items 2.0, 3.0, 4.0, and 5.0 of Appendix 2 show that the Works was divided into four parts (which I shall call "Stages"), namely "Engineering Stage", "Procurement Stage", "Fabrication Stage" and "Delivery to Job Site Stage".

Items 2.0, 3.0, 4.0, and 5.0 of Appendix 2 further show that the fabrication and the delivery of the steel structure and panel work for the Project was to have been in five batches, namely:

Anchor bolt

Batch #01

Batch #02

Batch #03

Batch #04

Table A below (reproduced from Item 2.0 and Item 3.0 of Appendix 2) sets out the start and end dates for the four activities in the Engineering stage and the single activity in the Procurement stage: Table A ActivityStartEndReceive IFC drawings from Defendant (by stage)01/11/202128/02/2022Clarification of technical queries02/11/202113/03/2022Prepare GA / shop drawings (by stage)03/11/202121/03/2022Review, approve design and approval drawings (by stage)03/12/202131/03/2022Raw materials & buy out01/12/202115/04/2022

Given the amount of the Advance Payment of USD425,003.66 as compared to the Contract Sum of USD7.34m, I think it a reasonable assumption to make that the Advance Payment was to assist the Plaintiff in the materials procurement for the anchor bolt, being the first of the works that would have to be designed, fabricated and delivered to the Project Site. This means that the Advance Payment would really only have been needed after the design work for the anchor bolt had been finalized. Logically, only upon the design work for the anchor bolt having been finalized would the Plaintiff know the exact types and quantities of materials it needed to procure to fabricate it.

In my view, given the nature of the Subcontract and the sizeable Contract Sum, it can reasonable be assumed that the Advance Payment was not only to assist the Plaintiff in procuring the materials needed to fabricate the steel structure and panel work for that first stage, but also to demonstrate the Defendant's commitment to the Subcontract. The last thing any supplier of steel structure and panel work to a construction project - more so when the supply was overseas - would be to have expended sizeable sums of its own funds on carrying out works that may ultimately have been done in vain. Thus, the Advance Payment was to cover that contingency.

And, that is where the APG would come in. The last thing a contractor who had advanced a sizeable sum of money to a subcontractor - more so where the subcontractor was overseas - was to have paid that sum in vain by any non-delivery of what the subcontractor was supposed to deliver. Thus, the Advance Payment Guarantee was to cover that contingency.

The evidence (which shall come into greater focus shortly) shows that, by the date the Defendant had transmitted the Advance Payment to the Plaintiff, the design work for the anchor bolt at first stage had not yet been completed. Thus, at the material time, the Advance Payment was not yet actually needed to procure the raw materials to start the fabrication of the anchor bolt.

Thus I ultimately find that the delay of 21 days in the Defendant's payment to the Plaintiff of the Advance Payment was not a critical event that either caused a delay to the progress of the works that had then caused or in the very least had likely caused a delay to the completion of the works after the completion date in the contract.

Furthermore, when the Plaintiff received the Advance Payment, there was no even a whiff of a complaint by it. To the contrary, its Senior Sales Engineer sent an email that said: "Well received with thanks." Delay in relation to the IFC Drawings

IFC stands for "Issued For Construction" and IFC Drawings are therefore Issued For Construction Drawings.

Sub-Item 2.1 of Appendix 2 shows the following sequence for the Engineering Stage:

Defendant provides the IFC drawings (by stage);

(ii) the Plaintiff will raise and the Defendant will clarify an technical queries;

(iii) the Plaintiff will then prepare GA/shop drawings (by stage);

(iv) the Defendant would review, approve design and approve drawings.

The Plaintiff contends that Appendix 2 specifically states and identifies IFC Drawings as being that which the Defendant is to provide to the Plaintiff based on which the Plaintiff can then prepare the corresponding GA/shop drawings.

If also contends that it is only upon this sequence being completed that the Plaintiff could then move on to the next procurement of raw materials and fabrication stages, for eventual delivery to the Project site.

It further contends that any delay in the Engineering Stage would have a knock-on effect in the procurement, fabrication and delivery of the steel structure and panel work.

Table A above shows that the Defendant was to have provided to the Plaintiff all of the IFC drawings from between 1.11.2021 and 28.2.2022. Given that the Defendant was the contractor and the Plaintiff was only the subcontractor for the Works, obviously Defendant was responsible for obtaining the IFC Drawings from Posco, and could not have validly passed any delay by Posco onto the Plaintiff.

In evidence is a letter dated 11.1.2021 from the Defendant to Posco which shows that as at that date it had not yet received the IFC Drawings from Posco.

Also in evidence are letters from the Plaintiff to the Defendant by which the Plaintiff had repeatedly requested for the IFC Drawings. In its letter dated 17.12.2021, the Plaintiff said: "With the above delays, the schedule as committed in the signed contract is no longer applicable. In order to have a proper planning for this project, kindly support us to furnish on the above matters."

Nevertheless, in evidence too are letters in December 2021 showing instructions from Posco to the Defendant to provide shop drawings for the main structure and two turbine buildings using For Approval Drawings", with the Defendant passing on that instruction to the Plaintiff, and the Plaintiff then submitting several technical queries (TQ) and requests for information (RFI), all the while also asking for the IFC Drawings as contracted for.

Nevertheless, in response to some drawings submitted by the Plaintiff which the Defendant then forwarded to Posco, Posco subsequently issued instructions to the Defendant to proceed with shop drawings work no those existing drawings, which instructions the Defendant then conveyed to the Plaintiff in a letter dated 21.12.2021. In that letter, the Defendant said pointedly to the Plaintiff: "With the above instruction, TECHNOFIT believes that ZAMIL STEEL able to start the WORKS immediately."

Though further correspondences were exchanged between the parties, it is obvious from them that the Defendant was insisting on the Plaintiff simply getting on with it. And get on with it the Plaintiff did. It proceeded with the procurement, fabrication and delivery of the steel structure and panel work.

Ultimately, I find that the delay in the Plaintiff in being provided with the IFC drawings was not a critical event that either caused a delay to the progress of the works that had then caused or in the very least had likely caused a delay to the completion of the works after the completion date in the contract. Delay in issuing Letters of Credit

A letter of credit (LC) is a payment mechanism used in international trade to essentially guarantee payment to an exporter of goods. After the sales or supply contract has been negotiated and agreed between the buyer and seller, the buyer will make the arrangements for the LC to be issued by a creditworthy bank to the seller as beneficiary. The LC would usually contain terms as to time, the validity of credit, the last date of shipment, and time-limit for the requisite documents to be presented to the bank after shipment. Once the goods have been shipped, the seller will present the requisite documents to the bank, and if they comply with the terms of the LC, the bank will then honour the terms of the LC by paying the seller. In essence, the LC provides comfort to both the seller and the buyer and facilitates the transaction.

The nature of the LC is that it would be inextricably linked to the Delivery to Project Site Stage.

Clause 11.1b of the Subcontract provided: "11.1 Contract Price b. The Contractor shall pay the Sub-Contractor in progress payment fabricated structure arrive at Site calculate based on completed Works according to this Contract using the approved Payment Certificate of the Contractor. The payment certificate shall be issued by the Contractor one week prior the shipment. 90% of total contract value shall be covered by irrevocable Letter of Credit (LC) and payable thirty (30) days from B/L date against presentation of followings: i. Signed Commercial Invoice ii. Packing List iii. Full set of clean Bill of Lading (B/L) iv. Certificate of Origin issued by Vietnam Chamber of Commerce & Industry. L/C shall be issued by the Contractor at least two (2) weeks prior to commencement of fabrication."

Under Sub-Item 1.5 of Annexure 2, the fabrication of the anchor bolt would be between 21.12.2021 and 29.12.2021. Thus, by Clause 11.1b of the Subcontract, the LC was to be provided at least two weeks before 21.12.2021.

In contrast, sub-Item 1.5 of Annexure 2 required the Defendant to issue the LC within the time period of 1.2.2022 to 14.2.2022, some two months after the time prescribed by Clause 11.1b of the Subcontract. However, that obvious conflict between the two went unexplained.

Despite sub-Item 1.5 of Annexure 2 envisaging one LC for all five batches of delivery, the Plaintiff had on 25.4.2022 agreed to the LCs being split up into three. The Defendant had then issued three separate LCs on 23.5.2022 ("LC1"), 14.7.2022 ("LC2") and 22.02.2023 ("LC3") respectively.

The Plaintiff contends that the Defendant's delay in issuing LC1, LC2 and LC3 had delayed the fabrication of the steel structure, and is a Relevant Event that caused the delayed the schedule in the Sub-Contract.

The contemporaneous documents show that a new schedule was agreed at a meeting on 30.6.2022.

I further find from the contemporaneous documents (particularly the correspondences) show that the Defendant's delay in issuing LC1, LC2 and LC3 did not cause any delay to the progress of the works that had then caused or in the very least had likely caused a delay to the completion of the works after the completion date in the Subcontract. In particular, starting from a letter dated 15.7.2022, it was the Defendant who was complaining about the delays by the Plaintiff in fulfilling its obligation to deliver the steel structure materials to the Project site, starting from the very first delivery. These complaints included:

incomplete documentation for CIDB and COA verification;

(ii) incompetent logistics agents;

(iii) delay in the fabrication and inspection process;

(iv) irregular delivery sequence;

non-compliance with the agreed delivery schedule delays in departure.

These complaints were expressed repeatedly by the Defendant in several letters after that up until December 2022, to which there was no corresponding response by the Plaintiff either denying these delays or alleging with any specificity that the delays in the IFC drawings and/or the issuance of the LC had caused those delays in delivering the steel structure materials to the Project site. To the contrary, it led to the Defendant insisting that the Plaintiff station a full-time representative at site to deal with and resolve all delivery-related issues as and when they arose.

I therefore find that the delay in the Plaintiff in being provided with the LC was not a critical event that either caused a delay to the progress of the works that had then caused or in the very least had likely caused a delay to the completion of the works after the completion date in the contract.

As I have found that none of the Plaintiff's complaints about the Defendant's delays were critical events that either caused a delay to the progress of the works that had then caused or in the very least had likely caused a delay to the completion of the works after the completion date in the contract, the Plaintiffs' only saving grace will be if the Defendant could prove its counterclaim for back-charges, on which it had made the Demand on the Bank Guarantees. Defendant's counterclaim for back-charges

Table A below - adopted from the Defendant's Written Submissions - sets out in summary the back-charges claimed by the Defendant: Table A NoDescriptionTotal Amount (RM)1Costs and expenses incurred to procure materials which Zamil failed to deliver on time.261,236.412Costs and expenses incurred by Technofit to complete side modification, repaint, and reparation works due to the defective works done by Zamil.51,440.003Costs incurred for CIDB inspection and material segregation.50,078.004Charges and expenses incurred due to Zamil's delayed Shipments 5 to 15985,663.005Costs and expenses of idling resources due to Zamil's delayed Shipments 5 to 27993,908.336Liquidated damages1,038,735.21Total3,381,060.95

Having expressly pleaded specific sums for each of these items, in accordance with established legal principles, the burden was on the Defendant to adduce sufficient evidence to prove each and every item on the balance of probability.

In its Reply to Defence, the Plaintiff had accepted the Defendant's claim of USD4,778.34 for grating for local platform GCB 1 and 2.

Save for the sum of RM51,440.00 as cost and expense incurred by the Defendant to complete side modification, repaint, and reparation works due to the Plaintiff's defective works which Learned Counsel for the Plaintiff had conceded to at the trial, I find that the Defendant had failed to adduce evidence to prove the other five items in the Table.

On that score, I also agree with the Plaintiff that the Defendant is not entitled to claim any LAD from it. The provision for LAD would have been to insure the Defendant against any claim by Posco for LAD, and the Defendant did not adduce any evidence of any claim for LAD by Posco from the Defendant.

Having only proven those sums of USD4,778.34 and RM51,440.00, I find that the Defendant's Demand on the Bank Guarantees for the sum of USD724,380.80 was invalid. Plaintiff's claim for USD139,972.61

The Plaintiff's claim for USD95,972.61 consists of the following:

USD75,595.77 as costs of excess raw materials due to change in drawings and/or Defendant's instructions;

(ii) Freight costs of USD5,824.45;

(iii) USD44,000.00 for additional time spent for engineering costs; and

(iv) USD10,552.30 for the site engineer having to manage the Project for an additional seven months from 30.6.2022 to 31.3.2023 USD75,595.77 as costs of excess raw materials

For the first Item, in evidence is the Defendant's letter dated 16.06.2022 removing the material supply of Sea Water Pump house from the Subcontract due to a design change.

However, in that letter, the Defendant had also informed the Plaintiff as follows: "Should you have any concerns on the procured material cannot be used for other buildings, please provide as follows:

The approved MTO of SWPH

Un Price PO for for SWPH that should arrive on $ 30^{\mathrm{th}} $ June 22

DO from suppliers. With this 3 information, we will inform Client and the material will be bavck charge to POSCO later."

The Plaintiff did not adduce any evidence of having delivered those documents to the Defendant, and PW1 could not recall whether the Plaintiff had. Furthermore, the Plaintiff did not adduce any evidence of having incurred that sum claimed.

I therefore reject the Plaintiff's claim for this first Item. Freight costs of USD5,824.45

This claim arises from the Defendant's request to the Plaintiff to airfreight an additional 50 pieces of anchor bolts specifically for the Pipe Rack building. The amount claimed is backed by the Plaintiff's quotation in its letter dated 10.6.2022, which the Defendant accepted.

However, PW1 had agreed in cross-examination that there was no documentary proof for this claim.

I therefore reject the Plaintiff's claim for this second Item. USD44,000.00 for additional time spent for engineering costs

The Plaintiff's contentions for making this claim may be summarized as follows:

Under Appendix 2 of the Sub-Contract, all review, design and approval of IFC Drawings were originally supposed to be completed by 31.03.2022;

(ii) On 5.5.2022, the Plaintiff had informed the Defendant that there will be further engineering costs for this matter at the rate of USD25 per hour; and

(iii) The sum of USD44,000.00 claimed was that rate of USD25 per hour multiplied by the 8 working hours per day over 220 days.

PW1 had also agreed in cross-examination that there was no documentary proof that that time had actually been spent.

I therefore reject the Plaintiff's claim for this third Item. USD10,552.30 for the site engineer's costs from 30.6.2022 to 31.3.2023

I find that there was no documentary proof for this claim.

I therefore reject the Plaintiff's claim for this fourth Item.

Based on the foregoing, I hereby find for the Plaintiff and make the following Judgment:

That the Defendant's demand on HSBC Malaysia's Advance Payment Guarantee No: APGHLD537916 and HSBC Malaysia's Performance Bond No. PEBHLD537915 was invalid;

That judgment be entered in favour of the Plaintiff against the Defendant for the sum of USD724,380.80 less the agreed sums of USD4,778.34 and RM51,440.00;

That all of the other Plaintiff's claims be dismissed;

That all of the Defendant's counterclaims against the Defendant be dismissed;

That the Defendant do pay to the Plaintiff costs of RM150,000.00 subject to an allocatur. Dated the $ 2 2 ^{ \mathrm{n d}} $ day of April 2026 Counsel: Ms. Faye Lim & Mr. Chong Yuk Ming (Messrs. Justin Faye & Partners) For Zamil Steel Buildings Vietnam Co. Ltd Mr. Dinesh Praveen Nair & Mr. Low Ming Yung (Messrs. Dinesh Praveen Nair) For Technofit Sdn Bhd Legislation: Evidence Act, 1950, section 45(1) Cases: Daya Cmt Sdn Bhd v Yuk Tung Construction Sdn Bhd [2018] MLJU 871 Junaidi bin Abdullah v Public Prosecutor [2017] 5 MLJ 292 at 309 [1993] 3 MLJ 217 PB Malaysia Sdn Bhd v Samudra (M) Sdn Bhd [2009] 7 MLJ 681 Syed Abu Bakar bin Ahmad v Public Prosecutor [1984] 2 MLJ 19