Zhongxiang Construction Sdn Bhd v Crcc Malaysia Berhad (WA-22C-54-07/2021)

The Defendant, CRCC Malaysia Berhad (“Defendant”), was appointed as the sub-contractor to carry out works in relation to the Construction and Completion of Guideway, Stations, Park and Ride, Ancillary Buildings and Other Associated Works for Package GS06 for Light Rail Transit Line 3 (LRT 3) from Bandar Utama to Johan Setia (“Project”) by Rahimkon Sdn Bhd (“Employer”).

By a letter of acceptance dated 27.04.2019 issued by the Defendant, Zhongxian Cosntruction Sdn Bhd (“Plaintiff”) was then appointed by the Defendant as its sub-contractor to carry out bore pile works 2 (“Bore Piling Works”) for a total contract sum of RM13,439,398.77 (“Sub-Contract Sum”). [“Letter of Acceptance”] to wit construct 685 bored piles.

The Letter of Acceptance was signed by both parties on 17th June 2019 [Bundle C / p 12].

Under Clause 2.1 of the Letter of Acceptance, the Sub-Contract entered by the parties consists of inter alia the following documents: No. Description

Letter of Acceptance

Special Conditions of Sub-Contract

Conditions of Sub-Contract

Responsibility Matrix

Appendix A: Sub-Contract Specific

Appendix B: Conditions of Contract of MRCB

Appendix C: Bill of Quantities

Appendix E: List of Drawings [collectively “Sub-Contract”] [5] MRCB George Kent Sdn Bhd is the project delivery partner for the Project. (“MRCBGK”). Plaintiff’s Claim & Cause Of Action [6] Now in the case herein before this Court, the Plaintiff claims against the Defendant for, inter alia, the following:

6.1 RM817,077.20 being the Plaintiff’s final claim for the completion of the following thirteen (13) bored piles: a. P14-19 BP1a and P14-19 BP2a; b. P14-22 BP1, P14-22 BP2 and P14-22 BP4; c. P14-23 BP1, P14-23 BP2, P14-23 BP3 and P14-23 BP4; and d. P14-24 BP1, P14-24 BP2, P14-24 BP3 and P14-24 BP4. ( “Plaintiff’s Final Claim”);

6.2 RM182,000.00 being the idling charges for the following dates due to the Defendant’s default, obstructions and/or hindrance: a. 23.5.2019 to 30.5.2019; b. 31.5.2019 (from 8am to 3pm, equivalent to 0.75 day); and c. 4.6.2019, 7.6.2019 to 13.6.2019, 16.6.2019, 18.6.2019 and 20.6.2019 to 24.6.2019. (“Plaintiff’s Idling Charges Claim”); and

6.3 RM90,987.36 being the retention sum (“Plaintiff’s RS Claim”). (collectively “Plaintiff’s Claims”) [7] It was alleged by the Plaintiff that throughout the whole progress of the work:

7.1 there were numerous delays, obstructions and/or hindrances caused by the Defendant to the Plaintiff at the site;

7.2 although the Defendant had promised the Plaintiff that it will resolve all the issues faced by the Plaintiff at the site, the Defendant broke its promise;

7.3 hence, the Plaintiff was only able to complete thirteen (13) bored piles at the site as the Defendant was unable to deliver the remaining sites to the Plaintiff to finish the tasks;

7.4 not a single cent was paid by the Defendant to the Plaintiff for all the Plaintiff’s hard work and/or losses suffered although, at all material times:

7.5 the Plaintiff had duly complied with all the contractual requirements, procedures and the Employer, CRCCM17 and Defendant’s instructions in constructing the thirteen (13) bored piles and that 7.5.1 all the Plaintiff’s works have been inspected and verified by the Employer, Defendant and CRCCM17 during each stage of the work; 5 7.5.2 it was the Defendant’s delays, obstructions and/or hindrances which caused the Plaintiff to suffer idling costs; and 7.5.3 the Plaintiff had issued five (5) progress claims and one

final claim to the Defendant.

7.6 Due to the above, the Plaintiff had no choice but to demobilize from the site after having given several warnings to the Defendant. [8] It was further submitted by the Plaintiff that approximately one (1) year plus after the Plaintiff had issued the said progress and final claims to the Defendant, the Defendant finally assessed and certified that the Plaintiff is, at least, entitled to the following:

8.1.1 RM477,272.37 being the Plaintiff’s completion of the thirteen

bored piling works;

8.1.2 RM9,958.00 for the U Bolt Tighten for Rebar Cage; and 8.1.3 RM104,000.00 for the idling charges. Defendant’s Case / Defence [9] The Defendant however submits that out of the thirteen (13) bored piles, nine (9) bore piles, i.e P14-19 BP1a, P14-19 BP2a, P14-22 BP1, P14-22 BP2, P14-22 BP4, P14-23 BP1, P14-23 BP2, P14-23 BP3 and P14-23 BP4 were purportedly defective and that the said defects were caused by the Plaintiff. [10] As such, the Defendant had to incur costs to rectify the same. Court’s Analysis & Findings [11] Based on the evidence before me, I find that a letter was issued from Plaintiff to the Defendant dated 3.5.2019 (3.5.2019 Letter), wherein the Plaintiff had stated therein that they had inter alia mobilized on 30.4.3019 and that its equipment was idling at the site due to the ‘the reinforcement bar yet delivery…”. [12] The 3.5.2019 Letter had inter alia also mentioned expressly that

12.1 the LOA had yet to be issued at that material time;

12.2 the Defendant had yet to review the Plaintiff’s method statement;

12.3 the Plaintiff’s access road to the site needed to be equipped with steel plate or crusher run base and compound lighting;

12.4 there was no welding procedure specification; [13] I have also observed that based on a Final Claim dated 26.12.2019 [Bundle D / p 494] (“Final Claim”), the Plaintiff sought to claim against the Defendant for its work done under the Sub-Contract which amounted to RM817,077.20 (including for idling charges), and had submitted the following claim documents to the Defendant for its claim for work done under the Sub-Contract: No. Description Reference Amount less retention sum (RM) i. Interim Progress Claim No. 1 dated 15.05.2019 [Bundle D / p 17] 321,240.35 ii. Interim Progress Claim No. 2 dated 15.06.2019 [Bundle D / p 108] 108,828.57 iii. Interim Progress Claim No. 3 dated 15.07.2019 [Bundle D / p 276] 201,779.47 iv. Interim Progress Claim No. 4 dated 15.08.2019 [Bundle D / p 445] 46,800.00 v. Interim Progress Claim No. 5 dated 15.09.2019 [Bundle D / p 477] 138,428.82 Amount (RM) 817,077.20 ( “Progress Claims”) [14] The breakdown of the Plaintiff’s Final Claim for RM817,077.20 is as follows: No. Description Work Description based on Final Claim Amount (RM) i. Work Done Bill No. 8 - Viaduct 614,496.56 ii. Idling Charge VO No. 1 222,000.00 iii. Machinery Repair Cost VO No. 2 9,656.00 iv. U-Bolt Tighten for Rebar Cage VO No. 3 9,711.00 v. PDA Test VO No. 4 52,000.00 Total (RM) 907,863.56 Total less Retention Sum (RM) 817,077.20 [15] I then find that there is evidence at Bundle D pages 11 – 14, being letters from the Plaintiff to the Defendant dated 3.5.2019 and 14.5.2019 respectively, requesting that the Defendant to commit to resolve all the issues. [16] The facts before me then show that the Plaintiff thereafter issued a notice of withdrawal on 16.5.2019 from the site to the Defendant based on the Plaintiff’s claim that it was unable to carry out and/or smoothly carry out the Works due to all the unresolved issues. [17] Thereafter I find, from the evidence at Bundle G / p 9 that a meeting was convened on 2.8.2019 between the parties’ representatives and China Railway Construction Seventeenth Bureau Group Malaysia Company’s (“CR17”) representative, wherein it was discussed and confirmed inter alia that the Plaintiff is required to cooperate with CR17 to complete the rectification works on the Defective Piles, and the Plaintiff will bear all the costs incurred in the rectification process. [18] I also find from the evidence at Bundle D / p 510 that on 24.02.2020, CR17 vide its letter informed the Defendant that MRCBGK had issued an ultimatum to them to carry out immediate rectification on the bored piles at P14-19, P14-22 and P14-23. [19] The evidence thereafter shows that the Defendant had forwarded the same letter to the Plaintiff, requesting them to immediately carry out the rectification works demanded by MRCBGK as per Bundle D / p 592. [20] Consequently, the Defendant now submits that as a result of the Plaintiff’s defective works, the Defendant was not entitled to claim for payment and is as such not able to certify the plaintiff’s claims until the rectification works were carried out. [21] However, from the Plaintiff’s letter dated 15.06.2020 as found in Bundle D / p 607, the Plaintiff had stated inter alia therein that the root cause of the alleged bore pile failure was as a result of the late information given by the Supervising Consultant on the termination depth, concrete supply and Welding Standard Procedure and requested an advance payment of RM600,000.00 for the work done and that the rectification works shall be considered as additional piles for which the Defendant shall make payment. Expert Evidence [22] The experts for both the Plaintiff and the Defendant had respectively testified in Court and produced their own expert reports. A Joint Expert Statement as in Bundle Q was also ultimately produced (Joint Expert Statement). [23] In the Joint Expert Statement, the experts of both parties agree that it is the skin friction of the bore piles that failed it. From the PDA test results, the skin friction fell below expected levels, thus possibly compromising the load bearing ability of those bore piles. [24] Both experts agree that the caking of Bentonite within the bore holes, as a result of prolonged exposure of the bore holes, is a possible cause of the low skin friction. [25] The Plaintiff blames the Defendant for delays in the supply of concrete for this prolonged exposure of the bore holes, and the Defendant of course disputes this. [26] The Plaintiff’s expert, Ir. Tan Chooon Leng (Ir Tan / PW3) had in his expert report as per Bundle R / p 17 / Section 2, observed that 10 out of 14 piles failed the Pile Dynamic Analysis (PDA) test. He had stated in his said report that bore piles at 4 piers– namely P14-19, P14-22, P14-23 and P14-24 underwent the PDA test and that almost all the said bore piles failed except for the bore piles at pier P14-24. [27] The “PDA TEST RESULT SUMMARY” at Bundle R/p 17/Section 1 of the said Plaintiff’s expert states as follows: [28] From the above, and based on the Defendant’s expert report prepared by Ir Ang Huck Koon @ Ang Huck Chai (Ir Ang), which referred to the Foundation Code of Practice British Standard BS 8004: 1986 clause 7.5.5, only the P14-24 group of piles had a Factor of Safety (FOS) above the design requirement of 2.00. The other piles failed, with FOS ranging from 0.59 to 1.87. [29] From the Pile Driving Analyzer (“PDA”) test results produced in evidence, it would appear that 9 out of the 13 bore piles constructed by the Plaintiff were defective. No. Pier No. Pile No. PDA Test Result Reference i. P14-19 1a Bundle F / p 295 ii. P14-19 2a Bundle F / p 295 iii. BP1 Bundle F / p 409 iv. BP2 Bundle E / p 189 v. BP4 Bundle F / p 353 vi. BP1 Bundle F / p 449 vii. BP2 Bundle F / p 489 viii. BP3 Bundle F / p 529 ix. BP4 Bundle F / p 171 & 529 [“Defective Piles”] [30] The Plaintiff however submits that it had duly completed all 13 bored piles in accordance with the steps, procedures, requirements and instructions of the Defendant as well as the Contract and that the same has been checked, inspected, verified and signed jointly by the Plaintiff, Defendant, Employer and CRCCM17. [31] I find that the Plaintiff in the case before me is a specialist bore piling contractor which is the main reason for its appointment to the Project by the Defendant. [32] Accordingly, from what I have observed both experts agree that when Bentonite is used, and if the bore hole is exposed for too long, the very likely result in the Bentonite / filter cake forming will be detrimental to the skin friction of the pile. Accordingly, It would as can be seen from the testimonies of the experts including Ir Tan (PW3), that in such a situation, the contractor should then clean off the filter cake before casting the concrete. [33] I therefore hold that the Plaintiff ought to have cleaned the bore hole, particularly given its own complaint that the bore holes had been left open for too long before casting of the piles. [34] I therefore agree with learned counsel for the Defendant that the Responsibility Matrix, as seen in Bundle C / p 67, which is part of the Sub-Contract as agreed between Parties, the Plaintiff had agreed that the Plaintiff is responsible for “Quality assurance and quantity assurance” under item 13. For the record, this was also confirmed by PW1 at trial. [35] From the evidence presented at trial and in particular by referencing the Plaintiff’s Expert Report at Bundle R and the soil investigation bore log and reports PW2 has referred to therein, I find that the same do not show any record of any cleaning of the bore holes and I have also found no evidence was led by any of the factual witnesses at the trial of the Plaintiff cleaning the bore holes. [36] Consequently, on a balance of probabilities, I hold that the only reasonable explanation or conclusion that this Court can arrive to is that the low skin friction is due to the existence of the Bentonite / filter cake due to a failure by the Plaintiff to clean the said bore holes. [37] Ir. Tan/PW3 in his report had also averred that he had conducted the following:- a. a subsurface condition review b. a bentonite test review, where he concluded that longer duration of left over bore hole before casting is not necessary the root cause of pile test failure c. a review of bio directional test of PTP- 1 d. sonic logging test to verify the structure integrity of the pile as necking and bulging had formed at the depth of the bore pile but which he found did not affect the contact area of skin friction and having minor impact on the skin friction value. As such this is not the root cause of the pile test failure e. bore pile design recheck [38] The Defendant then submits that the load bearing capabilities of a bore pile is provided by its toe friction and skin friction and that the failure of the bore piles here is due to low skin friction. In essence they submit that the toe friction is the support provided by the soil from the toe of the pile, pushing upwards against the cylindrical toe of the bore pile and the skin friction is the friction created by the soil along the shaft of the bore pile. [39] My own analysis of the report prepared by Ir Ang had amongst others found that a preliminary test pile, identified as PTP-1, was analysed for its skin friction which showed e.g that for bore pile P14-19 an end bearing capacity of 66% of anticipated value caused by quality of workmanship during base cleaning of pile toe and that Ir Ang in his conclusion for the PDA Test found that

39.1 9 out of 10 piles did not achieve designed working load and that the integrity test showed bulging, necking and unsatisfactory homogenous of concrete

39.2 the base showed low resistance due to drill hole left for too long and improper base cleaning as the colloids hardened with the bentonite cake

39.3 piles not achieving designed capacity and questionable integrity are caused by unsatisfactory work during pile base cleaning and unsuitable construction sequence arrangement Workmanship Issues [40] The Defendant’s expert, Ir. Ang states that the alleged pile failures were caused by the Plaintiff due to workmanship issues which included improper base cleaning of the bore hole and improper pouring of concrete. [41] To surmise, an analysis of Ir Ang’s testimony based on the results of the Bi-Directional Static Load Test on PTP-1 referred to in his Expert Report done in July 2022 at Bundle S shows that he had testified that proper cleaning of the pile toe is important to remove any mud and debris from the bore hole before the bore pile can be cast and that the failure to properly clean the pile toe would lead to residue of mud and debris being left inside the bore hole which causes the initial settlement as well as result in a layer of soft ground at the bottom of the bore hole. This in turn would lead to an initial settlement during the process of pile casting. [42] In the Plaintiff’s Expert, Ir Tan’s findings in his Report, Ir Tan had stated that “The pile toe was cleaned before the casting and inspected by the client’s representative.” “And during the casting, the weight of the concrete by gravity could flush out all the mud and debris. Thus from my understanding, whether there is residue of debris and mud left in the bore hole depends on the workmanship of the foreman. [43] Ir. Ang went on to then explain at trial that the bore hole is approximately 30 metres deep and the hole is extremely dark and one cannot see anything inside the hole and hence it was not possible for the Defendant to physically check the same, save for the foreman, as he is the one lifting the tremie up and down. [44] I have also observed that the Plaintiff’s expert witness (Ir Tan), had at the trial testified under oath that there is still a possibility of debris remaining at the bottom of the bore hole as a result of poor workmanship. [45] Thus, from the evidence before me and on a balance of probabilities, I tend to agree with the Defendant’s statement / testimiony on this issue and I do find that the Defendant would not have been able to determine whether the pile toe was properly cleaned by the Plaintiff’s personnel and that the cause of “bulging” & “necking” is poor workmanship as explained by Ir Ang. [46] I have decided on the above as I find that Ir. Ang’s testimony also reveals that

46.1 the integrity of the concrete can be determined through PDA tests, which was referred to earlier in my grounds herein; and 46.2 the presence of such bulging and necking is evidence of the Plaintiff’s poor workmanship, caused by the tremie pipe being lifted too quickly and above the concrete level during the process of pouring the concrete which is a base cleaning issue. [47] Based on what I have observed at the trial, both the Plaintiff and Defendant experts confirm that there is evidence of bulging and necking in the piles under review. [48] The terms ‘bulking’ and necking’ was explained by Ir Ang in Court as follows “Basically, bulging and necking is basically a defect to the bore pile which is we have to check whether, normally necking means that the bore pile comes down and then it necks in. This is definitely, totally unacceptable. Whereas bulging, we have to study whether the bore pile where it comes down and then it bulge out, when it bulge out, it gives a better friction. But the problem here is, we have to refer this to the BTA reading also, whether is there any issue with the concrete quality. So, as engineer, we cannot base on one particular thing. We have to, a few other things. So, when we talk about bulging and necking, basically it shouldn’t happen for this bore pile because we are using bentonite. The reason why we want to use bentonite is because we want to prevent this bulging and necking from happening. It’s a gel-like substance whereby it pushes out the bore pile circumference so that the soil doesn’t cave. So, during concreting time, they should be very, the pile should be very nice to come up. So, like I said, I believe personally, when they were concreting the bore pile that time with the tremie pipe, when they were lifting the bore pile, the concrete as it goes up, they might have overlift. So, what happens that the concrete, let’s say, the concrete is below here, the rest of the tremie concrete came down this way, this thing caved in. So, you get necking. And then, sometimes with necking, you get bulging. Because when you neck, this side become bulge. So, there’s two things to this.” [see the NOP at Enclosure 83 / p 79 / Line 31] Alleged Defective Design [49] After perusing the pleadings before me, I have found that the Plaintiff had failed to plead that there is any design deficiency in respect of the piles which caused the pile failure. [50] Consequently, I agree with counsel for the Defendant that this Court is not entitled to decide a suit on a matter that is not pleaded, and as such the issue of any design deficiency in respect of the piles will not be considered by me in coming to my decision in this matter herein before me. It is settled law that parties must be bound by the pleadings. [51] The trite principle was found in the Court of Appeal’s judgment in Aseambankers Malaysia Bhd & Ors v Shencourt Sdn Bhd & Anor [2014] 4 MLJ 619 where the said Appellate Court held “[67] …. It is trite that the parties are bound by their pleadings. The court is not entitled to decide a suit on a matter that is not pleaded. It is a fundamental rule of natural justice that the opposite party must be informed of any adverse issue so that the other party has the opportunity to challenge it and not be caught by surprise. It is also salutary to mention that when the trial court decides on an issue that is not pleaded, the judgment can be set aside. The authorities on these points are legion and they are easily available in the law journals. …” [52] Following from this, and with respect, any factual evidence and expert witness’ testimonies including the Plaintiff’s written submissions as well as oral clarifications on the issue of any design deficiency in respect of the piles during the hearing has to be disregarded by this Court. Idling Costs [53] On the issue of idling costs, this Court has observed and note the deletion of Clause 3.22 of the Special Condition in the LOA dated 19 27.4.2019 as seen in Bundle C/ page 17 where the parties had agreed to delete the clause pertaining the Plaintiff’s right to claim for idling. [54] Be that as it may, the Court has found that the Defendant had, vide its letter dated 24.5.2019, agreed to pay Plaintiff the idling cost of RM8,000.00 per day if the Defendant obstructs the Plaintiff’s works (24.5.2019 Letter”), as per page 83 Encl. 28. But that “..the idling costs on 23rd May 2019 and 24th May 2019 is not claimable. …”. [55] Thus, it is clear from the evidence before me that the Defendant would pay for such idling costs of RM8,000.00 per day if, and only if, the Defendant obstructs the Plaintiff’s works save for the period 23.5.2019 to 24.5.2019. [56] The Plaintiff has from its Suit before this Court sought to claim Idling Charges of RM182,000.00 which it submits is justified, as they have been partly agreed by the Defendant in its Payment Certificate No. 1 dated 3.1.2021, see Encl. 28, page 613. [57] Based on my assessment of the evidence at trial, the Defendant has not obstructed the Plaintiff’s works as there is no stop work order issued by the Defendant as alleged by the Plaintiff which contradicts the Plaintiff’s contention that via the Plaintiff’s letter dated 16.05.2019 as at Bundle D/page71, the Plaintiff had alleged that the Defendant had instructed the Plaintiff to stop the Bore Piling Works until technical problems are solved. [58] I therefore hold that there does not exist any alleged ‘stop work order’ and that there is no contractual provision under the Sub-Contract which provides the Plaintiff any entitlement to claim for idling charges. Defendant’s Counter Claim For Backcharge Rectification Cost for the Defective Bore Piles [59] I now turn to the Defendant’s Counter Claim for backcharge rectification cost for the defective bore piles. [60] The Defendant has alleged that it had appointed CR17 as a third party contractor to carry out rectification works towards the Defective Piles and that the rectification works were assessed by CRCC based on the approved drawings for the rectification works. [61] To surmise, the Defendant’s counter claim as per paragraph 71 of CRCC’s Amended Defence and Counterclaim for rectification cost is the sum of RM1,096,745.73 (“Rectification Cost”) consisting of [62] In the Revised Witness Statement of Zhang Guo Shan (“DW-2”), DW2 had explained the detailed breakdown of the Rectification Cost which was calculated based on the rates stated in the bills of quantities contained in the Letter of Award dated 11.05.2019 between CRCC and CR17. [63] I have examined each of the documents referred to by DW2 for the breakdown of the above figures therein being Bill No.1 General Items for the period ending 25.5.2020, the Costs of Remedial Works (other than BQ), the Interim Payment Claim (SCIC) For Workdone Section 7 Bill of Quantities, Bill No. 8 Viaducts, the Copy of the Breakdown of the replacement bored pile done by the party engaged by the Defendant as attached at Appendix B of DW2’s Revised Witness Statement and the respective Concrete Progress Records dated 5.8.2020, 14.8.2020, 18.8.2020, 19.8.2020, 28.8.2020, 9.9.2020,

14.9.2020, and 28.9.2020. From the said evidence I am satisfied on a balance of probabilities that the sums referred to therein have been incurred. [64] I have also noted from the NOP and I agree with the Defendant’s lawyers that the Plaintiff did not specifically cross examine DW2 on these documents and thus the said documents referred to above should be taken as undisputed. [65] See the case of Aik Ming (m) Sdn Bhd v Chan Ching Chuen [1995] 3 CLJ 639 where the Court of Appeal in a judgment delivered by Gopal Sri Ram JCA (as His Lordship then was) held “The law is clear on the subject. Wherever the opponent has declined to avail himself of the opportunity to put his essential and material case in cross-examination, it must follow that he believed that the testimony given could not be disputed at all. It is wrong to think that this is merely a technical rule of evidence. It is a rule of essential justice. It serves to prevent surprise at trial and miscarriage of justice, because it gives notice to the other side of the actual case that is going to be made when the turn of the party on whose behalf the crossexamination is being made comes to give and lead evidence by producing witnesses. It has been stated on high authority of the House of Lords that this much a Counsel is bound to do when cross-examining that he must put to each of his opponents witnesses in turn, so much of his own case as concerns that particular witness or in which that witness had any share. If he asks no question with regard to this, then he must be taken to accept the plaintiffs account in its entirety. Such failure leads to miscarriage of justice, first by springing surprise upon the party when he has finished the evidence of his witnesses and when he has no further chance to meet the new case made which was never put and secondly, because such subsequent testimony has no chance of being tested and corroborated.” [66] I will also rely on section 74(1) & (2) of Contracts Act 1950 which provides

When a contract has been broken, the party who suffers by the breach is entitled to receive, from the party who has broken the contract, compensation for any loss or damage caused to him thereby, which naturally arose in the usual course of things from the breach, or which the parties knew, when they made the contract, to be likely to result from the breach of it.

Such compensation is not to be given for any remote and indirect loss or damage sustained by reason of the breach. [67] I therefore hold that the Defendant is entitled to claim for backcharges against the Plaintiff for the entire rectification costs in respect of the defective bore piles since they are losses which are reasonably foreseeable (see Victoria Laundry (Windsor) Ltd v Newman Industries Ltd [1949] 2 K.B 528) and which arose from the Plaintiff’s breach of the Sub-Contract, and their failure to ensure the quality of the bore piles. [68] Accordingly, I hold that the Defendant has shown to the satisfaction of this Court that due to the Plaintiff’s defects , the Defendant had to redesign and change the location of the said piles as the Defendant was unable to use the Plaintiff’s bored pile. Conclusion & Decision [69] To conclude I therefore hold that the Plaintiff is not entitled to its claim for work done under the Final Claim for all of the reasons set out hereinabove. [70] I further hold that the Plaintiff is therefore to be liable for the rectification costs incurred by the Defendant towards the Defective Piles which sum total amounts to RM1,096,745.73. [71] I therefore award the Defendant as per their Amended Defence and Counter Claim as follows:

71.1 a declaration that the Defendant is entitled to set off and/or back charge the rectification costs in the sum of RM1,096,745.73; 24 71.2 that the Plaintiff pays the Defendant damages in the sum of RM1,096,745.73; and

71.3 interest at the rate of 5% per annum from the date of Judgment up to the date of full realization. [72] The Plaintiff pay the Defendant costs of RM100,000.00. Dated: 22nd day of September 2025 sgd. NADZARIN WOK NORDIN HIGH COURT JUDGE CONSTRUCTION COURT 1 COUNSEL FOR THE PLAINTIFF: Jason Chong Wai Zhe and Cassandra Chan Yan Nee (Messrs Thomas Philip (Kuala Lumpur) COUNSEL FOR THE DEFENDANT: Tasha Lim Yi Chien and Jan Wee Hong Xin (Messrs Gan Parnership (Kuala Lumpur)