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2025 MarsdenLR 4790
HIGH COURT MALAYA KUALA LUMPUR
LEE BOONG HONG @ NG BOONG HONG & ANOR – Appellant
Versus
WH ELECTRICAL MARKETING (M) SDN BHD; NG WEI SIANG (THIRD PA.... – Respondent
[Suit No: WA-22C-83-08/2020]
The court ruled that the plaintiffs failed to prove their claims for payment, while the defendant's counterclaim for late penalties due to delays was substantiated.
Headnote:(A) Contracts Act 1950 - Sections 71 - Claim for construction works and services rendered - Plaintiffs claimed RM1,159,194.59 for outstanding payments, while Defendant counterclaimed for RM351,000.00 as late penalty due to delays - Court found Plaintiffs responsible for delays and dismissed their claim, allowing Defendant's counterclaim in part. (Paras 4, 144)
(B) Burden of Proof - Plaintiffs failed to prove the actual value of work done and the completion dates, leading to dismissal of their claims - The Defendant's counterclaim for late penalties was substantiated by evidence of delays. (Paras 60, 85, 144)
Facts of the case:
Plaintiffs, as contractors, claimed payment for construction works for Defendant's property, while Defendant counterclaimed for penalties due to delays in completion. (Paras 1-4)
Findings of Court:
Plaintiffs' claims were dismissed; Defendant's counterclaim for RM351,000.00 as late penalty was allowed with interest. (Paras 4, 144)
Issues: Whether the Plaintiffs sued the correct party, whether their claims were valid, and whether the Defendant's counterclaims were substantiated. (Paras 41, 52, 134)
Ratio Decidendi: The court ruled that the Plaintiffs failed to establish their claims and were responsible for delays, while the Defendant's counterclaim for penalties was valid. (Paras 85, 144)
Result: Plaintiffs' claims dismissed; Defendant's counterclaim allowed in part.
JUDGMENT
Introduction
[1] This suit involves a claim by the Plaintiffs for amounts purportedly owed by the Defendant to them for the construction works carried out and services rendered and goods delivered for the construction of the Defendant's shop cum office located in Kuala Lumpur.
[2] The Defendant counterclaimed for declaratory and monetary reliefs, among others, that the Plaintiffs' claim amounts to an abuse of the process of the Court and damages for loss of earning capacity, abuse of the process of the Court and breach of contract or negligence.
[3] In the course of the Court proceedings, the Defendant issued a Third- Party Notice seeking indemnity against the Third Party in the event judgment is entered against the Defendant for any sum.
[4] Upon consideration of the pleadings, the oral and documentary evidence and the submissions of the parties, I had dismissed the Plaintiffs' claim against the Defendant and allowed the Defendant's counterclaim against the Plaintiffs in part whereby the Plaintiffs are to jointly and severally pay the Defendant the sum of RM351,000.00 as late penalty with interest at the rate of 5% per annum from the date of judgment until full settlement.
[5] The Plaintiffs are dissatisfied with my decision and are pursuing their right of appeal. These are my full grounds of judgment.
Background Facts
[6] The 1st Plaintiff ('P1') is an individual trading as a sole proprietor under the name and style known as Top Form Renovation & Construction ('Top Form') having its principal place of business at No 2, Jalan SS5A/9, Taman Kelana Jaya, 47301 Petaling Jaya, Selangor.
[7] The 2nd Plaintiff ('P2') is also an individual trading as a sole proprietor under the name and style known as IGO 37 ARCHO GALLERY ('IGO 37'). Its principal place of business is at Lot 657B, Jalan 27, Jalan Sungai Besi, Salak Selatan Baru, 57100 Kuala Lumpur.
[8] The Defendant is a limited private company incorporated in Malaysia with a registered address at 138-3 (Suite 1), Jalan Radin Anum 1, Sri Petaling, 57000 Kuala Lumpur. Its business address is at No 100, Jalan Radin Anum 1, Bandar Baru Sri Petaling, 57000 Kuala Lumpur.
[9] The Third Party is the sole proprietor of Franco Alex Associate ('FAA'). The principal place of business is at 100-5 (Garden Unit), Jalan Radin Anum, Bandar Baru Sri Petaling, 57000 Kuala Lumpur. The business registration and start date is 29 October 2017 while the business expiry date is 28 January 2020.
[10] On 1 March 2016, the Defendant issued a Letter of Award to Top Form for the "Proposed 2 units 3 Storey Shop Lot at No 100 and No 102, Jalan Radin Anum, Sri Petaling, Kuala Lumpur, Package 1: Structure Buildings (Contract No PJSB/DBKL/BGN/1601)" for the contract sum of RM1,692,358.00 ('1st LoA').
[11] On 1 April 2017, the Defendant issued another LoA to Top Form for "Cadangan Tambahan Dan Perubahan (serta Menambah 2 Tingkat) Pada 1 Unit Pejabat / Kedai 2 Tingkat Yang Sedia Ada Di Atas Lot No 102, Jalan Radin Anum 1, Bandar Baru Sri Petaling, Mukim Petaling, Kuala Lumpur, Package 2 & 2A: Structure Buildings & ID Works (Contract No PJSB/DBKL/BGN/1601 - VO Works For 4th & &h Floor Works)" for the contract sum of RM1,764,428.00 ('2nd LoA').
[12] P1 was responsible for the civil and structural building works under the 1st LoA and 2nd LoA ('Works').
[13] The completion date for the 1st LoA is 31 December 2016 and for the 2nd LoA is 31 July 2017.
[14] On 8 November 2016, the Defendant and IGO 37 entered into a Consultation Contract for Architect services.
[15] It is an agreed fact between the Plaintiffs and the Defendant that, based on the Consultation Contract,:
(a) the consideration of the contract was RM48,000.00;
(b) additional payments will be made to P2 by the Defendant for the additional works to be carried out by P2 for the whole project; and
(c) it shall define all the obligations of P2 and the Defendant for the whole project.
[16] In addition, it was agreed that the Defendant had paid a total sum o
