The absence of privity of contract prevents the Plaintiff from enforcing a claim for direct payments against the Defendants subsequent to YFG's winding up.

Aliza Sulaiman J:

Introduction

[1] This suit involves a claim by the Plaintiff against the Defendants for the alleged outstanding monies due and owing for original works and variation works for the Women and Children Hospital Kuala Lumpur.

[2] Although the Plaintiff is the sub-contractor engaged by YFG Engineering Sdn Bhd ('YFG'), the Defendants' apointed subcontractor, to carry out electrical works for the Project, the Plaintiff claimed that there is a contract between itself and the Defendants. This allegation was precipitated by the fact that YFG has since been wound up.

[3] The Court, having considered the pleadings, pre-trial documents, oral and documentary evidence and written submissions by the parties, including the clarifications provided by the learned counsels, Mr Dinesh Nandrajog for the Plaintiff and Mr Sanjay Mohan for the Defendant, had dismissed the Plaintiff's claim with cost of RM20,000.00, subject to allocatur.

[4] The Plaintiff is aggrieved with the decision and the Court now provides the full grounds of judgment.

Background Facts

[5] The Plaintiff, the 1st Defendant ('D1') and the 2nd Defendant ('D2') are all privated limited companies incorporated under the laws of Malaysia.

[6] The Plaintiff has its business address at No 2A-2, Jalan Putra 2, Taman Putra Kajang, 43000 Kajang, Selangor.

[7] D1's registered address is at No 19-2, Mercu UEM, Jalan Stesen Sentral 5, Kuala Lumpur Sentral, 50470 Kuala Lumpur while its business address is at No 13A-2, Mercu UEM, Jalan Stesen Sentral 5, Kuala Lumpur Sentral, 50470 Kuala Lumpur.

[8] D2 has its registered address at 200 Beach Street, 10300 Pulau Pinang and business address at No 200, Lebuh Pantai, 10300 Georgetown, Pulau Pinang.

[9] D1 and D2 formed the joint venture known as UEMB-NAJCOM JV and hereinafter, the reference to "the Defendants" shall mean D1 and D2 as UEMB-NAJCOM JV.

[10] The Defendants had entered into a contract with Konsortium ProHAWK Sdn Bhd ('Employer') for the design, construction, completion, testing and commissioning of the project known as "CADANGAN PROJEK PEMBANGUNAN HOSPITAL WANITA DAN KANAK-KANAK KUALA LUMPUR" ('Project').

[11] By a Letter of Acceptance dated 27 November 2014, the Defendants had appointed YFG as the sub-contractor to carry out the Electrical Works - Final Circuits ('Works') for the Project for the fixed lump sum of RM15 million. The Sub-Contract between the parties is made up of several documents, including the Articles of Agreement, Letter of Acceptance, and Conditions of Sub-Contract ('CSC').

[12] YFG then awarded the sub-contract for the Works to the Plaintiff by the Letter of Award dated 1 April 2015 ('LoA') for a total lump sum price of RM12,075,000.00, excluding Goods and Services Tax ('GST').

[13] On 22 January 2016, the Defendants sent a letter to YFG to inform that it has been decided, and in mitigating the potential penalty for liquidated and ascertained damages that may be imposed by the Employer on the Defendants, that part of the Works would be omitted from YFG's scope of works.

[14] On 8 September 2016, YFG submitted the following to the Defendants for consideration and approval:

(a) Progress Payment Claim No 19 for period ending 8 September 2016 for the sum of RM4,703,904.28 for the original works with the value of work done stated as RM12,890,295.58; and

(b) Variation Work Progress Payment Claim No 04 for period ending 8 September 2016 for the sum of RM 3,112,782.23 for the variation works with the value of work done stated as RM4,941,463.57.

[15] In connection with the above-mentioned Progress Claims, the Defendants had issued:

(a) the Certificate of Payment No 21 on 5 October 2017 to YFG for the original works whereby the certified sum of RM810,276.11 excluding GST was paid by the Defendants to YFG; and

(b) the Certificate of Payment No 3 on 7 December 2017 to YFG for