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2021 MarsdenLR 990
HIGH COURT MALAYA KUALA LUMPUR
NTN ASIA BUILDER SDN BHD – Appellant
Versus
SINOHYDRO CORPORATION (M) SDN BHD & ANOR – Respondent
[Civil Suit No: WA-22C-33-04/2019]
The court found joint liability of defendants and awarded the plaintiff RM4,193,360.10 for completed work, dismissing the defendants' counterclaims citing lack of evidential support.
Headnote:(A) Contracts Act 1950 – Section 71 – Construction contracts – Dispute over claims for payment for completed work under a terminated sub-contract for architectural works – The Plaintiff claims RM4,193,360.10 based on expert valuation while the First Defendant counterclaims RM11,391,403.34 alleging breach – The court determines liability of Defendants as joint and several as per Section 44 of the Contracts Act – The valuation of the work done is assessed by the expert evidence provided. (Paras 44, 86, 113)
(B) The court accepts the Plaintiff's valuation over the defendant's due to the thoroughness and cogency of the Plaintiff’s expert’s assessment. (Paras 84, 112)
Facts of the case: The Plaintiff completed work for two apartment blocks under a sub-contract but was not compensated as the main contractor defaulted. The Plaintiff sought payment while the First Defendant counterclaimed damages alleging breach of contract. (Paras 15-36)
Findings of Court: The Plaintiff is entitled to RM4,193,360.10 as the valuation of work completed, with interest and costs awarded against both Defendants. (Paras 113)
Issues: Whether the Defendants are jointly liable and the amount due for work done by the Plaintiff under the sub-contract. (Paras 37-38)
Ratio Decidendi: The court finds liability to be joint and several and the expert report of the Plaintiff’s witness preferred over the First Defendant's testimony in assessing the value of work done. (Paras 39, 84)
Result: Judgment for the Plaintiff for RM4,193,360.10 against the Defendants, with the counterclaim by the First Defendant dismissed.
JUDGMENT
Introduction
[1] This is a dispute on the value of completed work done pursuant to a terminated sub-contract for structural and architectural works in respect of an apartment project in Genting Highlands.
[2] The Plaintiff is a private limited company involved in the wholesale business.
[3] The First Defendant is similarly a private limited company involved in civil and engineering construction business.
[4] The Second Defendant is also a private limited company involved in the construction and machinery rental business.
Preliminary
[5] In this suit, the Plaintiff sued both Defendants for construction work done under the construction contract or alternatively on quantum meruit pursuant to s 71 of the Contracts Act 1950 . The Plaintiff claimed for the following in its pleading:
(a) The Defendants jointly and severally pay the Plaintiff the sum of RM6,734,866.92;
(b) In the alternative, the Defendants jointly and severally pay damages to be assessed;
(c) general damages;
(d) interest at the rate of 5% per annum;
(e) costs; and
(f) such further and other relief as deem fit and proper by this Honourable Court.
[6] The First Defendant responded that the Plaintiff breached its construction contract and counterclaimed for the following in its pleading:
(a) damages in the sum of RM11,391,403.34;
(b) interest on the sum of RM11,391,403.34 at the rate of 5% per annum from the date of this counterclaim to the date of actual and full payment thereof;
(c) general damages to be assessed and paid by the Plaintiff to the First Defendant;
(d) interest on any general damages awarded at the rate of 5% per annum from the date of judgment to the date of full and actual payment thereof;
(e) costs;
(f) any other or further relief deemed just by the Honourable Court.
[7] The Second Defendant entered its appearance but did not thereafter participate further in the suit. Nonetheless, I proceeded with the trial against the Second Defendant too in absentia based on O 35 r 1(2) of the Rules of 2012; see also Guindarajoo Vegadason v. Satgunasingam Balasingam, [2010] 4 MLJ 842.
[8] As the result, the trial eventually took place between the Plaintiff and First Defendant only for 5 days on 22 to 25 February and 19 March 2021.
[9] The trial documents were marked as bundles A to W which included the documentary evidence in bundles B to T which carried status A or B as stipulated therein. In addition, exhibits D1 was admitted in evidence in the course of the trial.
[10] The Plaintiff called the following witnesses to give testamentary evidence:
(i) Ng Thok Nee ("PW1"), a director of the Plaintiff; and
(ii) Sr. Cheng Wei Ying ("PW2"), a consultant quantity surveyor of Unitech QS Consultancy Sdn Bhd.
[11] The First Defendant called the following witnesses to give testamentary evidence:
(i) Sr. Saw Soon Kooi ("DW1"), a consultant quantity surveyor of Kuantibina Sdn Bhd; and
(ii) Lan Dian ("DW2"), business manager of the First Defendant.
[12] After the close of the trial, the parties furnished their respective written closing submissions in chief and submissions in reply simultaneously. Oral submissions and clarification with counsel was held on 1 October 2021.
[13] I thereafter deferred my decision to deliberate on the arguments put forth by them.
[14] Now having done so, I give hereinbelow my decision together with the supporting grounds.
Background Facts
[15] The First and the Second Defendants had by an agreement dated 26 May 2016 formed a consortium known as Sinohydro-Temasek Consortium ("Consortium").
[16] By a letter of award dated 24 June 2016, the Consortium was appointed as the main contractor by NCT Building and Civil Engineering Sdn Bhd ("Employer") for a project known as:
"The Execution and Completion of Phase 3 Comprising Block 2, 24 Storey Apartment (219 Units) and Block 3, 26 Storey Apartment (139 Units) for "Cadangan Pembangunan Bercampur Yang Mengandungi:-
(A) 4 Blok Pangsapuri 24-26 Tingkat (709 Unit);
(B) 1 Blok Pangsapuri 9 Tingkat (72 Unit);
(C) 1 Blok
