Where a fiduciary relationship exists in a joint venture, the parties must act in mutual interest, and a breach of this duty can give rise to claims for unreceived payments for works done.

[1] This is an action that arises out of a sub-contract valued at above RM 8.0 million awarded by one Bintang Kencana Sdn Bhd ('BK') to the Defendant ('D'). Following the award of the sub-contract, D entered into a Joint Venture Agreement ('JVA') with the Plaintiff ('P') who commenced this claim against D for breach of the terms of the JVA arising out on non-payment to P for works done amounting to about RM 25 million.

Brief/Agreed Facts

1) Via Letter of Award dated 4 August 2008, Defendant was awarded a sub contract by a company named Bintang Kencana Sdn Bhd for "Cadangan Projek Pembinaan Secara Industrialised Building System untuk Sekolah Baru di Negeri Selangor" for the price of RM 8,727,554.35 (hereinafter referred to as "the said project").

2) By an agreement dated 11 March 2009, Plaintiff and Defendant entered into a joint venture agreement ('JVA') to perform the said project (hereinafter referred to as "the said agreement").

3) Amongst the terms and conditions of the said agreement are as follows:-

(a) Plaintiff to perform and be responsible for works and operations and management at the project site (cl 9);

(b) Defendant to be responsible to deal with Bintang Kencana Sdn Bhd for correspondence and for coordination of the said project (cl 9);

(c) Both parties agree that the Defendant's entitlement is only 8% from the said contract including the "variation orders" and the Defendant's entitlement is subject to the actual works done (cl 5).

4) The final payment received by the Plaintiff from the Defendant was around February 2013 for the sum of RM 290,000.00.

Issues To Be Tried

1) Whether the Defendant is liable to make payment of the sum of RM 2,037,459.23 claimed by the Plaintiff?

2) Whether the Additional Works and Re-measurement factual works were done with the approval of the main contractor, Bintang Kencana Sdn Bhd?

3) Whether the Defendant had breached his fiduciary duties and/or duty of care owed to the Plaintiff when the Defendant received RM 300,000.00 paid to the main contractor, Bintang Kencana Sdn Bhd as the final payment?

4) Whether the Defendant owed RM 2,037,459.23 or any sum to the Plaintiff?

Defence Case

(1) There is no debt due to P under the contract (JVA) based on the progress claims ('PCs') made by P to the main contractor ('BK') via D. It was D's duty to pay P on based on the PCs approved and paid by BK. All the PCs approved and paid by BK have been forwarded to P after deducting 8% in accordance with P's agreed share under the JVA. P have duly received their prescribed share of the payment received from BK in the sum of over RM 8.0 million as acknowledged in their letter dated 10 April 2014. The total amount approved and paid by BK exceeded the original contract value, which was within the knowledge of P, who did not raise any formal objection to the amount paid.

(2) P failed to clearly prove the amount of debt due as pleaded and their calculation of the purported claim adopts a wrong method. At all material times, when the PCs were approved by BK, D informed P of the amounts approved and paid by BK but no objections were made by P who accepted their share of the payments. Neither did P at any instance dispute the amounts approved by BK on the PCs.

(3) The claim for Additional Works ('AW') is wrongly made and P failed to prove the amount claimed for this item of claim. Just as in the case of the other PCs, the 42 AW claims that P had prepared and handed over to D had b