A subcontractor cannot recover under Section 71 of the Contracts Act if the work was not intended for the benefit of the property owner and fails to meet all statutory conditions.

(2) must be done for another person

(3) must not be intended to be done gratuitously

(4) must be such that the other person enjoys the benefit of the act or the delivery.

In their Lordships' judgment these matters must be answered at the time that the act is done or the thing delivered and this, their Lordships think, is of fundamental importance. In this case the relevant time was therefore the building of the roadway in April to December, 1961.

As to the first point it is of course clear and not in dispute that as between Mr. Siow and Susur Rotan the act was lawful, it was clearly in the contemplation of both parties that Susur Rotan should do this work.

It is the second point which in their Lordships' judgment is decisive of this case. As a matter of phraseology the section seems clear upon it. To bring the section into play the person when doing the act or delivering the thing must do the act "for another person" or deliver some thing "to him". So that his then present intention must be to do the act or to deliver the thing for or to another."

(per Lord Upjohn at p.120)(Emphasis added)

[8] In fact the principle with respect to the application of s 71 Contracts Act in Siow Wong Fatt (supra) was approved and followed in the case of Goh Soon Ann v. Sandvik Malaysia Sdn Bhd , 1984 MarsdenLR 11 where His Lordship Seah FJ delivering judgment on behalf of the Federal Court at p.123 B-F after stating:

"This section of the Contract (sic) Act) 1950 had been judicially considered by the Privy Council in the case of Siow Wong Fatt v. Susur Rotan Mining Ltd and Anor" thereafter alluded to the portion of Lord Upjohn's judgment at p.120 which is quoted in paragraph 7.1 above.

[9] In relation to the case of Siow Wong Fatt (supra), the Defendant submitted, inter alia,:

"In this case, although the 2nd condition was not satisfied by Susur, the Privy Council held that if the conditions of the other section are satisfied then compensation must be paid for that act if the person sued has enjoyed that benefit. Compensation must be prima facie be measured by the worth of the act done."

[9.1] With respect I am of the view that this statement is flawed and misleading. My reasons are as follows. The Privy Council has found that the 1st condition has been satisfied (see paragraph 7.1 above). Hence since conditions 2, 3, and 4 were not fulfilled, and only condition 1 was satisfied, the Privy Council concluded that the appeal should be allowed. It is crystal clear from the dictum of Lord Upjohn , to reiterate, "It is common ground before their Lordships that four conditions must be satisfied to establish a claim under section 71."

[10] Applying the ratio decidendi of Siow Wong Fatt (supra) to the factual matrix of this present case, with respect to the 1st condition, I find the act is lawful. My reasons are as follows.

[10.1] The Plaintiff submitted:

(i) The burden is on the Defendant to demonstrate that the Plaintiff has given written authority to JP to appoint the Defendant as sub-contractor and there is no such documentary evidence shown.

(ii) The Plaintiff was not informed concerning the existence of the contract between JP and the Defendant and SP2, Rahim bin Mohayidin, Juru Ukur Bahan, Bahagian Pembangunan dan Pelaksanaan Projek Kementerian Perumahan dan Kerajaan and in cross-examination stated that he knew of the existence of the Agreement between JP and the Defendant only after the Sale and Purchase Agreement between PTP and JP was signed.

(iii) Further, Tuan Haji Roshaizad bin Othman (DW3), the General Manager of the Defendant testified that the Defendant was appointed by JP as sub-contractor to develop the "super structure works" of the project on 15 February 2007 as per the Letter of Acceptance dated the same date to the Defendant (Bundle B pp