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2021 MarsdenLR 937
HIGH COURT MALAYA KUALA LUMPUR
TRIUMPHANT GALLERY SDN BHD – Appellant
Versus
AFIZAN MISKOM @ MISKAN (T/A D PERMATA AURA ENTERPRISE) – Respondent
[Civil Appeal No: WA-12BC-2-04/2020]
An appellate court's intervention is limited to clear errors of law or fact established by the trial court, particularly regarding contract interpretation and enforcement.
Headnote:(A) Construction Industry Payment and Adjudication Act 2012 – Contractual agreements – Sub-Contract termination – Appeals should not intervene unless trial court errors are clear – Court dismissed appeal based on absence of legal errors as found by previous trial judge. (Paras 16, 20, 23)
(B) Findings of Court: The Appellant was found to have not raised issues of estoppel or the Mutual Agreement during the trial, affecting their appeal on these grounds. (Paras 22, 24)
(C) Issues: Main issues included the interpretation of contract clauses and validation of the completed work's valuation. (Paras 19, 20)
(D) Ratio Decidendi: The court upheld the trial judge’s valuation of work done prior to termination despite Appellant's claims otherwise. (Paras 20, 21)
(E) Result: Appeal dismissed with costs payable by the Appellant. (Paras 12, 27)
JUDGMENT
Introduction
[1] This is an appeal against the trial judgment of the Sessions Court in respect of a terminated construction contract for the construction of a club house in Johor.
[2] The Appellant/Defendant is a private limited company involved in the construction business.
[3] The Respondent/Plaintiff is also a private limited company involved in the construction business.
Background And Preliminary
[4] By a work order dated 21 January 2015 and followed with a letter of award dated 16 March 2015 (Sub-Contract), the Appellant appointed the Respondent as its sub-contractor to construct and complete club suite mock-up and Aman Desaru Club House with 46 units club suites respectively in Pantai Timur, Kota Tinggi, Johor ("Project").
[5] The employer of the Project is Malaysian Resources Corporation Bhd ("MRCB").
[6] During the course of the carrying of the Project, MRCB terminated the main contract with the Appellant which resulted in the termination of the Sub-Contract.
[7] The parties thereafter on 25 May 2017 executed a mutual agreement ("Mutual Agreement") primarily requiring the Respondent to assist the Appellant in its legal proceedings on the terminated main contract with MRCB in consideration of the Appellant paying the Respondent the sum of RM150,000.00. This payment of RM150,000.00 was duly paid by the Appellant.
[8] However the Appellant thereafter failed, neglected or refused to pay the Respondent its dues particularly certified payments under the Sub-Contract.
[9] As the result, the Respondent on 12 November 2018 instituted the suit against the Appellant in the Johor Bahru sessions Court. The suit was later transferred to the Kuala Lumpur sessions Court on 10 March 2019.
[10] After trial, the Sessions Court judge on 17 March 2020 entered judgment for the Respondent against the Appellant in the following terms:
Defendan perlu membayar Plaintif RM726,037.59 berserta faedah pada kadar 5% setahun dari tarikh 12 November 2018 sehingga penyelesaian sepenuhnya dibuat, tuntutan balas Defendan terhadap Plaintif ditolak dan Defendan perlu membayar Plaintif kos sebanyak RM8,000.00.
[11] The Appellant was dissatisfied with the decision of the Sessions Court and has on 29 March 2020 filed its appeal to the High Court.
[12] The appeal was fixed before me on 19 August 2021. After having read the appeal record and written submissions of the parties as well as oral arguments of counsel, I dismissed the appeal with costs of RM7,000.00 subject to the usual allocator.
[13] I now provide below the grounds of my decision.
Contentions And Findings
[14] The Appellants advanced seven grounds to justification that the appeal should be allowed, viz:
(i) The learned judge erred in law and fact that the Appellant terminated the Sub-Contract;
(ii) The learned judge erred in law and fact that the Respondent's final claim has been certified in accordance with the procedure agreed between the Respondent and the Appellant;
(iii) The learned judge erred in law and fact in the interpretation of cl 12 of the Sub-Contract;
(iv) The learned judge erred in law and fact that the Appellant relied on cl 9(iv) of the Sub-Contract to avoid payment;
(v) The learned judge erred in law and fact by refusing to decide on estoppel because it was not pleaded by the Appellant;
(vi) The learned judge erred in law and fact by refusing to decide on the Mutual Agreement because it was not pleaded by the Appellant; and
(vii) The learned judge erred in law and fact in dismissing the Appellant's counterclaim because it is an afterthought.
[15] The Respondent in opposition retorted that the learned judge made her decision correctly based on the evidence and law canvassed before her. Consequently, the appeal should be dismissed.
[16] The law relating to appellate intervention generally has been succinctly set out by Nallini Pathmanathan JCA (now FCJ) in Court of Appeal case of MMC Oil & Gas Engineeering Sdn Bhd v. Tan Bock Kwee & Sons Sdn Bhd, as follows:
"[8] The instances where
