The Plaintiff must demonstrate loss through clear evidence; failure to substantiate profit claims leads to dismissal.

JUDGMENT

Faizah Jamaludin J:

A. Introduction

[1] This is a civil suit brought by the Plaintiff, Cahaya Berlian Sdn Bhd, against the Defendant, the Datuk Bandar Kuala Lumpur ("DBKL") for wrongful termination of a contract made pursuant to an agreement dated 25 September 2015 and the DBKL Contract Form dated 20 April 2016 ("the Contract") for a project known as "Cadangan Menaiktaraf dan Mengindahkan Kawasan Sekitar Lebuh Ampang. Wilayah Persekutuan, Kuala Lumpur" ("the Project").

[2] In its statement of claim, the Plaintiff prayed for general damages and special damages in the sum of RM2,130,334.13, which is comprised of the second progress payment made under its second progress claim for the sum of RM928,049.08; retention sum of RM63,000.00; and loss of profit in the sum of RM1,139,285.05. which the Plaintiff claims is the projected/estimated profit at 30% of the Contract sum. The Contract sum is RM3,582,657.40.

[3] However, on the second day of trial, the Plaintiff abandoned its claim for the second progress payment in the sum of RM928,049.09. Learned counsel for the Plaintiff, Ms. Sangeet Kaur informed this Court that the Plaintiff will be filing an application for a summary determination under O 14A of the Rules of 2012 ("ROC") on whether DBKL's termination of the Contract was wrongful.

[4] The Plaintiff's application for the summary determination of liability was filed in encl 88. On the hearing of the application, this Court summarily determined under O 14A of the ROC that based on the documentary evidence and the terms of the Contract, DBKL's termination was not made in accordance with the Contract and was accordingly wrongful.

[5] Trial before this Court then resumed for the assessment of damages suffered by the Plaintiff, if any, as a result of DBKL's wrongful termination of the Contract.

[6] At the conclusion of the trial, this Court found that the Plaintiff had failed to prove on a balance of probabilities that it had suffered loss of profits in the sum of RM1,139,285.05 as a result of the wrongful termination. The Plaintiff's claim for loss of profits was accordingly dismissed.

[7] As for the Plaintiff's claim for the return of the retention sum of RM63,000.00, the evidence shows that DBKL had retained the sum of RM58,351.91 only from the first progress payment. Accordingly, DBKL was ordered to return the sum of RM58,351.91 to the Plaintiff. It was also ordered to pay the Plaintiff cost of RM8,000.00.

[8] The full grounds for my decision in respect of the assessment of damages is set-out in this Judgment.

B. Background Facts

[9] The Plaintiff was appointed by DBKL as the main contractor for the Project to upgrade and beautify the area around Lebuh Ampang, Kuala Lumpur. The contract was for a period of 36 weeks commencing from 16 November 2015 and expiring on 24 July 2016. At the Plaintiff's request, DBKL granted an extension of time of 42 days to the Plaintiff through a Certificate of Extension No.1 dated 21 July 2016. The Extended Completion Date pursuant to the said Certificate of Extension No 1 was fixed as 4 September 2016 ("Extended Completion Date").

[10] The Project was fraught with delay and defects. Two days prior to the Extended Completion Date, on 2 September 2016, the Defendant issued the Plaintiff a notice of default ("Default Notice") together with a Non-Conformance Report ("NCR") detailing the defects in the Plaintiff's works. The Plaintiff was asked to rectify the defects identified in the NCR within 14 days from the receipt of the said Default Notice. The Plaintiff claims to have received the Default Notice on 9 September 2016. But the evidence shows that the Default Notice was received on the Plaintiff's behalf on 7 September 2012. However, nothing turned on when the Plaintiff received the Default Notice as it is not disputed that the Plaintiff never remedied the defects. The Plaintiff replied the Defendant in a letter dated 9 September 2016 explaining the reasons for the defects identified in the NCR.

[11] Subs