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2023 MarsdenLR 591
HIGH COURT MALAYA JOHOR BAHRU
TEWARA SDN BHD – Appellant
Versus
LEE CHOON SENG & ANOR – Respondent
[Civil Suit No: JA-12BNCVC-7-04/2022]
The Plaintiff's failure to call material witnesses and substantiate claims resulted in dismissal of their appeal, while the Defendant's counterclaims were proven valid.
Headnote:(A) Evidence Act 1950 - Section 114(g) - Contract Act 1950 - Section 40 and Section 74 - Appeal concerning a construction contract - Plaintiff's claim for unpaid work and retention sum dismissed; Defendant's counterclaim for damages and costs allowed - Court found Plaintiff failed to call material witnesses and did not substantiate claims - Retention sum of RM136,926.15 ordered to be returned to Plaintiff. (Paras 10, 17, 54, 58)
(B) Burden of Proof - The Plaintiff bears the burden to prove claims on the balance of probabilities - Failure to substantiate claims leads to dismissal of the appeal against counterclaims. (Paras 29, 53)
(C) Judicial Discretion - The appellate court will not interfere with the trial court's findings unless shown to be plainly wrong. (Paras 10, 12)
Facts of the case:
The Plaintiff, a subcontractor, claimed unpaid sums for electrical works and retention from the Defendant, the main contractor. The Defendant counterclaimed for damages due to defects and delays in completion. The trial court dismissed the Plaintiff's claim and allowed the Defendant's counterclaim.
Findings of Court:
The Plaintiff failed to prove their claims as they did not call relevant witnesses and could not substantiate the value of the works done. The Defendant's counterclaim was proven with evidence.
Issues: Whether the trial court erred in finding the Plaintiff failed to prove its claims and whether the Defendant's counterclaims were valid.
Ratio Decidendi: The court ruled that the Plaintiff's failure to call key witnesses and provide sufficient evidence resulted in the dismissal of their claims, while the Defendant successfully proved their counterclaims.
Result: Appeal partly allowed; retention sum to be returned to the Plaintiff, but counterclaim upheld.
| Table of Content |
|---|
| 1. introduction and overview of the appeal. (Para 1 , 2 , 4) |
| 2. background facts of the case. (Para 5 , 6 , 7 , 8 , 9) |
| 3. legal standards for appellate review. (Para 10 , 11) |
| 4. court's analysis on witness testimony. (Para 12 , 17 , 18) |
| 5. plaintiff's arguments regarding witness credibility. (Para 13 , 14 , 15) |
| 6. plaintiff's claims and defenses. (Para 19 , 20 , 21 , 22 , 23 , 24) |
| 7. defendant's counterarguments. (Para 25 , 26 , 27) |
| 8. defendant's claims and evidence. (Para 28 , 29 , 30 , 31 , 32) |
| 9. court's findings on defects and claims. (Para 33 , 34 , 35) |
| 10. final court analysis and findings. (Para 40 , 41 , 42 , 43 , 44 , 46) |
| 11. court's ruling on retention sum. (Para 54 , 56) |
Introduction
[1] For ease of reference, the Appellant will be referred as "the Plaintiff" and the Respondent will be referred as "the Defendant".
[2] This is an appeal by the Plaintiff against the decision of the Session Court Judge ("SCJ") on 28 March 2022 who dismissed the Plaintiff's claim with costs of RM10,000.00 to be paid by the Plaintiff to the Defendant simultaneously allowing the counter claim of the Defendant as follows:
(a) the sum of RM92,424.00 being liquidated and ascertained damages for the delay in completing the works;
(b) the sum of RM274,028.00 being the additional costs incurred by the Defendant to rectify defects and finish the works omitted by the Plaintiff;
(c) interest at the rate of 5% per annum on RM92,424.00 calculated from the date of filing the counter claim ie 8 October 2019 until the date of full settlement;
(d) interest at the rate of 5% per annum on RM274,028.00 calculated from the date of filing the counter claim ie 8 October 2019 until the date of full settlement;
(e) cost of RM10,000.00 to be paid by the Plaintiff to the Defendant.
[3] After having read the grounds of judgment of the SCJ, the Appeal Records and Parties' written submissions, and having heard the oral submissions of the Parties, the Court allows part of the appeal of the Plaintiff that the Defendant is to return the retention sum of RM136,926.15 (reduction sum) with costs of RM5,000.00, subject to cost of allocator, to be paid by the Defendant to the Plaintiff. However, the Court dismissed the appeal against the counter claim of the Defendant with costs of RM5,000.00, subject to cost of allocator, to be paid by the Plaintiff to the Defendant.
[4] Dissatisfied with the said decision, the Plaintiff has in turn appealed further to the Court of Appeal. The Defendant also filed a cross appeal to the Court of Appeal against this Court's decision in allowing part claim of the Plaintiff.
Background Facts
[5] The Defendant was the main contractor appointed by Johor Land Berhad ("Employer") for the following projects:
(a) construction of 81 units of terrace houses type Roselle 1 at neighborhood 12, Bandar Dato' Onn, Johor Bahru, Johor ("Roselle 1 Project (BDO 81)");
(b) construction of 86 units of terrace houses type Roselle 2 at neighborhood 12, Bandar Dato' Onn, Johor Bahru, Johor ("Roselle 2 Project (BDO 86)");
(c) construction of 144 units of terrace house type Lovage at Taman Bukit Dahlia, Pasir Gudang, Johor ("Lovage Project (PG 144)"); and
(d) construction of 4 units show house which include 2 units type Amber 1 and 2 units type Amber 2 at Bandar Tiram 1, Johor Bahru, Johor ("Amber Project");
(Roselle 1 Project (BDO 81), Roselle 2 Project (BDO 86), Lovage Project (PG 144), and Amber Project are collectively referred to as the "Project").
[6] The Defendant agreed to appoint the Plaintiff as subcontractor to supply, delivery, lay and install complete with (c/w) testing and commissioning for electrical works system, telephone and street lighting infrastructure system for the following Projects(the "Works"):
(a) Roselle 1 Project (BDO 81) on 26 April 2013;
(b) Roselle 2 Project (BDO 86) on 26 April 2013;
(c) Lovage Project (PG 144) on 20 July 2013; and
(d) Amber Project on 11 May 2013,
(collectively referred to as the "LOAs").
[7] The Plaintiff claimed th
