A contract cannot be breached by one party alleging unsatisfactory performance when it obstructs the other party from fulfilling their contractual obligations.

JUDGMENT

Amarjeet Singh Serjit Singh J:

Introduction

[1] This is an appeal by OSK Construction Sdn Bhd, the defendant in the court below against the decision of the learned Magistrate allowing the claim by the plaintiff, Anuraadhaa a/p Jeyasingam (trading as Anura Arj Services Enterprise for RM41,944.00 and dismissing its counterclaim of RM43,000.00, after a full trial. The claim of the plaintiff and counterclaim of the defendant are predicated on a "final cleaning services" agreement entered into between the parties to clean the floors of one of the two towers, specifically Tower A, of a newly constructed apartment building in Butterworth, Penang.

[2] On 27 June 2022, I dismissed the defendant's appeal with costs. I was satisfied that there were no merits in the appeal and affirmed the decision of the learned Magistrate. The reasons for my decision are stated below.

The Background Facts

[3] The following facts are not in dispute. The plaintiff is an individual carrying on a business under the name Anura Raj Services Enterprise. The business is a sole proprietorship. Cleaning apartment buildings is one of the services provided by the plaintiff. On 11 June 2014, the plaintiff was given a letter of award for "final cleaning works" for all the floors comprising Tower A, by the defendant (then known as PJD Construction Sdn Bhd). The defendant was the main contractor for the development. The works to clean the floors of Tower A were sub-contracted by the defendant to the plaintiff. The letter of award was accepted by the plaintiff on 10 September 2014 and together with the tender document constituted a binding agreement between the parties pending the formalization of the contract document ("the said agreement").

[4] The "Bill of Quantities" and the price of the works was RM41,944.00 as provided in detail in Appendix 'A' attached to the letter of award. The scope of work was provided in detail in Appendix 'B' also attached to the letter of award. Hereinafter, the works referred to in Appendix 'A1 and Appendix "B" are referred to the defendant as the defendant had prior to the present contractual works used the services of the plaintiff for similar final cleaning works. The plaintiff gave evidence on her own behalf as SP1.

[5] In her statement of claim the plaintiff stated that she had purchased cleaning materials, chemicals and equipment to carry out the contractual works as specified in the said agreement. Different chemicals are used for different purposes. At the trial she produced cash bills totaling RM9,785.00 from various shops dating from 15 November 2014 to 8 January 2015 wherefrom she had purchased the said cleaning materials, chemicals and equipment. Photographs were produced to depict some of things purchased. It was also pleaded that she had engaged 10 workers who hailed from Nepal and Bangladesh at RM80.00 a day to carry out the contractual works. The plaintiff was allowed to engage foreign workers under the said agreement so long as the said workers had valid documentation. At the trial the plaintiff also produced payment vouchers being wages she paid these foreign workers amounting to RM8,000.00. The fact that the plaintiff had cleaned 3 whole floors, namely, levels 6, 7 and 8 supports such purchases and engagement of workers keeping in mind the substantial works that are to be carried out on each floor which consists of 9 units of apartment, the exterior of each apartment and the common facilities on each floor. The fact that the plaintiff had cleaned these 3 floors is an admitted fact.

[6] The plaintiff's case was that the defendant's site supervisor, one Boh Chee Meng (who was the defendant's second witness (SD2) at the trial) began hindering the plaintiff's work by failing to sign the job completion forms for work done for said 3 floors and bringing in another party, Tenaga Bersih Sdn Bhd ("Tenaga Bersih") to clean floors that had been contracted to the plaintiff under the said agreement. The plaintiff said that the act o