JUDGMENT

1. The plaintiff's claim against the defendant was for a sum of RM856,337.25 comprising of RM690,391.98 being the amount over deducted for the supply of piles and RM165,945.27 being the amount short-paid for the driving of piles for item 3.1 at page BTS/4 and BTS/5 of the subcontract.

2. Alternatively, the plaintiff's claim for the surplus piling material, 4060 meters 600 mm diameter of spun piles and 267 metres 250 mm diameter of spun piles with a total value of RM690,391.98.

3. Further, the plaintiff claims for the sum of RM45,893.22

4. Brief facts of the case are as follows:-

4. ;1. Petronas Dagangan Berhad had agreed on 18th September, 1991 to award the contract dated 18th May, 1993 to Sumatec Corporation Sdn Bhd (the main contract) for the [2] Procurement, Construction and Commissioning of PDSB Bulk Storage Depot at Seduan, Sibu, Sarawak. Sumatec Corporation Sdn Bhd sub-contracted on 11.5.92 Part 1 and 3 of the main contract to Robin Welding & Engineering Sdn Bhd (the defendant) whereby the defendant agreed to carry out the civil structural works inclusive of piling work and mechanical works which consists of fuel storage tanks, piping and other associated works for PDSB or Petronas Project. The agreement was signed on 14th October, 1992.

4. ;2. On 16th May, 1992 the defendant entered into a sub-subcontract with the plaintiff whereby the plaintiff agreed to carry out Part 1 of the main contract works - civil and structural work inclusive of piling work for the Petronas Project.

5. The question for the determination of the court concern the proper construction of the contract of 16th May, 1992 i.e. the sub-subcontract between the plaintiff and the defendant:-

(a) ;whether or not the supply of piling materials amounting to RM2,838,007.00 was taken out of the contract; and

(b) ;whether item 3.1 is a provisional sum or lump sum as intended by the parties.

(a) Whether the supply of piling materials was taken out or not

6. The plaintiff contended that the piling materials were purchased on his behalf by the defendant and deducted from the sub-contract sum because it was agreed that the defendant was to help the plaintiff in carrying out the work under the contract. The understanding between the parties was that the supply of piling materials was undertaken by Robin Welding & Engineering Sdn Bhd (the defendant) and the value of the material supplied would be deducted from the sub-contract sum, to an amount of RM2,838,007.00. According to the plaintiff's calculation at page 242 AB1 the costs of piles include bank charges, handling charges and port charges while the Sumatec's counter-offer of RM2,838,007.00 only include sea transport charges excluding handling and transport charges. [3]

8. PW1's testimony stated that Sumatec had agreed to include the handling charges and the cost of transportation in the sum of RM2,238,007.00. He alleged that this figure was given to him by the defendant. Thus the plaintiff was entitled to the savings of RM690,391.98 or 4046 metres 600 mm and 267 metres 250 mm of spun piles.

9. The defendant contended that the supply of piles was not part of the term in the sub-subcontract. DW3 testified that the sum of RM2,838,007.00 had been taken out and deducted from the sub-contract price and he was a witness to the sub-subcontract. After making the adjustment to reflect the deduction so as to arrive at RM5,310,956.00 as the sub-subcontract sum. After signing the sub-subcontract on 16th May 1992, the plaintiff's scope of work did not cover the supply of piles (pages 103 and 104 AB4).

10. The plaintiff had admitted that the terms and conditions of the sub-subcontract in regard to the scope of work to be performed by the plaintiff was subject to the terms and conditions of the main contract for the relevant scope of work signed by Petronas and Sumatec. As between Sumatec and the defendant, the sum of RM2,838,007.00 was taken out of the contract dated 11.5.1992 (page 153 AB4). Piling materials were to