A plaintiff must provide an opportunity for a defendant to rectify breach-related defects before claiming damages.

Introduction

[1] The plaintiff is an individual of Malaysian citizen with an address of service at No 18 Jalan Setiakasih, Bukit Damansara, 50490 Kuala Lumpur.

[2] The defendant, PCOM, was and is in the business of selling and installing Smart Home System in residential and commercial properties.

[3] By way of Bill of Quantities Form ("BOQ") dated 20 October 2016, the plaintiff agreed to engage the defendant and the defendant agreed to sell to the plaintiff and installed Crestron Smart Home System with HOMEX technology in the plaintiff's bungalow with an agreed total value after variation order issued by the defendant.

[4] The plaintiff and his family moved into the bungalow on 3 August 2018. The plaintiff alleged that the Home Security System and the Home Appliance Control System were not operational and the installation works were not done properly with reasonable care and skill.

[5] The plaintiff alleged that prior to the said move-in on 3 August 2018, there was no indication by the defendant that they required an extension of time to complete the installation works in the bungalow.

[6] On 5 August 2018, the defendant informed the plaintiff that installation works would be completed by 28 September 2018, a delay of almost 7 weeks after the alleged completion date on 3 August 2018.

[7] The plaintiff conveyed his dissatisfaction and thereafter 4 meetings were held between the plaintiff and the defendant to discuss the numerous complaints and requests by the plaintiff.

[8] During the meeting on 7 August 2018, the defendant informed their position that BOQ Form did not prescribe any timeline for the completion of the Smart Home System.

[9] By a letter dated 8 August 2018, the defendant confirmed that only 70.8% of the Smart Home System installation works had been completed.

[10] By reason of the delay, the plaintiff issued a letter of demand dated 16 August 2018 and demanded that the defendant compensate him for his costs incurred and which would be incurred as a result of the defendant said breaches of the BOQ Form.

[11] The defendant however did not comply with the plaintiffs demands. Therefore, the plaintiff engaged another contractor to complete the installation works.

[12] The plaintiff also engaged a professional IT security specialist and a new Crestron authorised installer, Inthome Line Solution ("Inthome") to complete the unfinished works and rectify any defective works by the defendant.

[13] By way of summons and statement of claim dated 29 November 2019, the plaintiff claimed from the defendant as follows:

(i) Special damages in the amount of RM115,796.60 for hiring additional security guards from 13 August 2018 to end of September 2019 to ensure the safety of the plaintiff and his family.

(ii) costs of engaging the IT specialist.

(iii) costs of rectifying the installation defects, amounting RM387,023.00.

(iv) costs adjustment from inappropriate or unnecessary items sold by the defendant amounting to RM16,028.00.

(v) general damages for breach of the BOQ Form, negligence and fraudulent and/or reckless misrepresentation.

(vi) further and/or in the alternative, the sum of RM423,137.38 to be restituted to the plaintiff; and

(vii) costs and interest.

[14] During the trial, the plaintiff called 6 witnesses to testify for the plaintiff, namely Mr Quah (SP1), Mr Koo (SP2), the plaintiff (SP3), Mr Fong (SP5) and Mr Baxter (SP6).

[15] The defendant called 3 witnesses to testify in Court, namely Mr Guven Togan (SD1), Avan Tan Cheow Wee (SD2) and Muhamad Khairul Rizal bin Abdul Karim (SD3).

Issues To Be Tried

[16] Based on the facts of the case, the issues to be tried by the Court are as follows:

(a) Whether the defendant had repudiated the contract and whether the plaintiff was entitled to tre