The appellate court underscored the necessity of contractual privity, establishing that MMCOG had no liability to the subcontractor where no direct contractual relationship existed.

[1] This appeal is concerned with a claim by a sub-contractor, namely the respondent, who was the plaintiff in the court below ('plaintiff'), against the appellant who was the 1st defendant in the court below ('MMCOG'). There is no direct relationship between the plaintiff and MMCOG in the form of a contract or otherwise. Their nexus, as it were, arises from MMCOG having entered into a consortium agreement with the 2nd defendant, a company known as Warga Hikmat Kejuruteraan Sdn Bhd ('Warga Hikmat') on 7 February 2007. The 1st and 2nd defendants had entered into this consortium agreement in order to carry out a project involving the engineering, procurement, construction and commissioning of crude storage tanks for Malaysian Refining Company Sdn Bhd (who was the 4th defendant in the court below1). Although they entered into this consortium agreement, no entity in law subsisted between MMCOG and the 2nd defendant. To that extent, the plaintiff's pleadings against the named 3rd defendant in the court below are misconceived, as 'Consortium of Warga Hikmat and MMCOG' does not subsist in law.

[2] In any event, the plaintiff undertook subcontract works in relation to a part of the aforesaid project works and seeks to be paid for such works. It is the plaintiff's pleaded case that it carried out the subcontract works for and on behalf of the consortium. On the contrary, it is MMCOG (the appellant's) case that the plaintiff entered into a subcontract to carry out works solely with the 2nd defendant, Warga Hikmat and not the consortium.

[3] The learned judge in the court below found effectively that the consortium was liable to the plaintiff for these unpaid monies for work done. As Warga Hikmat had been wound up, and as the consortium does not subsist as a legal entity, the learned judge concluded that MMCOG was liable to the subcontractor for these unpaid monies for work done. Accordingly, judgment was entered against MMCOG in the sum of RM7,405,345.77.

[4] On appeal, this court reversed the decision of the learned trial judge. The main ground for this reversal was that we took a different view from that of the trial judge of the facts as disclosed by the evidence (particularly the documentary evidence) given at the original hearing, and of the inferences to be properly drawn from such evidence. Ultimately therefore, the question is whether there was sufficient justification for reversing the conclusion reachedby the learned trial judge.

Intervention By The court Of Appeal

[5] As this matter comes before this court on appeal after a full trial, this court is bound to have regard to the limited power of an appellate court to reverse findings of fact of the judge who has heard the evidence. It is a long settled principle, stated and restated both domestically and in wider common law jurisprudence, that an appellate court should not interfere with the trial judge's conclusions on primary facts unless it is satisfied that he was plainly wrong. The famous speech of Lord Thankerton in Thomas v. Thomas [1947] AC 484 is arguably the most frequently cited judicial dicta on this point:

"(1) Where a question of fact has been tried by a judge without a jury and there is no question of misdirection of himself by the judge, an appellate court which is disposed to come to a different conclusion on the printed evidence, should not do so unless it is satisfied that any advantage enjoyed by the trial judge by reason of having seen and heard the witnesses, could not be sufficient to explain or justify the trial judge's conclusion. (2) The appellate court may take the view that, without having seen or heard the witnesses, it is not in a position to come to any satisfactory conclusion on the