JUDGMENT

1. The plaintiff's/respondent claim against the defendant/appellant was for a sum of RM856,337.25 being the amount over paid/short paid under the Agreement dated 16th May 1992 (Exhibit CNS1), and comprising of:-

(a) RM690,391.98 being the difference between the price for spun piles as in the Agreement and the price of spun piles actually utilised in the project work;

(b) RM165,945.27 as the amount overpaid in respect of the construction of storage tanks;

(c) damages; and

(d) costs at 8% from date of judgment until settlement.

Under item (a) above, the alternative prayer is for the return of the unused spun piles i.e. 4,060 m. of 600 mm diameter and 267 m. of 250 mm diameter spun piles (Exhibit CNS3). [2]

2. In the Statement of Defence and Counterclaim and his affidavit affirmed on 7.7.95, the appellant disputed the whole sum claimed by the respondent as the pile materials were to be excluded from the agreement CNS1. This was confirmed by the respondent's affidavit affirmed on 25.5.95. There was no evidence that the respondent had purchased or supplied the piles for the project. The appellant had a right of set-off against the respondent's claim.

3. At the hearing on the first instance, the learned Research Officer made the following orders: -

(a) disallowed the respondent's claim for RM690,391.98;

(b) allowed the respondent's claim and judgment for RM165,945.27 in favour of the respondent; and

(c) costs in the cause.

The appellant appealed against decision (a), while the respondent appealed against decision (b) and the appellant counterclaimed against the respondent for a sum of RM16,005.05 being overpayment, representing the payment of RM4,809,846.88 against the contract price of RM4,793,841.83 (the Research Officer observed that the figure shown in the Agreement was different). No decision was made in regard to the counterclaim in the lower court.

4. This appeal is supported by the appellant's affidavits affirmed on 7th July, 1995 and 5th July, 1996 and of Benedict Lim of 21st July, 1995, whilst the respondent's affidavits affirmed on 25th May, 1995 and 20th July, 1995 are in support of the respondent's case.

5. Briefly the facts are as follows: -

Petronas Dagangan Sdn. Bhd. contracted out a work project to Sumatec Corporation Sdn. Bhd., and the latter sub-contracted part of the work to Tan Kok Ming (the appellant). Tan, further, sub-subcontracted the work to Choo Ngie Sin (the respondent), and the agreement between the respondent and the appellant was concluded on 16th May, 1992 [3] (Exhibit CNS1 cum Appendix A) (hereinafter called "the Agreement") governed the relationship between the parties.

6. According to Agreement CNS1, the original contract price for the work was RM5,310,956.00. However the parties agreed to deduct a sum of RM352,000.00 for the cost of site preparation and the Jetty Fender, and the revised contract price as on 25th May, 1995 was RM4,958,956.00 (Appendix A to Exhibit CNS1).

7. At the onset of the hearing, the respondent indicated to the court that he was pursuing the appeal under O. 14 of the Rules of the High Court, 1980 (hereinafter called the "RHC"). In KOH SIAK POO v. PERKAYUAN OKS SDN BHD & ORS (1989) 3 MLJ 164 the Supreme Court held that the approach to be taken by an apellate court in an O. 14 appeal has been settled. The appeal should not be regarded as reviewing the exercise of the judge's discretion but should approach the appeal as a rehearing. See UNITED MALAYAN BANKING CORPORATION v PEMBINAAN KSY SDN BHD & ORS (1993) 3 MLJ 45 (SC).

8. This case is essentially a dispute on the construction of the Agreement. The dispute is whether the parties to the Agreement had intended that the price for spun piles is the price as shown in the Agreement or that it is to be calculated on the price of the spun piles actually used in the project work.

"The contract must be construed as a whole, effect being given, so far as practicable, to each of its provisions" - per Lord Atkinson in BRODIE v. CO