The appeal succeeded as the High Court erred in dismissing the appellant's claims while allowing unsupported counterclaims.

[1] The appellant is appealing against the whole decision of the learned High Court Judge dated 16 January 2013 after full trial. The learned High Court Judge had dismissed the appellant's claim against the respondent and had allowed the respondent's counterclaim against the appellant.

[2] For ease of reference we will refer the parties as in the High Court suit wherein the appellant was the plaintiff and the respondent was the defendant.

Facts

[3] The undisputed facts are as follows:

3.1 the defendant was employed by the Government of Malaysia/ Jabatan Kerja Raya ("JKR") as the main contractor for the project known as Upgrading of Existing Port Dickson Polytechnic, Port Dickson, Negeri Sembilan ("the project");

3.2 by two separate subcontracts, the defendant employed the plaintiff as the subcontractor for the following parts of the construction works in the project:

(a) Subcontract for Earthworks dated 2 January 2002 ("Earthworks Subcontract") at a particular portion of the site and for 6,850 cubic meters of earth at the rate of RM2.30 per cubic meter, or a total subcontract sum of RM15,755.00;

(b) Subcontract for Permanent JKR Site Office and Temporary Site Office dated 30 January 2002 ("Site Office Subcontract") for a subcontract sum of RM185,000.00;

3.3 in the suit the plaintiff claimed:

(a) in respect of the Earthworks Subcontract:

(i) RM270,625.13 as the value of earthworks done but not paid

(ii) RM8,726.97 as release of the first moiety of retention money; and

(iii) interests thereon;

(b) in respect of the Site Office Subcontract:

(i) RM89,811.09 as value of works done but not paid;

(ii) RM6,789.50 as release of first moiety of retention money; and

(iii) interests thereon;

3.4 in the suit, the defendant counterclaimed:

(a) in respect of the Earthworks Subcontract, RM666,820.00 comprising RM295,840.00 for completing the plaintiff's works and RM370,980.00 for clearing the debris allegedly dumped by the plaintiff onto the neighbouring land of Matrix Concept Sdn Bhd ("Matrix Concept");

(b) In respect of the Site Office Subcontract, RM10,000.00 for clearing works done by Global Season Sdn Bhd ("Global Season").

Before Us

Site Office Subcontract

[4] As the issues, facts and evidence in respect of the Site Office Subcontract are simpler and shorter, the plaintiff had submitted on it first. We agree with this approach.

[5] It was submitted by the plaintiff that the learned High Court Judge did not make any specific finding of fact in regard to the Site Office Subcontract other than to state at para 34.2 of his Grounds of Judgment:

"34.2 Pihak defendan telah menanggung kos tambahan dan mengalami kerugian dengan melantik subkontraktor lain bagi menyempurnakan kerja-kerja tanah dan kerja-kerja tapak Pejabat JKR."

There was no reason given for this decision and no analysis or discussion of evidence was done by the learned High Court Judge.

[6] Witnesses for both parties had confirmed that the original scope of works for the Site Office Subcontract was RM185,000.00 and that this original scope was completed by the plaintiff. The items of works in dispute are in regard to the variation works. The parties respective amounts for the variation works are as follows:

Item of Variation

Plaintiff's figure (RM)

Defendant's figure (RM) [as per paragraph 19, Amended Statement of Defence (page 61, ACOB) and DWI's Witness Statement (page 112 ACOB)]

(1) Change from timber windows to aluminium windows

3,215.68

2,894.11

(2) Change of terrazo floor tiles to porcelain granite tiles

56,524.30

16,891.18

(3) Mild steel gate (backyard)

960.00

(4) Septic tank OKA

3,600.00

2,200.00

(5) Additional electrical and external water supply w