Hasan Lah JCA:

Introduction

[1] the appellant applied by way of summons-in-chambers dated 30 July 2004 for summary Judgment pursuant to O 14 of the Rules of the High 1980. The appellant's application was allowed by the learned senior assistant registrar who gave Judgment for the appellant for:-

(a) the sum of RM3,017,587.15;

(b) interest at the rate of 8% per annum on the sum of RM3,017,587.15 from the date of the order till the date of full realization; and

(c) costs.

[2] Being dissatisfied with that decision the respondent appealed against the decision to the judge in chambers. The learned Judge who heard the appeal allowed the respondent's appeal. The appellant then appealed against the decision of the learned Judge. On 10 October 2006 we heard this appeal and by a unanimous decision we allowed the appeal with costs.

Facts Of The Case

[3] the respondent was the main contractor of a project known as "Cadangan Membina Kolej Matrikulasi Perak Di Atas Sebahagian Dari Lot 137664, Mukim Teja, Daerah Kinta Untuk Kementerian Pendidikan Malaysia" (hereinafter referred to as "the said project"). The appellant was appointed by the respondent as a sub-contractor for RC Work, Brickwork, Plastering, Screeding and Perimeter Drain (hereinafter referred to as "the Sub-Contract Works") in relation to the said project pursuant to a Letter of Award dated 14 May 2001.

By this action the appellant claimed against the respondent for the sum of RM3,017,587.15 being the outstanding amount due and owing by the respondent for all the works done and completed, inclusive of the sum of RM435,161.64 being the retention monies and the sum of RM348,129.31 being the so-called "unauthorized deduction" by the respondent.

[4] the appellant had completed the works for the Sub-Contract Works and a certificate of practical completion had been issued by the Superintending Officer from Jabatan Kerja Raya ("JKR") to the effect that all works for the said project had been completed on 28 February 2002. The appellant had also rectified all the defects identified by the respondent.

[5] In the appellant's amended statement of claim dated 26 July 2004 the appellant said that the respondent had agreed that the revised sub-contract sum as stated in the progress payment certificatesNo: 12(a) and 12(d) which were issued by the respondent in February 2003 and December 2003 respectively was RM17,406,465.49. The appellant further alleged that the parties had several negotiations after the appellant, through its solicitor, sent a notice of demand to the respondent. The appellant alleged that as a result of the negotiations the appellant had agreed that the final sub-contract sum was RM17,943,157.06.

[6] In para 26 of the appellant's affidavit-in-support the appellant explained how the claim for RM3,017,587.15 was arrived at. Based on the said sub-contract sum of RM17,943,157.06 the appellant deducted an amount of RM11,300,000 which had already been paid by the respondent to the appellant and an amount of RM3,625,569.91 in the form of contra and back charges which had been agreed upon by the appellant. Hence, the amount remained unpaid for the works done was RM3,017,587.15 which was made up of the following figures:-

(a) RM435,161.64 for retention money;

(b) RM348,129.31 for unauthorized deductions; and

(c) RM2,243,296.20 for the works done and not paid.

[7] the respondent disputed the appellant's claim and contended that the total amount to be paid to the appellant could only be ascertained after the respondent issued the final account to the appellant.

Findings Of The High Court

[8] The learned Judge of the High Court held that the respondent has raised bona fide triable issues in this case for the following reasons:-

(a) The amount stated in the appellant's final account statement was disputed by the respondent.

(b) the respondent's progress payment certificates should not be regarded as final. The respondent's progress payment certificatesNo: 12(a) and 12(d) which were exhibited as exh