JUDGMENT

Nadzarin Wok Nordin JC:

(Enclosure 1)

Factual Background

[1] Pursuant to a Letter of Award dated 19 April 2019 (Ref: LLCISB/EDT3E/YYSB/LOA/19-04-2019) ("LA"), the defendant had appointed the plaintiff as the Sub-subcontractor to provide Earthwork service (Earthwork s 3.3 from Ch 680.000 to Ch 690.150) ("Works") for a Project known as "Electrified Double Track Gemas to Johor Bahru s 3 - Civil Works - Site Clearance and Embankment Earthwork With All Associated Works" ("Project") with the Contract sum awarded being RM22,170,296.37 ("Contract Sum").

[2] The Works that the plaintiff was to carry out under the LA comprised of various locations and chainages, which were set out in Appendix 1A of the LOA which are as follows:

Plaintiff's Case

[3] Before this court, the plaintiff seeks to claim the sum of RM1,236,762.13 being the Retention Sum retained by the defendant and the sum of RM943,137.69 being the work done by the plaintiff.

[4] The defendant has however subsequently submitted a payment transfer slip which showed the sum of RM100,000.00 having been paid to the plaintiff, which reduced the amount claimed to RM843,137.69.

[5] The plaintiff's main witness (PW1) further reduced the amount claimed to RM834,788.49 (being the Claim for work done by the plaintiff) and maintained the amount claimed for the retention sum at RM1,236,762.13. Thus, the total amount claimed by the plaintiff accumulated to the sum of RM2,071,550.62.

Defendant's Case

[6] The defendant states that the dispute in this action concerns two primary issues:

a. The plaintiff's incomplete and defective works; and,

b. The plaintiff's delayed works.

[7] The defendant further alleges that it is not in dispute that the plaintiff's works are incomplete and that the question then that arises is the plaintiff's entitlement to payment for the work that it did carry out, and the retention sum under the Contract.

[8] The defendant therefore seeks to counterclaim a sum of RM1,336,342.22 being the back charges which is allegedly for the work done for the plaintiff.

[9] The defendant further seeks to counterclaim a sum of RM21,068,000.00 being the liquidated ascertained damages ("LAD") as the defendant claims that the plaintiff has delayed in handling the work to the defendant as per KAHD mentioned in the contract.

Plaintiff's Reply To Defence & Defence To Counterclaim

[10] The plaintiff has contended that the contract between the parties is provisional and not a lump sum contract, whereby the amount claimed by the plaintiff is only for the amount of work done by the plaintiff.

[11] The plaintiff further avers that at all material times, the defendant has never stated that the plaintiff has delivered the site to the defendant late, and that the defendant is aware that the handing over is on an "as is where is basis" as per the instruction given by the defendant.

[12] The plaintiff also contends that it has via letter dated 21 Disember 2020 informed the defendant that the plaintiff can return to the site to perform work if the defendant instructs it to do so.

[13] It is also pleaded by the plaintiff that if the defendant avers that the plaintiff has failed to complete its work:

14.1 the defendant should have asked the plaintiff to return to the site to complete the work.

14.2 nevertheless, the defendant never demanded the plaintiff nor gave any specific instruction to ask the plaintiff to return to the site.

Defendant's Reply To Defence To Counterclaim

[14] The defendant has denied that the sum of RM17,433,758.82 was the amount of work done by the plaintiff.

[15] The defendant has also pleaded that the plaintiff cannot on the one hand accept the sum of RM17,433,758.82 being the work done by the plaintiff but on the other hand deny the back charge of RM1,336,342.22 as recorded in the Final Certificate No 17.

[16] It was further pleaded by the defendant that the plaintiff should be aware that the defendant has via a letter dated 16 November 2020 informed the plaintiff that they failed to complete the