JUDGMENT

Aliza Sulaiman J:

[1] This was an appeal by the appellant against the decision of the learned Sessions Court Judge ('SCJ') made on 25 August 2023 in:

(a) allowing the respondent's claim for the sum of RM172,719.62 with interest at the rate of 5% per annum on the said sum from the date of filing of the Writ of Summons until the date of full settlement and costs of RM6,000.00; and

(b) dismissing the appellant's counterclaim for the sum of RM360,691.17 with costs of RM1,000.00.

[2] After having considered the Record of Appeal and the comprehensive written submissions of the parties and the Common Scott Schedule (encl 22), including the oral clarification by the learned counsels who represented the parties, I allowed the appeal only in respect of subparagraph 1(a) above whereby the amount allowed following the appeal was RM103,769.22 with interest at the rate of 5% per annum from the date of filing of the Writ of Summons until full settlement.

[3] The appellant is aggrieved by my decision. These are my full grounds of judgment ('GoJ') for purposes of the appellant's appeal to the Court of Appeal.

[4] The parties shall hereinafter be referred to as they were in the Court below.

Salient Facts

[5] By the Letter of Award dated 3 August 2015 ('LoA'), the plaintiff appointed the defendant as a sub-contractor for "Supply, Fabricate, Deliver & Installation of Hot Dipped Galvanised Framing System" ('Work') for the project known as 'Cadangan Pembangunan 1 Blok Pejabat 40 Tingkat Termasuk 4 Tingkat Podium Perdagangan Dengan 6 Tingkat Tempat Letak Kereta Bawah Tanah Di Atas Lot 59, Sek 57, Jalan Raja Chulan, Kuala Lumpur untuk Tetuan Public Holdings Sdn Bhd' ('Project') for the total sum of RM533,180.00.

[6] The owner of the Project was Public Holdings Sdn Bhd and the main contractor was Daewoo Engineering & Construction Co Ltd ('Daewoo'). The plaintiff was the sub-contractor for the Project.

[7] The defendant commenced work and submitted the necessary progress claims to claim for work done during the material time.

[8] There was a delay in the progress of works. The cause of the delay is the subject of dispute between the parties.

[9] Due to the delay, the defendant was unable to complete the Work within the completion date as agreed in the LoA and the subsequent revision of the completion date.

[10] Around April 2016, and with a view of expediting the Work, the defendant agreed to the plaintiff's suggestion to bring in a third-party contractor, N.Y.C. Contracts Sdn Bhd ('NYC') to do part of the work for the East Elevation and to take over the work for the North Elevation. The defendant contended that its agreement was subject to three conditions which will be elaborated later in this judgment.

[11] The Work was finally completed in July 2016. The defendant submitted its Final Progress Claim dated 25 July 2016 to the plaintiff to claim for the final work done and requested the plaintiff to issue the Final Account.

[12] However, according to the defendant, even until five years later, the Final Account was not prepared or finalised by the plaintiff despite several reminders being given.

[13] On 25 June 2021, the defendant issued a Letter of Demand to the plaintiff claiming for the sum of RM360,691.17 premised upon the defendant's Final Progress Claim.

[14] The defendant then proceeded to issue the Payment Claim to the plaintiff pursuant to s 5 of the Construction Industry Payment and Adjudication Act 2012 ('CIPAA') claiming for the aforesaid sum of RM360,691.17. In the Payment Response, and for the first time, the plaintiff produced the Statement of Final Account ('SoFA') and Certificate of Payment, both dated 20 May 2021 wherein the Final Adjusted Contract Sum or Total Value of Work Done was RM607,376.10, backcharges were in the sum of RM432,935.78 and the amount owed by the defendant to the plaintiff was RM172,719.62.

[15] While the CIPAA proceeding was ongoing, the plaintiff filed the instant suit against the defendant.

The Legal Principles

[16]