JUDGMENT

Azlan Sulaiman J:

Introduction

[1] Just months after the completion in December 2017 of the construction of Phase 2A of the Plaintiffs residential project on lands in Kuala Langat, cracks appeared on the walls of several of the units due to land settlement. In August 2023, the Plaintiff filed this action against the Defendant, its civil and structural engineering consultant for the project, for damages and other relief. The Defendant counterclaimed for compensation under s 71 of the Contracts Act, 1950 and for other relief.

[2] This Judgment contains the Court 's decision on the parties' claims and counterclaims after a full trial.

Salient Facts

[3] At the heart of this action is the "Proposed Tropicana Aman Development on Lot PT33019-33028 & 33010, Mukim Tanjung Duabelas, District of Kuala Langat, Selangor Darul Ehsan" ("Project"). In particular, Phase 2A of the Project consisting of the construction of 237 houses, a community hall and a guard house ("Phase 2A").

[4] The land for the Project (including the land for Phase 2A) had earlier been part of a 5,000-acre parcel of land owned by the Selangor State Government ("State Land"). Initially, that 5,000 acres had been earmarked for the project known as "Projek Pembangunan Terusan Air untuk Tujuan Tebatan Banjir (PPTATTB) di antara Sungai Kelang dan Sungai Langat" ("Canal City Project").

[5] The Defendant was involved in the Canal City Project as the appointed Civil and Structural Engineering Consultant. In that role, the Defendant had prepared, inter alia, a Geotechnical Report, Vol 3 ("Geotechnical Report 3"), that highlighted that several parts of the State Land was made up of very soft soil comprised of soft peat and very soft clay (collectively, "Soft Soil"). Geotechnical Report 3 also mentioned the ground treatment measures that needed to be carried out before any construction work in the areas of Soft Soil could be carried out.

[6] Geotechnical Report 3 also contained the findings of a soil investigations report that had been prepared by Strata Drill Sdn Bhd in 2004 for the Canal City Project ("Strata Drill Soil Investigation Report").

[7] Geotechnical Report 3 (incorporating the findings in Strata Drill's SIR) was accepted and approved by the Jabatan Mineral dan Geosains as part of the planning submission for the Canal City Project in May 2004. However, the Canal City Project was not proceeded with.

[8] In 2013, the Plaintiff purchased 1,172 acres of the State Land, selling 308 acres of that to a company called Eco Sanctuary Sdn Bhd ("Eco Sanctuary") in 2014, and intending to use the balance of approximately 864 acres for the Project, including the land over which Phase 2A of the Project was constructed ("Phase 2A Land"). The Phase 2A land measured approximately 21.32.acres of that balance (ie 2.467%).

[9] Given the Defendant's previous appointment as Civil and Structural Engineering Consultant for the Canal City Project, the Plaintiff employed as its Civil and Structural Engineering Consultants for the Project, and had used Geotechnical Report 3 and SD's Soil Investigation Report as part of its planning submission for the Project, with the approval of the the Jabatan Mineral dan Geosains.

[10] Apart from Geotechnical Report 3, the Defendant had also prepared for the Plaintiff a Terrain Mapping Report ("Terrain Mapping Report") that contained a summary of the bore logs included in Geotechnical Report 3, and a Consolidation Settlement Calculation for Phases 1 and 2 of the Project ("Consolidation Settlement Analysis").

[11] There were altogether seven letters of award that the Plaintiff issued to the Defendant for the Tropicana Aman Project, namely:

(i) Letter of Appointment dated 6 December 2013 for civil engineering consultancy services for earthworks and major infrastructure works for the Project site;

(ii) Letter of Appointment dated 3 October 2013 for civil engineering consultancy services for building works and local infrastructure works in Phase 1;

(iii) Letter of Appoint