Back
2017 MarsdenLR 2814
SESSION COURT (KUALA LUMPUR)
AZURA ALWI, J
Casmet Sdn Bhd – Plaintiff
Versus
Nte Engineering Sdn Bhd and another suit – Defendant
CIVIL SUIT NOS B52NCvC-320–08 OF 2015 AND B52NCvC-26–08 OF 2015
Tan Meng Tze (Lee Kuan Mang & Co) in Civil Suit No B52NCvC-320–08 of 2015 for the plaintiff.
Daniel Siew (Shun Tai) in Civil Suit No B52NCvC-26–08 of 2015 for the plaintiff.
Andrew Davis (Zaitul Naziah with him) (Andrew Davis & Co) for the defendant.
The Court affirmed that a party enforcing a counter claim for damages must provide substantial evidence of the breach and resulting losses caused by the other party.
Headnote:(A) Contracts Act - Section 75 - PAM Sub-Contract 2006 - Disputes arose regarding payment claims from nominated sub-contractors and a counter claim from the Defendant for alleged losses due to delays by Plaintiffs - Both Plaintiffs successfully established claims for unpaid contract amounts - Defendant's counter claim for liquidated damages dismissed for lack of evidence and applicability. (Paras 10, 30, 39, 44)
(B) Burden of Proof - A claimant must provide clear evidence to substantiate claims for losses and damages arising from alleged breaches. (Paras 30, 39)
(C) Delay and Counter Claims - The Defendant failed to prove that delays were caused by the Plaintiffs and therefore, the claim for liquidated damages was rejected. (Paras 28, 34)
Facts of the case:
The Plaintiffs NTE and Mega Mayang, as nominated sub-contractors, claimed unpaid amounts from the Defendant for work completed on a construction project; the Defendant counter claimed for damages due to alleged delays. (Paras 5, 6)
Findings of Court:
The Court validated the Plaintiffs' claims for payment and rejected the Defendant's counter claim for damages due to a lack of evidence proving delay caused by the Plaintiffs. (Paras 10, 44)
Issues: The main issues included whether the Plaintiffs completed their contracted work, whether they were entitled to the claimed amounts, and whether the Defendant could claim damages for delays attributed to the Plaintiffs. (Paras 15, 30)
Ratio Decidendi: The Court held that the Defendant failed to demonstrate that the Plaintiffs were responsible for the delay and that they had not substantiated their counter claim with evidence, confirming that parties must prove claims for damages. (Paras 39, 42)
Result: Appeals by the Plaintiffs allowed, and the Defendant’s counter claim dismissed with costs.
| Table of Content |
|---|
| 1. contractual relationships and appointment of contractors. (Para 1 , 2 , 3 , 4 , 5 , 6 , 7) |
| 2. trial procedures and outcomes of claims. (Para 8 , 9 , 10 , 11) |
| 3. witnesses introduced and their qualifications. (Para 12 , 13) |
| 4. stipulated contractual agreements and issues for trial. (Para 14 , 15) |
| 5. validation of work done by plaintiffs through evidence. (Para 16 , 17 , 18) |
| 6. evaluation of amounts claimed and contested by the defendant. (Para 19 , 20 , 21 , 22 , 23) |
| 7. defendant's claims regarding breach and responsibility. (Para 24 , 26 , 27 , 28 , 29 , 30) |
| 8. assessment of evidence regarding delays and liability. (Para 31 , 32 , 33 , 34 , 35 , 36) |
| 9. limits of defendant's claims and evidentiary requirements. (Para 37 , 38 , 39 , 40 , 41 , 42 , 43) |
Background of facts
[1]The Defendant was appointed as the main contractor for a project known as “Cadangan Pembangunan (Fasa 2) Yang Mengandungi 2 Blok Pangsapuri: (1) Blok A Pangsapuri 17 Tingkat (240) Unit, (2) Blok B Pangsapuri 14 Tingkat (195 Unit) dengan Kemudahan Podium 4 Tingkat Tempat Letak Kereta dan Kemudahan Penduduk di atas Lot PT 23171 dan Sebahagian Lot 40209, Taman Bullion Mewah, Off Lebuhraya Kuala Lumpur-Karak, Mukim Batu, untuk Tetuan ECS Mutiara Sdn Bhd” (hereinafter referred to as “the Project”).
[2]The Plaintiff in Suit 320 (hereinafter referred to as “NTE”) was appointed as nominated sub-contractor (NSC) through Letter of Acceptance dated 8.6.2011 to do the work for supply, delivery, installation and commissioning of internal cold water and sanitary installation for the Project. The amount of contract price was RM2, 200,000.00
[3]Whilst the Plaintiff in Suit 26 (hereinafter referred to as “Mega Mayang”) was appointed as nominated sub (NSC) through Letter of Acceptance also dated 8.6.2011 to supply, deliver, install, test, commission and maintain security services inter alia, electrical services, general lighting and power distribution system, lighting protection system, earthing system, telephone service, perimeter services and SMATV services for the Project. The amount of contract price was RM5, 250, 000.00.
[4]Tetuan ECS Mutiara Sdn Bhd (the Employer) appointed SK Tan Architect as Quantity Surveyor for the Project and JY Consult as the Mechanical and Electrical (M&E) Consultant.
[5]Both Plaintiffs are claiming for the balance of the contract price allegedly not paid by the Defendant i.e. RM447, 775.82 and RM561, 616.24 respectively.
[6]The Defendant had filed their defence and is also counter claiming for the amount RM945, 000.00 from each Plaintiff for losses and damages caused by the delay of the Plaintiffs in completing their works for the Project.
[7]After the pleadings in both cases were closed and during case management the Plaintiff NTE applied for both cases to be heard together in a joint trial pursuant to Order 4 rules 1 Rules of Court 2012
[8]Bundles of documents were filed in court and marked as follows:
i)Ikatan Pliding – Bundle A;
ii)Ikatan Dokumen Bersama Bhg 1/3 – Bundle B1;
iii)Ikatan Dokumen Bersama Bhg 2/3 – Bundle B2;
iv)Ikatan Dokumen Bersama Bhg 3/3 – Bundle B3;
v)Ikatan Dokumen Bersama Tambahan – Bundle C;
vi)Ikatan Dokumen Tambahan Plaintif (Kes 26) – Bundle D;
vii)Ikatan Dokumen Tambahan Defendan – Bundle E;
viii)Ikatan Dokumen Tambahan Defendan (2) – Bundle F; and
ix)Ikatan Dokumen Plaintif (2) – Bundle G.
[9]All parties agreed to the Issues to be Tried, filed and marked as Enclosure 20. Likewise, the Agrees Facts are as per Enclosure 19.
[10]The trial went on and witnesses from all parties gave their evidence. On 29 August 2016 this Court allowed both Plaintiffs’ claims with interest and costs of RM30, 000. 00 to each Plaintiffs. The Court however, dismissed the Defendant’s counter claim against both Plaintiffs, with cost to each Plaintiff.
[11]Hence, this appeal by the Defendant.
Analysis of Facts, Findings and Grounds of Judgment
[12]The Plaintiffs had produced their witnesses as follows:
i)Foo Chee Tuck (SP 1) – Managing Partner/Sole Propr
