Ahmed Shahrir Mohd Salleh J:

Introduction

[1] In this judgment, the parties are referred to as they were before the trial court. This appeal arises from a dispute over the proper contracting party liable to pay architectural fees of RM1 million for services rendered in connection with the Berjaya Vietnam Financial City project in Ho Chi Minh City, Vietnam.

[2] The learned Sessions court Judge found in favour of the plaintiff and held the defendant liable for the outstanding architectural fees. The central issue before this court is whether the trial judge erred in identifying the contracting party, having regard to the principles of contractual privity and the doctrine of separate legal entities.

[3] Having perused the record of appeal and considered the submissions of both parties, I find that the learned Sessions court Judge had erred in her findings. I therefore allow the appeal for reasons that follow.

Brief Background Of Facts

[4] The plaintiff is an architectural company incorporated in Malaysia. The defendant is a public listed company engaged in property investment and development. The defendant held shares in Berjaya Vietnam Financial Centre Limited, a company incorporated in Vietnam for the purpose of developing the Berjaya Vietnam Financial City project on a 6.64 - hectare site in District 10 of Ho Chi Minh City, Vietnam.

[5] The architectural services in dispute stemmed from an earlier relationship between the parties. Between 1994 and 2011, Mr Reno Lee Teik Chuan (SP1), who later became a director of the plaintiff, worked as project director for DP Architects Sdn Bhd ("DP Architects").

[6] During this period, DP Architects was appointed as architect for the Vietnam project. A letter of appointment dated 27 December 2006 was issued by the defendant followed by another letter of appointment dated 25 April 2008 issued by BVFC Ltd signed by Dato' Francis Ng as its Chief Executive Officer.

[7] Mr Reno Lee left DP Architects at the end of 2011 and subsequently established the plaintiff company together with Mr Seong Pick Choong (SP2). In 2012, Dato' Francis Ng approached Mr Reno Lee (SP1) regarding the revival of the Vietnam project which had stalled due to funding difficulties. Following discussions and meetings between 2013 and 2014, the project gained momentum in late 2014 when Tan Sri Vincent Tan decided to restart it.

[8] On 28 May 2015, the plaintiff issued its first Services/Fee Letter addressed to Berjaya Land Berhad and Berjaya Land Vietnam Co Ltd, setting out the scope of consultancy services and fee proposals. A second Services/Fee Letter dated 23 August 2015 then followed by a third Services/Fee Letter dated 8 November 2015.

[9] Despite these Services/Fee Letters, no formal contract was executed. Nevertheless, the plaintiff proceeded with the architectural work. By August 2015, the revised masterplan and schematic design for Phase 1 (a) and 1 (b) were completed. On 3 August 2015, the plaintiff submitted the completed designs to the defendant under three separate letters covering schematic design drawings, masterplan submission drawings and a schematic design report.

[10] On 30 September 2015, a service contract was executed between the plaintiff and BVFC Ltd specifically for perspective works. On 5 October 2015, the plaintiff issued an invoice to BVFC Ltd for USD5,400.00 in respect of those works. BVFC Ltd paid the invoice in full as reflected in the plaintiff's statement of account dated 30 April 2016.

[11] On 31 December 2015, the plaintiff issued its main invoice for RM1 million exclusively to BVFC Ltd adopting the "ZRE" tax code for "zero-rated export" services. Between 31 January 2016 and 31 May 2020, the plaintiff issued several statements of account to BVFC Ltd regarding the outstanding fees with copies sent to the defendant.

[12] Settlement discussions took place between the parties including meetings on 17 April 2018 and 5 October 2018. During these negotiations, the plaintiff offered to reduce its claim,