JUDGMENT

Noradura Hamzah JC:

Introduction

[1] This is the Plaintiff's claim against the defendant for the sum of RM1,620,546.02, alleged to be the cost of rectification and diversion works carried out following the failure of a 33 kV underground cable on 4 June 2015 at the Defendant's development project known as Country Garden Danga Bay, Johor Bahru. The works were originally carried out by the Plaintiff pursuant to a Letter of Award dated 20 August 2014 for the installation, testing, and commissioning of a 33kV underground cable system.

[2] The Defendant denies liability, contending that the cable was not laid in conformity with the approved plan, that the deviation was the cause of the failure, and that the plaintiff remained responsible for rectification during the Defects Liability Period (DLP)(which ran from 28 March 2015 to 28 March 2017, within which period the cable failure occurred).

[3] The trial commenced before Justice Nurulhuda Nur'aini binti Mohamad Nor, who heard the evidence of the plaintiff's first witness (SP1) in part. Following her transfer, the case proceeded before me. I hear the remaining evidence, including cross-examination of SP1 and the Defendant's witnesses (SD1 and SD2), and concluded the trial.

[4] The Plaintiff called one witness, Mr Liew Choon Kin (SP1) its Managing Director. The Defendant called two witnesses, namely Mr Syed Rafiszan (SD1), a Tenaga Nasional Berhad (TNB) engineer who was involved in the investigation of the cable failure, and Mr Fei Yunbo (SD2), the defendant's project manager.

[5] In arriving at this decision, this court has considered all relevant cause papers filed and referred to at the trial, the CMS audio recordings of the proceedings (including those conducted before Justice Nurulhuda Nur'aini binti Mohamad Nor), as well as the written and oral submissions and the bundles of authorities. This is the court's decision and its grounds.

Background

[6] Under the Letter of Award dated 20 August 2014, the defendant appointed the plaintiff to carry out the supply, installation, testing, and commissioning of underground cables at Phase 1B2, Country Garden Danga Bay, Johor. The contract price was RM1,620,546.02, with a completion period of 16 weeks. The works were to be executed strictly in accordance with drawings and specifications approved by the Consultant Engineer (TEK Konsult Sdn Bhd).

[7] The works were completed and energised by TNB on 18 April 2015. On 4 June 2015, a fault occurred, resulting in a feeder trip, which TNB traced to cable damage between PMU JBCC and Temporary SSU. Upon excavation, TNB found that the cable had been damaged by third-party pipe-jacking works and was situated outside the approved alignment.

[8] Following the incident, TNB issued letters dated 8 and 21 June 2015 instructing that the cable be diverted to its approved route and directing the developer to bear the cost. The Plaintiff subsequently carried out diversion works and claimed RM1,620,546.02 from the defendant, asserting that the works were requested and that the defendant benefited from them.

[9] Before determining these issues, the court notes the relevant procedural history. In June 2020, the plaintiff filed Suit No JA- 22NCvC-68-06/2020 against Iskandar Waterfront Sdn Bhd and Leader Harvest Construction Sdn Bhd, claiming the same sum of RM1,620,546.02 as rectification costs. That suit was struck out on 31 March 2021 and withdrawn on 20 April 2021. The present suit was filed on 2 May 2021. The Defendant applied to strike out this claim on grounds of res judicata and judicial estoppel. On 30 January 2022, the High court allowed the striking out. The Plaintiff appealed. On 26 October 2022, the court of Appeal allowed the appeal and set aside the striking out order. This court now determines all issues on their merits after a full trial.

[10] The main issues before this court are:

(a) whether the plaintiff laid the 33 kV underground cable in accordance with the alignment approved by TNB and TEK Konsult,