Azizan Md Arshad J:

GROUNDS OF JUDGMENT

Introduction

[1]Two actions were filed and it was determined that they should be consolidated and heard concurrently due to the involvement of the same parties and the identical issue.

[2]The reference to the writ of summons is as follows:

(i)First is Suit No. PA-22C-05-11/2017, which was first filed by Strong Mixed Concrete Sdn Bhd (“SMC”) against ATSH Construction Sdn Bhd (“ATSH”) and the guarantors viz. Albert Suresh A/L Raman and Yasotha Devi A/P Muthiah;

(ii)Second Suit No. PA-22C-02-08/2017, which was later filed by ATSH against SMC, and SMC subsequently bringing a third-party action against SSJ Consulting Engineers Sdn Bhd (“SSJ”).

[3]This Court had on 24.04.2025 dismissed the claim against the Defendant without costs in the first suit. Whereas, in the second suit, the claim against the Defendant is allowed with costs and the Defendant’s claim against the Third Party is dismissed with costs.

[4]This Court will now set out the reasons for its decision, and the parties are referred to as they were in the High Court.

[5]In this written ground, ATSH Construction Sdn. Bhd. will be referred to as “Plaintiff”‘ (ATSH), Strong Mixed Concrete Sdn. Bhd. (SMC) will be referred to as “Defendant” (SMC), and the consulting civil and structural engineers SSJ Consulting Engineers Sdn. Bhd will be referred to as the “Third Party” (TP).

Issues

[6]Summary of issues:

(i)Whether SMC [GUAMAN NO. PA-A52C-05-06/2017] is entitled to the claimed sum of RM116,697.73 for the ready-mixed concrete (“RMC”) supplied to ATSH?

(ii)For the main suit [GUAMAN SIVIL NO. PA-22C-02-08/2017], whether the RMC supplier (viz. SMC) ought to be faulted for the defective building structure constructed by the subcontractor of the project (viz. ATSH), given that the RMC was supplied to ATSH in semi-liquid or molten form and passed the cube test, which was then processed and used by ATSH to turn into hardened form, bearing in mind that ATSH’s main complaint was against the integrity of the hardened concrete, as opposed to the RMC. In essence, whether SMC is responsible for the hardened concrete (also known as the ‘in-situ concrete’) after the risk of handling the RMC was passed to ATSH once the RMC was delivered to ATSH at the project site.

(iii)For the third-party action [GUAMAN SIVIL NO. PA-22C-02-08/2017], whether the civil and structural consultant for the project (viz. SSJ) ought to be faulted for the defective building structure when there were elements of under-design and for the alleged failure of SSJ to discharge its professional supervising duty for the construction of the building structure especially when there were signs of conflict of interest between ATSH and SSJ.

Court Proceedings

[7]The following outlines the schedule of dates for the trial of this matter:

(i)From 4.11.2019 to 5.11.2019;

(ii)13.01.2020;

(iii)From 7.02.2020 and 28.02.2020;

(iv)From 11.09.2020; 14.09.2020, 17.09.2020, 18.09.2020, 25.09.2020;

(v)From 27.06.2022 to 29.06.2022; (vi) From 21.09.2022 to 23.09.2022;

(vi)From 29.11.2022;

(vii)From 05.04.2023 to 06.04.2023;

(viii)10.05.2023;

(ix)04.07.2023;

(x)16.10.2023;

(xi)21.11.2023,

(xii)From 27.05.2024 to 28.05.2024;

(xiii)From 27.08.2024 to 29.08.2024; and

(xiv)From 04.09.2024 dan 05.09.2024.

Plaintiff’s witnesses

[8]The following is the list of witnesses presented by the Plaintiff during the full trial: -

(i)Albert Suresh a/I Raman (SP1)

(ii)Hamizat Bin Othman (SP2)

(iii)Yap Seow Keong (SP3)

(iv)Mohd Hazwan Bin Jamaluddin (SP4)

(v)Syed Omar Ezryezman Bin Syed Kasim (SP5)

(vi)Saw Hin Cheong (SP6)

Defendant’s witnesses

[9]The following is the list of witnesses presented by the Defendant during the full trial: -

(i)Chan Choy Ping (SD1)

(ii)Ir Lau Kok Loong (SD2)

(iii)Ir G Morgan Gurusamy (SD3)

(iv)Ganesan Krishnan (SD4)

Third Party’s witnesses

[10]The following is the list of witnesses presented by the Third Party during the full trial: -

(i)Dr Muhd Norhasri bin Muhd Sidek (SPK1)

(ii)Yeap Swee Hock (SPK 2)

Background facts

(Overview of facts derived f