Hayatul Akmal Abdul Aziz J:

JUDGMENT

(Enclosure 26)

INTRODUCTION

[1]The Third Defendant (D3) applied under O.13 r.8 and/or O.42 r.13 and/or O.92 r.4 Rules of Court 2012 (RC 2012)

(a)D3 is granted leave to file this application outside of any time frame;

(b)The Judgment of Default (JID) of Appearance dated 22.09.2021 entered against D3 is set aside and revoked; and

(c)D3 is given leave to enter and file a defence within 14 days of granting this Order and other related prayers.

[2]On 15.05.2023, after perusing the cause papers and hearing the respective submissions of counsels, I found no merit in D3’s application and dismissed it accordingly with an order for costs of RM3,000.00 payable within 14 days from the date of this OrdeにDissatisfied, D3 is appealing, and my reasons are as follows:

BRIEF FACTS

[3]From the cause papers, the facts are:

3.1 The plaintiff (P), a private limited company, is a property developer:

(a)had built a commercial building with underground car parks intended to be used as a hotel in Presint 3, Putrajaya.

(b)on 13.03.2015, the premises were equipped with electricity and water supply and were pending the issuance of the Certificate of Fitness for Occupation.

3.2 Under a Supply Agreement (20.08.2014) with the first defendant (D1), it was agreed that D1 would supply chilled water (district cooling system) to the building. Amongst other salient terms of the Agreement, it was decided (Article 15.1(a)) that D1 would indemnify and be liable for any damage or injury to property or persons arising out of or in connection with the Supply Agreement to the extent only that such damage or injury is directly caused by the default or by the negligent or willful acts or omissions of D1, its servants, agents or contractors.

3.3 D1 (as a principal) entered into an agreement with D3 (as a contractor) to carry out works for the Proposed Chilled Water Pipe Trenchless Rehabilitation Works at Plot 3G2 Presint 3, Putrajaya.

3.4 On 13.03.2015:

(a)D3 carried out the related works in the Common Utility Tunnel (CUT) that ran beside the basement of the building when a temporary mechanical coupling installed by D3 was dislodged and/or ruptured, causing chilled water to flood the CUT and leaked into the Mini Utility Hub located in the basement at level two.

(b)From there, it flooded the basement level two reaching as high as one meter.

(c)The area was closed for safety reasons, and TNB disconnected power.

(d)D1 and D2 carried out dewatering works to remove the chilled water.

(e)The P suffered significant loss and damage due to the D’s negligence. It was alleged by the P that:

D1:

D2:

D3:

(i)Failed to vet the qualifications and capabilities of D3 when awarding the contract for the rehabilitation works.

(ii)Failed to monitor and supervise the rehabilitation works, given that the rehabilitation works were hazardous and were carried out in the CUT, which was immediately beside the basement of the Premises.

(iii)Allowing D3 to subcontract the works to unqualified contractors.

(iv)Failed to vet the qualification and capabilities of the contractors.

(v)Failing to detect and/or act in a prudent and/or timeous manner when the temporary mechanical coupling dislodged/burst.

(i)Failed to vet the qualifications and capabilities of D3 properly and allowed them to carry out the rehabilitation works on the Plant for which they were responsible.

(ii)Failing to monitor and supervise the rehabilitation works given that the rehabilitation works were hazardous and were carried out in the CUT.

(iii)Allowing D3 to subcontract the works to unqualified contractors.

(iv)Failed to vet the qualification and capabilities of the contractors.

(v)Failing to detect and/or act in a prudent and/or timeous manner when the temporary mechanical coupling dislodged/burst.

(i)Carrying out the rehabilitation works negligently.

(ii)Failed to comply with industry standards when carrying out the rehabilitation works.

(iii)Failed to take reasonable safety precautions in carrying out the rehabilitation works.

(iv)Sub