JUDGMENT

Lee Swee Seng J:

[1] The appellant who is the defendant in the Sessions Court, had appealed against the decision of the learned Sessions Court Judge ("SCJ") who allowed the respondent's claim of RM814,983.99 against the appellant for agreed consultancy fees.

Project

[2] The respondent as the plaintiff below had sued, as an architect, the agreed consultancy fees for architectural fees, civil and structural ("C&S") engineering fees and mechanical and electrical ("M&E") engineering fees. It is an agreed fact that the defendant had appointed the plaintiff as the main consultant for its helicopter hangar project ("the Project") vide two letters of appointment dated 3 August 2010 and 19 November 2010.

[3] The total fees for the plaintiff's consultancy services amounted to RM1,404,984.00, consisting of the following:

a. Architectural fees comprise RM786,791.00;

b. C&S engineering fees comprise RM393,395.00 and

c. M&E engineering fees comprise RM224,798.00.

[4] As the defendant had paid the sum of RM590,000.00, the plaintiff claimed in the suit below the balance sum of RM814,984.00.

Problem

[5] The defendant contended that the plaintiff had been negligent in the under design for the trusses for the hangars. They counterclaimed a sum of RM855,191.71 covering rectification works of RM354,265.00 being additional support necessary for the trusses and also a sum of RM130,000.00 being the fees incurred for engaging an independent engineering checker to check on the integrity of the trusses construction and special damages for negligence. The other component of the counterclaim is for RM370,926.71 being the LAD claim.

[6] In any event, the defendant contended that the plaintiff could not claim for the engineering consultancy fees as they were not duly registered under the Registration of Engineers Act 1967 ("REA") and further that the fees for the M&E engineering work had not been proven as there was no evidence that such a service had been provided.

[7] The defendant also claimed general damages for breach of contract and for the tort of negligence.

[8] The learned SCJ had allowed the plaintiff's claim together with interest and costs and had dismissed the defendant's counterclaim with costs. Being dissatisfied with the said decision of the SCJ, the defendant had appealed to this Court.

Prayers

[9] The defendant as the appellant prayed that the SCJ's decision should be set aside and that the plaintiff's claim should be dismissed and instead the defendant's counterclaim should be allowed.

[10] The defendant argued that the plaintiff as an architect could only sue for his architectural consultancy fees and not for the C&S engineering and M&E engineering fees as only registered engineers under the Registration of Engineers Act 1967 could sue for such fees.

[11] It was further argued that the contract for the agreed engineering consultancy services and the fees arising out of it, is illegal and null and void and unenforceable.

[12] The defendant further argued that even though the defence of illegality was not raised in the pleadings, but raised for the first time in the submission stage before the SCJ, the SCJ was nevertheless bound to take cognisance of it and decide accordingly.

[13] With respect to M&E engineering fees, it was also contended by the defendant that there was no evidence that such a consultancy service had been provided and hence not proved, on the balance of probabilities.

Principles

Whether Illegality Has To Be Pleaded In That The Plaintiff's Claim Is Illegal And Unenforceable For Breach Of The Registration Of Engineers Act 1967?

[14] It is clear that the plaintiff's fees as agreed with the defendant encompasses engineering fees.

[15] It is also clear that the plaintiff is a firm of architect and not engineers, and specifically the plaintiff is "not registered as a Professional Engineer under the REA." Section 7(1A) REA reads:

"(1A) A person shall not, unless he is a Professional Engineer with Practising Certicate:

(a) practise, carry on bus