Liability for damages in contract requires proof of actual loss or damage; mere claims without evidence are insufficient.

[1] This is the appellant/defendant's appeal against the decision of the High Court at Penang which entered judgment for the respondent/plaintiff. For ease of reference, in this judgment, parties will be referred to as they were in the High Court.

Background

[2] The plaintiff was appointed as the main contractor by Ann Joo Integrated Steel Sdn Bhd ("the employer") for the construction of Ore Bunker and Hot Stove at Prai Industrial Park ("the project") at an accepted tender price of RM3,000,000.00. The liquidated and ascertained damages payable by the plaintiff to the employer in the event of delay in the completion of the project was RM6,000.00 per day.

[3] By a letter dated 25 June 2008, the plaintiff appointed the defendant as its subcontractor for the said project. The total subcontract sum agreed by the plaintiff and the defendant was RM2,000,000.00. The other terms and conditions for the subcontract were:

(i) The defendant was to start work within two weeks from the date of the letter of award, namely on or before 8 July 2007;

(ii) The defendant was to complete the project within 16 weeks, namely on or before 27 October 2008; and

(iii) The liquidated and ascertained damages for the delay in completing the project was at the rate of RM5,000.00 per day.

[4] The Consulting Engineer and the Superintending Officer for the project was Pakatan Runding Yusoff Sdn Bhd ("PRY").

[5] The plaintiff received a total sum of RM4,404,350.32 from the employer for the project while the plaintiff paid the defendant the amount of RM1,863,629.57 under the subcontract.

[6] The plaintiff contended that there was a delay in the project which was caused by the defendant. The plaintiff brought an action against the defendant claiming for damages for breach of contract.

The Plaintiff's Claim

[7] Vide its amended statement of claim the plaintiff alleged that the defendant's following conduct, inter alia, had resulted in the plaintiff suffering losses, namely that the defendant was negligent in carrying out the subcontract works; in the poor workmanship; in refusing to follow PRY's instructions; in wrongfully suspending the works; in refusing to rectify defective works and in abandoning the works. Consequently, the plaintiff engaged a third party to rectify the defective works and to complete the project.

[8] The plaintiff claimed for the following specific sums (see paras 48(c) to 48(m) of the amended statement of claim):

(i) RM1,825,000.00 being liquidated and ascertained damages (LAD) for the delay in completing the project from 8 October 2008 until 30 December 2009;

(ii) RM849,376.01 to complete the design and construction of "cofferdam" which was abandoned by the defendant;

(iii) RM102,678.00 for rectification of the damaged or "tilted piles";

(iv) RM201,057.00 being excess payment made to the defendant under coercion and threat;

(v) RM15,800.00 being cost for the rectification of defective columns and other concreting works;

(vi) RM9,690.20 being the loss of use of RM213,067.70 for 332 days at the rate of 5% per annum calculated from 1 December 2008 to 28 October 2009 (the date when PRY released the said amount to the plaintiff);

(vii) RM54,848.00 being the cost incurred by the plaintiff to complete the project abandoned by the defendant in September 2009;

(viii) RM30,465.60 for the labour charges in excess paid to the defendant after the final confirmation on the quantities of reinforcement steel bar and concretes;

(ix) RM16,870.00 being the amount charged by the employer for road access and other maintenance charg