GROUNDS OF JUDGMENT

1. The Plaintiff's claim against the Defendant is for unpaid consultant fees in the sum of RM767,700.00 as at November 1998 and for interest thereon from 1.12.1998 until full settlement and costs.

2. In supporting its claim, the Plaintiff pleads the following facts:

(a) the Defendant is the owner and developer of the development on Lots 10242 and 9337 at Mukim Batu, Daerah Gombak ("the Project"). The Defendant appointed the Plaintiff as the civil, structural, mechanical and electrical engineer ("Consultant Engineer") for the Project by the Defendant's Letter of Appointment dated 19.7.1990 and an undated and unsigned Consultancy Service Agreement prepared by the Defendant;

(b) the Plaintiffs fees were agreed at the rate of 2.5% of the estimated contract sum for the Project; as per paragraph 2 of the Letter of Appointment and Section 4.01 of the Consultancy Service Agreement;

(c) as at 11.8.1996, the balance outstanding consultancy fees payable to the Plaintiff was RM1,005,136.47 which the Defendant proposed to pay in 42 instalments from June 1995 until November 1998. This was agreed to by the Plaintiff as evidenced by the Plaintiffs signature on the Defendant's letter dated 11.8.2005;

(d) the Defendant made payment of the Plaintiffs fees only in respect of the monthly instalments of June 1995 to October 1997. These instalments were made from September 1995 to October 1998. In November 1998, the Defendant stopped paying the Plaintiff which eventually led to the filing of this action by the Plaintiff in 2000 to recover its unpaid fees amounting to RM767,700.00 as at November 1998 (and interest thereon from 1.12.1998 until full settlement).

3. In its Defence and Counterclaim, the Defendant contends that the Plaintiff had been negligent in carrying out its duties as the Consultant Engineer which the Defendant claims had caused losses totaling RM3,672,436.90 as follows:

(a) for alleged failure to make provision for electrical supply for Phase 1C-2, the Defendant claims the sum of RM55,100.00 for building a separate TNB substation;

(b) for alleged delay in producing and submitting forms for Phase 2B to Majlis Perbandaran Selayang (MPS), the Defendant claims the sum of RM436,452.00 for late delivery, management fees and loss of interest;

(c) for alleged wrong advice given on sewerage pipe, the Defendant claims the sum of RM490,532.48 for wasted cost and expenses and RM1,609,762.00 for late delivery, management fees and loss of interest;

(d) for alleged failure to solve and repair the structural defects at Lot 25 at Phase 3A-2, the Defendant claims the sum of RM75,780.00 for the costs of repair and compensation to the purchaser;

(e) for alleged failure to solve piling work problem at Phase 3B, the Defendant claims the sum of RM811,400.43 for late delivery to its purchasers; and

(f) for additional cost paid to AMI Jurutera Perunding for completing Plaintiff's works, the Defendant claims RM193,409.00.

4. The Defendant contends that it is entitled to set-off its losses against any amount of unpaid fees it is obliged to pay the Plaintiff as well as to counterclaim for such losses against the Plaintiff.

5. The Defendant contends that its liability to pay the Plaintiff's fees is subject to a defence of Set-off and Counterclaim it has against the Plaintiff for losses sustained by it due to the Plaintiffs negligence in carrying out the works. The Defendant has not pleaded or particularised the duties breached by the Plaintiff in its Defence and Counterclaim. However, from the Defendant's categorization of its Counterclaim, the relevant duties alleged to have been breached by the Plaintiff are as follows:

(a) duty to design;

(b) duty to advise;

(c) duty to supervise; and

(d) duty to solve problems or remedy defects as they arise.

6. The Plaintiff on the other hand contends that the Plaintiff's evidence confirms that the amount of RM767,700.00 is due and owing from the Defendant to the Plaintiff as at November 1998. The Plain