GROUNDS OF DECISION

Background

1. The Defendant, Hasrat Usaha Sdn Bhd ("Hasrat" or "the Defendant" as the case maybe) has appealed against the decision of the Court dated 26.1.2011 wherein based on the evidence adduced I held that on a balance of probabilities, the Plaintiff has proven its claim, and in the circumstances allowed its claim for the balance of the principal sum of RM729,780.36 at the rate of 8% p.a. from 28.7.2006 (date of Writ of Summons) until full settlement and costs to be taxed unless otherwise agreed.

1.1. The Plaintiff, Pati Sdn Bhd ("Pati" or "the Plaintiff" as the case maybe) has appealed against the decision of the Court dated 26.1.2011 wherein based on the evidence adduced I held that on a balance of probabilities, the Defendant has proven its counterclaim, and in the circumstances allowed its counterclaim for RM1,820,000.00 with costs to be taxed unless otherwise agreed. The reasons for the decision are the following.

2. The Plaintiff has one witness ie, Mr. Yap Chee Keong, a Senior Contract Administrator cum Quantity Surveyor in the Contracts Department at Patis headquarters who was involved in the entire duration of the Project called "Proposed Construction and Completion of Roadworks R6 and Wisma Putra Junction Including Utilities and Landscapes in Precinct 2, Putrajaya" ("the R6 Project"). The Defendant elected not to call any witness after the close of the Plaintiffs case submitting there is no case to answer. When this happens- (i) the Court has to determine whether the Plaintiff has established its case by the evidence adduced on the balance of probabilities; (ii) at this stage the truth or falsity of the evidence is immaterial; and (iii) for the purpose of testing whether there is a case to answer, all the evidence given must be assumed to be correct (See Subry bin Hamid v. Husaini bin Tan Sri Ikhwan & Anor (2006) 4 CLJ 50; (2006) 6 MLJ 229 (CA) at pp.235-236 at paragraphs 4-11; Jaafar bin Shaari & Anor (suing as administrators of the estate of Shofiah bte Ahmad, deceased) v. Tan Lip Eng & Anor (1997) 4 CLJ 509; (1997) 3 MLJ 693 (SC) at p.712 H-I; Yoong Sze Fatt v. Pengkalen Securities Sdn Bhd (2010) 1 CLJ 484; (2010) 1 MLJ 85(CA) (referring to the two former cases) at p.92 at paragraph 3, p.93 at paragraph 5, pp. 100-102 at paragraphs 41-46).

3. The undisputed facts of this case are the following. Both parties had entered into the said R6 Project. The Plaintiffs scope of works was for "Construction and Completion of Main Drain, Roadside Drain, Roadworks, Water Reticulation, Sewerage and Street Lighting Works." as is evident from the Letter of Award cum Acceptance dated 18.10.2000 from Hasrat to Pati (Bundle B pp. 182-188). The employer under the R6 Project was Putrajaya Holdings Sdn Bhd ("Putrajaya Holdings"); Putrajaya Holdings appointed Hasrat as the main contractor and then Hasrat appointed Pati as the sub-contractor.

3.1. The sub-contract sum was RM11,720.207.25 (Bundle B p. 182) which represented 74% of the Main Contract between the Defendant and Putrajaya Holdings which is for RM15,895,957.75 (Bundle E pp 486-490). For completeness, the main contract between Putrajaya Holdings and Hasrat dated 24.8.2000 are contained in the Articles of Agreement stretching from Bundle B pp. 1-188 till Bundle C pp.2- 161.

3.2. According to PW1, the Defendant appointed 2 other sub- contractors; the Plaintiff themselves had also appointed sub- contractors of their own to carry out and complete the sub-contract works.

3.3. The Plaintiffs original claim was for the outstanding principal sum of RM2,040,586.38 (Bundle A pp.8-10). Vide an Order of Court and Judgment of the Court both dated 7.12.2007 (Bundle A p.20-23), Judgment by admission of fact for a principal sum of RM 1,310,806.02 was obtained in favour of the Plaintiff leaving a balance outstanding principal sum of RM729,780.36 which is the subject matter of the trial in this instant case.

3.4. Amongst the express terms and conditions of the L