CORSA TECH SDN. BHD. 1. YTB IMPRESSION SDN. BHD. & 2 LAGI

IN THE HIGH COURT OF MALAYA AT SHAH ALAM IN THE STATE OF SELANGOR DARUL EHSAN, MALAYSIA CIVIL APPEAL NO: BA-12BC-8-08/2020 BETWEEN CORSA TECH SDN. BHD. (Co. No.: 1007389- A) … APPELLANT AND 1. YTB IMPRESSION SDN. BHD. (Co. No.: 1153093-V) 2. ASIMA ARCHITECTS SDN. BHD. (Co. No.: 663747-H 3. JUBM SDN. BHD. (Co. No.: 27638-X) … RESPONDENTS JUDGMENT (appeal to High Court against Sessions Court’s decision after trial) A. Background 1. In this judgment, I shall refer to parties as they were in the Sessions Court (SC). 2. The first defendant company (1st Defendant) was the employer of a construction project in Malacca City (Project). Regarding the Project - (1) on behalf of the 1st Defendant, the second defendant company (2nd Defendant) issued a “Letter of Award” dated 20.12.2017 (LA) to the plaintiff company (Plaintiff) wherein the 1st Defendant had appointed the Plaintiff to do the “Design, Fabrication, Construction and Installation of Entrance Statement” in the Project (Works). The following provisions in the LA are relevant - (a) clause 2 LA (Clause 2) stated that the “Date of Commencement” of the Works (Commencement Date) would be notified by the “Superintending Officer” (SO) and the Works “shall be completed” within 4 months from the Commencement Date (Completion Date); 1 (b) clause 3 LA (Clause 3) provided that the contract between the Plaintiff and 1st Defendant “shall” be based on, among others, “Contract Agreement and Conditions of Quotation” as attached herein; (c) according to clause 5 LA (Clause 5), if the Plaintiff failed to complete the Works within the stipulated time or any extended time period for completion of the Works (EOT) and the 1st Defendant’s “Representative” had issued a “Certificate of Non-Completion” (CNC), the 1st Defendant “shall” be entitled to recover “Liquidated Damages” (LD) from the Plaintiff at the rate of RM2,085.00 per day; and (d) clause 6 LA (Clause 6) provided that “payment shall be paid progressively” according to “progress claim” (PC) submitted on a monthly basis and within 45 days of the “interim certificate of payment” (ICP) presented to the 1st Defendant; (2) the 2nd Defendant was appointed by the 1st Defendant as the architect (Project Architect) and SO for the Project; (3) the 1st Defendant had appointed the third defendant company (3rd Defendant) as the Quantity Surveyor (QS) in the Project (Project QS); and (4) TDC Engineering Consultants Sdn. Bhd. (TDC) was appointed by the 1st Defendant as the Project’s Engineer. 3. The 2nd Defendant as the SO had notified the Plaintiff that the Commencement Date was 6.4.2018. As such, the Completion Date was 5.8.2018. 4. For the first PC issued by the Plaintiff for a sum of RM177,282.00 (1st PC), the 3rd Defendant valued the Works stated in the 1st PC as RM143,514.00 [Valuation (1st PC)]. The 2nd Defendant then issued an ICP for an amount of RM143,514.00 (1st ICP). The 1st Defendant had paid the Plaintiff with regard to the 1st ICP. There was no dispute regarding the Valuation (1st PC) and 1st ICP. 2 5. The Plaintiff issued a second PC for a sum of RM660,300.00 (2nd PC) for which the 3rd Defendant valued the Works claimed in the 2nd PC at RM345,257.70 [Valuation (2nd PC)]. On 20.6.2018, the 2nd Defendant issued a second ICP on 20.6.2018 for an amount of RM345,257.70 (2nd ICP). The 1st Defendant only paid RM97,563.04 to the Plaintiff in respect of the 2nd ICP. 6. The Plaintiff had issued a “Variation Order” (VO) no. 1 on 29.5.2018 for a sum of RM130,000.00 in respect of additional works requested by the 1st Defendant (1st VO). There was no dispute regarding the 1st VO. 7. The local authority, “Majlis Bandaraya Melaka Bersejarah” (Local Authority), only gave a permit for the Works on 3.7.2018 (Local Authority’s Permit). 8. The 2nd Defendant issued a CNC on 6.8.2018 [after the Completion Date (5.8.2018)]. 9. A third PC in a sum of RM312,228.30 was issued on 14.8.2018 by the Plaintiff (3rd PC). The 3rd Defendant had initially valued the Works stated in the 3rd PC as RM120,711.87 [1st Valuation (3rd PC)]. The 3rd Defendant however subsequently revised the 1st Valuation (3rd PC) and re-valued the Works claimed in the 3rd PC at RM80,001.24 [Revised Valuation (3rd PC)]. A third ICP for an amount of RM80,001.24 was issued on 14.9.2018 by the 2nd Defendant (3rd ICP). The 1st Defendant did not pay anything to the Plaintiff regarding the 3rd ICP. 10. A second VO for a sum of RM13,048.20 had been issued by the Plaintiff on 1.8.2018 (2nd VO). 11. The Plaintiff issued a fourth PC on 1.10.2018 for an amount of RM304,816.43 (4th PC). 12. The Plaintiff’s solicitors sent two demands dated 13.12.2018 and 27.12.2018 to the 1st to 3rd Defendants (collectively referred to in this judgment as the “Defendants”) to, among others, pay the outstanding sum due to the Plaintiff for the Works [2 Demands (Plaintiff’s Solicitors)]. 3 13. On 28.12.2018, the 3rd Defendant had valued the Works claimed in the 4th PC and 2nd VO at RM70,739.35 [Valuation (4th PC)]. 14. The 2nd Defendant issued a fourth ICP on 4.1.2019 for a sum of RM70,739.35 (4th ICP). The 1st Defendant did not pay to the Plaintiff regarding the 4th ICP. 15. The 1st Defendant had terminated the agreement between the Plaintiff and 1st Defendant (Agreement) on 18.3.2019 [1st Defendant’s Termination (Agreement)] on the following grounds: (1) the Plaintiff had failed to complete the Works within the time period stipulated in the Agreement and the Plaintiff was therefore liable for LD to the 1st Defendant; (2) the Works performed by the Plaintiff was defective (Work Defects) and the 1st Defendant had to incur loss by getting third parties to remedy the Work Defects [1st Defendant’s Loss (Work Defects)]; and (3) as the Plaintiff did not complete the Works, the 1st Defendant had to pay third parties to complete the Works [1st Defendant’s Loss (Completion of Works)]. B. Proceedings in SC 16. The Plaintiff filed this suit in SC against the Defendants (This Action). In This Action (1) the Plaintiff’s claim against the Defendants (Original Action) is as follows, among others - (a) as against the 1st Defendant, the Plaintiff claimed that there was an outstanding sum of RM733,171.16 which was due from the 1st Defendant to the Plaintiff for the Works which had been performed by the Plaintiff; (b) regarding the 2nd Defendant, the Plaintiff pleaded that, among others, the 2nd Defendant had been negligent as follows - (i) the CNC was negligently issued by the 2nd Defendant; 4 (ii) the 2nd Defendant should have issued the 3rd ICP for an amount of RM120,711.87 in accordance with the 1st Valuation (3rd PC); and (iii) the 2nd Defendant did not issue the 4th ICP within a reasonable time after the Plaintiff had submitted the 4th PC; and (c) the Plaintiff alleged that the 3rd Defendant was negligent - (i) in reducing the sum of RM120,711.87 [as stated in the 1st Valuation (3rd PC)] to an amount of RM80,001.24 in the Revised Valuation (3rd PC); (ii) in failing to value the 4th PC and 2nd VO within a reasonable time after the Plaintiff’s submission of the 4th PC and 2nd VO; and (iii) the Valuation (4th PC) was only made by the 3rd Defendant after the 2 Demands (Plaintiff’s Solicitors) had been made; and (2) the 1st Defendant had counterclaimed against the Plaintiff (1st Defendant’s Counterclaim) as follows, among others - (a) a sum of RM469,125.00 as LD for the Plaintiff’s delay of 225 days in completing the Works within the time period stipulated by Clause 2 (at the rate of RM2,085.00 per day); and (b) an assessment of the 1st Defendant’s loss and damage to be paid by the Plaintiff to the 1st Defendant. 17. The Original Action and 1st Defendant’s Counterclaim were tried together in SC (Trial). The following witnesses testified at the Trial: (1) the Plaintiff had called three witnesses to give evidence, namely - (a) Puan Erne Bt. Hamzah (SP1) from the Local Authority; (b) Encik Don Harrim Bin Jamaluddin (SP2), the Plaintiff’s Project Supervisor; and 5 (c) Mr. Ben Low Kok Fwai (SP3), a director of the Plaintiff; (2) Mr. Siu Woei Ann (SD1), the 1st Defendant’s Vice-President (Projects), testified for the 1st Defendant; (3) the following three witnesses gave evidence on behalf of the 2nd Defendant - (a) Ar. Leow Aik Boon (SD2), architect and director of the 2nd Defendant; (b) Ir. Cheah Chee Foong (SD3), consultant civil engineer and TDC’s director; and (c) Ms. Lee Ren Ying (SD5), a graduate architect with the 2nd Defendant; and (4) SD3 was also called by the 3rd Defendant to testify for the 3rd Defendant. Additionally, the 3rd Defendant called Mr. Jacky Tey Jium Shyaa (SD4), a QS and Technical Director at the 3rd Defendant, to give evidence at the Trial. 18. The Trial was initially conducted before the learned Sessions Court Judge, Tuan Ahmad Azhari bin Abdul Hamid (1st SCJ). The learned 1st SCJ heard evidence from 6 witnesses, namely SP1 to SP3 and SD1 to SD3. The learned 1st SCJ was then transferred from Shah Alam SC and his replacement, Puan Azian binti Othman (2nd SCJ) took over the Trial. SD4 and SD5 testified before the learned 2nd SCJ. 19. On 21.7.2020 the learned 2nd SCJ delivered the following judgment (SC’s Judgment): (1) the Original Action was dismissed with costs of RM30,000.00 to be paid by the Plaintiff to each of the Defendants; and (2) the 1st Defendant’s Counterclaim was allowed with the following orders - (a) the Plaintiff shall pay LD in a sum of RM469,125.00 (LD Sum) to the 1st Defendant with interest at the rate of 5% per annum on LD Sum from 21.7.2020 until the Plaintiff’s full payment of LD Sum; 6 (b) an assessment of general damages to be conducted before the learned 2nd SCJ [Assessment (SC)]; (c) interest at the rate of 5% per annum on the amount of general damages assessed at the Assessment (SC) (Assessed Damages) shall be paid by the Plaintiff to the 1st Defendant on the Assessed Damages from the date of the Assessment (SC) until full settlement of the Assessed Damages by the Plaintiff; and (d) costs of RM30,000.00 shall be borne by the Plaintiff as costs of the 1st Defendant’s Counterclaim. 20. The Plaintiff has appealed to this court against SC’s Judgment (This Appeal). The 1st Defendant was represented by Messrs “BL Chong & PY Tay” at the SC. In This Appeal, the 1st Defendant is represented by Messrs “Rozlan Khuen”. 21. The learned 2nd SCJ conducted the Assessment (SC) and decided as follows [SC’s Decision (Assessment)]: (1) no general damages was ordered to be paid by the Plaintiff to the 1st Defendant; and (2) no order was made regarding the costs of the Assessment (SC). 22. Both the 1st Defendant and Plaintiff did not appeal to the High Court against SC’s Decision (Assessment). C. Issues 23. The following questions arise in This Appeal: (1) whether the learned 2nd SCJ could continue a part heard Trial from the learned 1st SCJ pursuant to O 35 r 11(1) of the Rules of Court 2012 (RC); (2) did the learned 2nd SCJ have a judicial duty to give a reasoned or “speaking” “Grounds of Judgment” (GOJ)?; 7 (3) whether the 1st Defendant could rely on the rebuttable presumption under s 114(e) of the Evidence Act 1950 (EA) to resist This Appeal on the ground that the learned 2nd SCJ had “regularly” performed her judicial duty in delivering SC’s Judgment; (4) could this appellate court intervene regarding learned 2nd SCJ’s findings of fact at the Trial (SC’s Factual Findings) when the learned 2nd SCJ did not hear testimonies of 6 out of a total of 8 witnesses at the Trial?; (5) were the 2nd and 3rd Defendants liable for the tort of negligence to the Plaintiff? In this regard - (a) did the 2nd Defendant owe a duty of care to the Plaintiff as the Project Architect and SO regarding the issuance of the 3rd ICP, 4th ICP and CNC?; (b) whether the 3rd Defendant owed a duty of care to the Plaintiff as the Project QS in the valuation the 3rd PC, 4th PC and 2nd VO; and (c) if the 2nd and 3rd Defendants owe the above duties of care to the Plaintiff, had the 2nd and 3rd Defendants breached such duties?; (6) did Clause 3 incorporate into the Agreement the “Design, Fabrication, Construction and Installation of Entrance Statement, Serial No. S810.ES, December 2017” (Document S810.ES)?; (7) whether CNC was valid on 6.8.2018 when Local Authority’s Permit was only granted on 3.7.2018 (after the Plaintiff had commenced Works). This concerns the construction of the following written law - (a) By-Law 22(1) of Uniform Building By-Laws 1984 (UBBL); (b) s 70(1), (9) and (13) of the Street, Drainage and Building Act 1974 (SDBA); 8 (c) ss 19, 26, 27 and 31 of the Town and Country Planning Act 1976 (TCPA); and (d) s 24(a) to (e) of the Contracts Act 1950 (CA); (8) did the 1st Defendant breach Clause 6 by not paying to the Plaintiff - (a) the 2nd ICP in full; and (b) the 3rd and 4th ICP’s within the time period stipulated in Clause 6?; (9) if the 1st Defendant had breached Clause 6 - (a) whether the Plaintiff had elected to affirm the Agreement by continuing the Works; (b) was the Plaintiff estopped from terminating the Agreement by the Plaintiff’s conduct?; and (c) had the Plaintiff failed to elect to terminate the Agreement within a reasonable time after the 1st Defendant’s breach of Clause 6?; (10) if the Plaintiff could not terminate the Agreement, what was the effect?; (11) should the court exercise its discretion under s 114(g) EA to draw an adverse inference against the Defendants for not calling Encik Husaini (from the 2nd Defendant) who signed a “Project Non-Compliance Report” [NCR (Painting Works)] regarding the Defendants’ rejection of the painting works done by the Plaintiff (Painting Works)?; and (12) had the Plaintiff failed to complete the Works on the Completion Date? If “yes” - (a) whether the Plaintiff was liable for LD to the 1st Defendant pursuant to Clause 5 and s 75 CA as construed by Richard Malanjum CJ (Sabah & 9 Sarawak) (as he then was) in the Federal Court case of Cubic Electronics Sdn Bhd (in liquidation) v Mars Telecommunications Sdn Bhd [2019] 2 CLJ 723; and (b) if the Plaintiff was liable for LD to the 1st Defendant - (i) could the 1st Defendant recover general damages [including the 1st Defendant’s Loss (Work Defects) and 1st Defendant’s Loss (Completion of Works)] from the Plaintiff under s 74(1) CA?; (ii) if the 1st Defendant could not recover general damages from the Plaintiff under s 74(1) CA, should the court exercise its discretionary power pursuant to s 29 read with s 69(1), (4) and (5) of the Courts of Judicature Act 1964 (CJA) to order the 1st Defendant to pay costs of the Assessment (SC) to the Plaintiff?; and (iii) whether the 1st Defendant should pay to the Plaintiff for the Works completed by the Plaintiff (including the “retention sum”). D. Whether 2nd SCJ could continue part heard Trial 24. The Plaintiff’s learned counsel, Mr. Adrian Oswald A/L Rajendran, has contended that when the learned 1st SCJ was transferred from Shah Alam SC, the learned 2nd SCJ could not continue the Trial which was at an advanced stage. With respect, I am not able to agree with the above submission. My reasons are as follows: (1) I reproduce below O 35 r 11 RC - “O 35 r 11 Continuation of hearing by another Judge (1) When a Judge who has commenced the hearing of a cause or matter is unable through death, illness or other cause to conclude the hearing or trial, the Chief Judge may nominate another Judge to continue the hearing. 10 (2) Nothing herein shall prevent the Judge so nominated from recalling all or any of the witnesses or taking their evidence afresh.” (emphasis added). O 1 r 4(1) RC defines a “Judge” to include a SCJ. The phrase “other cause” in O 35 r 11(1) RC applied in this case where the learned 1st SCJ had been transferred and the learned 2nd SCJ had been nominated to take over the part heard Trial from the learned 1st SCJ; and (2) O 28 r 19(1) of the Subordinate Courts Rules 1980 (SCR) is identical to O 35 r 11(1) of the Rules of the High Court 1980 (RHC). Both SCR and RHC have been repealed by RC - please refer to O 94 r 1(1)(a) and (b) RC. O 28 r 19(1) SCR and O 35 r 11(1) RHC provide as follows - “When a Judge who has commenced a trial of any proceedings is unable through death, illness or other cause to conclude the trial, another Judge may with the consent of the parties deal with the evidence already recorded and proceed with the trial from the stage at which the previous Judge left it.” (emphasis added). The difference between the present O 35 r 11(1) RC on the one part and the previous O 28 r 19(1) SCR and O 35 r 11(1) RHC on the other part, clearly shows the intention of the Rules Committee for the learned 2nd SCJ to continue the Trial (upon the transfer of the learned 1st SCJ) even without the consent of all the parties in this case. 25. I have not overlooked the reliance by Ms. Victoria Loi Tien Fen, the 3rd Defendant’s learned counsel, on Court of Appeal cases which have applied s 18(2)(a) CJA. Section 18(2) CJA states as follows: 11 “18(2) Whenever any Judge, after having heard and recorded the whole or any part of the evidence in a proceeding, is unable through death, illness or other cause to conclude the proceeding, another Judge may - (a) continue with the proceeding from the stage at which the previous Judge left it and - (i) act on the evidence already recorded by the previous Judge; or (ii) act on the evidence partly recorded by the previous Judge and partly by himself; or (b) resummon the witnesses and recommence the proceeding.” (emphasis added). According to s 3 CJA, the term “Judge” in s 18(2) CJA means a Judge of the Federal Court, Court of Appeal or High Court. It is therefore clear that s 18(2) CJA does not apply to SC. This is understandable as CJA applies to “Superior Courts of Judicature” as stated in the title to CJA. SC is a “subordinate court” under s 3(2)(a) of the Subordinate Courts Act 1948 (SCA) and SCA (not CJA) applies to SC. E. Did 2nd SCJ deliver a “speaking” GOJ? 26. In the Federal Court case of Dr. Hari Krishnan & Anor v Megat Noor Ishak bin Megat Ibrahim & Anor and another appeal [2018] 3 MLJ 281, at [35] to [38], Raus Sharif CJ decided as follows: “[35] In order to determine whether a judgment is a speaking judgment, one has to look into its contents and decide whether it has sufficient coverage of material facts to enable one to determine the legal issues, with reference to the crucial arguments for and against as raised by the parties. 12 [36] In Tan Kim Leng & Anor v Chong Boon Eng & Anor [1974] 2 MLJ 151, Raja Azlan Shah FJ (as His Royal Highness then was) emphasised the importance of a reasoned judgment as follows: In reaching a conclusion the learned judge had to consider the probabilities and the circumstances of the whole case. It was essentially a case in which there should have been a full record of the reasons which persuaded him to reach the conclusion he did. A mere finding of no negligence against both the respondents and that the accident occurred because of the sudden brake failure on account of some latent defect in the braking system, not supported by reasons, is not a judgment according to law. A judicial determination of a dispute where substantial questions of mixed fact and law arise is satisfactorily reached only if it be supported by the most cogent reasons that commend themselves to the learned judge. Recording of reasons in support of a decision of a dispute serves more purposes than one. It is intended to ensure that the decision is not the result of whim or fancy. ‘It is of course true’, said Sir Alfred Denning (as he then was), ‘that his decision may be correct even though he should give no reason for it or even give a wrong reason: but, in order that a trial should be fair, it is necessary, not only that a correct decision should be reached, but also that it should be seen to be based on reason; and that can only be seen, if the judge himself states his reasons’. See The Road to Justice, p 29. A party to the dispute is ordinarily entitled to know the grounds on which the learned judge has decided against him, and more so, when the judgment is subject to appeal. An appellate court will then have adequate material on 13 which it may determine whether the facts are properly ascertained, the law has been correctly applied and the resultant decision is just. (Emphasis added.) [37] The importance of a speaking judgment cannot be over- stressed (see Balasingham v Public Prosecutor [1959] 1 MLJ 193 and Ganapathy a/l Rengasamy v Public Prosecutor [1998] 2 MLJ 577). In the instant case, the issue of the non-speaking judgment by the learned JC was addressed by the Court of Appeal in the following manner: We agree with learned counsel for the defendants that the judgment of the learned JC was indeed a non-speaking judgment. However, there is no law that can allow an appeal simply because the judgment of the lower court was a non-speaking judgment. No doubt we do not condone such practice by the learned JC. We take the view that it is the duty of a trial judge to state clearly in her judgment the facts of the case as adduced by evidence, the legal issues requiring determination as well as the application of the laws to the facts and how the learned trial judge reached a conclusion on the findings of fact and law. Then it is for the appellate court to determine whether or not the learned trial judge had committed any error in the findings and application of laws to those facts. The failure of the trial judge to carefully state her reasons and findings would create enormous difficulties at the appellate stage. It would entail the appellate court to sieve through the appeal records and peruse the notes to see if they are sufficiently supportive of the decision and findings of the trial judge or otherwise. 14 Indeed the appellate court would not simply interfere with those findings unless they are erroneous. Upon our perusal of the appeal records before us, we agree with the findings of the learned JC and her award of damages for the reasons we elaborate below. [38] We endorse the view of the Court of Appeal quoted above, and agree that the High Court judgment in the instant case was a non-speaking one. Nevertheless, as will be elaborated below, it does not follow that a retrial or a rehearing should be ordered.” (emphasis added). 27. As explained in Dr. Hari Krishnan - (1) every judge is duty bound to provide a reasoned or “speaking” GOJ. This judicial duty is premised on the following reasons - (a) the reasons and reasoning of a court’s decision ensures that the decision is just and has not been made arbitrarily or erroneously. A judicial decision is only as good as its reasons and reasoning; (b) all parties and their learned counsel, especially the unsuccessful party, are entitled to know the reasons and reasoning of a court’s decision; (c) the reasons and reasoning of a judicial decision can assist the losing party’s learned counsel to advise his or her client to make an informed decision on whether an appeal should be lodged against the court’s decision; (d) if an unsuccessful party at first instance appeals to an appellate court against the judicial decision in question, both learned counsel for the appellant and respondent may be assisted by a reasoned GOJ to prepare their submission, written and oral, to be presented to the appellate court; and 15 (e) with a reasoned decision of the court of first instance, the appellate court is able to decide justly, expeditiously and economically on whether the lower court’s decision should be affirmed, varied or reversed; and (2) if a trial court’s GOJ is not a “speaking” one, such a fact does not ipso facto mean that the appellate court should reverse the trial judge’s decision and order a retrial. In such an event, the appellate court has a judicial duty to sieve through the appeal records to determine whether there should be any appellate intervention regarding the trial court’s decision. 28. Paragraphs 24 to 52 GOJ gave the learned 2nd SCJ’s decision without any reason and reasoning. Save for paragraph 37 GOJ (which referred to the evidence regarding the Painting Works), the GOJ did not even refer to the evidence adduced at the Trial. With respect to the learned 2nd SCJ, the GOJ is not a “speaking” one. There was also no factual finding on the credibility of two witnesses (SD4 and SD5) who gave evidence before the learned 2nd SCJ. 29. As the GOJ in this case was not a “speaking” one, it behoves me to sieve through the appeal record, especially the notes of evidence, to decide whether there should be any appellate intervention regarding SC’s Judgment. F. Can 1st Defendant rely on s 114(e) EA to resist This Appeal? 30. Section 114(e) and (g) EA state as follows: “Court may presume existence of certain fact 114. The court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct, and public and private business, in their relation to the facts of the particular case. ILLUSTRATIONS The court may presume - 16 … (e) that judicial and official acts have been regularly performed; … (g) that evidence which could be and is not produced would if produced be unfavourable to the person who withholds it; …” (emphasis added). 31. The 1st Defendant’s learned counsel, Encik Rozlan @ Malcolm Murphy, has sought to persuade me to uphold SC’s Judgment pursuant to s 114(e) EA on the ground that the learned 2nd SCJ had “regularly” performed her judicial duty in delivering SC’s Judgment. I am not able to accept this contention due to the following reasons: (1) the court has a discretion to apply any of the illustrations (a) to (i) in s 114 EA. It is decided in Orix Credit Malaysia Sdn Bhd v Raub Australian Gold Mining Sdn Bhd [2015] MLJU 943, at [36] and [37], as follows - “[36] Firstly, the court has a discretion to draw an adverse inference under s 114(g) EA. This is clear from the use of directory term “may”, not once but twice - in the main provision of s 114 EA and in the illustration (g) of s 114 EA. As such, the invocation of an adverse inference under s 114(g) EA is not a matter of course. [37] Secondly, as the drawing of an adverse inference or not under s 114(g) EA is an exercise of judicial discretion dependent on the particular facts of the matter in question, decided cases on s 114(g) EA are not binding legal precedents from the view point of the stare decisis doctrine - please see Mahadev Shankar JCA’s judgment in the Court of Appeal case of Structural Concrete Sdn Bhd v Wing Tiek Holdings Bhd [1997] 1 CLJ 300, at 306.” (emphasis added). 17 I do not exercise my discretion to invoke s 114(e) EA to support SC’s Judgment because our apex courts [eg. the judgment of Steve Shim CJ (Sabah & Sarawak) in the Federal Court case of Gan Yook Chin & Anor v Lee Ing Chin & Ors [2004] 4 CLJ 309, at 317-321] have decided that an appellate court can only intervene regarding a trial court’s decision when the trial court has committed any one the following errors - (a) a “plain error of fact”; (b) a “plain factual omission”; (c) a plain error of mixed law and fact; (d) a wrong inference has been drawn from the evidence; (e) a correct inference has not been made from the evidence; and (f) an error of law - and the above error or omission has caused an injustice which warrants appellate intervention. Malaysian case law has not decided that appeals against trial courts’ decisions should be dismissed solely on an application of s 114(e) EA; and (2) if the court invokes s 114(e) EA, there arises only a rebuttable presumption that a judicial act has been regularly performed - please refer to the Supreme Court’s judgment delivered by Peh Swee Chin SCJ in Loo Keck Leong v Public Prosecutor [1992] 2 MLJ 177, at 182. Even if I have applied s 114(e) EA in This Appeal, this rebuttable presumption has been rebutted by the fact that the GOJ is not a “speaking” one - please refer to the above paragraph 28. G. Whether appellate court can set aside SC’s Factual Findings 32. Notwithstanding the fact that the learned 2nd SCJ did not hear the testimonies of 6 out of a total of 8 witnesses at the Trial, as explained in Gan Yook Chin, this 18 appellate court cannot set aside SC’s Factual Findings unless there is an error or omission on the part of the learned 2nd SCJ as explained in the above sub-paragraph 31(1). H. Were 2nd and 3rd Defendants liable in negligence to Plaintiff? 33. It is not disputed that for the 2nd and 3rd Defendants to be liable in negligence to the Plaintiff, the Plaintiff has the legal and evidential burden to prove all the following three elements of the tort of negligence: (1) the following duties of care were owed by the 2nd and 3rd Defendants to the Plaintiff under Malaysian case law [Duties (Plaintiff)] - (a) as the Project Architect and SO, the 2nd Defendant had to take all reasonable care in the issuance of the 3rd ICP, 4th ICP and CNC; and (b) the 3rd Defendant owed a duty to take all reasonable care as the Project QS in the valuation of the 3rd PC, 4th PC and 2nd VO; (2) if the Duties (Plaintiff) existed, the 2nd and 3rd Defendants had breached the Duties (Plaintiff) [Breaches (2nd and 3rd Defendants)]; and (3) the Plaintiff’s loss had been “caused” in fact by the Breaches (2nd and 3rd Defendants) and was not too remote to be recovered in law by the Plaintiff. H(1). Did 2nd and 3rd Defendants owe Duties (Plaintiff)? 34. Firstly, employers of construction projects (Employers) and consultants, [eg. architects, QS’s and engineers (Consultants)] have the freedom to enter into contracts with the Employers [Contracts (Employer-Consultant)]. 35. Secondly, upon the conclusion of Contracts (Employer-Consultant), Consultants owe contractual duties (and perhaps a duty of care too) to Employers regarding the Consultants’ work in the project [Consultants’ Duties (Employer)]. 19 36. The question that arises in this case is whether Consultants owe a duty of care to a project’s main contractors and sub-contractors (Contractors) regarding works in the projects [Consultants’ Duties (Contractors)]. 37. Before our Federal Court’s decision in Lok Kok Beng & Anor v Loh Chiak Eong & Anor [2015] 7 CLJ 1008, there are conflicting views regarding the existence of Consultants’ Duties (Contractors) as follows: (1) the following cases have decided that Consultants do not owe duties of care to Contractors - (a) the judgments of Purchas, Ralph Gibson and Russell LJJ in United Kingdom’s (UK) Court of Appeal case of Pacific Associates Inc & Anor v Baxter & Ors [1989] 2 All ER 159, at 179-180, 185-187 and 192; and (b) the decision of Chan Sek Keong CJ in Singapore’s Court of Appeal in Spandeck Engineering (S) Pte Ltd v. Defence Science & Technology Agency [2007] 4 SLR 100, at [108], [109], [114] and [116]; and (2) the existence of Consultants’ Duties (Contractors) has been recognised by Lord Salmon in the House of Lords in Arenson v Casson Beckman Rutley & Co [1977] A.C. 405, at 438, as follows - “Since the principle promulgated by Buckley LJ upon which he attempted to justify the old decisions had been completely rejected by your Lordships' House in Sutcliffe v Thackrah [1974] AC 727, it was of necessity abandoned on the hearing of this appeal and a new ground had to be improvised for supporting the Court of Appeal's decision that public policy demanded that so called quasi-arbitrators in the position of the respondents should enjoy immunity against being sued for damages caused by their own negligence. It was accordingly argued that without such immunity it would be very difficult, if not impossible, to persuade accountants to make valuations in circumstances such as the present, and that thus, 20 contrary to the public interest, the commercial community would be deprived of a very valuable service. The suggested reason for this supposed reluctance to make such valuations was that accountants would not accept the risk, as counsel put it, of being "shot at from both sides." It was one thing for an expert to express his opinion on value to a client who was a buyer or a seller but quite another for him to express his opinion on value in circumstances such as the present. In the one case, he was risking being sued for negligence only by his client; in the other, either the buyer or the seller might be dissatisfied with the valuation, and the expert would therefore be exposing himself to the wholly unacceptable dual risk of being sued by both. In spite of the remarkable skill with which this argument was developed, I cannot accept it. Were it sound, it would be just as relevant in Sutcliffe v Thackrah as in the present case. The architect owed a duty to his client, the building owner, arising out of the contract between them to use reasonable care in issuing his certificates. He also, however, owed a similar duty of care to the contractor arising out of their proximity: see the Hedley Byrne case. In Sutcliffe v Thackrah the architect negligently certified that more money was due than was in fact due; and he was successfully sued for the damage which this had caused his client. He might, however, have negligently certified less money was payable than was in fact due and thereby starved the contractor of money. In a trade in which cash flow is especially important, this might have caused the contractor serious damage for which the architect could have been successfully sued. He was thus exposed to the dual risk of being sued in negligence but this House unanimously held that he enjoyed no immunity from suit.” (emphasis added). 21 The above dicta by Lord Salmon in Arenson was purely obiter because the material facts of that case concerned a suit by a plaintiff against, among others, auditors who had been appointed to value shares of a company. No issue regarding the existence of Consultants’ Duties (Contractors) arose in Arenson. I have not overlooked the judgment of the House of Lords in Sutcliffe v Thackrah [1974] AC 727. In Sutcliffe, the plaintiff had sued his architect for negligently over-certifying works performed by the contractor (to build the plaintiff’s house). Sutcliffe did not decide that an architect owes a duty of care to a contractor. 38. In De Tebrau Makmur Sdn Bhd & Anor v Bank Kerjasama Rakyat Malaysia Bhd [2017] MLJU 201, at [50], I have followed Zainun Ali FCJ’s judgment in Lok Kok Beng, as follows: “[50] My understanding of Lok Kok Beng is as follows: … (2) in deciding whether a party (X) owes a duty of care to another party (Y), the Court shall consider the following - (a) whether there is “sufficient legal proximity” between X and Y. It is to be noted that Courts have also applied the test of whether it is reasonably foreseeable that Y will suffer loss or damage arising from X’s misstatement. In this respect, the following considerations are relevant - (i) the nature of relationship between X and Y; (ii) whether X has voluntarily assumed responsibility to Y regarding X’s misstatement; (iii) whether Y has relied on X’s misstatement; (iv) whether there is physical proximity; (v) whether there is circumstantial proximity; and 22 (vi) whether there is causal proximity; (b) if there is “sufficient legal proximity” between X and Y, X owes a prima facie duty of care to Y. The next question is whether X’s prima facie duty of care is negated by policy consideration. The following matters are pertinent - (i) the factual matrix of the case; (ii) whether there is a contract between X and Y; and (iii) the relative bargaining positions of X and Y; … ” (emphasis added). 39. As a matter of stare decisis, I am bound by Lok Kok Beng. Premised on Lok Kok Beng, I am of the following view: (1) the 2nd and 3rd Defendants had not voluntarily assumed any responsibility to the Plaintiff regarding the Works; (2) the 2nd and 3rd Defendants owed prima facie Duties (Plaintiff) because - (a) there was “sufficient legal proximity” between the Plaintiff on the one hand and 2nd and 3rd Defendants on the other hand in the sense that it was reasonably foreseeable that the Plaintiff would suffer loss or damage arising from act, omission and/or delay by - (i) the 2nd Defendant with regard to the issuance of ICP’s and CNC; and (ii) the 3rd Defendant’s valuation of PC’s and VO’s; and (b) there existed in this case - (i) physical proximity; (ii) circumstantial proximity; and 23 (iii) causal proximity regarding the Works between the Plaintiff on the one part and 2nd and 3rd Defendants on the other part; and (3) the existence of prima facie Duties (Plaintiff) is negated by the following policy considerations: (a) the 2nd and 3rd Defendants were appointed by the 1st Defendant (not the Plaintiff) for the Project. Accordingly, the 2nd and 3rd Defendants owed duties to the 1st Defendant regarding the Works [Duties (1st Defendant)]. If I had imposed Duties (Plaintiff) and in the event of a conflict between - (i) Duties (Plaintiff); and (ii) Duties (1st Defendant) (Conflict of Duties), the imposition of Duties (Plaintiff) - (ai) may undermine Duties (1st Defendant); (aii) may adversely affect the independence of the 2nd and 3rd Defendants in the performance of their Duties (1st Defendant); (aiii) may cause the 2nd and 3rd Defendants to be on the horns of a dilemma - should the 2nd and 3rd Defendants comply with Duties (Plaintiff) or Duties (1st Defendant)? Worse still, when a Conflict of Duties arose, the 2nd and 3rd Defendants could be liable simultaneously to both the Plaintiff and 1st Defendant for the same aspect of the Works. Such an outcome is not just to the 2nd and 3rd Defendants; and 24 (aiv) may hinder, if not jeopardise, the smooth running and success of the project in question. This is unjust to Employers and does not augur well for the construction industry as a whole; and (b) if this court does not recognise the existence of Duties (Plaintiff), there is no injustice to the Plaintiff because - (i) the Plaintiff had the freedom to enter into the Agreement with the 1st Defendant. The Plaintiff also had actual knowledge of the existence of Duties (1st Defendant). Yet, the Plaintiff concluded the Agreement with the 1st Defendant; and (ii) the Plaintiff had a valid cause of action against the 1st Defendant based on the Agreement. Any loss or damage suffered by the Plaintiff due to the 1st Defendant’s breach of the Agreement could and should be only recovered from the 1st Defendant (not from the 2nd and 3rd Defendants). 40. I acknowledge that the tort of negligence may be developed in an incremental manner based on the particular facts of each case (Incremental Approach). The Incremental Approach has been explained in Lok Kok Beng, at [68], as follows: “[68] The test to determine the imposition of a duty of care was a two-stage test comprising first, proximity and, second, policy considerations, which were together preceded by the threshold question of factual foreseeability. It was held that a prima facie duty of care arises by satisfying the preliminary question of factual foreseeability and the first stage of the legal proximity test. Policy considerations should then be applied to the factual matrix to determine whether or not to negate this duty. The two-stage test is to be applied incrementally with reference to the facts of decided cases.” (emphasis added). 25 As explained in the above paragraphs 38 and 39, I have decided not to adopt the Incremental Approach in this case so as to impose Duties (Plaintiff) on the 2nd and 3rd Defendants. Having said that, I do not exclude the possibility that there may be an appropriate case in the future where policy considerations do not militate against the imposition of Consultants’ Duties (Contractors). 41. In the High Court case of L3 Architects Sdn Bhd v PCP Construction Sdn Bhd [2019] 1 LNS 1321, at [1], [87] and [88], Aliza Sulaiman JC (as she then was) decided that a consultant architect appointed by an employer in a construction project did not owe a duty of care to the main contractor to ensure the validity and accuracy of the payment certificates issued by the architect. 42. In view of Lok Kok Beng and the reasons explained in the above paragraphs 38 to 41, I have no hesitation to dismiss This Appeal against the 2nd and 3rd Defendants on the ground that the 2nd and 3rd Defendants owed no duty of care to the Plaintiff in respect of the Works. H(2). Whether 2nd and 3rd Defendants had breached Duties (Plaintiff) 43. On the assumption that there existed Duties (Plaintiff), I will now decide whether the 2nd and 3rd Defendants had breached the Duties (Plaintiff). 44. Regarding the care and skill required of the 2nd and 3rd Defendants in this case, I rely on the following judgment of Barakbah LP in the Federal Court in Swamy v Matthews & Anor [1968] 1 MLJ 138, at 139: “A man or a woman who practises a profession is bound to exercise the care and skill of an ordinary competent practitioner in that profession - be it the profession of an accountant, a banker, a doctor, a solicitor or otherwise.” (emphasis added). 26 45. I will start with the question of whether the 3rd Defendant had breached its duty of care owed to the Plaintiff as the Project QS in respect of the valuation of the 3rd PC, 4th PC and 2nd VO. 46. Firstly, as submitted by Ms. Loi, a project architect is duty bound to inform the project QS (who measures the amount of works performed by a contractor) that the works are defective so as to enable the QS to decide whether a deduction for defective works should be made by the QS in the QS’s valuation - please refer to the judgment of Judge Stabb QC (sitting as an Official Referee) in UK’s High Court case of Sutcliffe v Chippendale & Edmondson (a firm) (1971) 18 BLR 149, at 150. It is to be noted that Judge Stabb QC’s decision was initially reversed by the Court of Appeal but was subsequently restored by the House of Lords in Sutcliffe v Thackrah [1974] AC 727. 47. Based on Swamy, this court has to decide whether the 3rd Defendant had acted with care and skill of a reasonably competent Project QS in the valuation of the 3rd PC, 4th PC and 2nd VO. I am of the view that the 3rd Defendant had acted with care and skill of a reasonably competent Project QS in the valuation of the 3rd PC, 4th PC and 2nd VO. This decision is due to the following evidence and reasons: (1) with regard to the 3rd PC, the 3rd Defendant had acted with care and skill of a reasonably competent Project QS by revisiting the 1st Valuation (3rd PC) and thereafter arrived at the Revised Valuation (3rd PC). This was because the 1st Valuation (3rd PC) did not take into account TDC’s “Project Non-Compliance Report” dated 30.8.2018 [NCR (String Members)] which stated that the “string members” supplied by the Plaintiff (String Members) were not straight. NCR (String Members) was signed by SD3. SD3 had testified regarding the truth of NCR (String Members). I attach weight to NCR (String Members) and SD3’s oral evidence because - (a) whether the String Members were straight or otherwise was a question which fell within the expertise of SD3 as a consultant civil engineer within the meaning of s 45(1) EA. The Plaintiff could only rebut SD3’s expert 27 opinion regarding the String Members by calling a civil engineer to give evidence that the String Members were straight. The Plaintiff however did not call a civil engineer to testify as such; and (b) TDC and SD3 were disinterested parties in this case; (2) there was no inordinate delay in the issuance of the Revised Valuation (3rd PC) because time had to be expended for the 3rd Defendant to coordinate with TDC in the preparation of the Revised Valuation (3rd PC); (3) in respect of the 4th PC and 2nd VO, the 3rd Defendant had acted with the care and skill of a reasonably competent Project QS in conducting the Valuation (4th PC). The 3rd Defendant had correctly deducted the following four sums from the 4th PC and 2nd VO (4 Deductions) - (a)a sum of RM10,876.47 was deducted because as stated in the NCR (String Members) and SD3’s expert testimony, the String Members were not straight; (b) the 3rd Defendant had rightly deducted an amount of RM23,788.00 for the Painting Works which had been rejected by the 2nd Defendant in NCR (Painting Works). This was because the Plaintiff had used “JOTUN” paint and not the approved “NIPPON” paint. The sum of RM23,788.00 was based on a quotation obtained from Paint Marketing Co. (M) Sdn. Bhd; (c) a deduction of RM65,961.37 was made because the 1st Defendant had to appoint a third party, Tajukon Sdn. Bhd. to do the pile caps (which should have been performed by the Plaintiff under the Agreement); and (d) the Plaintiff had agreed to bear the cost of an extension of “Contractor’s All Risk Insurance” in a sum of RM417.72. Hence, this sum was deducted from the 4th PC and 2nd VO; (4) there was no unreasonable delay in the preparation of the Valuation (4th PC) on the part of the 3rd Defendant. This is clear from the following evidence - 28 (a) on 26.11.2018, the Plaintiff had for the first time informed SD4 about the 4th PC and 2nd VO. SD4 had tendered his mobile phone records (exhibit D121) which proved that SD4 had orally requested for the 4th PC and 2nd VO from the Plaintiff on 26.11.2018 itself. The Plaintiff however did not forward the 4th PC and 2nd VO to the 3rd Defendant; and (b) on 18.12.2018, SD4 again orally requested the Plaintiff through WhatsApp (exhibit D122) to furnish the 4th PC and 2nd VO to the 3rd Defendant. Despite this request, the 4th PC and 2nd VO were not furnished by the Plaintiff to the 3rd Defendant; and (5) the 2nd Defendant had agreed with the Revised Valuation (3rd PC) and Valuation (4th PC). If the 3rd Defendant had been negligent in the issuance of the Revised Valuation (3rd PC) and Valuation (4th PC), the 2nd Defendant would not have issued the 3rd ICP and 4th ICP. 48. I now turn to the issue of whether the 2nd Defendant had acted with care and skill of a reasonably competent Project Architect and SO in the issuance of the 3rd ICP, 4th ICP and CNC. I have no hesitation to accept the submission of the 2nd Defendant’s learned counsel, Puan Hilwa Nafiza Bt. Bustam, that the 2nd Defendant had not breached its duty of care owed to the Plaintiff as the Project Architect and SO with regard to in the issuance of the 3rd ICP, 4th ICP and CNC. My reasons are as follows: (1) in the issuance of the 3rd ICP, the 2nd Defendant was duty bound as the Project Architect and SO to consider NCR (String Members). Furthermore, as explained in the above sub-paragraph 47(1), weight is attached by this court to NCR (String Members) and SD3’s expert evidence; (2) the 4 Deductions taken into account by the 3rd Defendant in the Valuation (4th PC), had also been considered by the 2nd Defendant before the 4th ICP was issued. Hence, the 2nd Defendant had fulfilled its duty of care as a reasonably competent Project Architect and SO in issuing the 4th ICP; and 29 (3) the 2nd Defendant as a reasonably competent Project Architect and SO had correctly issued the CNC by virtue of Clauses 2 and 5. Furthermore, the Plaintiff did not apply for an EOT. As explained in paragraphs 53 to 55 below, the fact that LA’s Permit was obtained on 3.7.2018 (after the 2nd Defendant had commenced Works), did not affect the validity of CNC and the Agreement. I. Was Document S810.ES part of Agreement? 49. Mr. Oswald has contended that Document S810.ES did not form part of the Agreement because both the Plaintiff and 1st Defendant did not sign on the Document S810.ES. I am not able to accede to this submission for the following reasons: (1) Document S810.ES was attached to the LA. As such, according to Clause 3, Document S810.ES had been incorporated into the Agreement. It is to be noted that Clause 3 had employed a mandatory term “shall”; and (2) once Clause 3 had incorporated Document S810.ES as part of the Agreement, it was immaterial that the Document S810.ES was not signed by the Plaintiff and 1st Defendant. It is decided in Era Kemuncak Jaya (M) Sdn Bhd v Tenaga Switchgear Sdn Bhd [2021] MLJU 1855, at [28], as follows - “[28] I am not able to accept Mr. See’s contention that TNB’s Schedule (Civil Works) was part of the Agreement because TNB’s Schedule (Civil Works) had been initialed by SP1. The initials of any person on a document do not per se incorporate the document as part of a contract unless the contract has incorporated such a document into the contract. If an agreement has incorporated a document as part of the agreement, it is immaterial that the document is not initialed by any one of the contracting parties or their employees.” (emphasis added). 30 J. Whether CNC was valid on 6.4.2018 when Local Authority’s Permit was only granted after Plaintiff had commenced Works 50. Mr. Oswald has made a far-reaching submission - CNC could not be valid on 6.4.2018 because Local Authority’s Permit was only given after the Plaintiff had commenced Works. To support this submission, Mr. Oswald has relied on the following provisions of written law and case: (1) By-Law 22(1) UBBL; (2) s 70(1) and (9) SDBA; (3) s 24(a), (b) and (e) CA; and (4) the judgment of Mohd. Firuz JC (as he then was) in the High Court case of Senga Engineering & Construction Sdn Bhd v Richwin Holdings (M) Sdn Bhd [2016] MLJU 1902. 51. I reproduce below the relevant provisions of written law: “By-Law 22(1) UBBL Notice of the intention to commence or resume the erection of a building required under [s 70(9) SDBA] shall be made in Form B as set out in the Second Schedule to these By-laws and shall include particulars of the intended work. s 70 SDBA Notice of new buildings. (1) No person shall erect any building without the prior written permission of the local authority. … Notice of commencement of resumption of building operations (9) No person shall commence the erection of a building or resume the erection of a building in any case where the work of erection has been suspended for a continuous period exceeding three months unless - 31 (a) such work is commenced or resumed, as the case may be, within twelve months from the date on which the plans and specifications of such building were approved by the local authority; and (b) he has given the local authority four days' notice in writing of his intention to commence or resume such work, as the case may be. … (13) Any person who - (a) commences or resumes the erection of a building in contravention of subsection (9); … (c) erects a building in contravention of this Act or of any of the by- laws made thereunder; or … shall be liable on conviction to a fine not exceeding fifty thousand ringgit or to imprisonment for a term not exceeding three years or to both and shall also be liable to a further fine of one thousand ringgit for every day during which the offence is continued after conviction. … (15) A Magistrate shall, on the application of the local authority or of a public officer authorized by the local authority in writing in that behalf, make a mandatory order requiring any person convicted of an offence under the provisions of subsection (13) to alter in any way or demolish the building. TCPA provisions Prohibition of development without planning permission. 19(1) No person, other than a local authority, shall commence, undertake, or carry out any development unless planning permission in respect of the development has been granted to him under section 22 or extended under subsection 24 (3). 32 … Offences relating to unauthorized development. 26(1) A person who, whether at his own instance or at the instance of another person - … (b) commences, undertakes, or carries out, or permits to be commenced, undertaken, or carried out, any development in contravention of section 19 or 20; … commits an offence and is liable, on conviction, to a fine not exceeding five hundred thousand ringgit or to imprisonment for a term not exceeding two years or to both and, in the case of a continuing offence, to a further fine which may extend to five thousand ringgit for each day during which the offence continues after the first conviction for the offence. Enforcement in the case of contravention of section 19. 27(1) This section shall apply where it appears to the local planning authority that any development has been or is being undertaken or carried out in contravention of section 19. … (8) If no application is made under subsection (3) within the time allowed or if the application is refused, the local planning authority shall serve on the owner, occupier, or the person who, in the opinion of the local planning authority, is carrying out the development, a notice in the prescribed form requiring any or all of them to comply, within the period specified in the notice or within such further period as the local planning authority may allow, with such requirements, to be specified in the notice, as the local planning authority thinks fit in order that the land be restored as far as possible to the condition it was in before the development was commenced. (9) Subject to subsection (10), any person who fails to comply with any requirement of a notice under subsection (2) or (8) within the period allowed commits an offence and is liable, on conviction, to 33 a fine not exceeding one hundred thousand ringgit or to imprisonment for a term not exceeding six months or to both and to a further fine which may extend to five thousand ringgit for each day during which the failure is continued after the first conviction for the offence. Execution by authorized person 31(1) If any requirement of any notice served under any of the provisions of sections 27, 28, 29 and 30, other than a requirement to discontinue any development or activity, is not complied with within the period specified in the notice or within any further period that may have been allowed by the respective local planning authority, an authorized person may, with or without workmen, enter upon the land to which the notice relates and take such steps as may be necessary to execute the notice, including the demolishing or altering of any building or works and the removal of any goods, vehicles, or things from any building or from the land. s 24 CA What considerations and objects are lawful, and what not The consideration or object of an agreement is lawful, unless - (a) it is forbidden by a law; (b) it is of such a nature that, if permitted, it would defeat any law; (c) it is fraudulent; (d) it involves or implies injury to the person or property of another; or (e) the court regards it as immoral, or opposed to public policy. 34 In each of the above cases, the consideration or object of an agreement is said to be unlawful. Every agreement of which the object or consideration is unlawful is void.” (emphasis added). 52. It is decided in Senga Engineering & Construction, at [6], [15], [26] to [28], [33] and [34], as follows: “Issues For Trial [6] … I can safely summarise ten issues for the court’s determination: … (vii) whether the building under the project was built illegally or wrongfully in law; (viii) in the event the building was built illegally or wrongfully in law, whether defendant was entitled to the counterclaim against the plaintiff for payment for the work done on the said project; … [15] I am in agreement with both counsels [sic] as the considerations and objects of the said agreement was indeed lawful as it is in line with the provision of s 24 [CA] as reproduced below: … [26] Based on the evidence of SP1, it was clear that SP1 knew that building plan must be approved by the local authority, yet, he did not make the necessary effort to ensure that it was approved before embarking on the construction of the bungalow. SP1 even admitted that he took a risk in carrying out the works without approval. In fact during cross-examination, SP1 admitted that his reasoning to quickly start work was he would only get payment when he starts work and that he had asked for the defendant’s permission to start as the timeline to complete the bungalow was nine months from the date of the agreement. 35 [27] During re-examination, SP1 admitted that he thought the building plan was approved as this was a tender project. The result of proceeding with the construction of the bungalow rendered the building illegal as was held in Melaka High Court Suit No: 22-179- 2008 for being in contravention of s 70 [SDBA]. Accordingly, the building constructed by the plaintiff was ordered to be demolished. [28] Whilst the defendant’s counsel had submitted that he relied on the expertise of the plaintiff in building the bungalow (reliance was considerably placed on Part 1 of the general terms and conditions of the agreement), I am of the view that the defendant too was equally guilty for contravening the provision of s 70 [SDBA]. … [33] In view of the fact that SP3 was an independent witness who had no interest in the outcome of the suit, I am inclined to adopt SP3’s version of events that the defendant knew the landlord will not give approval for the construction works. Thus, it is clear as daylight that both the hands of the plaintiff and defendant are tainted. That being the case, the court cannot render any assistance to either party. Ex turpi causa non oritur actio - the court cannot render its assistance to either party which was part of the illegality. [34] Having said the above, for the sake of completeness the court’s finding on the issues to be tried are as follows: … (vii) whether the building under the project was built illegally or wrongfully in law? The answer is affirmative as this was already decided by the High Court in Suit No. 22-179-2008. (viii) in the event the building was built illegally or wrongfully in law, whether defendant was entitled to the counterclaim 36 against the plaintiff for payment for the work done on the said project? The defendant was equally guilty of flouting the provisions of ss 70 and 72 [SDBA]. That being the case, the defendant is not entitled to the counterclaim against the plaintiff. Section 66 [CA] as relied upon by the defendant is not applicable in this case. As both parties were equally tainted before the court, the losses will simply lie where they fell. See Sami Mousawi Utama Sdn Bhd v. Kerajaan Negeri Sarawak [2004] 2 CLJ 186. … (x) if the plaintiff is not entitled to payment for the whole building work done, whether the plaintiff shall refund the amount of RM1,302,277 which the defendant has paid to the plaintiff? As the defendant was equally guilty as the plaintiff for contravening the provisions of s 70 [SDBA], the loss of the defendant shall lie where it falls. …” (emphasis added). 53. I am of the following view: (1) UBBL, SDBA and TPCA (3 Written Laws) regulate, among others, construction of buildings. The 3 Written Laws do not provide for, let alone regulate, the validity of agreements and their contents. If there is a contravention of the 3 Written Laws [Contravention (3 Written Laws)], there will be sanctions by the local authority in question (which include criminal penalties). There is nothing in the 3 Written Laws which provides, either expressly or by necessary implication, that a Contravention (3 Written Laws) - (a) invalidates a construction contract in toto or any provision of the contract; and 37 (b) affects the interpretation and effect of a construction agreement. In support of the above view - (i) if any person has erected any building without the local authority’s prior written permission as understood in s 70(1) SDBA, the person commits an offence under s 70(13)(c) SDBA. Upon a conviction, s 70(15) SDBA empowers the Magistrate’s Court to issue a mandatory order for the convicted person to alter or demolish the building in question; and (ii) if a “development” [as defined in s 2(1) TCPA] is carried out on a piece of land without a “planning permission” [as understood in s 2(1) TCPA] from the “local planning authority” [defined in ss 2(1) and 5(1) TCPA to mean the local authority], there are four consequences under TCPA [4 Consequences (TCPA)] which do not involve the invalidation of the construction agreement, wholly or partly. The 4 Consequences (TCPA) have been explained in EONTAT Sdn Bhd v Budget Kitchen Sdn Bhd [2021] 3 MLRH 304, at [26], as follows - “[26] If “planning permission” has not been obtained for any “development” on a piece of land and the development has been carried out, the following four consequences (4 Consequences) may arise: (1) a breach of s 19(1) TCPA amounts to an offence which is punishable under s 26(1)(b) TCPA - please refer to Everest Aisvaram Sdn Bhd v Majlis Bandaraya Shah Alam [2020] 9 MLJ 545, at [47]; (2) the local authority may issue a notice pursuant to s 27(1) and (8) TCPA to the following persons - (a) land owner; (b) occupier of the land; and/or 38 (c) the person who, in the opinion of the local planning authority, is carrying out the development on the land - to reinstate the land “as far as possible to the condition it was in before the development was commenced” [Local Authority’s Section 27(8) Notice] - Everest Aisvaram, at [48]; (3) failure to comply with a Local Authority’s Section 27(8) Notice is tantamount to an offence which is punishable under s 27(9) TCPA - Everest Aisvaram, at [49]; and (4) by virtue of s 31(1) TCPA, the local authority may enter the land and demolish the building in question.” (emphasis added); and (2) a contract can only be invalidated by the application of any one of the paragraphs (a) to (e) in s 24CA. In this regard, s 24(a) to (e) CA do not apply to a Contravention (3 Written Laws). It is decided in EONTAT, at [27], as follows - “[27] I am of the view that the Plaintiff’s failure to obtain planning permission for the construction of Warehouse B does not invalidate the Contract because - (1) there is nothing in TCPA which prohibits the making of a contract to erect any building on a piece of land. I cite the following judgment of Mahadev Shankar JCA in the Court of Appeal case of YK Fung Securities Sdn Bhd v James Capel (Far East) Ltd [1997] 2 MLJ 621, at 667 - “Whether the contracts were illegal or otherwise is a matter for this court to decide. The trial judge 39 found as a fact that these contracts were valid because prior to the KLSE circular, there was nothing in the KLSE rules prohibiting such contracts. We agree. We would go further and state that what the law does not specifically prohibit, it permits.” (emphasis added); (2) the Plaintiff’s failure to obtain planning permission for the construction of Warehouse B only attracts the [4 Consequences (TCPA)] which do not invalidate the Contract; and (3) as explained in the above sub-paragraphs (1) and (2), the Contract in this case does not fall within any one of the paragraphs (a) to (e) of s 24 CA because - (a) the Contract is not forbidden by TCPA; (b) the Contract is not of such a nature that, if permitted, the Contract would defeat TCPA; (c) the Contract is not fraudulent; (d) the Contract does not involve or imply injury to any person or property; or (e) the court does not regard the Contract as immoral or opposed to public policy.” (emphasis added). 54. Premised on the reasons stated in the above paragraph 53 - 40 (1) with respect, I am not able to agree with the decision in Senga Engineering & Construction. As explained by Ong Hock Thye FJ (as he then was) in the Federal Court in Sundralingam v Ramanathan Chettiar [1967] 2 MLJ 211, at 213, according to the stare decisis doctrine, one High Court Judge or Judicial Commissioner (J/JC) is not bound by a decision of another J/JC. Indeed, a J/JC may even depart from his or her own previous decision; and (2) the fact that Local Authority’s Permit was only obtained after the Plaintiff had commenced Works could not invalidate - (a) the Agreement or any provision in the Agreement; and (b) the CNC. 55. In view of the reasons explained in the above paragraphs 53 and 54, I am constrained to reject the above contention by Mr. Oswald. If otherwise, the Plaintiff’s own claim against the 1st Defendant in the Original Action may be unlawfully stifled by the fact that Local Authority’s Permit was only granted after the commencement of the Works by the Plaintiff. K. Did 1st Defendant breach Clause 6? 56. Clause 6 had employed a mandatory term “shall”. Hence, the parties’ manifest intention in providing for Clause 6 was for the 1st Defendant to make progress payments to the Plaintiff for actual Works performed by the Plaintiff which had complied with the Agreement and which had been certified by the 2nd Defendant in an ICP. This was to ensure that the Plaintiff was not deprived of cash flow to pay the Plaintiff’s suppliers, sub-contractors, financiers, creditors and employees. Accordingly, I accept Mr. Oswald’s submission that the 1st Defendant had breached Clause 6 by not paying to the Plaintiff - (1) the 2nd ICP in full; and (2) the 3rd and 4th ICP’s 41 within the time period stipulated in Clause 6 (1st Defendant’s Breach). 57. Whether the 1st Defendant had breached Clause 6 was a question of mixed law and fact to be decided by the learned 2nd SCJ. Regrettably, it is clear from the GOJ that the learned 2nd SCJ has not considered at all the 1st Defendant’s Breach. This is a plain omission by the learned 2nd SCJ (1st Plain Omission) which warrants appellate intervention (to be discussed below in paragraph 73). L. Whether Plaintiff could terminate Agreement due to 1st Defendant’s Breach 58. I am of the following view regarding the 1st Defendant’s Breach: (1) Clause 6 is an “innominate term” or “intermediate term” as explained by Zainun Ali FCJ in the Federal Court in SPM Membrane Switch Sdn Bhd v Kerajaan Negeri Selangor [2016] 1 MLJ 464, at [119]-[121]. Consequently, whether the 1st Defendant’s Breach entitled the Plaintiff to terminate the Agreement depended on whether the effect of the 1st Defendant’s Breach had deprived the Plaintiff of “substantially the whole benefit which it was intended that [the Plaintiff] should obtain from the [Agreement]” - please refer to SPM Membrane Switch; (2) the effect of the 1st Defendant’s Breach had deprived the Plaintiff of substantially the whole benefit which it was intended for the Plaintiff to obtain from the Agreement. Hence, upon the 1st Defendant’s Breach, the Plaintiff had a right to elect to terminate or affirm the Agreement; (3) the Plaintiff did not elect to terminate the Agreement upon the 1st Defendant’s Breach. Instead, the Plaintiff had elected to affirm the Agreement through its conduct as follows - (a) the Plaintiff continued with the Works; and (b) the Plaintiff submitted the 4th PC and 2nd VO; (4) as an alternative to the Plaintiff’s affirmation of the Agreement (despite the 1st Defendant’s Breach) as stated in the above sub-paragraph (3) - 42 (a) the Plaintiff is estopped from terminating the Agreement by reason of the Plaintiff’s conduct as explained in the above sub-paragraph (3). It is decided in Lianmark Sdn Bhd v Al-Ambia Sdn [2020] AMEJ 279, at [26(2)(g)], as follows - “[26(2)(g)] Y may be estopped from relying on X’s Breach - please refer to the wide application of the equitable doctrine of estoppel in the Federal Court’s judgment delivered by Gopal Sri Ram JCA (as he then was) in Boustead Trading (1985) Sdn Bhd v Arab-Malaysian Merchant Bank Bhd [1995] 4 CLJ 283, at 294 and 295. In the Federal Court case of Usima Sdn Bhd v Lee Hor Fong (trading under the name and style of Pembinaan LH Fong) [2017] 5 MLJ 273, at [50], Balia Yusof FCJ has applied the equitable doctrine of estoppel in a dispute regarding a construction agreement. If Y is estopped from relying on X’s Breach, Y has no right to terminate the contract based on X’s Breach but can only claim damages for X’s Breach;” (emphasis added); and/or (b) the Plaintiff had failed to elect to terminate the Agreement within a reasonable time after the 1st Defendant’s Breach. I refer to Lianmark, at [26(2)(h)(i)], as follows - “[26(2)(h)(i) if Y is not estopped from acting upon X’s Breach and can proceed with Y’s Election - (i) Y’s Election should be exercised within a reasonable time - please see the judgment of Bell P in New South Wales’ Court of Appeal in Donau Pty Ltd v ASC AWD Shipbuilder Pty Ltd [2019] NSWCA 185, at [99]-[111];” (emphasis added). 43 M. Consequences of Plaintiff’s non-termination of Agreement 59. As the Agreement had not been terminated by the Plaintiff due to the 1st Defendant’s Breach (please refer to the above paragraph 58) - (1) the Plaintiff could only claim damages from the 1st Defendant for the 1st Defendant’s Breach regarding Works completed by the Plaintiff; and (2) as required by Clause 2, the Plaintiff was bound to complete the Works on the Completion Date. Upon the Plaintiff’s failure to do so, the Plaintiff was liable for LD to the 1st Defendant pursuant to Clause 5. N. Should adverse inference be drawn against Defendants for not calling Encik Husaini to testify? 60. Mr. Oswald has invited me to make an adverse inference under s 114(g) EA against the Defendants for not calling Encik Husaini to testify at the Trial regarding NCR (Painting Works). 61. The court has a discretion to draw an adverse inference under s 114(g) EA against a party for suppressing material evidence in a trial - please refer to the judgment of the Supreme Court delivered by Mohd. Azmi SCJ in Munusamy v Public Prosecutor [1987] 1 MLJ 492, at 494. 62. I decline to exercise my discretion to make an adverse inference pursuant to s 114(g) EA against the Defendants for not calling Encik Husaini to give evidence at the Trial regarding NCR (Painting Works). This is because SD5 had inspected the Painting Works and had been called by the 2nd Defendant to testify regarding NCR (Painting Works). There was therefore no suppression of material evidence at the Trial on the part of the Defendants to attract an adverse inference under s 114(g) EA. O. Did Plaintiff fail to complete Works on Completion Date? 63. In view of the valid CNC (please refer to the above paragraphs 53 to 55), the Plaintiff had failed to complete the Works on the Completion Date (Plaintiff’s Breach). 44 Accordingly, the learned SCJ had correctly decided that the Plaintiff was liable to pay LD to the 1st Defendant pursuant to Clauses 2 and 5. P. Consequences of Plaintiff’s Breach P(1). Whether 1st Defendant could terminate Agreement 64. In view of the Plaintiff’s Breach, the 1st Defendant’s Termination (Agreement) was valid. P(2). Plaintiff’s liability to 1st Defendant for LD under s 75 CA 65. Section 75 CA provides as follows: “Compensation for breach of contract where penalty stipulated for 75. When a contract has been broken, if a sum is named in the contract as the amount to be paid in case of such breach, or if the contract contains any other stipulation by way of penalty, the party complaining of the breach is entitled, whether or not actual damage or loss is proved to have been caused thereby, to receive from the party who has broken the contract reasonable compensation not exceeding the amount so named or, as the case may be, the penalty stipulated for.” (emphasis added). 66. The question that arises is whether the Plaintiff is liable to pay to the 1st Defendant for an amount of LD pursuant to Clause 5 and s 75 CA as decided in Cubic Electronics. 67. The Federal Court’s judgment in Cubic Electronics is binding on me as a matter of stare decisis. Premised on Cubic Electronics - 45 (1) the 1st Defendant had discharged the initial onus by proving the Plaintiff’s Breach and the existence of Clause 5. Hence, the burden now shifts to the Plaintiff to prove the “unreasonableness” of Clause 5; and (2) the Plaintiff had not adduced any evidence at the Trial to prove that Clause 5 had imposed an “extravagant and unconscionable” amount of LD due to the Plaintiff’s Breach. In the circumstances, the Plaintiff was liable to the 1st Defendant for LD pursuant to Clause 5 for the LD Sum (RM469,125.00). P(3). Whether 1st Defendant could recover general damages for Plaintiff’s Breach 68. Encik Rozlan has submitted that in addition to the LD Sum payable by the Plaintiff to the 1st Defendant under Clause 5 and s 75 CA, the Plaintiff was also liable to pay for general damages [including the 1st Defendant’s Loss (Work Defects) and 1st Defendant’s Loss (Completion of Works)] pursuant to s 74(1) CA. I reproduce below s 74(1) CA - “Compensation for loss or damage caused by breach of contract 74(1) When a contract has been broken, the party who suffers by the breach is entitled to receive, from the party who has broken the contract, compensation for any loss or damage caused to him thereby, which naturally arose in the usual course of things from the breach, or which the parties knew, when they made the contract, to be likely to result from the breach of it.” (emphasis added). 69. I am not able to accede to the above contention by Encik Rozlan. My reasons are as follows: (1) the 1st Defendant had successfully claimed for the LD Sum from the Plaintiff - please refer to the above paragraph 67. The 1st Defendant had not adduced any evidence at the Trial to prove that the 1st Defendant had suffered or would have suffered loss or damage [including the 1st Defendant’s Loss (Work Defects) 46 and 1st Defendant’s Loss (Completion of Works)] under s 74(1) CA (due to the Plaintiff’s Breach) which had exceeded or would have exceeded LD Sum. I accept Mr. Oswald’s reliance on the following judgment of the Court of Appeal delivered by Mah Weng Kwai JCA in Terang Tanah Sdn Bhd & Anor v Chong Choy Lin [2014] 5 MLJ 594, at [29], [31] and [33] - “[29] Secondly and in any event, to allow the award of LAD as well as an award for general damages to be assessed would be tantamount to granting the respondent double relief for the same claim. We are of the view that it would be erroneous for the court to order an award of general damages over and above that of the LAD. … [31] For the respondent to be successful in the assessment of damages, the respondent would have to prove her loss and damage as a result of the wrongful termination of the SPA caused by the appellants. The quantum of the LAD may perhaps be indicative of the total loss and damage suffered by the respondent. … [33] Finally, we hold the view that the respondent is not entitled to the claim for LAD whether calculated up to 13 October 2005, the date of termination of the SPA or to 24 February 2007, the date of expiry of twenty four months from the date of the SPA in addition to general damages as it would, as stated earlier, be tantamount to an order of double payment by the appellants to the respondent.” (emphasis added). As explained above, the learned 2nd SCJ had committed an error of law when she ordered the Assessment (SC) without considering whether the 1st Defendant had suffered or would have suffered loss or damage under s 74(1) 47 CA arising from the Plaintiff’s Breach which had exceeded or would have exceeded LD Sum (1st Legal Error); and (2) the 1st Defendant could not prove any loss or damage [including the 1st Defendant’s Loss (Work Defects) and 1st Defendant’s Loss (Completion of Works)] due to the Plaintiff’s Breach in the Assessment (SC). Nor did the 1st Defendant appeal to the High Court against SC’s Decision (Assessment). It is thus clear that the 1st Defendant had not suffered any loss or damage caused by the Plaintiff’s Breach in excess of the LD Sum. P(4). Could Plaintiff claim for Works which had been performed? 70. Despite the Plaintiff’s Breach, the 1st Defendant was nonetheless entitled to claim for Works which had been done by the Plaintiff. If otherwise, the 1st Defendant would be unjustly enriched by not paying for the Works which had already been performed by the Plaintiff. I cite the following judgment of Lee Swee Seng J (as he then was) in the High Court case of Lexobumi Sdn Bhd v SK M&E Bersekutu Sdn Bhd [2017] 11 MLJ 570, at [49] - “[49] Assuming for a moment that the plaintiff has wrongly terminated the subcontract, it does not mean that they would not be paid for the works already carried out for which the defendant had invoiced its employer. The SCJ would still have to determine the value of the works completed by the plaintiff.” (emphasis added). As explained above, the learned 2nd SCJ had committed an error of law when she failed to order the 1st Defendant to pay to the Plaintiff for Works which had been performed by the Plaintiff (2nd Legal Error). 71. Regarding the sum due from the 1st Defendant to the Plaintiff for Works done by the Plaintiff - 48 (1) I rely on the 3rd Defendant’s Valuation (4th PC) which had been accepted by the 2nd Defendant in the 4th ICP. According to the Valuation (4th PC), the total value of Works performed by the Plaintiff was RM686,412.29. This sum included the “retention sum” of RM46,900.00 (Retention Sum); (2) the 1st Defendant had previously paid a total amount of RM241,077.04 to the Plaintiff for a portion of the Works completed by the Plaintiff (1st Defendant’s Payments); and (3) after deducting the LD Sum and 1st Defendant’s Payments, the learned 2nd SCJ should have ordered the Plaintiff to pay a net sum of RM23,789.75 to the 1st Defendant (Net Sum). P(5). Was Plaintiff entitled to Retention Sum? 72. Upon the 1st Defendant’s Termination (Agreement) and the 1st Defendant’s failure to prove any loss or damage caused by the Plaintiff’s Breach in excess of the LD Sum, the Plaintiff was entitled to a return of the Retention Sum by the 1st Defendant. It is decided by the Court of Appeal in a judgment delivered by Zainun Ali JCA (as she then was) in Qimonda Malaysia Sdn Bhd (in liquidation) v Sediabena Sdn Bhd & Anor [2012] 3 MLJ 422, at [17], as follows: “[17] The retention monies are monies already earned by the respondents (as contractor) for the works already done under the contract. These monies are part of the progress payments claimed and certified for payment to the respondents (as contractor) under cl 22 of the contract concerned. …” (emphasis added). In this case, the Retention Sum had been already been taken into account by the 3rd Defendant in the valuation of the Works done by the Plaintiff. Hence, in This Appeal I do not have to order the 1st Defendant to return the Retention Sum to the Plaintiff. Q. Whether there should be appellate intervention in This Appeal 49 73. In view of the 1st Plain Omission, 1st and 2nd Legal Errors which have caused an injustice to the Plaintiff, I am compelled to allow partially This Appeal against the 1st Defendant only with regard to the following parts of SC’s Judgment: (1) SC’s Judgment which dismissed the Original Action against the 1st Defendant with costs of RM30,000.00 (to be paid by the Plaintiff to the 1st Defendant) is set aside; (2) the Original Action against the 1st Defendant is allowed wherein the 1st Defendant shall pay a sum of RM686,412.29 to the Plaintiff for the Works. However, SC’s Judgment which allowed the Counterclaim (1st Defendant) for the LD Sum, is affirmed; (3) taking into consideration the above sub-paragraph (2) and 1st Defendant’s Payments, the Plaintiff shall pay the Net Sum to the 1st Defendant; and (4) SC’s Judgment which ordered the Assessment (SC) is set aside. R. Interest 74. Regarding interest on the Net Sum, the Plaintiff should pay interest at the rate of 5% per annum on the Net Sum from the date of my oral decision of This Appeal on 12.7.2021 (Oral Decision) until the Plaintiff’s full settlement of the Net Sum. S. Costs (between Plaintiff and 1st Defendant) 75. I delivered orally (through Zoom) my broad grounds of This Appeal on 11.5.2021. After such a delivery, I invited Mr. Oswald and Encik Rozlan to submit on, among others, the following three questions regarding costs [3 Issues (Costs)]: (1) as the Assessment (SC) should not have been ordered in the first place by the learned 2nd SCJ, should this court order costs of the Assessment (SC) [Costs (Assessment By SC)] to be borne by the 1st Defendant and if so, what would be the appropriate quantum of Costs (Assessment By SC)?; 50 (2) should costs of the Trial as between the Plaintiff and 1st Defendant [for both the Original Action and Counterclaim (1st Defendant)] [Trial Costs (Plaintiff-1st Defendant)] be paid by the 1st Defendant to the Plaintiff? If the answer to this question is in the affirmative, how much Trial Costs (Plaintiff-1st Defendant) should be paid?; and (3) as between the Plaintiff and 1st Defendant, who should bear the costs of This Appeal [Appeal Costs (Plaintiff-1st Defendant)] and how much Appeal Costs (Plaintiff-1st Defendant) should be awarded? 76. I have invited written submission from Mr. Oswald and Encik Rozlan regarding the 3 Issues (Costs) as their clients have a right to be heard before the court decides on the 3 Issues (Costs). 77. Mr. Oswald and Encik Rozlan have tendered their written submission regarding the 3 Issues (Costs). S(1). Costs (Assessment By SC) 78. I reproduce below ss 29, 69(1), (4) and (5) CJA - “Civil appeals to be by way of re-hearing 29. All civil appeals from a subordinate court shall be by way of re-hearing, and the High Court shall have the like powers and jurisdiction on the hearing of appeals as the Court of Appeal has on the hearing of appeals from the High Court. 69(1) Appeals to the Court of Appeal shall be by way of re-hearing, and in relation to such appeals the Court of Appeal shall have all the powers and duties, as to amendment or otherwise, of the High Court, together with full discretionary power to receive further evidence by oral examination in court, by affidavit, or by deposition taken before an examiner or commissioner. … 51 (4) The Court of Appeal may draw inferences of fact, and give any judgment, and make any order which ought to have been given or made, and make such further or other orders as the case requires. (5) The powers aforesaid may be exercised notwithstanding that the notice of appeal relates only to part of the decision, and the powers may also be exercised in favour of all or any of the respondents or parties although the respondents or parties have not appealed from or complained of the decision.” (emphasis added). 79. I am of the view that the High Court exercising appellate jurisdiction over a decision of a subordinate court (as in This Appeal) has a discretionary power to order Costs (Assessment By SC) pursuant to s 29 read with s 69(1), (4) and (5) CJA. 80. In the interest of justice, I exercise my discretionary power under s 29 read with s 69(1), (4) and (5) CJA to order the 1st Defendant to pay Costs (Assessment By SC) to the Plaintiff. This decision is premised on the following reasons: (1) as explained in the above sub-paragraph 69(1), the learned 2nd SCJ should not have ordered the Assessment (SC) in the first place; (2) at the Assessment (SC), the 1st Defendant could not prove any loss or damage due to the Plaintiff’s Breach; (3) inexplicably, despite the fact that the 1st Defendant could not prove any loss or damage due to the Plaintiff’s Breach, the learned 2nd SCJ did not award Costs (Assessment By SC) to the Plaintiff. It is not disputed that the Plaintiff had to expend a lot of time, effort and costs to resist the Assessment (SC); and (4) the 1st Defendant did not appeal to the High Court against SC’s Decision (Assessment). 52 81. I award Costs (Assessment By SC) in an amount of RM50,000.00 [Costs Sum (Assessment By SC)] because - (1) the 1st Defendant had claimed a total sum of RM2,418,371.00 from the Plaintiff as general damages in the Assessment (SC); (2) for the Assessment (SC), the 1st Defendant had filed two affidavits while the Plaintiff had relied on one lengthy affidavit; and (3) both the Plaintiff and 1st Defendant had each filed one written submission in the Assessment (SC). 82. By virtue of O 59 r 24 RC, I order the 1st Defendant to pay to the Plaintiff interest at 5% per annum on Costs Sum (Assessment By SC) from the date of SC’s Decision (Assessment) until full settlement of Costs Sum (Assessment By SC) by the 1st Defendant. S(2). Trial Costs (Plaintiff-1st Defendant) 83. I exercise my discretion to award Trial Costs (Plaintiff-1st Defendant) in favour of the Plaintiff because - (1) the 1st Defendant’s Breach led to the institution of This Action. In other words, the 1st Defendant was more culpable than the Plaintiff in this case; and (2) the Plaintiff had completed about 75% of the Works. Yet, due to the LD Sum, the Plaintiff had to pay the Net Sum to the 1st Defendant. It is only just for the 1st Defendant to bear a small proportion of Trial Costs (Plaintiff-1st Defendant) in favour of the Plaintiff. 84. A sum of RM15,000.00, in my view, should constitute a small proportion of Trial Costs (Plaintiff-1st Defendant) to be paid by the 1st Defendant to the Plaintiff [Trial Costs Sum (Plaintiff-1st Defendant)]. I also order the 1st Defendant to pay to the Plaintiff interest at 5% per annum on the Trial Costs Sum (Plaintiff-1st Defendant) from the date of SC’s Judgment (21.7.2020) until full payment of the Trial Costs Sum (Plaintiff-1st Defendant). 53 S(3). Appeal Costs (Plaintiff-1st Defendant) 85. I am of the view that the 1st Defendant should pay Appeal Costs (Plaintiff-1st Defendant) to the Plaintiff because from the overall perspective, the Plaintiff was largely successful in This Appeal. The learned 2nd SCJ had dismissed the Original Action in toto and had ordered the Plaintiff to pay the LD Sum to the 1st Defendant. The SC had also ordered the Assessment (SC). In This Appeal, the Plaintiff had managed to reduce its liability to the Net Sum only. 86. I award a sum of RM30,000.00 as Appeal Costs (Plaintiff-1st Defendant) to be paid by the 1st Defendant to the Plaintiff [Appeal Costs Sum (Plaintiff-1st Defendant)] because as between the Plaintiff and 1st Defendant, This Appeal involved many issues as stated in the above sub-paragraphs 23(1) to (4) and (6) to (12). This court also orders the 1st Defendant to pay to the Plaintiff interest at 5% per annum on the Appeal Costs Sum (Plaintiff-1st Defendant) from the date of the Oral Decision until full payment of the Appeal Costs Sum (Plaintiff-1st Defendant). T. Summary and outcome of This Appeal 87. In brief - (1) by virtue of O 35 r 11(1) RC, the learned 2nd SCJ could continue a part heard Trial from the learned 1st SCJ; (2) the learned 2nd SCJ has not delivered a “speaking” GOJ. Hence, this appellate court has a judicial duty to peruse the entire record of appeal to decide whether there should be any appellate intervention regarding SC’s Judgment; (3) the 1st Defendant could not rely on the rebuttable presumption under s 114(e) EA to resist This Appeal because - (a) Malaysian case law has not decided that appeals against trial courts’ decisions should be dismissed solely on an application of s 114(e) EA; and 54 (b) even if this court has applied s 114(e) EA, the rebuttable presumption that the learned 2nd SCJ had “regularly” performed her judicial duty in delivering SC’s Judgment was rebutted by the fact that the GOJ was not a “speaking” one; (4) notwithstanding the fact that the learned 2nd SCJ did not hear the testimonies of 6 out of a total of 8 witnesses at the Trial, this appellate court can only intervene regarding SC’s Factual Findings if the learned 2nd SCJ had committed, among others, a plain factual error or plain factual omission; (5) the 2nd and 3rd Defendants were not liable for the tort of negligence to the Plaintiff in this case because - (a) policy considerations militate against the imposition of Duties (Plaintiff) on the 2nd and 3rd Defendants; and (b) even if the 2nd and 3rd Defendants owe Duties (Plaintiff), the 2nd and 3rd Defendants had not breached the Duties (Plaintiff); (6) Clause 3 had incorporated Document S810.ES into the Agreement even though the Plaintiff and 1st Defendant had not signed Document S810.ES; (7) the fact that Local Authority’s Permit was granted after the Plaintiff had commenced Works could not invalidate Agreement and CNC pursuant to - (a) By-Law 22(1) UBBL; (b) s 70 SDBA; (c) ss 19, 26, 27 and 31 TCPA; and (d) s 24(a) to (e) CA; (8) the 1st Defendant had breached Clause 6 by not paying to the Plaintiff - (a) the 2nd ICP in full; and 55 (b) the 3rd and 4th ICP’s within the time period stipulated in Clause 6; (9) notwithstanding the 1st Defendant’s Breach - (a) the Plaintiff had elected to affirm the Agreement by continuing the Works; (b) the Plaintiff was estopped by its conduct from terminating the Agreement; and/or (c) the Plaintiff had failed to elect to terminate the Agreement based on the 1st Defendant’s Breach within a reasonable time; (10) as the Agreement could not be terminated by the Plaintiff due to the 1st Defendant’s Breach - (a) the Plaintiff could only claim damages from the 1st Defendant for the 1st Defendant’s Breach; and (b) the Plaintiff was bound to complete the Works on the Completion Date according to Clause 2; (11) no adverse inference under s 114(g) EA could be drawn against the Defendants for not calling Encik Husaini because SD5 had been called to testify regarding the Painting Works and NCR (Painting Works); (12) the Plaintiff had failed to complete the Works on the Completion Date and consequently - (a) the 1st Defendant’s Termination (Agreement) was valid; (b) the Plaintiff was liable to the 1st Defendant for LD Sum pursuant to Clause 5 and s 75 CA because the Plaintiff could not prove that Clause 56 5 had imposed an unreasonable amount of LD due to the Plaintiff’s Breach; and (c) the 1st Defendant could not recover general damages from the Plaintiff under s 74(1) CA because there was no proof that the 1st Defendant had suffered or would have suffered loss or damage due to the Plaintiff’s Breach which had exceeded or would have exceeded the LD Sum; (13) the 1st Defendant was liable to pay to the Plaintiff for the Works completed by the Plaintiff; and (14) the court exercises its discretionary power under s 29 read with s 69(1), (4) and (5) CJA to order the 1st Defendant to pay Costs (Assessment By SC) to the Plaintiff. 88. Premised on the above evidence and reasons, I make the following orders in This Appeal: (1) This Appeal regarding the 2nd and 3rd Defendants is dismissed and - (a) SC’s Judgment with respect to the 2nd and 3rd Defendants is affirmed; and (b) the Plaintiff shall pay costs of RM20,000.00 to each of the 2nd and 3rd Defendants with interest at 5% per annum on these sums of costs from the date of the Oral Decision until full payment of these sums of costs; and (2) This Appeal with regard to the 1st Defendant is partially allowed with the following orders - (a) SC’s Judgment which dismissed the Original Action against the 1st Defendant with costs of RM30,000.00 (to be paid by the Plaintiff to the 1st Defendant) is set aside; (b) the Original Action against the 1st Defendant is allowed wherein the 1st Defendant shall pay a sum of RM686,412.29 to the Plaintiff for the Works; 57 (c) SC’s Judgment which allowed the Counterclaim (1st Defendant) for the LD Sum (RM469,125.00), is affirmed; (d) SC’s Judgment which allowed costs of the Counterclaim (1st Defendant) in an amount of RM30,000.00 (to be paid by the Plaintiff to the 1st Defendant) is set aside; (e) SC’s Judgment which ordered the Assessment (SC) is set aside; (f) taking into consideration the above orders of this court in the above sub- paragraphs (2)(b) and (c) as well as a sum of RM241,077.04 which had been received by the Plaintiff from the 1st Defendant, the Plaintiff shall pay the Net Sum (RM23,784.75) to the 1st Defendant with interest at 5% per annum on the Net Sum from the date of the Oral Decision until full settlement of the Net Sum; and (g) the 1st Defendant shall pay to the Plaintiff - (i) a sum of RM50,000.00 as Costs Sum (Assessment By SC) with interest at 5% per annum on the Costs Sum (Assessment By SC) from the date of SC’s Decision (Assessment) until full settlement of the Costs Sum (Assessment By SC); (ii) Trial Costs Sum (Plaintiff-1st Defendant) in an amount of RM15,000.00 with interest at 5% per annum on the Trial Costs Sum (Plaintiff-1st Defendant) from the date of SC’s Judgment until full payment of the Trial Costs Sum (Plaintiff-1st Defendant); and (iii) an amount of RM30,000.00 as Appeal Costs (Plaintiff-1st Defendant) with interest at 5% per annum on the Appeal Costs Sum (Plaintiff-1st Defendant) from the date of the Oral Decision until full settlement of the Appeal Costs Sum (Plaintiff-1st Defendant). 89. I must end this judgment with my gratitude to all learned counsel for their able assistance rendered to me in This Appeal. 58 WONG KIAN KHEONG Judge High Court of Malaya Shah Alam, Selangor Darul Ehsan DATE: 13 OCTOBER 2021 Counsel for Appellant: Mr. Adrian Oswald A/L Rajendran & Puan Noor Syuhada Bt. Hassim (Messrs Adrian, Syuhada, Sia & Associates) Counsel for 1st Respondent: Encik Rozlan @ Malcolm Murphy & Mr. Lok Hon Jet (Messrs Rozlan Khuen) Counsel for 2nd Respondent: Puan Hilwa Nafiza Bt. Bustam & Ms. Toh Xin Yi (Messrs Shahrizat Rashid & Lee) Counsel for 3rd Respondent: Ms. Victoria Loi Tien Fen & Ms. Basilleia Kathleen Chen Min Hwan (Messrs Shook Lin & Bok) 59