TEWARA SDN BHD LEE CHOON SENG & SONS SDN BHD

TEWARA SDN BHD LEE CHOON SENG & SONS SDN BHD

On the evidence the Plaintiff failed to prove entitlement to claimed progress payments and most of the retention sums because claims were provisional and required final remeasurement/certification and Plaintiff failed to call the project managers; Defendant proved defects, failure to hand over and incurred...

Source-derived case information.

Citation
JA-12BNCvC-7-04/2022 (Mahkamah Tinggi)
Parties
Appellant / Plaintiff: Tewara Sdn Bhd; Respondent / Defendant: Lee Choon Seng & Sons Sdn Bhd
Court
High Court
Jurisdiction
Malaysia
Judgment Date
13 April 2023
Case Number
JA-12BNCvC-7-04/2022 (Mahkamah Tinggi)
Procedural Posture
Civil Appeal From Session Court (contract/construction Dispute) / High Court Re Hearing of Appeal
Outcome
Partly allowed: Plaintiff's appeal allowed only to the extent of ordering return of a reduced retention sum; otherwise appeal dismissed and Defendant's counterclaim upheld.
Legal Topics
Retention Sum, Defective Works and Rectification, Liquidated and Ascertained Damages, Counterclaim, Adverse Inference Under S114 Evidence Act, Certificate of Practical Completion (cpc)
Contract Law Construction Law Civil Procedure Evidence Law Retention Sum Defective Works and Rectification Liquidated and Ascertained Damages Counterclaim +2 more

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Summary, issues, holding and outcome

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Parties

Tewara Sdn Bhd

Appellant / Plaintiff

Lee Choon Seng & Sons Sdn Bhd

Respondent / Defendant

Procedural Posture

Civil Appeal From Session Court (contract/construction Dispute) / High Court Re Hearing of Appeal

Legal Issues

  1. 1 Whether trial judge erred in drawing adverse inference under s114(g) for failure to call material witnesses
  2. 2 Whether the Plaintiff proved on balance of probabilities entitlement to progress payments and release of retention sums
  3. 3 Whether the Defendant proved counterclaims for rectification costs, additional operating costs and liquidated damages

Ratio Decidendi

On the evidence the Plaintiff failed to prove entitlement to claimed progress payments and most of the retention sums because claims were provisional and required final remeasurement/certification and Plaintiff failed to call the project managers; Defendant proved defects, failure to hand over and incurred rectification and delay costs; however documents established a reduced computable retention sum of RM136,926.15 which must be returned to Plaintiff; SCJ's invocation of s114(g) against Plaintiff was erroneous but that error did not alter outcome on the counterclaim.

Court Disposition

Partly allowed: Plaintiff's appeal allowed only to the extent of ordering return of a reduced retention sum; otherwise appeal dismissed and Defendant's counterclaim upheld.

Orders

  • Defendant to return retention sum of RM136,926.15 to Plaintiff with costs of RM5,000.00, subject to cost of allocator, to be paid by Defendant to Plaintiff
  • Plaintiff's appeal against the Defendant's counterclaim dismissed; Plaintiff to pay costs of RM5,000.00, subject to cost of allocator, to be paid by Plaintiff to Defendant