SYAIPUL HAPIZAN BIN DARUDIN @DAR 1. ) Kerajaan Negeri Selangor 2. ) Tuan Pengarah Jabatan Pengairan Dan Saliran Malaysia

BA-21NCvC-52-07/2018 Kand. 95 1 DALAM MAHKAMAH TINGGI MALAYA DI SHAH 28/09/2022 ALAM 14:03:40 2 DALAM NEGERI SELANGOR DARUL EHSAN 3 (WRIT SAMAN NO.: BA-21NCVC-52-07/2018) 4 5 ANTARA 6 7 SYAIPUL HAPIZAN BIN DARUDIN @ DAR 8 (NO. K/P.: 770323-04-5491) 9 [Berniaga sebagai pemilik tunggal di bawah 10 gaya dan nama Syaipul Hapizan Bina 11 (No. Pendaftaran Perniagaan : 001255931 – X)] ... PLAINTIF 12 13 DAN 14 15 1. KERAJAAN NEGERI SELANGOR 16 2. PENGARAH JABATAN PENGAIRAN DAN SALIRAN NEGERI 17 SELANGOR 18 3. IR ATIKAH BINTI SHAFIE ... DEFENDAN-DEFENDAN 19 20 21 GROUNDS OF JUDGMENT 22 23 24 (1) This is the judgement of the Court after a full trial. 25 26 (2) The Plaintiff’s claim against all the Defendants for loss of profits, 27 breach of contract and damages was dismissed by this Court on 2.6.2022. 28 29 (3) Aggrieved with the said decision, the Defendant has appealed 30 against the entirety of that decision. 1 S/N PyTJ2x0Fxk2Z3QI7nbVVvA **Note : Serial number will be used to verify the originality of this document via eFILING portal 1 The Parties 2 (4) The Plaintiff is a civil works contractor and is the sole proprietor of 3 Syaipul Hapizan Bina which has its registered office and address in 4 Taman Banting Baru Selangor. 5 6 (5) The 1st Defendant is the State of Selangor, under whose jurisdiction 7 the 2nd Defendant operates. 8 9 (6) The 2nd Defendant is the Irrigation and Drainage Department, a 10 government body charged with the responsibility over water resources 11 management which includes flood management in the state of Selangor. 12 13 (7) The 3rd Defendant was the district engineer in the 2nd Defendant’s 14 department at the material time. She was the person in charge and had 15 the overall conduct of the tender project which happens to be the subject 16 matter of the dispute in this instant case. 17 18 (8) In this judgement I shall refer to all the Defendants collectively and 19 interchangeably as “the Defendant/the Defendants” unless I wish to single 20 out any particular Defendant. 21 22 Background Facts 23 (9) The Plaintiff participated in a tender for a project issued by the 1st 24 and 2nd Defendants for “Kerja-kerja mencegah banjir Sungai Langat dan 25 kerja-kerja berkaitan kunci air Pekan Banting, Daerah Kuala Langat” . The 26 Plaintiff put in his tender bid on 20.8.2016 and was informed of his success 27 on 14.9.2016 via an official letter “Pemberitahu penerimaan sebutharga” 28 signed by the 3rd Defendant on behalf of the 2nd Defendant. For all intents 29 and purposes this letter pin points the date the contract took force. 30 2 S/N PyTJ2x0Fxk2Z3QI7nbVVvA **Note : Serial number will be used to verify the originality of this document via eFILING portal 1 (10) The total contract price agreed was RM163,134.00 inclusive of tax. 2 3 (11) The Plaintiff was given possession of the site the next day 4 15.9.2016. According to the contract the works to be carried out was 5 required to be completed within 8 weeks i.e. on 10.11.2016. 6 7 (12) The Plaintiff thereafter commenced works at the site but soon 8 realized that he could not proceed to completion based on the budget of 9 the contract price allocated to him. 10 11 (13) The Plaintiff wrote a number of letters to the defendant seeking 12 clarification about the technical aspects of the project so as to ensure that 13 the project could be completed properly and on time. The Plaintiff did not 14 receive a reply favourable to his letters and complained that he was not 15 given any assistance and cooperation by the Defendant in respect of his 16 situation. Due to the technical difficulties encountered the Plaintiff again 17 wrote to the defendant asking for extension of time to resolve the problem. 18 19 (14) The Plaintiff was thereafter issued with 2 warning letters for failing 20 to comply with the timeline and failure to complete the project on time. 21 When the Plaintiff failed to complete the Project on 10.11.2016 the 22 defendant terminated the contract. The Plaintiff was paid in accordance 23 with the works actually done at the site. 24 25 (15) Owing to the fact that the Plaintiff failed to complete the project the 26 defendant reported the matter to the CIDB and the Plaintiff was thereby 27 blacklisted from participating in any government tenders for contract for 28 one year. 29 30 3 S/N PyTJ2x0Fxk2Z3QI7nbVVvA **Note : Serial number will be used to verify the originality of this document via eFILING portal 1 (16) The Plaintiff was aggrieved with the acts of the defendant and filed 2 this suit on 11.7.2018 against all the defendants seeking for inter alia the 3 following reliefs : 4 (i) the contract sum of RM153,900 plus 5% per annum; 5 (ii) RM230,000 being damages for loss of opportunity in the sum 6 of RM230,000 to be selected as tenderer by reason of the 7 unlawful blacklisting by CIDB at the behest of the defendant; 8 (iii) General damages in the sum of RM1 million plus 5% per 9 annum from date of action to date of settlement; 10 (iv) Loss of profits of RM390,500 from the year 2017 until full 11 settlement; 12 (v) General damages for hardship suffered by the plaintiff to be 13 assessed by this Honorable Court; and 14 (vi) Costs of this suit. 15 16 Issues 17 (17) Parties have listed 13 issues to be tried as in Enclosure 26. I find 18 that those are overlapping and repetitive issues. As I see it the main issues 19 to be tried for the purposes of this trial would be the following : 20 (1) Whether the termination of the contract by the defendant was 21 valid; 22 (2) Whether the decision to refer the plaintiff to the Pusat Khidmat 23 Kontraktor for disciplinary action/blacklisting was validly 24 carried out; and 25 (3) Whether the plaintiff is entitled to damages, interest and costs. 26 27 The Plaintiff’s Case 28 (18) The detailed facts of the plaintiff’s case were adduced through the 29 Plaintiff himself and his wife, PW 2. 4 S/N PyTJ2x0Fxk2Z3QI7nbVVvA **Note : Serial number will be used to verify the originality of this document via eFILING portal 1 (19) According to the plaintiff, he was successful in procuring the said 2 tender project issued by the 2nd Defendant. The project was basically to 3 rectify and repair the river bed to prevent flooding onto nearby areas. The 4 3rd Defendant signed the department’s letter “Pemberitahu penerimaan 5 sebutharga” dated 14.9.2016 on behalf of the 2nd defendant to the plaintiff. 6 7 (20) The Plaintiff stated these were the important dates he had to adhere 8 to in accordance with the tender document and the Bill of Quantity (BQ) : 9 (a) Tarikh milik tapak : 15.9.2016 10 (b) Tempoh siap kerja : 8 minggu 11 (c) Tarikh siap kerja : 10.11.2016 12 13 (21) The plaintiff identified the 3rd Defendant as the district engineer 14 (Jurutera Daerah) who was in charge of the management of the tender 15 project on behalf of the department of the 2nd defendant. 16 17 (22) In his testimony the Plaintiff stated based on his past experience of 18 handling government contract jobs it would be the usual practice in small 19 tender projects such as this, for a technical staff under the supervision of 20 the district engineer to hold a briefing attended by all the prospective 21 contractors/bidders for a particular project. In this case while agreeing that 22 the defendant had held a briefing on the tender project the Plaintiff averred 23 that they had failed to conduct a visit to view the project site. According to 24 the plaintiff the delay by the Defendants in taking him to view the site had 25 contributed to eating into the period for which the plaintiff had to complete 26 the project. 27 28 (23) In essence the plaintiff was required to build a sheet pile and rubble 29 wall measuring 12 meters across the river. The sheet pile or rubble wall is 30 sometimes called a retaining wall due to its physical features which 5 S/N PyTJ2x0Fxk2Z3QI7nbVVvA **Note : Serial number will be used to verify the originality of this document via eFILING portal 1 resembled a retaining wall. The piling method was required to be used to 2 hammer the sheet pile/rubble wall in place. This is where the problem 3 arose. The Plaintiff was under the assumption that the sheet pile was to 4 be hammered into place at the river bank. He stated that the BQ did not 5 make any mention of where the sheet pile was to be set up. When told 6 that it was to be put into place across the width of the river, it dawned upon 7 the Plaintiff that he could not possibly undertake and complete the job at 8 the cost that he had quoted. 9 10 (24) Seeing no way out the plaintiff wrote a letter to the defendant dated 11 11.10.2016 (B1 pg 36) seeking an urgent meeting and discussion of the 12 technical aspects of the project. In this letter the plaintiff listed out his 13 reasons for the urgent meeting. He stated that the soil at the river’s edge 14 was soft and unstable and thus posed a danger for heavy machinery to 15 be placed there. In the same letter the plaintiff offered a way out of the 16 problem. He suggested the use of a floating piling machine instead of the 17 conventional piling method. 18 19 (25) On 18.10.2016 the plaintiff followed up with a second letter to the 20 defendant. In this letter the plaintiff expressed regret that the defendant 21 did not accede to his request for a meeting in order to solve his problem. 22 The plaintiff pointed out that the project could not be carried out based on 23 the existing tender documents. He also complained that the work to be 24 carried out ‘adalah tidak jelas, tiada plan teknikal dan arahan kerja yang 25 tidak sepadan’. He further suggested that the defendant must do soil 26 investigation to determine the exact location for the sheet piling to be 27 hammered in and on that score he was of the opinion that the contract 28 period had to be revised to a longer period in order to complete the project 29 satisfactorily. 6 S/N PyTJ2x0Fxk2Z3QI7nbVVvA **Note : Serial number will be used to verify the originality of this document via eFILING portal 1 (26) The Defendant replied on 21.10.2016 rejecting his requests and 2 reminded the plaintiff of the requirement to complete the project by the 3 due date as agreed under the contract signed by both parties. 4 5 (27) In his testimony the plaintiff stated that 3rd defendant had orally 6 directed him to hammer into place the sheet pile in the middle of the river. 7 The plaintiff stated that this was not specifically stated in the BQ nor was 8 it even brought up in the briefing (taklimat). The plaintiff accused the 3rd 9 defendant of refusing to furnish him with the technical plans in order for 10 him to proceed with the works. The plaintiff was particularly bitter towards 11 the 3rd defendant because - 12 13 “ Atikah bt Shafie juga enggan melakukan pengendosan terhadap 14 mana-mana dokumen yang saya kemukakan dalam kerja-kerja 15 melantak Sheet Pile termasuk gambar ini. Cara jajaran inilah yang 16 hendak digunakan oleh Defendan Ketiga untuk menutup kebocoran 17 lantai Konkrit Kunci Air Pekan Banting. Sheet Pile perlulah dilantak 18 sehingga ke dasar sungai walaupun Defendan Ketiga tidak tahu di mana 19 letaknya lokasi tepat kebocoran dan tidak tahu di manakah sepatutnya 20 sheet pile ini perlu dimasukkan. Atikah bt Shafie berlepas tangan setelah 21 tender diawadkan kepada saya.” 22 23 (28) The plaintiff stated that the 3rd defendant and her team only visited 24 the site with the plaintiff on 4.10.2016. This delay on the part of the 25 defendants according to the Plaintiff resulted in eating into the contract 26 period for which he had to complete the project. 27 28 (29) The Plaintiff also alleged that the 3rd Defendant’s decision to copy 29 her letter dated 21.10.2016 to CIDB, the Member of Parliament for Kuala 30 Langat, EPU and the Pengarah Pengairan Negeri Selangor was moved 31 by a maleficent motive which he surmised to be an attempt to “finish off” 7 S/N PyTJ2x0Fxk2Z3QI7nbVVvA **Note : Serial number will be used to verify the originality of this document via eFILING portal 1 the Plaintiff once and for all. The Plaintiff lamented that instead of assisting 2 and offering a solution to the problem he was facing, the 3rd Defendant 3 instead wanted all those people she copied the letter to know that he had 4 not been able to comply within the time frame given to complete the 5 project. 6 7 (30) The Plaintiff contented that it was the duty of the Defendant to 8 provide “pelan spesifikasi dan hal-hal teknikal” to him as the contractor of 9 the project. Without these technical specifications and information, the 10 project could not be carried out properly and on time. What is more 11 important is that the technical plans and specification he sought was 12 necessary in order to carry out the best engineering practice for the job 13 entrusted to him. It was contended that no civil engineering project could 14 be completed without the relevant technical specifications. 15 16 (31) It was contended that the Defendants had themselves directed the 17 Plaintiff to abide by the express provisions of the tender documents yet 18 had failed to provide these technical and specification plans. It was 19 pointed out that in their letter dated 14.9.2016 the Defendant had stated 20 “sila hubungi pejabat ….untuk mendapatkan maklumat lanjut mengenai 21 8(b) pelan pelan spesifikasi dan hal hal teknikal”. The Defendants had 22 given directions in their letter that “kerja-kerja hendaklah mematuhi 23 spesifikasi, pelan pelan butir butir kerja” yet ironically enough there was 24 none provided to the Plaintiff. The tender document itself had referred to 25 requirement for some form of “senarai pelan” on its front page. 26 27 (32) It was further contended that the Defendants had failed to keep a 28 site diary of the project. It was explained that the site diary is a necessity 29 especially because it is a contemporaneous document which contains and 30 records the progress of work that has been carried out at the site at all 8 S/N PyTJ2x0Fxk2Z3QI7nbVVvA **Note : Serial number will be used to verify the originality of this document via eFILING portal 1 material times. It was contended that the Defendants must produce 2 contemporaneous documents to prove their allegations and rebuttals of 3 the Plaintiff’s case against them. The Plaintiff argued that the site diary 4 will contain entries of site meetings and work done in accordance with the 5 scope of work given to the Plaintiff. Here in this project the Defendants did 6 not produce the site diary to the court. It was thus contended that the 7 Defendants failed to show any documentary evidence to support what 8 transpired throughout the duration of the tender project and thus the court 9 ought to reject their evidence as being nothing but a bare allegation and 10 an afterthought. It was further contended that the Defendants had failed 11 to rebut the Plaintiff’s version because there was nothing shown to the 12 Court that they had provided the Plaintiff with the contractual/technical 13 specifications in order for the Plaintiff to complete his part of the terms of 14 the contract between the parties. 15 16 (33) On a similar aspect the Plaintiff attacked the Defendants failure to 17 lay out and provide the technical specifications to carry out the 18 engineering work in the Bill of Quantities (BQ). The Plaintiff referred to 19 page 17 of the BQ at bil. 6, 7, 8, 9 and 10 which all referred to technical 20 specifications to carry out the work but these were never provided for by 21 the Plaintiff. 22 23 (34) In conclusion the Plaintiff stated that he would have been able to 24 successfully complete the project if he had only been given the technical 25 details and specifications which he asked for. 26 27 The Defendants’ Defence 28 (35) The Defendants’ through their witnesses contended that the Plaintiff 29 had been provided with all the “pelan-pelan spesifikasi dan hal-hal 30 technical” that was needed inside the BQ as well as from oral 9 S/N PyTJ2x0Fxk2Z3QI7nbVVvA **Note : Serial number will be used to verify the originality of this document via eFILING portal 1 communication between the Plaintiff, the 3rd Defendant and her team 2 comprising of DW 2 and DW 3. They had gone to the site location with the 3 plaintiff enough times for the Plaintiff to be left in no doubt the work that 4 was required to be carried out. With that the Defendants claim that they 5 had fulfilled the requirement of the terms of the contract in order for the 6 project to be carried out. 7 8 (36) Furthermore, it was contended that it was a term of the contract that 9 the Plaintiff was expected to have inspected the site in order to satisfy 10 himself as to the scope of work required to be undertaken. The 11 Defendants relied on Clause 1.0 of the Contract which imposed upon the 12 plaintiff the duty to view the site before offering his bid for the tender 13 quotation. It was argued that had the Plaintiff abided by this Clause the 14 Plaintiff would not have been in this predicament but instead would have 15 known what was expected of him in order to properly fill up the tender 16 form. 17 18 Analysis and Findings of the Court 19 (37) In coming to a decision in this case, the Court has carefully weighed 20 the evidence adduced through all the witnesses for both parties, having 21 regard to the documentary evidence tendered therewith. 22 23 (38) It is trite that the party that desires the court to give judgment as to 24 its right is the one who bears the burden of proof (s.102, 103 Evidence 25 Act 1950). The rule is that the onus of proof of any particular fact lies on 26 the party who alleges it not on the party which denies it. Ipso facto the 27 Plaintiff here bears the burden of proving his claim against the 28 Defendants. A Plaintiff cannot possibly take advantage of the weaknesses 29 of the defence and must stand or fall upon the evidence adduced by him. 10 S/N PyTJ2x0Fxk2Z3QI7nbVVvA **Note : Serial number will be used to verify the originality of this document via eFILING portal 1 (39) Having considered the evidence, read the pleadings, documents 2 and submissions of the parties dealing with the relevant issues and 3 evidence tendered, I am of the opinion that the Plaintiff has failed to prove 4 his case on a balance of probabilities. I was not satisfied that the 5 Defendants or in particular that the 3rd Defendant were responsible for 6 the Plaintiff’s inability to proceed with and complete the project that he had 7 bidded for. After considering the evidence gathered through the 8 testimonies of the Plaintiff himself as well as the witnesses called by the 9 Defendants, I came to the conclusion that the Plaintiff was the author of 10 his own misfortune. Despite claiming to have considerable experience in 11 securing government contracts, the Plaintiff seemed to have been all too 12 casual and taken things for granted when he put in his bid to tender for 13 this particular contract in the instant case. 14 15 (40) In order to fully appreciate the decision arrived at in the present 16 proceedings, it is my considered view that the chronological background 17 events be appraised in full and put in perspective in order to understand 18 the events that unfolded between the parties. On this score the letters 19 written by the Plaintiff as well as the replies by the Defendant will give a 20 clear and unmistakeable picture of what transpired between the parties. 21 22 (41) It is not in dispute that the Defendant advertised in their official 23 website offering a tender for the project on 4.8.2016. It was also informed 24 through the website that a briefing session would be carried out to all 25 interested bidders before the offer was officially opened to apply. The 26 briefing was held on 11.8.2016 whereby the details of the project was 27 informed to all the interest bidders. The Defendant offered to bring all the 28 interested bidders to the site for the proposed project but none of the those 29 who attended took up the offer. 30 11 S/N PyTJ2x0Fxk2Z3QI7nbVVvA **Note : Serial number will be used to verify the originality of this document via eFILING portal 1 (42) Thereafter the Defendant opened the bidding for a period of 10 days 2 from 12th to 22th August 2016. All interest bidders were encouraged to 3 download the forms from the website, fill up the details at the required 4 columns and hand over the completed forms to the Defendant’s office. 5 The Plaintiff put in his bid on 20.8.2016. On 14.9.2016 the Plaintiff was 6 informed that he was the successful bidder for the project in the sum of 7 RM153,900. 8 9 (43) It is important to emphasize the fact that the Plaintiff made the 10 successful bid for the sum of RM153,900 without first visiting the site. That 11 was, in the view of this court a very fundamental and serious error 12 committed by the Plaintiff because had he done so he would have been 13 able to assess the work to be carried out and the correct amount to put in 14 for his bid. The Plaintiff agreed under cross-examination that the 15 Defendant’s representatives i.e. SD 2 and SD 4 had offered to take him 16 to view the project site but he did not take up the invitation. Therefore, it 17 is my view that the Plaintiff could not complain that he was unaware of the 18 scope of the work to be carried out as he had attended a briefing session 19 on 11.8.2016 and the Defendants were ready to take him to inspect the 20 site before putting in his official bid. 21 22 (44) The relevant paragraphs taken from the Notes of Proceedings 23 showed that the question was put to the Plaintiff as follows : 24 25 “HZQ : Benar Yang Arif, soalan saya adalah begitu sama ada 26 pada waktu ketika taklimat diberi kemudian pelawaan 27 dibuat, sama ada, ada tak kontraktor lain setuju pada 28 masa tersebut untuk pergi melawat tapak? En. Syaipul 29 boleh kata setuju atau pun tidak? 30 SP1 : Saya tidak ingat. 31 12 S/N PyTJ2x0Fxk2Z3QI7nbVVvA **Note : Serial number will be used to verify the originality of this document via eFILING portal 1 YA : Tidak ingat ye. Ok. Boleh. Saya terima jawapan itu. Tidak 2 ingat. 3 4 HZQ : Tapi untuk En. Syaipul sendiri, En. Syaipul memang tak 5 pergi ke ketujuh-tujuh tu la. 6 SP1 : Tak ikut la, tak de la.” 7 8 (45) It is the view of the court that the Plaintiff had more than ample 9 opportunity and time commencing from 4.8.2016 to 22.8.2016 to view the 10 proposed project site. The Plaintiff would have been able to estimate what 11 were the material he would require in order to carry out the work and would 12 be able to source the suppliers of those material. The Plaintiff would have 13 been able to make an informed decision as to whether he needed to use 14 heavy machinery for the project or not. 15 16 (46) A perusal of the STONS website showed that the template for the 17 tender forms and documents consisted of the following 5 documents :- 18 19 (i) Kenyataan Sebutharga 20 (ii) Dokumen A – Arahan kepada Penyebutharga 21 (iii) Dokumen B – Syarat-syarat Sebutharga 22 (iv) Dokumen C – Borang Sebutharga (Bill of Quantities), Surat 23 Akuan pembida; 24 (v) Dokumen D – Dokumen-dokumen Sokongan Senarai Kerja 25 Yang Telah disiapkan, Senarai Kerja Dalam Tangan dan 26 Surat Akuan Pembida Berjaya. 27 28 These combined documents regulated the contractual relationship 29 between the parties. 30 13 S/N PyTJ2x0Fxk2Z3QI7nbVVvA **Note : Serial number will be used to verify the originality of this document via eFILING portal 1 (47) The Plaintiff had admitted that the documents provided by the 2 Defendant and coupled with the ample time of more than 2 weeks was 3 more than adequate for him to make the correct estimate for a quotation 4 of the work to be undertaken. In his evidence he agreed to the suggestion 5 put to him by counsel for the defendants as follows : 6 7 “NAD : Tidak setuju, tak pe. Saya letak je. Saya cadangkan di 8 antara tarikh 20hb 8, 2016 encik ada banyak masa untuk 9 menyemak dan meneliti sebut harga tersebut? 10 SP1 : Setuju. 11 12 NAD : Saya cadangkan di antara tarikh sehingga 20hb 8, 2016 13 encik ada banyak masa untuk menyemak, meneliti 14 dokumen sebut harga tersebut. Setuju? 15 SP1 : Setuju.” 16 17 (48) In spite of having the opportunity to do so the Plaintiff arbitrarily 18 quoted the sum of RM153,900 and this bid was accepted by the 19 Defendants as it appeared that it was the policy of the government at the 20 material time to accept the lowest (of the assigned sum) bid tendered for 21 any particular project that was undertaken. The Plaintiff’s offer was 22 accepted as it was the lowest bid within the range received by the 23 Defendant. 24 25 (49) Instead of accepting the invitation by the Defendant to visit the site, 26 the Plaintiff admitted that he only visited the site after signing the Letter of 27 Award (Surat Setuju Terima). The Letter of Award was executed by the 28 Plaintiff on 15.9.2016. Therefore the inference to be drawn from this chain 29 of events is that the Plaintiff only visited the site after he was accepted as 30 the successful bidder. He did not make any effort to visit the site before 31 placing his bid. It cannot now lie in the mouth of the Plaintiff to say that he 14 S/N PyTJ2x0Fxk2Z3QI7nbVVvA **Note : Serial number will be used to verify the originality of this document via eFILING portal 1 was not given the opportunity to visit the site and make an informed 2 quotation for the tender bid. 3 4 (50) Be that as it may the Plaintiff is deemed to have visited the site prior 5 to entering his bid for the contract. 6 7 (51) This has been provided for and laid down in Clause 1 of the 8 Conditions for the Bid (Syarat-syarat Sebut Harga in Document B of the 9 Bundle of Documents made available to all intending bidders). 10 11 Clause 1.0 states as follows : 12 13 “1.0 Pemeriksaan Tapakbina 14 Kontraktor disifatkan telah memeriksa dan meneliti tapakbina dan 15 sekitarnya, bentuk dan jenis tapakbina, takat dan jenis kerja, bahan dan 16 barang yang perlu bagi menyiapkan kerja, cara-cara perhubungan dan 17 laluan masuk ke tapak bina dan hendaklah mendapatkan sendiri segala 18 maklumat yang perlu tentang risiko, luar jangkaan dan segala hal- 19 keadaan yang mempengaruhi dan menjejas Sebutharganya. Sebarang 20 tuntutan yang timbul akibat daripada kegagalan Kontraktor mematuhi 21 kehendak ini tidak akan dipertimbangkan.” 22 23 (52) The Plaintiff had truthfully admitted in his witness statement that he 24 was aware of Clause 1.0 and its implication. He was questioned : 25 26 “HZQ : Setuju tak dengan saya pada terma 1.0 ini menyatakan 27 bahawa kontraktor disifatkan telah meneliti tapak bina dan 28 sekitar, bentuk dan jenis tapak bina, takal dan jenis kerja 29 dan bahan-bahan yang perlu bagi siapkan kerja. Cara 30 perhubungan dan En. Syaipul boleh lihat, boleh baca pada 31 baris pertama sehingga baris ke 7. 32 SP1 : Ya, maksudnya dia anggap kontraktor sudah sedia tahu 33 la. 15 S/N PyTJ2x0Fxk2Z3QI7nbVVvA **Note : Serial number will be used to verify the originality of this document via eFILING portal 1 …bersambung 2 3 HZQ : Ini En. Syaipul tandatangan di sini maksudnya En. Syaipul 4 tahu berkenaan dengan terma? 5 SP1 : Ya, terma. 6 7 HZQ : Setuju? 8 SP1 : Ya. 9 10 HZQ : Dan bila En. Syaipul tahu terma maksudnya En. Syaipul 11 bersetuju dengan terma-terma ini? 12 SP1 : Ah ah. 13 14 HZQ : Ok. Maksudnya En. Syaipul setuju dengan saya, En. 15 Syaipul setuju dengan terma dalam ini? 16 SP1 : Ya, saya setuju la terma-terma ini. 17 18 HZQ : Bila En. Syaipul setuju maksudnya En. Syaipul faham 19 kontraktor disifatkan telah memeriksa dan seterusnya 20 dalam ini. Setuju dengan saya? 21 SP1 : Ya la, setuju la. 22 23 HZQ : Sebab itulah En. Syaipul boleh letakkan harga pada muka 24 surat 16 hingga 18 bundle yang sama. Setuju dengan 25 saya? 26 SP1 : Maksudnya pemeriksaan tapak bina, saya dianggap 27 pergi? 28 29 HZQ : Ya, dianggap pergi. Sebab itu En. Syaipul boleh isi muka 30 surat 16 hingga 18, setuju dengan saya? 31 SP1 : Ok. Saya setuju. 32 33 (53) Even though the Plaintiff was aware of the importance of viewing 34 the project site first before making any bid he preferred not to do so. He 16 S/N PyTJ2x0Fxk2Z3QI7nbVVvA **Note : Serial number will be used to verify the originality of this document via eFILING portal 1 made a conscious decision not to do so. It is plainly clear that the Plaintiff 2 was reckless and careless when he made the decision to make the bid 3 without first ensuring what the project was all about and without first 4 viewing the site. 5 6 (54) The Plaintiff filled up the Bill of Quantities (Borang Sebut Harga) 7 without having full appraisal of the location and the materials to be used 8 to complete the project. The Plaintiff admitted all this when he was cross- 9 examined : 10 11 “HZQ : Saya cadangkan kepada En. Syaipul, En. Syaipul 12 lengkapkan dokumen ini tanpa buat lawatan ke tapak, En. 13 Syaipul setuju dengan saya? 14 SP1 : Setuju. 15 16 HZQ : Maksudnya daripada tarikh diiklankan hingga tarikh dibeli 17 En. Syaipul tak buat lawatan ke tapak, kemudian En. 18 Syaipul isi juga dokumen ini, En. Syaipul tak ada membuat 19 lawatan tapak? 20 SP1 : Ya. 21 22 HZQ : Baik. Jadi harga yang En. Syaipul nyatakan pada muka 23 surat 18 ni, 153,900 ini adalah harga yang En. Syaipul bida 24 tanpa pergi ke lawatan tapak? 25 SP1 : Ya.” 26 27 (55) It is noticeable that the Plaintiff made no effort to identify the site 28 where the work was to be carried out. Neither did the Plaintiff attempt to 29 contact the officers from the Defendant’s office to arrange for a viewing 30 on site before accepting the Letter of Award. He only realized that the 31 hammering of the pile sheets could not be done in the conventional way 32 but had to be carried out by using a floating steel platform only when he 17 S/N PyTJ2x0Fxk2Z3QI7nbVVvA **Note : Serial number will be used to verify the originality of this document via eFILING portal 1 commenced work. The Plaintiff only informed the Defendant of his 2 difficulty in his letter dated 11.10.2016, almost one month after the 3 acceptance of the tender. All this could have been avoided had he visited 4 the site after the offer to bid was advertised in the Defendant’s official 5 website. 6 7 (56) It is evidently clear that the Plaintiff was unaware of what the project 8 entailed because he had not made any attempts to find out about the 9 project before filling in the forms for the bidding. 10 11 (57) Moving forward now to the main crux of the Plaintiff’s complain. It 12 will be recalled that the Plaintiff alleged that he was never given any 13 clarification about the technical aspects of the project and not provided 14 with the pelan-pelan spesifikasi so as to ensure that the project could be 15 completed properly and on time. I now refer to the letters written by the 16 Plaintiff to the Defendant. It is my considered view that the contents of the 17 Plaintiff’s letters will reveal that the Plaintiff’s most serious problem if not 18 only problem was with regard to money or the lack of it. The first letter 19 written by the Plaintiff clearly shows that the Plaintiff was not prepared 20 with the necessity to use a floating metal platform in order to carry on with 21 the piling works. The need to use the floating metal platform meant that 22 the Plaintiff would have to incur extra costs. The Plaintiff realised that the 23 accepted contract price was not enough to cover the cost of paying for the 24 floating metal platform. It is thus my view that the problem faced by the 25 Plaintiff was not because he was not provided for pelan-pelan spesifikasi 26 but rather that he was unable to bear the costs of paying for the floating 27 metal platform. He had failed to factor that costs into his quotation. This 28 can be seen from the contents of the Plaintiff’s letter dated 11.10.2016 29 which states in Paragraph 2 as follows : 30 18 S/N PyTJ2x0Fxk2Z3QI7nbVVvA **Note : Serial number will be used to verify the originality of this document via eFILING portal 1 “2. Adalah saya Kontraktor yang di pertanggungjawabkan dalam 2 menguruskan projek tersebut ingin memaklumkan pada pihak tuan 3 bahawa dalam usaha pihak kontraktor melakukan kerja-kerja Handle 4 and Drive Sheet Pile berukuran 12 Meter Panjang, pihak kami 5 mengalami kesukaran disebabkan keadaan tebing sungai yang terlalu 6 jauh dan keadaan tanah yang tidak stabil serta merbahaya untuk 7 mengendalikan jentera berat. Saya telah mendapat nasihat dari pakar 8 pengendali jentera bahawa kerja-kerja tidak boleh dilakukan jika 9 bergantung dengan keadaan sedia ada. Dengan ini pihak Kontraktor 10 ingin memohon jasa baik pihak tuan untuk mengadakan perbincangan 11 bersama dengan pihak Kontraktor dalam menyelesaikan isu ini dengan 12 kaedah membina Pelantar Keluli sementara untuk menampung jentera 13 berat.” 14 15 (58) In this letter the Plaintiff did not raise any issues about not being 16 provided with the specification plans or the technical aspects of the 17 project. Instead the Plaintiff gave his assurance that he could overcome 18 the unstable and soft earth at the river edge with the construction of a 19 temporary steel platform but this would incur extra costs. Hence he 20 requested for an urgent meeting with the Defendant in order to discuss 21 the matter. 22 23 (59) This should not have been a surprise to the Plaintiff as the 24 Defendant had factored this issue into the BQ. In Item 4 of the BQ, the 25 Plaintiff was required to ready and prepare the work site in order for the 26 work to be carried out which included bringing in heavy machinery into the 27 area. On this matter at the risk of repetition, the Plaintiff would have known 28 of the need to use the metal platform had he gone for a visual inspection 29 of the site as provided for in Clause 1 of the Syarat-syarat Tawaran. 30 Without even viewing the site the Plaintiff had merely estimated the costs 31 to prepare the work site for Item 4 in the BQ in the sum of RM4000.00. 32 19 S/N PyTJ2x0Fxk2Z3QI7nbVVvA **Note : Serial number will be used to verify the originality of this document via eFILING portal 1 (60) I agree with the contention of counsel for the Defendants who 2 argued that it was the Plaintiff who was responsible for the predicament 3 he was in. Had he visited the site before putting in his bid, he would have 4 known that there would have been a need to build a steel platform in order 5 to proceed with the piling. The fact that the earth at the river’s edge was 6 soft and unstable and the likelihood of danger to heavy equipment would 7 not have been a surprise to him. He would have been able to assess those 8 factors accordingly and made the conclusion that there was a need to use 9 other forms of piling and this would have affected the total cost of the 10 project. Furthermore the Plaintiff had ample time to seek clarification in 11 regard to Item 4 of the BQ as this was clearly stated in the Arahan Kepada 12 Penyebut Harga in Clause 2.4 as follows : 13 14 “2.4 Penjelasan Lanjut 15 Sekiranya terdapat maklumat dalam Dokumen Sebutharga yang 16 tidak jelas atau bercanggah, Penyebutharga boleh menghubungi 17 pegawai kami di talian 03-31871594 Bahagian …………/Daerah 18 Kuala Langat untuk penjelasan lanjut.” 19 20 (61) Had the Plaintiff had surveyed and viewed the site and made a 21 proper assessment of the work scope he would have increased the 22 amount for Item 4 to a more appropriate figure that would have allowed 23 him to afford the costs of alternative piling system. Here, the Plaintiff 24 offered the price of RM153,900 and his offer was the lowest of all the 25 bidders who put in their bids. 26 27 (62) The Plaintiff filled in the estimated quotation in the BQ without 28 making any enquiries to the Defendants’ officers. He admitted as much in 29 his evidence that he would have been better able to assess how much the 30 actual cost of the project would have been had he gone to the site. He 20 S/N PyTJ2x0Fxk2Z3QI7nbVVvA **Note : Serial number will be used to verify the originality of this document via eFILING portal 1 also agreed that he would not have estimated the sum of RM4000 had he 2 known that he would have to use a steel platform to carry out the works. 3 4 (63) This is what he grudgingly conceded to when cross-examined by 5 counsel for the Defendants : 6 7 “HZQ : Baik, setuju dengan saya sekiranya Encik Syaipul terima 8 pelawaan semasa taklimat atau pada bila-bila masa 9 sebelum En. Syaipul melengkapkan sebut harga pada 10 20hb 8 ini, Encik Syaipul boleh sebenarnya 11 menghargakan 4 ribu ini dengan lebih baik, dengan lebih 12 sepadan, setuju dengan saya? 13 SP1 : Tak faham soalan. 14 15 HZQ : Soalan saya. Sekiranya Encik Syaipul menerima 16 pelawaan untuk melawat tapak yang pertama 17 SP1 : Ok, melawat tapak. 18 19 HZQ : Soalan saya sekiranya Encik Syaipul terima pelawaan 20 untuk pergi 21 SP1 : Ya, terima pelawaan ok 22 23 HZQ : Encik Syaipul jangan potong soalan saya, maaf. Encik 24 Syaipul dengar soalan saya sampai habis kemudian Encik 25 Syaipul jawab. Setuju dengan saya sekiranya Encik 26 Syaipul terima pelawaan untuk lawat tapak bina pada 27 tarikh taklimat diberi, Encik Syaipul akan mengetahui 28 berkenaan dengan keadaan tapak bina, setuju dengan 29 saya? 30 SP1 : Ya, yang tu setuju. 31 32 HZQ : Ok. Baik. Soalan kedua saya. Sekiranya Encik Syaipul 33 ada menghubungi mana-mana pegawai JPS atau 34 Defendan Ketiga sebelum Encik Syaipul lengkapkan 21 S/N PyTJ2x0Fxk2Z3QI7nbVVvA **Note : Serial number will be used to verify the originality of this document via eFILING portal 1 harga pada mukasurat 16 dan 17 ini, Encik Syaipul akan 2 tahu berapa untuk menghargakannya? 3 SP1 : Setuju, maksudnya? 4 5 HZQ : Sekiranya sebelum Encik submit pun pada 20hb 8, Encik 6 Syaipul ada pergi sendiri atau pergi dengan pegawai JPS 7 ke tapak, Encik Syaipul akan tahu bagaimana keadaan 8 tapak bina. Setuju dengan saya? 9 SP1 : Keadaan itu saya setuju la, keadaan itu ya. 10 11 HZQ : Maksudnya keadaan tapak itu Encik Syaipul tahu? 12 SP1 : Ya. 13 14 HZQ : Soalan saya. Berdasarkan keadaan tapak yang encik tahu 15 berdasarkan ketiga-tiga kemungkinan tadi, Encik Syaipul 16 boleh menghargakan, maaf saya rephrase soalan saya. 17 Sekiranya encik pergi ke tapak bina dalam mana-mana 18 keadaan tadi, Encik Syaipul tidak akan menghargakan 19 item nombor 4 pada 4 ribu? 20 SP1 : Benar. 21 22 HZQ : Setuju?” 23 24 (64) According to the contents of the Arahan Kepada Penyebut Harga, 25 all interested bidders were encouraged to request for clarification from the 26 department’s officers in case of a need. This is also provided for in Clause 27 2.4 of the Arahan Kepada Penyebut Harga. 28 29 (65) Regretfully the Plaintiff did not make use of this avenue to make any 30 enquiries before he put in his bid. And therefore I could not help but come 31 to the conclusion that the Plaintiff had no one else to blame but himself 32 for the quagmire that he was in. His refusal to accept the Defendants’ 22 S/N PyTJ2x0Fxk2Z3QI7nbVVvA **Note : Serial number will be used to verify the originality of this document via eFILING portal 1 officers invitation to view the site during the briefing only contributed to his 2 wrong estimation of the price of the project. 3 4 (66) I am in agreement with the contentions of counsel for the 5 Defendants who pointed out to this court that had the Plaintiff factored in 6 the cost of erecting a steel platform his quotation would still be within the 7 price range of the overall sum of the project. According to the evidence 8 adduced through the witnesses, the ceiling price for the project was set at 9 RM200,000 and the policy then was to accept the lowest bidded price 10 among all the bidders which did not exceed RM200,000. Now here the 11 Plaintiff had quoted the price of RM153,900. In his evidence the Plaintiff 12 stated that he had obtained quotations from suppliers of metal platforms 13 that he would have to incur a sum of around RM30,000 to RM50,000 in 14 order to construct the said platform. Assuming this were so, then the 15 Plaintiff should have been able to submit a quotation of RM184,000 to 16 about RM204,000 and these sums would have still been within the range 17 allowable for the Plaintiff to have a reasonable opportunity of being 18 chosen as a successful bidder. Hence it is my view that the error 19 committed by the Plaintiff in making the estimates in his quotation was 20 entirely a mistake of his own making and it was wrong of him to pin any 21 liability on the shoulders of the Defendants. The Defendants had in this 22 respect given all the information that was necessary and required of it. 23 24 (67) I refer again to the first letter dated 11.10.2016 sent by the Plaintiff. 25 Given its significance this letter revealed the actual reason for the 26 Plaintiff’s failure to complete the project. In my view it was not a technical 27 or a specification problem. Paragraphs 2 and 3 of the letter is reproduced 28 below : 29 23 S/N PyTJ2x0Fxk2Z3QI7nbVVvA **Note : Serial number will be used to verify the originality of this document via eFILING portal 1 “2. Adalah saya Kontraktor yang di pertanggungjawabkan dalam 2 menguruskan projek tersebut ingin memaklumkan pada pihak tuan 3 bahawa dalam usaha pihak kontraktor melakukan kerja-kerja Handle 4 and Drive Sheet Pile berukuran 12 Meter Panjang, pihak kami 5 mengalami kesukaran disebabkan keadaan tebing sungai yang terlalu 6 jauh dan keadaan tanah yang tidak stabil serta merbahaya untuk 7 mengendalikan jentera berat. Saya telah mendapat nasihat dari pakar 8 pengendali jentera bahawa kerja-kerja tidak boleh dilakukan jika 9 bergantung dengan keadaan sedia ada. Dengan ini pihak Kontraktor 10 ingin memohon jasa baik pihak tuan untuk mengadakan perbincangan 11 bersama dengan pihak Kontraktor dalam menyelesaikan isu ini dengan 12 kaedah membina Pelantar Keluli sementara untuk menampung jentera 13 berat. 14 15 3. Untuk pengetahuan pihak tuan empat syarikat pengendali Drive 16 Sheet Pile telah pun menarik diri dalam menjalankan projek ini 17 disebabkan masalah keadaan tapak bina dan ketiadaan jentera yang 18 bersesuaian untuk masuk ke dalam tanah selut berlumpur.” 19 20 (68) The letter left no room for doubt that the Plaintiff had not made any 21 preparations nor had he conducted any viewing of the area where the 22 work was supposed to have been carried out. It showed that the Plaintiff 23 had not factored into account the fact that he would need other means to 24 proceed with the work. 25 26 (69) I pause here to reflect that this letter is a contemporaneous 27 document, a letter written by the Plaintiff at the time when he faced the 28 difficulty. The significance to be extracted from that is that the Court will 29 treat it as a revelation of the actual reason as to why the Plaintiff could not 30 proceed with the project. 31 32 (70) In Guan Teik Sdn Bhd v Hj Mohd Noor Hj Yakob & Ors [2000] 4 33 CLJ 324 the Court of Appeal took the position that “in cases where 24 S/N PyTJ2x0Fxk2Z3QI7nbVVvA **Note : Serial number will be used to verify the originality of this document via eFILING portal 1 conflicting evidence are presented before a court, it is the duty of the court 2 not only to weigh such evidence on a balance of probabilities but it is also 3 incumbent upon the court to look at all the surrounding facts and to weigh 4 and evaluate contemporaneous documents that may tend to establish the 5 truth or otherwise of a given fact.” 6 7 (71) In a follow up letter, one week later on 18.10.2016, the Plaintiff 8 stated : 9 10 “2. Berkaitan panggilan telefon oleh pihak tuan, pihak Kontraktor 11 berasa kecewa kerana pihak tuan menolak pertemuan untuk diadakan. 12 Saya dengan ini memaklumkan pada pihak tuan bahawa kerja-kerja 13 untuk Drive Sheet Pile yang diarahkan oleh pihak tuan adalah tidak 14 boleh dilakukan jika berdasarkan surat saya yang bertarikh 11 Oktober 15 2016. Sebutharga yang dikemukakan oleh pihak tuan tidak jelas, tiada 16 Plan Teknikal, dan arahan kerja tidak sepadan dengan sebutharga yang 17 ditawarkan. Perkara ini membawa kepada komplikasi penentuan harga 18 dalam kaedah Drive Sheet Pile. Berkaitan perkara ini saya memohon 19 supaya pihak JPS Kuala Langat dapat membuat kerja-kerja siasatan 20 tanah di tapak bina untuk mengetahui lokasi yang lebih tepat sebelum 21 melakukan kerja-keja menutup kebocoran Kunci Air Pekan Banting. 22 Perkara ini perlu dilakukan kerana saya tidak mendapat maklumat 23 dengan terperinci secara berdata ketika taklimat projek yang diadakan. 24 Perkara ini adalah perlu untuk mengelakkan kesilapan menutup 25 kebocoran semasa kerja-kerja Drive Sheet Pile dilakukan. 26 3. Saya juga berharap pihak Tuan dapat kiranya 27 mempertimbangkan semula tempoh masa siap kerja supaya saya boleh 28 meneruskan kerja-kerja ini tanpa sebarang masalah.” 29 30 (72) From the contents of this letter it will be observed that the Plaintiff 31 was unable to complete the work based on the quotation that he had 32 offered to the Defendants. He pleaded to be given an extension of time in 33 order to complete the job. 25 S/N PyTJ2x0Fxk2Z3QI7nbVVvA **Note : Serial number will be used to verify the originality of this document via eFILING portal 1 (73) The Defendant replied with a letter dated 21.10.2016 reminding him 2 of the fact that a briefing of the project had been carried out earlier and he 3 had ample opportunity to visit the site and to contact their officers for 4 clarification of the work to be done. The contents of the said letter is 5 reproduced below : 6 7 “2. Untuk makluman, sebutharga di atas telah dibuat taklimat pada 8 11 Ogos, 2016 dan ditutup pada 22 Ogos, 2016. Pelawaan untuk 9 lawatan tapak dibuat pada hari yang sama dengan taklimat dan nombor 10 pegawai telah diberi jika Kontraktor mempunyai sebarang pertanyaan 11 mengenai tawaran kerja ini. 12 13 3. Kerja ini juga telah ditawarkan kepada tuan dengan harga 14 tawaran sebagaimana yang telah dipersetujui oleh Jawatankuasa 15 Sebutharga dengan nilai RM153,900.00 (Ringgit Malaysia : Satu Ratus 16 Lima Puluh Tiga Ribu Sembilan Ratus Sahaja). Tempoh yang diberikan 17 adalah mulai daripada 15 September 2016 sehingga 10 November, 18 2016. Pihak tuan juga telah menandatangani Surat Setuju Terima pada 19 15 September, 2016 untuk melaksanakan tawaran kerja ini dengan 20 harga seperti di atas. 21 22 4. Sehubungan itu, dakwaan pihak tuan mengenai ketiadaan data 23 yang mencukupi untuk melaksanakan kerja-kerja melantak sheet pile 24 adalah tidak berasas sama sekali. Ini kerana, pihak tuan mempunyai 25 tempoh masa melebihi satu bulan sebelum pihak tuan memberi alasan 26 bahawa pihak tuan telah menawarkan harga yang rendah kerana tidak 27 mempunyai data yang mencukupi. Pihak tuan juga mempunyai sepuluh 28 (10) hari selepas taklimat pada 11 Ogos, 2016 dibuat sebelum tarikh 29 tutup pada 22 Ogos, 2016 untuk membuat tawaran harga yang 30 munasabah dan bertanya kepada JPS jika mempunyai sebarang 31 kemusykilan. 32 33 5. Sejak kerja ini dimulakan Jurutera Daerah JPS, Kuala Langat 34 telah beberapa kali turun ke tapak untuk membantu pihak tuan 26 S/N PyTJ2x0Fxk2Z3QI7nbVVvA **Note : Serial number will be used to verify the originality of this document via eFILING portal 1 menyelesaikan isu di tapak. Bagaimanapun pihak tuan masih memberi 2 alasan berdasarkan anggapan (assumption) semasa mengisi tawaran 3 harga kerja. Dalam tempoh berbaki lagi 22 hari, pihak tuan memberi 4 pelbagai alasan untuk diberikan lanjutan masa sedangkan pihak tuan 5 sedia maklum bahawa tiada lanjutan masa untuk kerja kurang daripada 6 RM200,000.00 (G1). 7 6. Oleh itu, adalah diingatkan bahawa pihak tuan perlu menyiapkan 8 kerja ini pada 10 November, 2016 sebagaimana yang telah dipersetujui 9 pada 15 September, 2016 tanpa lanjutan masa. Pihak tuan diarahkan 10 untuk menggiatkan usaha di tapak untuk meningkatkan kemajuan 11 kerja.” 12 13 (74) In my view the contents of the letter by the Defendant had precisely 14 pointed out to the Plaintiff that the fault lay with him instead of the 15 Defendants who had carried out their duty properly and appropriately. 16 17 (75) Counsel for the Plaintiff contended that Paragraph 4 of this letter 18 was a concoction. He did not elaborate why he thought it was so in his 19 written submissions. In any event I disagree with that contention. It is my 20 view that the contents of the letter correctly set out the problem the Plaintiff 21 was facing and all this originated from the fact that the Plaintiff had failed 22 to view the work site before hand. Had he done so he would not have had 23 to face any issues with regard to carrying out the work. Paragraph 5 of the 24 Defendant’s letter was spot on in that the Plaintiff had quoted a sum based 25 on an assumption instead of actual facts and information gathered from 26 going to the site and viewing the site personally. Again it cannot be 27 emphasized enough that had the Plaintiff done what any reasonable 28 contractor would have done, it went without saying, an elementary thing 29 to have done i.e. to see the site personally for himself. Reference again is 30 made to Clause 1 of the Syarat-syarat Sebut Harga which advised the 31 Plaintiff to carefully check the project site as a prerequisite. The advisory 32 in Clause 1 reminded the intended bidders to inter alia visit and assess 27 S/N PyTJ2x0Fxk2Z3QI7nbVVvA **Note : Serial number will be used to verify the originality of this document via eFILING portal 1 the site area, the shape and extent of the site, the materials needed to do 2 the work, access to the area all of which would have a bearing on the 3 pricing for the quotation. 4 5 (76) I now refer to the Plaintiff’s letter on 3.11.2016 whereby he again 6 requested for an extension of time in order to obtain a loan to pay for the 7 project. In this letter the Plaintiff gave his guarantee that he would be able 8 to complete the project within the time given. 9 10 (77) The contents of this letter again confirmed that the most serious if 11 not the only problem faced by the Plaintiff was a lack of funds to do the 12 work. Based on the contents of the Plaintiff’s letter it frankly alluded to the 13 fact that the Plaintiff could carry on with the work but he needed more time 14 and money of course. 15 16 (78) Next, I refer to the Plaintiff’s subsequently letter dated 8.11.2016. It 17 will be noted that by this time, the Defendant had sent reminder letters 18 and a first warning letter dated 2.11.2016. In his reply the Plaintiff repeated 19 his allegation that it was the Defendants’ fault for failure to provide 20 adequate data to proceed with the work. The Plaintiff also pinned the 21 blame on the Defendant for revoking their consent to the Plaintiff’s 22 application for a loan from Bank Kerjasama Rakyat. 23 24 (79) In my view upon a careful scrutiny of the documentation made 25 available in the Bundle of Documents, it will be seen that the Defendant 26 did not revoke their consent in the “Surat Persetujuan Suratikan Serahan 27 Hak” to Bank Kerjasama Rakyat. The facts showed that the Defendant 28 had informed Bank Kerjasama Rakyat via letter dated 21.10.2016 that 29 payment would not be made in lump sum but instead paid in accordance 30 with the stages of work undertaken until completion. Nowhere in the said 28 S/N PyTJ2x0Fxk2Z3QI7nbVVvA **Note : Serial number will be used to verify the originality of this document via eFILING portal 1 letter did the Defendant revoke the Letter of consent dated 21.10.2016. 2 The Defendant merely made an amendment to the mode of payment. 3 Hence it can be concluded that the Defendant was committed to make 4 payments based on the stages of the completion of work done. It certainly 5 did not mean that the Defendant was refusing to make anymore 6 payments. In this regard it is my view that the Plaintiff was wrong to blame 7 the Defendant for the decision of Bank Rakyat to amend the terms of the 8 loan given to the Plaintiff. It was out of the hands of the Defendant on how 9 or in what manner Bank Kerjasama Rakyat wished to disburse the loan 10 pursuant to the Plaintiff’s application. In any event Bank Rakyat did not 11 reject the application but only set further terms. It will also be a pertinent 12 point to note that the Defendants are not responsible for the success or 13 the rejection of the Plaintiff’s application for loan facilities. It would be 14 unfair to blame the Defendants for the Plaintiff’s woes. Clause 11.0 of the 15 Syarat-syarat Sebut Harga specifies the terms of payment to be made by 16 the Defendant in regard to the project. It states as follows : 17 18 “11.0 Bayaran Kerja 19 Bayaran atas kerja yang telah dilaksanakan akan dibuat seperti 20 berikut :- 21 (i) Bayaran sepenuhnya iaitu setelah Kontraktor menyiapkan 22 kerja dengan sempurna dan menyerahkan Inden Kerja Asal; atau 23 (ii) tempoh siapnya melebihi satu (1) bulan tetapi tidak 24 melebihi dua (2) bulan. Bayaran pertama akan dibuat apabila 25 kemajuan kerja mencapai sekurang-kurangnya 50% dari nilai 26 Sebutharga atau satu (1) bulan, yang mana lebih awal. Manakala 27 bayaran kedua adalah merupakan bayaran akhir; atau 28 (iii) bagi Sebutharga yang temph penyiapannya melebihi dua 29 (2) bulan, bayaran kemajuan secara Bayaran Interim akan dibuat 30 sehingga semua kerja disiapkan. Bayaran terakhir kepada 31 kontraktor hendaklah dianggap sebagai perakuan bayaran 29 S/N PyTJ2x0Fxk2Z3QI7nbVVvA **Note : Serial number will be used to verify the originality of this document via eFILING portal 1 muktamad kepada kontraktor atas keseluruhan kerja yang telah 2 dilaksanakan.” 3 4 (80) I take note of the fact that the Plaintiff was paid to the extent of the 5 work that he had completed as at November 2016. The invoice issued by 6 the Plaintiff and the payment by the Defendant can be found in pgs 1 – 42 7 Bundle B6 Encl 59). 8 9 (81) The contention by the Plaintiff that he was hampered by the 10 Defendant’s uncooperative stance is untenable and unsustainable in view 11 of my findings of the primary reason for the Plaintiff’s difficulty in carrying 12 out the project. 13 14 Site Diary 15 (82) It was vehemently contended by counsel for Plaintiff in his inimitable 16 style that the Defendants had failed to produce a site diary to prove their 17 allegations. The need for a site diary is provided for in the Pekeliling JPS 18 BIL 3/2011. In my view the Pekeliling is not law although it no doubt serves 19 well as an administrative guideline for all. Hence, I would not place 20 indisputable force of law attached to it. I do not think that non compliance 21 with the necessity to prepare and maintain a site diary in this case would 22 have mattered or have any bearing with the issues raised in this case. 23 Moreover, there are indeed contemporaneous correspondences between 24 the Plaintiff and the Defendants which are pertinent and relevant in 25 assessing the roles of the parties and events that occurred. I think it is 26 untenable and unwarranted for counsel for the Plaintiff to say that the 27 “Defendant came to court empty handed and say whatever they like to 28 wriggle their way out of the trouble they themselves created”. There are 29 other contemporaneous documents which can throw a better light on what 30 transpired between the parties. The “sebutharga” documents and the 30 S/N PyTJ2x0Fxk2Z3QI7nbVVvA **Note : Serial number will be used to verify the originality of this document via eFILING portal 1 contemporaneous exchanges of correspondences between the parties as 2 well as letters from the bank are more than adequate for the court to 3 assess and come to a finding on this issue. 4 5 Whether the termination of the contract was valid 6 (83) It was a term of the contract between the parties that the contract 7 was to be for a period of 8 weeks commencing from 15.9.2016 to 8 10.11.2016. It was also a term that the Plaintiff was given possession of 9 the site on 15.9.2016. It is not in dispute that the Plaintiff visited and 10 checked on the site for the first time on 4.10.2016. This is crucial as by 11 then 19 days had elapsed from the date of possession. This essentially 12 would also mean that the Plaintiff only had 37 more days to complete the 13 work entrusted to him. 14 15 (84) The Defendants issued a reminder to the Plaintiff on 21.10.2016 via 16 a letter addressed to him. In the said letter the Defendants had expressed 17 their dissatisfaction with the delay in the stages of work to be done and 18 reminded the Plaintiff that he only had 17 days from thereon to complete 19 the work. 20 21 (85) On 2.11.2016 the Defendants issued a first warning letter to the 22 Plaintiff. It was noted in the said letter that the site was deserted and there 23 was no evidence of any work being carried. In this regard it was noted that 24 the Plaintiff had merely completed 8.1% of the job when it should have 25 been 87.5% completed. Paragraph 4 of the letter went on to warn : 26 27 “4. Sehubungan dengan itu, tuan hendaklah serius terhadap Amaran 28 No. 1 yang dikeluarkan bersama surat ini. Sekiranya tuan gagal 29 meneruskan kerja mengikut aturan dan tekun, tindakan akan dibuat 30 sebagaimana di dalam Syarat-syarat Sebutharga di bawah Klausa 15.0 31 – Penamatan Perlantikan Kontraktor. Pejabat ini akan mengeluarkan 31 S/N PyTJ2x0Fxk2Z3QI7nbVVvA **Note : Serial number will be used to verify the originality of this document via eFILING portal 1 notis sebagaimana Klausa 15.2, berkenaan pengesyoran untuk 2 Tindakan Tatatertib.” 3 4 (86) It is crucial to note that Clause 15.0 referred to in the letter pertains 5 to the right of the contract holder to terminate the contract in the terms 6 stated as follows : 7 8 “15.0 Penamatan Perlantikan Kontraktor 9 15.1 Pegawai Inden berhak membatalkan Inden Kerja sekiranya 10 Kontraktor berada dalam keadaan berikut dan setelah menerima 11 surat amaran daripada Pegawai Inden : 12 a) Sekiranya Kontraktor gagal memulakan kerja selepas 7 13 hari dari tarikh akhir tempoh mula kerja yang dinyatakan 14 dalam Inden Kerja, tanpa sebab yang munasabah. 15 b) Sekiranya Kontraktor gagal menyiapkan Kerja pada tarikh 16 siap kerja atau dalam tempoh lanjutan masa yang 17 diberikan. 18 c) Kemajuan kerja terlalu lembap tanpa apa-apa sebab yang 19 munasabah. 20 d) Penggantungan perlaksanaan, keseluruhan atau 21 sebahagian Kerja, tanpa apa-apa sebab yang 22 munasabah. 23 e) Tidak mematuhi arahan Pegawai Inden tanpa apa-apa 24 alasan yang munasabah; dan 25 f) Apabila Kontraktor diisytiharkan bankrap oleh pihak yang 26 sah. 27 28 15.2 Sekiranya perlantikan Kontraktor ditamatkan, pengesyoran untuk 29 tindakan tatatertib oleh Pusat Khidmat Kontraktor akan dibuat 30 terhadap Kontraktor.” 31 32 (87) Clause 15.2 makes it clear that the Defendant would have no choice 33 but to report the matter to the Pusat Perkhidmatan Kontraktor for 34 disciplinary action to be taken against the contractor who was behind 32 S/N PyTJ2x0Fxk2Z3QI7nbVVvA **Note : Serial number will be used to verify the originality of this document via eFILING portal 1 schedule or failed to complete a project within the time specified in the 2 agreement. 3 4 (88) Via letter dated 3.11.2016 the Plaintiff replied to the Defendant’s 5 letter stating that he was confident that the work could be completed if he 6 were to be given an extension of another 2 weeks. The Plaintiff also 7 promised that he would abide by any directions issued to him by the 8 Defendants. It will be noted that the Plaintiff did not dispute the percentage 9 of delay attributed to him. The Plaintiff gave his assurance that the work 10 would continue in accordance with the directions given by the Defendants. 11 12 (89) Since there was no improvement in the services, the Defendants 13 issued a notice on 7.11.2016 via a letter entitled “Notis Untuk Tujuan 14 Penamatan”. By then the Plaintiff had only completed 8.1% of the work 15 and certainly would not have been able to fully complete the work on or 16 before 10.11.2016, a mere 3 days away. 17 18 (90) The Plaintiff’s reply to the above can be found in his letter dated 19 8.11.2016. In this letter the Plaintiff gave his reasons as to why he could 20 not complete the job. It was at this point in time that the Plaintiff 21 complained that he was not given any data in regard to the “pelan-pelan 22 spesifikasi dan hal-hal teknikal” or any other details in regard to the 23 seepage of water at the river bed. 24 25 (91) On 9.11.2016 the Defendant issued the notice of termination (Notis 26 Penamatan Pengambilan Kerja Kontraktor) to the Plaintiff in pursuance to 27 Clause 15.0 of the Syarat-syarat Sebut Harga. 28 29 30 33 S/N PyTJ2x0Fxk2Z3QI7nbVVvA **Note : Serial number will be used to verify the originality of this document via eFILING portal 1 (92) I respectfully find that the complains are mere afterthoughts as the 2 Plaintiff had never openly stated that these were the stumbling block to 3 the completion of the work at the site. 4 5 (93) The terms and conditions of the “Syarat-syarat Sebut Harga” must 6 be adhered to by the parties who willingly embark into a contract with one 7 another. There is no doubt that the terms and conditions which regulated 8 the contract between the parties are found in the tender documents and 9 the Syarat-syarat Sebut Harga spells out the obligations of the respective 10 parties. These terms bind the parties concerned and if one party breaches 11 any one of the terms and conditions the other party is entitled to terminate 12 the contract. 13 14 (94) The Plaintiff made much of the fact that the Defendants refused to 15 grant him an extension of time as requested. It was explained by the 16 witnesses for the Defendants that an extension of time could not possibly 17 be considered for contractual agreements where the contract price is less 18 than RM200,000.00. A careful perusal of Clause 13 of the contract terms 19 will divulge as follows: 20 21 “13.0 Lanjutan Masa (Jika sebutharga melebihi RM200,000.00 22 sehingga RM500,000.00) 23 Sekiranya Kontraktor tidak dapat menyiapkan kerja dalam 24 tempoh yang ditetapkan, Lanjutan Masa boleh diberikan kepada 25 kontraktor tertakluk kepada kelulusan Jawatankuasa Sebutharga 26 dan sebab kelewatan bukan berpunca daripada kelewatan di 27 pihak kontraktor.” 28 29 (95) When the terms of the contract are unequivocal and unambiguous 30 the court must interpret it in its plain meaning and enforce the obligations 31 it renders upon parties no matter how unreasonable its effects may bring. 34 S/N PyTJ2x0Fxk2Z3QI7nbVVvA **Note : Serial number will be used to verify the originality of this document via eFILING portal 1 (96) It is my view that counsel for the Defendant was correct when she 2 referred to the case of Berjaya Times Square Sdn Bhd v M-Concept 3 Sdn Bhd [2010] 1 CLJ 269 where the learned JCA Gopal Sri Ram (as he 4 then was) quoted Lord Hoffmann in the case of Attorney General of 5 Belize v Belize Telecom Limited [2009] UKPC 11 as follows : 6 7 “This view is not consistent with the speech of Lord Wilberforce in the 8 earlier case of Prenn v. Simmonds [1971] 3 ER 237, 241 (applied by the 9 former Federal Court in Keng Huat Film Co Sdn Bhd v. Makhanlall 10 (Properties) Pte Ltd [1983] 2 CLJ 187; [1983] CLJ (Rep) 186 FC) and 11 later learning to be found in the decisions of the House of Lords in 12 Investors Compensation Scheme Ltd v. West Bromwich Building 13 Society and Bank of Credit and Commerce International SA v. Munawar 14 Ali. The most recent statement of the guideline to interpretation of 15 contracts statutes and other instruments is to be found in Attorney 16 General of Belize v. Belize Telecom Limited [2009] UKPC 11, where 17 when delivering the Advice of the Board, Lord Hoffmann said : 18 The court has no power to improve upon the instrument which it is called 19 upon to construe, whether it be a contract, a statute or articles of 20 association. It cannot introduce terms to make it fairer or more 21 reasonable. It is concerned only to discover what the instrument means. 22 However, that meaning is not necessarily or always what the authors or 23 parties to the document would have intended. It is the meaning which 24 the instrument would convey to a reasonable person having all the 25 background knowledge which would reasonably be available to the 26 audience to whom the instrument is addressed : see Investors 27 Compensation Scheme Ltd v. West Bromwich Building Society [1998] 1 28 WLR 896, 912-913. It is this objective meaning which is conventionally 29 called the intention of the parties, or the intention of the Parliament, or 30 the intention of whatever person or body was or is deemed to have been 31 the author of the instrument. 32 35 S/N PyTJ2x0Fxk2Z3QI7nbVVvA **Note : Serial number will be used to verify the originality of this document via eFILING portal 1 It follows from these authorities that the view of Seah FJ in Nouvau Mont 2 Dor (M) Sdn Bhd v. Faber Development Sdn Bhd quoted above is not 3 good law and should not be followed.” 4 5 (97) It was argued that there was nothing in the termination letter to show 6 under which heading or paragraph of Clause 15 the contract was 7 terminated. Counsel for the Plaintiff quoted from a book entitled 8 “Standard Form Building Contract” by Dato Sundra Rajoo 9 (Lexis/Nexis) 2010 at pg 549 where it was stated as follows : 10 11 “It is imperative for the employer (defendant) to prove failure on the 12 contractor’s part ‘evidence of lack of action, ignorant, neglect or an 13 outright refusal to perform (by the plaintiff). 14 Since the contractor’s (defendant’s) obligation…..vary according to the 15 particular type and nature of the contract…being the subject matter of 16 the determination process ( (i.e. termination process), it is incumbent for 17 the employer (defendant) to strictly observe its stipulations.” 18 Counsel further stressed on the following : 19 “the contractor maybe absolved of culpability and the employers 20 maybe denied the opportunity to invoke the default clause should the 21 contractor have reasonable cause for failing to commence with the 22 works.” 23 24 (98) The letters by the Defendant have clearly referred to the fact that 25 the Plaintiff was in breach of the terms found in Clause 15 of the Syarat- 26 syarat Sebut Harga. 27 28 (99) In the Defendant’s first letter dated 21.10.2016, the Plaintiff was 29 reminded that the completion date for the contract was a matter of weeks 30 away and that the Defendants could not give any extension of time. 31 36 S/N PyTJ2x0Fxk2Z3QI7nbVVvA **Note : Serial number will be used to verify the originality of this document via eFILING portal 1 (100) The contents of the 1st Warning Letter sent to the Plaintiff dated 2 2.11.2016 is clear and unambiguous. It recorded the fact that the Plaintiff 3 had only managed to complete 8.1% of the work at that point of time. It is 4 clear that the Plaintiff was unable to complete the work within the contract 5 period. The Defendant’s letter dated 7.11.2016 was a follow up to the one 6 sent on 2.11.2016. In that letter the Defendant placed on record the fact 7 that the Plaintiff had not completed the percentage of work within the given 8 time frame and the Defendant again warned him that they would not 9 hesitate to terminate the contract pursuant to Clause 15.0 of the Syarat- 10 syarat Sebut Harga. 11 12 (101) The contents of the termination letter shows there was a valid and 13 lawful termination of the contract on the ground that the Plaintiff had failed 14 to complete the whole of the project on or before 10.11.2016. This pertains 15 to Paragraph 15.1(b) of the contract. The Plaintiff was given ample time 16 to complete the project and had been told that there would not be any 17 extension of time. Therefore, it is the view of this court that the Plaintiff 18 was well aware of the reasons for the termination of the contract. He had 19 failed to complete his part of the contract and therefore the Plaintiff cannot 20 be said to not know why the contract was terminated. 21 22 (102) In any event this Court would very much like to refer to the on-point 23 case of SPM Membrane Switch Sdn Bhd v Kerajaan Negeri Selangor 24 [2016] 1 CLJ 177 whereby the Federal Court made the finding as follows: 25 26 “(1) A notice of termination would not necessarily be bad in law in all 27 cases if reasons are not provided in it, thereby causing the recipient of 28 the notice to have reasonable doubt as to why they were terminated and 29 what they are required to do, in order to remain compliant to the contract. 30 Nevertheless, there are certain circumstances in which, as a matter of 31 construction of contract, the recipient of the notice is entitled to have the 37 S/N PyTJ2x0Fxk2Z3QI7nbVVvA **Note : Serial number will be used to verify the originality of this document via eFILING portal 1 reasons for termination communicated to it by the terminating/non- 2 defaulting party where the contract provides for a ‘grace period’ in which 3 the defaulting party is entitled to remedy its allegedly defective 4 performance to the satisfaction of the non-defaulting party. This is clearly 5 because a party that is afforded the opportunity to remedy the 6 deficiencies in performance cannot do so unless it has notice of the 7 deficiencies, either actual or constructive. This stands to reason. (paras 8 19 & 20). 9 10 … 11 12 [21] This proposition holds not as a general proposition in the law of 13 contract, but upon construction where the parties expressly or impliedly 14 agree to it in the contract. 15 16 [22] Short of any clear authority, the aforementioned proposition cannot 17 be sustained. In any case, it is too onerous to impose upon every 18 contract the requirement for reasons to be given in the event of 19 termination. We take note, however, that it is in principle possible for the 20 requirement of reasons (whether or not “sufficiently particularised” per 21 the meaning of the Federal Court in Perkayuan to arise as an express 22 or implied term of the contract itself, particularly where the defaulting 23 party is afforded the opportunity to remedy the alleged default in a 24 stipulated period. 25 26 [23] It is trite law that there is a need for there to be a valid reason to 27 terminate and that reason must have existed at the time of termination, 28 even if the wrong reason was given at that time (see Chitty on Contract, 29 31st Ed at 24 – 014). At common law, that usually means repudiatory 30 breach, or breach of condition, or that there is a particular circumstance 31 which gives rise to a contractual right to terminate. However, there 32 appears to be no need for termination, where it happens by notice, to 33 include particularised reasons as a matter of general common law, 34 unless there are circumstances that give rise to a duty to do so, as in the 38 S/N PyTJ2x0Fxk2Z3QI7nbVVvA **Note : Serial number will be used to verify the originality of this document via eFILING portal 1 case of a statutory duty or by the terms of a contract upon proper 2 construction.” 3 4 (103) Here in this instant case, it is significant to note that the terms and 5 conditions in the Syarat-syarat Sebut Harga made no provision for giving 6 time to the wrongdoer to remedy the breach. Moreover the termination 7 letter clearly contained the reasons for the termination which was the 8 failure to complete the work within the time provided for in the contract. 9 Here too the Defendants had informed the Plaintiff that no extension of 10 time would or could be granted from as early as 21.10.2016 followed by 11 the first Surat Amaran No. 1 dated 2.11.2016 (pg 67 B2). Thus the 12 Plaintiff’s complains are without basis. 13 14 Whether the decision to refer the plaintiff to the Pusat Khidmat 15 Kontraktor for disciplinary action/blacklisting was validly carried out 16 (104) It is noted from a perusal of the Plaintiff’s written submissions and 17 submissions in reply that counsel did not address the issue of the 3rd 18 Defendant’s decision to copy her letter dated 21.10.2016 to CIDB. 19 Perhaps the Plaintiff wanted to abandon this grievance. In any event the 20 only reference to this issue was fleetingly mentioned in Paragraph 21 of 21 the Plaintiff’s written submission where it was alleged that the 3rd 22 Defendant’s motive to do so was to “finish off” the Plaintiff. Apart from 23 copying the letter to CIDB, the 3rd Defendant had also forwarded a copy 24 to the Member of Parliament for Kuala Langat, Setiausaha Bahagian EPU 25 as well as the Pengarah Negeri Selangor. 26 27 (105) It will be noted that the 3rd Defendant’s letter dated 21.10.2016 is a 28 reply to the Plaintiff’s letters dated 11.10.2016 and 18.10.2016. At any rate 29 it was the Plaintiff who copied these two letters to the Member of 30 Parliament of Kuala Langat and Setiausaha Bahagian EPU and therefore 39 S/N PyTJ2x0Fxk2Z3QI7nbVVvA **Note : Serial number will be used to verify the originality of this document via eFILING portal 1 the 3rd Defendant could not be faulted for also copying her reply to these 2 individuals. I could not see any hidden motive that the 3rd Defendant would 3 have had other than to politely follow suit and copy her reply to the same 4 people that the Plaintiff copied to. 5 6 (106) In regard to the copy sent to the CIDB, I would agree with the 7 Defendants’ contention that it was incumbent upon the department to 8 report any contractor who was issued with a termination letter. Clause 9 15.2 of the Syarat-syarat Sebutharga makes it mandatory for the 3rd 10 Defendant to refer the matter to the Pusat Khidmat Kontraktor. The 3rd 11 Defendant had informed the Plaintiff of the presence of Clause 15.2 in the 12 contract. Since this was a term of the agreement, there could not be in 13 any way any ulterior motive to be drawn from the 3rd Defendant’s actions 14 as she was merely following the procedure as laid down in the clauses of 15 the contract entered into between the Plaintiff and the Defendants. In light 16 of the evidence adduced, I reject the Plaintiff’s averment that the 3rd 17 Defendant’s motives were to “finish off the Plaintiff” or that she wants “the 18 big shots to know about her position”. Those aspersions are 19 unsubstantiated and without merit. 20 21 Whether the Plaintiff is entitled to damages, interest and costs. 22 (107) As it was my decision that the Plaintiff had failed to prove his case 23 on a balance of probabilities, the Plaintiff is therefore not entitled to any 24 damages. 25 26 (108) For the sake of completeness, I shall nevertheless quantify the 27 damages sought by the Plaintiff. The Plaintiff made the following claims 28 for damages : 29 (i) RM153,900 plus 5% pa from the date of the action to the date 30 of settlement and other costs testified by SP 2; 40 S/N PyTJ2x0Fxk2Z3QI7nbVVvA **Note : Serial number will be used to verify the originality of this document via eFILING portal 1 (ii) loss of opportunity to be selected as tenderer by reason of the 2 unlawful blacklisting by CIDB as a result of the malicious and 3 false reporting by the Defendants to CIDB amounting to 4 RM230,000 plus 5% pa from the date of the action to date of 5 settlement; 6 (iii) general damages in the sum of RM1 million and 5% pa from 7 the date of action to the date of settlement; 8 (iv) loss of profits at RM390,500 from 2017 until full settlement; 9 (v) general damages for hardship suffered by the Plaintiff to be 10 ordered for assessment; and 11 (vi) cost of this action. 12 13 (109) The Plaintiff in his written submissions was very brief about the claim 14 for damages stating that it is not necessary to reproduce them after having 15 stated the various damages under distinct headings in Paragraph 38 of 16 the Statement of Claim. The Plaintiff contended that he only needed to 17 direct the Court’s attention to the evidence of PW 2 both in her witness 18 statement and her testimony where she gave an overview of the losses 19 suffered by the Plaintiff as a result of the unlawful termination of the 20 contract by the defendant. The court found this unhelpful as it was akin to 21 merely “write down particulars and, so to speak throw them at the head of 22 the court, saying: ‘This is what I have lost, I ask you give me these 23 damages’. They have to prove it (Lord Goddard CJ in Bonham Carter v 24 Hyde Park Hotel [1948] TLR 177). 25 26 (110) In any claim for damages the person seeking a claim has the burden 27 of proving both the facts and the amount of damages before he can 28 recover them (see PB Malaysia Sdn Bhd v Samudra (M) Sdn Bhd 29 [2009] 7 MLJ 681). 30 41 S/N PyTJ2x0Fxk2Z3QI7nbVVvA **Note : Serial number will be used to verify the originality of this document via eFILING portal 1 (111) The damages must be proven with factual evidence. No amount of 2 estimates or general conclusions will suffice. It is observed that this is the 3 situation with the Plaintiff’s claim for the reliefs under the heading (ii), (iii), 4 (iv) and (v) above. The sums for special damages must be strictly proven. 5 In the instant case, apart from the averments of PW 1 and PW 2 together 6 with details of the value of a number of projects carried out in the year 7 2016, the Plaintiff has not succeeded in furnishing actual payments made 8 for those projects as well as the expenses incurred in its implementation. 9 It would appear that the Plaintiff has failed to furnish any independent 10 documentary evidence to truly support the amounts claimed thereto. 11 12 (112) I refer and adopt the rationale found in SPM Membrane Switch Sdn 13 Bhd (supra) where it was stated : 14 15 “[118] However, we do not approve of the appellant’s method of 16 calculation for the loss of profits. In its pleadings the appellant claimed 17 for over RM19m whilst in it written submissions the appellant claimed 18 RM10,415,421.43 (and, incidentally, incorrectly added the word million 19 behind the figure). Let it be said that such careless disregard for 20 precision is less than satisfactory. Counsel for the appellant stated that 21 “this sum (and the formula used in arriving at that figure) was explained 22 and had been proven at trial. Essentially, it is based on the average of 23 the commissions due to the appellant for the preceding 40 months which 24 is then multiplied with the balance of 20 months. The accuracy of these 25 figures was not challenged during trial”. (para 54 of the appellant’s 26 written submissions). 27 28 [119] This calculation does not reflect the principles of compensation for 29 loss of profits and will put the appellant in a position well beyond that 30 which it would rightfully be in, had the contract been properly performed. 31 A calculation based on “commissions”, that is to say receipts, is very 32 different from a calculation based on “profits”. To award damages based 33 on commissions would completely disregard the fact that had the 42 S/N PyTJ2x0Fxk2Z3QI7nbVVvA **Note : Serial number will be used to verify the originality of this document via eFILING portal 1 contract been properly performed the appellant would have had to incur 2 expenses and costs of operation, among other things. The proper sum 3 should therefore be net of all the expenses that would be reasonably 4 incurred in the remaining 20 months period. To do otherwise would give 5 the appellant more than they would have obtained had the contract been 6 performed, and therefore more than what they rightfully deserved. 7 However, contrary to the respondent’s submission and the judgement of 8 the trial judge, the mere fact that the formula was the appellant’s own 9 formulation (presumably in contradistinction with a formula provided for 10 within the contract) is not a ground for rejecting the formula. The 11 agreement did not stipulate a formula for calculating loss of profits, and 12 as such the general principles of the common law till apply and a formula 13 that best estimates the future loss of profits will be preferred by the 14 court.” 15 16 (113) Therefore, in this connection it is not sufficient for the Plaintiff merely 17 to state the amount of damages that he is claiming. The claim for damages 18 are mainly based on assertions and thus I am constrained here to hold 19 that the Plaintiff has not on a balance of probabilities sufficiently proven 20 the above said claims and these should not be allowed. 21 22 (114) For the claim under (i) i.e. the sum of RM153,900.00, the Plaintiff 23 has been remiss in his refusal to admit that remuneration of RM12,148.00 24 has been paid to him. This can be seen in the invoice at pgs 1 – 42 B6 25 (Encl 59). The Invoice bears the signature of the Plaintiff acknowledging 26 receipt of the said sum. If at all he is only entitled to claim the balance of 27 RM141,752 had he succeeded in this civil suit. 28 29 Conclusion 30 (115) As such I conclude with the finding that the Plaintiff has failed to 31 establish his claim against the Defendants on a balance of probabilities. I 43 S/N PyTJ2x0Fxk2Z3QI7nbVVvA **Note : Serial number will be used to verify the originality of this document via eFILING portal 1 also find the reliefs claimed by the Plaintiff cannot be sustained. For all 2 the reasons given, I dismiss the Plaintiff’s claim with costs. 3 4 Dated 02 September 2022. 5 6 7 8 9 (DATO’ JULIE LACK) 10 Judge 11 High Court of Malaya 12 Shah Alam, Selangor Darul Ehsan 13 14 15 16 17 18 19 20 21 22 23 Counsel 24 For the Plaintiff : 25 Dato’ Shaharudin Bin Ali with Azfar Azmi 26 (MESSRS. SHAHARUDINALI AZFARAZMI & CO.) 27 28 For the Defendants : 29 Nadia Binti Isa with Muhammad Haziq Bin Hashim 30 (PEJABAT PENASIHAT UNDANG-UNDANG NEGERI SELANGOR) 44 S/N PyTJ2x0Fxk2Z3QI7nbVVvA **Note : Serial number will be used to verify the originality of this document via eFILING portal