PAM Contract (High Court Case)

[2018] 1 LNS 2105 Legal Network Series
IN THE HIGH COURT OF MALAYA AT KUALA LUMPUR
IN THE FEDERAL TERRITORY, MALAYSIA
[SUIT NO: WA-22C-79-11 /2016]
BETWEEN
MIX TARGET (M) SDN BHD

(COMPANY NO.: 287871-A) ... PLAINTIFF
AND
NAJCOM SDN BHD

(COMPANY NO.: 170172-K) ... DEFENDANT
HEARD TOGETHER WITH
IN THE HIGH COURT OF MALAYA AT KUALA LUMPUR
IN THE FEDERAL TERRITORY, MALAYSIA
[SUIT NO: WA-22C-28-02/2017]
BETWEEN
ITAGRES SDN BHD

(COMPANY NO.: 456698-K) ... PLAINTIFF
AND
MIX TARGET (M) SDN. BHD.

(COMPANY NO.: 287871-A) ... DEFENDANT
1
THE JUDGMENT OF
Y.A. LEE SWEE SENG
[1] There were two trials that were heard together because they were
related. The first was a 2017 Suit between Itagres Sdn Bhd (“Itagres”)
v. Mix Target Sdn Bhd (“Mix Target”) and the second was a 2016 Suit
between Mix Target v. Najcom Sdn Bhd (“Najcom”).
Project and Parties
[2] Najcom appointed Mix Target to carry out subcontract work to

supply, install and complete a Fire Fighting System Works (“the
Works”) under a Project known as the “Proposed Development of a
Women and Children Hospital Project, Kuala Lumpur” (“the Project”)
for a Fixed Lump Sum contract sum of RM9,900,000.00 vide a Letter of
Award (“LoA”) dated 17.9.2014.
[3] Najcom was the Subcontractor for the Works having been
appointed by UEM Builder - Najcom JV (“UNJV”), the Main Contractor
for the same contract sum. UNJV had earlier on 11.3.2014 been awarded
a contract by the Employer Konsortium ProHAWK Sdn Bhd for the
design, construction, completion, testing and commissioning of the said
Project for a total fixed lump sum of RM92,000,000.00 with respect to
Mechanical Works.
[4] Mix Target then appointed Itagres to supply labour/workers to

carry out the subcontract work for the contract sum of RM3,200,000.00.
Problem
[5] Under the LoA the Works were required to be completed in 24

months from the date of commencement on 25.7.2014 and to be
completed by the Completion Date of 25.6.2016. When Mix Target was
terminated by Najcom, Mix Target had submitted Progress Claims for
2
work carried out and completed to Najcom for payment. Najcom in turn
submitted the Progress Claims to UNJV for assessment and
certification.
[6] The total amount on the 7 Progress Claims submitted was

RM2,269,072.68. Najcom disputed this sum claim and said that the
amount certified by the consultants of UNJV were very much lower and
for which they had already paid Mix Target.
[7] As Mix Target was repeatedly falling behind time to complete the
different floors and in particular the 3 rd floor by 20.2.2015 and 4 th floor
by 7.3.2015, Najcom had terminated Mix Target on 31.3.2015 after
many reminders to catch up with the revised schedule of completion but
to no avail.
[8] In the meanwhile Mix Target had failed to pay Itagres under the
supply of labour/workers contract for the Works to the tune of
RM731,000.00 being amount outstanding for the supply of labour to
install the Fire Fighting System.
Prayers
[9] In the 2017 Suit Itagres had claimed for RM731,000.00 for the
amount outstanding under the supply of labour/workers contract with
Mix Target.
[10] Mix Target denied owing the said sum and labour supplied to carry
out the subcontract work. Mix Target contended that they had overpaid
Itagres based on the payment received from Najcom. They further
pleaded that Itagres had agreed that they would be paid after Mix Target
had been paid by Najcom.
[11] In the 2016 Suit Mix Target had claimed for the balance sum of
RM2,650,360.10 due and owing for the work carried out and completed
3
by Mix Target after deducting RM324,675.00 being payment made by

Najcom from RM2,975,035.10 being the amount claimed for the Works
done before the termination. In summary Mix Target claimed against
Najcom as follows:
(a) Balance progress claim due and owing by Najcom in the sum
of RM2,650,360.10;
(b) Losses and damages as a result of the premature, wrongful

and invalid termination of Mix Target‟s contract in the sum
of RM532,600.00;
(c) Interest; and
(d) Costs.
[12] The losses of RM532,600.00 by Mix Target consisted of the

following:
(a) Machinery cost which included grooving machine, threaded

machine, tower crane and fork lift in the sum of
RM125,000.00;
(b) Mobilization and demobilization of machineries and

workers in the sum of RM55,000.00;
(c) Coordination work carried out by Mix Target in the sum of

RM35,000.00;
(d) Relocation and additional work due to inaccurate

coordination by Najcom in the sum of RM185,000.00;
(e) Administration work including preparation of documents for

consultant‟s approval in the sum of RM27,800.00;and
(f) Legal costs in the sum of RM72,400.00; and
4
(g) Cost of valuation and certification by third party in the sum

of RM32,400.00.
[13] The Defence of Najcom was that Mix Target had over claimed for
the Works done as they had unilaterally changed the rationalized rates
by heavy front loading such that their rates were materially out of sync
with the rates between UNJV and Najcom for the same Fixed Lump Sum
Contract of RM9.9 million.
[14] Najcom maintained that the termination was valid and also
counterclaimed for the extra costs incurred in engaging another rescue
Subcontractor to finish the Works and for the costs incurred in
rectifying the Works completed by Mix Target.
Proceedings
[15] Itagres called one witness who is Kelvin Chew Weng Keong in the
2017 Suit. Mix Target witnesses in both the 2017 Suit and 2016 Suit
were:
(a) Zainal Abidin Bin Mamat – “PW-1”; and
(b) Ahmad Fitri Bin Zainal Abidin – “PW-2”.
[16] Najcom‟s witnesses in the 2016 Suit were as follows:
(a) Khow Kok Aun – “DW-1;
(b) Ng Ean Bah –“DW-2”;
(c) Norazla Bin Badaruddin – “DW-3”
(d) Hezry Huzir Bin Mohd Khalid – “DW-4”;
(e) Izzati Syazwani Binti Idris – “DW-5”;
5
(f) Chew Hoong Yew – “DW-6”;
(g) Zulkifli Bin Abu Bakar – “DW-7”; and
(h) Haja Najmudeen Bin KPM Abd Kader– “DW-8”.
[17] Both Mix Target and Najcom did not execute a PAM Contract after
the LoA and at the trial learned counsel for Mix Target informed the
Court that he was not proceeding under the premise that the terms of the
PAM Contract should apply.
Principles
Whether Itagres had proved the balance sum of RM731,000.00

owing by Mix Target for the labour and materials supplied
[18] Mix Target appointed Itagres to supply labour for the installation
of the Fire Fighting System Works. The appointment was contained in
the following documents:
a. Letter of Acceptance dated 13.10.2014 (see pages 1 to 6 of

CBOD 7);
b. Purchase Order dated 13.10.2014 (see pages 7 to 9 of CBOD

7).
Item 1: To supply labour to install sprinkler, Hose Reel and

Wet Riser System from Level 1 to Level 11 including
bracket, rod and paint - RM2,690,000.00;
Item 2: To supply labour and material including conduit and

cabling excluding equipment for fire alarm system, wet
chemical and clean agent – RM820,000.00
Less RM310,000.000
6
[Note: see Purchase Order dated 13.10.2014 at page 7 of CBOD 7]
[19] Itagres was appointed on 13.10.2014 and they started supplying

workers commencing 1.11.2014 (see page 18 of CBOD 8) until
31.3.2015, when Mix Target‟s appointment was terminated by Najcom.
As a result of this termination Itagres had to stop work and vacate the
site effective 31.3.2015.
[20] Itagres‟ total Progress Claims amounted to RM879,291.15. As at

31.3.2015 Mix Target had paid a sum of RM148,000.00 and so Itagres
said there is a balance amounting to RM731,000.00 for which they sued
Mix Target in this action consisting of the following particulars:
Progress Claim Progress Claim Progress Claim Amount
Date (RM)
Cummulative and after
adjustments for payment
already made
Progress Claim 1
(see page 93 & 94 31.10.2014 RM53,500.24
of CBOD 7)
Progress Claim 2
(see page 95 & 96 01.12.2014 RM104,813.55
of CBOD 7)
Progress Claim 3
(see page 97 & 98 05.01.2015 RM211,127.34
of CBOD 7)
Progress Claim 4
(see page 99 & 100 05.03.2015 RM478,117.10
of CBOD 7)
7
Progress Claim 5 RM731,291.15 (adjusted

(see page 93 & 94 after receipt of payment
30.03.2015
of CBOD 7) amounting to
RM148,000.00)
[21] Mix Target did not deny receiving the various Progress Claims as
can be seen in paragraph 2.1 of Mix Target‟s Statement of Defence.
Therefore Itagres had claimed against Mix Target for:
(a) Mix Target do pay Itagres the sum of RM731,000.00; and
(b) Mix Target do pay interest at the rate of 5% per annum on

RM731,000.00 from 22.9.2016 till full settlement.
[22] Mix Target‟s pleaded defence is that their obligation to pay is

based on what is certified by Najcom and since Najcom only certified
11% of Mix Target‟s claim, Itagres is correspondingly entitled to only
11% of its progressive claims, that is to say RM96,722.03; see para 2.9
of the statement of defence.
[23] As Itagres is not a party to the contract between Mix Target and
Najcom, and neither has Itagres agreed to the claims as may be
submitted by Mix Target and as may be approved by Najcom, this Claim
has to be decided based on the terms of payment agreed between Itagres
and Mix Target as provided in the Purchase Order dated 13.10.2014
which reads as follows:
“Term & Condition
1. …
2. …
3. Bayaran: By progress (45 days-60 days)
4. …”
8
[24] I agree with learned counsel for Itagres that this contention is
untenable. There is no term of payment that states that the payment is
conditional upon the certification of Mix Target‟s claim by Najcom.
Mix Target therefore cannot argue that it was the intention of the parties
that the payment to Itagres is made conditional upon certification of Mix
Target‟s Claim by Najcom. I agree with Itagres that if this was the
intention, the provision in the Purchase Order would not have provided
that payment is made progressively within 45 to 60 days.
[25] The evidence showed that Mix Target made payment irrespective
of Najcom‟s certification of Mix Target‟s work. Learned counsel for
Itagres summarized the following evidence to establish that Itagres‟
payment is not subject to Mix Target‟s claim being certified by UNJV or
Najcom and that Mix Target intended it to be so as follows:
a. Itagres made the first claim on 31.10.2014 for RM53,500.24.

Mix Target then made its claim to Najcom on 30.11.2014
encompassing Itagres‟ claim (see page 216 of CBOD 1).
Najcom claimed from UNJV thereafter. UNJV certified the
claim on 1.12.2014 (COP 7 at page 16 and 17 of CBOD 4).
NOTE: If Itagres‟ payment is only due after Mix Target‟s claim is

certified then it should mean that Itagres would only get paid after
Mix Target‟s claim is certified, that is after 1.12.2014. This was
not the case.
i. First, Mix Target certified Itagres‟ first claim on

14.11.2014 without waiting for Najcom or UNJV‟s
certification (see Mix Target‟s certification of the 1 st
claim at page 598 of CBOD 2). UNJV only certified
Mix Target‟s claim on 1.12.2014;
ii. Secondly, if UNJV certification of Mix Target‟s claim

is considered it would be obvious that only
9
RM84,812.00 out of RM911,060.00 was certified (see

Certificate of Payment 7 at page 16 and 17 of CBOD
4). This would be equivalent to 10% of the claim. If
Itagres‟ entitlement to payment is based on Najcom‟s
certification of Mix Target‟s claim, then how is it
possible for Mix Target to approve Itagres‟ claim
amounting to RM48,000.00 out of RM53,500.24 (a
percentage approval of 90%)?;
b. Itagres made its third claim after the second claim went
unpaid. The third claim was dated 5.1.2015 (see page 97 and
98 of CBOB 7). The value of the third cumulative claim
(including the 2 nd claim) is RM211,127.34. Mix Target
subsequently submitted their claim encompassing the 3 rd
claim in January 2015 (see page 547 of CBOD 2). Mix
Target‟s claim based on this claim is RM978,222.88.
Najcom claimed from UNJV thereafter. UNJV certified the
claim on 22.1.2015 (COP 7 at page 72 to 74 of CBOD 4).
NOTE: Based on UNJV‟s certification they certified a sum of

RM357,650.00 out of RM978,222.88. This would be 36% of the
claim. Following from this if Itagres‟ claim is subject to UNJV‟s
certification of Mix Target‟s claim then 36% of Itagres‟ claim
would be RM77,190.00 out of RM211,127.34. This is not the case.
i. First, Mix Target certified almost all of Itagres‟ 3 rd

claim amounting to RM209,876.50 (95%) (see page
597 of CBOD 2). If Itagres‟ claim is subject to UNJV
certification of Mix target‟s work then only 36% of
Itagres‟ claim should be certified, that is to the tune of
RM76,005.80. This was not the case.
ii. Secondly, Mix Target certified Itagres‟ 3 rd claim as

early as 2.2.2015 (this date is taken to be the date of
10
the payment voucher (see page 599 of CBOD 2) for

RM100,000.00 as this payment is reflected on the
certificate in page 597 of CBOD). The significance of
this date is that UNJV only certified Mix Target‟s
claim on 9.2.2015. If Itagres‟ entitlement to payment
is based on Najcom‟s certification of Mix Target‟s
claim, then how is it possible for Mix Target to
approve Itagres‟ claim even before UNJV had
approved Mix Target‟s claim?
[26] Learned counsel for Itagres submitted that the intention of the
parties is deduced from the words used in the written contract.
Construction of a document is an issue of law. Further, the object in the
construction of documents is to ascertain the true intentions of the
parties as manifested by the language they have employed in the
document and not by their subjective intentions. That is to say the
meaning accorded shall be based on the meaning of the words used and
not based on what the parties would want it to mean.
[27] Learned counsel for Itagres referred to the case of Hotel Anika Sdn
Bhd v. Majlis Daerah Kluang Utara [2006] 4 CLJ 981 at paras [20] to
[35] which provided a useful summary of the applicable principles in the
interpretation and construction of contracts and specifically at para [31]
& [32] as follows:
“[31] ... In The Royal Selangor Golf Club v. Anglo-Oriental

(Malaysia) Sdn Bhd [1990] 1 CLJ 995, Lim Beng Choon J
summarised the general principles as follows:
In considering the disputes of the parties I must first of all

bear in mind the general principles of construction of
contract as enunciated in the National Coal Board v. Wm
Neill & Son (St Helen) [1984] 1 All ER 555 where it is said
at p 560:
11
The first two issues involve the construction of the

contract. I bear in mind the principles of construing a
contract. The relevant ones for the purpose of this case
are: (1) construction of a contract is a question of law;
(2) where the contract is in writing the intention of
the parties must be found within the four walls of
the contractual documents; it is not legitimate to
have regard to extrinsic evidence (there is, of
course, no such evidence in this case); (3) a contract
must be construed as at the date it was made: it is
not legitimate to construe it in the light of what
happened years or even days later; (4) the contract
must be construed as a whole, and also, so far as
practicable, to give effect to every part of it.
In Central Bank of India v. Hartford Fire Insurance Co Ltd

AIR [1965] SC 1288, the Supreme Court of India lays stress
on the second principle advocated in the Wm Neill & Sons (St
Helens) Ltd case when it says at p 1290:
Now it is commonplace that it is the court‟s duty to

give effect to the bargain of the parties according to
their intention and when that bargain is in writing
the intention is to be looked for in the words used
unless they are such that one may suspect that they do
not convey the intention correctly. If those words are
clear, there is very little that the court has to do.
The court must give effect to the plain meaning of
the words however much it may dislike the result.
[32] But the two most important and comprehensive rules of

general application in construing a written instrument are: (i) that
it shall, if possible, be so interpreted ut res valeat potius quam
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pereat; and, (ii) that such a meaning shall be given to it as to

carry out and effectuate to the fullest extent the intention of
the parties. Put together, benigne faciendae sunt interpretationes
ut res magis valeat quam pereat, the rule is that a liberal
construction should be put upon written instruments, so as to
uphold them, if possible, and carry into effect the intention of
the parties. Every document ought to be construed, if possible,
so as to make it operative. It boils down to this. Where a
contract is couched in unambiguous language, the court must
give effect to it. But where the terms of a contract are
ambiguous then the court may imply a term in order to uphold
the transaction‟ (see Datuk Yap Pak Keong v. Sababumi at p 53,
per Gopal Sri Ram JCA).” (emphasis added)
[28] It would be fair to say that giving the words used its natural and
ordinary meaning, it is clear that Mix Target intended to pay and Itagres
expected to receive payment progressively and not subject to
certification of Mix Target‟s claim by Najcom/UNJV.
[29] This was further confirmed by the conduct of Mix Target issuing
certificates of payment and making payments even before
Najcom/UNJV issued their certifications.
[30] It is pertinent to note that during cross examination, PW1 Zainal

Abidin Bin Mamat, as the Managing Director of Mix Target, admitted
that Mix Target owes Itagres the sum as claimed in Progress Claim 1 to
Progress Claim 5 set out above.
[31] PW2 Ahmad Fitri Bin Zainal Abidin, the Project Director of Mix
Target, also admitted that the work stated in Progress Claim 1 to
Progress Claim 5 above were indeed completed by Itagres.
[32] This is a clear departure from Mix Target‟s Defence wherein they
had pleaded that there were repeated delays in the Works and that at the
13
point of termination Najcom had only certified 11% of what Mix Target
had claimed. Mix Target stated that they had only been paid
RM324,675.00 by Najcom as at the date of termination.
[33] As a defendant can at any time in a trial makes admission of a

plaintiffs claim, this Court had no difficulty accepting the admission of
Mix Target. However Mix Target was not prepared to have a consent
judgment or a judgment by admission recorded as they now said that
what they owed Itagres would be dependent on what is finally certified
and paid by Najcom.
[34] Itagres had submitted a claim for RM879,291.15 when in reality

they should only be entitled to about 11% of RM879,291.15 which is
RM96,722.03 if what Najcom contended is correct. Mix Target stated
that they had thus overpaid Itagres.
[35] If Mix Target was serious on the overpayment this was not
reflected at all in their Defence filed as there was no set-off or
Counterclaim pleaded together with the Defence.
[36] An admission is an admission and it cannot be a denial if Mix

Target should fail in their claim against Najcom or that a much lesser
claim is allowed. Mix Target cannot hope to strategically enhance their
claim against Najcom by admitting to Itagres‟ claim but then hinging it
on if they were to succeed against Najcom.
[37] Itagres had contracted with Mix Target not on the basis of what
would be certified, approved and paid by Najcom. If that was the basis
then it should be written into the contract between Itagres and Mix
Target. Itagres‟ contract was for a pure supply of labour save for some
supplies of conduits and cabling. There was no “pay when paid clause”
or a “back to back” payment from Najcom before Mix Target needed to
make payments to Itagres. At any rate it was not pleaded by Mix Target
as such. It was thus too late for the two father and son witnesses in PW
14
1 Encik Zainal Abidin Bin Mamat and PW 2 Encik Ahmad Fitri Bin
Zainal Abidin to say in Court that the obligation of Mix Target to pay
Itagres was after Mix Target has been paid.
[38] It would be different if the Works had been rejected by Najcom for
defects and as would be seen later in the Claim by Najcom against Mix
Target this Court had dismissed their claim for defective works as not
having been proved. Mix Target here had not pleaded that Itagres‟ Work
was defective or that they had incurred costs to rectify defective works.
[39] There is no set off or Counterclaim on any defective works that

needed rectification. This is in spite of Najcom having claimed in their
Counterclaim against Mix Target the costs of rectification works.
[40] The problem in the disparity in billing was because in Mix

Target‟s claim against Najcom there had been front loading which
Najcom did not agree. This is a risk which Mix Target had undertaken
but which Itagres had not for Itagres‟ contract is based on work done
based on materials supplied. Mix Target cannot hope to improve their
claim against Najcom by admitting to Itagres‟ claim against them.
[41] Be that as it may, this Court can accept the admission made by Mix
Target at the trial and enter judgment accordingly against Mix Target
for what was essentially not disputed except that Mix Target now said
that Itagres‟ claim is subject to Najcom‟s approval, certification and
payment.
[42] There is no express term on that and as for implied term, it is not
pleaded. Neither is it a Defence of or a Counterclaim for
misrepresentation, whether innocent, negligent or fraudulent that Mix
Target had pleaded against Itagres.
[43] Contemporaneous police report made by Mix Target after

termination by Najcom lends credence to the fact that Mix Target
15
admitted to owing Itagres the sum of RM731,000.00. The police report

made by Mix Target dated 7.5.2015 at page 592 of CBOD 2 reads as
follows:
“Setelah memasuki tapak berserta dengan pekerja-pekerja kami,

peralatan, mesin-mesin kerja, material dan barangan kerja dan
terus menjalankan kerja-kerja tersebut dengan penat lelah,
pihak kami telah mencapai progress kerja sebanyak
RM2,975,035.10....
Dengan tidak semena-menanya, pada dan sekitar 01/04/2015,

pihak saya telah ditamatkan kontrak oleh main contractor iaitu
Najcom Sdn Bhd melalui surat penamatan yang ditandatangani
oleh Mr.Eng Ean Bah secara paksa kononnya berdasarkan
prestasi kerja syarikat kami yang perlahan dan
ketidakmampuan pihak kami walhal pekerja-pekerja saya
dengan sepenuh tenaga dan usaha sentiasa menjalankan kerj a
di tapak dan walhal banyak „material‟ dan kos upah kerja yang
telah banyak dibelanjakan. Dengan penamatan kontrak tersebut,
pihak syarikat kami telah mengalami kerugian yang besar dan
saya sebagai majikan terpaksa menanggung beban kos
diantaranya: kos pembelian barangan melalui kad kredit CIMB
sebanyak RM106,319.28, kos tuntutan bagi upah kerja dari sub
kontraktor dibawah jagaan saya sebanyak RM1,047,232.04,
kos pengurusan dan pentadbiran ...” (emphasis added)
[44] To bind Itagres to the percentage of work as certified by the

consultants of UNJV would be to introduce terms into the contract
between Itagres and Mix Target which are not there and it would be
exposing Itagres to a risk that they did not assume in the contract to
provide labour to the Mix Target.
[45] With respect to evidence of their workers having done the work for
which Itagres had claimed, general worker‟s wage sheet and wage
16
payment voucher‟s were produced and they are in CBOD 8. In summary

Itagres supplied workers as follows:
a. In the month of October 2014 (15 th to 31 st ) Itagres supplied 6

workers;
b. In the month of November 2014 Itagres supplied 7 workers;
c. In the month of December 2014 Itagres supplied 9 workers;
d. In the month of January 2015 Itagres supplied 8 workers;
e. In the month of February 2015 Itagres supplied 21 workers;

and
f. In the month of March 2015 Itagres supplied 24 workers.
[46] The supply of workers was also corroborated by the site daily
report found in PBOD 1 and at pages 122 to 177 of CBOD 8 are found
the general workers wages sheet.
[47] It was confirmed by DW 7 that as at January 2015 80% of the

sprinkler system work was completed for Level 2. It was also confirmed
that Mix Target was requested to commence work at Level 3 and Level
4 and for this at the request of Mix Target, Najcom had arranged for
UNJV to purchase the required materials for and on behalf of Mix
Target.
[48] The materials for Level 3 and Level 4 were delivered on 5 th , 6 th and
7 th of February 2015 according to DW 8 Haja Najmudeen, the Managing
Director of Najcom (Q&A 23 of his Witness Statement). Najcom in their
letter dated 17.3.2015 (page 789 CBOD 3) had confirmed that the
materials supplied before the date of the letter had been used or
installed. Mr Kelvin Chew, the Managing Director of Itagres, testified
that all the materials delivered to site had been installed by them and
17
they were waiting for Mix Target to supply further materials for the
Works to be expedited.
[49] Based on the reasons given above, I had allowed judgment to be

entered by Itagres against Mix Target for the sum of RM731,000.00
together with interest at 5% per annum from the date of the Statement of
Claim to realization with costs of RM20,000.00 to be paid by Mix
Target to Itagres.
Whether Mix Target had proved the value of the Work done of
RM2,975,035.10
[50] The amount claimed by Mix Target against Najcom is for the
balance of RM2,269,072.68 after deducting RM324,675.00 being
payment received from Najcom.
[51] In the course of executing the Works Mix Target had submitted 6
Progress Claims and a Final Claim after termination for the cumulative
sum of RM2,269,072.68 which is about 30% of the Contract Sum. They
are tabulated below with the relevant pages in Mix Target‟s Core Bundle
(“CB”) as follows:
No. Date Amount claimed Refer
(RM)
1. 22.10.2014 219,830.00 1 – 65 CB-1
2. 19.11.2014 911,060.00 66 – 135 CB-1
3. 04.12.2014 928,297.88 136 – 198 CB-1

4. 04.12.2014 978,222.88 199 – 262 CB-1
5. 22.01.2015 1,222,240.00 263 – 318 CB-2
6. 23.02.2015 1,964,441.80 319 – 367 CB-2
7. 26.03.2015 2,269,072.68 368 – 425 CB-2
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[52] Between Najcom and the Employer the following are the relevant
Certificates of Payment:
No. Certificate Dated Bundle Page
No.
1. 7 01-12-2014 CBOD4 14 & 17
2. 8 31-12-2014 CBOD4 37 & 39

3. 9 22-01-2015 CBOD4 48 & 50
4. 11 19-03-2015 CBOD5 1 ~2
5. 12 16-04-2015 CBOD5 5&8
6. 13 08-05-2015 CBOD5 10~12

7. 14 26-05-2015 CBOD5 17~18
[53] Najcom‟s evidence was that they relied and indeed are bound by
the Certificates of Payment issued by the Employer and that Mix Target
was aware that payments to them would be based on those Certificates
issued for finally the Fire Fighting System Works must be assessed,
verified and accepted by the Main Contractor and the Employer as stated
in the LoA with Mix Target.
[54] It is against that backdrop that I would not place so much emphasis
on the fact that Mix Target‟s Progress Claims were not rejected by
Najcom but rather that Mix Target knew for a fact that whatever may be
the amount claimed under their Progress Claims must be certified by the
Main Contractor and Employer.
[55] That explains why there was no written complaint from Mix
Target if indeed they were waiting for Najcom‟s certification that did
not come or that they were paid less than the amounts claimed. Najcom
themselves admitted that they did not have any consultants to certify the
19
progress of the Works done but rather relied on and are bound by the
certification done by the independent consultants engaged by the
Employer and DW 6 and DW 7 were part of the consultants team that
were subpoenaed by Najcom to come to Court and give evidence.
[56] Najcom disagreed with the amount claimed. Take for example
Progress Claim No.1 dated 22.10.2014 wherein Mix Target had claimed
RM219,830.00 as at 22.10.2014 for the Sprinkler System done for Level
2.
[57] The Senior Project Manager in DW 2 said the Defendant did not
accept this sum claimed but rather is bound by the Certification done by
the consultant of the Main Contractor that only certified the Works done
by Mix Target as at end of 30.10.2014 for RM49,812.00 in Payment
Certificate No.6.
[58] As the Subcontract for the Firefighting System Works between

UNJV and Najcom is for the same sum of RM9.9 million under a Fixed
Lump Sum Contract and the entire Works is subcontracted by Najcom to
Mix Target, there is a basis for comparison of the billing and the
assessment, verification and certification. Under the LoA Mix Target is
required to execute and complete the Works to enable Najcom to
discharge their obligation under their contract with the Main
Contractor. Mix Target is also deemed to have knowledge of the terms
of the Main Contract between Najcom and UNJV. Further Mix Target is
to follow, execute and comply with all the terms in the Main Contract
with respect to Najcom‟s Works in the Fire Fighting System.
[59] According to DW 2, Mix Target had accepted the Certification of

the UNJV‟s Consultant and had asked for financial assistance from
Najcom by making advance payment to them. This Najcom did by
making payment of RM105,400.00 to Mix Target which represented an
over payment of RM55,588.00.
20
[60] As for Progress Claim No. 2 dated 19.11.2014 a sum of

RM911,060.00 was claimed and this corresponded with Payment
Certificate No.7 certifying RM35,000.00 and materials at site of
RM88,390.00 as at 30.11.2014.
[61] Then Progress Claim No. 3 and No. 4 were made on the same day
of 4.12.2014 for RM 928,297.88 and RM 978,222.88 respectively which
Najcom said were wild Claims as the Main Contractor only certified
RM100,000.00.
[62] Then there were Progress Claims No.5,6 and 7 for

RM1,222,240.00, RM1,964,441.80 and RM 2,269,072.68 respectively;
the last Progress Claim in Claim No.7 being the cumulative claim after
termination. The final claim after the termination and joint inspection
signed off by the M&E Consultants of the Employer, the Main
Contractor and Najcom is RM442,275.00 for which Mix Target refused
to sign off.
[63] Certificate of Payment No. 12 Tab 17 CBOD 5, page 8 is the

certification for the period ending March 2015 and at page 12
(Certificate of Payment No. 13 Tab 18 is certification for the period
ending April 2015).
[64] The breakdown reflects that work done for the said Fire Protection
System Works as at 15.3.2015 and 15.4.2015 were respectively valued
by the consultants at RM442,275.00 showing no progress of work after
the date of termination and the value of work remained the same
consecutively for 2 months.
[65] Under cross-examination both DW 6 Ir Chew Hoong Yew from the

Employer‟s Consultant and DW 7 Ir Zulkifli Abu Bakar the Resident
Engineer maintained the certification to be correct and final. This Court
did not detect any patent or grave error to justify intervention or setting
aside the Certifications by the Employer‟s consultants.
21
[66] It can be clearly seen that to justify the sum claimed, Mix Target
had unilaterally revised upward by some three times certain items in a
clear heavy front loading in their rationalizing of rates after the initial
rationalization had been agreed. That cannot be justified and more so
when Mix Target knew or at least were deemed to have known the rates
between Najcom and the Main Contractor as the Fixed Lump Sum is the
same and Najcom has subcontracted the whole of the Works to Mix
Target.
[67] Mix Target said their Claims were supported by among others
shop drawings wherein the area which the work has been completed is
highlighted in yellow (Refer page 437-442 CB-2). Mix-Target had
reduced values for items which they are not claiming and increased the
value for items which they are claiming (highlight in yellow at sidebar)
as seen in Tab T in the further submission of Najcom.
[68] After Progress Claim No. 1-4 Mix Target had from Progress Claim
No.5-7 submitted their claim based on their unilateral increase in the
BQ in the items claimed without the consent of Najcom. See Tab T in the
Further Submission of Najcom.
[69] The understanding of rationalization and the need for it in a Fixed

Lump Sum Contract of this nature was explained by DW 6 Ir Chew
Hoong Yew, the Consultant Engineer of the Employer, who was a
subpoenaed witness, as follows to a question from the Court:
“YA : What do you understand by rationalised here?
CHEW : What we do is because when you award the

contract what they come up with BQ is usually
maybe they awarded at 9.9 million, maybe they
came in at 11 million. So you‟ve got to make the
figures spec down to 9.9. At the same time also
you check and make sure it‟s not really front
22
loaded. Front loaded means, let‟s say the

contract is 9 million, you start work by doing
piping, at the end only you do the pumps. So
maybe the pumps are of high value. So instead
of putting the true value for the pumps, you
know that you‟re going to do the pipes first
you put the high value on the pipes so then
when you do the work you claim actually more
than what is worth. So normally what we do is
just to adjust it, make sure that that doesn‟t
happen as well.‟‟ (emphasis added) (page 1615,
Jilid 7 of the Notes of Evidence)
[70] Learned counsel for Mix Target offered the explanation that the
front loading/adjustment was due to the re-engineering, namely the
change of design from 2 parallel pipes into 1 single pipe (Main Item A,
Sub-Item M and Sub-Item O).
[71] However as highlighted by Najcom the explanation by Mix Target

ought to be rejected as can be seen clearly from the summary (Tab T),
such front loading exercise was done by Mix Target across the whole
BQ and adjustment was not merely done on Main Item A, Sub-Item M
and Sub- Item O.
[72] As can be seen some items were increased by 2 or 3 times. I agree

that Mix Target should not make a double claim for a single item, as the
common and logical sense dictates that the changing from 2 parallel
pipes into 1 single pipe naturally reduced the quantities of pipes to be
installed followed by the reduced quantities of the fittings as well as
manpower.
[73] I agree with Najcom that Mix Target had not raised any objection
to Certificates issued by the consultants of the Employer throughout the
23
Works and that they only raised the objection after the termination and
when they refused to sign off the joint Valuation.
[74] I agree with learned counsel for Najcom that in the particular
matrix of this case in the chain of contracts, the parties ought to and
shall apply the BQ that was rationalized and approved by the Employer
which summary of the value of the rationalized BQ is also provided in
Tab T of Najcom‟s Further Submissions. Otherwise there would
definitely be diverging differences that would not be reconcilable as the
Works claimed to be completed by Mix Target would not be the Works
as verified and certified by the Employer with the consequence that the
Main Contractor and subsequently Najcom would be paid based on such
a certification.
[75] It must also be noted that for Progress Claims No.2, 3 and 4 at
pages 217, 287 and 349 respectively of CBOD 1 Mix Target had
included an amount for total material claimed at site for respectively the
amount of RM664,320.00, RM670,117.88 and RM670,177.88. Hence,
their total alleged material claim had been alleged as RM670,188.88.
[76] However, Mix Target had failed to prove or show any

documentary evidence that they had purchased materials for the sum of
RM670,188.00. They further said that they purchased materials in the
sum of RM780,080.00 throughout the Works to carry out the
subcontract work (Refer page 443 - 472 CB-2).
[77] Mix Target was reluctant to show the invoices indicating their
costs in purchasing these materials on ground that by disclosing them
their profit margin would have been known to Najcom.
[78] In any event the contract between Najcom and Mix Target is a
fixed lump contract of RM9.9 million to carry out the construction,
completion, testing and commissioning of the Fire Fighting System
wherein Mix Target are to supply tools, equipment, materials and
24
labours for the performance of the same. There is no place to claim the
costs of materials for Works not done yet with respect to the materials
bought and delivered to site.
[79] In Lembaga Pembangunan Industri Pembinaan Malaysia v .

Konsortium JGC Corp &, Ors [2015] 6 MLJ 612 the Federal Court held
as follows at page 626:
“[50] Generally, under a lump sum contract a lump sum contract

price is agreed upon by parties before the works begin. In a lump
sum construction contract it is a single whole construction
contract as opposed to a divisible contract. The Major Law
Lexicon (by P Ramanatha Aiyar) (4 th Ed) Vol 4 defines a lump sum
contract as a type of contract under which the contractor agrees to
undertake and complete constructional works for a given price,
and if costs exceed price, the loss is borne out by the
contractor. If the extra work carried out is with the principal‟s
approval (subject to any extra conditions) that extra cost may be
recoverable (Sharpe v. San Paulo Railway Company [1873] LR 8
Ch App 597; Coker v. Young [1860] 2F & F98).
[51] When discussing the issue of extra payments, Keating on

Construction Contracts (9 th Ed) at p 105 wrote:
A lump-sum contract is a contract to complete a whole work

for a lump sum e.g. to build a house for [a3]60,000. If the
house is completed in every detail required by the contract
the contractor is entitled to [a3]60,000. And if extra work
was carried out it may be able to recover further
payment.”(emphasis added)
[80] In Airsquare Sdn Bhd v. Eng Keat Seng and another appeal [2013]
5 MLJ 526, the Court of Appeal held as follows at page 530:
25
“[6] ... A lump sum contract has been defined to be a contract

whereby the employer becomes liable to pay the contractor a fixed
sum, irrespective of the contractor‟s as-built costs.” (emphasis
added)
[81] Therefore all the cost involved specifically the material costs have
been included in the BQ and as such Mix Target cannot make a separate
claim on the materials in the Progress Claims against Najcom. PW 1
Encik Zainal Abidin Bin Mamat who is the Managing Director of Mix
Target admitted this under cross-examination though not without some
reluctance.
[82] I further agree with learned counsel for Najcom that the
consultants when doing the inspection had inspected the work done by
Mix Target which included the material and fittings that have been
installed. The consultants of the Employer value such work into
percentage and subsequently convert the percentage into monetary
value against the rationalised BQ. There is thus no justification for
including costs of materials into the Progress Claims.
[83] For the sake of argument and assuming that there is a basis for
factoring in the price of materials to gauge the percentage of the Works
done, I do not accept that confidentiality as a good reason for not
disclosing for how else is the Court to determine if the amount is
reasonable. In claiming for loss of profit which generally is an available
remedy to a contractor like Mix Target in the event of a wrongful
termination the contractor would still have to disclose his costs and
profit margin.
[84] In CBOD 2, pages 592-596 Tab 9 is a police report lodged by PW

1 on 7.5.2015 at page 593, PW 1 in his report at paragraph 2, line 8
alleged that “kos pembelian barangan melalui kad kredit CIMB Bank
sebanyak RM106,319.28”.
26
[85] With respect, this amount in the police report is clearly in stark
contradiction of the material claim for RM670,177.88 as earlier
contended. Further, PW 1 had failed to produce any bank statement to
show or support his allegation that Mix Target had spent RM106,319.28
for the purchase of such material using credit card.
[86] Mix Target admitted that they had requested Najcom to purchase
materials on their behalf to the sum of RM653,086.40 whereby as at
31.3.2015, RM404,054.35 had already been delivered on site. (Refer
page 473 CB-2). Altogether, Mix Target said the materials purchased to
carry out the work as at the date of termination is RM 1,184,134.30.
Najcom through their Managing Director DW 8 said the sum advanced
on Mix Target‟s behalf for the purchase of materials on 26.1.2015 was
RM694,614.11.
[87] As at the date of termination, Najcom had paid Mix Target a total
sum of RM324,675.00, details of which are as follows:
No. Date Amount
1. 26.11.2014 RM100,000.00
2. 18.12.2014 RM20,860.55
3. 26.1.2015 RM150,354.45
4. 26.2.2015 RM53,460.00
Total RM324,675.00
[88] Both Mix Target and Najcom have accepted in practice that the
Mechanical and Electrical Consultant, Mesra Associates Sdn Bhd, shall
perform the monthly inspection of Mix Target‟s Works which is part of
the Mechanical Works component of the Project. The consultants
27
employed by the Employer, namely Quantity Surveyor (Ir. Chew Hong

Yew DW 6 from Mesra Associates Sdn Bhd) and Resident Engineer (Ir.
Zulkefli Abu Bakar DW 7) were subpoenaed and they came to Court to
give evidence. The evidence given is that every month the consultants
from the Employer would have a joint inspection together with all the
relevant parties namely representatives from Najcom and Mix Target for
the purpose of monthly certification. Mix Target did not raise any
objection against valuation done by the consultants from the Employer
until to-date as seen in the evidence of DW-8 (Jilid 8, page 1877 of the
Notes of Evidence).
[89] Learned counsel for Mix Target referred this Court to the case of
ISO Technic Electrical Sdn Bhd v. Calibre M&E Sdn Bhd [2017] 1 LNS
212 where it was observed as follows:
“[22] What can be seen is that the Defendant would not make the
full payment on each Progress Claim received but instead would
pay a reduced amount.
[23] There is no mechanism in the Letter of Award that the

Progress Claim must be certified by the Defendant or an
independent Consultant before the payment may be made. It is
not then for the Defendant to say that they had not certified
the Progress Claims and as such the amount claimed is open to
dispute. Learned counsel for the Plaintiff referred to Homewest
Sdn Bhd v. Vision Returns Sdn Bhd [2016] 5 CLJ 922; [2015] 11
MLJ 327 which is relevant to the issue of non-certification when
certification is not a term of the contract. As summarized in the
headnotes:
“(7) It was not disputed that the defendant and the architect
had received progress claims No. 6-7 and the architect had
not certified them. The architect's evidence in not approving
the claims was that there were no consultant reports to
28
support the claims. This was an internal arrangement

between the architect, the defendant and the consultants.
The plaintiff had complied with the requirements of cl 3.6 in
submitting progress claims No. 6-7 to the defendant and
architect. Non-certification by the architect was not fatal to
the plaintiffs claim (see paras 23 & 26).” (emphasis added)
[24] The Plaintiff had every expectation that as there was no

objection, query, protest or dispute raised on the Progress
Claims, it will be a case where the Progress Claims will
eventually be paid by the Defendant. The Plaintiff would
reasonably have thought that this is one of those cases where delay
in payment is not unusual because of the delay in the Defendant
being paid by the Employer In fact that was the understanding
given by PW-3, the Plaintiffs Managing Director, Mr Wong Keh
Voon. He explained it thus in his Answer to Question 18 of his
Witness Statement marked PW-3 - WS:
18. Q: Did you ever question the Defendant as to why the

Defendant is not making payment as claimed by you in the
Progress Claim?
A: I have been an electrical contractor for many years; in my

experience it is normal for the Main Contractor in this case
the Defendant to make partial payment. This may be because
the Main Contractor has yet to receive payment from the
Owner or that the Main Contractor apportions the payment
that he has received from the Owner to all the subcontractors
of which the Plaintiff is one of them.”
[25] The Plaintiff had every reason to believe that if there

were any defects in its Works or any difference in the scope
and value of the Works completed, the Defendant would be the
first to raise this in writing and to explain why they had paid a
29
lesser amount than the respective Progress Claims. The fact is

there is not a single contemporaneous objection, query or
protest in writing throughout the period of the Progress
Claims. That being the case, the Plaintiff is entitled to rely on
the fact that the Progress Claims have been accepted as partial
payments were made towards each Progress Claim. Under the
current circumstance the Defendant is estopped from disputing the
amounts claimed under the 24 Progress Claims unless there is
evidence to the contrary of works not completed by the Plaintiff
which if proved, may be deducted from the Plaintiff's claim.”
(emphasis added)
[90] The factual matrix in the above case is different from the present
case. In the present case there was a monthly valuation done by UNJV‟s
consultants in DW 6 and the Resident Engineer DW 7 from the
Employer together with the representatives of Najcom and Mix Target.
[91] Whilst in ISO Technic’s case (supra) no one from the Employer
MRCB was called to give evidence and to confirm the actual value of the
Works done, here the consultants from UNJV the Employer in DW 6 and
the Resident Engineer DW 7 from the Employer were subpoenaed by
Najcom and they came to Court to testify on their valuation of the Works
done.
[92] Mix Target themselves said there was conspiracy between Najcom
and the consultants engaged by the Employer but I find no evidence of
that. Mix Target also said that they had engaged a third party consultant
to do the verification of the Works done for which they paid
RM32,400.00 as can be seen in the witness statement of PW 1 I. Q&A 20
at item G.
[93] One would have thought that Mix Target would have called the
said consultant to testify in Court on their own independent valuation of
the Works done. For reasons best known to Mix Target the said third
30
party Consultant was not called and so their Progress Claims remained
self- serving Documents bereft of an independent corroboration. See the
cases of Arensi-Marley (M) Sdn Bhd v. Middy Industries Sdn Bhd and
others [2009] MLJU 667 and Vee Seng Development Sdn Bhd and others
v. Datuk Seri Panglima Mohd Sari bin Datuk HK. Nuar [2005] MLJU
454 where Courts would not be inclined to place much probative value
on self- serving documents unless independently corroborated.
[94] Learned counsel for Najcom also referred to the case of Liew Soo
Hoi & Anor v. Waja Resort Sdn Bhd & Ors [2014] 2 MLRH 37 where it
was held as follows in the headnotes:
“(3) Despite disputing the actual contract price, the defendants

did not appoint their own Quantity Surveyor to challenge
the Quantity Surveyor‟s valuation of the plaintiffs‟ works.
Accordingly, in determining the actual contract price of the
project, the Quantity Surveyor‟s valuation report on the total
value of the plaintiffs‟ works was the best available
evidence. The said report was consistent with the
contemporaneous documents before the court, and
undisputedly supported the plaintiffs‟ claim of the
defendants‟ indebtness to the plaintiffs for the outstanding
sum claimed. Therefore, the valuation report and
documentary evidence adduced before the court rendered
sufficient corroborative testimony to the plaintiffs‟ claim
for works done pursuant to the contract, (paras 22 & 25)
(emphasis added)
[95] For a variance of RM 2 million one would not have spent

RM32,400.00 only without calling the consultant to testify in support of
one‟s claim and I find merits in Najcom‟s argument that this Court
should invoke an adverse inference under section 114(g) of the
Evidence Act 1950 which provides that the court may presume that
31
evidence which could be and is not produced would, if produced, be

unfavorable to the person who withholds it.
[96] I agree with learned counsel for Najcom that between the evidence
of Najcom corroborated by the independent testimony of DW 6 and DW
7 from the Employer and that of Mix Target which evidence of PW 1 was
based on the Progress Claims prepared by his son PW 2, I would be
inclined to believe the evidence of Najcom for the following reasons:
(a) the consultant are independent and impartial from Najcom

and Mix Target;
(b) Mix Target agreed and accepted the involvement of the

consultant from the Employer to do evaluation where Mix
Target did not protest nor raise objection against the
monthly evaluation done by the consultant from the
Employer;
(c) Mix Target did not request for a third party consultant to do
the evaluation of work, although Mix Target was dissatisfied
with the evaluation done by the consultant from the
Employer;
(d) Mix Target also did not request for re-evaluation or re-joint
inspection to be carried out, although Mix Target was
dissatisfied with the evaluation done by the consultant from
the Employer.
[97] The joint inspection was done by the Resident Engineer of the
Employer Ir Zulkifli DW 7 and assisted by Norazlan DW 3 from Najcom
and in the presence of PW 2 Encik Ahmad Fitri. He was a subpoenaed
witness and his evidence was as follows:
JSC Jadi masa inspection dibuat, ianya dibuat

bersama dengan tadi pihak-pihak yang
32
dimaklumkan, Azlan dan projek manager,

adakah ianya semua jalan bersama untuk check
inspection atau macam mana?
ZULKIFLI Jalan bersama.
JSC Jalan bersama, tingkat secara tingkat?
ZULKIFLI Ya.
YA Apa yang berjalan bersama?
JSC Maksud saya ialah En Zul dengan projek

manager daripada Mix Target dan Azlan jalan
bersama buat inspection.
ZULKIFLI Join the inspection
JSC Jadi semua jalan bersama tingkat secara

bertingkat.
ZULKIFLI Betul.
JSC Ok, untuk buat inspection. Jadi hanya buat

inspection pada Level 1, 3 dan 4 sahaja?
ZULKIFLI Ya
JSC Yang lain tak ada buat sebab tak ada kerja
dipasangkan?
ZULKIFLI Betul.
YA 1, 3 dan 4?
JSC Yes.
33
YA Yang lain tak ada kerja buat, jadi tak payah

inspect?
ZULKIFLI Yes, betul.
JSC Kalau yang lain ada mechanical coupling,

kenapa hanya peratusannya ada yang kurang
macam 10%, 20%. Kalau mechanical coupling,
berapakah peratusannya sepatutnya dicapai?
ZULKIFLI Hanya 2% sahaja, 1 or 2% saja.
JSC Maksudnya?
ZULKIFLI Peratusannya terlalu kecil.
JSC Terlalu kecil. So kalau dia sudah buat dengan

mechanical coupling, berapakah peratus akan
dicapai?
ZULKIFLI Maksud you untuk tingkat mana?
JSC Ok, kita rujuk kepada muka surat sama, 1012 ok.
YA 1012.
JSC Yes, you are seeing one of the nota there, ok. Di
sini ok, katakan lah kalau... 1012. Ok katakan
L-4 kalau dia buat dengan mechanical coupling,
berapakah percentage yang akan capai?
ZULKIFLI Mungkin boleh tambah dalam 2% sahaja.
JSC Boleh tambah dalam 2% sahaja. So total akan

menjadi 22%, atau maksudnya macam mana?
ZULKIFLI Ya
34
JSC Menjadi 22%?
ZULKIFLI Kita boleh bagi tambahan untuk 2% saja, from

the piping yang kita pasang.
JSC So macam mana boleh capai 100%?
ZULKIFLI Banyak lagi yang perlu pasang. Branch paip,

main branch, you ada upright, you ada pendant,
you ada sprinkler head.
(Jilid 8, page 1705~1706 of the Notes of Evidence)
[98] There was also another subpoenaed witness, Khaw Kok Aun from
Kejuruteraan Union Fire Langkasi Sdn Bhd (DW-1) who was the rescue
contractor engaged by Najcom to take over from where Mix Target had
stopped when they were terminated. He had also given evidence on the
percentage of the Work that is similar to those evaluated by the
consultants from the Employer despite the fact that DW 1 had never seen
the results of the joint inspection report.
[99] Whilst Mix Target may refuse to sign on the statement of final
accounts showing their objection to it, they must indicate which part of
the measurement of the Works done they did not agree or that their own
consultant would do a valuation for them seeing that they did not trust
the consultants of the Employer.
[100] There is of course the danger of an inference argument from Mix

Target that based on the value of materials delivered to site the
valuation of the Works done is not reasonable. To begin with the price of
material has no bearing on the percentage of the Works certified as
having been done. It is the agreed BQ rates that is used for the
assessment of the value of the certified Works done.
35
[101] How then is the Court to determine the amount of the Works done
and to justify payment?
[102] We have Najcom‟s own document at page 1033 CBOD 3 wherein

Najcom had acknowledged that the Total Material used to generate
Progress Claims is RM404,054.35 based on the BQ rates as approved.
Though not dated it is in all probability prepared after the termination
for it is entitled Final Accounts.
[103] There is evidence to show that the labour portion expanded is

about 25% of the costs of material as can be seen from Certificate No. 12
at Tab 17 of Najcom‟s Core Bundle in item 13. So 25% of
RM404,054.35 at pg 1033 CBOD 3 = RM101,013.58.
[104] I would state that this is a reasonable amount for the work done
between February 2015 and 31.3.2015 which is the termination date. I
say this because the Certification at end of February 2015 in Certificate
No. 11 at Tab 13 Najcom Core Bundle showed an amount of
RM442,275.00. The Certification at end of March 2015 in Certificate
No. 12 at Tab 17 CBOD 5 showed the amount to be the same which is
RM442,275.00.
[105] However there is some evidence of work done in March 2015 when
Najcom had confirmed in their letter dated 14.3.2015 (Refer page 532-
533 of CB-2) that installation of pipes was carried out at Level 3 and 4
in March 2015 and the same was also confirmed by UNJV personnel in
the site daily reports from early March to the 30 th of the same month.
(Refer page 553- 578 of CB-2). This figure remained constant in
Certificate No. 13 for period ending April 2015 Tab 18 Najcom Core
Bundle for the same sum; termination was on 31.3.2015.
[106] The Certificate after Termination i.e. Certificate No.14 for period
ending May 2015 showed however a different sum of RM1,029,446.95
which cannot be attributed to Mix Target because they had already been
36
terminated and a new rescue contractor had been engaged to do the

balance of the Works. There is credible evidence in the Tax Invoices
exhibited by the rescue contractor in DBOD 1 and DBOD 2 in respect of
materials purchased by them between 21.4.2015 and 21.5.2018. It is
consistent with the evidence of DW 2 Mr Khaw of the rescue contractor
that prior to the execution of the Letter of Award on 22.5.2015 which is
for the purpose of formalization, the rescue contractor had purchased
materials as well as had incurred costs of mobilization of labour
amounting to a total sum of RM1,039,211.36 (inclusive of GST).
[107] I am prepared to accept that the amount certified as RM442,275.00

had not taken into account the materials delivered to site on 5.2.2015
and 7.2.2015 and for which UNJV had paid directly to Mix Target for
Mix Target to pay the suppliers. This Court must then allow the
reasonable sum of RM101,013.58 as assessed above as the additional
value of work done just before termination for the month of February
and March 2015.
[108] Therefore the sum of RM442,275.00 should be added to

RM101,013.58 = RM543,288.58.
[109] Both Mix Target and Najcom agreed at para 6 of Mix Target‟s
Statement of Claim the sum of RM324,675.00 had been paid so far by
Najcom to Mix Target.
[110] Therefore the balance that Mix Target can claim is RM218,613.58
and I allowed judgment to be entered for this sum. Interest shall be 5%
per annum from date of Statement of Claim till realization.
Whether the termination of Mix Target by Najcom was valid and

lawful in the circumstances of the case
37
[111] I agree with Najcom that throughout the execution of the Works by
Mix Target, Najcom had sent several reminder letters to Mix Target
raising numerous issues of breaches of the LoA as follows:
(a) in failing to commence jointing of sprinkler pipes;
(b) inability to follow instructions and specifications;
(c) progress of work that has dwindled considerably;
(d) outstanding items, workers either idle or absent on site;
(e) warning to submit catch up schedule and determination of

their contract;
(f) failure to submit contractual deliverable; and
(g) lackadaisical attitude.
[112] These letters were all acknowledged received by Mix Target‟s site
engineer known as Mohd Faizal and are listed below as follows:
No. Letter Dated Bundle Page
1. 12-12-2014 CBOD 3 726
2. 16-12-2014 CBOD 3 727
3. 17-12-2014 CBOD 3 728
4. 24-12-2014 CBOD 3 731
5. 30-12-2014 CBOD 3 732
6. 02-01-2015 CBOD 3 733
[113] These various letters of reminders of breaches of the LoA

culminated in the agreement between Mix Target and Najcom in
Appendix 1 (CBOD 3, pages 738- 740) in the letter of 16.1.2015 issued
by Najcom and signed by PW 2 Encik Ahmad Fitri as the Project
Manager for Mix Target, acknowledging Mix Target‟s acceptance of the
38
terms. The Plaintiff‟s witness, Zainal Abidin Bin Mamat (PW-1) agreed
with the letter in the form of an Undertaking, and had admitted during
cross-examination that Najcom would have the right to terminate the
contract if Mix Target should fall behind the time deadline set.
[114] The salient terms of this agreement are as follows:
“Item 4 – Mix-Target was required to have full-time qualified

and competent representative on site.
Item 5 – Mix-Target was instructed to expedite the work

progress in level 3, scheduled completion by 15 th
February 2015 and level 4, scheduled completion by
30 th February 2015
Item 6 – Mix-Target is required to complete the wet riser

system by 30 th February 2015 as defined in the clause
(protection to the building during construction period)
Item 7 – Subject to Item 5 and 6, in the event that the actual

rate of progress has fallen behind or does not meet
the set target, Najcom will without further notice,
move to inter-alia Terminate Mix-Target;...”
(emphasis added)
[115] Subsequent to this agreement between parties, numerous

reminders and warnings were issued from 19.1.2015 to Mix-Target prior
to the termination on 31.3.2015. As submitted by learned counsel for
Najcom these reminders and warnings were concerning several work
issues such as:
(a) submission of work schedule, material approval, delivery

schedule and method statement;
39
(b) no activity at site, site engineer (Encik Faizal) was absent at

site;
(c) delay in progress of work;
(d) manpower shortage;
(e) reminders that it was prestigious hospital project to serve the

public in general despite financial assistance and payments
more than the certified amount, Mix Target had failed to
deliver in accordance to the terms of Appendix 1;
(f) failure to submit work plan;
(g) failure to complete work according to last target completion

date despite extension of time granted to Mix Target; and
(h) failure to achieve Mix Target‟s own work‟s plan submitted

to Najcom and failure to make sure the delivery of all
materials paid on behalf by the said Contractor.
[116] As pointed out by Najcom, after the agreement between parties,

and prior to the termination letter issued on 31.3.2015, there were
numerous letters and reminders all of which are acknowledged received
by Mix Target‟s site engineer (Mohd Faizal) which are as listed below:
No. Letter Dated Bundle Page
1. 19-01-2015 CBOD3 745
2. 22-01-2015 CBOD3 754
3. 26-01-2015 CBOD3 755
4 28-01-2015 CBOD3 756
5. 30-01-2015 CBOD3 757
6. 31-01-2015 CBOD3 759
7. 09-02-2015 CBOD3 771
40
8. 10-02-2015 CBOD3 772

9. 12-02-2015 CBOD3 773
10. 14-02-2015 CBOD3 774
11. 25-02-2015 CBOD3 775
12. 27-02-2015 CBOD3 776
13. 06-03-2015 CBOD3 777~778
14. 11-03-2015 CBOD3 782~783
15. 12-03-2015 CBOD3 784
16. 14-03-2015 CBOD3 785~786
17. 16-03-2015 CBOD3 787~788
18. 17-03-2015 CBOD3 789~790
19. 19-03-2015 CBOD3 791~792
[117] Amongst the litany of complaints by Najcom as compiled by their

learned counsel were that Mix Target‟s works were executed
unsatisfactorily, poor site management was noticed, slow progress
and/or no site activities, failure to take instructions to observe and
comply with the contract requirements, no materials at the site including
failure to ensure the materials that have been paid by Najcom and UNJV
on their behalf were delivered in a timely and orderly manner and had
also failed, neglected and/or refuse to observe and comply with their
own work schedule as reflected in their letter dated 7.3.2015 (Pages 779
to 781).
[118] In the Bill of Quantities at page 42 Mix Target had clearly under
(Item B) promised that they would provide “Acceleration of works for
Wet Riser system installation and commissioning works including
tanks, pump sets, electrical works, pipe works, landing valves, hoses,
etc. in order for system to be active and provide protection to the
building during construction period as required by the Uniform
Building By Law required.” (emphasis added).
41
[119] By laws 52 and 232 of the Uniform Building By Laws 1984 state
as follows:
By law 52: In buildings which are designed to exceed 18.3

metres in height to the top most full floor, rising
mains in accordance with by-law 232 shall be
installed as soon as the building exceeds that
height to provide firefighting facilities during
the various stages of construction.
By law 232(1): Where either wet or dry riser system is required,

at least one riser shall be installed when the
building under construction has reached a height
of above the level of the fire brigade pumping
inlet with connections thereto located adjacent to
a useable staircase.
By law 232(2): Such riser shall be extended as construction

progresses to within two floors of the topmost
floor under construction and where the designed
height of the building requires the installation of
a wet riser system fire pumps, water storage
tanks and water main connections shall be
provided to serve the riser.
[120] Najcom‟s sober submission was that Mix Target had failed,
neglected and/or refused to execute the mandatory Uniform Building
By-Laws 1984 (UBBL) requirements. More than that Mix Target had
clearly exposed their own inability to execute the promises they have
made in accordance with the agreement. The safety of the whole site had
been compromised exposing others to unnecessary risk.
42
[121] Najcom gave their final reminder by their letter dated 6.3.2015
reminding Mix Target to rectify the complaints made including the
following:
1. To rectify all the promises made under the letter of

undertaking to accelerate the wet riser system;
2. To attend to the many complaints made against Mix Target;
3. To rectify the lackadaisical attitude towards the project;
4. To deliver the bargain Mix Target has made when Mix

Target has sought for financial assistance;
5. To rectify their unsatisfactory work progress so that others

will not suffer financial losses due to their inability to
execute their works with promptitude;
6. To mitigate the existing financial losses that have been

impacted onto others;
7. To work in a more efficient, attentive and productive

towards their works to earn the necessary value to return its
debts to Najcom;
8. To rectify his incompetence site agent who is not only

inexperience and has no technical knowledge with regard to
the Works;
9. To take instruction to resubmit and rectify the necessary

shop drawings to reflect the Works to the consultant for
approval
10. To rectify the anticipatory breach of further delay to the

project to achieve substantial completion;
43
11. To submit a catch-up work schedule that is capable of

acceptance to rectify all the issues that have been
highlighted and brought to his attention in the above
paragraphs failing which Najcom will not hesitate to
determine the contract the parties had entered into.
[122] While patience and forbearance are undoubtedly a virtue, there is

a limit where one has deadlines and timelines to meet with LAD claims
hanging over one‟s head like the sword of Damocles! This is a case
where the patience of Najcom had come to an end and a drastic action
had to be taken for otherwise Najcom would themselves be in trouble
with the prospect of being terminated by the Main Contractor.
[123] What is disquieting and even distressing is that Mix Target did not
reply to any of these allegations and warnings. This is the kind of silence
that would lead one to conclude that if there had been any dispute on all
these letters, Mix Target would surely have replied to these letters.
Under such a circumstance one is entitled to rely on the principle stated
in David Wong Hon Leong v. Noorazman bin Adnan [1995] 4 CLJ 155 at
page 159 as follows:
“In this context, we recall to mind the following passage in the

judgment of Edgar Joseph Jr. J. in Tan Cheng Hock v. Chan Thean
Soo [1987] 2 MLJ 479-487:
In Wiedemann v. Walpole [1891] 2 Q.B. 534, 537 an action

for breach of promise of marriage, it was held, that the mere
fact that the defendant did not answer letters written to him
by the plaintiff in which she stated that he had promised to
marry her, was no evidence corroborating the plaintiffs
testimony in support of such promise. Lord Esher M.R., in
his judgment, remarked: Here, we have only to see whether
the mere fact of not answering the letters, with nothing else
for us to consider is any evidence in corroboration of the
44
promise.‟ (Emphasis added). Earlier, in his judgment, he

said, „Now there are cases business and mercantile cases
in which the Courts have taken notice that, in the
ordinary course of business, if one man of business states
in a letter to another that he has agreed to do certain
things, the person who receives that letter must answer i t
if he means to dispute the fact that he did so agree. (The
emphasis is mine)
[124] The allegations are serious enough and when taken together would
justify termination of the LoA. Yet Mix Target did not see it fit to
respond and the only reasonable inference is that the allegations must be
true.
[125] If Encik Mohd Faizal the site Engineer of Mix Target had not
received those letters then surely Mix Target must subpoena him to give
evidence for otherwise an adverse inference would be drawn against
Mix Target. It is trite that under section 114(g) of the Evidence Act 1950
the Court may presume that evidence which could be and is not
produced would, if produced, be unfavorable to the person who
withholds it.
[126] There was the telling evidence from Mix Target‟s site daily
reports wherein Mix Target had candidly recorded their work activities
as follows:
1. Mix Target‟s Works were carried out sporadically,

insufficient workers and materials;
For the installation of distribution and range pipes at

level 3 and 4
45
2. As of 16-03-2015, the installation of distribution and range

pipes at Level 3 at Zones B1, B2, B3, B4, E2.1, D1, D2, D3
and D4 have not commenced and remain incomplete.

pipes at Level 4 at Zones B1, B3, B4, B5, C1, E2,1, C2, C3,
D1, D2, D3 and D4 have not commenced and remain
incomplete.

pipes at Level 3 at Zones B3, B4, E2.1, D1, D2, D3 and D4
have not commenced and remain incomplete.

pipes at Level 4 at Zones B1, B3, B4, E2.1, D1, D2, D3 and
D4.
For the installation of pipe coupling works
6. As of 21-03-2015, the installation of the pipe coupling

works at Level 3 at Zones B1, B2, B3, B4, B5, C1, E2.1, C2,
C3, C4, D1, D2, D3 and D4 have not commenced and remain
incomplete.
7. As of 21-03-2015, the installation of the pipe coupling

works at Level 4 at Zones B1, B2, B3, B4, B5, C1, E2.1,
E1.3, C2, C3, C4, D1, D2, D3 and D4 have not commenced
and remain incomplete.
Essentially, At Level 3 and Level 4, there was no Works

that have been carried out to the pipe coupling Works.
For all the remaining installation works at Level 3 and 4
46
8. As of 31-03-2015, all the remaining installation works at

Level 3 and Level 4 at Zones A1, A2, A3, E1.1 and E1.2
For the Installation of Main Distribution Pipe for the

Wet Riser System
9. As of 31-03-2015, the wet riser system at Level 1 at Zones

B1, B2, B3, B4, B5, E2.1, C2, C3, C4, D1, D2, D3 and D4
For the Installation of Conduit for Fire Alarm System at

Level 2 and Level 3
10. As of 31-3-2015, the Conduit for Fire Alarm System at Level

2 and at Zones B1, B2, B4, B5, C1, E2.1, E1.3, C2, C3, C4,
D1, D2, D3 and D4 have not commenced and remain
incomplete.
11. As of 31 -03-2015, the Conduit for Fire Alarm System at

Level 2 and at Zones B1, B2, B4, E1.3, D1, D2, D3 and D4
[127] Mix Target‟s argument was that even if their work progress was
slow, they still had another 19 months to complete the subcontract work.
As such, to terminate Mix Target 5 months into the subcontract on the
ground of delay and inability to complete the Works is certainly unfair
and wrong.
[128] It is not the law that one must wait until after completion date or
close to completion date before one can terminate one‟s contractor on
ground of inability to complete the works. If that were true then one
would have to suffer the agonizingly slow progress in the works with no
ability to terminate against the sure certainty that the contractor would
not be able to complete, short of a miracle!
47
[129] The Court is entitled to look at the cumulative conduct in this case
of Mix Target and their failure to meet the work schedule that had been
set for them and to which they have agreed. The whole completion on
time is the sum total of the completion of the various floors on time and
the Court is entitled to look at the overall physical and financial
completion to gauge whether it is reasonable for Najcom to conclude
that Mix Target would be unable to complete the Works on time.
[130] Learned counsel for Mix Target cited the case of Kerajaan
Malaysia v. Ven-Coal Resources Sdn Bhd [2014] 5 CLJ 186 where it was
held at page 210 that:
“[54] Delay alone did not amount to repudiation unless

coupled with an intention not to complete the Project which
was not the case here.
[55] The plaintiff has failed to prove on a balance of

probabilities that the defendant shall fail to meet the
completion date. Even if that failure is probable, there is no good
reason why the plaintiff should not be mitigating its loss by
invoking the LAD clause against the defendant.” (emphasis
added)
[131] The same case also held that at page 209:
“[52] There would of course be circumstances where it is nigh

impossible for the Contractor to complete the Contract within the
Completion Date or even way past the Completion Date. By no
means am I suggesting that the Contractor can buy time for
themselves and insulate themselves against any termination on
account of delay by insisting that the LAD can always be
invoked.”
48
[132] From the evidence of Mr Khaw DW 1 the rescue contractor, he

inspected on the 1 st week of April 2015 the Project‟s site and thereafter
had mobilized manpower and purchased materials prior to the execution
of the Letter of Acceptance on 22.5.2018. In summary, in cross
examination DW 1 gave evidence that only 43% of the works at Level 3
and Level 4 were done and this inspection was sometime around 1 st
week of April 2015.
[133] Mix Target had failed to honor its promise to expedite and
complete the work which was originally scheduled for completion
respectively by 15.2.2015 and by the end of February 2015 where Level
3 and Level 4 were concerned.
[134] The evidence of joint inspection after the termination (CBOD 3,

pages 1010-1015) clearly showed as at 3.4.2015, Level 3 and Level 4
were not completed. In fact it can be seen at page 1012, there were only
20% works done at all the departments at Level 4, despite being aware
this was an important project serving the public of Malaysia.
[135] I agreed with Najcom that because of the slow progress and the
various breaches, Mix Target had evinced its inability to complete the
works despite numerous extensions of time. Indeed the combined
breaches and non-compliance pointed inexorably to Mix Target having
repudiated the contract as shown in their inability to render substantial
performance of the agreement.
[136] Moreover Mix Target did not have the capacity, resources and
commitment to complete the Works as exhibited in the following
disabilities:
1. Lack of financial capacity to purchase material and

equipment;
2. Inability to pay its subcontractor;
49
3. Inability to provide the necessary performance bond to

Najcom,
4. Inability to produce the necessary shop drawings, to submit

plans and coordinate its interfacing Works with others,
5. Inability to delivery the necessary contractual deliverables

as required under the agreement to be approved by the
consultants,
6. Inability to provide competent site agents to supervise and

coordinate its own works at the site, unable to take site
instruction,
7. Inability to observe and comply with the project work

schedule including its own rectification schedule to catch up
with the Works,
8. Inability to manage the delays which were all within their

control.
[137] Mix Target‟s combined debilitating conduct would justify Najcom

invoking Section 40 of the Contracts Act 1950 which provides as
follows:
“Effect of refusal of party to perform promise wholly
[40] When a party to a contract has refused to perform, or

disabled himself from performing, his promise in its
entirety, the promisee may put an end to the contract, unless
he has signified, by words or conduct, his acquiescence in its
continuance.”
[138] Najcom had no alternative but to terminate Mix Target and

thereafter sought services of the New Contractor to complete the said
Fire Protection System Works.
50
[139] Najcom through a letter dated 31.3.2015 to Mix Target terminated

the Contract as the effective paragraph reads as follows:
“With reference to the above, our numerous letters of reminders

and meetings with regards to your inability to carry out the Project
as required by the contract, therefore, we hereby terminate your
contract (Ref: NSB/LA/WACH/MTSB/001/2014 dated 17.9.2014)
with us with immediate effect.”
[140] I would uphold the said termination as been justified against the
backdrop of repeated delays and falling behind time in spite of repeated
reminders to rectify the breaches referred to above.
[141] Having held that the termination was valid and lawful Mix
Target‟s Claim for losses arising out of unlawful termination would
therefore have to be dismissed.
Whether Najcom had proved the costs of rectification works of

RM155,544.40
[143] I now deal with Najcom‟s Counterclaim for rectification works of

RM155,544.40. The evidence of DW 1 Mr Khawfrom Union Fire
Langkawi, the rescue contractor, is that the Rectification Works in
CBOD 6 pg 43-44 is RM155,544.40.
[144] However as pointed out by Mr Zayd, learned counsel for Mix

Target, Mr Khaw DW 1 admitted that coring works are uncompleted
works and not rectification works and that amount is captured at pg 47
CBOD 6 of RM57,854.80. Therefore being not rectification but forming
part of the uncompleted works this sum cannot be claimed as
rectification works.
[145] Also at pg 98 CBOD 6 there is a claim for hacking of

RM30,591.60 which is necessary to complete the balance works. This
51
hacking is not because of defective works by Mix Target. Therefore I

would dismiss this head of claim for rectification works. Then at pg 45
and 46 CBOD 6 there is a claim for Clashing and Relocation works of
RM67,098.00. It was argued by Mix Target that the clashing was
because the shop drawings on which the pipes were laid was not
approved by UNJV. Therefore Mix Target said they cannot be faulted.
[146] However Najcom pointed out in the letter at Tab 23 of Najcom

Core Bundle dated 22.1.2015 warning that the drawings and method
statement were still pending at pg 754. In the letter dated 11.3.2015 at
CBOD 3 pg 782 Najcom wrote to Mix Target to state that Mix Target
had failed to submit the work plans for Level 3 and 4 and shop drawings.
[147] There is also now 2 pipes to be done because of the change back to
parallel piping causing a likelihood of clashing with aircon ducts.
[148] There was no written rejection by Najcom and the M&E consultant
of the Works carried out by Mix Target. Najcom or the M&E consultant
also had not issued any non-compliance report or notice to rectify any
defect in respect of Mix Target‟s work to Kejuruteraan Union Fire
Langkawi Sdn Bhd as confirmed by DW-1 during cross examination. On
the balance of probabilities this cannot be attributed to Mix Target as
their fault. Whoever is supervising the work from UNJV should have
exercised greater caution in the supervision.
[149] Therefore on the balance of probabilities I find that the clashing

and relocation works cannot be because of defective works done by Mix
Target and so I dismiss this head of claim for rectification works.
[150] The result is that the whole of the rectification Counterclaim is

dismissed.
Whether Najcom had proved its Claims for losses arising out of
lawful termination of the contract with Mix Target
52
[151] The new contract dated 13.4.2015 in CBOD 3 pg 796 between

Najcom and Kejuruteraan Union Fire Langkawi Sdn Bhd, the rescue
contractor was for the same contract sum of RM9.9 million.
[152] Granted it is for the balance works but the question is what is the
additional costs incurred in completing the Works arising out of the
lawful termination of Mix Target.
[153] Najcom has not shown that the balance Works to be completed by
their rescue contractor is the same Works that had been awarded to Mix
Target. In the event that there are extra costs arising out of additional
works or variation works, these cannot be charged to Mix Target.
Najcom referred to DBOD 2, pages 563-578 whereby DW 1 had
provided bank-in slips and bank statements of receiving total amount of
RM11,142,601.09.
[154] It would reflect that there is evidence that Najcom had made
payments of a total sum of RM11,142,601.09 but then this included
variation works as well, as submitted by learned counsel for Najcom. As
there is no clear evidence of what constituted the variation orders and
how much was the variation works it is impossible to compare like with
like and to determine the additional costs incurred by Najcom to
complete the balance Works.
[155] There is also no evidence that UNJV has charged Najcom for any
LAD arising out of the delay caused by Mix Target or that Najcom had
failed to obtain any extension of time from UNJV.
[156] On the balance of probabilities, Najcom has not been able to prove
the loss suffered as a result of any extra costs incurred in finishing the
balance Works under the rescue contractor.
53
Pronouncement
[157] To recapitulate, I had allowed judgment for the sum of

RM731,000.00 to be entered by Itagres against Mix Target together with
interest at 5% per annum from the date of the Statement of Claim to
realization with costs of RM20,000.00 to be paid by Mix Target to
Itagres.
[158] With respect to the various claims and counterclaims of Mix

Target and Najcom against each other in the 2016 Suit, I had allowed
Mix Target the sum of RM218,613.58 being the balance sum due to them
for work done for Najcom and so I had allowed judgment to be entered
for this sum.
[159] Interest shall be 5% per annum from date of the Statement of

Claim to realization. All the other heads of claims of Mix Target were
dismissed.
[160] I had also dismissed the counterclaims of Najcom as having not

proved.
[161] After hearing parties on costs I had allowed only nominal costs of
RM15,000.00 to be paid by Najcom to Mix Target as this matter clearly
could have been disposed of in the Sessions Court.
Dated: 14 DECEMBER 2018
(LEE SWEE SENG)

Judge
Construction Court
High Court, Kuala Lumpur
Date of Decision: 16 JULY 2018
54
COUNSEL:
For the plaintiff in WA-22C-28-02/2017 - M Muthuraman Muthu; M/s

Muthu & Partners
For the defendant in WA-22C-28-02/2017 and the plaintiff in

WA-22C-79-11/2016 - Ahmad Zayd Ahmad Zuber; M/s Yoon & Partners
For the defendant in WA-22C-79-11/2016 - Jeff Sia & Ravin Woodhull;

M/s Adrian, Syuhada, Sia & Associates
Case(s) referred to:
Hotel Anika Sdn Bhd v. Majlis Daerah Kluang Utara [2006] 4 CLJ 981
Lembaga Pembangunan Industri Pembinaan Malaysia v. Konsortium

JGC Corp &, Ors [2015] 6 MLJ 612
Airsquare Sdn Bhd v. Eng Keat Seng and another appeal [2013] 5 MLJ
526
ISO Technic Electrical Sdn Bhd v. Calibre M&E Sdn Bhd [2017] 1 LNS
212
Arensi-Marley (M) Sdn Bhd v. Middy Industries Sdn Bhd and others
[2009] MLJU 667
Vee Seng Development Sdn Bhd and others v. Datuk Seri Panglima
Mohd Sari bin Datuk HK. Nuar [2005] MLJU 454
Liew Soo Hoi & Anor v. Waja Resort Sdn Bhd & Ors [2014] 2 MLRH 37
David Wong Hon Leong v. Noorazman bin Adnan [1995] 4 CLJ 155
Kerajaan Malaysia v. Ven-Coal Resources Sdn Bhd [2014] 5 CLJ 186
55
Legislation referred to:
Evidence Act 1950, s. 114(g)
Contracts Act 1950, s. 40
Others referred to:
Keating on Construction Contracts (9 th Ed) at p 105
56

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[2018] 1 LNS 2105 Legal Network Series

IN THE HIGH COURT OF MALAYA AT KUALA LUMPUR

IN THE FEDERAL TERRITORY, MALAYSIA

[SUIT NO: WA-22C-79-11 /2016]

MIX TARGET (M) SDN BHD

NAJCOM SDN BHD

HEARD TOGETHER WITH

IN THE HIGH COURT OF MALAYA AT KUALA LUMPUR

IN THE FEDERAL TERRITORY, MALAYSIA

[SUIT NO: WA-22C-28-02/2017]

ITAGRES SDN BHD

MIX TARGET (M) SDN. BHD.

Project and Parties

[2] Najcom appointed Mix Target to carry out subcontract work to

[4] Mix Target then appointed Itagres to supply labour/workers to

[5] Under the LoA the Works were required to be completed in 24

[6] The total amount on the 7 Progress Claims submitted was

by Mix Target after deducting RM324,675.00 being payment made by

(b) Losses and damages as a result of the premature, wrongful

(c) Interest; and

[12] The losses of RM532,600.00 by Mix Target consisted of the

(a) Machinery cost which included grooving machine, threaded

(b) Mobilization and demobilization of machineries and

(c) Coordination work carried out by Mix Target in the sum of

(d) Relocation and additional work due to inaccurate

(e) Administration work including preparation of documents for

(f) Legal costs in the sum of RM72,400.00; and

(g) Cost of valuation and certification by third party in the sum

(a) Zainal Abidin Bin Mamat – “PW-1”; and

(b) Ahmad Fitri Bin Zainal Abidin – “PW-2”.

[16] Najcom‟s witnesses in the 2016 Suit were as follows:

(a) Khow Kok Aun – “DW-1;

(b) Ng Ean Bah –“DW-2”;

(c) Norazla Bin Badaruddin – “DW-3”

(d) Hezry Huzir Bin Mohd Khalid – “DW-4”;

(e) Izzati Syazwani Binti Idris – “DW-5”;

(f) Chew Hoong Yew – “DW-6”;

(g) Zulkifli Bin Abu Bakar – “DW-7”; and

(h) Haja Najmudeen Bin KPM Abd Kader– “DW-8”.

Whether Itagres had proved the balance sum of RM731,000.00

a. Letter of Acceptance dated 13.10.2014 (see pages 1 to 6 of

b. Purchase Order dated 13.10.2014 (see pages 7 to 9 of CBOD

Item 1: To supply labour to install sprinkler, Hose Reel and

Item 2: To supply labour and material including conduit and

[Note: see Purchase Order dated 13.10.2014 at page 7 of CBOD 7]

[19] Itagres was appointed on 13.10.2014 and they started supplying

[20] Itagres‟ total Progress Claims amounted to RM879,291.15. As at

Progress Claim 5 RM731,291.15 (adjusted

(a) Mix Target do pay Itagres the sum of RM731,000.00; and

(b) Mix Target do pay interest at the rate of 5% per annum on

[22] Mix Target‟s pleaded defence is that their obligation to pay is

“Term & Condition

3. Bayaran: By progress (45 days-60 days)

a. Itagres made the first claim on 31.10.2014 for RM53,500.24.

NOTE: If Itagres‟ payment is only due after Mix Target‟s claim is

i. First, Mix Target certified Itagres‟ first claim on

ii. Secondly, if UNJV certification of Mix Target‟s claim

RM84,812.00 out of RM911,060.00 was certified (see

NOTE: Based on UNJV‟s certification they certified a sum of