(COMPANY NO: 401658-P) : (2015) 1 LNS 1318 Legal Network Series

[2015] 1 LNS 1318 Legal Network Series
IN THE HIGH COURT OF MALAYA AT KUALA LUMPUR

IN THE STATE OF WILAYAH PERSEKUTUAN, MALAYSIA
CIVIL DIVISION
[CIVIL SUIT NO: 22C-53-11/2013]
BETWEEN
CAPITAL HABITAT BUILDER SDN BHD … PLAINTIFF

(COMPANY NO: 758098-X)
AND
PESONA METRO SDN BHD ... DEFENDANT

(COMPANY NO: 401658-P)
CONTRACT: Building contract - Claim for additional and/or variation

work done - Claim arising from subcontract - Subcontractor's reliance on
oral and verbal instructions - Existence of work not disputed by main
contractor - Whether variation work done by subcontractor subsequent to
instruction of main contractor - Whether subcontract required orders for
variation work to be in any particular form - Whether oral instructions
were accepted as a reality - Whether manner in which parties instructed
and operated was practical - Whether subcontractor claim for variation
works had been proved
CONTRACT: Building contract - Claim for liquidated and ascertained

damages ('LAD') by main contractor from subcontractor - Main
contractor's entitlement for LAD - Allegation of main contractor that
subcontractor had delayed in completing work - Main contractor was
guilty of delay in handing over site for subcontractor to carry out its work
- Subcontractor's plastering work subject to completion of main
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contractor's structure work - Whether main contractor was entitled to any

LAD
CONTRACT: Building contract - Claim for expenses - Claim by

subcontractor for general costs and expenses incurred for having extended
its work beyond expected month as a result of main contractor's delay in
handing over site - Whether delay in main contractor's handing over
project site had caused losses to subcontractor - Whether subcontractor
was entitled to general costs and expenses
[Plaintiff’s claim allowed with costs and defendant’s counterclaim

dismissed.]
Case(s) referred to:
Golden Vale Gold Range & Country Club Sdn Bhd v. Hong Huat
Enterprise Sdn Bhd [2008] 6 CLJ 31 CA (refd)
Poh Geok Sing v. HB Enterprise Sdn Bhd [2006] 1 CLJ 765 CA (refd)
GROUNDS OF DECISION
[1] The plaintiff’s claim is for payment for additional and/or variation
works done. The defendant’s principal reason for refusing to pay is that the
works were not ‘properly’ instructed; and that the claims lack proper
supporting documentation.
Some background facts
[2] The Defendant is the main contractor responsible for structural works
in a project to develop a 10 storey building comprising 126 units of
2
condominiums together with a multi-level carpark and various facilities and

amenities at Lorong Ampang, Kuala Lumpur. The project is known as
“Sastra U-Thant Condominium”. The Defendant sub-contracted the
brickworks, plastering, cement rendering and skim coating in the project to
the Plaintiff for RM5,278,805.50 vide letter of acceptance dated 12.3.2012
[the sub-contract]. Under the letter of acceptance, the Plaintiff was
required to take possession of the site on 12.3.2012 and to complete the
sub-contract by 19.11.2012.
[3] The value of the sub-contract price was subsequently reduced to

RM4,233,820.28; the parties disagree on the reasons for this reduction.
According to the Plaintiff, the reduction was following several variations to
the sub-contract works by the Defendant; while the Defendant says it was
because the value was subject to re-measurement as provided in clause 10 of
the sub-contract. This is really irrelevant as the claim before the Court is
not for this aspect of the sub-contract but for variation works.
[4] The Plaintiff claims that it had been orally instructed by the
Defendant’s representative to carry out variation and/or additional works to
the value of RM2,302,493.10; and 26 variation orders [VOs] were cited in
support. Following such works, the Plaintiff made interim or Progress
Claim No. 16 for the sum of RM2,563,294.25 on 11.7.2013. The Defendant
issued a draft interim payment certificate in respect of this interim claim on
12.8.2013 wherein the Plaintiff was back-charged a sum of
RM1,141,714.25 for labour which effectively rendered the Plaintiff’s claim to
(–) RM873,285.59. The Plaintiff says it never agreed to these back-
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charges. The Plaintiff also claimed that this was a mala fides claim made
up so that the Defendant could avoid paying the Plaintiff for work done.
[5] On 3.9.2013, the Plaintiff issued interim or Progress Claim No. 17 for
the sum of RM2,315,045.00. The Plaintiff claimed that there was an
increase of RM88,603.20 in variation works through variation order 11 [VO
11] and this was in respect of night work. The Plaintiff says both progress
claims have not been paid by the Defendant within the agreed time period
of 30 days from the date of presentation of the claims. The Plaintiff claims
that the Defendant is consequently in breach of the terms of the sub-
contract.
[6] The Plaintiff’s present claim is for that sum of RM2,315,045.00.

Alternatively, the Plaintiff claims that it ought to be paid on a quantum
meruit basis for the original and VO works that it had completed.
[7] In defence, the Defendant claimed that the Plaintiff’s VO claims were
not proper as there were no written instructions for such works; that the
claims were submitted without supporting documents or complete
documentation; and that these claims used rates which were higher than
those contracted for. The Defendant claimed that despite being alerted to
the lack of documentation, the Plaintiff still failed to provide the required
information and documentation.
[8] The Defendant also alleged that one of the terms of the sub-contract
required joint measurements to be made before payments could be
approved. Joint inspections attended by representatives of both parties
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failed to confirm the Plaintiff’s claims. The Defendant has nevertheless

approved a sum of RM923,329.67 leaving the balance disputed in respect
of the VO claims. It has also approved a sum of RM30,928.75 for day
works. The Defendant is also counter-claiming a sum of RM933,387.10 as
back-charges for various items such as materials, labour and penalties
imposed. There is also a claim for LAD in the sum of RM648,000.00 by
reason of an alleged delay in the completion of the sub-contract works by
some 8 months from the contractual completion date of 19.11.2012.
[9] In its Reply and Defence to the Counterclaim, the Plaintiff claimed
that Progress Claims Nos. 16 and 17 were supported with documentation
such as quantities measurement, plan drawings, site memos and pictures
of the variation works. The Plaintiff pointed out that the instructions were
oral or verbal, given by the Defendant’s Project Manager and management
and through site memos from the project consultant. It was the Plaintiff’s
contention that the Defendant refused to carry out joint inspections; that the
Defendant had acknowledged and admitted to the Plaintiff’s variation work
vide draft certificate of payment in email dated 12.8.2013.
[10] As for the back-charges, the Plaintiff refute owing the Defendant for
charges for labour on the basis that there were no agreement or utilization
of such work force in order that the Plaintiff may complete its sub-contract
works or variation works. In relation to the LAD claim, the Plaintiff’s
defence is that the Defendant is not entitled to such claim as the delay in
completion was caused by the Defendant itself when the Defendant
delayed in handing over possession of the relevant floors or project areas
to the Plaintiff.
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Issues
[11] Four issues were formulated for determination:
i. Whether the Plaintiff was instructed to carry out the variation
ii. Alternatively, whether the Plaintiff is entitled to claim for
variation works on a quantum meruit basis?
iii. Whether there was a delay in handing over a duly completed
structure for the Plaintiff to start work at the relevant time?
iv. Whether the Defendant is entitled to claim for back charges
from the Plaintiff?
The trial
[12] The 4-day trial saw a total of 7 witnesses testifying; four for the
Plaintiff and three for the Defendant. Upon due consideration and
evaluation of the oral and documentary evidence and the subsequent oral
and written submissions of both counsel, the Court answered the issues
posed in the Plaintiff’s favour. Consequently, the Court allowed the
Plaintiff’s claim and dismissed the Defendant’s counterclaim. These are
the reasons.
6
Whether the Plaintiff was instructed to carry out the variation

works by the Defendant?
[13] On this first issue, the Plaintiff’s case is that it was instructed to carry
out the variation works which form the basis of Progress Claims Nos. 16
and 17. Having completed those works, it must be paid.
[14] The Defendant’s primary oral and written submission is that these
works were not instructed by the Defendant. The Defendant submits that
the Plaintiff cannot rely on oral or verbal instructions when written
instructions are required under the terms of the sub-contract. It is the
Defendant’s case that since clauses 15 and 16 of the sub-contract requires
all additional and variation works to have been upon the Defendant’s
instructions, such instructions must be written. Consequently, the
Defendant submits that the VO claims based on oral instructions are not
sustainable. Further, such works requires re-measurement and proper
documentation under clause 12 read together with clause 11 of the sub-
contract before the claims may be entertained. Since there is no proper
documentation, the Plaintiff’s claim is again, not sustainable.
[15] After evaluating the evidence, I disagree with the Defendant.
[16] Starting with the pleadings. In its Defence and Counterclaim, the
Defendant clearly pleaded at paragraph 5 that the variation claims were not
approved and agreed for various reasons. Those reasons include failure on
the Plaintiff to provide the necessary documentary proof of work such as
invoices; and that the rates used were high, that the Plaintiff did not follow
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contract specifications. Another reason is that the joint inspections

conducted did not support the Plaintiff’s claims. There is nothing pleaded
about the lack of written instructions or non-compliance of clauses 15 and
16. On this score alone, the Defendant’s arguments must be rejected.
[17] Furthermore, on the strength of the Defence, especially paragraph 5, it

is clear that despite these pleaded reasons, the Defendant agreed to a
substantial number of the Plaintiff’s 26 claims. In fact, out of 26 claims,
only four were not approved [VOs 6, 11, 16 and 21] while in a few
instances, the amount approved were even more than what the Plaintiff
claimed. See for instance, claims for VO 4 - claim for RM15,072.68 and the
Defendant paid RM15,755.78; VO 15 - claim for RM1,957.00 and the
Defendant paid RM4,629.15; VO 18 - claim for RM39,437.69 and the
Defendant paid RM39,985.55; and VO 19 - claim for RM1,731.13 and the
Defendant paid RM2,449.02.
[18] As for the evidence adduced at trial, this is a summary of the

evidence and the Court’s findings.
[19] First up for the Plaintiff was Aun Yong Chin [PW1 - Aun], the
Plaintiff’s Site Supervisor. His work responsibilities entailed him sorting out
the logistics. He had to mobilize the workers, supervise and monitor the
progress of work at the site. He was also the person who attended site
meetings with the Defendant. According to him, it was his job to “ensure
that the Plaintiff’s work under the sub-contract and all variation orders were
completed”.
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[20] In relation to Progress Claims Nos. 16 and 17, Aun testified that all
the instructions for the 26 variation orders were given orally through either
of several personnel of the Defendant. Although he had requested for
written instructions, none were given. The instructions came from the
Defendant’s Site Supervisor, Yee Kah Seng [Yee], its Assistant Project
Manager, Calvin Mah [Calvin]; or the Plaintiff’s Project Manager, Yip Kai
Weng [DW1]. Sometimes, the Defendant’s architectural drawings were
given together with these instructions.
[21] Upon receipt of these instructions and drawings, Aun told the Court
that he would discuss the instructions with the Plaintiff’s Managing Director,
Choy Teong Hui [PW3 - Choy]. It was Choy who would decide on the
applicable rates before giving his approval to proceed with the variation
works. With the approval from Choy, Aun would then mobilize the workers
and materials to begin the variation works. Aun also testified that no rates
were fixed. The Defendant told the Plaintiff to begin the variation works
first and to submit their claims later.
[22] Aun further testified that before each variation work commenced, a
joint inspection would be conducted with Yee or Calvin to confirm the works
to be done. He produced some of those drawings in Court. These
drawings were signed by both parties [see drawings in CBD B1, B2 and
B3]. Once work was completed, just like how the instructions were given,
Aun would inform the Defendant verbally of the completion, and submit
proof as part of its progress claims.
9
[23] The Plaintiff’s progress claims were prepared by Wan Mohd

Zahiruddin [PW2], its Quantity Surveyor. He explained that he measured
the works claimed in all 17 progress claims. The measurement was both in
situ and against the architectural drawings provided by the Defendant.
Wan testified that the Defendant refused to conduct joint inspections and
measurements because they were busy and had no time to conduct such
joint measurements. He did, however, conduct one joint measurement with
Choo How Wai, the Defendant’s Quantity Surveyor for works done from the
Basement to the Ground Floor.
[24] The Plaintiff’s third witness was Choy Teong Hui [PW3], its Managing
Director. Choy confirmed what Aun had testified on the VO works; that the
Defendant’s instructions were all given verbally by the Defendant’s
representatives, with some of the works finally certified by the Defendant
and some not. Like Aun, Choy testified that the Plaintiff was told by the
Defendant’s representatives to proceed with the work first and submit their
claims upon completion even though the rates for such variation works had
yet to be agreed.
[25] Choy also testified on the rates claimed by the Plaintiff. He explained
that the rates charged by the Plaintiff for the variation works “were usually
higher by some 20 to 30% depending on the scope of work involved”.
Choy said that this was because there was double handling of works where
workers and materials had to be remobilized. This testimony remains
unchallenged.
10
[26] The Plaintiff’s fourth witness was Pan Kok Chin [PW4 - Pan]. He
was the Architect of the project. He was basically called to deal with the
sequence of the Plaintiff’s works, the third issue. However, on this first
issue, Pan confirmed in cross-examination, that while the Defendant itself
as the main contractor did not make any claim for extra thickness of
plastering, which the Plaintiff presently makes in some of its claims, there
was no instruction to rectify defects. Pan was not reexamined. Pan’s
evidence confirms that work has in fact been done by the Plaintiff and that
there are no defects contrary to the defendant’s contention on the quality of
the plaintiff’s plastering works; this will be discussed later in greater detail
when dealing with the claim for this particular work.
[27] The Defendant’s three witnesses are Yip Kai Wing [Yip - DW1], its
Project Manager; Choo How Wai [Choo - DW2], its Quantity Surveyor; and
Low Fook Loy [Low - DW3], the Defendant’s Contracts Manager.
[28] Now, the evidence of the Defendant’s own witnesses is most

interesting. All of them recognized that instructions for the VO works may,
for practical reasons, be given orally although ideally and to avoid “issue of
disagreement”, such instructions are best in writing.
[29] The Defendant’s first witness, Yip candidly testified that the
instructions for such work “would be best if it could be in writing. But to
expect all instructions to be in writing all the time is difficult.” In Yip’s own
words-
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“…We are generally practical in approaching such issue so

instruction for works would depend on the nature and timing of the
work concerned”.
[30] Yip further testified that “[I]t is quite expected that for small extra
works outside of the contract bills of quantities and construction drawings,
some degree of trust is involved and we usually give out verbal instruction.
But for major variation works, we will call for quotation or tender (if
necessary depending on the situation) will applicable rates and quantities
and approval shall come from the management team.”
[31] Yip claimed that “as Project Manager”, he “certainly could not and
have no such authorities without management approval”. He added that -
“Even so, I must say that all works claims, main works or variation
works must still be evaluated accordingly and the process of
evaluation is still based on proof, joint site measurement and contract
rates as may be applicable under the bills of quantities”.
[32] Next, is the Defendant’s Quantity Surveyor, Choo who testified that
he dealt with the Plaintiff’s Site Supervisors; amongst them were Aun and
Wan. The Plaintiff’s monthly progress claims are submitted to Choo who
will check the claims. Generally, Choo looks for supporting documentary
evidence of work done and the rates applied for. After ascertaining the
documents are in order, he attends a joint inspection with the Plaintiff to
jointly assess and evaluate the claims. He usually attends these joint
12
inspections with Wan. Thereafter, he will prepare his findings and submit
his paper work to the head-office for approval.
[33] This procedure was followed in 15 progress claims. According to Choo,

there is no issue or disagreement with the first 15 progress claims.
Disagreements arose only in respect of the last three claims where the
claims “show a sudden high jump of their claim sums for the variation
works which I was unable to verify”. This was because there “was no
proper documents supporting their claims notably written instruction for
variation works, identification of construction drawings for the additional
works to be done and joint inspection of work areas. Also the photographs
supplied by the Plaintiff to claim for work done were very inconclusive and
unclear.” He added that the Plaintiff’s rates were “also unreasonable and
not provided for under the contract bills of quantities”.
[34] Specifically, and on the matter of written instruction, whether it was

compulsory for variation works before a contractor starts work”, it can be
safely concluded that the answer is a resounding ‘No’. In fact, like Yip,
Choo said:
“Usually the best is of course if written instruction for variation works

is first obtained to avoid any possible disagreement that may follow
from there. However, there might be verbal instruction at times being
given, which is quite common practice in the industry due urgency of
the matter.
13
Still a written instruction is only the first step as there are many other
documents necessary before a claim for variation can be made up for
example, there must be some essential documents supporting
identification of the areas to be worked on and the details of variation
works done must still be contractually supported like normal claims.
However, if it involves large part of variation works, it is usually
prudent that works shall only commence with proper documentation
and approval by the Defendant to necessitate execution of the
variation works. If we look at the Variation Order claim No. 1 - 25
from page 162 Jilid B1 to page 1140 Jilid B3, none of the claims
come with any instruction and important substantiating documents are
also lacking.”
[35] Even Low, DW3, who was in charge of the project “from the very
beginning” said in his examination in chief that the Plaintiff is entitled to
claim valuation of variation as per clauses 15 and 16 of the sub-contract.
Although his evidence was that “where work cannot properly be measured
and valued the Sub-contractor shall be allowed day-work-rates”; and that
“No work shall be carried out on Day Work basis except where ordered in
writing by the Main Contractor”; he, like the other witnesses, and on behalf
of the Defendant, actually did not deny the giving of oral instructions.
[36] Low also generally echoed Yip’s evidence. As Contracts Manager in

charge of the project, Low was familiar with the sub-contract. He testified
that there was “no issue” from Progress Claims numbers 1 to 15. The
disputes started when the Plaintiff submitted Progress Claims numbers 15A
14
and 16 “with sudden increase of the amount for variation works.” The
Defendant was not agreeable to the Plaintiff’s final Progress Claim no. 17
because it was “not reflective of the actual financial standing between the
parties as the Plaintiff conveniently ignored certain aspects of their
calculations such as completely silent on labours supplied by the
Defendant raising exorbitant claim on variation works without sufficient
documentary proof to substantiate them”.
[37] Low also testified that there was no joint measurement although the
Defendant “would have liked to have one but it was impossible because the
Plaintiff had demobilized all its workers, machineries, equipment and tools
and moved out from the site in early August 2013 approximately one month
before raising the said final claim. Further request for joint inspection and
further documents from the Plaintiff was not complied with by the Plaintiff”.
The Defendant certified the final claim no. 17, certifying that the Plaintiff
owed the Defendant a sum of RM933,387.10.
[38] From the evidence adduced by both sides, the relevant parts of which
have been highlighted above, this Court is amply satisfied that the Plaintiff
was instructed by the Defendant to do the additional or variation works now
claimed. These instructions were almost all verbal; but they are no less
instructions from the Defendant and the Plaintiff is contractually obliged to
carry out such instructions; regardless the form it was given. When I say
“almost all verbal”; this is because there is evidence of written confirmation
in respect of Variation Order No. 12 found at page 924 of CBD B2. The
works here involved plastering extra thickness to the external wall at levels
15
2, 6 and 8. The document was countersigned by Yee and Calvin including

a handwritten note by Calvin.
[39] Of relevance is the fact that the sub-contract does not require orders
for variation work to be in any particular form. It certainly does not require
such orders to be in writing. Clause 15 merely provides for the possibility
of variation work to be done. This provision is necessary given that the
sub-contract is one for a firm price with a defined scope of work. Where
variation orders are issued by the Defendant, such orders are deemed part
of the sub-contract. The sub-contract sum shall then be adjusted
accordingly.
[40] This is what clause 15 provides:
15. Variation Orders
Variation issued by the Main Contractor shall be deemed to form part of

the Sub-Contact and shall not be regarded as vitiation thereof. The Sub-
Contract Sum shall be adjusted accordingly to take into account of such
variations.
The valuation of variation shall be made in accordance with the following

rules:
(i) The prices in the Bills of Quantities shall determine the Variation of
Work of similar character executed under similar conditions as work
priced herein. The lowest price shall prevail.
(ii) Where work is not of a similar character or executed under similar

conditions the prices in the Bills of Quantities shall be the basis for
valuation the lowest price shall prevail.
(iii) Where work cannot be measured or valued, the Sub-Contractor

shall be allowed day work rates.
16
[41] As for Clauses 12 and 16, contrary to the defendant’s submissions,

these terms of the sub-contract also do not require variation orders to be in
writing:
12. Payment
The Sub-Contractor shall submit his application for payment every

calendar month, which shall be accompanied by all forms of calculations
and invoices and any other documents to substantiate his claim. The
period of honoring payment shall be 30 days upon certification of
payment.
16. Final Account
Within a reasonable time after the completion of this contract, the Sub-
Contractor shall submit the final account together with all particulars,
details of information in support thereof for verification.
[42] These terms deal with the preparation and submission of a final
account and payment. Although these terms require the Plaintiff to submit
with “all particulars, details or information in support thereof for verification”,
this is not the same as saying that the instructions must be in writing.
[43] The significance or rather, insignificance of written instructions is

reflected in the Defendant’s own conduct and treatment of the Plaintiff’s 26
VO claims. As pointed out earlier, except for four VOs for the total sum of
RM850,449.96 [see pages 2246 to 2284 of CBD B6; pages 5979 to 5984 of
CBD B18]; the Defendant has approved and admitted the rest of the 26
VOs; four of which even on larger sums than claimed by the plaintiff. The
Plaintiff, however, is disputing the Defendant’s valuation of those VOs
approved on lesser sums.
17
[44] The Defendant has also admitted that a sum of RM30,928.75 is

payable for day works [the plaintiff claimed a sum of RM21,590.00].
Subsequently, after the claim was filed, the Defendant admitted two more
VOs, namely VO 27 and 28 bringing up the sum to RM923,329.67. The
plaintiff has orally applied to amend its total claim from RM2,315,045.00 to
RM2,319,624.49 to take care of the various admissions. The defendant
has agreed to the amendments and the application was accordingly
allowed.
[45] What can be deduced from all this is that the want of written
instruction was never an issue for the defendant. The fact that the
Defendant has approved and admitted such a substantial number of VOs
as shown in the pleadings and at the trial shows quite clearly that the lack
of written instruction is actually no impeding factor.
[46] As explained by the Defendant’s own witnesses [especially DW1 and

DW2], the Defendant is “practical” and will entertain such claims provided
there is sufficient proof or documentation. And, as mentioned earlier, the
Defendant has not denied issuing instructions to carry out VO works. Its
case is one of sufficiency of evidence to prove the Plaintiff’s claims.
[47] I, therefore, find that the absence of written instructions on the VO

works do not have any bearing and certainly do not have any material
bearing or effect on the Plaintiff’s claims. I find instead that there were
clear oral instructions given by the Defendant for all the works which
underpin Progress Claims 16 and 17. The parties had a good practical
18
working relationship where form was not the criteria at all before the
Defendant would pay against the claims made by the Plaintiff.
[48] The Court finds that the parties had a relationship where the parties
frequently if not almost always, handled their affairs and the execution of
the sub-contract works with a more realistic and practical approach.
Although the Defendant would have ideally required written instructions for
VO claims as it would avoid the very arguments presently raised [see
testimonies of DW1 and DW2], the Defendant recognized and was
prepared to operate without the need for prior written instructions before
the Plaintiff may make its claims.
[49] Hence, oral instructions were accepted as a reality and that being
practical was the manner in which the parties instructed and operated.
What the Defendant however required before making any payment was
evidence of supporting documents. The first issue is therefore answered in
the Plaintiff’s favour. The Plaintiff was definitely instructed by the
Defendant to carry out the variation works which are the subject of the
present claim.
The 26 VOs
[50] That, however, does not deal with the Plaintiff’s claim. In order to
determine the plaintiff’s claim, we need to see how the Defendant has
treated or responded to the various claims. I note that the Defendant has
chosen to focus its defence on the larger items. The Defendant’s learned
counsel has grouped or categorized the relevant and inter-related claims
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together. I find that most useful and practical and I shall deal with the
Plaintiff’s claims in like manner assisted by the Schedule of Claims,
prepared jointly by the parties upon the Court’s directions for use at trial
This Schedule, known sometimes as a Scotts Schedule or Claims
Schedule is prepared with information or data provided by both parties. It
sets out the detailed claims and responses of both parties in a tabulated
form and is meant only as a guide to assist in following those claims and
responses. This useful and practical format greatly enhances the
comprehension and handling of especially multiple claims where there
are numerous details to examine.
[51] A copy of the Schedule is also attached to the plaintiff’s written

submissions.
[52] From the submissions and the evidence before the Court, the areas
of the works which are in material dispute in the 26 VOs are:
i. plastering work extra thickness - VOs 7, 12, 16* and 24

ii. external beading and groove line - VO 6*
iii. touch up mechanical and electrical defects - VO 8
iv. lift door jamb - VO 10
v. night work - VO 11*
vi. skim coating to external slab soffit - VO 20
vii. extra preliminaries - VO 21*
viii. touch up staircase - VO 25
[* - not approved]
20
[53] The above shows that the areas of dispute involve only 11 out of the
26 VOs. Of these 11 VOs, the Defendant has not approved 4 [the ones
marked with “*” above] while the rest were approved but for lesser sums
than claimed. Save for another 4 VOs, namely VOs 4, 15, 18 and 19
where the defendant approved amounts which were more than what the
plaintiff claimed, all the remaining VOs not dealt with by the defendant in its
submissions were approved for sums lesser than claimed.
[54] Thus far, the defendant’s position on all 26 VOs may reasonably be
summed up as follows:
i. that the defendant seriously contests VOs 6, 11, 16 and 21; and
ii. that the defendant maintains its assessment of the remaining
VOs and the Plaintiff is to show sufficient proof and value of
work done.
[55] I propose to deal with VO 21 when I deal with the third issue as this
claim for extra preliminaries is related and dependent on the determination
of that issue. I shall further deal with the VOs according to the relevant
works; as submitted by both parties.
i. Plastering work - extra thickness [VOs 7, 12, 16 & 24]
[56] The Plaintiff’s claims in these 4 VOs are for extra thickness of
plastering work at various locations in the project. The relevant VOs are 7
21
[shear wall], 12 [external plastering], 16 [staircases at levels 9 and 10] and

24 [extra plastering and render work on the external fencing].
[57] The total sum claimed under all four VOs is RM1,345,184.87. The
Defendant approved a sum of RM572,238.89 for VOs 7, 12 and 24. VO 16
was not approved at all. According to the Defendant, the approval was a
goodwill payment by the Defendant’s management when actually there
were no instructions for such works; and that the Plaintiff ought to have
notified the Defendant before proceeding with the works; aside from a
dispute as to the quantity of work done.
[58] The Defendant has also sought to make an issue that such extra
plastering was occasioned by the Plaintiff’s own defective work to start
with; and that it is “unrealistic and unreasonable to plaster almost the entire
external wall with extra thickness, …89% of the total external area of
30,859.46 m2 is said to be affected”. The Defendant also submitted that
under the letter of acceptance, the thickness for external and internal
plastering is 20 mm whilst skim coating is 6 mm. The records show that
the plastering thickness to RC wall/shear wall ranges from 10 mm to 35
mm [pages 555 to 626 of CBD B2]. Random checks found the thickness of
these walls to be within the 20 mm specification. This means there was no
extra thickness of plastering done by the Plaintiff. The Defendant added
that the Plaintiff had also been paid for such works
[59] This line of submission and defence is without merit. Contrary to the
contention of the Defendant, the original plastering of the shear wall (which
22
is actually a reinforced concrete wall) is stipulated in the BQ as 6 mm [see

page 6 (ag) of CBD A, items B and C of “Element - Wall Finishes”].
[60] On the issue of instruction, the Court has already found that the VO
works were directed by the Defendant. In fact, for VO 7, the Court accepts
that the Defendant’s Calvin Mah had instructed this work to be done. The
Defendant instructed the Plaintiff to straighten the shear wall at the units
that were slanted. The slanting of the walls cannot be visited on the
Plaintiff since they were not constructed by the Plaintiff. The Plaintiff was
at the site or was involved in this project just do the plastering work. The
Plaintiff’s completed works needed to be jointly inspected, verified and
measured. Yee, the Defendant’s site supervisor attended to these matters
for the Defendant.
[61] The claim for the works under VO 7 is calculated by multiplying the
area of work measured on site [25,194.06 m2] by the rate of RM17.50 per
m2 to derive at the value of RM440,896.05. The measurements and
drawings for this work can be found at pages 279 to 535 of CBD B1; and
pages 536 to 626 of CBD B2.
[62] I observe that there is actually no dispute on the chargeable rates.

This can be seen from the Defendant’s draft certification of payment at
page 2280 of CBD B6; it is only the quantity of the area of work done that
is. The parties had jointly inspected 92 out of 126 units even though the
Plaintiff had done work to all 126 units. The Court is satisfied that the
Plaintiff did indeed carry out the works to all 126 units. Hence, the Plaintiff
is entitled to be paid for the full amount in VO 7.
23
[63] As for VO 12, the Plaintiff’s claim is arrived at by multiplying the area
of work with the rate: 27,593 m2 x RM31.37 m2 = RM865,595.41. The
Defendant certified only 50% of this claim. The Court finds that the works
here have in fact been fully completed as seen from the documents at
pages 536 to 626; 922 to 935 of CBD B2. These works also have been
properly measured by PW2.
[64] From this evidence, it would appear that the Defendant actually does
not dispute that this work has been fully completed as there was a joint
inspection carried out on 12.7.2013 to verify completion of works.
However, the Defendant paid only 50% upon instructions of one of its
directors, Wie Hock Beng. Given that the Plaintiff has fully completed the
works under VO 12, the Court finds that the Defendant must pay the full
amount claimed by the Plaintiff.
[65] I must add that in the case of VOs 7 and 12, despite having
conducted the joint inspections, the Defendant did not verify the actual
measurements of the quantities of work done by the Plaintiff. I agree with
the Plaintiff that where the Defendant has chosen not to verify, then the
Plaintiff is entitled to use its measurements. The Defendant cannot use the
cover of “goodwill” to excuse its non-verification. In any case, it is not the
Defendant’s case that the Plaintiff has not carried out the sub-contracted
works according to the sub-contract specifications. The Defendant’s case
is that the VO claims are not according to the agreed terms in respect of
written instructions, documents and agreed rates.
24
[66] Moving on to VO 16, although there was no joint measurement for

this variation work, there is evidence to the effect that the Defendant’s
representative, DW2 had verified that the work under this VO was in fact
done and executed by the Plaintiff. The Court is satisfied with the evidence
produced by the Plaintiff in relation to this work which is the Plaintiff’s
measurement of the work done [see page 983 of CBD B3]. There is
actually no evidence from the Defendant to controvert this claim save that
this claim has been accounted for under the Defendant’s payment for VO 7
and VO 12. This claim under VO 16 is therefore sustainable.
[67] In the case of VO 24, there is no evidence from the Defendant that
the Plaintiff’s measurement and calculation for such work is erroneous. For
this VO, the Court notes that Choo in cross-examination had agreed that
this work has been done; the dispute is only as to the extent of work done
[see page 68 Vol. 4 of Notes of Evidence]. The issue of lack of instruction
therefore does not arise.
[68] I find that Wan has diligently and professionally carried out his job
and there is no reason to doubt the correctness and truth of his testimony
on this as well as the rest of his evidence. I, therefore find the Plaintiff’s
claim on VO 24 also proved.
ii. external beading - VO 6
[69] In relation to VO 6, the Plaintiff’s claim is for the sum of RM43,337.55

for external corner beading and groove line. According to the Plaintiff, this
25
work falls outside the Plaintiff’s original scope of the sub-contract under the
bill of quantities attached to the sub-contract. The BQ only provided for
internal corner beadings whereas VO 6 is a claim for external corner
beadings [see CBD A: page 6(t) - items R & S; page 6 (ab) - items H & J;
page 6 (af) - items E & F; page 6 (ag) - items E & F].
[70] The Defendant has disallowed this claim on the basis that this is a
double claim as it is a contract item [see page 2272 of CBD B6].
[71] Having examined the evidence, the Court disagrees with the
Defendant. The Plaintiff’s witnesses have provided proper explanation for
this work; that the claim is distinctly for external beading where the work is
found outside the building whereas the sub-contract only provided for
internal corner beading found inside the building. DW2, Choo, has also
confirmed that the BQ only provides for internal corner beading.
[72] What is more important is that there is evidence of such work being
done by the Plaintiff and this is actually not disputed by the Defendant.
This item is consequently allowed.
iii. Touch up mechanical and electrical defects - VO 8
[73] The Plaintiff’s claim under VO 8 is for the sum of RM126,000.00.

This claim is for, as the name suggests, “touch up for M&E works”. This
work was occasioned by the Defendant’s other sub-contractors which
included the M&E workers, plumbers, electricians, air conditioner works
etc. There were no rates agreed.
26
[74] The Defendant approved only a sum of RM1,684.06 on the basis of

work carried out without instructions or notifications; no substantiating
documents; rates were not as per BQ; and the rate of RM1,000.00 per unit
is too high and unreasonable. The Defendant valued the works at
RM1,684.06 also because the Defendant believed that all casing and
patching work was done by the M&E contractors. The Plaintiff “merely did
some of the plastering and skim coating work which was minimal”.
[75] On the issue of instructions, this is no longer in contest in view of the

earlier findings. In any case, Choy testified that the Plaintiff was instructed
to carry out these works, complete them and then submit the claims later. I
find his evidence credible and further supported by the Defendant’s own
conduct of paying for the work done, although minimal.
[76] The Plaintiff has first of all explained the sequence of work involved.
The Plaintiff completes the brickwork, plastering and then skim coating for
all walls of the unit. The M&E sub-contractors etc hacks the completed
walls to install their respective plumbing, wiring, piping etc. These sub-
contractors then patch up the affected area but it is left to the Plaintiff to
bring the state of the walls back to that when the Plaintiff first completed it.
This would include smoothening, re-plastering, and skim coating the entire
affected wall and not just a patch.
[77] The Plaintiff’s explanation of these works makes sense and is evident
from the photographs tendered. The Defendant does not deny the need for
27
such works; just the rate that it should be charged. And, such works were done
in all 126 units.
[78] The Plaintiff has offered the documents in support of this claim [see
pages 628 to 669 of CBD B2]. Choy testified that the claim of
RM126,000.00 is based on a lump sum of RM1,000.00 per unit [126 units].
This sum was for double handling, additional charges for labour to mobilize
the materials and labour to different floors as well as for cost of materials
and labour based on market rates for work done. The details are at page
628 of CBD B2.
[79] I accept the Plaintiff’s evidence and explanation on this claim. It is

not enough for the Defendant to work on mere estimates. If the rate
claimed by the Plaintiff is not a fair market rate, then the Defendant must
lead evidence on what is. Since it has not, the Court accepts the Plaintiff’s
evidence on this claim which is consequently, allowed.
iv. Lift door jamb - VO 10
[80] This work relates to sealing the excess space or gaps left around the
lifts after the lifts are installed into the lift shaft with bricks and plastering.
This work involved hacking, bricklaying, plastering and skim coating works.
There are instructions for these works. The nature of work involved is not
in dispute.
28
[81] The Plaintiff’s claim is for the sum of RM159,200.00 involving 199
units of lift door jambs at RM800 per unit [discounted from RM841.59] for
labour and materials with the number of lift door jambs. The details of the
Plaintiff’s claim can be seen at page 682 of CBD B2. The cost of labour for
the different works are carefully set out: hacking work was 2 persons x 2
days @ RM75.00 = RM300.00; cleaning: 2 persons x 1 day @ RM75.00 =
RM150.00; bricklaying: 1 person x 1 day @ RM75.00 = RM75.00; plasterer: 1
person x 1 day @ RM75.00 = RM75.00; and skimcoater: 1 person x 1 day
@ RM75.00 = RM75.00; bringing a total labour cost of RM675.00/nos.
There is a separate cost for bricks and mortar.
[82] The Defendant approved only a sum of RM85,400.85. The

Defendant claimed that fewer manpower was used than claimed; that the
photographs only showed 9 lift door jambs as opposed to 199 units.
[83] After considering the evidence, I am satisfied that the Plaintiff has
executed the works to the value claimed. At the time of certification, the
number of lift door jambs was not in dispute; only the rate. I accept the
Plaintiff’s claim that there were indeed 199 lift door jambs involved and that
the rate used by the Plaintiff is a fair and reasonable market rate. There is
no basis for the Defendant’s rate of RM429.15 per unit which was only
based on “observation and assessment of work done”. No evidence has
been led to rebut the Plaintiff’s evidence. This claim is accordingly allowed.
29
v. Night work - VO 11
[84] In relation to the claim for VO11, this is a claim for the sum of
RM306,860.40 for night work. This is one of the four claims which were not
approved by the Defendant. In this claim, the Plaintiff claimed for increase
of labour costs from 27 workers to 215 workers.
[85] The claim is denied as the Defendant maintains that this work was
necessitated by the Plaintiff itself who was in delay. The Plaintiff then had
to do catch up works including carrying out such night-work. The
Defendant also maintains that the Plaintiff had failed to produce valid day-
work records verified by the Defendant’s representatives which will show
the need to do night-work in the first place.
[86] The Plaintiff’s third witness, Choy, has explained that these works
too, were instructed by the Defendant. The Plaintiff relies on the
Defendant’s Site Memo 271 dated 28.5.2013 found at page 3545 of CBD
B10. This instruction is furthermore confirmed by Choo, the Defendant’s
Quantity Surveyor.
[87] Choy testified that these works became necessary consequent to the
delay in the completion of the structural work at levels 6 to 10. The
Defendant instructed the Plaintiff to complete the night-works so that the
project could be completed by 30.8.2013. Choy explained the instruction
necessitated the Plaintiff paying its workers overtime over and above the
daily wages for work at night [see pages 690 to 919 of CBD B2].
30
[88] The Plaintiff has carefully broken down the respective types of labour
engaged at the material time. Kong cards or timesheets and photographs
were produced as evidence of work done. See for example pages 691 to
919 of CBD B2; and pages 57 to 78 of CBD B. A summary of the
payments involved can be found at page 690 of CBD B2. It sets out the
details of workers involved, by reference to the type of work whether skim-
coaters, plasterers, carpenters or general workers; the numbers involved;
and the time spent.
[89] I have carefully examined all these pieces of evidence and I am

satisfied that the Plaintiff has proved its claim on these items. The Plaintiff
through the testimonies of PW1 and PW2 has provided a reasonable
explanation for such work; provided sufficient proof including corroborative
contemporaneous documentary evidence of such work being done; and the
calculations for such sum claimed.
[90] I must add that the Plaintiff did not use the Defendant’s labour for
such works. Consequently, this claim in VO 11 is allowed.
vi. Skim coating to external slab soffit - VO 20
[91] The Plaintiff’s claim was for RM66,528.00. The Defendant approved
RM20,765.80. The Defendant had requested the Plaintiff to skim coat the
ceiling or floor slab outside each of the 126 units to make the slabs more
even. This again was outside the Plaintiff’s scope of works as the slabs
were constructed by the Defendant’s other sub-contractors.
31
[92] The Plaintiff’s claim was based on a lump sum figure of RM528.00
per unit based on labour and materials involved [see page 1017 of CBD
B3]. The Defendant’s lower sum is calculated at RM471.95 per unit for 44
instead of 126 units. The Defendant submits that the photographs show
only 44 units completed.
[93] From the evidence adduced by the Plaintiff, the Court is satisfied that
the Plaintiff has indeed completed this work for all 126 units. I find the
Plaintiff’s witnesses more credible than the Defendant’s; that the
photographs are more representative as opposed to being the
comprehensive and complete piece of evidence of work done; that there
are no photographs of uncompleted units before the Court; and that the
Plaintiff’s rates are fair and reasonable. This claim under VO 20 is
accordingly allowed.
[94] As mentioned earlier, I shall deal with VO 20 when dealing with the
third issue. Now, for the final item of claim, which is on VO 25.
vii. Touch up staircase - VO 25
[95] The Plaintiff claims a sum of RM48,600.00 for the touch up work
done on staircase damages by the Defendant’s other sub-contractors. The
Defendant approved only a sum of RM1,591.65. It is the Defendant’s case
that the work was actually done by the other sub-contractors and that there
were no conclusive evidence produced by the Plaintiff for this claim.
32
[96] The Plaintiff has adduced sufficient evidence to show that it had
touched up various damaged areas of the staircase from Basement 1-3,
Ground to the 9th floor; a total of 13 floors [see pages 1087 to 1130 of CBD
B3 and the related photographs]. I am satisfied that the Plaintiff has done
this work at the 162 areas and that the work was not done by other sub-
contractors as claimed by the Defendant. In fact, I find this contention of
the Defendant without basis; and more in the nature of guesswork.
[97] The Plaintiff’s claim is arrived at by multiplying the cost of labour

[RM528.00 per unit] x 162 areas. I find the rate fair and reasonable and the
claim is therefore allowed.
The remaining VOs
[98] On a totality of all the evidence before the Court, there is satisfactory
evidence led to the effect that the Plaintiff was indeed instructed by the
Defendant to carry out each of the works in the 26 VOs. I have gone
through each of the 26 VOs and I agree that there is evidence to show that
the Defendant has either agreed to the existence of the instruction; or that
the work was confirmed to have been 100% completed but the Defendant
either does not agree on the rates or the quantities.
[99] The evidence shows that the Defendant has also conducted joint
inspections of 92 out of the 126 units; and has no complaints of such
works. The matter of thickness of the plastering could have been easily
ascertained at the material time if there was dispute. The Defendant never
did; I can only conclude that the work was satisfactorily done. The only
33
issue the Defendant had with the Plaintiff was the purported delay in
completion of works. For this, I am satisfied that the Plaintiff has
addressed this and taken the necessary measures.
[100] There is no evidence that the rates applicable must be the BQ rates
in all 26 VOs. There is also no evidence that the quantities claimed by the
Plaintiff is erroneous since there were no measurements done by the
Defendant. I accept the evidence of measurements made by the Plaintiff in
support of its claims.
[101] As for the rest of the claims, for which the Defendant has actually
made no submissions; the Court is satisfied that the Plaintiff has in fact
proved its case. There is sufficient evidence before the Court to prove the
amount and value of the work done in all 26 VOs. The Defendant was
invited to conduct joint inspections and I accept that the Defendant had put
such inspections off or had thought them unnecessary; it cannot now
complain.
[102] I agree with the Plaintiff that there is nothing to be made of the so-
called sudden increase in the sums claimed. First, Progress Claim No. 15
dated 25.5.2013 did not include the VO claims. These came in Progress
Claim No. 15A and even then it was only for VO 1 to VO 3 and a part of VO
4 and VO 5. At the Defendant’s request, the Plaintiff submitted the rest of
the VOs, that is, up to VO 10, VO 13, and part of VO 11 and VO 12; which
is why the sum increased substantially. By the time of Progress Claim No.
16, the VOs went from VO 1 to VO 22 while in Progress Claim No. 17 it
34
went all the way to VO 26. Therefore, the Plaintiff’s claims for the works
relating to the 26 VOs is proved and accordingly, allowed.
[103] I do not find it necessary to determine the second question on

quantum meruit since I have found for the Plaintiff by virtue of the first
question.
Whether there was a delay in handing over a duly completed

structure for the Plaintiff to start work at the relevant time?
[104] This issue relates to the Defendant’s Counterclaim. If there was

delay by the Defendant in handing over a duly completed structure for the
Plaintiff to start work, then the Defendant cannot impose and claim
liquidated and ascertained damages. It is the Defendant’s case that it is
not in delay; but the Plaintiff is.
[105] This was the Defendant’s testimony on this issue. Basically, Yip’s
evidence was that the Plaintiff did not complete the works on 19.11.2012;
and that the works were delayed until the Plaintiff left the site in August
2013 without proper handing over. He testified that from this observation,
the Plaintiff lacked skilled labour to do the contract works. The Plaintiff’s
work displayed “very poor workmanship, poor work quality and poor site
management by their supervisors and mismanagement in handling their
workers resulting in the delayed work programme”.
35
[106] According to Yip, he and his assistants “issued numerous site memos
to the Plaintiff urging the Plaintiff to be more efficient in its site management
and if necessary engage competent workers, to increase manpower
especially skilled labour, and to work out work programme to be followed
for the smooth execution of the works”. These site memos are to be found
at pages 3476 to 3555 of CBD B10. In these site memos, the Defendant
had also put the Plaintiff on notice of its intention to impose LAD.
[107] Yip’s testimony was that the Plaintiff had admitted to being in delay
[see letter dated 7.8.2012 at pages 28 to 30 of CBD B]; that the Plaintiff
asked for an advance [see letters at pages 25 to 27 and 31 to 44 of CBD
B]; that due to the Plaintiff’s tight cash flow, the Plaintiff requested the
Defendant to purchase materials and necessary machineries on its behalf
to which the Defendant agreed on condition that these purchases will be
back charged to the Plaintiff with a 2% administration charge imposed. Yip
explained that the Defendant agreed to the Plaintiff’s requests because the
Defendant had “no choice” as it had “its own schedule to catch up with the
Employer under the main contract. Any delay by the Plaintiff would affect
the Defendant’s progress of works with the Employer”. For the same
reason, Yip said the Defendant “supplied more skilled workers to the site
for the Plaintiff’s team in order for them to catch up the work schedule
which the Defendant had notified that it will be back charged to the
Plaintiff”.
[108] On the matter of completion of the works, Yip claimed that the
Plaintiff was in delay; and that the Plaintiff never asked for any extensions
of time.
36
[109] To answer this issue, I agree with the Plaintiff that the sequence of
works is material. It is necessary to first of all understand where and how
the Plaintiff’s work interfaces with the Defendant’s other work and the work
of the Defendant’s other sub-contractors for it is clear that the Plaintiff’s
work is but one of the many aspects of work carried out in relation to the
project. And, just to remind ourselves, the project is to build a 10 storey
building comprising 126 units of condominiums together with a multi-level
carpark and various facilities and amenities. The Plaintiff is responsible
only for the sub-contracted works of brickworks, plastering, cement
rendering and skim coating of the project. The sequence of works is
therefore both relevant and important.
[110] It is the Plaintiff’s case that the Defendant would have to hand over
the site before the Plaintiff can commence work. Choy testified that the
Plaintiff could only commence work “once the structure of the building has
been erected and completed, and the floor level is clear of any obstruction
including the removal of any scaffolding, formwork, rubbish etc”. According
to Choy, the “normal construction practice” envisaged the Plaintiff to
commence its sub-contracted works approximately 30 days after the
casting work had been completed by the Defendant. This meant that
although the Plaintiff took site possession on 12.3.2012, it could not get on
with its work because the areas for the Plaintiff to work were simply not
available save for Basements 2 and 3 of the building. These were the only
areas handed over to the Plaintiff to start work as these were the only
areas which had been erected.
37
[111] The Plaintiff relies on the Defendant’s own documents to support this
contention. For example, the Defendant’s own progress claims numbers 1
and 2 submitted to the employer on 28.3.2012 and 27.4.2012 respectively;
and the Defendant’s applications for extensions of time [see pages 2180 to
2218 of CBD B6, page 2694 of CBD B7; and pages 5623, 5626, 5628 and
5634 of CBD B16]. These claims were certified by the Defendant on
9.4.2012 and 12.5.2012 respectively [see pages 2694 to 2714 of CBD B7].
The veracity of these documents is not in issue.
[112] These documents show that at that material time, these were the only
levels ready as a result of changes to the structural design of the Ground
Floor and Level 1 in mid-March 2012.
[113] Choy further referred to minutes of meetings in support of the

Plaintiff’s contention that the Defendant was in delay in handing over the
necessary areas for the Plaintiff’s work [see pages 3767, 3836 of CBD B10;
pages 3864, 3979 and 4062 of CBD B11 for the various minutes].
[114] At these meetings, it was recorded that the Defendant’s concrete

casting work schedule for levels 2, 3, 4 and 5 were only expected to
commence respectively on 25.7.2012; 27.8.2012, 20.9.2012 and
8.10.2012. Photographs taken at the relevant time were also offered in
further support [see pages 1038 to 1040 of CBD B3]. According to Choy,
the Plaintiff completed the works at Basements 2 and 3 sometime in May
2012. The Plaintiff finally completed all works under the sub-contract in
July 2013.
38
[115] Therefore, although the date of completion for the whole sub-contract
work was 19.11.2012, Choy testified that it “would be impossible for the
Plaintiff to complete the whole sub-contract works as the structural works of
the building in November 2012 were only built up until level 5”. The sub-
contract works was for all 10 floors, and basements.
[116] Pan [PW4], the Architect, corroborated Choy’s testimony on the

sequence of works, that generally the Plaintiff’s plastering works would be
at two floors below that of the Defendant’s; that for Plaintiff to commence
or carry out its work, the Defendant’s work on the structure must first be
completed and the area available for the Plaintiff to carry out the plastering
work. Pan also testified that the Defendant had applied for three
extensions of time, EOT, all of which were approved.
[117] Having examined the evidence, I must agree with the Plaintiff’s
explanation which is corroborated independently by Pan. The Defendant is in
fact guilty of being in delay in handing over the site for the Plaintiff to
carry out its works. As the party at fault, the Defendant is not entitled to
impose any LAD - see Poh Geok Sing v. HB Enterprise Sdn Bhd [2006]
1 MLJ 617; Golden Vale Gold Range & Country Club Sdn Bhd v. Hong
Huat Enterprise Sdn Bhd (Airport Auto Centre Sdn Bhd & Anor, third
party and another appeal) [2008] 4 MLJ 839.
[118] Before leaving this issue, there is the matter of the Plaintiff’s claim for
extra preliminaries of RM100,000.00 under VO 20. This claim relates to
general costs and expenses incurred by reason of the Plaintiff having
39
extended its work as a result of the structural works not being completed by
the Defendant within the expected 8 month period. The Plaintiff claimed
that because of the sequence of works, that the Plaintiff could not
commence work until the Defendant had handed over the work area, the
Plaintiff’s workers had to stay idle and could not move to other floors to
commence work.
[119] The Defendant has rejected this claim on the basis that the initial
preliminary of RM100,000.00 had already been provided in the sub-
contract, The sum has been progressively claimed by the Plaintiff; and
there is no basis for another similar claim. The Defendant submits that the
Plaintiff has also not applied for any extensions of time to warrant this
claim. The Defendant claimed that the fact that there was no extension
shows that the Plaintiff has no ground to substantiate such an application.
Consequently, this claim is not sustainable.
[120] From the sequence of works and from the Court’s determination that
the Defendant is in delay in handing over the site to the plaintiff for the
Plaintiff to commence work shows that the Defendant’s argument is without
merit. The delay in the Defendant’s handing over has caused these losses
which are losses that generally arise in such events; and I agree that the
Plaintiff is entitled to this claim and to the amounts sought; for which I find
no real serious challenge by the defendant.
40
Whether the Defendant is entitled to claim for back charges from

the Plaintiff?
[121] In this respect, I must point out that the parties were invited to clarify
the details on the payment schedule that had been prepared for trial. I had
sought some clarification on the details entered in relation to back charges.
The parties were given time to respond and they have done so.
[122] In this issue, the Defendant counterclaims for back charges for
materials, penalties and labour. The Plaintiff disputes this claim on the
principal ground that there was no agreement for such imposition; that
there was no agreement on the rates; that the Defendant never issued
debit notes to the Plaintiff for such charges; and most importantly, the
Plaintiff never used the labour purportedly provided.
[123] According to the Plaintiff, it only agreed to be back charged for

materials and penalties; and the sum comes up to RM1,646,328.35. What
it disputes is to be back charged for labour. After deduction for the
admitted back charges, the Plaintiff claims that the Defendant is still liable
to pay the sum of RM1,581,387.10.
[124] The Court accepts that the Plaintiff did not have sufficient manpower
on site. The evidence however show that the Plaintiff had attended to this
by increasing the numbers. There is no evidence that such labour or
manpower was provided by the Defendant. The Court accepts the
41
Plaintiff’s argument that the kong cards were signed to assist the workers
to make their claims.
[125] I am satisfied that there were no agreements for the Defendant to

back charged such labour costs to the Plaintiff. There is no evidence of the
Defendant telling the Plaintiff that it had supplied the necessary labour and
that it was reminding the Plaintiff of such an arrangement, that it would be
back charging for such expenses later. There was certainly, no indication
from the Defendant at the material time.
[126] I am further satisfied with the Plaintiff’s explanations on how it paid for
the back charges at the material time; and that the amount sometimes were
more than was required.
[127] According to the Plaintiff, it had trusted in the accuracy of the

information provided in the certified payments since the Defendant was the
party who had the proper and full records of the materials supplied by them to
the Plaintiff. The Plaintiff had paid the sums back charged on the
understanding that the sums imposed were for the contractually agreed item
of materials. It was not, and, it was never intended to be for the item of
labour, which it had never been consulted at the material time; nor did it
ever agree to the same. The Plaintiff added that the Defendant never back
charged for labour in any of the earlier progress claims [nos. 1 to 15] and
the related payment certificates. All certifications were for materials only,
as agreed.
42
[128] Finally, on the matter of debit notes issued by the Defendant. These
debit notes are for materials, machinery and labour which the Defendant
sought to back charge to the Plaintiff. Choy testified that the Plaintiff
disputed the debit notes for labour charges on the basis that the Plaintiff
had never received these notes; and that there was never any agreement
for such payment. It was Choy’s evidence that the Plaintiff got its own
workers to carry out the sub-contracted works.
[129] The Plaintiff has also analyzed the Defendant’s claims for back
charges and has concluded that if indeed the Defendant had been back
charging the Plaintiff even then for labour, then the amount certified should
have been RM2,130,973.07; and not RM1,334,738.83. The claim is
therefore not supported by the defendant’s own evidence.
[130] I find it unexplained why such a substantial sum for such a substantial
period was never claimed by the Defendant at the relevant time until the
last two progress claims. These claims are really for the Defendant’s own
work, which was delayed by the Defendant itself; and are unrelated to the
Plaintiff’s claims and neither are they caused by the Plaintiff. Under such
circumstances, I do not find the Defendant’s claims, proved.
Conclusion
[131] For the above reasons, the Court is satisfied that the Plaintiff has
proved its case on a balance of probabilities. The Plaintiff’s claim for the
amended sum of RM2,319,624.49 is accordingly allowed with interest at
43
the rate of 5% per annum from the date of judgment to the date of
realization.
[132] The Court is not satisfied that the Defendant has proved its
Counterclaim. The Defendant’s Counterclaim is consequently dismissed.
The Court makes a single order of costs of RM75,000.00 to be paid to the
Plaintiff, as proposed by both parties and which the Court finds both
reasonable and appropriate in the facts and circumstances of this case.
Dated: 3 NOVEMBER 2015
(MARY LIM THIAM SUAN)

JUDGE
HIGH COURT KUALA LUMPUR
Counsel:
For the plaintiff - Prem Anand s/o Theruvengadam, (Nicole Chee Chai
Kuan with him); M/s Deol & Gill
For the defendant - Tan Tai Hwa, (Ellen Goh Ngai Lun with him); M/s
Tai Hwa & Co
44

(COMPANY NO: 401658-P) : (2015) 1 LNS 1318 Legal Network Series

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(COMPANY NO: 401658-P) : (2015) 1 LNS 1318 Legal Network Series

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[2015] 1 LNS 1318 Legal Network Series

IN THE HIGH COURT OF MALAYA AT KUALA LUMPUR

CAPITAL HABITAT BUILDER SDN BHD … PLAINTIFF

PESONA METRO SDN BHD ... DEFENDANT

CONTRACT: Building contract - Claim for additional and/or variation

CONTRACT: Building contract - Claim for liquidated and ascertained

contractor's structure work - Whether main contractor was entitled to any

CONTRACT: Building contract - Claim for expenses - Claim by

[Plaintiff’s claim allowed with costs and defendant’s counterclaim

Some background facts

in a project to develop a 10 storey building comprising 126 units of

condominiums together with a multi-level carpark and various facilities and

[3] The value of the sub-contract price was subsequently reduced to

[6] The Plaintiff’s present claim is for that sum of RM2,315,045.00.

failed to confirm the Plaintiff’s claims. The Defendant has nevertheless

[11] Four issues were formulated for determination:

i. Whether the Plaintiff was instructed to carry out the variation

ii. Alternatively, whether the Plaintiff is entitled to claim for

variation works on a quantum meruit basis?

iii. Whether there was a delay in handing over a duly completed

structure for the Plaintiff to start work at the relevant time?

iv. Whether the Defendant is entitled to claim for back charges

from the Plaintiff?

posed in the Plaintiff’s favour. Consequently, the Court allowed the

Plaintiff’s claim and dismissed the Defendant’s counterclaim. These are

Whether the Plaintiff was instructed to carry out the variation

[15] After evaluating the evidence, I disagree with the Defendant.

contract specifications. Another reason is that the joint inspections

[17] Furthermore, on the strength of the Defence, especially paragraph 5, it

[18] As for the evidence adduced at trial, this is a summary of the

[23] The Plaintiff’s progress claims were prepared by Wan Mohd

[28] Now, the evidence of the Defendant’s own witnesses is most

“…We are generally practical in approaching such issue so

[33] This procedure was followed in 15 progress claims. According to Choo,

[34] Specifically, and on the matter of written instruction, whether it was

“Usually the best is of course if written instruction for variation works

[36] Low also generally echoed Yip’s evidence. As Contracts Manager in

2, 6 and 8. The document was countersigned by Yee and Calvin including

[40] This is what clause 15 provides:

15. Variation Orders

Variation issued by the Main Contractor shall be deemed to form part of

The valuation of variation shall be made in accordance with the following

(ii) Where work is not of a similar character or executed under similar

(iii) Where work cannot be measured or valued, the Sub-Contractor

[41] As for Clauses 12 and 16, contrary to the defendant’s submissions,

The Sub-Contractor shall submit his application for payment every

16. Final Account

[43] The significance or rather, insignificance of written instructions is

[44] The Defendant has also admitted that a sum of RM30,928.75 is

[46] As explained by the Defendant’s own witnesses [especially DW1 and

[47] I, therefore, find that the absence of written instructions on the VO

[51] A copy of the Schedule is also attached to the plaintiff’s written

i. plastering work extra thickness - VOs 7, 12, 16* and 24

i. Plastering work - extra thickness [VOs 7, 12, 16 & 24]

[shear wall], 12 [external plastering], 16 [staircases at levels 9 and 10] and

is actually a reinforced concrete wall) is stipulated in the BQ as 6 mm [see

[62] I observe that there is actually no dispute on the chargeable rates.

[66] Moving on to VO 16, although there was no joint measurement for

ii. external beading - VO 6

[69] In relation to VO 6, the Plaintiff’s claim is for the sum of RM43,337.55

iii. Touch up mechanical and electrical defects - VO 8

[73] The Plaintiff’s claim under VO 8 is for the sum of RM126,000.00.

[74] The Defendant approved only a sum of RM1,684.06 on the basis of