Malaysia in the High Court in Sabah and Sarawak

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S-22-15-2006

MALAYSIA IN THE HIGH COURT IN SABAH AND SARAWAK AT SIBU SUIT NO. 22-15 OF 2006 5

BETWEEN MILLION BONUS SDN. BHD.

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(Company No. 494772-K) TB4281, 2nd Floor, Block A, Jalan Masjid, P. O. Box 61598, Tawau, Sabah

… AND

Plaintiff

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HUNG LING SAWMILL SDN. BHD.
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(Company No. 106694-X) Bangunan Hung Ann, No. 1, Jalan Bujang Sutong 96000 Sibu, Sarawak.



Defendant

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BEFORE THE HONOURABLE JUDICIAL COMMISSIONER Y.A. DR. HAJI HAMID SULTAN BIN ABU BACKER 30

IN OPEN COURT JUDGMENT 1. This is my judgment in respect of (i) the plaintiffs’ claim against the defendant relating to costs and expenses to demobilize

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plaintiffs’ heavy machinery and equipment amounting to RM4,487,922.22 arising from a logging agreement dated 24-2-2005 (said agreement) with interest and costs. (ii) the

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defendants’ counterclaim amounting to RM882,809.81 with interests and costs.

2.
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At the commencement of the hearing, parties have agreed that the case can be heard by way of: (i) witness statement for examination in chief; (ii) preliminary cross-examination witness statement, with full liberty to further cross-examine orally (for purposes of cross-examination); (iii) preliminary re-examination statement with full liberty to further re-examination if there is further oral examination. The court is extremely grateful to the parties for agreeing to such a mode as the preliminary cross-examination witness statement will save much of the court’s time to deal with peripheral matters and for all practical purposes, preliminary cross-examination witness statement will stand as

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interrogatories and answers thereto only, as the right of oral cross-examination to the litigant is preserved during the whole trial. 20

Three witnesses gave evidence for the plaintiff and seven witnesses for the defendant.

Preliminary
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3.

It is important to note in this case, that the plaintiffs in the pleadings have not identified any clause which the defendants are said to have breached. The head of damages which the plaintiffs are seeking is not provided for in the agreement.

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Further, the events for termination are also set out in para x of the agreement. In particular sub-clause 2 of para x clearly states that the contractor shall not be liable to compensate the sub-contractor in any way, if this agreement is terminated due 5

to any fault or default on the part of the contractor. In addition, the agreement places caveat to the quantum of claim for contractual breach.

Brief facts (Plaintiffs’ version)
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4.

The plaintiffs’ case is that: (i) the plaintiffs were engaged by the defendant to do logging works at an area in Limbang, Sarawak under Forest Timber Licence No. T/0222. (ii) negotiations took place between the parties in October 2004 and a visit to survey the concession area was made by the parties. It is the plaintiffs’ case that during this survey trip, the plaintiffs were informed by the defendants the area in which the defendants wanted the plaintiffs to operate in. (iii) the said agreement was entered between the plaintiffs and the defendants and it is specifically provided in the said agreement that the defendant, their servants or agents shall, after the execution of the agreement be responsible to apply for all the requisite permits, permission or approval for the plaintiffs, to inter alia, carry out the plaintiff’s obligations. (iv) the plaintiffs mobilized its workforce from Tawau, Sabah and work commenced in areas

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of the concession as directed by the defendants’ general manager and/or camp manager. (v) the plaintiffs say the defendants were always aware of the operations and the areas

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where the plaintiffs carried out logging work and that the defendants at all material time supplied diesel, engine oil and spare parts including some equipments to the plaintiffs’...
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