SCENIC FAREAST SDN BHD v BIFORST LOGISTICS SDN BHD

Case Significance

Illustrates how a court quantifies warehouse reinstatement costs on a tenancy termination — preferring cogent proof of work actually done over bare quotations — and confirms that expert evidence not formally tendered under Order 40A rule 3 remains admissible.

This High Court decision at Shah Alam concerns an appeal from a Sessions Court judgment in a dispute over the cost of reinstating a warehouse on the termination of a tenancy. After a trial, the Sessions Court had allowed the landlord's claim and dismissed the tenant's counterclaim, the claims arising from the termination of the tenancy and the disputes over what it would cost to reinstate the demised premises to their original condition. The tenant appealed. Both parties are companies and are named.

Two evidential questions dominated the appeal. The first was whether there was an agreement, by estoppel, fixing or governing the reinstatement costs — that is, whether the parties' conduct or representations had created a binding understanding on which one side was entitled to rely. The second, and closely related, was how the court should assess the reasonable and true cost of reinstatement on the balance of probabilities, given the competing evidence. Here the court weighed the relative cogency of the available material: a party's contemporaneous records of the claims made and payments for work actually done carry greater probative weight than a mere quotation, and the court applied the reasoning in Chong Nge Wei v Kemajuan Masteron Sdn Bhd to prefer proof of work done over an untested estimate.

The appeal also raised the admissibility of expert opinion. One party challenged the opposing witness's evidence as an expert report that had not been tendered by affidavit in compliance with Order 40A rule 3 of the Rules of Court 2012. The court held, following Gee Eng Wah v Teoh Eng Keong, that a failure to tender a written expert opinion in strict compliance with Order 40A rule 3 does not render the opinion inadmissible or diminish its weight. The judgment is a useful illustration of how a court quantifies reinstatement costs on a tenancy termination — preferring cogent proof of work actually done over bare quotations — and of the flexible treatment of expert evidence not formally tendered under Order 40A.