KURNIA EKUITI SDN. BHD. v TM TECHNOLOGY SERVICES SDN. BHD.

Case Significance

Illustrates the treatment of an unauthenticated document tendered without its maker and the adverse inference that may follow, the exclusion of an undisclosed document raised in re-examination, and the burden on a defendant-contractor whose negligence defence rests entirely on the accuracy of a utility-mapping plan.

This High Court decision at Kuala Lumpur is a civil appeal from the Magistrates' Court in a negligence claim over damage to underground telecommunications cables. The dispute lay between a contractor, Kurnia Ekuiti Sdn Bhd, whose excavation works were said to have damaged the buried cables of the utility company, TM Technology Services Sdn Bhd. On appeal the court addressed the standard of appellate review, namely whether the trial decision was against the weight of evidence or the findings of fact were perverse or plainly wrong, and, on the merits, whether the contractor had exercised reasonable diligence in carrying out the excavation. Much of the argument turned on a utility mapping plan on which the contractor's defence was built. The court examined the admissibility and weight of that document: it was unsigned and uncertified, tendered under Part B of the Rules of Court 2012 as a document whose authenticity was not agreed, and the maker of the plan, a land surveyor, had not been called to prove it, exposing the defence to an adverse inference. The court was also concerned with an attempt, in re-examination, to refer to a document that had not been disclosed to the opposing party and did not form part of the common bundle, which it treated as inadmissible. On the pleadings, the court noted that the contractor's entire defence was predicated on the accuracy of the utility mapping, so the onus lay on the contractor to prove that defence, an onus it found had not been discharged. It follows, on the court's reasoning, that a party cannot make good a defence resting on a document while withholding the very proof that would authenticate it. The judgment is a useful illustration of the treatment of an unauthenticated document tendered without its maker, the adverse inference that may follow, and the burden on a defendant whose case rests on the accuracy of a utility-mapping plan.