SAIFUL SAFWAN BIN MOHAMED GHAZI v 1. ) GOH ENG SHERN 2. ) ONG ENG FEI

Case Significance

A renovation-contract claim dismissed after the plaintiff failed to appear or adduce evidence, with the defendants' counterclaim for the outstanding sum allowed on unchallenged evidence and RM30,000 costs.

This High Court decision concerns a renovation and interior-design contract dispute that was ultimately determined largely in the absence of the plaintiff. On the day fixed for trial, the plaintiff's solicitors sought an adjournment on the footing that counsel in charge was on medical leave and the plaintiff himself was absent and uncontactable. The defendants objected, and the Court had to exercise its discretion on a late adjournment application against a background of what was said to be a disinterested attitude to the proceedings. The Court declined the adjournment, and the trial proceeded with the plaintiff absent.

The consequences of that absence were decisive. The plaintiff bore the legal and evidential burden of proving his claim under sections 101 and 102 of the Evidence Act 1950, yet, having failed to file a witness statement and being absent, he adduced no evidence in support of it. The claim concerned interior-design and renovation works, including variations, and any special damages had to be specifically pleaded and strictly proved; with no evidence led, the quantum was not established. The defendants, by contrast, advanced a counterclaim for the outstanding contract sum, met by allegations of defective works and of wet works not having been completed, which raised questions of causation and of the treatment of progress payments under the contract. The defendants' evidence on the counterclaim stood unchallenged and untested by cross-examination.

The Court dismissed the plaintiff's claim and allowed the defendants' amended counterclaim, with costs of RM30,000 subject to allocatur. The judgment is a useful illustration of the risks a party runs by failing to appear and to file evidence — the burden of proof is not discharged by assertion — and of how special damages must be strictly proved and a counterclaim for an outstanding contract sum can succeed on unchallenged evidence.