Rs & L Marine Sdn Bhd V Bras Ventures Berhad & 1 Lagi


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CIVIL APPEAL NO.B-02(NCVC)(W)-68-01/2015












[In the matter of Shah Alam High Court Civil Suit No.22






RS & L Marine Sdn Bhd .. Plaintiff




1. Bras Ventures Berhad


2. Tenaga Nasional Berhad .. Defendants]








[1] The primary issue in this appeal is whether there was a concluded sub-contract between the appellant and the first respondent, Bras Ventures Berhad (“Bras Ventures”) and if so whether Bras Ventures had breached the sub-contract. At the heart of the appeal lies the question of whether the mode of payment of the contract price constitutes a fundamental term of the agreement.




[2] The suit against the second respondent, Tenaga Nasional Berhad (“TNB”) had been struck out on 14.5.2013 on the ground that the appellant had no reasonable cause of action against TNB. No appeal was filed against the striking out order. That explains why TNB is not a party to this appeal.


[3] It is the appellant’s pleaded case that when Bras Ventures instructed them to stop works after having appointed them as subcontractor for the works, they had breached the sub-contract, thereby causing them to suffer loss and damage, which loss and damage are continuing. As to how they have suffered loss and damage, the appellant says that upon being awarded the subcontract, they had taken the initiative to implement the works by doing some mobilization works and had spent considerable time, effort and money on the works.


[4] The appellant’s claim was for specific performance of the subcontract, alternatively or in addition to specific performance, damages for breach of contract in lieu of specific performance.


[5] At the conclusion of the trial, the learned trial judge dismissed the appellant’s claim with costs, hence this appeal. We heard arguments from both sides and reserved judgment to a date to be fixed. We have now reached a unanimous decision and this is our judgment.


[6] The salient facts are these. The appellant is a company that specializes in the business of submarine cable installation, repair and maintenance and has the necessary experience and




equipment to carry out the works, particularly the use of Horizontal Directional Drilling (HDD) equipment for use on land and at sea.


[7] Bras Ventures is a company that had tendered from TNB for a project known as “Installation, Testing and Commissioning of 33KV Aluminium XLPE Single Core Underground Cables” for Bras Ventures’ distribution (“the said project”).


[8] When Bras Ventures was in the process of trying to procure the said project from TNB, they expressed a desire to award a portion of the project to the appellant as they lacked the necessary equipment and manpower to carry out the works themselves. That portion of the project was known as “Kerja-Kerja HDD merentasi Sungai Manjung, Perak” (“the HDD works”).


[9] For this purpose, Bras Ventures through their project manager Mr. Ee Kian Yiaw (“Mr. Ee”) approached the appellant’s managing director, Mr. Hiew Heng Foo (“Mr. Hiew”) to enquire whether the appellant was agreeable to undertake the HDD works. The appellant agreed to undertake the works and issued a letter dated 29.5.2012 to Bras Ventures which contained a quotation. For convenience we shall refer to this letter as “the first quotation”. It contained the following proposals:


(1) The contract price would be RM9,450,000.00; and


(2) Payment was to be made in two stages. The first payment amounting to 30% of the contract price was to be deposited with the appellant prior to the commencement of the HDD




works and the remaining 70% was to be paid upon completion.


[10] Bras Ventures did not reject nor accept the first quotation. What they did was to negotiate with the appellant on the contract price and this resulted in a reduction of the contract price from RM9,450,000.00 to RM9,300,000.00. An additional sum of RM90,000.00 was agreed for the additional work of cable pulling.


[11] The contract price was thus reduced from RM9,450,000.00 to RM9,390,000.00. Both Mr. Ee for Bras Ventures and Mr. Hiew for the appellant placed their initials on the amendments to the first quotation. This handwritten variation to the contract price can be seen in the document at page 288 of Rekod Rayuan (Bahagian C) (Jilid 1/2). We shall refer to this document as “the second quotation”.


[12] Two days later, i.e. on 31.5.2012 the appellant communicated this variation to the contract price by sending to Bras Ventures the second quotation.


[13] In a subsequent letter addressed to Bras Ventures dated 5.7.2012, the appellant “confirmed” that the agreed contractual terms of the sub-contract were as stipulated in the second quotation. This letter contained amongst others the following terms, which Bras Ventures claims were different from the first quotation:


(a) a deposit of RM3,000,000.00 was to be paid by Bras Ventures upon mobilization of works (instead of




RM2,790,000.00, based on a RM9,300,000.00 x 30% computation);


(b) the date for payment of the balance of the purchase price was left open (instead of upon completion as stated in the first quotation); and


(c) the contract price did not include cable testing and commissioning (instead of cable installation).


[14] The letter was signed by the appellant but not by Bras Ventures. In fact Bras Ventures never responded to the letter and the space for their signature on the second page of the letter remained blank up to this day. This document can be seen at page 289-290 of Rekod Rayuan (Bahagian C) (Jilid 1/2). There is no evidence as to what happened after the letter was sent to Bras Ventures.


[15] On 20.9.2012, a pre-award meeting was held between Bras Ventures and TNB. At this meeting, the managing director of Bras Ventures, Dato’ Haji Ramle Nayan represented to TNB that they had appointed the appellant as their sub-contractor for the HDD works. Mr. Ee was present at the meeting. Item 14 paragraph 2 of the minutes of meeting recorded as follows:


“Berdasarkan tender, Bras Ventures Berhad telah melantik RS & L Marine Sdn Bhd sebagai sub-kontraktor yang akan melaksanakan kerja-kerja HDD merentasi Sungai Manjung, Perak.”


[16] Translated into English the minute reads:




“Based on the tender, Bras Ventures Berhad had appointed RS & L Marine Sdn Bhd as the sub-contractor who will carry out the HDD works crossing Manjung River, Perak.”


[17] Twenty days after the pre-award meeting, Bras Ventures by Letter of Intent dated 9.10.2012 informed the appellant that they had successfully secured the said project from TNB and proposed to offer the HDD works to the appellant on terms and conditions as set out in the Letter of Intent. The material contents of the Letter of Intent are as follows:


“We are pleased to inform your good selves that BRAS Ventures Berhad (BVB) has successfully secured the above mentioned project from TNB. We propose to offer to RS & L Marine Sdn. Bhd the above mentioned project based on the following details:


a. The scope of work shall consist of supply, install and joint main steel pipe casing with minimum size of 600mm diameter & 6 nos. 150mm + 2 nos 100 mm (PN12.5) by horizontal directional drilling (HDD) method at the per meter rate of RM6,200.00 (Ringgit Malaysia Six Thousand Two Hundred Only);


b. The scope of work shall also consist of cable pulling work at the per meter rate of RM60.00 (Ringgit Malaysia Sixty Only);


c. The total contract price for the 1,500 meter length of work is thus for an amount of RM9,390,000.00 (Ringgit Malaysia Nine Million Three Hundred Ninety Thousand only) based on Bill of Quantities.


d. The contract period for the works is one hundred eighty (180) days.


e. The contract price shall include mobilization, soil investigation, survey, geotechnical report, drawing and preparation of method statement.


Please indicate your confirmation to the above matter before 11th October 2012.”


[18] It is to be noted that nothing was mentioned of the 30% deposit in the Letter of Intent and the appellant on their part did not




indicate their confirmation to the proposed offer before 11.10.2012 as requested by Bras Ventures. What transpired after the issuance of this Letter of Intent was that further discussions were held between Bras Ventures and the appellant and the discussions centered on the terms of payment of the contract price.


[19] Bras Ventures made it known to the appellant that they were not agreeable to a deposit of 30% as proposed by the appellant in the first quotation. In other words there was no acceptance by Bras Ventures of the offer made by the appellant through the first quotation. The effect of this non-acceptance is that no contract had as yet been concluded between the parties: Mahabuilders Berhad v Hotel Rasa Sayang Sdn Bhd [2014] 3 CLJ 661; [2014] 10 MLJ 593, a decision of the High Court which had been affirmed by the Court of Appeal.


[20] The appellant apparently relented. By letter dated 17.10.2012, they proposed a downward revision of the deposit payment from 30% to 5%, and provided for further progress payments. The scope of work and the contract price however remained unchanged, i.e. RM9,390,000.00, inclusive of the additional works. Bras Ventures did not indicate their acceptance to the proposed reduction in the deposit payment.


[21] On 30.10.2012, TNB officially awarded the said project to Bras Ventures. The award document incorporated the minutes of the pre-award meeting held on 20.9.2012 between Bras Ventures and TNB. This was provided in clause 2(iii) of the award which stipulated as follows:




“The parties agree that the Contract Agreement, this Letter of Acceptance, the signed minutes of the pre-award meeting dated 20 September 2012, the Letter of tender, the Condition of Contract, the Employer’s Requirement and the tender shall be deemed to form and be read and construed as part of the Contract.”


[22] However, to the appellant’s dismay and in what they considered to be an about turn and a unilateral rescission of the sub-contract, Bras Ventures by letter dated 23.11.2012 informed them that they could not agree to their offer to carry out the HDD works. This was how Bras Ventures conveyed their intention not to proceed with the sub-contract:


“The above mentioned and your propose quotation ref: RSL/915-10/2012 dated 17th October 2012 are referred.


We are regretful to inform your good selves that we could not agree to your offer to carry the above mentioned work and the payment term indicated in your letter mentioned above.


We sincerely believe that your good selves had provided your best offer and we are grateful for all the efforts made.”


[23] The payment term that Bras Ventures mentioned in the second paragraph of the above letter can only refer to the mode of payment of the contract price, which obviously includes the deposit payment which the appellant had agreed to reduce from 30% to 5%.


[24] By letter of even date, Bras Ventures informed TNB of their decision not to appoint the appellant as their sub-contractor for the




HDD works. The reasons for the decision were given in paragraphs 2 and 3 of the letter and they were as follows:


“Also, we would like to inform your good selves we have decided not to appoint RS&L Marine Sdn Bhd (RSL) as our HDD contractor for the HDD works crossing Manjung River. The decision was made after some thorough inspection and study carry out unto the commercial offer, technical capability and experienced (sic) possess (sic) by RSL.


Instead of getting a subcontractor to carry out the HDD work, we have decided to carry out the HDD works on our very own resources. The brand new 550 ton HDD machine will be manufactured by XuZhou Construction Machinery Group (XCMG) specifically for this project. Arrangement had also been made to have their team of engineers and technical staffs stationed on the site to monitor the implementation of the project. Besides that, we have also been invited to attend and study their on-going project in Changcun, Northeastern China. The project entails a crossing of frozen soil including rock. It goes as deep as 18 meter from the surface and span approximately 1000m in length that come with steel pipe measuring 813mm in Diameter.”


[25] There were therefore four reasons proffered by Bras Ventures for the change of heart, namely:


(1) The commercial offer made by the appellant;


(2) The technical capability of the appellant to carry out the HDD works;


(3) The experience possessed by the appellant; and


(4) They would carry out the works themselves with the availability of the new HDD machine to be manufactured by XuZhou Construction Machinery Group (XCMG).




[26] TNB it appears was not entirely happy with Bras Ventures’ decision. This can be deduced from their letter to Bras Ventures dated 17.12.2012 in which they:


(a) stated that Bras Ventures had represented to them that the appellant had been appointed to carry out the HDD works;


(b) expressed their concern about Bras Ventures’ carrying out the works themselves as this might have a negative impact on the said project; and


(c) requested Bras Ventures to furnish the contract between them and the appellant.


[27] This letter was copied to the appellant by TNB. By their solicitors’ letter dated 3.1.2013, the appellant communicated to Bras Ventures that they did not accept Bras Ventures’ unilateral termination of the contract. In paragraphs 7 and 8 of the letter, this is what they told Bras Ventures:


“Take Notice that the mode of payment was never an issue on the part of our client as our client on the onset had indicated to your goodselves that they expected to be paid for the work done.


We are also instructed by our client to inform you that our client does not accept your unilateral recession (sic) of the contract on the pretext of a dispute on the mode of payment.”


[28] Bras Ventures’ response was swift. By letter dated 4.1.2013, they asserted that there was never a firm and concluded contract between the parties. In paragraphs 2 and 3 of the letter, Bras Ventures stated their position as follows:




“First and foremost, your client is factually wrong in trying to treat our letter dated 23 November 2012 as a unilateral termination. As a matter of fact, our said letter was brought about by your client’s unjustified action in proposing and insisting on totally different terms of payment contrary to what your client has quoted at the very beginning. Such unjustified action was attempted at a critical timing with an obvious intention to try to arm-twist and take advantage on our Company.


As your client is fully aware, your client’s proposed new terms of payment were not acceptable to our Company at all which subsequently resulted in the breaking down of the negotiation and finally led to the issuance of our letter dated 23 November 2012 aforesaid. In other words, the negotiation for the subcontract works that started and continued between your client and our Company had since come to an end.”


[29] By another letter dated 9.1.2013, Bras Ventures made a further assertion that the parties had merely been negotiating and that the terms of payment of the contract price were never finalized.


[30] Bras Ventures subsequently appointed two separate companies, namely Geo Map Survey Services and Gagasan Teguh Sdn Bhd to undertake the necessary works for the project.


[31] The stop work order issued by Bras Ventures resulted in the abortion of all preliminary implementation of the soil investigation and hydrographic survey works that the appellant was supposed to carry out under the sub-contract which, as pleaded, caused them loss and damage.


[32] That basically is the chronology of events leading to the present action by the appellant. The sheet anchor of Bras Ventures’




argument in opposing the appellant’s claim is that the terms and mode of payment of the contract price had not been finalized, let alone agreed. They had made their stand clear in their letter of 4.1.2013 the contents of which we have reproduced in paragraph 28 above. This is the bone of their contention and not the scope of work, nor the contract price.


[33] Bras Ventures’ predicament was that despite having to comply with the time frame set by TNB for completing the works in the said project, yet the discussions and negotiations between them and the appellant failed to bring about any ultimate conclusion on the terms of payment of the contract price.


[34] The law leans in favour of upholding bargains between the parties and not in striking them down. This is familiar jurisprudence and there is a long line of authorities for this trite proposition. If any authority is needed, the Federal Court decision in Charles Grenier Sdn Bhd v Lau Wing Hong [1997] 1 CLJ 625; [1996] 3 MLJ 327 is the case on point.


[35] The question in all cases of this nature is whether the parties have reached consensus ad idem on every fundamental term of the contract although they have yet to draw up and execute a formal agreement. What the fundamental terms of the contract are must depend on the kind of contractual relations the parties intend to enter into. For example, fundamental terms to constitute a contract of marriage may differ from fundamental terms to constitute a contract of service. The learned authors of Chitty on Contracts 26th




Edition Volume 1 have this to say on the main elements of a valid contract:


“The main elements of a valid contract are as follows. First, the parties must “mean business”: they must intend to enter into legal relations. For example, the acceptance of an invitation to dinner creates no obligation which the law will enforce. Secondly, there must be an agreement, that is, a promise of which the offer has been duly accepted. Thirdly, either the promise must be contained in a deed under seal, or must be supported by consideration:”


[36] Having considered the evidence both oral and documentary and the arguments of the parties, the learned trial judge came to the following findings of fact:


(a) The second quotation was not a contract and at best was only a starting point or platform for the parties to discuss and negotiate the terms and conditions before they entered into a formal contract. Although Mr. Ee for Bras Ventures had initialed on the second quotation, he had no authority to approve the second quotation as he was merely a project manager and not a director of Bras Ventures;


(b) Bras Ventures never signed the 5.7.2012 letter to confirm their acceptance of the terms and conditions as per the second quotation and that if indeed there was already a concluded contract based on the second quotation, there was no necessity to send the 5.7.2012 letter;


(c) The appellant failed to give any confirmation to the Letter of Intent before 11.10.2012 as required by Bras Ventures and




that if indeed a contract had already been concluded through the second quotation, why was no necessity to send another one through the 17.5.2012 letter; and


(d) The appellant was not entitled to rely on the pre-award meeting minutes to corroborate their position.


[37] In determining whether there was a binding contract between the parties, the learned trial judge correctly in our view referred to the following authorities for the proposition that the mere fact that a written agreement had yet to be drawn up and executed by the parties does not necessarily mean that there is no legally binding and enforceable agreement between the parties: Sri Kajang Rock Products Sdn Bhd v Mayban Finance Bhd & Ors [1992] 3 CLJ (Rep) 611; Ayer Hitam Tin Dredging Malaysia Bhd v YC Chin Enterprises Sdn Bhd [1994] 2 MLJ 754; Malayan Flour Mills Bhd v Saw Eng Chee [1997] 1 MLJ 763; Lim Keng Siong & Anor v Yeo Ah Tee [1983] 2 MLJ 39; Keppel Shipyard (Pte) Ltd v Monvia Motorship Corporation [1980] 2 MLJ 169.


[38] The appellant’s argument in support of their claim is speciously simple and straightforward – (1) they were offered the project, (2) there was acceptance of the offer, and (3) there was agreement on the contract price. Therefore a valid contract had been concluded. The terms of payment of the contract price were merely incidental.


[39] It was strenuously argued that when Mr. Ee for Bras Ventures placed his initial on the amended contract price in the second




quotation, there was already a valid and concluded contract between the parties and as such the unilateral termination of the agreement by Bras Ventures amounted to a breach of contract.


[40] As for the contention that the terms of payment of the contract price was not a fundamental term of the bargain, learned counsel for the appellant relied on the following authorities: O-Stable Panel Sdn Bhd v Kenmark Industrial Co (M) Bhd [2010] 8 MLJ 686, a decision of the Shah Alam High Court; Kollipara Sriramulu v T. Aswathanarayana & Ors (1968) AIR 1028, a decision of the Supreme Court of India; and R & G Draper Farms (Keswick) Ltd v Nature’s Finest Produce Ltd [2015] O.J. No. 3844, a decision of the Canadian Superior Court of Justice.


[41] We have gone through the cases, and we must say, with due respect to learned counsel, that his reliance on these authorities is misconceived. First and foremost, the factual matrix of the cases and the legal issues involved were materially different from the facts and issues in the case before us although at first blush they appear to be directly on point.


[42] In O-Stable Panel Sdn Bhd, it is clear that the parties had reached consensus ad idem on all fundamental elements of the contract and a valid contract had in fact been concluded. The dispute over the mode of payment, variations to the design and some other additional works only arose during the course of executing the contract. The facts show that the plaintiff had done everything they needed to do in order to fulfill their part of the bargain.




[43] Clearly that is not the factual scenario in the appeal before us. In our case, no concluded contract had been reached between the parties as the terms of payment of the contract price had yet to be finalized and agreed upon. Further, there is no evidence that prior to Bras Ventures’ letter dated 23.11.2012 referred to in paragraph 22 above, the appellant had carried out any work. In short no contractual relationship had existed. The High Court case of O-Stable Panel Sdn Bhd is therefore of no relevance.


[44] As for the Indian case of Kollipara Sriramulu, the appellant relied on the following passage in the judgment of Ramaswami J who delivered the judgment of the Court:


“In Currimbhoy and Company Ltd v Creet 2 the Judicial Committee expressed the view that the principle of the English law which is summarized in the judgment of Parker, J. in Von Hatzfeldt-Wildenberg v Alexander (3) was applicable in India. The question in the present appeals is whether the execution of a formal agreement was intended to be a condition of the bargain dated July 6, 1952 or whether it was a mere expression of the desire of the parties for a formal agreement which can be ignored. The evidence adduced on behalf of respondent No.1 does not show that the drawing up of a written agreement was a pre-requisite to the coming into effect of the oral agreement. It is therefore not possible to accept the contention of the appellant that the oral agreement was ineffective in law because there is no execution of any formal written document. As regards the other point, it is true that there is no specific agreement with regard to the mode of payment but this does not necessarily make the agreement ineffective. The mere omission to settle the mode of payment does not affect the completeness of the contract because the vital terms of the contract like the price and area of the land and the time for completion of the sale were all fixed.”




[45] What we can gather from the above passage is that two issues were raised for the Court’s determination and they were:


(1) Whether the execution of a formal agreement was intended to be a condition of the bargain dated July 6, 1952 or whether it was a mere expression of the desire of the parties for a formal agreement which can be ignored; and


(2) Whether, without any specific agreement on the mode of payment, the agreement became ineffective if otherwise the vital terms of the contract had been fixed.


[46] Juxtaposed to the facts of the case before us, the relevance of issue (1), which in our view does not favour the appellant, lies in the fact that the negotiation on the terms of payment of the contract price between Bras Ventures and the appellant was clearly with a view to executing a formal agreement and not “a mere expression of the desire of the parties for a formal agreement which can be ignored”. This fact was acknowledged by the appellant themselves in their letter of 5.7.2012 where they made their stand clear as follows:


“Further, a Contract Agreement will be executed between both our companies to cover all the above of the project and will be signed prior to the commencement of project and immediately after the award of the said contract by TNB to Bras Ventures Bhd and subsequently RS&L Marine Sdn Bhd.”


[47] Issue (2) is a mirror image of the issue before us in relation to the question of whether all vital terms of the contract had been fixed by the parties. In the context of the appeal before us, the question




is whether the mode of payment of the contract price was a vital term of the agreement and if so whether it had been agreed by the parties.


[48] Our answer to the first part of the question is that on the facts of the present case, the mode of payment of the contract price was a vital element of the bargain. Bras Ventures had made it clear to the appellant that they did not accept the terms of payment of the contract price as proposed by the appellant in the second quotation, in particular the term on deposit payment.


[49] Obviously therefore this deadlock must be resolved before the parties could reach consensus ad idem on the matter and a formal agreement drawn up and executed. Otherwise there will be uncertainty in the implementation of the contract and the parties will continue to haggle over the manner of payments after the contract document had been signed, sealed and delivered.


[50] This is probably the kind of situation that Gopal Sri Ram JCA (as he then was) had in mind when His Lordship said in Charles Grenier, “Businessmen would find the law to be a huge loophole and commerce would come to a standstill.”


[51] With regard to the Canadian case of R & G Draper Farms (Keswick) Ltd, the question of law that confronted the Court in that case was whether the terms of payment of a settlement agreement amounted to a fundamental term. The settlement agreement had been agreed to but the monthly amount to be paid was not. This




was how M.L. Edwards J dealt with the issue at paragraphs 30-33 of the judgment:


“In Shoom Acktion Corp v Mark Shoom in Trust et al., 2003 O.J. No.6180, Pitt J had to deal with a somewhat analogous situation where the dispute was about what the terms of payment were, if any agreed upon, as evidenced in an exchange of correspondence documenting terms of settlement. In Shoom, the parties had agreed on the price with respect to certain chairs. The only question was whether or not they agreed on the terms of payment.


Fundamentally, the issue before Pitt J was whether or not he could imply terms of payment. Relying on a decision of the Ontario Court of Appeal in Kay Corporation v Dekeyser (1997), 76 D.L.R. (3d) 588, Pitt J came to the conclusion in Shoom that where a contract was silent on the terms of payment the parties had negotiated and failed to agree on, the court could imply a reasonable term when the contract is silent.


In all the circumstances before him, Pitt J came to the conclusion that there was an agreement reached between the parties and that the agreement was enforceable. The decision of Pitt J went to the Ontario Court of Appeal which came to the following conclusion:


Putting the appellant’s position at its best Mr. Sahi left the meeting on December 6th believing that the method of satisfying the settlement price had yet to be agreed upon, even though he never expressly raised that matter in the settlement meeting on December 6th. Despite this belief, neither Mr. Sahi nor his counsel, acting upon Mr. Sahi’s instructions, made any response to the December 9th letter. As the motion’s judge noted, Mr. Davis would have had every reason to treat the lack of response as demonstrating an endorsement of his interpretation of the agreement into which he understood they had entered. The argument that the parties had not agreed upon all essential terms of the agreement cannot succeed on the facts of this case.”




[52] From the passages above it is clear that the central issue before the Court was whether or not the Court could imply reasonable terms of payment where the contract was silent on the terms of payment and the parties failed to reach an agreement. Clearly this issue is not germane to the issue before us in the present appeal.


[53] Here, we are not concerned with the question of whether reasonable terms of payment could be inferred where the contract is silent on the terms of payment but whether an agreement on the terms of payment of the contract price, which is a vital term of the contract, had actually been reached.


[54] In any event, even on the facts of Shoom, a case which M.L. Edwards J relied on in his judgment, the decision is distinguishable as in that case an agreement on the terms of payment had in fact been reached between the parties, unlike the case before us. It is important to appreciate this distinction because what the Court had to determine in that case was whether or not the parties had agreed on the terms of payment, which is precisely the issue that confronts us in the present appeal. In the circumstances R & G Draper Farms (Keswick) Ltd is of no assistance to the appellant. In fact the decision goes against the grain of their argument.


[55] What of the appellant’s contention that Bras Ventures had appointed the appellant as the sub-contractor for the HDD works, as evidenced by the minutes of the pre-award meeting between Bras Ventures and TNB? The argument is that this is corroborative evidence of the fact that a valid contract by estoppel had been




concluded when Mr Ee initialed the second quotation while holding himself out as acting for Bras Ventures.


[56] With due respect, we do not find anything of substance to the argument. Putting the appellant’s case at its highest, the fact that Bras Ventures had informed TNB that they had appointed the appellant as the sub-contractor for the HDD works merely proves that they had been appointed as the sub-contractor and nothing beyond that. It is not proof that all fundamental elements of a valid contract had been established, in this case consensus ad idem on the terms of payment of the contract price.


[57] It is true that Mr Ee representing Bras Ventures had initialed on the second quotation, but this only relates to the amended contract price and not to the terms or mode of payment of the contract price, which were not even set out in the second quotation to at least reflect the appellant’s agreement or proposal to reduce the deposit payment from 30% to 5%.


[58] For all these reasons, we are inclined to agree with Bras Ventures that the learned trial judge had not erred in finding that no concluded sub-contract had been reached between Bras Ventures and the appellant. In the circumstances the appeal is dismissed with costs.






Court of Appeal Malaysia




Dated: 21 June 2016.


For the Appellant: Malik Imtiaz Sarwar (Simon Hue Fook Chuan and Surendra Ananth with him) of Messrs Simon Hue & Associates.


For the First Respondent: Dato’ Lee Chan Leong (Siew Ee Mei with him) of Messrs Chan Leong & Co.



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