IN THE COURT OF APPEAL, MALAYSIA [APPELLATE JURISDICTION]
CIVIL APPEAL NO. Q-02-170-2009
SEBIRO HOLDINGS SDN. BHD.
Lot 8727, No. 17, Green Heights Commercial Centre, New Airport Road,
93250 Kuching, Sarawak – APPELLANT
PETER ANAK RUNIN (WN. KP. NO. 620814-13-5009)
Suing as the registered sole-proprietor Trading under the name of sAlADIN CONTRACTOR AND SUPPLIER Registered office at No. 523, Lorong 13,
Taman Desa Wira, Jalan Batu Kawa,
93250 Kuching, Sarawak and its place Of business at No. 332, Lot 1040 R.P.R.
Batu Kawa, 93250 Kuching, Sarawak. – RESPONDENT
(In the matter of High Court in Sabah and Sarawak In High Court Suit No. 22-155-2001-II)
Peter Anak Runin
(WN. KP. No. 620814-13-5009) – Plaintiff
SEBIRO HOLDINGS SDN. BHD.
(206839-H) – Defendant
Abdul Wahab Patail, JCA Datuk Zaharah Ibrahim, JCA Mohamad Ariff Md Yusof, JCA
Date of Judgment: 13th November 2013
JUDGMENT OF THE COURT
 The appellant Sebiro Holding Sdn Bhd appealed against the decision made on 23rd December 2008 by the High Court in Kuching to enter judgment against the appellant upon an amended claim and to dismiss its counter-claim against the respondent herein, Peter Anak Runin.
 The respondent alleged that he had completed the contract works he was engaged to carry out in 25 schools, for which he was to be paid RM3,792,936.00 being 57% of the contract value of RM6,654,273.60 upon completion of the works. He commenced a civil suit to recover a balance of RM903,170.27 that remained unpaid.
 In opposing the claim, the appellant pleaded, amongst other things, that:
(a) It had paid a total of RM3,202,606.81;
(b) The Respondent would be paid 50% of the value of the contract works; less 5% of retention sum; less the costs of materials and other expenditure and cash advanced by the Appellant with interest at 6% p.a.;
(c) It had paid a cash advance of RM1,588,000.00; and
(d) Upon deduction of the cash advance and interest thereon at 6% per annum, 15% mark-up on the costs of materials and 5% retention sum from the agreed total price, there was an overpayment of RM40,680.81 which it counter-claimed.
 The grounds addressed in the appeal before this Court are:
(a) Ground 1: Error in allowing the respondent’s claim upon evaluation of the defendant’s case.
(b) Ground 2: Whether the learned Judge was justified in finding that the respondent was entitled to 57% of the contract value payable to the appellant and not 50%?
(c) Ground 3: Whether the part payment were in fact ”cash advances” and not ”progressive payments” and the
Respondent had agreed to an imposition of 6% interest on the cash advances and 15% on the mark up on the price of materials supplied by the appellant?
(d) Ground 4: Whether the Respondent is entitled to claim for the retention sum? and
(e) Ground 5: Whether the Appellant is entitled to the Counterclaim.
 The submissions began with the submission on Ground 1 that the
High Court “….. entered judgment in favour of the plaintiff for the
amount claimed upon a critical analysis and evaluation of the totality of evidence adduced, of which only a short paragraph is devoted to an assessment of the plaintiff’s case.” The submissions then proceeded to address the other grounds above.
 The “short paragraph” is set out in the submission as follows:
” … On PW1’s evidence in this case, it would seem that the plaintiff has been doing the contract works on schools for the defendant. As such PW1 who is also the sole proprietor of
the plaintiff’s firm that undertook and carried out the works for the defendant would be well versed with the defendant’s practices and procedures in respect of contractual arrangement between them for such works. Therefore on the balance of probability the Plaintiffs version is more probable as to the percentage of the contract value payable to the plaintiff by the defendant in this instant case.
Therefore based on the above arguments and the evidence available in this case, the plaintiff has discharged the burden of proof of his case. In the circumstances, I allowed the plaintiff’s amended claim as prayed with costs and costs to be taxed unless agreed.”
 The first part of the “short paragraph” is only a part of a paragraph in a 14-page judgment. The beginning of the paragraph shows the context in which the part quoted at paragraph 6 above is made:
“Similarly in this instant case, the credibility of the witnesses is of utmost importance. In the instant case, there are only two main witness – PW1 who testified for the plaintiff and DW1 who testified for the defendant. DW1 however did not
testified to the alleged material fact raised in the defendant’s statement of defence that the plaintiff had failed or neglected to carry out or to complete the project – a material fact pleaded and relied upon by the defendant in its defence to avoid liability of payment to the plaintiff. PW1 on the other hand appears to me to be more convincing. On PW1’s evidence in this case, it would seem.”
 Furthermore, the 14-page judgment of the High Court began by setting out the respondent’s case as plaintiff, the appellant’s case as defendant, the opinions of the Court with regard to the entitlement of 57% or 50%, whether the respondent completed the works, agreement as to mark-up of 15% on cost of materials supplied, 6% interest on advances, whether “progressive payments” were in fact cash advances, and the 5% retention sum allegedly agreed to. The High Court discussed the issues and the evidence thereon. The judgment demonstrated the reasoning that led to the findings and the decision.
 This was a case where the appellant was awarded by the Ministry of Education a contract for repairs and maintenance of 24 schools. By a letter 12/10/2000, the appellant appointed the respondent as its subcontractor. The works were completed. The appellant sought payments
from the Ministry of Education. The respondent sought payment from the appellant in 2001. Responding to demands for payment, the appellant replied with a Statement of Account dated 24/7/2001 showing 50% payment instead of 57%, inclusion of a 15% mark-up on materials supplied, and imposition of a 5% interest charge on “cash advance” to the respondent. The fine distinction between interim payment for work done and an advance provided the basis for imposition of the interest charge upon the sub-contractor seeking payment. The result was that the Statement of Account claimed that the respondent owed the appellant RM40,680.81. This left the respondent with little choice but to try to negotiate its claim for outstanding payments, failing which it commenced legal action.
 We observe that counsel for the appellant, as quoted at paragraph 5 above, acknowledged the High Court had made a critical analysis and evaluation on the totality of the evidence. We agree. The issue raised in submission is that the High Court ought to first decide whether the respondent as plaintiff had discharged the burden upon him to prove his claim. Counsel cited Wong Chong Chow v Pan-Malavsia Cement Works Bhd  2 MLJ 75 FC; Johara Bi Binte Abdul Kadir Marican v Lawrence Lam Kwok Fou & Anor  1 MLJ 139 FC.
 These authorities held that at all times the burden of proof lies upon a plaintiff to prove his claim upon a balance of probabilities. We have no difficulty with the proposition. But the submission that the High Court ought to first, decide whether the respondent as plaintiff had discharged the burden upon him to prove his claim before considering the defence is, in our view, founded upon a fundamental misconception. Civil procedure differs from criminal procedure. In the Criminal Procedure Code, section 180 imposes a statutory requirement upon the prosecution to prove a prima facie case, i.e. the prosecution must adduce credible evidence proving each ingredient of the offence which if unrebutted would warrant a conviction. In his defence, he attempts to set up his defence upon the standard of establishing a reasonable doubt. In civil procedure, there is no requirement similar to section 180. The burden of proof to prove its case upon a balance of probabilities is an assessment of the case upon application of relevant law to the totality of
(a) all relevant facts not disputed upon the pleadings;
(b) all relevant facts subsequently agreed; and
(c) all findings of fact upon evidence agreed, which are not disputed or which have been tested and accepted in a trial.
 Civil procedure is an adversarial process where it is left to a party to raise the cause of action and facts in support thereof that he wishes to rely upon. Likewise the defences. Hence, a decision is made upon a single assessment of all of the evidence to determine if the party seeking to establish his claim, or a fact he seeks to rely upon, has succeeded to prove it upon a balance of probabilities.
 On ground 2 above, it was submitted for the appellant that the appellant and the respondent’s witnesses had maintained their respective versions, but the other evidence does not support the conclusion that the agreed percentage was always 57% and there were instances where it was lower, to as low as 50%. Having reviewed the evidence submitted upon on appeal, we are unable to satisfy ourselves that such evidence would have led the High Court to a conclusion other than that which it had arrived at. The High Court had ample reasons leading it to the conclusion it had made.
 The submissions on the third ground is based upon the fact that the letter dated 12/10/2000, appointing the respondent as subcontractor, did not state that payment would be upon a back to back basis. We agree with that fact, but not with the conclusion pursued in the submission. Only if a sub-contractor is to be paid on a back to back
basis can it be maintained that any payment to the sub-contractor made before the main contractor receives payment is an advance and can possibly attract interest. If the sub-contract is not on a back to back basis, then any payment to the sub-contractor cannot ipso facto be termed an advance payment, but is in fact a part payment.
 We note, however, that in this case, it had been described by the respondent himself as a cash advance. In other words, the respondent acknowledged the payments as advances. But that is not to say that interest is necessarily payable. Interest is payable if it is imposed by law or agreed by the parties.
 It is in evidence before the Court that the respondent:
(a) by letter 27/7/2001, stated at para 1.c. “please be informed that we accept the imposition of 5% interest charges on advances until 31 Dec 2000”;
(b) received without complaint the payment advice dated 19/1/2001 which stated that 6% interest was imposed on cash advance of RM500,000.
 In respect of the mark-up of 15% on cost of materials supplied, the respondent:
(a) By letter 27/2/2001, attached a Statement of Account in which it incorporated a 15% mark-up on the material costs;
(b) By letter 3/5/2001, mentioned the 15% without putting forth any complaint.
 The respondent only complained about the mark-up in his letter of 27/7/2001.
 The law reports are replete with cases where the complaint that goods received were defective were rejected when no complaint was made at the time of receipt or reasonably soon after. A complaint raised only when payment is sought lacks credibility and is more likely made up to refuse to pay. Likewise, a denial or challenge is rejected when made at the hearing when the assertions were not disputed or answered when made against that party in an affidavit earlier. Similarly, a decision or order is deemed accepted when no appeal is made. Without an accepted explanation, the failure to complain, to dispute, to reject or to correct, leads to the conclusion that it was agreed or accepted, and the subsequent attack is an afterthought conveniently made for the
subsequent objective or purpose. See Gan Yook Chin & Anor v Lee Inq Chin & Ors  4 CLJ 309 FC; Sime UEP Properties Bhd v Voon Nyoke Lin  3 CLJ 719 CA.
 In the circumstances, we hold that the High Court erred in failing to take the above evidence into consideration, which would have led to the holding that the respondent had agreed or accepted imposition
(a) of interest of 5% on advances until 31/12/2000 or 6% on advance of RM500,000 by the appellant;
(b) of mark-up of 15% on cost of materials supplied by the appellant.
 The fourth ground concerned the question of the retention sum. Resort to Petowa Java Sdn, Bhd. v Binaan Nasional Sdn Bhd 
2 MLJ 261 provides no assistance. A retention sum is a sum retained by the owner, to be released to the main contractor upon the expiry of the defect liability period. The case before this court does not concern the owner, but the relationship between the main contractor and its subcontractor. Whether the sub-contractor is entitled to any of the retention money held back by the owner must necessarily depend upon whether
in making the payment to its sub-contractor, the main contractor had held back any sum as retention sum on that ground.
 It is unnecessary to address ground 5 as it is necessarily derived from the result of the first four grounds of appeal.
 Accordingly, we allow the appeal on terms in paragraph 20 above, and as to the retention sum, to be assessed before the Registrar as the amount if any retained. We order costs in the sum of RM10,000.00 and that the deposit be refunded.
(DATUK ABDUL WAHAB PATAIL) Judge
Court of Appeal, Malaysia Putrajaya
Dated: 13th November 2013
For the Appellant:
For the Respondent:
Mr. Mekanda Singh Sandhu &
Mr. Kalveet Singh Sandhu Messrs Suhaili & Bong Advocates P11-1-5(D), Chonglin Park Jalan Tabuan 93200 Kuching, Sarawak
Mr. Anthony Tai
Messrs Anthony Tai Advocates
Lot 317, 2nd Floor Lorong 12, Jalan Rubber 93400 Kuching, Sarawak