'12.16 The Respondents' case may be briefly stated:

Have the Claimants substantiated their measurements for the reinforcement?

12.17 Counsel submits that the answer is NO for the simple reason that:

12.17(a) the Claimants' Quantity Surveyor was not called to give evidence as to measurements;

12.17(b) the documents substantiating the measurements including the drawings on which the measurements were based were never produced in evidence.

12.18 Under cross-examination [a witness] states that the Claimants' Quantity Surveyor is [A], an employee, who is qualified as a civil engineer but she is not a licensed QS under Malaysian law.

12.19 As the measurements were calculated by [A], [the witness] concedes that he has no personal knowledge of the quantity of the reinforcement. Respondents' Counsel submits therefore that [the witness] is not fit to give any evidence on the reinforcement quantity and reliance is placed on the case of Vaynar Suppiah & Sons vs KMA Abdul Rahim & Anor: Owners of "Lexa Maersk" & 7 Ors (1974) 2 MLJ 183 where it was held that the maker of a report that the cargo on board a ship had been damaged by sea water must be called to give evidence to prove the damage. Because the maker was not called the evidence was inadmissible.

12.20 In addition, Counsel for the Respondents submits that Claimants' failure to produce the complete bar bending schedules and the maker of these documents for cross-examination to test the fact and accuracy of the measurements is fatal.

12.21 Counsel argues that the Claimants could have produced all quotations, invoices, vouchers, accounts and receipts in connection with the expenditure relating to the reinforcement which is provisional. It is the submission of Counsel that this is a requirement under Clause 58.3 of FIDIC.

12.22 Counsel further submits that if these documents were in the custody or possession of the Claimants an adverse inference can be drawn against the Claimants if they failed to produce them in this Reference. Counsel cites Guan Soon Tin Mining Co vs Wong Fook Kum (1969) 1MLJ 99 where the Court held that the best evidence must be given and a presumption that production of such evidence would be damaging operates against the party who did not produce the said evidence.

12.23 For the above reasons, Respondents' counsel submits that the evidence of [the respondent's witnesses] is to be preferred.

12.24 Similarly and by analogy, a qualified person may be employed as a legal officer to the company, albeit he has not been admitted as an advocate & solicitor and does not hold a practising certificate under the Legal Profession Act 1976 (Act 166).

12.25 I am, however, prepared to agree that only a licensed quantity surveyor under Malaysian law can practise his profession as a quantity surveyor in Malaysia.

12.26 In the absence of binding authority I hold and adjudge that the Respondents have failed to prove to my satisfaction that the testimony of [A] is inadmissible in evidence.

12.27 Next, I would consider the Guan Soon case. The relevant part of the headnote reads:

Evidence - Books of account in support of, not produced -

Presumption against party not producing.

At page 102 Ong Hock Thye FJ said:

. . . Where such books could have been, but were not, produced in support of oral testimony, it is only fair to presume that the books, if produced, would have been damaging to the party who should have produced them . . .

12.28 In my opinion, this case can be distinguished from the present case in that there was an offer to the Respondents to inspect and examine the supporting documents in the possession and custody of the Claimants. For reasons best known to them, the Respondents did not take up this offer.

12.29 In my opinion, it is now too late in the day to try to urge the Arbitral Tribunal to invoke the presumption against the Claimants.

12.30 Moreover, the discretionary power vested in the Court to draw an adverse inference, in a proper case, is contained in section 114(g) of the Evidence Act 1950. Since the Evidence Act does not apply to arbitration proceedings, I have therefore not been conferred with such a discretionary power.'