MOHD AZAM BIN CHE SEMAN MBC BERKAT ENTERPRISE

MOHD AZAM BIN CHE SEMAN MBC BERKAT ENTERPRISE

High Court held the Magistrate erred in relying on the registered valuer (SP3) for certification of progress when the PJB and LPPSA regime required JPPH certification; therefore the 70% progress finding lacked the required evidentiary basis and the Magistrate's award of RM55,000 could not be sustained. The court also found that while an implied term permitting appointment of a new contractor could be inferred by business efficacy where abandonment occurred, the defendant's counterclaim failed for lack of documentary proof; accordingly the Magistrate's dismissal of the counterclaim was upheld.

Citation
DA-11B-3-03/2020 (Mahkamah Tinggi)
Parties
Perayu: Mohd Azam bin Che Seman; Responden: MBC Berkat Enterprise
Court
High Court
Jurisdiction
Malaysia
Judgment Date
18 January 2021
Case Number
DA-11B-3-03/2020 (Mahkamah Tinggi)
Procedural Posture
Civil Appeal / Judgment on Appeal in High Court
Outcome
Appeal allowed in part; Magistrate's award of RM55,000 set aside; Magistrate's dismissal of defendant's counterclaim upheld; no order as to costs.
Legal Topics
Breach of Contract, Termination of Contract, Implied Terms, Progress Payments, Proof of Special Damages, Admissibility of Valuation Evidence
Source Language
Malay/English
Contract Law Construction Law Evidence Law Civil Procedure Breach of Contract Termination of Contract Implied Terms Progress Payments +2 more

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Parties

Mohd Azam bin Che Seman

Perayu

MBC Berkat Enterprise

Responden

Procedural Posture

Civil Appeal / Judgment on Appeal in High Court

Legal Issues

  1. 1 Whether the Magistrate erred in accepting a registered valuer's (SP3) valuation instead of JPPH certification required under LPPSA rules
  2. 2 Whether the plaintiff abandoned the construction site and thereby repudiated the sale and purchase agreement (PJB)
  3. 3 Whether the defendant was entitled to terminate the PJB and appoint a new contractor

Ratio Decidendi

High Court held the Magistrate erred in relying on the registered valuer (SP3) for certification of progress when the PJB and LPPSA regime required JPPH certification; therefore the 70% progress finding lacked the required evidentiary basis and the Magistrate's award of RM55,000 could not be sustained. The court also found that while an implied term permitting appointment of a new contractor could be inferred by business efficacy where abandonment occurred, the defendant's counterclaim failed for lack of documentary proof; accordingly the Magistrate's dismissal of the counterclaim was upheld.

Court Disposition

Appeal allowed in part; Magistrate's award of RM55,000 set aside; Magistrate's dismissal of defendant's counterclaim upheld; no order as to costs.

Orders

  • Magistrate's decision awarding RM55,000 to the plaintiff is set aside.
  • Magistrate's decision dismissing the defendant's counterclaim is affirmed.