BARCON INDUSTRIES SDN BHD YESB SDN BHD

BARCON INDUSTRIES SDN BHD YESB SDN BHD

The court held that there was overwhelming evidence (consultant instructions, emails, handover checklist and admissions) that Barcon instructed additional works after the original completion date; those instructions and Barcon's failure to fix a revised completion date set time at large so Barcon could not impose...

Source-derived case information.

Citation
WA-12BC-5-04/2023 (Mahkamah Tinggi)
Parties
Appellant/respondent: YESB SDN BHD; Appellant/respondent: BARCON INDUSTRIES SDN BHD
Court
High Court
Jurisdiction
Malaysia
Judgment Date
8 March 2024
Case Number
WA-12BC-5-04/2023 (Mahkamah Tinggi)
Procedural Posture
Civil Appeal / Judgment on Appeals
Outcome
Appeals resolved: YESB's appeal (Appeal No. 3) allowed; Barcon's appeal (Appeal No. 5) allowed only in part (documents submission order) and otherwise dismissed; SCJ's award to YESB for RM656,868.93 with interest and costs upheld; Barcon's LAD award set aside; Barcon's counterclaim for RM670,000 dismissed; no order...
Legal Topics
Liquidated and Ascertained Damages, Practical Completion, Variation Works, Extension of Time, Retention Sum, Defects Liability Period, As Built Drawings and Operation Manuals, Costs (party to Party and Solicitor Client), Abandonment of Claims
Construction Law Contract Law Civil Procedure Evidence Commercial Law Liquidated and Ascertained Damages Practical Completion Variation Works +6 more

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Summary, issues, holding and outcome

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Parties

YESB SDN BHD

Appellant/respondent

BARCON INDUSTRIES SDN BHD

Appellant/respondent

Procedural Posture

Civil Appeal / Judgment on Appeals

Legal Issues

  1. 1 Whether YESB was entitled to payment for completed works and variations including retention sum and interest
  2. 2 Whether YESB was entitled to general, punitive/exemplary damages and solicitor-client costs
  3. 3 Whether additional/variation works were instructed by Barcon and payable to YESB

Ratio Decidendi

The court held that there was overwhelming evidence (consultant instructions, emails, handover checklist and admissions) that Barcon instructed additional works after the original completion date; those instructions and Barcon's failure to fix a revised completion date set time at large so Barcon could not impose LAD; YESB was entitled to the certified outstanding sum (RM656,868.93) with interest and party-to-party costs as previously adjudged; Barcon's counterclaim for RM670,000 failed for lack of evidential support; however YESB must deliver the specified as-built documents and manuals (Clause 16) by the court-ordered deadline.

Court Disposition

Appeals resolved: YESB's appeal (Appeal No. 3) allowed; Barcon's appeal (Appeal No. 5) allowed only in part (documents submission order) and otherwise dismissed; SCJ's award to YESB for RM656,868.93 with interest and costs upheld; Barcon's LAD award set aside; Barcon's counterclaim for RM670,000 dismissed; no order...

Orders

  • YESB's appeal in Appeal No. WA-12BC-3-03/2023 allowed (set aside the counterclaim award of LAD against YESB)
  • SCJ's judgment awarding YESB RM656,868.93 with interest at 5% per annum from date of judgment and costs of RM20,000.00 is upheld