Rizal Bina 1. ) Ketua Pengarah Kerja Raya Malaysia 2. ) Jabatan Kerja Raya Malaysia 3. ) Kerajaan Malaysia

Rizal Bina 1. ) Ketua Pengarah Kerja Raya Malaysia 2. ) Jabatan Kerja Raya Malaysia 3. ) Kerajaan Malaysia

The termination was valid because the plaintiff committed a fundamental breach by failing to proceed regularly and diligently as required by Clause 51.1(a)(iii); the NUTPKs complied with contractual requirements and the termination notice of 24/7/2015 was effective. Defendants were entitled to recover completion costs subject to deductions for sums due to the plaintiff; after contractual set-offs and adjustments (including deduction of bank guarantee and disallowance of GST and certain tender supervision costs), the net payable by defendants to plaintiff was RM270,017.65. Plaintiff's substantive claim was dismissed and defendants' counterclaim allowed.

Citation
AA-21NCvC-5-03/2018 (Mahkamah Tinggi)
Parties
Plaintif: Rizal Bina; Defendan: Ketua Pengarah Kerja Raya Malaysia; Defendan: Jabatan Kerja Raya Malaysia; Defendan: Kerajaan Malaysia
Court
High Court
Jurisdiction
Malaysia
Judgment Date
14 March 2023
Case Number
AA-21NCvC-5-03/2018 (Mahkamah Tinggi)
Procedural Posture
Guaman Sivil / Judgment Delivered (high Court); Defendants Have Appealed
Outcome
Plaintiff's claim dismissed; defendants' counterclaim allowed; net judgment for plaintiff in RM270,017.65; costs RM80,000 awarded to defendants; interest at 5% per annum from date of judgment until full payment.
Legal Topics
Termination of Contract, Fundamental Breach, Notice to Remedy (clause 51), Assessment of Damages, Remoteness of Damage (hadley V Baxendale)
Source Language
Malay/English
Contract Law Construction Law Government Procurement Remedies Damages Termination of Contract Fundamental Breach Notice to Remedy (clause 51) Assessment of Damages +1 more

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Parties

Rizal Bina

Plaintif

Ketua Pengarah Kerja Raya Malaysia

Defendan

Jabatan Kerja Raya Malaysia

Defendan

Kerajaan Malaysia

Defendan

Procedural Posture

Guaman Sivil / Judgment Delivered (high Court); Defendants Have Appealed

Legal Issues

  1. 1 Whether termination notice(s) complied with contract and were valid
  2. 2 Whether plaintiff committed a fundamental breach
  3. 3 Whether defendants entitled to recover completion costs under Clause 51 and Clause 56

Ratio Decidendi

The termination was valid because the plaintiff committed a fundamental breach by failing to proceed regularly and diligently as required by Clause 51.1(a)(iii); the NUTPKs complied with contractual requirements and the termination notice of 24/7/2015 was effective. Defendants were entitled to recover completion costs subject to deductions for sums due to the plaintiff; after contractual set-offs and adjustments (including deduction of bank guarantee and disallowance of GST and certain tender supervision costs), the net payable by defendants to plaintiff was RM270,017.65. Plaintiff's substantive claim was dismissed and defendants' counterclaim allowed.

Court Disposition

Plaintiff's claim dismissed; defendants' counterclaim allowed; net judgment for plaintiff in RM270,017.65; costs RM80,000 awarded to defendants; interest at 5% per annum from date of judgment until full payment.

Orders

  • Plaintiff's claim is dismissed with costs to the Defendants.
  • Defendants' counterclaim is allowed.