BAUER (MALAYSIA) SDN BHD 1. ) HUNDRED VISION CONSTRUCTION SDN BHD 2. ) BAKTI DINAMIK SDN BHD

BAUER (MALAYSIA) SDN BHD 1. ) HUNDRED VISION CONSTRUCTION SDN BHD 2. ) BAKTI DINAMIK SDN BHD

Clause 7.5 expressly disclaims privity and, on the evidence, no collateral contract or independent obligation was proven against D2; D2 had paid the main contractor so section 71 quantum meruit remedy fails because the contractual payment chain was intact and D2 was not unjustly enriched; imposing a tort duty on the...

Source-derived case information.

Citation
WA-22C-38-03/2017 (Mahkamah Tinggi)
Parties
Plaintiff: Bauer (Malaysia) Sdn Bhd; 1st Defendant: Hundred Vision Construction Sdn Bhd; 2nd Defendant: Bakti Dinamik Sdn Bhd
Court
High Court
Jurisdiction
Malaysia
Judgment Date
8 November 2019
Case Number
WA-22C-38-03/2017 (Mahkamah Tinggi)
Procedural Posture
Civil Suit (construction) / Trial Judgment
Outcome
Plaintiff's claim dismissed; 2nd defendant's counterclaim in negligence dismissed; each party to bear own costs.
Legal Topics
Privity of Contract, Collateral Contract, Direct Payment Arrangements, Quantum Meruit (s 71 Contracts Act 1950), Duty of Care and Proximity (caparo), Fortuna Injunction / Winding‑up Procedure, Nominated Subcontractor Issues, Set‑off and Novation
Contract Law Tort (negligence) Construction Law Company Law Equity and Restitution Privity of Contract Collateral Contract Direct Payment Arrangements +5 more

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Summary, issues, holding and outcome

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Parties

Bauer (Malaysia) Sdn Bhd

Plaintiff

Hundred Vision Construction Sdn Bhd

1st Defendant

Bakti Dinamik Sdn Bhd

2nd Defendant

Procedural Posture

Civil Suit (construction) / Trial Judgment

Legal Issues

  1. 1 Whether clause providing for direct payment created privity of contract or an independent collateral obligation by employer to pay the nominated subcontractor
  2. 2 Whether an oral collateral contract or representation/warranty was proved binding employer to pay NSC
  3. 3 Whether plaintiff could recover from employer in quantum meruit under s71 Contracts Act 1950

Ratio Decidendi

Clause 7.5 expressly disclaims privity and, on the evidence, no collateral contract or independent obligation was proven against D2; D2 had paid the main contractor so section 71 quantum meruit remedy fails because the contractual payment chain was intact and D2 was not unjustly enriched; imposing a tort duty on the NSC to the employer would short‑circuit contractual allocation of risks and was neither fair nor proximate; accordingly plaintiff's claim and D2's negligence counterclaim both fail and are dismissed.

Court Disposition

Plaintiff's claim dismissed; 2nd defendant's counterclaim in negligence dismissed; each party to bear own costs.

Orders

  • Plaintiff's claim against Bakti Dinamik Sdn Bhd dismissed
  • 2nd defendant's counterclaim against plaintiff dismissed