1. ) LIANMARK SDN. BHD. (Co. No.: 821509-K) 2. ) (BY ORIGINAL ACTION) AL-AMBIA SDN. Bhd. (Co. No.: 76525-A) 1. ) AL-AMBIA SDN. Bhd. (Co. No.: 76525-A) 2. ) (BY ORIGINAL ACTION) LIANMARK SDN. BHD. (Co. No.: 821509-K)

1. ) LIANMARK SDN. BHD. (Co. No.: 821509-K) 2. ) (BY ORIGINAL ACTION) AL-AMBIA SDN. Bhd. (Co. No.: 76525-A) 1. ) AL-AMBIA SDN. Bhd. (Co. No.: 76525-A) 2. ) (BY ORIGINAL ACTION) LIANMARK SDN. BHD. (Co. No.: 821509-K)

On the facts and documents the plaintiff proved performance and completion of the works; Clause 7 breach (failure to obtain on-site verification) was an innominate, non-essential term that did not deprive the defendant of substantially the whole benefit; defendant affirmed the contract by issuing payment vouchers and making payments and is estopped from terminating; defendant failed to give required defect notices and failed to mitigate so its rectification, supervision and LAD claims fail; defendant proved limited counterclaim items supported by documents; plaintiff entitled to claimed sums, retention monies and interest; costs awarded partially to plaintiff with reduction for...

Citation
22C-2-01/2017 (Mahkamah Tinggi)
Parties
Plaintiff (original) / Defendant (counterclaim): Lianmark Sdn. Bhd.; Defendant (original) / Plaintiff (counterclaim): Al-Ambia Sdn. Bhd.
Court
High Court
Jurisdiction
Malaysia
Judgment Date
24 November 2020
Case Number
22C-2-01/2017 (Mahkamah Tinggi)
Procedural Posture
Civil Suit Concerning Construction Sub Contract and Payment Disputes / Judgment After Trial (final Judgment)
Outcome
Plaintiff's claim allowed in full; Defendant's counterclaim allowed in part
Legal Topics
Breach of Contract, Termination for Breach, Innominate Terms, Estoppel, Set Off and Counterclaim, Rectification and Mitigation, Retention Monies, Pre Judgment and Post Judgment Interest, Adverse Inference for Withholding Witness
Source Language
Malay/English
Contract Law Construction Law Equity and Estoppel Civil Procedure Evidence Law Breach of Contract Termination for Breach Innominate Terms +6 more

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Parties

Lianmark Sdn. Bhd.

Plaintiff (original) / Defendant (counterclaim)

Al-Ambia Sdn. Bhd.

Defendant (original) / Plaintiff (counterclaim)

Procedural Posture

Civil Suit Concerning Construction Sub Contract and Payment Disputes / Judgment After Trial (final Judgment)

Legal Issues

  1. 1 Whether plaintiff breached Clause 7 (payment term) and effect of that breach
  2. 2 Whether defendant could terminate the sub-contract for Clause 7 breach or was estopped
  3. 3 Whether plaintiff completed works in accordance with the letter of award and entitlement to claimed sums

Ratio Decidendi

On the facts and documents the plaintiff proved performance and completion of the works; Clause 7 breach (failure to obtain on-site verification) was an innominate, non-essential term that did not deprive the defendant of substantially the whole benefit; defendant affirmed the contract by issuing payment vouchers and making payments and is estopped from terminating; defendant failed to give required defect notices and failed to mitigate so its rectification, supervision and LAD claims fail; defendant proved limited counterclaim items supported by documents; plaintiff entitled to claimed sums, retention monies and interest; costs awarded partially to plaintiff with reduction for...

Court Disposition

Plaintiff's claim allowed in full; Defendant's counterclaim allowed in part

Orders

  • Defendant to pay Plaintiff the net judgment sum of MYR 1,364,190.83 (Plaintiff's claimed sum less counterclaim set-off)
  • Defendant to return Retention Sum of MYR 245,866.02 to Plaintiff