ACEVANTEC TECHNOLOGY SDN BHD ALF SYSTEM SDN BHD

ACEVANTEC TECHNOLOGY SDN BHD ALF SYSTEM SDN BHD

On the balance of probabilities the trial judge correctly found defendant breached the PO/TP by unreasonable delay and failed to deliver a complete system; time was treated as an essential term by the parties; the performance bond was an on‑demand bond and was forfeited by NIMB; plaintiff was entitled to damages including approved third‑party payments and the defendant's counterclaim failed for lack of proof; appellate court therefore dismissed defendant's appeal and allowed plaintiff's appeal with costs.

Citation
BA-12BNCvC-25-09/2021 (Mahkamah Tinggi)
Parties
Defendant and Appellant: ACEVANTEC TECHNOLOGY SDN BHD; Plaintiff and Appellant: ALF SYSTEM SDN BHD
Court
High Court
Jurisdiction
Malaysia
Judgment Date
19 January 2023
Case Number
BA-12BNCvC-25-09/2021 (Mahkamah Tinggi)
Procedural Posture
Civil Appeal From Sessions Court / Judgment on Consolidated Appeals
Outcome
Appeal by defendant dismissed; appeal by plaintiff allowed
Legal Topics
Breach of Contract, Time Is of the Essence, Performance Bonds (on‑demand Bond), Damages Under Section 74 Contract Act 1950, Estoppel, Appellate Review of Findings of Fact, Payment Terms (cod Vs Progress Claims)
Source Language
Malay/English
Contract Law Civil Procedure Evidence Law Breach of Contract Time Is of the Essence Performance Bonds (on‑demand Bond) Damages Under Section 74 Contract Act 1950 Estoppel +2 more

Case Brief

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Parties

ACEVANTEC TECHNOLOGY SDN BHD

Defendant and Appellant

ALF SYSTEM SDN BHD

Plaintiff and Appellant

Procedural Posture

Civil Appeal From Sessions Court / Judgment on Consolidated Appeals

Legal Issues

  1. 1 Whether defendant breached the purchase order (PO) and technical proposal (TP) by unreasonable delay and failure to deliver complete system
  2. 2 Whether payment term COD applied or payments were by progress claims
  3. 3 Whether time was of the essence in the contract

Ratio Decidendi

On the balance of probabilities the trial judge correctly found defendant breached the PO/TP by unreasonable delay and failed to deliver a complete system; time was treated as an essential term by the parties; the performance bond was an on‑demand bond and was forfeited by NIMB; plaintiff was entitled to damages including approved third‑party payments and the defendant's counterclaim failed for lack of proof; appellate court therefore dismissed defendant's appeal and allowed plaintiff's appeal with costs.

Court Disposition

Appeal by defendant dismissed; appeal by plaintiff allowed

Orders

  • Defendant's appeal BA-12BNCVC-25-09/2021 dismissed
  • Plaintiff's appeal BA-12BNCVC-26-09/2021 allowed