YUK TUNG CONSTRUCTION SDN BHD DAYA CMT SDN BHD

YUK TUNG CONSTRUCTION SDN BHD DAYA CMT SDN BHD

The Court held that Clause 43 required timely written notice and application for EOT; Daya failed to comply so could not rely on the prevention principle or assert time was at large; contemporaneous evidence supported the High Court finding that Daya did not proceed regularly and diligently and termination was lawful; the High Court's mechanistic apportionment reducing LAD was impermissible and YTC is entitled to the full contractual LAD; certain quantum items were adjusted to reflect admitted payments and contractual terms; retention and GST orders adjusted accordingly.

Citation
W-02(C)(W)-462-03/2018 (Mahkamah Rayuan)
Parties
Appellant/respondent (cross Appeals): Yuk Tung Construction Sdn Bhd; Appellant/respondent (cross Appeals): Daya CMT Sdn Bhd
Court
C
Jurisdiction
Malaysia
Judgment Date
6 March 2020
Case Number
W-02(C)(W)-462-03/2018 (Mahkamah Rayuan)
Procedural Posture
Civil Appeal (construction Contract) / Court of Appeal Judgment on Cross Appeals
Outcome
Appeals allowed in part and dismissed in part: Court affirmed High Court on liability (termination lawful) but corrected quantum errors by restoring full LAD entitlement to YTC and adjusting various monetary awards as set out in orders.
Legal Topics
Extension of Time, Prevention Principle (time at Large), Termination for Failure to Proceed Regularly and Diligently, Liquidated and Ascertained Damages, Novation, Performance Bond, Certification and Under‑certification, Retention Sums, Valuation of Termination Costs, GST Indemnity
Source Language
Malay/English
Contract Law Construction Law Civil Procedure Tax (gst) Extension of Time Prevention Principle (time at Large) Termination for Failure to Proceed Regularly and Diligently Liquidated and Ascertained Damages +6 more

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Parties

Yuk Tung Construction Sdn Bhd

Appellant/respondent (cross Appeals)

Daya CMT Sdn Bhd

Appellant/respondent (cross Appeals)

Procedural Posture

Civil Appeal (construction Contract) / Court of Appeal Judgment on Cross Appeals

Legal Issues

  1. 1 Whether contractor entitled to extensions of time under Clause 43
  2. 2 Whether employer's acts constituted prevention/time at large absent prior notice
  3. 3 Whether termination for failure to proceed regularly and diligently was lawful

Ratio Decidendi

The Court held that Clause 43 required timely written notice and application for EOT; Daya failed to comply so could not rely on the prevention principle or assert time was at large; contemporaneous evidence supported the High Court finding that Daya did not proceed regularly and diligently and termination was lawful; the High Court's mechanistic apportionment reducing LAD was impermissible and YTC is entitled to the full contractual LAD; certain quantum items were adjusted to reflect admitted payments and contractual terms; retention and GST orders adjusted accordingly.

Court Disposition

Appeals allowed in part and dismissed in part: Court affirmed High Court on liability (termination lawful) but corrected quantum errors by restoring full LAD entitlement to YTC and adjusting various monetary awards as set out in orders.