HERCULES ENGINEERING (SEA) SDN BHD NAIM ENGINEERING SDN. BHD.

HERCULES ENGINEERING (SEA) SDN BHD NAIM ENGINEERING SDN. BHD.

The High Court allowed the appeal on the ground that the absence of formal written variation orders was not fatal where contemporaneous documents and the respondent s conduct established instruction, verification and an implied promise to pay; the respondent by its actions waived/was estopped from insisting on strict contractual formalities and the appellant was entitled to payment for the Additional Works (RM293,182.52) and interest at 5% p.a. from 3.12.2014; alternatively quantum meruit applied for work done outside strict formalities.

Citation
WA-12BC-7-12/2021 (Mahkamah Tinggi)
Parties
Appellant: HERCULES ENGINEERING (SEA) SDN BHD; Respondent: NAIM ENGINEERING SDN. BHD.
Court
High Court
Jurisdiction
Malaysia
Judgment Date
28 June 2022
Case Number
WA-12BC-7-12/2021 (Mahkamah Tinggi)
Procedural Posture
Civil Appeal (high Court) / Appellate Judgment (appeal Allowed in Part)
Outcome
Appeal allowed in part; judgment entered for the Appellant
Legal Topics
Variation Orders, No Oral Modification Clause / NOM, Waiver and Estoppel, Quantum Meruit / Unjust Enrichment, Interest on Judgment Debt, Costs, Appellate Standard of Review (plainly Wrong)
Source Language
Malay/English
Construction Law Contract Law Civil Procedure Evidence Law Equity and Estoppel Variation Orders No Oral Modification Clause / NOM Waiver and Estoppel +4 more

Case Brief

Summary, issues, holding and outcome

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Parties

HERCULES ENGINEERING (SEA) SDN BHD

Appellant

NAIM ENGINEERING SDN. BHD.

Respondent

Procedural Posture

Civil Appeal (high Court) / Appellate Judgment (appeal Allowed in Part)

Legal Issues

  1. 1 Whether strict contractual variation procedures (Clauses 34,35 and NSC Clause 19) barred recovery absent written orders
  2. 2 Whether the Appellant carried out and completed the Additional Works
  3. 3 Whether failure to call the alleged instructing officer (Zulfikri) warranted adverse inference under s 114(g) Evidence Act 1950

Ratio Decidendi

The High Court allowed the appeal on the ground that the absence of formal written variation orders was not fatal where contemporaneous documents and the respondent s conduct established instruction, verification and an implied promise to pay; the respondent by its actions waived/was estopped from insisting on strict contractual formalities and the appellant was entitled to payment for the Additional Works (RM293,182.52) and interest at 5% p.a. from 3.12.2014; alternatively quantum meruit applied for work done outside strict formalities.

Court Disposition

Appeal allowed in part; judgment entered for the Appellant

Orders

  • Judgment for the Appellant for RM23,138.10 being balance for Original Works
  • Judgment for the Appellant for RM293,182.52 for Additional Works