XXXX Fairview International School Nusajaya Sdn Bhd

XXXX Fairview International School Nusajaya Sdn Bhd

The LOA fixed a six-month completion to 28 Feb 2015 and contained an express LAD of RM10,000/day which, under the LOA's precedence clause, overrides the GCS cap; the defendant did not validly apply for extension of time under the PAM procedure and unlawfully suspended and failed to complete the works, so LAD ran from 1 Mar 2015 to JKKP certification on 2 Jun 2015 (94 days) equating to RM940,000; plaintiff was entitled to recover third-party rectification costs because defendant failed to deliver works fit for purpose and no valid payment certificates supported defendant's counterclaim, hence counterclaim dismissed.

Citation
W-02(NCvC)(W)-18-01/2022 (Mahkamah Rayuan)
Parties
Appellant/defendant: MS Elevators Engineering Sdn Bhd; Respondent/plaintiff: Fairview International School Nusajaya Sdn Bhd
Court
NCvC
Jurisdiction
Malaysia
Judgment Date
21 July 2025
Case Number
W-02(NCvC)(W)-18-01/2022 (Mahkamah Rayuan)
Procedural Posture
Civil Appeal / Judgment by Court of Appeal Affirming High Court Decision
Outcome
Appeal dismissed; High Court decision affirmed
Legal Topics
Liquidated Ascertained Damages, Extension of Time, Breach of Contract, Rectification Costs, Suspension of Works, Payment Certification, Nominal Damages
Source Language
Malay/English
Contract Law Construction Law Civil Procedure Building and Engineering Safety Liquidated Ascertained Damages Extension of Time Breach of Contract Rectification Costs +3 more

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Parties

MS Elevators Engineering Sdn Bhd

Appellant/defendant

Fairview International School Nusajaya Sdn Bhd

Respondent/plaintiff

Procedural Posture

Civil Appeal / Judgment by Court of Appeal Affirming High Court Decision

Legal Issues

  1. 1 whether the defendant breached the Letter of Award (LOA) by failing to complete works by the completion date
  2. 2 whether plaintiff entitled to LAD and whether LAD limited to 5% cap or RM10,000/day
  3. 3 whether defendant validly obtained JKKP certification date for purposes of computing LAD

Ratio Decidendi

The LOA fixed a six-month completion to 28 Feb 2015 and contained an express LAD of RM10,000/day which, under the LOA's precedence clause, overrides the GCS cap; the defendant did not validly apply for extension of time under the PAM procedure and unlawfully suspended and failed to complete the works, so LAD ran from 1 Mar 2015 to JKKP certification on 2 Jun 2015 (94 days) equating to RM940,000; plaintiff was entitled to recover third-party rectification costs because defendant failed to deliver works fit for purpose and no valid payment certificates supported defendant's counterclaim, hence counterclaim dismissed.

Court Disposition

Appeal dismissed; High Court decision affirmed

Orders

  • Appellant to pay respondent liquidated ascertained damages of MYR 940000.00
  • Respondent awarded rectification costs of MYR 70294.80 for third-party repairs