CAPITOL AVENUE DEVELOPMENT SDN BHD GAMWON PROPERTIES SDN BHD

CAPITOL AVENUE DEVELOPMENT SDN BHD GAMWON PROPERTIES SDN BHD

The Architect's Certificate issued to the main contractor did not effect an extension under clause 14.1.1 of the SPA because the SESB delay was not established as a force majeure event beyond the Developer's control and the certificate arose under the contractor's construction contract; therefore the Developer remained liable for liquidated ascertained damages and the High Court's award was affirmed; the stay of execution was wrongly granted for lack of special circumstances and those stay orders were set aside.

Citation
S-02(NCVC)(A)-432-02/2018 (Mahkamah Rayuan)
Parties
Appellant/defendant: Capitol Avenue Development Sdn Bhd; Respondent/plaintiff: Gamwon Properties Sdn Bhd; Respondent/plaintiff: YL Pavillion Sdn Bhd; Respondent/plaintiff: Upper Domain Sdn Bhd
Court
NCVC
Jurisdiction
Malaysia
Judgment Date
20 March 2019
Case Number
S-02(NCVC)(A)-432-02/2018 (Mahkamah Rayuan)
Procedural Posture
Civil Appeal / Court of Appeal Judgment on Appeals From High Court on Construction of Contract and Stay Applications
Outcome
Appeals S-02(NCvC)(A)-432-02/2018, S-02(NCvC)(A)-436-02/2018 and S-02(NCvC)(A)-437-02/2018 dismissed and High Court judgment affirmed; appeals S-02(IM)(NCvC)-1481-02/2018, S-02(IM)(NCvC)-1482-02/2018 and S-02(IM)(NCvC)-1483-02/2018 allowed to set aside stay orders.
Legal Topics
Liquidated Damages, Extension of Time, Force Majeure, Architect's Certificate, Stay of Execution, Interpretation of Contract
Source Language
Malay/English
Contract Construction Property Commercial Law Civil Procedure Liquidated Damages Extension of Time Force Majeure +3 more

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Parties

Capitol Avenue Development Sdn Bhd

Appellant/defendant

Gamwon Properties Sdn Bhd

Respondent/plaintiff

YL Pavillion Sdn Bhd

Respondent/plaintiff

Upper Domain Sdn Bhd

Respondent/plaintiff

Procedural Posture

Civil Appeal / Court of Appeal Judgment on Appeals From High Court on Construction of Contract and Stay Applications

Legal Issues

  1. 1 Whether the Architect's Certificate of Extension of Time operates to extend the SPA completion date under clause 14.1.1
  2. 2 Whether delay in electricity supply by SESB constitutes force majeure or a cause beyond the developer's control
  3. 3 Whether Originating Summons was the proper mode of commencement

Ratio Decidendi

The Architect's Certificate issued to the main contractor did not effect an extension under clause 14.1.1 of the SPA because the SESB delay was not established as a force majeure event beyond the Developer's control and the certificate arose under the contractor's construction contract; therefore the Developer remained liable for liquidated ascertained damages and the High Court's award was affirmed; the stay of execution was wrongly granted for lack of special circumstances and those stay orders were set aside.

Court Disposition

Appeals S-02(NCvC)(A)-432-02/2018, S-02(NCvC)(A)-436-02/2018 and S-02(NCvC)(A)-437-02/2018 dismissed and High Court judgment affirmed; appeals S-02(IM)(NCvC)-1481-02/2018, S-02(IM)(NCvC)-1482-02/2018 and S-02(IM)(NCvC)-1483-02/2018 allowed to set aside stay orders.

Orders

  • Dismissed appeals S-02(NCvC)(A)-432-02/2018, S-02(NCvC)(A)-436-02/2018 and S-02(NCvC)(A)-437-02/2018 and affirmed High Court awards
  • Ordered costs of RM20000.00 to the respective Respondents subject to payment of the allocator fee