YESB SDN BHD BARCON INDUSTRIES SDN BHD

YESB SDN BHD BARCON INDUSTRIES SDN BHD

The High Court allowed YESB’s appeal because the evidence established Barcon and the project consultant instructed additional works after the original completion date, Barcon accepted and verified those works and issued certifications supporting completion; therefore YESB was entitled to payment of the certified balance (RM656,868.93) and retention release. The court set aside Barcon’s claim for LAD because post-completion variation instructions and absence of a revised completion date set time at large, depriving Barcon of the right to impose LAD. Barcon’s counterclaim for RM670,000 failed for lack of supporting evidence. The court ordered YESB to submit outstanding As-Built Drawings and...

Citation
WA-12BC-3-03/2023 (Mahkamah Tinggi)
Parties
Appellant (wa 12 BC 3 03/2023); Respondent (wa 12 BC 5 04/2023): YESB SDN BHD (Company No.: 772348-A); Appellant (wa 12 BC 5 04/2023); Respondent (wa 12 BC 3 03/2023): BARCON INDUSTRIES SDN BHD (Company No.: 245881-P)
Court
High Court
Jurisdiction
Malaysia
Judgment Date
8 March 2024
Case Number
WA-12BC-3-03/2023 (Mahkamah Tinggi)
Procedural Posture
Civil Appeal (from Sessions Court) / Appellate Judgment by High Court in Malaya, Kuala Lumpur (full Grounds of Judgment)
Outcome
Appeal by YESB (WA-12BC-3-03/2023) allowed; appeal by Barcon (WA-12BC-5-04/2023) dismissed except in part; SCJ's award of LAD against YESB set aside; YESB’s entitlement to payment of RM656,868.93 recognised; order made for YESB to submit specified documents; no order as to costs.
Legal Topics
Practical Completion, Liquidated and Ascertained Damages, Variation/additional Works, Retention Sum, As Built Drawings and Operation & Maintenance Manuals, Costs and Solicitor Client Costs, Interest
Source Language
Malay/English
Contract Law Construction Law Civil Procedure Practical Completion Liquidated and Ascertained Damages Variation/additional Works Retention Sum As Built Drawings and Operation & Maintenance Manuals +2 more

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Parties

YESB SDN BHD (Company No.: 772348-A)

Appellant (wa 12 BC 3 03/2023); Respondent (wa 12 BC 5 04/2023)

BARCON INDUSTRIES SDN BHD (Company No.: 245881-P)

Appellant (wa 12 BC 5 04/2023); Respondent (wa 12 BC 3 03/2023)

Procedural Posture

Civil Appeal (from Sessions Court) / Appellate Judgment by High Court in Malaya, Kuala Lumpur (full Grounds of Judgment)

Legal Issues

  1. 1 Whether YESB was entitled to payment for certified works and additional works including retention sum and interest
  2. 2 Whether YESB had abandoned claims for general, punitive/exemplary damages and solicitor-client costs
  3. 3 Whether Barcon validly claimed LAD where time had been set at large by post-completion variation instructions

Ratio Decidendi

The High Court allowed YESB’s appeal because the evidence established Barcon and the project consultant instructed additional works after the original completion date, Barcon accepted and verified those works and issued certifications supporting completion; therefore YESB was entitled to payment of the certified balance (RM656,868.93) and retention release. The court set aside Barcon’s claim for LAD because post-completion variation instructions and absence of a revised completion date set time at large, depriving Barcon of the right to impose LAD. Barcon’s counterclaim for RM670,000 failed for lack of supporting evidence. The court ordered YESB to submit outstanding As-Built Drawings and...

Court Disposition

Appeal by YESB (WA-12BC-3-03/2023) allowed; appeal by Barcon (WA-12BC-5-04/2023) dismissed except in part; SCJ's award of LAD against YESB set aside; YESB’s entitlement to payment of RM656,868.93 recognised; order made for YESB to submit specified documents; no order as to costs.

Orders

  • Appeal WA-12BC-3-03/2023 by YESB SDN BHD allowed.
  • Appeal WA-12BC-5-04/2023 by BARCON INDUSTRIES SDN BHD dismissed except in part: order for YESB SDN BHD to submit the documents referred to in subparagraphs 16.2(a) and (e) of the Amended Defence & Counterclaim to Barcon by 30.4.2024 (Documents Submission Order).