ELITE ALLIANCE ENGINEERING SDN BHD VISI NUSAJAYA SDN BHD

ELITE ALLIANCE ENGINEERING SDN BHD VISI NUSAJAYA SDN BHD

The joint measurement sheet approved by the respondent constituted or amounted to a practical completion certificate (or was to be deemed issued) and triggered release of the first moiety; the clause making release to the subcontractor conditional on the main contractor receiving funds from the employer is void under s.35 CIPAA, therefore the 24-month time provision governs release of the second moiety; the respondent raised no triable issues to defeat a summary judgment, so judgment for the appellant was appropriate.

Citation
WA-12AC-24-05/2021 & WA-A52C-65-12/2020 (Mahkamah Tinggi)
Parties
Appellant / Plaintiff: Elite Alliance Engineering Sdn Bhd; Respondent / Defendant: Visi Nusajaya Sdn Bhd
Court
High Court
Jurisdiction
Malaysia
Judgment Date
24 September 2021
Case Number
WA-12AC-24-05/2021 & WA-A52C-65-12/2020 (Mahkamah Tinggi)
Procedural Posture
Civil Appeal (construction Contract Summary Judgment) / High Court Appeal From Sessions Court (re Hearing Under Order 55)
Outcome
Appeal allowed; summary judgment entered for the appellant
Legal Topics
Retention Monies, Practical Completion, Summary Judgment, Conditional Payment Prohibition, Defects Liability Period
Source Language
Malay/English
Construction Law Contract Law Civil Procedure Statutory Adjudication (cipaa) Retention Monies Practical Completion Summary Judgment Conditional Payment Prohibition +1 more

Case Brief

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Parties

Elite Alliance Engineering Sdn Bhd

Appellant / Plaintiff

Visi Nusajaya Sdn Bhd

Respondent / Defendant

Procedural Posture

Civil Appeal (construction Contract Summary Judgment) / High Court Appeal From Sessions Court (re Hearing Under Order 55)

Legal Issues

  1. 1 Whether a certificate of practical completion was required and whether the joint measurement sheet constituted or triggered a certificate
  2. 2 Whether the respondent could condition payment to the subcontractor on receipt of payment from the main contractor (third party)
  3. 3 Whether the respondent disclosed triable issues sufficient to resist summary judgment

Ratio Decidendi

The joint measurement sheet approved by the respondent constituted or amounted to a practical completion certificate (or was to be deemed issued) and triggered release of the first moiety; the clause making release to the subcontractor conditional on the main contractor receiving funds from the employer is void under s.35 CIPAA, therefore the 24-month time provision governs release of the second moiety; the respondent raised no triable issues to defeat a summary judgment, so judgment for the appellant was appropriate.

Court Disposition

Appeal allowed; summary judgment entered for the appellant

Orders

  • Appeal allowed
  • Summary judgment entered in favour of Elite Alliance Engineering Sdn Bhd against Visi Nusajaya Sdn Bhd for the retention sum of RM145,614.98