1. ) LIANMARK SDN. BHD. (Co. No.: 821509-K) 2. ) AL-AMBIA SDN. Bhd. (Co. No.: 76525-A) 1. ) AL-AMBIA SDN. Bhd. (Co. No.: 76525-A) (BY ORIGINAL ACTION) 2. ) LIANMARK SDN. BHD. (Co. No.: 821509-K)

1. ) LIANMARK SDN. BHD. (Co. No.: 821509-K) 2. ) AL-AMBIA SDN. Bhd. (Co. No.: 76525-A) 1. ) AL-AMBIA SDN. Bhd. (Co. No.: 76525-A) (BY ORIGINAL ACTION) 2. ) LIANMARK SDN. BHD. (Co. No.: 821509-K)

Plaintiff proved on balance that it completed the contracted works and defendant breached the subcontract by failing to pay; clause 7 breach was an innominate term that did not entitle defendant to terminate and defendant by conduct (payments and vouchers) affirmed the contract and is estopped from relying on set-off/back charges; defendant failed to give required defect notices and to mitigate, so most counterclaims fail; plaintiff entitled to retention sum and net judgment; interest and costs awarded as exercised by the court.

Citation
BA-22C-2-01/2017 (Mahkamah Tinggi)
Parties
Plaintiff / Defendant (counterclaim): Lianmark Sdn. Bhd. (Co. No.: 821509-K); Defendant / Plaintiff (counterclaim): Al-Ambia Sdn. Bhd. (Co. No.: 76525-A)
Court
High Court
Jurisdiction
Malaysia
Judgment Date
24 November 2020
Case Number
BA-22C-2-01/2017 (Mahkamah Tinggi)
Procedural Posture
Commercial Construction Contract Dispute (civil Suit) / After Trial and Judgment
Outcome
Original action allowed in part; counterclaim allowed in part.
Legal Topics
Termination for Breach, Classification of Contractual Terms (condition/warranty/innominate), Set Off and Back Charges, Adverse Inference for Withholding Witness, Retention Monies, Pre Judgment and Post Judgment Interest, Costs Assessment, Mitigation and Rectification of Defects
Source Language
Malay/English
Contract Law Construction Law Civil Procedure Evidence Law Equity (estoppel) Termination for Breach Classification of Contractual Terms (condition/warranty/innominate) Set Off and Back Charges +5 more

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Parties

Lianmark Sdn. Bhd. (Co. No.: 821509-K)

Plaintiff / Defendant (counterclaim)

Al-Ambia Sdn. Bhd. (Co. No.: 76525-A)

Defendant / Plaintiff (counterclaim)

Procedural Posture

Commercial Construction Contract Dispute (civil Suit) / After Trial and Judgment

Legal Issues

  1. 1 Whether plaintiff breached clause 7 (progress claims verification)
  2. 2 Whether breach of clause 7 entitled defendant to terminate the subcontract
  3. 3 Whether defendant was estopped from relying on plaintiff's breach or had affirmed the contract

Ratio Decidendi

Plaintiff proved on balance that it completed the contracted works and defendant breached the subcontract by failing to pay; clause 7 breach was an innominate term that did not entitle defendant to terminate and defendant by conduct (payments and vouchers) affirmed the contract and is estopped from relying on set-off/back charges; defendant failed to give required defect notices and to mitigate, so most counterclaims fail; plaintiff entitled to retention sum and net judgment; interest and costs awarded as exercised by the court.

Court Disposition

Original action allowed in part; counterclaim allowed in part.

Orders

  • Defendant to pay Plaintiff the net judgment sum of RM1,364,190.83 (Plaintiff's claimed sum less counterclaim allowance).
  • Defendant to pay Plaintiff pre-judgment interest at 5% per annum on RM1,364,190.83 from 27-08-2015 to 10-09-2020.