KAY CORPORATION SDN BHD KAYANGAN KEMAS SDN BHD

KAY CORPORATION SDN BHD KAYANGAN KEMAS SDN BHD

Clause 2 of the LOA incorporated the Main Contract and bound KC; most of KC's variation claims failed because they lacked Employer/Consultant/Main Contractor approval and/or were time-barred under Clauses 50.1/50.3; KK's backcharges were largely unsupported by requisition/acknowledgement evidence and thus disallowed except for MCCT costs borne by KC and shared labour costs apportioned equally; retention and uncertified sums are payable subject to set-off against justified backcharges; KC's counterclaim dismissed in material part.

Citation
BA-22C-33-09/2021 (Mahkamah Tinggi)
Parties
Plaintiff (suit 50) / Defendant (suits 32 & 33): Kayangan Kemas Sdn. Bhd.; Defendant (suit 50) / Plaintiff (suits 32 & 33): Kay Corporation Sdn. Bhd.
Court
High Court
Jurisdiction
Malaysia
Judgment Date
12 January 2024
Case Number
BA-22C-33-09/2021 (Mahkamah Tinggi)
Procedural Posture
Civil Construction Contract Dispute / Judgment (trial Court Decision)
Outcome
Partial judgment: KC's counterclaim largely dismissed; KK entitled to limited recovery in Suit 50; KC awarded sums in Suits 32 and 33; retention/release subject to contractual conditions and set-off; no order as to costs.
Legal Topics
Variation Claims, Backcharges, Retention Sum, Pre Judgment Interest, Time Bar (contractual Notice), Lump Sum Contract, Set Off
Source Language
Malay/English
Contract Law Construction Law Civil Procedure Commercial Law Variation Claims Backcharges Retention Sum Pre Judgment Interest +3 more

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Parties

Kayangan Kemas Sdn. Bhd.

Plaintiff (suit 50) / Defendant (suits 32 & 33)

Kay Corporation Sdn. Bhd.

Defendant (suit 50) / Plaintiff (suits 32 & 33)

Procedural Posture

Civil Construction Contract Dispute / Judgment (trial Court Decision)

Legal Issues

  1. 1 Whether the Main Contract forms part of the Letter of Award dated 04.01.2016
  2. 2 Whether KC is entitled to claim for variation works
  3. 3 Whether the imposition of backcharges by KK is justifiable

Ratio Decidendi

Clause 2 of the LOA incorporated the Main Contract and bound KC; most of KC's variation claims failed because they lacked Employer/Consultant/Main Contractor approval and/or were time-barred under Clauses 50.1/50.3; KK's backcharges were largely unsupported by requisition/acknowledgement evidence and thus disallowed except for MCCT costs borne by KC and shared labour costs apportioned equally; retention and uncertified sums are payable subject to set-off against justified backcharges; KC's counterclaim dismissed in material part.

Court Disposition

Partial judgment: KC's counterclaim largely dismissed; KK entitled to limited recovery in Suit 50; KC awarded sums in Suits 32 and 33; retention/release subject to contractual conditions and set-off; no order as to costs.

Orders

  • Suit 50: Kay Corporation Sdn. Bhd. to pay Kayangan Kemas Sdn. Bhd. RM146,420.46 (Judgment Sum)
  • Suit 50: Interest at 5% per annum on RM146,420.46 from date of filing until full payment