Malaysia Case Law

10 Jan 2023

LYCONNA CORPORATION SDN BHD DESTINI ONE DEVELOPMENT SDN BHD

Citation

WA-A74-2932-10/2022 (Mahkamah Majistret)

Court

Magistrates' Court

Case number

WA-A74-2932-10/2022 (Mahkamah Majistret)

The court held the architect's purported extension (31.1.2019–31.3.2019) was issued for reasons outside the enumerated causes in Clause 18.1 and under the building contract clause to which the Plaintiff was not privy; therefore the extension was outside the scope of Clause 18.1, manifestly erroneous and not binding. No valid extension covered 16.4.2018–30.1.2019. Under Clause 19.2 vacant possession was deemed taken on 5.4.2019. Plaintiff proved delay on the balance of probabilities and was entitled to RM54,175.15 liquidated damages, interest at 5% from judgment until full settlement, and cost…

• Extension of time
• Liquidated damages
• Vacant possession
• Architect's certificate
• Set off
• Manifestly erroneous doctrine

13 Sept 2022

RHB BANK BERHAD 1. ) INSTANT ACHIEVEMENT SDN BHD 2. ) YEONG JOO HOCK 3. ) TAN BEE KIM

Citation

JA-22NCC-71-08/2021 (Mahkamah Tinggi)

Court

High Court

Case number

JA-22NCC-71-08/2021 (Mahkamah Tinggi)

The court found the defendants' counter-claim plainly and obviously unsustainable: the bank owed no duty to investigate every progress certificate, the Facilities Agreement allowed waiver of conditions precedent, the certificate of indebtedness was conclusive absent manifest error, and there was no evidence attributing alleged employee misconduct to the bank; accordingly the counter-claim disclosed no reasonable cause of action and was struck out.

• Loan facility
• Personal guarantee
• Certificate of indebtedness
• Conditions precedent
• Architect's certificate
• Fraudulent disbursement

20 Mar 2019

CAPITOL AVENUE DEVELOPMENT SDN BHD GAMWON PROPERTIES SDN BHD

Citation

S-02(NCVC)(A)-432-02/2018 (Mahkamah Rayuan)

Court

NCVC

Case number

S-02(NCVC)(A)-432-02/2018 (Mahkamah Rayuan)

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.

• Liquidated damages
• Extension of time
• Force majeure
• Architect's certificate
• Stay of execution
• Interpretation of contract

PUBLIC FINANCE BERHAD V ZAINAL BIN OSMAN T/A PUTERA FOTOT STUDIO

Citation

PUBLIC FINANCE BERHAD V ZAINAL BIN OSMAN T/A PUTERA FOTOT STUDIO

Court

Malaysian court

The writ action was founded on the loan agreement and not on enforcement of a registered charge; therefore Order 83 r.4(1) did not apply and no leave was required. The defendant failed to adduce any affidavit evidence of a defence on the merits to the claim based on the loan agreement, so the registrar correctly dismissed the application to set aside the default judgment; the appeal was dismissed with costs.

• Loan agreement
• Charge action
• Default judgment
• Setting aside judgment
• Architect's certificate
• Progress payments

SIN KEAN BOON METAL INDUTRIES SDN BHD v TRIKKON CONSTRUCTION SDN BHD

Citation

SIN KEAN BOON METAL INDUTRIES SDN BHD v TRIKKON CONSTRUCTION SDN BHD

Court

Malaysian court

Five weeks from appearance (two weeks after defence) was not inordinate delay and the affidavit served more than four clear days before the return date complied with O.14 r.2; however, disputed issues as to whether claimed shortfall related to additional works outside the subcontract and whether architect's certificates were conclusive raised triable issues, so summary judgment was inappropriate and the interlocutory grant of leave to sign final judgment was set aside.

• Summary judgment
• Service of affidavit
• Inordinate delay
• Architect's certificate
• Variation orders
• Triable issue