Parties' contractual obligations under PAM Conditions are independent. The court allowed partial access to the site for the Plaintiff to remove items no longer in dispute pending arbitration.

JUDGMENT

Lim Chong Fong J:

Introduction

[1] This is an application for interim measures pending arbitration in respect of construction Belongings at site consequential to the termination of the construction contract.

[2] The Plaintiff is a private limited company involved in the construction contracting business.

[3] The Defendant is a private limited company involved in the property development business.

Background And Preliminary

[4] By a letter of acceptance dated 19 May 2017 together with other contractual documents, the Defendant appointed the Plaintiff as the contractor to execute, perform, design (where applicable), construct, complete and maintain project works ("Works") for a project described as "Cadangan Pembangunan Perdagangan Bercampur Yang Mengandungi 3 Blok Menara iaitu:

Fasa 1: 5 Tingkat Besmen dan 10 Tingkat Podium;

Fasa 2: Menara A - 61 Tingkat Pangsapuri Servis;

Fasa 3: Menara B - 56 Tingkat Pangsapuri Servis

Fasa 4: Menara C - 72 Tingkat Hotel (fasa 4A) dan Hotel Suite Strata (Fasa 4B),

Di atas Lot 20000 (lot Lama 111 & 112) Seksyen 63, Bandar Kuala Lumpur, Jalan Conlay, Wilayah Persekutuan, Kuala Lumpur" ("Project").

[5] Subsequently, the Plaintiff and the Defendant entered into a Supplemental Agreement dated 1 June 2017 and further a supplementary agreement via letter dated 20 September 2019.

[6] The aforesaid documents referred in paragraphs [4] and [5] collectively formed the contract between the parties ("Contract"). The Contract, amongst others, incorporates the PAM Conditions of Contract ("PAM Conditions")

[7] During the course of the carrying out of the Works under the Contract, the Defendant and its Project architect were of the view that the Plaintiff failed to carry out the execution of the Works regularly and diligently.

[8] As the result, the Project architect via its letter dated 30 July 2020 issued a notice of default to the Plaintiff pursuant to the clause 25.1(c) of the PAM conditions. In addition, the Defendant also via its letter dated 11 August 2020 notified the Plaintiff that the Plaintiff failed to comply with certain of its obligations under the Contract.

[9] The Plaintiff via its letters dated 5 and 13 August 2020 replied to the Project architect and Defendant respectively disputing the aforesaid notices.

[10] In consequence, the Plaintiff via its solicitor's letter dated 14 August 2020 referred the aforesaid disputes to arbitration.

[11] Subsequently, the Defendant by its letter dated 24 August 2020 issued its notice of determination to the Plaintiff pursuant to clause 25.2 of the PAM Conditions. In its notice, the Defendant also sought immediate re-possession of the Project site.

[12] The Plaintiff by its letter also dated 24 August 2020 refuted the directive of the Defendant to yield the site and requested the Defendant to direct its Project architect to communicate with the Plaintiff on post termination handover procedures and list of so called assets ("Belongings") that the Plaintiff was to remove from the site.

[13] However, the Defendant's security personnel also on 24 August 2020 re-possessed and took control of the site. The Plaintiff and its sub-contractors were not permitted to re-enter the site save for inspection of work done and other purposes as imposed upon by the Defendant.

[14] Subsequently, the Defendant by its letter dated 27 August 2020 requested the Project architect to confirm whether the Defendant required assignment of the benefit of any hire agreement of the construction plant at the site as well as when the Plaintiff may remove its Belongings from the site.

[15] The Project architect by its letter dated 1 September 2020 responded that the Plaintiff may only be instructed to remove its Belongings after an official listing of the Belongings are furnished to the Project architect within 2 days and that the Defendant has yet to respond to the Project architect on the assignment of the benefit of the hire agreement of the construction plant.

[16] The Plaintiff thereafter by its letter