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2021 MarsdenLR 2034
HIGH COURT MALAYA SHAH ALAM
GANDAHAN SDN BHD – Appellant
Versus
GIGATECH ENGINEERING SDN BHD – Respondent
[Civil Suit No: BA-22C-25-07/2021]
The court held that failure to raise triable issues and the completion of works on time rendered the Defendant's counterclaims invalid, affirming the principles of summary judgment in construction disputes.
Headnote:(A) Construction Industry Payment and Adjudication Act 2012 – Section 35(1) and (2)(a) – Contracts Act 1950 – Section 75 – Summary judgment on Plaintiff's Total Claim – Defendant's counterclaim dismissed for lack of evidence and plausibility – The Plaintiff completed Sub-Contract Works on time, with Defendant estopped from denying claims due to lack of objection or payment delays. (Paras 21, 23, 46)
Facts of the case: The Plaintiff subcontracted for six projects and claimed RM819,958.06 for unpaid works. Defendant's counterclaims included Liquidated and Ascertained Damages for delays, which the court found unfounded.
Findings of Court: The court authorized summary judgment for the Plaintiff against the Defendant for the claimed sums, as all conditions were met per Rules of Court.
Issues: The main issues were whether the Plaintiff completed the works on time and the validity of the Defendant's counterclaims for damages and back charges.
Ratio Decidendi: The court held that the remission of counterclaims lacked evidential support and the Defendant was estopped from denying liability due to a failure to raise triable issues effectively.
Result: Summary judgment granted to Plaintiff; counterclaim struck out.
JUDGMENT
(Court Enclosures No 7 And 8)
Background
[1] The defendant company (Defendant) appointed the plaintiff company (Plaintiff) as a sub-contractor to do certain construction works, namely piping works, ductwork and control wiring works (Sub-Contract Works) in the following six projects (6 Projects):
(1) Sub-Contract Works in "WACH (BMT)" project (1st Project);
(2) Sub-Contract Works regarding a "Chiller System" in "Bangunan Darul Ehsan (SUKII)", Shah Alam, Selangor Darul Ehsan (2nd Project);
(3) Sub-Contract Works for a condominium project in Jalan Madrasah, Taman Melati, Setapak, Kuala Lumpur (3rd Project);
(4) Sub-Contract Works in a "Women and Children Hospital", Kuala Lumpur (4th Project);
(5) Sub-Contract Works in a hospital in Kuala Krai, Kelantan (5th Project); and
(6) Sub-Contract Works concerning air conditioning system in a building for Messrs Dato' Yap Wee Leong (6th Project).
[2] The Plaintiff claimed to have completed the Sub-Contract Works in the 6 Projects and the following sums are due from the Defendant to the Plaintiff:
(1) 1st Project - RM63,650.00 [Plaintiff's Claimed Sum (1st Project)];
(2) 2nd Project - RM35,600.00 [Plaintiff's Claimed Sum (2nd Project)];
(3) 3rd Project - RM41,500.00 [Plaintiff's Claimed Sum (3rd Project)];
(4) 4th Project - RM175,000.00 [Plaintiff's Claimed Sum (4th Project)];
(5) 5th Project - RM226,348.06 [Plaintiff's Claimed Sum (5th Project)]; and
(6) 6th Project - RM277,860.00 [Plaintiff's Claimed Sum (6th Project)].
Legal Proceedings
[3] The Plaintiff initially filed this suit on 4 January 2021 against the Defendant in the Shah Alam Sessions Court No BA-B52C-01-01/2021 [Original Action (Sessions Court)] to claim for, among others, a sum of RM819,958.06 [Plaintiff's Total Claim (Original Action)], the total of the Plaintiff's Claimed Sum (1st Project) to Plaintiff's Claimed Sum (6th Project).
[4] In the Original Action (Sessions Court), the Defendant's Defence and Counterclaim (DCC)) has pleaded as follows:
(1) the Defendant denied being liable for the Plaintiff's Claimed Sum (1st Project) - paragraph 7 DCC;
(2) the Defendant alleged that the Defendant had paid the Plaintiff's Claimed Sum (2nd Project) to the Plaintiff - paragraph 9 DCC;
(3) in para 11 DCC, the Defendant pleaded that the Defendant had paid the Plaintiff's Claimed Sum (3rd Project) to the Plaintiff;
(4) regarding the Plaintiff's Claimed Sum (4th Project)-
(a) the Defendant averred that the Plaintiff had failed to complete the 4th Project within the time stipulated in Defendant's "Letter of Award" dated 24 March 2015 to the Plaintiff [LA (4th Project)] - paragraph 13 DCC;
(b) paragraph 16 DCC pleaded that the Plaintiff had only completed the Sub-Contract Works required of the Plaintiff in the 4th Project [Plaintiff's Sub-Contract Works (4th Project)] on 30 November 2016. Consequently, due to the Plaintiff's delay in completing the 4th Project, the Plaintiff was liable to the Defendant pursuant to cl 21 LA (4th Project) for "Liquidated and Ascertained Damages" (LAD) in a sum of RM1,025,000.00 [LAD (4th Project)] - paragraphs 33 and 34(a) DCC;
(c) according to para 18 DCC, the LA (4th Project) provided for the Defendant to pay for the Plaintiff's Sub-Contract Works (4th Project) only after the Defendant has received payment from the employer of the 4th Project [Back To Back Payment Arrangement (4th Project)]; and
(d) the Defendant counterclaimed from the Plaintiff for "back charges" amounting to RM637,616.51 [Back Charges (4th Project)] - paragraphs 33 and 34(g) DCC;
(5) in respect of the Plaintiff's Claimed Sum (5th Project)-
(a) paragraph 22 DCC claimed that the Plaintiff had failed to complete the 5th Project within the time stipulated in Defendant's LA dated 19 August 2016 to the Plaintiff [LA (5th Project)]; and
(b) as a result of the Plaintiff's delay in completing the 5th Project, the Plaintiff was liable to the Defendant under cl 21 LA (5th Project) for LAD amounting to RM1,520,000.00 [LAD (5th Project)] - paragraphs
