The court upheld the validity of extensions of time granted under the PAM Contract 2006, ruling that the plaintiff failed to prove its claims against the defendants.

Faizah Jamaludin J:

Introduction

[1] This suit between the plaintiff and the defendants relate to the construction of a project in Ipoh, Perak, known as:

"Cadangan Pembangunan Kediaman Fasa 1 yang mengandungi 16 unit rumah berkembar 2% tingkat, 7 unit sesebuah Zero Lot 2% tingkat dan 24 unit rumah berkelompok 2% tingkat di atas sebahagian Lot 15517S (PN283716) Bandaraya Ipoh, Daerah Kinta, Perak Darul Ridzuan untuk Tetuan Anjung Hijau Sdn Bhd dan Cadangan Pembangunan Kediaman Fasa 2 yang mengandungi 17 unit rumah sesebuah Zero Lot 2% tingkat di atas sebahagian Lot 15517s (PN283716), Bandaraya Ipoh, Daerah Kinta, Perak Darul Ridzuan untuk Tetuan Anjung Hijau Sdn Bhd ("the Project").

[2] The plaintiff is the developer of the Project. The first defendant ("D1") was the main contractor appointed by the plaintiff for the construction of the Project. The second defendant ("D2") was the architect and contract administrator of the Project. The third defendant ("D3") is a professional architect: he is a director and a shareholder of D2. Perunding ZNA (Asia) Sdn Bhd ("ZNA") was the civil and structural engineer for the Project.

[3] The plaintiff's claim against the defendants is in connection with three extensions of time (referred to individually as "EOT 1", "EOT 2" and "EOT 3", and collectively as "EOTs") granted by D2 to D1 in respect of Phase 1 and Phase 2 of the Project.

[4] D1's counterclaim against the plaintiff is for the balance of the payment owing by the plaintiff to D1 for work done for the Project.

[5] EOT 1 and EOT 3 were extensions of time for Phase 1 of the Project granted by D2 to D1, where (i) EOT 1 was granted by D2 pursuant to the Initial Application for EOT 1 and the Revised Application for EOT 1 (both defined below) made by D1 to D2, and (ii) EOT 3 was granted by D2 pursuant to an appeal made by D1 against EOT 1. EOT 2 was an extension of time for Phase 2 of the Project granted by D2 to D1.

[6] The plaintiff contends that all three EOTs were null and void and should be set aside. It further contends that because the EOTs were null and void, the plaintiff does not owe D1 the balance of payment for the work done by D1 for the Project.

[7] The plaintiff seeks the following reliefs against the defendants: (i) a declaration that the EOTs given by D2 to D1 are null and void and be set aside; (ii) a declaration that D1's claims against the plaintiff are null and void; and (iii) damages in the sum of RM3,198,102.00 being liquidated and ascertained damages, together with interest at rate of 5% per annum from 13 November 2014 until full settlement.

[8] The defendants deny the plaintiff's claim. They plead that D1's applications for the EOT 1, EOT 2 and EOT 3 were in accordance with PAM 2006 and that D2 had properly and validly approved D1 's application for the EOTs in accordance with PAM 2006.

[9] D1 counterclaims from the plaintiff the sum of RM3,141,706.82 being the balance of payment due and owing from the plaintiff to D1 for work done for the Project together with interest of 7.85% per annum on the sum from 1 November 2018 until full settlement.

[10] Trial proceedings of this suit took place over 11 non-consecutive days. The parties called 10 witnesses: there were 8 witnesses of fact and two expert witnesses. The witnesses are:

[11] Upon considering the terms of PAM 2006, the law and the evidence adduced during the trial, this Court found that the plaintiff had failed to prove its case on a balance of probabilities against any of the defendants. The plaintiff's claim against the defendants was accordingly dismissed.

[12] As regards D1's counterclaim, this Court found that D1 had proved that the plaintiff owes D1 the balance sum of RM3,141,706.62 for work done by D1 in respect of the Project. Judgment was accordingly given to D1 for its counterclaim against the plaintiff.

[13] The full reasons for this Court 's decision are set out in this judgment.

Material Facts

[14] The plaintiff appointed D1 as the Project contractor by