A party's failure to certify payments as per contractual obligations can lead to a repudiatory breach, justifying the contractor's suspension of work.

[1] The Plaintiff as Sub-Contractor and the Defendant as Main SubContractor had entered into a Sub-Contract dated 9 April 2012 (pp 393 - 405 of the Record of Appeal) in respect of the "supply, installation, coordination, testing and commissioning of ICT services system for UITM, Pasir Gudang" ("the said works") for the sum of RM 1,006,145.00. As the Defendant had wanted the works to start earlier, the Plaintiff had, prior to the Sub Contract, entered into the site and started work since April 2011.

Problem

The Plaintiff progressively performed the works and had rendered the following invoices to the Defendant.

The Defendant had only made the payment of RM 84,187.43 including the following payments to the Plaintiff:-

[2] Throughout the period when the Plaintiff was doing the works, the Defendant did not give any letter to dispute the quantum claimed by the Plaintiff in their invoices to the Defendant from 10 August 2012 till 6 June 2013. As the Plaintiff did not receive certification for the works done save for two and as the balance outstanding remained unpaid, the Plaintiff could not risk continuing further works and so eventually they stopped work altogether and sued for their losses arising out of what they said is the Defendant's breach in failure to certify their work done and to pay them accordingly.

Prayers

[3] The Plaintiff claimed the balance sum of RM 294,709.17 against the Defendant and also for loss of profit of RM 106,632.00 together with interest at 5% per annum on the judgment sum till realization and costs.

[4] The Defendant's defence was that the Plaintiff had wrongfully terminated the Sub-Contract by stopping works and leaving the site in December 2012 without giving any notice. It was also alleged that the Plaintiff had acted in breach of the Sub-Contract by failing to carry out and complete the works in respect of the Project as agreed. It was admitted that a sum of RM 84,187.43 had been paid to the Plaintiff so far for preliminary works.

[5] The Defendant on the other hand, counterclaimed for RM 505,926.39 being damages, loss and expense due to the Plaintiff's unilateral termination of the Sub-Contract by stopping works and leaving the site without notice. The Defendant also claimed interests and costs.

[6] The learned Sessions Court Judge ("SCJ") had, after full trial, dismissed the whole of the Plaintiff's claim and allowed the whole of the Defendant's Counterclaim with interest and costs.

[7] Against that decision the Plaintiff as Appellant has appealed to this Court. The parties shall be referred to by their designation in the trial at the Sessions Court as Plaintiff and Defendant.

Principles

Whether The Plaintiff Had A Right To Terminate The Sub Contract When The Defendant Did Not Certify The Works Invoiced By The Plaintiff And So Did Not Pay The Plaintiff According To The Sub-Contract

[8] Contractually, it is provided vide cl 1 Part V of the Sub Contract (at p 404 of the Record of Appeal) as follows:-

"Interim Payment Certification for the Sub-Contract works shall be prepared by the Main Sub-Contractor monthly. Save no interim payment certificate shall be prepared if there is not any significant progress of the Sub-Contract works during that particular period".

[9] The Defendant have a contractual obligation and duty to certify all the invoices rendered by the Plaintiff. The Interim Payment Certificate is to certify and/or confirm what work the Plaintiff had done. The Defendant had only certified two (2) Interim Payment Certificate dated 28 May 2012 and 23 July 2012. There was a third Interim Payment Cer