Plaintiffs' failure to deliver goods on time constituted a breach allowing Defendants to lawfully terminate the contract, with payment obligations contingent on full delivery.

JUDGMENT

Quay Chew Soon JC:

Introduction

[1] The Plaintiffs ("P") claim against the Defendant ("D") is for nonpayment of various invoices in respect of goods delivered. And for losses suffered arising from D's refusal to accept delivery of certain goods. In turn, D made a counterclaim against P for rental costs and liquidated damages ("LAD"). After a full trial, I dismissed P's claim. I also dismissed D's counterclaim. Here are the grounds of my judgment.

Background Facts

[2] At D's request, P issued a quotation dated 11 October 2018 ("Quotation") for the supply of 138 units of offshore containers ("Containers"), also known as cargo handling equipment ("CHE"), for the sum of RM3,250,000. The Containers are to be certified by Det Norske Veritas (DNV GL). Pursuant to Purchase Order No 60007964 dated 1 November 2018 ("Purchase Order") issued by D to P, D ordered 138 units of Containers to be supplied by P in accordance with the terms and specifications contained in the Purchase Order ("CHE Project") for a total contract sum of RM3,250,000 ("Contract Sum").

[3] The Purchase Order was accepted in writing by P. On 21 December 2018, D's representative, namely DW3, approved the drawings of the Containers to be submitted by P to DNV GL. DNV GL is the certification body responsible for approving the Containers in accordance with the specifications stated in the Purchase Order.

[4] By way of emails dated 1 February 2019 to 3 February 2019 between both parties' representatives, it was agreed that P shall deliver the 138 units of Containers ordered by way of 22 batches. Wherein the first batch of Containers shall be delivered by 15 March 2019 and the final batch of Containers shall be delivered by 26 July 2019 ("Original Delivery Schedule"). P failed to deliver the Containers in accordance with the Original Delivery Schedule. P claimed at the time that its failure to deliver the Containers according to the Original Delivery Schedule was due to delays faced in receiving raw materials for the fabrication of the Containers.

[5] At a meeting held on 2 April 2019 between both parties' representatives ("1st Meeting"), D raised the issue of delay in the delivery of the Containers. D informed P that the Containers ordered were crucial for the conduct of its operations at its site in Kemaman, Terengganu. P proposed a mitigation plan ("Mitigation Plan"). Under the Mitigation Plan:

(a) P will supply rental CHE ("Rental Equipment") to D in accordance with the specifications stated in the Purchase Order, until such time when the Containers ordered pursuant to the Purchase Order are delivered to D;

(b) P will supply the Rental Equipment upon request made by D according to D's operational requirements;

(c) The rental costs of the Rental Equipment will be borne by P, with no cost impact on D; and

(d) P will update D on the new dates for delivery of the Containers.

[6] An excerpt of the minutes of the 1st Meeting is reproduced below:

[7] D says that it was constrained to accede to the Mitigation Plan due to its ongoing operations and contractual commitments to third parties. Be that as it may, it is not in dispute that D agreed to the Mitigation Plan. At the 1st Meeting, D requested P to deliver the first batch of Rental Equipment by 17 April 2019, comprising 6 units of CHE equipment measuring 20 feet by 4 feet by 4 feet.

[8] Following the 1st Meeting, D claims that it made requests to P for Rental Equipment as required for the purpose of its operations. But P failed on multiple occasions to supply the Rental Equipment, thereby causing disruption to D's operations. D avers that it was therefore compelled to obtain Rental Equipment from other suppliers thus incurring costs in obtaining the same. P however contends that only one formal request was made by D for the Rental Equipment.

[9] Another meeting was held on 29 April 2019 between both parties' representatives ("2nd Meeting"). According to the minutes of the 2nd Meeting, the rental costs of the Rental Equipment which a