The court allowed a partial claim for acceleration costs based on implied representations, dismissing counterclaims due to lack of substantiation.

Lim Chong Fong J:

Introduction

[1] This is a suit on competing cross claims of sub contractor's acceleration claim versus main contractor's liquidated damages claim by virtue of prolonged construction and completion of a MRT station multi-storey car park building.

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

[3] The Defendant is also a private limited company involved in the construction contracting business.

Background

[4] The MRT Corporation Sdn Bhd ("MRTC") appointed the Defendant as the main contractor to construct and complete the 'Projek Mass Rapid Transit Lembah Klang: Jajaran Sungai Buloh-Kajang Package MSPR4: Construction and Completion of Multi-storey Car Park Building, External Works and other Associated Works at Section 16 Station' ("Project").

[5] By a letter of award dated 6 August 2014 ("Sub-Contract"), the Defendant accepted the Plaintiff's quotation of RM38,527,566.29 for the construction of the architectural, sub-structure and superstructure portions of the Project ("Works"). The Sub-Contract is reproduced below:

[6] The basic common facts are that the Project originally involved the construction of a 7 storey multi-storey carpark building only and the design drawings and specification were prepared accordingly.

[7] However on or about 15 August 2014, the parties were informed by the MRTC that the Project has been amended to cater for a 35 to 40 storey multi-storey building. As the result, the Defendant provided the Plaintiff with the revised structural drawings on 21 November 2014. The amendment resulted in deeper excavation for foundation and change in the piling, sub-structure works and superstructure works.

[8] As the result, the Works could not be completed within the original schedule stipulated in the Sub-Contract.

[9] According to the Plaintiff, the Defendant in August 2015 represented and/or directed the Plaintiff to deploy acceleration measures to complete the amended Works.

[10] Consequently, the Plaintiff complied and expended additional costs and expenses which the Plaintiff thereafter claimed against the Defendant. However the Defendant failed, refused and/or neglected to pay the Plaintiff accordingly notwithstanding that the Defendant gave a notice to MRTC submitting an acceleration claim amounting to about RM12 million on 7 January 2016 based on documents produced by the Plaintiff.

[11] The Project was finally completed on 17 July 2017. It is undisputed between the parties that the Plaintiff is hence entitled to the final balance of contract sum of RM274,000.00 and release of retention money of RM963,189.16 totalling to RM1,237,199.16.

[12] The Defendant however denied having represented or directed the Plaintiff to deploy acceleration measures as so alleged by the Plaintiff.

[13] That aside and according to the Defendant, the Plaintiff failed to complete the amended Works by 31 December 2016 as stipulated by the Defendant after extending the completion time by 6.5 months. Consequently, the Plaintiff has been culpably in delay of 198 days in completing the amended Works. This consequently attracted payment of liquidated and ascertained damages amounting to RM2,970,000.00 which the Defendant set off against the sum of RM1,237,199.16 owing to the Plaintiff.

[14] Furthermore, the Defendant alleged that the Plaintiff in its pursuit of the acceleration claim leaked confidential information in relation to the main contract between the Defendant and MRTC and claimed damages of RM1,000,000.00.

[15] By reason of the dispute over the non- payment of the Plaintiff's acceleration claim as well as wrongful set off of RM1,237,199.16 of the Plaintiff's final balance of contract sum and release of retention monies by the Defendant, the Plaintiff hence commenced this suit on 6 May 2019.

Preliminary

[16] The Plaintiff claimed and prayed for the following in the suit:

(i) RM3,000,000.00 being the acceleration claim or any other sum deem fit and proper by this Honourable C