The court reinforced that contractual obligations persist post-completion certificates, and the validity of variation orders hinges on prior compliance with contract terms.

JUDGMENT

Mohd Arief Emran Arifin JC:

A. Introduction

[1] The Plaintiff seeks the following orders from this Court:

(i) A declaratory order that the sum of RM3,136,293.25 is the sum due and payable under the Consent Order dated 9 November 2011.

(ii) A declaratory order that the draft final account prepared by the Plaintiff is not valid, is disputed, and is unenforceable.

(iii) A declaratory order that the sum of RM58,417.57 contained in the draft final account that was not agreed upon is a sum that is not valid, disputed, and is not enforceable.

(iv) Interest at the rate of 5% per annum on prayer (i) from the date of the filing of the writ to the date of full realization of the same.

(v) Costs.

B. Background Facts

[2] The Plaintiff's claim is premised on the following facts:

2.1 The Defendant had awarded the Plaintiff by way of the letter dated 6 May 2003 a project entitled "The proposed Planting and Maintaining of Forest Species Works inclusive of infrastructural and landscaping works for Taman Rimba Alam at Precincts 14 & 15 Putrajaya for Perbadanan Putrajaya".

2.2 Parties then executed a Contract dated 28 October 2003. The material terms of the agreement are as follows:

(i) The Defendant (Perbadanan) covenants to pay the Plaintiff in consideration and completion of the works and making good of any defects whatsoever to the works sums of RM58,757,209.25 or such other sum as shall become payable under and at the times and in the manner specified in the Conditions of Contract.

Special Provisions to the conditions of contract - Part E of the Contract Document

(ii) Clause 12.6

12.6 Payment

Payment for all plants will be made progressively as follows:

(i) Plant 40%

The full amount represented in this percentage shall be paid progressively as the Contractor fulfills his obligations to plant during Construction Period

(ii) Pre-Maintenance 20%

The full amount represented in this percentage shall be paid progressively as the Contractor fulfills his obligations to maintain the plants during Construction Period and before issuance of Certificate of Practical Completion (CPC)

(iii) Post-Maintenance 40%

The full amount represented in this percentage shall be paid progressively as the Contractor fulfills his obligations to maintain the plants during the 24 Months Maintenance Period or Defects Liability Period (DLP)

Note:

1. The full amount payable for each of the plant in the percentage stated above shall:

i) Be paid upon the Contractor fulfilling his obligations as contained in the Specification and the Maintenance Programme which shall be prepared by the Contractor and approved by PP, and

ii) Include costs for the replacement of any of the plant, which at any time during the subsistence of this contract, fails to meet the requirements of the Perbadanan

iii) It the Contractor tails to maintain the plants during the construction period, the Perbadanan shall be entitled to deduct the pre-maintenance costs from any sums due and payable to the Contractor

2. In the event that the Contractor fails, ignores and/or refuses to replace any plant rejected by Perbadanan or maintain any plant (trees, palm, shrub and turfing) as per the approved Specification and the Maintenance Programme, then the Perbadanan shall, after giving seven (7) days written notice to the Contractor, be entitled to appoint a third party to replace or maintain such plant. In such an event, the Perbadanan shall be entitled to deduct all costs incurred by such exercise from any sums due and payable to the Contractor.

3. Notwithstanding the above, where the third party only replaces the plant, the maintenance and the well-being of the plant shall be the responsibility of the Contractor.

Conditions of Contract

Clause 4

4. Scope Of Contract

4.1 Scope of Contract

The Contractor shall upon and subject to these Conditions construct and complete Works shown upon the Contract Drawings and described by or referred to in the Specifications and in the Articles of Agreement and these Conditions in compliance therewith, using