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2011 MarsdenLR 2801
HASNAH MOHAMMED HASHIM
WINSTECH ENGINEERING (M) SDN BHD – Appellant
Versus
ESPL (M) SDN BHD – Respondent
Unilateral contract amendments made by one party without the other’s consent are invalid, and failure to complete contractual obligations may result in claims being dismissed.
Headnote:(A) Civil Law - Subcontract - Breach of Contract - Plaintiff claims for various sums and interest due to the Defendant's breaches and delays in the project execution as a subcontractor for mechanical and electrical works - Court finds the Plaintiff was responsible for delays and failed to prove claims on the balance of probabilities - All amendments and deletions made to the initial contract were unilateral and thus invalid - Counterclaims by the Defendant were proven, resulting in the allowance of the counterclaim. (Paras 1-12)
(B) Res Judicata - Court recognizes that decisions in related prior litigations must be considered in current claims involving similar issues - Previously adjudicated matters establish binding outcomes which must be acknowledged. (Paras 12-13)
(C)
Findings of Court:
Plaintiff's claims dismissed; Defendant's counterclaim of RM953,576.93 allowed with costs. (Para 14-15)
(D)
Issues: Determining validity of contract amendments, completion status of works, and adjudicating counterclaims based on previous litigation. (E)
Ratio Decidendi: Plaintiff's unilateral amendments invalidate claims, while evidence supports the Defendant’s counterclaims based on established contractual obligations and project management failures by the Plaintiff. (F)
Result: Plaintiff’s claim dismissed; Defendant’s counterclaim allowed.
| Table of Content |
|---|
| 1. claims of the plaintiff (Para 1 , 2 , 3 , 4) |
| 2. counterclaims by the defendant (Para 5 , 6 , 7 , 8) |
| 3. background of the acmv works (Para 9 , 10 , 11 , 12) |
The Plaintiff claims as follows:-
(a) for an order that the Defendant, ESPL (M) Sdn. Bhd. pays the Plaintiff the sums of RM1,436,969.32 together with interest at the rate of 8% per annum from 3.5.98 to the date of realisation.
(b) for an order that the Defendant, ESPL (M) Sdn. Bhd. pays the Plaintiff a sum RM803,217.40 together with interest at the rate of 8% per annum from 8.5.98 to the date of realization;
(c) for an order that the Defendant, ESPL (M) Sdn. Bhd. pays the Plaintiff a sum of RM7,707,002.25 together with interest at the rate of 8% per annum from 8.5.98 to the date of realization; and
(d) for an order that the Defendant, ESPL (M) Sdn. Bhd. pays the Plaintiff a sum of RM50,985.68 together with interest at the rate of 8% per annum from 8.5.98 to the date of realization.
The Defendants counterclaim is as follows:-
(a) Backcharges imposed by the Defendant
(as at to date and still continuing)
RM66,233.50
and/or damages
(b) Backcharges imposed by Henz
(as at to date and still continuing)
RM 1,170,114.65
and/or damages
(c) Backcharges imposed by R&G
(as at to date and still continuing)
RM4,118,131.15
and/or damages
(d) Liquidated and Ascertained Damages for the period 27.03.1998 until 18.07.1998 in accordance with the written sub-contract read together with the Plaintiffs letter of 21.05.1996.
RM1,606,434.88
and/or damages
(e) Financial loss due to non-payment by R&G.
Damages
(f) All such sums and/or further sums as the Defendant may liable to pay R&G or reasonably pays R&G.
Damages
That the Plaintiff is in breach of the sub-contract resulting in the Defendant suffering loss and damage the sum of RM959,627.86.
At all material times, the Defendant was the Subcontractor for the mechanical and electrical works (hereinafter referred as "the said Works") for the works known as "Retail Podium Contract Package No. 46400" for a project known as "Kuala Lumpur City Centre Project- Northwest Development" (hereinafter referred to as "the said Project"). The mechanical portion of the said Works comprised only of the Air Conditioning and Mechanical Ventilation works ("the said ACMV works").
Henz Construction (hereinafter referred to as "Henz"), a Joint Venture between Harbert Construction (Malaysia) Sdn. Bhd., Esprit Corporation Sdn. Bhd., Nam Fatt Berhad and Zag Zaq Construction Sdn. Bhd. was the Main Contractor for works known as "Retail Podium Contract Package No. 46400". The Plaintiff obtained the sub - contract for the said Works from them. Amalan Kreatif Sdn. Bhd. was the employer for the said Project where Henz had obtained the contract for the works known as the "Retail Podium Contract Package No.46400" from them.
By way of a letter dated 12.1.1996 and as a result of a novation agreement reached on or about 1.5.1996 (hereinafter known as "the said Contract"), the Radio & General had subcontracted a portion of the works which is known as "Air Conditioning & Mechanical Ventilation Services" (hereinafter known as "the ACMV Works") to the Defendant. The Contract Sum was a Lump Sum of RM16,064,348.80. The original completion date was 21.8.1997 which was extended to 27.3.1998.
R&G had appointed the Defendant to execute and complete the ACMV Works with consideration and on the terms and conditions contained therein the said Contract.
The Defendant has agreed to execute and complete the ACMV Works subject to and in accordance with the terms, conditions and specifications of the said Subcontract in all aspects until reasonable satisfaction of the Employer, the representatives of the Employer and Henz and to obey all directions and needs which is reasonable from the Plaintiff in the execution of the ACMV Works.
The Defendant however did not do any work for the ACMV but only performed project management role and the works were wholly subcontr
