Abdul Malik Ishak JCA:

Introduction

[1] This is an appeal by the appellant contractor - the plaintiff at the High Court, against the decision of the learned judge of the High Court who held that the appellant contractor was only entitled to 5% and not 10% of the retention sum of RM127,944.41 which, calculation wise, came up to RM6,397.22. The learned judge of the High Court also held that the appellant contractor was entitled to the unpaid balance under certificate No: 100/85 amounting to RM6,355.86 plus a further sum of RM6,355.

[2] But, the learned judge of the High Court dismissed the claims for works done and that would be categorised as follows:-

(i) work done but not assessed amounting to RM193,000 (quantum meruit); and

(ii) work done under variation orders but not assessed which came up to RM83,538 (quantum meruit).

[3] The appellant contractor has appealed against the decision of the learned judge of the High Court to this Court and the appeal focussed on:-

(a) the refund of the balance of the 5% of the retention sum which amounts to RM6,397.22 - hereinafter referred to as the "first issue";

(b) payment for work done but not certified by the engineer (quantum meruit) - hereinafter referred to as the "second issue"; and

(c) payment for work done under variation orders amounting to RM83,538 but not assessed (quantum meruit) - hereinafter referred to as the "third issue".

[4] I have read the judgment of my learned brother Sulaiman bin Daud, JCA and wholeheartedly agree with the views which he held and has expressed in a clear language. I wish to add to what has been said and I shall do so now.

Brief Facts

[5] The respondent employer (the defendant at the High Court), a cooperative, entered into an agreement dated 17 May 1985 with the appellant contractor to build roads and drains on pieces of land owned by the respondent employer The tenure of the agreement was for a period of two years and the contract sum was for RM1,666,444.

[6] The agreement could not be completed within the stipulated time and a supplementary agreement was entered into in order to extend the time for completion.

[7] Unfortunately, the works did not proceed according to the schedule because there were several obstructions on the land. There were also delays and these delays were said to be due to the appellant contractor

[8] The respondent employer was not satisfied with the appellant contractors work and the superintending officer by the name of Mr Yow Ah Choong (SP2), an engineer, was aware of this and he had counselled the respondent employer to avoid any legal disputes.

[9] Unhappy with the progress at site, the respondent employer terminated the agreement with the appellant contractor by letter dated 20 June 1994 as reflected at p 18 of the appeal record ("AR").

[10] Upon receipt of the notice of termination, the appellant contractor appeared, initially, to have accepted the termination. But this was not the case. The appellant contractor made a demand for payment by way of their solicitors letter dated 8 October 1996.

[11] It was only on 30 September 1998, that the appellant contractor filed their claim in the High Court against the respondent employer

[12] On 24 December 1998, after filing their belated action that the appellant contractor sent their claim to SP2 for certification.

The Agreement Dated 17 May 1985

[13] The language employed in the agreement must be properly construed. The crucial question to pose would be whether the action complained of is or is not in consonance with the terms of the agreement (New India Sugar Mills Ltd v. Commissioner of Sales Tax, Bihar [1963] AIR Vol 50, 1207 SC).