Entitlement to claim unpaid contract amounts despite asserted breaches and no abandonment found.

Parties And Claim

[1] Pursuant to letter of award dated 28 June 2013 (LOA B1 46-49), the plantiff had been appointed by the defendant as the sub-contractor for rock dumping works at the sea designated under the defendant's project known as "Provision of 24" DIA ANDRA-A/TCOT Shore Approach Pipeline Installation for Rock Dumping Work ("work"). The plaintiff was required to provide and mobilise personnel, machinery and vessel spread for the onshore and offshore rock dumping work for a lump sum price of RM8.75 million. The defendant had in turn been appointed by TLO Offshore S/B ("TLO") with the ultimate employer being Petronas Carigali S/B ("PCSB").

[2] This is the plantiff's claim for the balance sum for work done amounting to RM6,937,500.00. It is not disputed the plantiff had been paid RM1,872,500.00. The claim was resisted by the defendant alleging a breach of contract and the defendant has counterclaimed for the cost of completion.

[3] Witnesses for the plantiff were Kamal Saraf bin Mohd Rashidi (PW1, Managing Director) and witness statement marked as WSP1, Engku Ahmad Fared bin Engku Mustaffa (PW2, General Manager) and witness statement marked as WSP2, Dzulkifli bin Mohd Noh (PW3, Project Marine Consultant) and witness statement marked as WSP3 and Azman Abd Samad (PW4, Survey Party Chief) and witness statement marked as WSP4. Witnesses for the defendant were Muhammad Firdaus Mohd Zamani (DW1, Field Engineer) and witness statement marked as WSD1, Wong Siew Fook @ Francis (DW2, Managing Director of HSAP Sdn Bhd), Kamalukhair Abdullah (DW3, Chief Executive Officer) and witness statement marked as WSD3 and Shaik Marzizi Shaikh A Rahim (DW4, Operation Manager) and witness statement marked as WSD4.

Primary Issue

[4] The primary issue is whether the plantiff is entitled to the full payment under the letter of award ("LOA") and as such to the outstanding balance and whether it had been in breach.

Whether The Plantiff Had Completed Work?

[5] The LOA was issued to the plantiff based on the plantiff's proposal via its letter dated 25 June 2013 (B1 51-56). It is clear from the words in para 2 of the LOA that the issuance of the LOA is based on the given scope of work and the contractor's proposal dated 25 June 2013 and as confirmed by the evidence of PW1. Paragraph 2 of the LOA states that "the issuance of this letter of award (LOA) is based on the given scope of work and Contractor's proposal dated 25 June 2013". In Q&A 5 of WSP1, PW1 in response to the question whether "the LA contains the full terms of the contract" answered "No. The above LA was issued by the defendant based on the plantiff's proposal dated 25 June 2013 which also contained the scope of work to be done by the plantiff".

[6] This means that the LOA and the plantiff's letter of proposal are to be read together. The time of completion of work was stated in B1 55 to be from 5 July 2013 to 20 August 2013. It was PW1's evidence the time of completion was revised to 5 November 2013 for onshore work and 4 November 2013 for offshore work (B3 4-5) and then to 3 December 2013 and 29 November 2013, respectively (B3 9-10). There was no evidence to refute this and it follows there had been a revision of the completion dates.

[7] The evidence in the form of a closeout report for onshore work shows it was to be completed on 15 September 2013 (B4 57). It reads "... has successfully completed the onshore dumping construction works which start from 6 July 2013 until 15 September 2013". Thus, onshore work had been completed within the revised completion date.

[8] It is not disputed that offshore work had not been completed when the plantiff left the site in mid February 2014 with the dispute being whether it was temporary demobilisation or aban