The court affirmed that time was of the essence in the construction contract, ruling the defendant liable for liquidated damages due to delays, while the plaintiff's claims for additional losses were dismissed.

A. Background

[1] We shall refer to the parties as they were in the High Court.

[2] By way of a contract consisting of several documents (Contract), the plaintiff company (Plaintiff) appointed the defendant company (Defendant) to construct a two-storey office and single-storey factory (Factory) on Plots 73B and 73C (Lots 12146 and 12145), Lintang Bayan Lepas 3, Bayan Lepas Industrial Area, Barat Daya District, Mukim 12, Bayan Lepas, Penang at a price of RM8,600,000.00 (Price).

[3] The Contract consisted of the following documents:

(1) "Form of Agreement' dated 29 April 2016 (FA) had been signed by both the Plaintiff and Defendant. Clause 2 FA stated that the following documents "shall be deemed to form and be read as part' of the Contract-

(a) FA - clause 2(a) FA;

(b) "Letter of Award" dated 7 March 2016 (LA) - clause 2(b) FA;

(c) "Appendix A" - clause 2(d) FA;

(d) "Scope of Works" (SW) - clause 2(e) FA; and

(e) "General Conditions of Contract' (GCC) - clause 2(i) FA;

(2) According to cl 4 LA, among others-

(a) the Factory ''shall be completed' within 24 weeks and the completion date of the Factory "shall' be 4 September 2016 (Completion Date);

(b) "Liquidated and Ascertained Damages" (LAD) for the delay in the completion of the Factory "shall be fixed' at RM3,300.00 per day [Rate (LAD)]; and

(c) "Due to the urgency of this project', the Defendant was "advised to complete [the Factory] as soon as possible";

(3) Appendix A stated as follows, among others-

(a) according to cl 1.0, "Time For Completion" was 24 weeks;

(b) clause 1.2 stated the Completion Date;

(c) clause 6 provided for the Rate (LAD); and

(d) "Superintending Officer" (SO) was Messrs Perunding AG, Civil and Structural Consulting Engineers;

(4) according to cl 14 SW-

"The time for the completion of the works as stated in the Appendix will be strictly enforced and if extra plants, transport, personnel, overtime etc. are required to complete the works within the time stated, ail expenses will be borne by the contractor [Defendant]....no extension of time [EOT] will be allowed unless the Engineer [SO] gives special consideration under unforeseen circumstances,"

(Emphasis Added); and

(5) clauses 30 and 31 GCC provide as follows-

"30. If the [Defendant] fails to complete the work by the date in the Form of Tender or within any extended time under cl 31 hereof and the SD [should be SO] certifies in writing that in his opinion the same ought reasonably so to have been completed, the [Defendant] shall pay or allow to the [Plaintiff] a sum calculated at the rate stated in the Form of Tender as [LAD] for the period prorate during which the said works shall so remain or have remained incomplete and the [SO] may deduct such damages from any moneys [sic] due to the [Defendant].

31. If, in the opinion of the [SO], the works be delayed by force majeure or by reason of any exceptionally inclement weather or by reason of directions given by the [SO] consequential upon dispute with neighbouring owners or by reason of [SO's] instructions given in pursuance of cl 1 hereof or in consequence of the [Defendant] not having received in due time necessary instructions from the [SO] for which he shall specifically applied in writing, or by reason of civil commotion, local combination of workmen, strike or iock-out affecting any of the trades employed upon the works or by the work of nominated sub-contractors or by the works of other Contractors or tradesmen engaged by the [Plaintiff] which are not referred to in the Specification, then in such case the [SO] shall make a fair and reasonable [EOT] for completion of the works. Upon the happening of a strike or lock-out the [Defendant] shall immediately give notice thereof in writing to the [SO], but [the Defendant] shall nevertheless use constantly [the Defendant's] best endeavors to prevent delay and shall do all that may reasonably be required to the satisfac