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2011 MarsdenLR 257
HASNAH MOHAMMED HASHIM
HASRAT LENGKAP SDN BHD – Appellant
Versus
MULTIGLOW CORPORATION SDN BHD – Respondent
The Plaintiff successfully proved completion of construction work, entitling them to unpaid amounts, while the Defendant's counterclaim for delays was dismissed for lack of substantive evidence.
Headnote:(A) Contract Law - Construction Contract - Liquidated Ascertained Damages (LAD) - The Plaintiff completed works under a subcontract with a claim for unpaid sums. Defendant’s counterclaim for delay dismissed. Court found Defendant’s evidence of delay unconvincing and improper notices sent. The Plaintiff entitled to RM335,984.16 with interest. (Paras 1, 2, 5, 9)
(B) Evidentiary Standards - The Plaintiff met the burden of proof on completing the works; the Defendant failed to provide sufficient evidence for claim of delays or damages. (Paras 7, 8, 10)
Facts of the case:
The Plaintiff, a construction company, was awarded a subcontract for a project with a contract sum RM632,400. After completing the work, they claimed RM335,984.16, which remained unpaid despite reminders. The Defendant counterclaimed for delays. (Paras 1-2)
Findings of Court:
The Plaintiff completed the works as per contract, no evidence of delay was established by the Defendant. Therefore, the Plaintiff's claim for the remaining balance is upheld. (Paras 9-11)
Issues: Whether the Plaintiff completed the project on time and if the Defendant’s counterclaim for LAD was valid. (Paras 4, 7)
Ratio Decidendi: The court ruled that the Plaintiff had completed the contracted works based on the preponderance of evidence and that the Defendant failed to adhere to contract terms regarding delay notifications. (Paras 9, 10)
Result: Judgment for the Plaintiff in the amount of RM335,984.16 with interest from 1.4.2008. Defendant's counterclaim dismissed.
Brief facts
The Plaintiff is a construction company dealing in construction of roads, house and office renovation, commercial buildings and construction related field". By a Letter of Award dated on 23.11.2007 the Defendant awarded the project described as Projek Pembinaan Fasa 2 Tapak Kekal Pameran Pertanian Negara Sedang (MAEPS) di atas Lot 2008 & 1858 Mukim Petaling Jaya 43400 Serdang Selangor (the project). The contract sum for the project was RM632,400.00.The Plaintiff was "... to supply labour, plant/ machineries fuels supervision and everything else necessary for the execution and completion ..." of the project. Under the Letter of Award the Plaintiff shall commence all preparation works immediately and complete all works according to the Main Programme. The quantities of works are provisional and subject to final measurement and as approved by Consultants.
The Plaintiff was also required to construct a wakaf and pergola for the sum of RM16,000 and RM7,000 respectively. The Plaintiff duly completed the works but there is an amount owing in the sum of RM335,984.16. Reminders were sent to the Defendant. The Defendant paid to the Plaintiff RM38,854.24 on 21.5.2008 after the first reminder dated 31.3.2008. However, the Defendant has refused to pay the balance sum of RM335,984.16.
The Defendant denied the claim and filed a counterclaim against the Plaintiff as follows:-
i. The Plaintiff failed to complete the works within the period stipulated that is on 12.2.2008;
ii. LAD of RM2,500 to be imposed until the date of completion;and
iii. Total amount claimed by the Defendant is RM239,997.91.
The Plaintiffs case
PW1 is the director of the Plaintiffs company. In his evidence he said that the Plaintiff had duly completed the works by the end of March 2008. By letters dated 31.3.2008, 30.5.2008 and 21.10.2008 the Plaintiff forwarded the progress claims (pages 17-28 CBD) to the Defendant. He also said that the Defendant never complained of any delays of the works that the Plaintiff had carried out. In fact the Defendant never issued any notices of any delay whatsoever. According to PW1 the breakdown of the Debit Notes found on page 48 and 49 were never sent to the Plaintiff. Through the Debit Notes the Defendant made the following claims:-
(a) Site Contribution of RM20,000;
(b) Deliveries of ready mix cement at the site by Unipati Concrete Sdn. Bhd. According to PW1 there was never any instruction by the Defendant to the Defendant to buy the ready mix concrete on its behalf;
(c) Invoices to third Party;
(d) Clerk of work overtime claims from January to March 2008;
(e) Rental of backhoe;
(f) Supply of fine sand; and
(g) Pebble wash to floor.
According to PW1 the Debit Notes were never given to the Plaintiff. In fact as can been seen from the documentary evidences, in particular the documents on pages 126, 128, 130, 148, 150, 191 and 193 of the CBD show that the Defendant themselves had acknowledged and received the goods delivered.
In his evidence PW1 explained that he had never received the Debit Notes and only saw them for the first time when the matter was brought to the Court. PW1 further gave evidence that there was no Purchase Order issued to the Defendant and this was admitted by the Defendant through DW1. The Plaintiff contended that during the whole contract period the Defendant had never indicated or complained that there was any delay of completion of the works by the Plaintiff.
The Defendant had in fact paid to the Plaintiff on 12.2.2008 the sum of RM174,200.00 (page 6 CBD) and RM38,854.24 on 21.5.2008.
The Defendants case
It is the contention of the Defendant that the Plaintiff had requested the assistance of the Defendant to supply the labour, plants/machineries, fuel supervision necessary for the completion of the project. It is further contended that both parties had in fact mutually agreed that the amount to be deducted would be RM268,622.07. The breakdown is as shown on page
