Claims arising from construction contracts must adhere to the limitation period established in the Limitation Act, and any new arguments not pleaded in the original statement of claim cannot be considered.

[1] On 13 August 2009 we dismissed this appeal with costs. We now give the grounds for our decision.

[2] In this judgment the parties are referred to as "the plaintiff" and "the defendant" just as they were described in the writ of summons dated 22 June 2005.

[3] By a letter of acceptance dated 12 November 1996 the defendant awarded the construction works for a project known as "Proposed Construction And Completion Of Stage 2A Civil Infrastructural Works Including Earthworks, Roads, Drainage And Ancillary Works For Proposed Diamond Creeks Country Retreat On Lot 9887 & 9888, Mukim Of Ulu Bernam, Daerah Tanjong Malim, Perak (hereinafter referred to as "the project") at a price of RM14,925,754.15 with a completion period of 52 weeks to the plaintiff. It was provided in that letter of acceptance that pending the signing of a formal contract agreement, the letter of acceptance would constitute a legal and binding contract. It was also stated in the letter of acceptance that the plaintiff would take possession of the site on 18 November 1996 and the date for the completion of the whole works would be 18 November 1997.

[4] The defendant also had appointed Weathered & Howe (Malaysia) Sdn Bhd as its engineer ("the engineer") for the purposes of the contract who was responsible for the overall supervision and direction of the works for the project.

[5] On 6 February 1998 the plaintiff and the defendant signed the contract agreement ("the construction contract"). Clause 47 of the construction contract provided that upon the submission of claims by the contractor (the plaintiff) the engineer would make a fair valuation of the works properly executed by the contractor and within 14 days from the date of any such valuation the engineer would issue an interim valuation certificate stating the amount due to the contractor from the employer (the defendant). It was further provided that within 30 days of the issue of any such interim valuation certificate as aforesaid the employer would make a payment to the contractor of the amount certified as due to the contractor in the said certificate.

[6] The engineer issued five interim valuation certificates in relation to the works executed by the plaintiff and they are as follows:

(a) 20 March 1997 - Interim Valuation Certificate No. 1 for RM464,000;

(b) 29 April 1997 - Interim Valuation Certificate No. 2 for RM262,300;

(c) 10 September 1997 - Interim Valuation Certificate No. 3 for RM1,689,800;

(d) 6 November 1997 - Interim Valuation Certificate No. 4 for RM1,493,600;

(e) 12 February 1998 - Interim Valuation Certificate No. 5 for RM882,200

[7] In para. 7 of its statement of claim the plaintiff alleged that the defendant had not paid an amount of RM1,316,783.76 from the amount certified by the engineer in the interim valuation certificates and the claim is as follows:

[8] On 20 May 1998 the plaintiff and the defendant entered into an agreement for mutual termination of the construction contract ("the termination agreement"). Clause 2 of the termination agreement provided that all satisfactorily completed work would be inspected and valued by final measurement on site. Clause 3 provided that final account would be finalised and established within one month from completion of final site measurement and submission of full particulars/documents supporting the claims made. Clause 5 provided that mode of payment for all outstanding payments and monies due and owing to the plaintiff derived from the final account would be by monthly instalments of RM100,000 and would commence from 1 February 1998. Clause 18 provided that the plaintiff would contra bungalow lots in Phase 1, Diamond Creek Country