The plaintiff waived the right to claim liquidated damages due to prior agreement and failed to provide sufficient evidence for claims of breach and defects.

A. Background Facts

[1] The Plaintiff engaged the Defendant M/S Goflex Design & Reno Sdn Bhd (Contractor) to do renovation works in the Plaintiff's house having an address as No 46A, Jalan Merah Mawar U9/6, Kayangan Height, 40150 Shah Alam, Selangor.

[2] The Defendant issued a quotation dated 17 October 2018 together with the scope of work that has to be completed by the Defendant where the whole sum for the contract for the renovation of the said house was RM299,050.50.

[3] The Defendant further issued a "Variation Order" dated 7 November 2019 for the sum of RM55,843.60 for the additional work to be done which was disputed by the Plaintiff.

[4] The Plaintiff have accordingly paid the sum of RM258,000.00 to the Defendant as payment for the works done by the Defendant.

[5] Plaintiff claimed that the Defendant have failed, refused and/or neglected to complete the renovation works as promised according to the specifications and part of the works done were defective.

[6] Due to the delay in the completion of the work by the Defendant, the Plaintiff on 16th of September 2019 had a meeting with the Defendant and issued a letter dated 17 September 2019 (the said letter) to provide a further extension of time to complete the said renovation works until 1st of October 2019 with the condition that the Defendant has to pay a sum of RM1000.00 per day as penalty/liquidated damage if the Defendant failed to complete the said renovation work on or before the 1st of October 2019.

[7] The Plaintiff's wife and one of the Directors of the Defendant Mr Bryant Wan Kah Jun ("SD-3") then executed the said letter as shown at p 61 of Bundle-B.

[8] Plaintiff claimed that the Defendant till to-date has failed, refused and/or neglected to complete the said renovation works as agreed and failed to deliver possession of the house to the Plaintiff at the promised time which is on or before the 1sf of October 2019.

[9] On the 17th of January 2020 the Plaintiff then instructed his solicitors Messrs R.V. Lingam & Co to send a Notice of Termination to the Defendant to stop all renovation works being done by the Defendant with immediate effect, [reference is made to pp 73 to 76 of Bundle-B]

[10] The Plaintiff in the Notice of Termination claimed the penalty/liquidated damage (RM 1,000.00 per day) as agreed by both parties calculated as follows:

[11] Further, the Plaintiff alleged that they had engaged other Independent Contractors to rectify the defective works done by the Defendant and to complete the unfinished work of the Defendant and have paid the total sum of RM74,562.50 to those contractors.

[12] As a consequence of the alleged breach of the contract by the Defendant, the Plaintiff claimed that they have suffered loss, damage and inconvenience and therefore the Plaintiff filed this action against the Defendant and claimed the following:

(i) The sum of RM107,000.00 being the agreed penalty and/or liquidated damage;

(ii) The sum of RM74,562.50 being the payments made to the Independent Contractors to complete the unfinished work and to rectify the defects caused by the Defendant;

(iii) Interest of 5% per annum from the date of Judgment until the date of realisation and

(iv) Costs.

[13] The Defendant denied the above claim and filed in their Defence stating briefly the follows:

(i) During the renovation work, the Defendant had also issued several variation orders to the Plaintiff which were dated 12 September 2019, 16 September 2019, 23 September 201