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2011 MarsdenLR 402
HIGH COURT MALAYA, KUALA LUMPUR
HASRAT LENGKAP SDN BHD – Appellant
Versus
MULTIGLOW CORPORATION SDN BHD – Respondent
[Suit No: D22-90-2009]
The court ruled that the Plaintiff completed the construction project on time, affirming that the Defendant could not impose liquidated damages without valid notice of delay.
Headnote:(A) Civil Procedure - Contract Law - The Plaintiff, a construction company, was awarded a project worth RM632,400, completed the works, but was owed RM335,984.16, after which the Defendant denied the claim and filed a counterclaim.
(B) Evidence - The Plaintiff evidenced timely completion, and the Defendant's claims of delay were unsubstantiated.
(C) Burden of Proof - The Defendant failed to demonstrate delays or justify the imposed liquidated damages.
(D) Findings revealed that the works were satisfactorily completed, leading to the conclusion that the Plaintiff's claims were justified while the Defendant's counterclaim was dismissed. (Paras 1-12)
Facts of the case:
The Plaintiff completed the construction works for a project but was owed a significant sum, which the Defendant disputed, alleging delays and errors.
Findings of Court:
The Plaintiff proved its completion of the project on a balance of probabilities, and the Defendant could not substantiate its claims.
Issues: Whether the Plaintiff completed the works on time, and if the Defendant's counterclaim for delays was valid.
Ratio Decidendi: The Court found the Defendant's failure to notify delays or imposition of liquidated damages inconsistent with contract stipulations, ruling in favor of the Plaintiff.
Result: Plaintiff awarded RM335,984.16 with 8% interest; Defendant's counterclaim dismissed with costs.
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 Plaintiff's case
PW1 is the director of the Plaintiff's 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 Defendant's 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 48 CBD.
DW1 was the Project Director for the project. He had si
