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2019 MarsdenLR 2237
COURT OF APPEAL PUTRAJAYA
ES HVAC SDN BHD – Appellant
Versus
MIRACLE ASSET BUILDER SDN BHD – Respondent
[Civil Appeal No: J-02(IM)(NCVC)-1444-07-2018]
The court ruled that summary judgment was improperly granted due to the existence of triable issues requiring examination at full trial.
Headnote:The appeal arises from a summary judgment granted by the High Court, where the respondent claimed damages for delays in works completion under O 14 of ROC 2012. The primary determination addressed the lack of evidentiary support for the respondent's claims, with the Court acknowledging the absence of a trial for key issues. The judgment illustrates the necessity for trial when triable issues exist. The appeal was allowed, and the High Court's order was set aside, with the case remitted for full trial.
| Table of Content |
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| 1. summary judgment application context. (Para 1 , 2) |
| 2. key contractual facts surrounding the dispute. (Para 3 , 4) |
[1] This appeal emanates from the Johor Bharu High Court Order dated 28 June 2018. The learned High Court Judge had granted the respondent's application for summary judgment under O 14 of the Rules of 2012 ("ROC 2012") for the sum of RM6,768,000.00 on its claim for liquidated and ascertained damages ("LAD").
[2] Aggrieved with this decision, the appellant appealed to this Court. After hearing the parties and taking into consideration the written submissions, we allowed the appeal and set aside the order of the High Court. Our reasons for doing so now follow and will constitute the judgment of the Court.
Salient Facts
[3] The salient facts giving rise to the civil suit appear in the grounds of judgment and in the submissions of the parties. The facts can be restated as follows. Through a Letter of Award dated 23 April 2015 ("the Main Contract"), the respondent was appointed by Distinctive Properties Sdn Bhd ("the Employer") to undertake and complete the Balance of the Works in the project ("the Works") as stipulated therein. The respondent had in turn awarded part of the Works known as "air conditioning and ventilation works ("the Aircon Works") to the appellant vide a Letter of Award dated 9 June 2015.
[4] Under the Main Contract, the contract sum for the Works was RM116,856,000.00. The Works was to be "commenced, carried out and completed in Sections" within a period of 372 days from the Date of Commencement. The Date of Commencement and Possession of Site was stated as 25 April 2015. The Completion Date for the whole Works was stated as 30 April 2016. The respondent had also agreed to appoint various nominated sub-contractors as listed in Appendix B ("the NSCs") and was required to enter into formal sub-contract agreements with each and every one of them. It appeared that the appellant was only one of the six NSCs and was tasked under the sub-contract with undertaking the Aircon Works for the contract sum of RM5,245,506.50, the value of which worked out to be 4.5% of the total contract sum for the Works.
