A claim for quantum meruit cannot succeed when there is an existing contract that governs the work performed.

Mary Lim Thiam Suan JCA:

Introduction

[1] The respondent's claim for variation works was allowed by the High Court after a full trial. The appellants who were the owners of the house built by the respondent appealed. After hearing extensive submissions from the respective learned counsel, we reserved decision. The following is our decision. For ease of reference, we shall refer to the parties as they were before the High Court.

Background Facts

[2] By a letter of award dated 13 March 2013, the defendants appointed the plaintiff to construct their house for the sum of RM6.8 million [the said project]. Cheng Chew Giap was appointed as the architect for the said project; performing functions generally associated with a superintending officer [SO] in that the plaintiff is required to take instructions of the architect in the execution of the said project.

[3] The plaintiff claimed that it had carried out variation works pursuant to the instructions of the architect to the value of RM1,129,182.08 rendering the total value of works done by the plaintiff as RM7,929,182.08. The plaintiff claimed that it had been paid the sum of RM4,861,529.26 from the bank that had provided the defendants a loan for the said project. The claim was for the balance sum of RM1,267,652.82 due under the original contract [RM138,470.74] and for variation works [RM1,129,182.08]. The whole claim is founded on a quantum meruit basis.

[4] The defendants disputed the claim on the basis inter alia that the claim was not maintainable in law on a quantum meruit basis given that there is a valid existing contract between the parties. That underlying contract required certain documents to be provided including the Architect's Instructions before such claims can be entertained. Since the plaintiff had not complied with those contractual requirements, the plaintiff was not entitled to its claim.

[5] The defendants further pleaded that the plaintiff had in any event carried out works which had not been instructed by the defendants; that such works had caused the architect to amend plans and seek fresh approvals from the local authority concerned. According to the defendants, even with the amendments, the plaintiff still did not complete the works despite extensions of time given by the architect. A Notice of Default and a Certificate of Non-Completion were issued before the defendants finally terminated the contract. The defendant counterclaimed for liquidated and ascertained damages [LAD] at the rate of RM2,000.00 per day as provided under the contract and damages for the works which the plaintiff failed to complete.

[6] In response to this, the plaintiff claimed that it had, on 14 September 2015, informed the architect that it could not complete the works by 15 September 2015 as the variation works were extensive as seen from the amended construction drawings, which the plaintiff had yet to receive at that point in time. Although the plaintiff intended to carry on with the works, the plaintiff claimed that it was prevented from entering the project site by the defendants who had locked the entrance to the site. On 29 October 2015, the architect issued a Certificate of Non-Completion dated 4 September 2015. The parties could not carry out a joint inspection of the works done for various reasons, principally because the parties could not agree on a common date(s).

[7] At the trial, it fell to be determined whether the plaintiff had in fact carried out the works as claimed; and whether the defendants were entitled to their counterclaim.

Decision Of The High Court

[8] The learned judge dismissed the plaintiff's claim for RM