Back
2022 MarsdenLR 1398
COURT OF APPEAL PUTRAJAYA
PSI INCONTROL SDN BHD – Appellant
Versus
IRCON INTERNATIONAL LIMITED – Respondent
[Civil Appeal No: W-02(NCVC)(W)-2168-11-2019]
In construction contracts, compliance with notice and documentation requirements is crucial for claims related to extensions of time and associated costs.
Headnote:(A) Construction Contract Law – Conditions of Contract for Design and Build Contract PWD Form DB (Rev. 2007) – Clauses 49 and 50 – Appeal against dismissal of claim for loss and expenses arising from extension of time in a construction project – Plaintiff's appeal allowed on grounds of compliance with notice and documentation requirements in the Contract. (Paras 16-34, 55)
(B) Judicial appreciation of evidence – The appellate court will not disturb the factual findings of the lower court unless plainly wrong or misapprehended the evidence – The learned Judicial Commissioner's findings were misdirected. (Paras 16-19)
Facts of the case: Dispute over entitlement to losses and expenses related to a contractual extension of time – Plaintiff claimed RM7,736,145.00 but was partially successful at trial only recovering RM373,683.00 for other deductions. (Para 10)
Findings of Court: The learned JC misapplied the contractual provisions regarding notices and claims, thus dismissing a meritorious claim for loss and expense – The claim for loss and expenses was justified following the extension of time granted. (Paras 55)
Issues: Whether the plaintiff complied with the contractual requirements for claims under specific clauses of the COC regarding notice and particulars of loss. (Paras 16-38)
Ratio Decidendi: As a logical interpretation of the COC clauses, the court decided that the plaintiff had complied with all necessary criteria to claim losses related to the extension of time and that a refusal by the defendant was unjustified. (Paras 34-52)
Result: Appeal allowed; judgment entered for the plaintiff for RM7,736,145.00, with interests awarded. (Para 55)
JUDGMENT
Introduction
[1] This an appeal by the appellant/plaintiff against part of the learned Judicial Commissioner's ("the learned JC") judgment, dismissing the plaintiff's claim for loss and expense pertaining to an extension of time granted by the respondent/defendant in a construction contract.
[2] The appellant/plaintiff, being aggrieved, appealed. Hence this appeal before us, which we heard and unanimously allowed for the following reasons.
[3] For ease of reference, parties will be referred to as they were in the proceedings before the High Court.
Background
[4] The disputes arose out of a construction contract between the defendant who is the main contractor and the plaintiff who is the defendant's subcontractor for the construction and completion of the works relating to "the Electrified Double Track project between Seremban (KM 461.234) to Gemas (KM 564.000) Stations" ("Project"). The Government of Malaysia is the Project owner.
[5] Vide a letter of acceptance dated 2 April 2010 ("LOA") (found at CB 3, pp 539-541), the defendant appointed the plaintiff to complete the works stated in Annexure B to the LOA ("Works") ("Subcontract").
[6] The Subcontract documents consist of, inter alia, the LOA and the Conditions of Contract for Design and Build Contract PWD Form DB (Rev. 2007) ("COC") (found at CB 2, pp 264-328).
[7] The material terms of the Subcontract are as follows:
7.1. The commencement date is 15 days from the LOA date, ie by 17 April 2010. The completion period is 20 months from the LOA date, ie by 2 December 2011 ("Original Completion Date") (CB 3, p 541).
7.2. The agreed liquidated damages payable for any delay to the Original Completion Date are set out in cl 45 of the COC (CB 2, p 306).
7 3. The procedures governing a claim for extension of time ("EOT") are set out in cl 49.1 of the COC (CB 2 pp 308-309).
7 4. The plaintiff is only entitled to claim for direct loss and expenses ("Losses and Expenses") incurred arising out of delay events under cls 49.1(b), (d), (e), (h) or (i) of the COC (Clause 49.2 of the COC) (CB 2 p 309).
7 5. The procedures governing such a claim for the Losses and Expenses are set out in cl 50.1 and 50.2 of the COC. Non-compliance with the mandatory requirements thereunder shall discharge the defendant from any liability arising therefrom (Clause 50.3 of the COC) (found at CB 2, p 310).
[8] In this case, the plaintiff claims for the followings:
8.1. The sum of RM373,683.00, being the wrongful deduction by the defendant in respect of Network Data Works;
8.2. The sum of RM7, 736,145.00 for the EOT claim;
8 3. In alternative to para 8.2 above, the sum of RM4,852,487.00 for the EOT claim;
8 4. Interests on all sums awarded at the rate and for the period deemed appropriate by the Court;
8 5. Costs; and
8 6. Any further and/or other reliefs deemed fit and proper by the Court.
[9] After a full trial, the learned JC allowed the plaintiff's claim for the sum of RM373,683.00 for the wrongful deduction by the defendant in respect of the Network Data Works but dismissed the plaintiff's claim for the EOT.
The Findings Of The High Court
[10] The learned JC found inter alia that the plaintiff had failed to comply with the conditions precedent in cls 49, 50.1 and 50.2 of the COC and that notwithstanding the defendant having granted an extension of time under the said cl 49, the plaintiff was not entitled to claim for the Losses and Expenses because they had failed to:
10.1. Comply with cl 49 of the COC;
10.2. Provide notice of intention to claim the Losses and Expenses under cl 50.1 of the COC; and
10 3. Submit particulars that may be necessary to enable the claims to be ascertained under cl 50.2 of the COC.
The Plaintiff's Contentions
[11] The plaintiff contended inter alia that they have obtained an extension of time to complete the Project works namely by an Extension of Time Certificate No 1 ("EOT No 1") and entitled to claim for the Losses and Expenses.
[12] The plaintiff also contended in essence that
