JUDGMENT

Azlan Sulaiman J:

Introduction

[1] The claims and counterclaims in this action are rather common. Upon the termination of the construction contract between them, the disputes between them call for the court's decision on the validity of the termination, as well as what monetary claims and relief they are each entitled to against the other.

Salient Facts

[2] By a Surat Setujuterima Tender dated 13 September 2016 and a PWD 203A (Rev. 1/2010) standard form of contract inclusive of a Conditions of Contract (collectively, "Contract"), the defendant had appointed the plaintiff as contractor for the construction of a hospital in Bachok, Kelantan ("Project"). Site possession was given to the Plaintiff on 27 September 2016, and the original completion date for the Project was 23 September 2018.

[3] Two extensions of time were granted to the plaintiff, which collectively extended the Completion Date to 1 December 2020 ("Extended Completion Date"), and the Defendant rejected the plaintiff's application for a third extension of time ("EOT Application 3").

[4] On 29 January 2021, the defendant terminated the Contract on the ground that the Plaintiff had failed "to proceed regularly and diligently with the performance of its obligations under the Contract". The Defendant alleged that the plaintiff progress of the Project works was at the time only 74.17% when the Project should have been completed by 1 December 2020.

[5] The Plaintiff filed this action on 8 January 2024, and the defendant filed its counterclaim against the plaintiff on 20 March 2024.

The Issues

[6] The issues to be decided in this action are:

Issue 1: What, if any, are the outstanding sums payable by the Defendant to the Plaintiff for works which the Plaintiff had carried out on the Project?

Issue 2: Whether the Defendant's termination of the Contract was lawful?

Issue 3(a): If the Defendant's termination of the Contract was unlawful, what relief is the Defendant entitled to claim from the Plaintiff?

Or

Issue 3(b): If the Defendant's termination of the Contract was lawful, what relief is the Plaintiff entitled to claim from the Defendant.

Issue 1: What, If Any, Are The Outstanding Sums Payable By The Defendant Employer To The Plaintiff Contractor For Works Which The Plaintiff Had Carried Out On The Project?

[7] In para 51 of the Amended Statement of Claim, the relief that the Plaintiff seeks from the Defendant that is directly related to this Issue 1 are:

(i) The sum of RM23,279,411.88 for works actually carried out;

(ii) The sum of RM2,745,266.61 for variation works actually carried out;

(iii) The sum of RM5,217,214.00 as the performance guaranteed sum that the defendant had retained from the progress payments in lieu of a performance bond; and

(iv) Loss and expense of RM3,900,000.00 arising from the extension of time actually granted.

[8] The plaintiff contends that all of these sums are payable by the defendant to the plaintiff independent and irrespective of the termination of the Contract. Support for this proposition can be found in Mahsurimas Sdn Bhd v. Ravinder Singh Shangara Singh & Ors; [2019] 11 MLJ 281 in which Lee Swee Seng J (now FCJ) said:

"Irrespective of the validity of the termination by the defendant, the plaintiff would still have to be paid for the works executed by them up to the date of the termination. That is unaffected by the termination though if the termination by the defendants was valid and lawful, then the defendants might justify their claim for the losses arising from the delay caused by the plaintiff."

[9] The Plaintiff bears the burden of proving each and every sum that it claims In that regard, the decision of the Federal court over half a century ago now in Guan Soon Tin Mining Company v. Wong Fook Kum; [1969] 1 MLJ 99 has withstood the test of time. Ong Hock Thye FJ said:

"The respondent, as plaintiff, of course had to discharge the burden of proving both the fact and the amount of damages before he could recover. ...This statement of the law is concis