JUDGMENT

Anand Ponnudurai J:

Introduction

[1] The plaintiff company (P) commenced these proceedings against the defendants (D) in their capacity as sole proprietor of one Alba Nero Resources, premised on an alleged breach of contract whereby P is seeking to recover damages as well as losses suffered by them for taking over and completing a project.

[2] D, while denying any such breach, had on the other hand, mounted a counterclaim against P seeking a total sum of RM2,080,215.00 as the sum for work done and due under such contract and a further sum of RM1,500,000.00 as punitive/exemplary damages for the alleged unlawful constructive termination of the subcontract by P.

[3] It is pertinent to state at this juncture that at the commencement of trial, learned Counsel for P sought to withdraw their claim against the 1st Defendant (D1) with no order as to costs. With no objection from counsel for D, I then proceeded to strike out P's claim against D1 and the trial proceeded with P's claim against the 2nd Defendant (D2) only. However, for ease of reference, D2 will be referred to in this judgment as D.

[4] It is also to be noted that at the outset of trial, P informed that it was withdrawing its claim for exemplary and special damages and likewise, learned counsel for D informed that D was withdrawing their counterclaim of RM1,500,000.00 in relation to punitive/exemplary damages.

[5] As the background facts and chronology of events are critical, I will set them out herein below in a bit of detail as it will give context to the dispute at hand.

Background Facts/Chronology Of Events

[6] P is a private limited company engaging in services and business in the construction industry.

[7] D is currently the sole proprietor trading under the business name of Alba Nero Resources, engaging in construction, general engineering, mechanical and electrical works.

[8] Jabatan Landskap Negara (hereinafter referred to as "the Employer") awarded a contract to P as the main contractor for the execution of a project known as the "Proposed Development of Vision Park Public Park (Vision Park), Penang Island" (hereinafter referred to as "the said project").

[9] Pursuant to a Letter of Appointment/Letter of Acceptance dated 7 April 2021, P had appointed Alba Nero Resources as the subcontractor to undertake and manage the said project works under a subcontract.

[10] Crucially, cl 2.0 of the letter of appointment expressly stipulated that the timeline for the completion of the works in respect of the said project or 'Tarikh Siap Kerja' as 18 April 2022.

[11] P pleads that despite the expressly stipulated completion period, D failed to complete the said project within the said timeline.

[12] The documentary evidence produced at trial will reveal that the Employer had then issued a first warning to P through their "Amaran Pertama" letter dated 10 March 2022. In the said letter, the Employer informed that only 37% of the work had been completed, as opposed to the planned 51% completion rate, resulting in a 14% delay in the work done on the said project, which would delay the agreed-upon completion date of 11 November 2022.

[13] In the said first warning letter, the Employer also pointed out that the contractor was not proactive in completing the work on site, and no work was done on the site for two (2) days on 7th and 8 March 2022.

[14] Pertinently, the Employer lists out the incomplete works on site as follows:

[15] On the same date, P then, in turn, issued a letter to D through their own first warning letter dated 10 March 2022, with reference also being made therein to the first warning letter issued by the Employer on the same date.

[16] In the said letter, P reiterated the view of the Employer, indicating that only 37% of the work has been completed as opposed to the scheduled 51% completion rate, and a delay of 14% in the work done on the said project, as well as their failure to be proactive in completing the work on the site.

[17] Interestingly though, whilst the completio