Abdul Malik Ishak JCA

INTRODUCTION

This is an appeal by the appellant contractor — the plaintiff at the High Court, against the decision of the learned judge of the High Court who held that the appellant contractor was only entitled to 5% and not 10% of the retention sum of RM127,944.41 which, calculation wise, came up to RM6,397.22. The learned judge of the High Court also held that the appellant contractor was entitled to the unpaid balance under Certificate No 100/85 amounting to RM6,355.86 plus a further sum of RM6,355.

But, the learned judge of the High Court dismissed the claims for works done and that would be categorised as follows:

(i)work done but not assessed amounting to RM193,000 (quantum meruit); and

(ii)work done under variation orders but not assessed which came up to RM83,538 (quantum meruit).

The appellant contractor has appealed against the decision of the learned judge of the High Court to this court and the appeal focussed on:

(a)the refund of the balance of the 5% of the retention sum which amounts to RM6,397.22 (‘the first issue’);

(b)payment for work done but not certified by the engineer (quantum meruit) (‘the second issue’); and

(c)payment for work done under varia