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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
