The court found that reasonable requests for extensions of time due to unforeseen circumstances must be considered, and premature contract termination based on performance without acknowledging those requests is unlawful.

[1] The plaintiff awarded to the defendant a contract to construct and complete 2 additional blocks of building for a school called Sekolah Kebangsaan Sungai Baharu, Kuala Kerian, Daerah Kuala Kerian, Perak ("the Project"). The contract entered into was the Standard Form PWD 203 (Rev. 10/83) Contract. The contract sum was for RM3,511,597.00. Under the contract the completion date was 26 October 2009 and site possession was given to the defendant on 10 June 2008. There was later a 3 - month extension given to the defendant, even without the defendant requesting for it, in view of the steep increase in price of the building materials and the shortage of building materials. It was an extension given as matter of course and across the board to all bumiputra contractors during that time to alleviate their problems in the light of shortage of and rise in the costs of building materials generally. That extended the completion date to 25 January 2010.

Problem

[2] Everything went well at the beginning. The project involved the construction of a temporary building so that the pupils could move to it whilst the existing building was to be demolished and to make way for the construction in its place 2 new blocks of 4 storeys building. That temporary building was already ready on 13 October 2008 for the pupils to move in. However the headmaster refused to budge and allow the pupils to so move until a store had been built for the storage of the school's paraphernalia. The store was not in the plan. The construction of such a store was, of course, not rocket science but nothing could be built until the plaintiff submitted the drawings to the defendant on 15 December 2008. The store was completed in January 2009 and the pupils moved to the temporary building in early February 2009. There were some 3 months delay which the defendant said was not their fault.

[3] After demolition, piling work commenced. The contract specified the piling for a depth of 36 metres. Load test was conducted after piling. The piling to a depth of 36 meters failed the load test. Fresh instruction had to be obtained and it came only on 8 April 2009 with fresh instruction for piling for a depth of 48 meters. The longer piles had to be specially ordered by the defendant for it involved an additional 144 piles. The additional piling work could only be done commencing 16 April 2009 and could only be completed on 4 June 2009. That was because after piling to the new depth, one has to allow for a month or so for settlement before any load test could be conducted. The new piling depth withstood the load test.

[4] The defendant requested in writing on 14 July 2009 and on 20 August 2009 for Extension of Time (EOT) of 189 days based on the above 2 unforeseen events in the construction of the store and in the piling to a new depth of 48 meters and the ensuing delay that had been occasioned, but received no response from the plaintiff.

[5] Meanwhile the defendant continued regularly and diligently with the construction to completion of the project. However the plaintiff did not think so, comparing the status of the project with the Critical Path Method (CPM) submitted