Gunn Chit Tuan SCJ:

[1] The appellant, Associated Pan Malaysia Sdn Bhd, owner of a quarry as well as a cement manufacturing factory, appealed against the decision of Anuar J in the High Court at Kuala Lumpur on 9 March 1990, in favour of the respondent, Syarikat Teknikal and Kejuruteraan Sdn Bhd, a contractor for quarrying works.

[2] The claim by the respondent was for damages for breach of contracts. There were three agreements entered into between the appellant and the respondent. The first contract for the period from 3 September 1979 to 31 December 1980, was for quarrying works. The respondent was also to carry out operations of constructing haul roads from the quarry to the crushing plant.

[3] For a period of six months after the expiration of the first contract there was no written agreement signed by the parties but the respondent carried on with the quarrying works on terms set out in the first contract.

[4] The second contract was from 1 July 1981 to 30 June 1983, and the third contract was from 1 July 1983 to 30 June 1985. That third contract was extended for another year with effect from 1 July 1985 to 30 June 1986 (see letter dated 4 June 1985).

[5] The appellant was dissatisfied with the decision of the learned Judge and appealed against the whole of his decision on the grounds set out in the memorandum of appeal.

[6] In order to appreciate the nature and extent of the claim it is useful to summarise them as follows:

(1) Claims For The Months Of September, October And November 1980 (Paragraph 10 Of The Statement Of Claim)

[7] The respondent alleged breach of promise by the appellant for failing or refusing to supply explosives for the blasting of rocks during those months.

[8] The particulars of loss are founded on the basis of minimum requirements by the appellant of 110,000 tonnes at an agreed price of RM410 per tonne and also on the basis of a margin of profit based at 32% of gross income making a total loss of RM379,551.16.

(2) Claims For The Months Of March, April, May And June, 1981 (Paragraph 12 Of The Statement Of Claim)

[9] The respondent alleged that due to (a) breakdown of the appellant's rock blasting plant; (b) the appellant's delay in the completing of its new cement manufacturing plant' and (c) the appellant's failure to dewater the quarry, the respondent was prevented from loading the required minimum of 80,000 tonnes thereby incurring a loss of RM521,805.92 .

[10] It should be observed that those three months are not covered by any written agreement.

(3) Claim For Period 1 January 1981 To 31 March 1982 (Paragraph 14 Of The Statement Of Claim)

[11] A claim founded on the allegation that by reason of the appellant's neglect or refusal to dewater the quarry there was loss on account of (a) rental of machinery to replace the respondent's damaged machinery; (b) purchase of tyres to replace damaged tyres; and (c) purchase of spare parts for the respondent's machinery.

[12] It is also to be noted that under this head the period between 1 January 1981 to 30 June 1981 was not covered by any written agreement.

(4) Claim For August 1984 To June 1985 - During The Third Contract (Paragraph 15 Of The Statement Of Claim)

[13] The respondent alleged that the appellant breached the agreement (a) in neglecting or refusal to dewater and (b) for failing to construct and maintain roads for the respondent's loaders and haulers.

[14] The respondent also alleged that during this period the appellant's crushing plant had frequent breakdowns.

[15] The third head of the claim may be divided into three categories of claim:

(a) For the period 1 November 1984 to 31 March 1985 (para 16 of the statement of claim) (letter of 2 November 1984)

It was alleged that the appellant agreed to pay for a minimum of 7,000 tonnes of rocks per day for those months but due to reasons given in para 15 of the statement of claim the appellant had prevented the respondent from achieving the required tonnage and thereby incurred a loss in the form of shortfall