The right to suspend work under contract terms is lawful when an employer fails to certify and pay on time.

[1] The current dispute between the plaintiff as the Main Contractor and the defendant as the employer with respect to a construction Project of the Universiti Teknologi MARA campus in Mukim Semujuk, Daerah Jasin, Melaka, is a sequel to the partial settlement that the parties managed to achieve.

[2] Whilst there was a partial settlement that resulted in the withdrawal of an earlier action and an appeal therefrom, there was unfortunately not enough momentum and motivation to carry them through with a full and final settlement.

Project

[3] The plaintiff was appointed via two Letters of Award both dated 2 July 2010 and for each Letter of Award, the contract value is RM8,610,000.00 for Enabling Works Package 1 and RM201,983,000.00 for Building & Associated Works Package 2. Apart from the Letters of Award, both parties agreed to be bound by the contractual terms as contained in the Agreement and Conditions of PAM Contract 2006 (Without Quantities) and the Additional Provisions to the Contract Agreement (collectively referred to as the "Contract").

Problems

[4] Disputes arose between the parties with the plaintiff suspending works for what it said was the defendant's breach of the Contract for failure to pay its Interim Claims on time. The defendant on the other hand, contended that the plaintiff's suspension of work was unlawful and after issuing a Notice of Default on 3 July 2012, proceeded to terminate the Contract by their Notice of Termination dated 13 July 2012.

[5] The plaintiff applied for an urgent injunction to restrain the defendant from calling on the Bank Guarantee and to restrain the defendant from taking possession of the Site. There were also other applications for contempt and committal against the defendant and its Directors. The High Court, hearing the matter subsequently at the inter-partes stage, dismissed all the applications for injunctions and also the committal proceedings.

[6] Parties managed to achieve a temporary truce with the signing of a Deed of Settlement dated 9 November 2012. The Settlement was divided into Part A, Part B and Part C.

[7] Part A consisted of the parts that both sides could agree with respect to the following:

1. Amount Payable to KSSB:

(i) Total Work Done as at 20 July 2012 pursuant to an agreed joint valuation carried out: RM 74,889,919.98

(ii) Less the net omission pursuant to the Interim Final Certificate by the QS as per Appendix A: RM 337,297.43

(iii) Less Payment made to KSSB via Interim Certificate 1-13 Amount Payable to KSSB: RM 50,499,258.00

(Including Retention Sum RM7,455,262,25) RM 24,053,364.55

[8] The above Settlement Sum was paid subject to the rights of the parties to pursue their respective claims against each other which heads of claims were set out as Part B and Part C of the Deed of Settlement. All pending applications, suits and appeals were also withdrawn.

[9] As the parties could not arrive at a settlement on the various heads of claims in Part B and Part C, it is back to the drawing board again with the plaintiff filing this claim and the defendant filing a counterclaim.

Prayers

[10] The plaintiff's prayers for the various heads of claims are found at para 58 Items 1-13, para 59(a) - (e) and para 60 of its Statement of Claim.

[11] The defendant's counterclaim is at para 39(a) - (t) of its Defence and counterclaim and prayers (h),(i),(k),(m) had been withdrawn and so