The subcontractor wins an adjudication against the main contractor, and asks the employer to pay him the awarded amount. The employer says it does not owe money to the main contractor, because it has claims against the main contractor after terminating the main contract. The main contractor disputes the termination. Will the courts – in the subcontractor’s direct payment application – decide who is right and who is wrong in the main contract dispute in order to ascertain whether money is owed to the main contractor (and hence can be paid directly to the subcontractor)? The Court of Appeal dealt with this recently in JDI Buildtech (M) Sdn Bhd v Danga Jed Development Malaysia Sdn Bhd [2024] CLJU 373. Continue reading “BYPASS”
Category: General
ROUNDABOUT
Can the winner of a foreign arbitration seek to enforce the arbitral award in Malaysia as a foreign judgment, after converting the award to a judgment abroad? If so, in resisting enforcement of the judgment, can the losing party raise grounds for challenging the award? Apparent so, says the Court of Appeal in Tumpuan Megah Development Sdn Bhd v ING Bank NV [2024] CLJU 42. Continue reading “ROUNDABOUT”
ASSESSING REASONABLE TIME
How does one assess reasonable time, in a way that will not allow the employer to take advantage of its own fault, and also not give the contractor more time than that caused by the employer’s delay? Guidance was provided recently by the Appellate Division of the Singapore High Court in ICOP Construction (SG) Pte Ltd v Tiong Seng Civil Engineering (Pte) Ltd [2024] SGHC(A) 1. Continue reading “ASSESSING REASONABLE TIME”
NO FREE RIDES
One of the common frustrations faced by a claimant in arbitration proceedings is having to deal with a recalcitrant respondent who refuses to pay the deposit required by the arbitral institution or tribunal. More often than not, in the interests of time, the claimant would have to fork out the money to pay the respondent’s portion of the deposit in order not to delay the proceedings.
Can the claimant refuse to pay the respondent’s portion and proceed to litigate in court instead of continuing with the arbitration? If it does so, can the respondent obtain a stay of the court proceedings on the basis that the dispute should be arbitrated despite previously refusing to pay the arbitration deposit? These issues were recently dealt with in a seminal judgment given by the Court of Appeal in JSB v ACSB [2023] 1 LNS 2176. Unless otherwise stated, the paras referred to below shall mean paras in this Court of Appeal judgment.
IMPLIED RIGHT TO GRANT EOT
It appears that the right to grant an extension of time (“EOT“) can be implied into a contract, as was decided by the High Court in Era Kemuncak Jaya (M) Sdn Bhd v Tenaga Switchgear Sdn Bhd [2021] 1 LNS 1570. Continue reading “IMPLIED RIGHT TO GRANT EOT”
AVOID LAD BY BREACHING THE CONTRACT
From the recent Court of Appeal decision in Rumaya Properties Sdn Bhd v Seacera Development Sdn Bhd [2023] 6 AMR 781, it appears possible to avoid liquidated and ascertained damages (“LAD”) by disabling oneself from performing and breaching the contract. Continue reading “AVOID LAD BY BREACHING THE CONTRACT”
WHO IS THE EMPLOYER?
There is usually no doubt as to who the employer is under the construction contract. But once in a while, a case like G-Pile System Sdn Bhd v CMMC Sdn Bhd [2021] 1 LNS 1727 comes along to show how things can go wrong when roles are fluid and proper documentation is lacking. Continue reading “WHO IS THE EMPLOYER?”
AFFIRM CONTRACT, LOSE LAD
Affirming a construction contract – instead of terminating it due to the contractor’s delay – resulted in the loss of entitlement to liquidated and ascertained damages (“LAD”). This was one of the grounds for dismissing a LAD claim in the recent High Court case of Universiti Tecknologi MARA v Magna Metier Sdn Bhd [2022] 5 AMR 583. Continue reading “AFFIRM CONTRACT, LOSE LAD”
CONCURRENT DELAY & REASONABLE TIME
Concurrent delay is usually considered in the context of extension of time (“EOT”) to complete construction works. In RC Asia Engineering Sdn Bhd v Lion Pacific Sdn Bhd [2021] 1 LNS 1667 however, the High Court had occasion to consider concurrent delay – or overlapping delay – in the assessment of reasonable time to complete such works. Continue reading “CONCURRENT DELAY & REASONABLE TIME”
How to Neuter an Arbitration Clause – Part 2: Positions in Singapore & UK
In our previous post, we discussed the Malaysian position in Kebabangan which decided that a failure or delay by a respondent to pay its portion of the arbitration security deposit amounted to a repudiatory breach that rendered the arbitration agreement inoperative. On the same topic, we will now explore the Singapore position in Heartronics Corporation v EPI Life Pte Ltd and others [2017] SGHCR 17 (“Heartronics”) which also referred to the English position in BDMS Ltd v Rafael Advanced Defence System [2014] All ER (D) 244 (“BDMS”). Continue reading “How to Neuter an Arbitration Clause – Part 2: Positions in Singapore & UK”