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”
Tag: construction contracts
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”
BEING LATE FOR MANY REASONS
For concurrent delay, do you look at cause? Or effect? Or both? “Effect” is the answer indicated by the Queensland Supreme Court in Civil Mining & Construction Pty Ltd v Wiggins Island Coal Export Terminal Pty Ltd [2017] QSC 85 (“Civil Mining”). Continue reading “BEING LATE FOR MANY REASONS”
LOOK FORWARD OR LOOK BACK?
Causation of delay in construction disputes is usually the subject of expert evidence, in the form of a delay analysis of the project. The entire project duration is analysed, to establish the cause and effect of delay events encountered. The analysis is relevant to determine entitlements to extension of time (“EOT”) to complete the works, and compensation for delays. The perennial issue that commonly arises is whether the analysis should be prospective or retrospective. Continue reading “LOOK FORWARD OR LOOK BACK?”
THE SEAT & THE BENCH
In Masenang Sdn Bhd v Sabanilam Enterprise Sdn Bhd [2021] 9 CLJ 1, the Federal Court clarified that (i) the concept of the seat of arbitration applies to domestic arbitrations; (ii) the seat must be designated as a place within a country (and not the entire country); and (iii) the seat determines which High Court has exclusive supervisory jurisdiction over the arbitration (as opposed to the factors usually applicable in other types of civil proceedings).
THE CUBIC PUZZLE & LIQUIDATED DAMAGES IV – BACK TO THE PAST?
In the recent case of
Tekun Nasional Sdn Bhd v Plenitude Drive (M) Sdn Bhd [2021] 8 AMR 427, the Federal Court (“FC“) appears to conflate the concepts under the old and new law as to how section 75, Contracts Act 1950 is to be applied to liquidated damages clauses.
Continue reading “THE CUBIC PUZZLE & LIQUIDATED DAMAGES IV – BACK TO THE PAST?”
Release retention after dlp, but no cmgd?
Can a contractor claim for his balance retention sum after the defects liability period (“DLP”) has expired, without the certificate of making good defects (“CMGD”) being issued yet? Continue reading “Release retention after dlp, but no cmgd?”