WIRA CENTRAL (M) SDN BHD v REGAL MERGER SDN BHD (MJLR2009a16) Zabariah Yusof,Malaya
1
DALAM MAHKAMAH TINGGI MALAYA DI KUALA LUMPUR
(BAHAGIAN SIVIL)
GUAMAN SIVIL NO: S5-22-222-2008
ANTARA
WIRA CENTRAL (M) SDN BHD ………..…PLAINTIF
DAN
REGAL MERGER SDN BHD …………DEFENDANT
GROUNDS OF JUDGMENT
Enclosure 7 is an application by the Plaintiff for Summary Judgment
under 14 RHC against the defendant.
Brief Facts;
The Defendant was undertaking the development of a project known
as "Cadangan Pembangunan Kedai Pejabat 3 Tingkat seblk 30 unit
di atas PT 83, Bandar Bukit Baru, Seksyen IV, Daerah Melaka
Tengah, Me/aka" ("Project") and had engaged the Plaintiff as the
contractor cum project manager for the said Project.
2
Regional Development Consortium Architect was the Superintending
Officer/Architect ("Architect") appointed by the Defendant.
The terms and conditions of the Plaintiff's said engagement included,
inter alia, the Pertubuhan Arkitek Malaysia "Agreement and
Conditions of Building Contract" (Private Edition without Quantities)
[1998 Edition1 ("PAM Conditions of Contract").
The Plaintiff had commenced work on the said Project pursuant to its
said engagement.
Subsequently and as evidenced by the Defendant’s letter dated
19.7.2006, the Defendant assumed possession and responsibility for
the said Project from the Plaintiff and thereby terminating the
Plaintiff's said engagement as contractor of the said Project.
Consequently and following valuation undertaken by the said
Quantity Surveyor, the Architect issued a certificate certifying a sum
of RM905,480.49 (Certificate) being the amount due and owing by the
Defendant to the Plaintiff for works done and materials supplied.
The said Certificate also confirmed that a sum of RM 335,312.84 had
been deducted and was being held by the Defendant as retention
sum.
Despite requests/demands from the Plaintiff, the Defendant had failed
to pay to the Plaintiff the above sums. As such, the Plaintiff had on
22.2.2008 commenced a writ action against the Defendant to claim
the said sum of RM 905,480.49 and the Retention Sum of
RM335,312.84.
3
The Plaintiff's claim against the Defendant is for works done and
materials supplied in relation to the Project before the termination of
the Plaintiff's engagement as contractor on/about 19.7.2006.
The Plaintiff states that it is entitled to the payment of the said sum of
RM 905,480.49 and the Retention Sum of RM 335,312.84 on the
following reasons:
a) given that the Certificate issued by the Architect was a final
valuation of the works done by the Plaintiff, this Certificate is proof
that the sum of RM 905.480.49 is undisputedly due from the
Defendant to the Plaintiff;
b) pursuant to Clause 30.2 of the PAM Conditions of Contract, once
the said Certificate is issued by the Architect the contractor
(Plaintiff) is entitled to payment within 30 days. .
c) As the Defendant had failed to make such payments to the
Plaintiff within the 30 days (i.e on/before 30.12.2007), the said
sum of RM 905,480.49 ,or becomes due and payable to the
Plaintiff;
d) further, as at the date of filing of the Summons, the Defendant
has not raised any complaints or evidence to show that the
certified sum of RM 905,480.49 was erroneous by reason of
fraud, dishonesty or fraudulent concealment of the works done or
that the Defendant has a cross claim alleging defective work.
4
Additionally, the Plaintiff states that taking into account the
termination of the Plaintiff's engagement in/around 19.7.2006 and the
fact that the Defendant had failed to raise any complaints of defective
work (which would allow the Defendant to make deductions from the
Retention Sum), the Retention Sum of RM 335,312.84 is also due
and payable to the Plaintiff.
The Court’s Findings:
The Plaintiff have agreed to terminate the PAM Conditions of
Contract by a letter dated 29.5.2006 and substitute it with a new
contract where the parties have agreed to the new terms inter alia as
follows:
a) The plaintiff will surrender the whole project inclusive of the
current on going 30 units shop office to the Defendant;
b) A final account shall be carried out and payment terms of such
due outstanding owing shall be arranged and agreed;
c) upon receiving the final account, both parties shall discuss the
matter for final agreement and formulate the method of
payment;
d) the outstanding sum agreed and accepted between both
parties shall be honoured within 14 days from the date of
signing of agreement for acceptance of final account of the
project.
5
Therefore triable issue arises as to whether on the terms and
conditions of the new agreement, all the obligations of the parties
have been fulfilled, bearing in mind that the PAM Contract is no
longer in existence.
This issue of the PAM contract has been terminated and new terms
and conditions being emplaced have not been disclosed in the
Statement of Claim and neither in the affidavit of the Plaintiff. (Refer
to the case of Affin Bank Bhd v Datuk Ahmad Zahid Hamidi [2005] 1
CLJ 521). The matters as stated in paragraphs (b) to (d) above are
issues to be tried.
Moreover, earlier a finding has been made on the issue that there are
issues to be tried, by the Judge hearing the application for an
injunction in Enclosure 4. Therefore I am estopped from deciding on
the same issue.
Therefore, base on the above reasoning the claim by the Plaintiff for
summary judgment under 0 14 RHC is dismissed with costs.
Datin Zabariah Mohd Yusof
Tarikh 10.7.2009
Bagi Pihak Plaintiff : Encik Micheal Chow
Tetuan Micheal Chow.
Bagi Pihak Defendant : Encik Haresh Mahaderan
Tetuan Haresh Mahadevan & Co.
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DALAM MAHKAMAH TINGGI MALAYA DI KUALA LUMPUR
(BAHAGIAN SIVIL)
GUAMAN SIVIL NO: S5-22-222-2008
ANTARA
WIRA CENTRAL (M) SDN BHD ………..…PLAINTIF
DAN
REGAL MERGER SDN BHD …………DEFENDANT
GROUNDS OF JUDGMENT
Enclosure 7 is an application by the Plaintiff for Summary Judgment
under 14 RHC against the defendant.
Brief Facts;
The Defendant was undertaking the development of a project known
as "Cadangan Pembangunan Kedai Pejabat 3 Tingkat seblk 30 unit
di atas PT 83, Bandar Bukit Baru, Seksyen IV, Daerah Melaka
Tengah, Me/aka" ("Project") and had engaged the Plaintiff as the
contractor cum project manager for the said Project.
2
Regional Development Consortium Architect was the Superintending
Officer/Architect ("Architect") appointed by the Defendant.
The terms and conditions of the Plaintiff's said engagement included,
inter alia, the Pertubuhan Arkitek Malaysia "Agreement and
Conditions of Building Contract" (Private Edition without Quantities)
[1998 Edition1 ("PAM Conditions of Contract").
The Plaintiff had commenced work on the said Project pursuant to its
said engagement.
Subsequently and as evidenced by the Defendant’s letter dated
19.7.2006, the Defendant assumed possession and responsibility for
the said Project from the Plaintiff and thereby terminating the
Plaintiff's said engagement as contractor of the said Project.
Consequently and following valuation undertaken by the said
Quantity Surveyor, the Architect issued a certificate certifying a sum
of RM905,480.49 (Certificate) being the amount due and owing by the
Defendant to the Plaintiff for works done and materials supplied.
The said Certificate also confirmed that a sum of RM 335,312.84 had
been deducted and was being held by the Defendant as retention
sum.
Despite requests/demands from the Plaintiff, the Defendant had failed
to pay to the Plaintiff the above sums. As such, the Plaintiff had on
22.2.2008 commenced a writ action against the Defendant to claim
the said sum of RM 905,480.49 and the Retention Sum of
RM335,312.84.
3
The Plaintiff's claim against the Defendant is for works done and
materials supplied in relation to the Project before the termination of
the Plaintiff's engagement as contractor on/about 19.7.2006.
The Plaintiff states that it is entitled to the payment of the said sum of
RM 905,480.49 and the Retention Sum of RM 335,312.84 on the
following reasons:
a) given that the Certificate issued by the Architect was a final
valuation of the works done by the Plaintiff, this Certificate is proof
that the sum of RM 905.480.49 is undisputedly due from the
Defendant to the Plaintiff;
b) pursuant to Clause 30.2 of the PAM Conditions of Contract, once
the said Certificate is issued by the Architect the contractor
(Plaintiff) is entitled to payment within 30 days. .
c) As the Defendant had failed to make such payments to the
Plaintiff within the 30 days (i.e on/before 30.12.2007), the said
sum of RM 905,480.49 ,or becomes due and payable to the
Plaintiff;
d) further, as at the date of filing of the Summons, the Defendant
has not raised any complaints or evidence to show that the
certified sum of RM 905,480.49 was erroneous by reason of
fraud, dishonesty or fraudulent concealment of the works done or
that the Defendant has a cross claim alleging defective work.
4
Additionally, the Plaintiff states that taking into account the
termination of the Plaintiff's engagement in/around 19.7.2006 and the
fact that the Defendant had failed to raise any complaints of defective
work (which would allow the Defendant to make deductions from the
Retention Sum), the Retention Sum of RM 335,312.84 is also due
and payable to the Plaintiff.
The Court’s Findings:
The Plaintiff have agreed to terminate the PAM Conditions of
Contract by a letter dated 29.5.2006 and substitute it with a new
contract where the parties have agreed to the new terms inter alia as
follows:
a) The plaintiff will surrender the whole project inclusive of the
current on going 30 units shop office to the Defendant;
b) A final account shall be carried out and payment terms of such
due outstanding owing shall be arranged and agreed;
c) upon receiving the final account, both parties shall discuss the
matter for final agreement and formulate the method of
payment;
d) the outstanding sum agreed and accepted between both
parties shall be honoured within 14 days from the date of
signing of agreement for acceptance of final account of the
project.
5
Therefore triable issue arises as to whether on the terms and
conditions of the new agreement, all the obligations of the parties
have been fulfilled, bearing in mind that the PAM Contract is no
longer in existence.
This issue of the PAM contract has been terminated and new terms
and conditions being emplaced have not been disclosed in the
Statement of Claim and neither in the affidavit of the Plaintiff. (Refer
to the case of Affin Bank Bhd v Datuk Ahmad Zahid Hamidi [2005] 1
CLJ 521). The matters as stated in paragraphs (b) to (d) above are
issues to be tried.
Moreover, earlier a finding has been made on the issue that there are
issues to be tried, by the Judge hearing the application for an
injunction in Enclosure 4. Therefore I am estopped from deciding on
the same issue.
Therefore, base on the above reasoning the claim by the Plaintiff for
summary judgment under 0 14 RHC is dismissed with costs.
Datin Zabariah Mohd Yusof
Tarikh 10.7.2009
Bagi Pihak Plaintiff : Encik Micheal Chow
Tetuan Micheal Chow.
Bagi Pihak Defendant : Encik Haresh Mahaderan
Tetuan Haresh Mahadevan & Co.
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