KEMBANG SERANTAU SDN BHD v. PERBADANAN PUTRAJAYA & ANOTHER APPEAL

[2024] 5 MLRA 249

KEMBANG SERANTAU SDN BHD v. PERBADANAN PUTRAJAYA & ANOTHER APPEAL
Court of Appeal, Putrajaya
Kamaludin Md Said, Hashim Hamzah, Wong Kian Kheong JJCA
[Civil Appeal Nos: W-01(NCvC)(W)-124-03-2022 & W-01(NCvC)(W)-167-03-2022]
29 April 2024

JUDGMENT

Wong Kian Kheong JCA:

A. Introduction

[1] The above two appeals (2 Appeals) discuss, among others, a novel question, namely, after an employer of a construction project (Employer) has entered into a consent judgment with the project's main contractor (Main Contractor) regarding their dispute concerning the works in the project, can the Employer lawfully issue to the Main Contractor a "variation order" in respect of the same works?

B. Background

[2] For ease of reference, we shall refer to parties as they were before the High Court.

[3] By way of a "Letter of Award" dated 6 May 2003 with the title "Cadangan Kerja-Kerja Penanaman dan Penyelenggaraan Spesies Pokok Hutan Termasuk Kerja-Kerja Infrastruktur dan Landskap untuk Taman Rimba Alam di Presint 14 & 15, Wilayah Persekutuan Putrajaya Untuk Perbadanan Putrajaya" (LA), the defendant (Defendant) accepted the tender from the plaintiff company (Plaintiff) to perform certain works (Works) in a project (Project) at a price of RM58,757,209.25 (Tender). According to the LA, among others -

(1) paragraph 2 − the Plaintiff and Defendant would execute a formal contract which would contain all the terms of the Tender (Contract);

(2) sub-paragraph 3(f) − the representative for the Defendant in the Contract is the Defendant's Town Planning Director (Defendant's Contract Representative); and

(3) sub-paragraph 3(i) − the Plaintiff was required to complete the Contract in 156 weeks (Contract Period).

[4] The Contract was executed on 28 October 2003. The Contract provided for, among others -

(1) "Special Provisions to the Conditions of Contract" (Special Conditions). According to cl 12.6 of the Special Conditions (Special Condition 12.6), among others:

(a) payments for all the plants in the Project [Total Payment (Plants)] would be paid progressively as follows:

(i) 40% of the Total Payment (Plants) shall be paid progressively by the Defendant to the Plaintiff if the Plaintiff fulfils its obligations to plant during the Construction Period;

Sign up to view full cases Login