[2021] 5 MLRA 736

Court of Appeal, Putrajaya
Mohamad Zabidin Mohd Diah, Hadhariah Syed Ismail, Ahmad Nasfy Yasin JJCA
[Civil Appeal No: W-02(NCVC)(W)-1567-07-2018]
25 June 2021


Ahmad Nasfy Yasin JCA:


[1] This is an appeal by the appellant, the plaintiff in the court below against the decision of the learned High Court Judge in dismissing the appellant's claim after trial.

[2] We have read the written submission and heard counsel for both parties.

[3] Having considered the materials placed before us in the records of appeal, we are satisfied that there are merits in the appeal. We accordingly and unanimously allowed the appeal. The following are our grounds in arriving at that decision.

Background Facts

[4] The dispute between the parties arose from facts that occurred commonly in construction contracts. It occurred in the following way. The respondent was appointed by Embassy Court Sdn Bhd on 12 July 2005 to carry out and complete the piling and substructure works for a condominium project located on part of Lot 305, Section 63, Lorong Kuda, Off Jalan Tun Razak, Kuala Lumpur. The value of this project was stated to be RM31,226,056.14. The respondent, subsequently on 30 August 2015, appointed the appellant to carry out the piling works. The value of the sub-contract between the appellant and the respondent is stated as RM10,041,468.61.

[5] Embassy Court Sdn Bhd then failed to make payment of monies due and owing to the respondent and this resulted in the respondent terminating the contract with Embassy Court Sdn Bhd on 20 January 2007. The respondent, subsequently proceeded to issue notice to the appellant informing the latter of the determination of the sub-contract work. That notice dated 20 January 2007, contained, among others, the following:

"We refer to the above sub-contract and the meeting held in our office today when we informed you that we have today exercised our right under the main contract to terminate our employment under the contract following a breach by the employer in failing to pay amounts due under interim payment certificates. Pursuant to cl 29 of the sub-contract your employment under the sub-contract is automatically determined as a consequence of our employment being terminated under the main contract."

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