SK M&E BERSEKUTU SDN BHD v. PEMBINAAN LEGENDA UNGGUL SDN BHD & ANOTHER APPEAL

[2019] 2 MLRA 511

SK M&E BERSEKUTU SDN BHD v. PEMBINAAN LEGENDA UNGGUL SDN BHD & ANOTHER APPEAL
Federal Court, Putrajaya
Richard Malanjum CJ, Ahmad Maarop PCA, Azahar Mohamed, Rohana Yusuf, Mohd Zawawi Salleh FCJJ
[Civil Appeal Nos: 02(f)-130-n-2017(W) & 02(f)-131-11-2017(W)]
12 March 2019

JUDGMENT

Richard Malanjum CJ:

Introduction

[1] The present appeals arise out of common issues of law in relation to actions brought by two different plaintiffs against the same defendant. The cases related to these appeals were heard together before the first instance court and the Court of Appeal. Each court rendered one judgment respectively. Thus, the appeals before us are Appeal No 130 and Appeal No 131 again heard together due to the common issues of law involved.

Appeal No 130

[2] The appellant in Appeal No: 130 (plaintiff at the High Court) was the respondent's (defendant at the High Court) sub-contractor for a mixed development project in Sungai Buloh, Selangor for the sum of RM9,789,815.00. Pursuant to cl 16.3 of the subcontract between the parties, a sum of RM489,490.75 was retained by the respondent as retention monies. The retention monies were to be released by the respondent to the appellant in two tranches: firstly, upon the issuance of the Certificate of Practical Completion ("CPC") of the Main Contract and secondly, upon the expiry of the Defect Liability Period ("DLP").

[3] Although the CPC was issued on 30 May 2013 and the DLP lapsed on 30 August 2015, the respondent did not release the first and the second tranches of the retention monies to the appellant.

Appeal No 131

[4] The appellant in Appeal No 131 (plaintiff at the High Court) was engaged as the respondent's (defendant at the High Court) subcontractor for a project in Johor for the sum of RM17,734,455,55. As in Appeal No 130, cl 16.3 of the sub-contract between the appellant and respondent in Appeal No 131 provided for a sum of RM886,723.00 to be retained as retention monies where the first moiety was to be released by the respondent upon the issuance of the CPC and the second moiety was to be released upon the issuance of the Certificate of Making Good Defects ("CMGD") of the Main Contract Works.

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