IN THE HIGH COURT OF MALAYA

AT KUALA LUMPUR

CIVIL SUIT NO. WA-22C-36-05/2019

BETWEEN

INFRAPRIMA CONSTRUCTION SDN BHD PLAINTIFF

AND

BUDAYA RESTU SDN BHD DEFENDANT

GROUNDS OF JUDGMENT
Introduction

[1] This is a suit on competing cross claims of sub contractor’s

acceleration claim versus main contractor’s liquidated damages claim by
virtue of prolonged construction and completion of a MRT station multi-
storey car park building.

[2] The Plaintiff is a private limited company involved in the construction

contracting business.

[3] The Defendant is also a private limited company involved in the

construction contracting business.

Background

[4] The MRT Corporation Sdn Bhd (“MRTC”) appointed the Defendant
as the main contractor to construct and complete the ‘Projek Mass Rapid
Transit Lembah Klang: Jajaran Sungai Buloh-Kajang Package MSPR4:
Construction and Completion of Multi-storey Car Park Building, External
Works and other Associated Works at Section 16 Station’ (“Project”).

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[5] By a letter of award dated 6 August 2014 (“Sub-Contract”), the
Defendant accepted the Plaintiff’s quotation of RM38,527,566.29 for the
construction of the architectural, sub-structure and superstructure
portions of the Project (“Works”). The Sub-Contract is reproduced below:

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4
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[6] The basic common facts are that the Project originally involved the
construction of a 7 storey multi-storey carpark building only and the design
drawings and specification were prepared accordingly.

[7] However on or about 15 August 2014, the parties were informed by

the MRTC that the Project has been amended to cater for a 35 to 40 storey
multi-storey building. As the result, the Defendant provided the Plaintiff
with the revised structural drawings on 21 November 2014. The
amendment resulted in deeper excavation for foundation and change in
the piling, sub-structure works and superstructure works.

[8] As the result, the Works could not be completed within the original
schedule stipulated in the Sub-Contract.

[9] According to the Plaintiff, the Defendant in August 2015 represented

and/or directed the Plaintiff to deploy acceleration measures to complete
the amended Works.

[10] Consequently, the Plaintiff complied and expended additional costs

and expenses which the Plaintiff thereafter claimed against the
Defendant. However the Defendant failed, refused and/or neglected to
pay the Plaintiff accordingly notwithstanding that the Defendant gave a
notice to MRTC submitting an acceleration claim amounting to about
RM12 million on 7 January 2016 based on documents produced by the
Plaintiff.

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[11] The Project was finally completed on 17 July 2017. It is undisputed
between the parties that the Plaintiff is hence entitled to the final balance
of contract sum of RM274,000.00 and release of retention money of
RM963,189.16 totalling to RM1,237,199.16.

[12] The Defendant however denied having represented or directed the

Plaintiff to deploy acceleration measures as so alleged by the Plaintiff.

[13] That aside and according to the Defendant, the Plaintiff failed to
complete the amended Works by 31 December 2016 as stipulated by the
Defendant after extending the completion time by 6.5 months.
Consequently, the Plaintiff has been culpably in delay of 198 days in
completing the amended Works. This consequently attracted payment of
liquidated and ascertained damages amounting to RM2,970,000.00 which
the Defendant set off against the sum of RM1,237,199.16 owing to the
Plaintiff.

[14] Furthermore, the Defendant alleged that the Plaintiff in its pursuit of
the acceleration claim leaked confidential information in relation to the
main contract between the Defendant and MRTC and claimed damages
of RM1,000,000.00.

[15] By reason of the dispute over the non- payment of the Plaintiff’s
acceleration claim as well as wrongful set off of RM1,237,199.16 of the
Plaintiff’s final balance of contract sum and release of retention monies by
the Defendant, the Plaintiff hence commenced this suit on 6 May 2019.

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Preliminary

[16] The Plaintiff claimed and prayed for the following in the suit:

(i) RM3,000,000.00 being the acceleration claim or any other sum

deem fit and proper by this Honourable Court;

(ii) RM274,010.00 being the balance payment under the Final Claim;

(iii) RM963,189.16 being the 2 nd moiety sum to be released to the

Plaintiff;

(iv) interest at 5% per annum for the date of the statement of claim until
full and final settlement; and

(v) costs

[17] The Defendant in defence further counterclaimed and prayed for the
following:

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(i) RM1,732,800.84 being the penalties for delay to complete the works
(after deduction of RM274,010.00 and 2nd moiety of RM963,189.16
from the LD sum of RM2,970.000.00);

(ii) general damages due to the Plaintiff’s failure to complete the works
within the agreed time;

(iii) RM1,000,000.00 being the damages as the Plaintiff has leaked and
revealed the confidential information in relation to the contract
between the Defendant and MRT Corp. to the outsider; and

(iv) costs.

[18] The physical in-person trial of this suit took 5 days on 17, 18, 28 and
29 September 2020 and 29 January 2021. The trial documents were
marked as bundles A to X which included the documentary evidence in
bundles B to R which, by consent of the parties, carried status A or B as
marked accordingly. In addition, exhibits P1 to D7 were admitted in
evidence during the course of the trial.

[19] The Plaintiff called the following witnesses who all testified under
oath:

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(i) Chan Chee Meng (“PW1”), project director of the Plaintiff;

(ii) Siti Nor Marlina binti Che Hanipah (“PW2”), site engineer of the
Plaintiff;

(iii) Mohd Saufi bin Zakaria (“PW3”), a personnel of the consultancy

team of the MRTC; and

(iv) Garth Rodney McComb (“PW4”), director of Driver Trett (M) Sdn
Bhd and Plaintiff’s expert witness.

[20] The Defendant called the following witnesses who all testified under
oath:

(i) Michael J. McIver (“DW1”), CEO and director of Plus Three

Consultants (M) Sdn Bhd and Defendant’s expert witness;

(ii) Syed Mohd Azrie Izanie bin Dato’ Syed Shaari (“DW2”);
professional engineer/managing director of Projek Teknologi 6D
Sdn Bhd and consultant project manager of the Defendant;

(iii) Muhammad Akmal bin Marwan (“DW3”), quantity surveyor of the

Defendant; and

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(iv) Dato’ Ir. Haji Fakharazi bin Wahijan (“DW4”), managing director of
the Defendant.

[21] After the close of trial, the parties produced their respective closing
written submissions in chief and submissions in reply. Oral submissions
and clarification with counsel were carried out via Skype remote
communication technology on 28 May 2021. The parties thereafter
produced their further submissions as directed by me.

[22] Having now duly considered all the evidence adduced and
submissions of the parties, I furnish my decision below together the
supporting grounds.

Issues for Determination

[23] After having analysed the pleadings and the parties’ issues to be
tried, I distil the following broad principal issues which require
determination by me:

(i) Plaintiff’s claim for acceleration costs of the Works;

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(ii) Defendant’s counterclaim for liquidated damages and general
damages for late completion of the Works; and

(iii) Defendant’s counterclaim for damages for misuse of confidential

information.

I will deal with each seriatim.

Acceleration Costs

[24] The Plaintiff basically contended that the contract between the
parties based on clause 3 of the Sub-Contract is back-to-back with the
main contract between MRTC and the Defendant (“Main Contract”)
following the case of Agibs Engineering & Construction Sdn Bhd v
Paragon Advance Solutions Sdn Bhd [2011] MLJU 1546 as a matter
of true interpretation of the contract.

[25] In this respect, the Plaintiff contended that the Plaintiff is entitled to
enjoy the benefits the Defendant made and obtained from the MRTC
pursuant to clause 43A of the Main Contract particularly the Defendant’s
claims which were approved and paid by the MRTC pursuant to the Main
Contract.

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[26] PW1 testified that, albeit the execution of the Works commenced on
or about 15 August 2014, the Plaintiff on or about 21 August 2014 received
revised construction drawings from the Defendant to execute the
amended Works. As the result, the Plaintiff estimated that the amended
Works would likely only be completed in February 2018 instead of the
original contractual stipulated date on 15 June 2016. This is by reason
that the amended Works involved the following major additional works:

(i) 280% increase of 1.8 metre diameter bored piles from 26 to 65

numbers;

(ii) deeper excavation from 3 to 9 metres which required additional

temporary supports and double handling of excavated earth to be
carted 20 km away and later brought back to site for re-fill;

(iii) increased pile cap sizes; and

(iv) increased structural element sizes which resulted in increment of

concrete, reinforcement and formwork.

[28] There were therefore weekly meetings which took place between
the parties in July 2015 following which the Plaintiff acted upon the
Defendant’s representations and/or directions to deploy additional
machinery and workforce as well as work overtime to accelerate the
completion of the amended Works. Accordingly, DW2 prepared the

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Defendant’s revised work programme (Rev. 005) which captured the
acceleration measures that would be deployed.

[29] Consequently, the Plaintiff forthwith complied with the Defendant’s

representations and/or directions to speed up the construction and
completion of the amended Works as from August 2015. Moreover in
December 2015, the Plaintiff deployed additional machineries and
workforce as well as further worked overtime beyond the existing overtime
hours.

[30] As the result, the Defendant on 7 January 2016 sent its notice of
claim for acceleration measures deployed to MRTC as substantiated by
the e-mail reproduced below:

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[31] By reason of the acceleration measures which were deployed, the
Plaintiff substantially completed the amended Works (except for the exit
ramp which was handed over late to the Plaintiff for construction by the
Defendant) in September 2016.

[32] The construction of the exit ramp only begun in February 2017 and
the ramp and hence the amended Works were all completed by April
2017.

[33] The Plaintiff finally contended that there was a supplementary

agreement no. 3 (“Supplementary Agreement”) which was executed
between MRTC and the Defendant on 17 November 2017 that reimbursed
the Defendant RM4,689,971.00 including for acceleration measures
deployed in the execution of the Project. The Supplementary Agreement
is reproduced below:

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[34] The Plaintiff initially submitted its acceleration claim in 2017 to the
Defendant supported with documents amounting to RM4,692,288.88 for
measures deployed between August 2015 and September 2016 as
requested by the Defendant. For purposes of this suit and albeit that the
Plaintiff has only claimed RM3,000,000.00, PW1 recalculated the actual
acceleration costs incurred amounting to RM3,617,520.16 comprised of
the following:

(i) barbender RM541,631.11

(ii) carpenter RM679,114.48

(iii) concretor RM252,586.59

(iv) kongsi kong RM458,324.97

(v) staff RM190,868.22

(v) sub-contractor machineries (OT charges) RM587,323.50

(vi) clerk of work RM144,978.53

(vii) others (food, refreshment, transportation) RM192,969.73

(viii) machinery vendor/outsource rental RM97,873.10

(ix) profit and attendance RM471,850.53

[35] In the premises, the Plaintiff contended that it is entitled to be

reimbursed by the Defendant the RM3,000,000.00 as now claimed in this
suit based on clause 3 of the Sub-Contract or alternatively an implied
contract by virtue of the Defendant’s representations/directions or

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otherwise based on s. 71 of the Contracts Act 1950 following Siow Wong
Fatt v Susur Rotan Mining Ltd & Anor [1967] 2 MLJ 118 PC or unjust
enrichment based on the case of Dream Property Sdn Bhd v Atlas
Housing Sdn Bhd [2015] 2 MLJ 441 FC.

[36] In opposition, the Defendant denied that it represented or directed

the Plaintiff to deploy acceleration measures as alleged. There was no
written instruction issued to the Plaintiff according to DW2 and DW4.

[37] Furthermore the Defendant put the Plaintiff to strict proof of the cost
of the acceleration measures deployed as claimed by the Plaintiff.

[38] The Defendant, in any event, strenuously contended that the

Supplementary Agreement did not reimburse the Defendant the
acceleration measures deployed by the Plaintiff. In this regard, DW 1
testified as follows:

“Q: And then you mentioned that the Supplementary Agreement Number 3 is a
global sum awarded by the PDP to the Defendant. Are you able to give a
breakdown on the percentage of the claim?

A: No, it’s a lump sum figure for everything.

Q: Just now you mentioned that PDP have paid but it was not necessarily for
acceleration, sorry, for acceleration. Could you please explain why?
A: Well there’s no identified sum for any of the individual items mentioned. So, its
not possible for me to say that there was anything paid for acceleration
specifically.”

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In addition DW4 testified as follows:

“Q: Apakah yang menjurus kepada kewujudan Supplementary Agreement No 3

ini?
A: Saya bersama Syed Azrie sebagai Planner Project mewakili BRSB telah
menghadiri mesyuarat dengan pihak MRT Corp & PDP bagi berbincang untuk
menyelesaikan tuntutan-tuntutan yang dituntut oleh BRSB kepada MRT Corp
& PDP. Antara tuntutan yang dibincangkan adalah tuntutan BRSB kepada
pihak MRT Corp & PDP sejumlah RM 12 juta untuk acceleration claim. BRSB
juga ada membuat tuntutan prolongation claim sebanyak RM5,089,350.42
serta pelbagai lagi tuntutan lain yang dibuat oleh BRSB kepada MRT Corp &
PDP. Walaubagaimanapun, pihak MRT Corp & PDP bertegas bahawa BRSB
tidak layak untuk menuntut acceleration claim khususnya kerana tidak berlaku
acceleration pada projek MSPR4 ini. Pihak MRT Corp & PDP telah memberikan
hujah mudah dengan menyatakan BRSB hanya dapat menyiapkan projek pada
17.07.2017 sedangkan tarikh siap yang dipersetujui sebelum ini adalah pada
30.09.2016 iaitu telah berlaku kelambatan selama 9.5 bulan dan kelambatan
ini telah dimaklumkan oleh MRT Corp & PDP berulang kali semasa projek
berjalan dengan pengeluaran 41 pucuk surat amaran (IDB5 :1087-1168 dan
IDB6: 1169-1283) dan MRT Corp & PDP mengingatkan saya berkenaan 41
pucuk surat amaran yang diberikan kerana kelewatan tersebut jadi MRT Corp
& PDP mempersoalkan di mana logiknya yang dikatakan acceleration itu
terjadi. Atas sebab tidak berlakunya acceleration maka pihak MRT Corp & PDP
tidak memperakui dan menolak tuntutan acceleration claim tersebut.

Q: Mengapakah MRT Corp dan PDP menolak tuntutan acceleration claim

daripada Budaya Restu Sdn Bhd?
A: Pihak MRT Corp & PDP telah membandingkan projek MSPR4 dengan projek-
projek MSPR yang lain yang mana projek MSPR4 telah lambat disiapkan malah
ianya hanya dapat disiapkan melepasi tarikh 31.12.2016 iaitu tarikh perasmian
Line One Fasa Satu yang dibuat oleh Dato Seri Najib bin Razak sebagai
Perdana Menteri Malaysia ketika itu sehingga MSPR4 ini dikecualikan daripada
perasmian tersebut. Setelah panjang lebar berbincang pada mesyuarat
tersebut maka pihak MRT Corp & PDP telah memberi tawaran untuk
penyelesaian ke atas kesemua tuntutan-tuntutan yang dibuat oleh BRSB
kepada MRT Corp & PDP tersebut dengan memberi saya hanya satu pilihan.
Iaitu untuk bersetuju dengan jumlah penyelesaian sebanyak RM4,689,971.00
atau tidak. Dan tawaran ini adalah secara mutlak ‘take it or leave it’.

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Q: Seterusnya, okay, ada dua dokumen yang telah diarahkan oleh Yang Arif yang
telah ditender kepada Mahkamah pada pagi tadi. Dan saya nak tanya Dato’
berkenaan dua dokumen tersebut, memandangkan [inaudible 1:44:46]
opportunity untuk tengok, jelaskanlah dokumen itu, so sekarang ni boleh Dato’
terangkan, apakah perbezaan dokumen-dokumen tersebut kepada
Mahkamah?

A: D6 dan D7 ya, saya rasa saya kena terangkan secara detail untuk apa nama
Mahkamah faham. Okay pertama sekali, mengapa dokumen ni berlakulah. So,
bila dapat arahan untuk tambahan, apa tadi, pile dan pile cap, saya dah
bagitahu tadi, dia telah menganggu saya punya, apa, ciritical path dan saya
minta Extension of Time selama 6 bulan, tapi oleh kerana PDP kata, apa nama,
kena buat 3 zon dan setiap 1 zon 2 bulan, boleh jelaskan kan tak. Kalau
dijelaskan 1 bulan 28 hari la. Saya dibagi cuma 1 bulan 28 hari extens ion of
time, okay. Dan bila 1 bulan 28 hari pula, PDP kata dia kena pastikan 31
Oktober, eh 30 September tu siap, sebab apa dia perlu 31 Disember, 3 bulan
grace period untuk dia buat pembukaan rasmi masa tu Perdana Menteri akan
merasmikan. Dia perlu 3 bulan grace period. Itu sebabnya dia minta saya
siapkan 30 September, apa nama 2016, 3 bulan grace period. Itu sebabnya dia
bagi acceleration 28 hari. Bila ada arahan tersebut, maka ada empat perkara
saya kena buat.

Pertama sekali, saya kena revise saya punya, apa nama ni, saya punya
program, itu dapat revision 5. Yang kedua, saya kena buat persediaan untuk
melaksanakan acceleration. Maksud dia, dia kena, kebanyakan kerja kita kena
kerja 24 jam. Itu sebab persediaan tu tadi, saya kena, pertama sekali, saya
kena minta permit kerja 24 jam. Yang kedua, saya kena letak CCTV di penjuru-
penjuru, apa nama, ini lah keperluan mereka untuk keselamatan. Yang
ketiganya, saya kena letak spotlight, di apa nama, keliling tempat itu untuk
memastikan pencahayaan di waktu malam mencukupi. Yang ke, apa nama,
1,2,3,4, apa nama ni, saya kena sediakan laluan keselamatan untuk kerja-kerja
waktu malam dan seterusnya saya kena tambah signages. Pertama, reflective
signages untuk memastikan traffic management, apa nama ni, selamat.
Benda-benda tu Budaya Restu telah melaksanakannya, telah membuat di
tapak, dan apa nama, telah berada di tapak. Okay, yang kedua. Yang
ketiganya, Budaya Restu kena beri claim, Notice of Claim ni ialah syarat
kepada kontrak untuk membolehkan saya layak claim kalau berlaku
acceleration, Notice of Claim for Acceleration Works, itu sebabnya saya bagi
pada 7 Januari dan disahkan oleh PDP pada 19 Januari. Yes memang, dia
kata, ada 1 bulan 28 hari boleh tengok daripada apa nama, sebab apa Yang
Arif kata tadi tak cukup masa boleh tengok daripada dokumen tambahan, apa
nama tadi tu, surat, apa nama, muka surat 37, dia okay, betul, dia kata okay
extension of time 30 hari, 1 bulan dan 28 hari acceleration. Okay sekarang ni,

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 apa nama, disahkan benda tu memang, macam, berlaku macam tu dan dia
sahkan revision 5 ialah revision yang diterima untuk buat pemeriksaan, itu yang
ketiga.
Yang keempatnya, saya juga diminta untuk membuat estimated cost.
Berapakah estimated cost yang akan terjadi untuk acceleration. Itu sebabnya
datangnya daripada D6 tadi, iaitu saya buatlah formula saya sendiri, sebab
didalam kontrak tidak ada formula. Tapi saya punya data diambil daripada saya
punya site diary dan daripada apa, Kontrak, apa nama, Dokumen Kontrak.
Saya tak boleh ambil daripada yang lain. Itu lah source yang dibenarkan. Dan
formula yang saya buat tu ialah rekaan saya sendiri la kan. Dia belum
dibincangkan lagi. Lepas daripada yang saya hantar pada 15 Februari 2016,
maka diadakan workshop. Yang diadakan workshop saya punya, hanya
working level, dia bukannya executive level. Working level maksudnya, dia nak
bincang yang telah, apakah dokumen yang sesuai dan juga apakah formula
yang sesuai, itu yang dia minta Syed Azrie dan juga Hj Mahadi untuk tengok
balik benda tu.

Dan pada bulan 5 2016, dia bentangkan kepada saya, apa nama, data-data
yang sampai ke April. Yang mula-mula tadi saya hantar Februari datanya
sampai 2 bulan ja la, Disember dan juga Januari tapi bila dah lepas workshop
tadi, dia dapat la sampai April, iaitu ada 5 bulan data, jadi dia bentangkan. Tapi
saya tak setuju benda ni sebab, apa nama, data yang dia beri, dia satu
ketinggalan data yang fundamental iaitu, monthly progress, sebab monthly
progress ni lah yang akan menunjukkan dia ada acceleration atau tidak. Jadi
itu sebab saya KIV, saya tak hantar terus. Saya tak hantar terus, saya dapat,
apa nama pada bulan 5, 2016, dia punya laporan tu daripada Syed Azri dan
juga saya punya team tadi la. Dan sebab yang sebenarnya apa yang saya
sebut tadi tu sebenarnya tidak ada acceleration di site. Ini saya boleh buktikan
melalui minit-minit mesyuarat okay, yang pertama sekali, saya boleh tunjuk.”

[39] There is dearth of case authorities on the law relating to construction

acceleration claims in the Commonwealth.

[40] Based on the acclaimed Society of Construction Law (SCL) Delay

and Disruption Protocol, acceleration has been defined as follows:

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“the execution of the planned scope of work in a shorter time than anticipated, or the
execution of an increased scope of work within the originally planned duration”

Moreover Andrew Burr elaborated as follows in his treatise Delay and

Distruption in Construction Contracts (5th Ed) at p. 461-462:

“11-018 There are two common applications of the term “acceleration”. On the one
hand, it tends to be used to describe the act of completing the works in a shorter time
than that anticipated by C at the time of tender in light of the resources planned, in the
degree, disposition and circumstances anticipated by the contract documents. On the
other hand, perhaps themore common use of the term acceleration, is in connection
with the act of overcoming the likely effect of an event at D’s risk as to time. In most
standard forms of contract, C will be entitled to an extension of time following the
occurence of D’s time risk events, which are likely to delay completion. However,
notwithstanding that the cause of delay is contractually D’s risk, it is not unusual for D
to be unenthusiastic about the project taking longer to complete and, rather than see
the CA award C more time to complete, which C will then go on to use, there may be
circumstances in which D would rather pay C to overcome the effect of those events,
in whole or in part, and finish earlier. Whislt it is unusual, but not known, for a standard
form to provide expressly for such instruction to be given under the contract, it is more
common for such acceleration to be the subject of a collateral agreement, setting out
in advance the cost implications.”

[41] In the US case of Norair Engineering Corp. v United States, 229

Ct. Cl. 160, Smith J held as follows:

“In order to recover for the increased costs of acceleration under a changes clause,
plaintiff must establish three things: (1) that any delays giving rise to the order were
excusable, (2) that the contractor was ordered to accelerate, and (3) that the
contractor in fact accelerated performance and incurred extra costs.”
(emphasis added)

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[42] Firstly, I am mindful the Plaintiff emphasized that the contract
between the parties has been on a back to back basis with the Main
Contract and the Plaintiff has therefore the right to claim against the
Defendant based on the acceleration clause provided in the Main Contract
between MRTC and the Defendant. It is provided as follows in clause 43A
of the Main Contract:

43A. ACCELERATION

43A.1 Where the PDP considers that the Works Package Contractor by
adopting measures (referred to in this Clause 43A.0 as “Acceleration
Measures”) would be able to achieve completion earlier than the
Sectional Completion Date or practical completion of the Works or the
Date for Line Completion or the Key Access Date (as the case may be)
or would be able to extinguish or significantly reduce any extension of
time to which he would otherwise be entitled pursuant to Clause 42.0,
the PDP may in writing request the Works Package Contractor to provide
estimates of:

(a) the price of adopting Acceleration Measures; and

(b) any saving in time which could be made by adoption of the
Acceleration Measures,

and details of any other terms and conditions sought by the Works
Package Contractor in consideration of agreeing to adopt Acceleration
Measures (which estimates, details, terms and conditions are
collectively referred to in this Clause 43A.0 as the “Acceleration
Proposals”).

43A.2 The Works Package Contractor shall deliver the Acceleration Proposals
to the PDP within seven (7) days of the PDP’s request made under
Clause 43A.1. The Works Package Contractor shall use his best

28
 endeavours to prepare Acceleration Proposals which would enable the
Works to be accelerated in the most economical manner practicable.

43.A3 Within thirty (30) days of receipt of the Acceleration Proposals, the PDP
shall notify the Works Package Contractor in writing that the Acceleration
Proposals are agreed, not agreed or that the PDP wishes to discuss
them with the Works Package Contractor. If the Acceleration Proposals
are agreed and the PDP thereafter instructs the Works Package
Contractor to implement the Acceleration Measures:

(a) the Works Package Contractor will do so at the time agreed in the
Acceleration Proposals; and
(b) the Works Package Contractor shall be paid in respect of such
Acceleration Proposal in accordance with the terms of such
agreement.

43A.4 If:

(a) the Works Package Contractor shall not have submitted

Acceleration Proposals as required under Clause 43A.2; or
(b) the PDP and Works Package Contractor cannot reach agreement
in relation to the Acceleration Proposals within seven (7) Days of
the PDP’s notice to discuss under Clause 43A3; or
(c) the Acceleration Proposals have not been agreed under Clause
43A.3;

the PDP shall be entitled to instruct the Works Package Contractor to

adopt the Acceleration measure in any event, with such additions or
amendments thereto as the PDP shall require. If so directed by the PDP
the Works Package contractor shall proceed to implement the proposed
Acceleration measures in accordance with the PDP’s instructions.

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43A.5 In the event that the PDP issues an instruction pursuant to Clause 43A.4:

(a) the Works Package Contractor shall prepare and submit to the
PDP all such information and documents relating to the
implementation of the Acceleration Measures as the PDP may
reasonably require in writing;
(b) the PDP shall as soon as practicable determine the price of
adopting the Acceleration Measures in accordance with Clause
24 as he considers fair and reasonable in the circumstances and
shall so notify the Works Package Contractor; and
(c) the PDP shall as soon as reasonably practicable determine any
adjustment to any Sectional Completion Date or practical
completion of the Works or Date for Line Completion or Key
Access Date (as the case may be) as he considers to be fair and
reasonable in the circumstances and shall so notify the Works
Package Contractor in writing.

43A.6 Subject to the terms of any agreement made between the PDP and the
Works Package Contractor, if by adopting the Acceleration Measures,
the Works Package Contractor reduces, but does not extinguish, delays
to:

(a) achieving completion by the Date for Line Completion; or

(b) achieving practical completion of Works; or
(c) completion of any Sectional Completion Date; or
(d) achieving an earlier Key Access Date,

For which it would have been entitled to an extension of time, the Works
Package Contractor may in any event be granted, subject always to
proper compliance by the Works Package Contractor with the provisions
of Clause 47, an extension of time for the residual delay.

43A.7 If the PDP and the Works Package Contractor cannot reach agreement
under Clause 43A.3 and the PDP does not instruct the Works Package

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 Contractor to adopt the Acceleration Measures, the Works Package
Contractor shall have no claim for additional remuneration or extension
of time arising out of or in connection with any of the Acceleration
Proposals made or any failure to reach agreement pursuant to this
Clause 43A.0.

[43] The phrase ‘back to back’, although commonly used in construction

sub contracts, is ambiguous and often leads to misunderstanding and
eventually disputes.

[44] The dictionary meaning of ‘back to back’ is as follows in the online

Merriam-Webster dictionary:

“British : a house that is connected in a row with other houses on each side and with
a similar row of houses behind it. These were where the millworkers dwelt, the worst
of them known as back-to-backs because that is how they were built, without
intervening space.— Geoffrey Moorhouse

Sports : a sequence of two games scheduled to be played on consecutive days.

Miami began to beat elite teams and was bloodlessly efficient in the second half
of back-to-backs, winning 11 in a row over a three-month stretch, a sign of a team
with toughness.— Jack McCallum”

They are in my view of no assistance in the context of construction

contracting.

[45] Amongst the construction contracting circle, the phrase ‘back to

back’ has been used in the conditional payment sense which is often also
referred to as ‘pay when paid’. This is seen in Redmax Sdn Bhd v PSI

31
Incontrol Sdn Bhd [2018] 6 MLJ 281 CA where Tengku Maimun JCA
(now CJ) held as follows:

“[26] The appellant also relied upon cl 11.2 of the subcontract to oppose the petition.
Clause 11.2 reads:

11.2 Subject to the Sub-contractor’s compliance with this Sub-Clause, the Contractor
shall take all reasonable steps to secure from the Employer (including the Consultant)
such contractual benefits (including additional payments, extensions of time or both),
if any, as may be claimable in accordance with the Main Contract. The Sub-contractor
shall in sufficient time, afford the Contractor all information and assistance that may
be required to enable the Contractor to claim such contractual benefits. On receiving
any such contractual benefits from the Employer, the Contractor shall pass on the
Sub-contractor such proportion thereof as may in all circumstances be fair and
reasonable, it being understood that, in the case of any claim of the Contractor for an
additional payment, the Contractor’s receipt of payment therefrom from the Employer
shall be a condition precedent to the Contractor’s liability to the Sub-contractor in
respect of such claim. Sub- contractor will only be paid for any variation claims if
Contractor’s obtain the same from the Employer less any cost mutually agreed upon
…

[27] That the subcontract is back to back with the main contract is also stipulated
under the following cll 3.1 and 4.2:

3.1 The following documents shall be deemed to form and be read and construed as
the Sub-contract, viz:

a.The Main Contract Document (except for details of commercial related information);

b.The Sub-contract Document;

c.The Letter of Award or Acceptance between the parties hereto and all attachments
and all annexure thereto.

4.2 The Sub-contractor shall deemed (sic) to have sighted the Main Contract and Sub-
Contract documents … and is fully aware and have full knowledge of the Contractor’s
obligations to the Employer and the Employer’s requirements to the extent as it relates
to the Sub-contract works. Where and to the extent of such obligations in the Main

32
Contract relates to the Sub-contract, the same shall bind the Sub-contractor in a ‘back
to back’ basis with the Contractor …

[30] Given the contemporaneous documents and the relevant provisions of the
subcontract, we found much force in the submission of learned counsel for the
appellant that the respondent knew from the outset that the claims for additional
costs forwarded to the appellant was for approval and payment from JPS and
that only when the approval and payment was received from JPS would the
appellant remit the approved payment to the respondent. In other words, there
was some basis for the appellant to contend that the respondent’s claim once
forwarded to the appellant did not mean that the respondent would
automatically be paid by the appellant.” (emphasis added)

[46] The phrase ‘back to back’ has also been suggested and interpreted
in the Singapore case of Hi-Amp Engineering Pte Ltd v Technidelta
Electrical Engineering Pte Ltd [2003] SGHC 316 where MPH Rubbin J
held as follows:

“91 In relation to issue (a) concerning the construction of the agreement entered into
between the parties, the contention by defendants’ counsel was that the Hi-Amp
contract was back-to-back with the AMEC contract. The defendants in this regard
relied on cl 4 of the letter of award (which reads: “[other] than the variation in MAIN
CONTRACT sum and BQ pricing, all terms and conditions of the MAIN CONTRACT
shall apply mutatis mutandis to the SUBCONTRACT”) expressly provides that except
in relation to the contract sum and bill of quantity pricing, all the provisions of the AMEC
contract shall apply to the parties, with the necessary changes.

…
98 In the case before me, leaving aside the ambiguous and not so precise
phraseology of cl 4 of the letter of award from the defendants, there is a raging
dispute as to whether the plaintiffs had sight of the main contract at all until 6
February 2002. If what the plaintiffs contended were true, then it would be
unreasonable to conclude that the conditions of the main contract were

33
incorporated as part of the Hi-Amp contract. In this connection, the evidence of
TKS and Hoe appeared to me to be more cogent than that of what was painted by the
defendants. In relation to this particular issue, I am inclined to accept their evidence
that the defendants, for reasons known to them, did not furnish the plaintiffs
with the AMEC contract documents except for some in dribs and drabs.
Inasmuch as the defendants chose not to provide the AMEC contract to the
plaintiffs, I am of the view that the defendants’ present contention that the Hi-
Amp contract was to be qualified by the terms of the AMEC contract, was
without merit.” (emphasis added)

[47] The phrase ‘back to back’ may also, in my opinion, merely connote
that the sub-contractor is bound to observe and comply with the
technical requirements of the main contract such as the drawings and
specifications in executing the works so that the main contractor is not
in breach of the main contract. It does not per se step down, import and
incorporate identical contractual rights and obligations between the main
contractor and employer to the sub-contractor and main contractor.
Otherwise, this has to be expressly and specifically provided in the sub-
contract as seen in the Singapore case of Jurong Engineering Ltd v
Paccan Building Technology Pte Ltd [1999] 3 SLR 667 (CA) where
Goh Joon Seng J held as follows:

“[6] The form of contract agreement consisted of three pages. Clause 4 read:

It is hereby agreed and understood that except as expressly varied herein the
provisions of the main contract shall apply in full force and effect in every way as if the
same are set out in this agreement and agreed to and confirmed by both parties.

The General Conditions (‘Gencon’) of the main contract were thus incorporated
as part of the subcontract.” (emphasis added)

34
[48] It can hence be surmised that the meaning of ‘back to back’ has to
be interpreted contextually and objectively based on the contractual
provisions and background circumstances of each case.

[49] Upon my review of clause 3 of the Sub-Contract, albeit in Bahasa

Malaysia, I do not find that the translated phrase of ‘back to back’ has
been expressly stated therein. Be that as it may, I discern what has
been expressly stated is that the Plaintiff must comply with the
contractual provisions that govern MRTC and the Defendant. Very
pertinently and akin to the aforementioned Hi-Amp Engineering case,
there is no cogent evidence that the Main Contract documents have
been given by the Defendant to the Plaintiff concurrently with the
issuance of the letter of award that formed the Sub-Contract to be bound
and/or read together. It is plain that the Plaintiff had only been given
technical information of the Main Contract such as drawings and
specifications at the time of commencement of the Works.

[50] In the circumstances, I find and hold that the provisions in the Main
Contract particularly clause 43A are not incorporated into the sub-
contract between the parties by virtue of clause 3 of the Sub-Contract.
It follows that the Plaintiff neither have the contractual express right to
claim for acceleration as provided in clause 43A of the Main Contract
against the Defendant nor that the Plaintiff as the result thereof is ipso
facto entitled to any acceleration payment that has been successfully
claimed by the Defendant against MRTC under the Main Contract.

35
[51] That notwithstanding and in spite that there is the absence of an
express contractual provision for the Plaintiff to claim for acceleration,
the Plaintiff may still claim for it if there has in fact been a representation
and/or directive by the Defendant to the Plaintiff to so accelerate. In Teh
Poh Wah v Seremban Securities Sdn Bhd [1996] 1 BLJ 463 CA,
Gopal Sri Ram JCA (later FCJ) held as follows:

“In our judgment, this appeal may quite satisfactorily be resolved by reference to the
doctrine of estoppel. It is a flexible doctrine by which Courts seek to do essential justice
between litigating parties.

In this context we find it sufficient to quote the following passage in the judgment of
the Federal Court in Boustead Trading (1985) Sdn Bhd v. Arab- Malaysian Merchant
Bank Bhd [1995] 4 CLJ 283 at p 344 upon the wide scope of the doctrine:

The time has come for this Court to recognize that the doctrine of estoppel is a
flexible principle by which justice is done according to the circumstances of the
case. It is a doctrine of wide utility and has been resorted to in varying fact
patterns to achieve justice. Indeed, the circumstances in 'which the doctrine
may operate are endless.

Edgar Joseph Jr J (as he then was) in an illuminating judgment in Alfred Templeton &
Ors v. Low Yat Holdings Sdn Bhd & Anor. [1989] 2 MLJ 202 at p 244 applied the
doctrine in a broad and liberal fashion to prevent a defendant from relying upon the
provisions of the Limitation Act 1952.

The doctrine may be applied to enlarge or to reduce the rights or obligations of

a party under a contract: Sarat Chunder Dey v. Gopal Chunder Laha LR 19 IA
203; Amalgamated Investment and Property Co Ltd (In liquidation) v. Texas
Commerce International Bank Ltd [1982] 1 QB 84; [1981] 3 All ER 577; [1981] 3 WLR
565. It has operated to prevent a litigant from denying the validity of an otherw ise
invalid trust (see, Commissioner for Religious Affairs, Trengganu & Ors. v. Tengku
Mariam bte Tengku Sri Wa Raja & Anor [1970] 1 MLJ 222) or the validity of an option
in a lease declared by statute to be invalid for want of registration (see, Taylor
Fashions Ltd v. Liverpool Victoria Friendly Society [1981] 1 All ER 897; [1981] 2 WLR
576). It has been applied to prevent a litigant from asserting that there was no valid
and binding contract between him and his opponent (see, Waltons Stores (Interstate)
Ltd v. Maher [1988] 164 CLR 387) and to create binding obligations where none
previously existed (see, Spiro v. Lintern [ 1973] 3 All ER 319; [1973] 1 WLR 1002). It

36
may operate to bind parties as to the meaning or legal effect of a document or a
clause in a contract which they have settled upon (see the Amalgamated case) or
which one party to the contract has represented or encouraged the other to
believe as the true legal effect or meaning: American Surety Co of New Yo v.
Calgary Milling Co Ltd[1919] 48 DLR 295; De Tchihatchef v. Salerni Coupling
Ltd[1932] 1 Ch 330; Taylor Fashions.

We would add that it is wrong to apply the maxim 'estoppel may be used as a
shield but not a sword' as limiting the availability of the doctrine to defendants
alone. Plaintiffs too may have recourse to it. The true nature of the doctrine in this
context is that stated by Lord Russell of Killowen in Dawsons Bank v. Nippon Menkwa
Kabushiki Kaisha LR 62 IA 100 at p 108:

Estoppel is not a cause of action.

It may (if established) assist a plaintiff enforcing a cause of action by preventing a

defendant from denying the existence of some fact essential to establish the cause of
action, or (to put it in another way) by preventing a defendant from asserting the
existence of some fact the existence of which would destroy the cause of action.

It is also wrong to think that the doctrine is confined to cases where a

representation of fact has been made or where a party has been encouraged by
another to believe in the existence or in the non-existence of a fact. The
decisions of the Privy Council in Sarat Chunder Dey and the Calgary Milling
Co (among others) to which we have referred earlier concerned cases involving
representations not of fact but of law.” (emphasis added)

[52] From the evidence adduced before me, I am satisfied and believe
based on the testamentary evidence of PW1 that there were indeed
meetings between the parties in July 2015 wherein the Defendant
verbally represented or directed the Plaintiff to accelerate the amended
Works. I so find and hold accordingly. Furthermore, I do not believe
that DW4 seriously disputed the representations or directions that were
made save that that was to get the Plaintiff to mitigate the delayed
progress of the amended Works. In fact, the DW4 conceded that the

37
Plaintiff had thereafter installed CCTV and floodlighting to carry out
overtime night work.

[53] Furthermore, DW4 also testified that the MRTC recognised the
need to accelerate the amended Works to complete the Project by
September 2016 but was only then willing to grant the Defendant an
extension of time of 2 months together with compensation of 28 days of
accelerated working under the Main Contract.

[54] In the circumstances, I find and hold that there was indeed the
representations and directions which were given by the Defendant to the
Plaintiff in the course of the carrying out of the amended Works. There
is hence an implied contract based on promissory estoppel. As the
result, it is unnecessary to delve into the Plaintiff’s alternative causes of
action on quantum meruit under s. 71 of the Contracts Act or unjust
enrichment as they would lead to the same end result.

[55] Nonetheless, I hold that it is necessary on the part of the Plaintiff

to prove all the elements alluded to in the Norair Engineering Corp.
case to sustain and succeed in its claim for acceleration.

[56] The first element is that the delay has to be excusable. On the facts
based on the evidence adduced, it is plain that the delay has been caused
by the issuance of revised constrution drawings to undertake the
amended Works as alluded to by the Plaintiff in paragraph [26] above and
I so find and hold accordingly.

38
[57] Next, on the second element of the Plaintiff having been ordered to
accelerate, I find and hold that this element has been established as found
in paragraphs [52] and [53] above.

[58] Finally as to the third element on the Plaintiff having performed the
acceleration and incurred costs, this is a matter of strict proof that must
be properly substantiated with documentary evidence. I reiterate what I
have held in my maiden case of Oakwell Engineering International Pte
Ltd v PCM Feam (M) Sdn Bhd [2014] 11 MLJ 175:

“[12] The quality of the evidence required to prove allegations is still subject to the
antiquated "best evidence" rule. In the textbook Phipson on Evidence 17 th edition, it is
stated in paragraph 7-40 to 7-43 that: "The maxim that "the best evidence must be
given of which the nature of the case permits" was once treated as expressing the
great fundamental principle upon which the law of evidence depends. Thus, Lord
Hardwicke went so far to say that "the judges and sages of the law have laid it down
that there is but one general rule of evidence, the best that the nature of the case will
permit"...In the present day, then, it is not true that the best evidence must, or may
always be given, though its non-production may be a matter for comment, or affect the
weight of that which is produced...". Further it is stated at paragraph 42-10 to 42-11
that: "Extrinsic evidence is sometimes admissible to prove the existence as
distinguished from the terms of some transaction or relationship which has been
reduced to writing...On the other hand, strict proof of a transaction of the document is
sometimes required, though the terms thereof may not be in dispute. Thus, on a
charge of perjury committed in proceedings before justices for refusing to leave
licensed premises, the license must be produced, and oral testimony by the proprietor
that he is licensed is inadmissible. So, the fact, that a person is rated to the relief of
the poor can only be proved by the rate-book, or secondary evidence thereof and not
by parol."

[13] Consequently in civil litigation particularly construction type litigation, I am

of the view that relevant documents that substantiate or support the oral
allegations must be adduced at the trial where such documentary evidence is
expected to be available in the ordinary course of business and commerce.

39
Otherwise a reasonable explanation must be tendered to justify their non
production. In the absence of these documents or explanation of their absence,
mere oral testimony is not weighty enough to overcome the burden of proving
the allegations on a balance of probabilities...” (emphasis added)

[59] Thus for purposes of proving acceleration and the resultant

claimable costs expended or incurred, I would expect the Plaintiff to
demonstrate the following satisfactorily backed with appropriate
documentary proof:

(i) The Plaintiff alluded to the expected completion of amended

Works by February 2018 ordinarily when the construction
drawings of the amended Works were issued in August 2014. As
such, the Plaintiff must produce its revised as-planned amended
Works programme to achieve completion on February 2018
together with its corresponding resources deployment plan based
on that planned programme;

(ii) The Plaintiff must also produce the as-built accelerated amended
Works programme and the actual resources deployment record
based on that as-built programme;

(iii) The Plaintiff must thereafter compare the anticipated costs of the
planned resources deployment against the costs of the actual
deployment of resources;

40
(iv) The difference between the actual costs of the as-built versus as-
planned resources deployment would in principle be the
compensable acceleration costs claim subject to the
reasonableness of the actual costs incurred (discounting any
inefficiency on the part of the Plaintiff); and

(v) The Plaintiff must also ensure that the actual costs claimed must
not have been already compensated in its claim for the work done
pursuant to the Sub-Contract between the parties.

[60] From the testamentary evidence adduced by PW1 and PW2

supported by documentary evidence, I see that the Plaintiff has produced
and demonstrated its actual resources deployed and the resultant costs
incurred as stated in item (ii) of paragraph [59] above from December
2015 to September 2016.

[61] It is however evident that the Plaintiff has in its methodology of

computing the acceleration claim failed to take into account the other
requisite items (i), (iii), (iv) and (v) stated in paragraph [59] above either
quantitatively and/or qualitatively.

[62] The Plaintiff basically demonstrated its manpower resource

requirement based on the as-planned original Works in accordance with
approved programme Rev. 00 compared against the actual manpower
resource deployment based on the as-built amended Works following

41
approved revised programme Rev. 005. Both were accordingly costed
and the Plaintiff claimed for the net cost difference. The comparison is, in
my opinion, flawed because this cannot be made between the original
Works and amended Works. It must instead be made between the
amended Works without acceleration and the amended Works with
acceleration. In this respect, I noticed that the Plaintiff did not have the
as-planned amended Works programme to complete the amended Works
by February 2018 (as estimated by the Plaintiff) as well as its
corresponding required manpower resource plan at all material times. As
the result, the requisite extra-over costs of acceleration of the manpower
resource deployment could not be ascertained.

[63] By the methodology of comparison as demonstrated and made by

the Plaintiff, I find that that resulted in a gross over-claim because the
Plaintiff, by so doing, did not take into account the enlarged amended
Works where its corresponding costs of extra manpower resource
deployment have separately been paid or accounted in the final accounts
already for the enlarged work done pursuant to the Sub-Contract.

[64] In my opinion, the acceleration claim cannot be made up solely or

substantially on item (ii) of paragraph [59] above only. I am aware that the
Plaintiff sought the expert opinion of PW4 to corroborate its claim but I find
that PW4 basically reduced the amount claimed by the Plaintiff from
RM3,617,520.76 to RM2,903,593.81 by way of adjusting the overtime rate
factor utilised as well as deletion of several items particularly on
machinery hire. Beyond that, PW4 seemed to be in concurrence with the
Plaintiff’s methodology of computing the acceleration claim based on item

42
(ii) of paragraph [59] above only. In other words, the inherent flaw in the
methodology was not addressed.

[65] In the premises, I am not satisfied that the Plaintiff has sufficiently
proved the acceleration costs it truly expended or incurred as the result of
the representations and/or directions of the Defendant to accelerate the
amended Works. Hence, the Plaintiff’s acceleration claim as presented is
unsustainable and rejected.

[66] Be that as it may, there are 2 items of equipment that were deployed
by the Plaintiff viz. CCTV and floodlights which are necessary for night
work carried out by the Plaintiff. The usage of these equipment has been
also conceded by the Defendant in the testimony of DW4. I accept that
late night work has been part of the Plaintiffs acceleration efforts. In my
view, these equipment are obviously equipment which would not ordinarily
be deployed by the Plaintiff but for the representations or directions of the
Defendant to accelerate the works.

[67] In the premises, I find and hold that the Defendant should fairly pay
the sum of RM100,000.00 to the Plaintiff for these equipment in respect
of its sole head of claim for acceleration based on the court’s own
independent assessment as was also done in Kokomewah Sdn Bhd v
Desa Hatchery Sdn Bhd [1995] 1 MLJ 214 and Ke Seng Enterprise
Sdn Bhd v Lembaga Pembangunan Perumahan dan Bandar [2011] 2
CLJ 228.

43
[68] Finally, I am mindful the Plaintiff referred to the Supplementary
Agreement and contended that the Defendant has been paid
RM4,689,971.00 which substantially included the Plaintiff’s acceleration
claim. I have scrutinized the Supplementary Agreement but find that it is
a global settlement between the Defendant and MRTC without breakdown
of its constituents. It might have included a substantial portion of
prolongation costs rather than acceleration costs as assessed by the
MRTC or its project delivery partner. In this regard, I have also taken into
account that the Plaintiff’s claim in this suit is for acceleration costs but not
prolongation costs. It is trite law that the Plaintiff is bound by its pleadings;
see RHB Bank Bhd (substituting Kwan Yik Bank Bhd) v Kwan Chew
Holdings Sdn Bhd [2010] 1 CLJ 665 FC. The Supplementary
Agreement is therefore irrelevant for purposes of assessing the Plaintiff’s
acceleration claim here.

Liquidated damages and general damages for late completion

[69] The Defendant basically contended that the Plaintiff completed the
amended Works late on 17 July 2017 which is 198 days beyond the
extended completion date of 31 December 2016. Hence the Plaintiff is
liable to the Defendant for liquidated damages of RM2,970.000.00 (198
days x RM15,000/day) and general damages to be assessed by the court.
It is the Defendant’s case that the Plaintiff not only failed to accelerate but
were in fact slow in its carrying out of the amended Works.

44
[70] Both parties engaged their respective expert witness to assess the
fair extension of time for completion of the amended Works. The Plaintiff
relied on the expert opinion of PW4 whilst the Defendant relied on the
opinion of DW2 as corroborated by the expert opinion of DW1. The
differences in their views are tabulated as follows:

Item Description Original Revised Scope of Works

Scope of Works
(as per Sub- With Additional With Additional
Contract) Time Evaluated Time Evaluated
by Projek by Mr. Garth
Teknologi 6D Rodney McComb
Sdn Bhd (473 days)
(199 days)

A Sub-Contract Sum RM 38,527,566.29 RM 44,122,386.57 RM 44,122,386.57

B Increase in Sum - 14.5% 14.5%

C Construction Period 22.1 month 28.6 month 37.6 month

(671 days) (870 days) (1,144 days)

D Increase in Duration - 29.7% 70.5%

E Productivity (A÷C) RM 1.74 million RM 1.54 million RM 1.17 million

(Average Value of Works to per Month per Month per Month
be Completed per Month)

[71] The law on late completion and imposition of liquidated damages is

trite and is lucidly illustrated in Sim Chio Huat v Wong Ted Fui [1983] 1
MLJ 151 FC where Salleh Abas FJ (later LP) held as follows:

“Amongst the conclusions reached by the learned author after considering

these cases is that in cases where an agreement contains no clause for
extension of time for completion, the acts of prevention by the employer
whether authorised by the contract or whether in breach of it or whether the
prevention is a cause of part or of the whole of the delay invalidate the liquidated
damages clause because by such acts in the words of Parke B. in Holme v.
Guppy (supra) and Lord Denning M.R. in Trollope and Colls ( supra) "the time

45
becomes at large". Consequently there is no date from which damages could
run and therefore no damages could be claimed.

In the present case, not only did the agreement contain no extension clause it also
contained no clause authorising extra work. This extra work must at least have caused
part of the delay though it might not have caused the whole delay. Applying the
principle stated above, we are of the opinion that clauses 20 and 21 became
invalidated and that no damages should have been allowed under them.” (emphasis
added)

Recently in Yuk Tung Construction Sdn Bhd v Daya CMT Sdn Bhd
[2020] 1 LNS 1314 CA, Harminder Singh Dhaliwal JCA (now FCJ) held
as follows:

“[55] It was nevertheless argued that these events resulted in an act of prevention
which renders time at large or what is commonly known as the "prevention principle".
The "prevention principle" is really one borne out by common sense and fair play. In
circumstances where the delay in completion is caused partly by the employer,
it would be wrong to insist that the contractor be held to the completion date. In
other words, the contractor should not be made liable where he is prevented
from performing his contract due to the default of the employer (see Multiplex
Constructions (UK) Ltd v. Honeywell Control Systems Ltd [2007] EWHC 447
(TCC) ("Multiplex")).

[56] If one considers the historical context, it was the "prevention principle"
which led to the incorporation of extension of time clauses in construction
contracts (see North Midland Building Ltd v. Cyden Homes Ltd [2018] EWCA Civ
1744 ("Cyden Homes")). The UK Court of Appeal in Cyden Homes noted that such
clauses were not "designed to provide the contractor for excuses for delay but rather
to protect the employer by retaining their right both to a fixed (albeit extended)
completion date and to deduct liquidated damages for any delay beyond that extended
completion date" (per Coulson LJ).

[57] This was so as the extension of time clauses would already include the
"acts of prevention" to extend time so that liquidated damages could only be
claimed for the period after the extended completion date. So, as seen
in Multiplex, supra, acts of prevention by an employer do not set time at large if
the contract provides for extension of time in respect of those events. It follows,
therefore, that a lot depends on what particular acts of prevention are stipulated

46
in the contract which would in turn generate consideration of any entitlement to
extension of time.” (emphasis added)

See also Thamesa Designs Sdn Bhd v Kuching Hotels Sdn Bhd
[1993] 3 MLJ 25 SC and Bergamo Development (M) Sdn Bhd v ECK
Development Sdn Bhd & Anor [2018] 5 MLRH 337.

[72] Put simply, it is imperative that there is an extension of time

provision in the construction contract to extend time for completion due to
acts of prevention of the employer/main contractor that delayed the main
contractor/sub-contractor’s ability to complete the works beyond the
contractual stipulated date of completion; otherwise the employer/main
contractor forfeits its right to impose and recover liquidated damages
stipulated in the contract for late completion. In the absence of the
extension of time clause, time is set at large upon the occurrence of the
employer/main contractor’s acts of prevention that delayed the timeous
completion of the works by the contractual stipulated date of completion.
As the result, the main contractor/sub-contractor is only obliged to
complete the works within reasonable time. The employer/main contractor
can accordingly only recover general damages in the form of special
damages duly proved for late completion beyond the reasonable time to
complete the works from the main contractor/sub-contractor.

[73] On the evidence as adduced before me, it is plain that the scope of
works under the Sub-Contract has been enlarged because of the change
in the structural design of the Project required by MRTC. This scope of

47
work enlargement is undoubtedly an imputed act of prevention on the
Plaintiff by the Defendant in the chain of contracts of the Project.

[74] There is no extension of time clause in the Sub-Contract. In

consequence, the Defendant lost right to recover the liquidated damages
provided in clause 5 of the Sub-Contract due to this scope of work
enlargement and I so find and hold accordingly.

[75] I am aware that the Defendant asserted that it had given an

extension of time of 199 days to the Plaintiff thereby extending the
completion date from 15 June 2016 to 31 December 2016. However, I
find that this has been made and given unilaterally and retrospectively
after the Project was completed by the Defendant via its letters dated 12
July 2018 and 27 December 2018 despite the absence of a contractual
extension of time clause in the Sub-Contract; hence an unlawful and
invalid grant of extension of time. There is not an iota of evidence here
that this extension of time of 199 days has been mutually agreed by the
parties at all material times.

[76] Consequently, the Defendant may only recover general damages in

the form of special damages duly proved from the Plaintiff for late
completion beyond the reasonable time to complete the amended Works.
Reasonable time is a question of fact; see Hick v Raymond & Reid
(1893) A.C. 22 HL.

48
[77] For purposes of the Defendant’s counterclaim for general damages
for late completion, it is necessary to ascertain when the Plaintiff actually
completed the amended Works as well as what is the reasonable time to
do so. The burden of proof is on the Defendant.

[78] In respect of the former on actual completion, the Plaintiff contended

that it has substantially completed the amended Works (except for the exit
ramp which was handed over late to the Plaintiff for construction by the
Defendant) in September 2016. The construction of the exit ramp only
begun in February 2017 and the ramp and hence the amended Works
were all completed by April 2017.

[79] The Defendant however contended that the amended Works were
only completed on 17 July 2017 when it was accepted by MRTC.

[80] Between the conflicting versions put forth by the parties on actual
completion, I prefer the Plaintiff’s version which I find more sensible and
convincing. This is by reason that the Plaintiff’s amended Works formed
part of the Defendant’s works only. There were other works such as M&E,
civil and external works that have be carried out by the Defendant to
complete the Main Contract and these were necessarily done after the
Plaintiff’s works have been completed. I therefore find that the Project was
completed on 17 July 2017 pursuant to the Main Contract but the Plaintiff’s
amended Works were already completed earlier in April 2017.

49
[81] As to the latter on reasonable time to complete, there are again
conflicting versions advanced by the parties’ respective expert witnesses
although they were assessed in the context of contractual extension of
time. In spite that reasonable time and extension of time are conceptually
different in law as above explained, they are however similar in terms of
assessment of the quantum of time to complete the works.

[82] The Plaintiff’s expert witness (PW4) and the Defendant’s expert
witness (DW1) opined that fair and reasonable extra time required beyond
the original completion date stipulated in the Sub-Contract to complete the
amended Works is 473 days and 199 days respectively. In this regard,
the reasonable time to complete the amended Works fell on 1 October
2017 and 31 December 2016 respectively. The details of their
assessment are found in their respective expert reports which I will not
reproduce here.

[83] Based on the evidence adduce before me, I find that the Plaintiff’s
expert assessment is too generous (being a date after the Project attained
completion on 17 July 2017) whereas the Defendant’s expert assessment
is, on the other hand, too conservative. I observed that these
assessments were made based on estimation of the Plaintiff’s relative
work productivity as the result of work enlargement as occurred. This
methodology based on theoretical estimation would be divorced from the
realities at the site on what actually happened. I had hoped that the
experts have undertaken a collapsed as-built delay analysis of the
amended Works which provides the complete factual account of what
transpired so that reasonable time can be meaningfully assessed

50
therefrom. Consequently and since I have found that the Plaintiff has
substantially completed the amended Works except for the exit ramp in
September 2016 and the exit ramp itself in March 2017 due to the
Defendant’s inability to hand over the ramp for the Plaintiff’s construction
earlier, I am of the opinion that the reasonable time to complete the
amended Works is at end March 2017 and I so find and hold accordingly.
No cogent photographs of the status of the amended Works were
produced by the Defendant to demonstrate to me otherwise. I am mindful
that the Defendant has alleged that the exit ramp was not completed
and/or fraught with defects even in 2018 but this allegation contradicts the
fact that the Project attained completion as certified by MRTC on 17 July
2017. If there were defects in the exit ramp after March 2017, I believe
that they were either de minimis defects which did not affect completion
or damaged which occurred after handover.

[84] In the premises, I find and hold that the Plaintiff completed the
amended Works within reasonable time and the Plaintiff is therefore not
liable to the Defendant for general damages by reason of late completion
of the amended Works.

[85] In any event, I further find and hold that the Defendant failed to
adduce cogent evidence to prove that the Defendant suffered general
damages in the form of special damages as the result of late completion
on the part of the Plaintiff as required by law stipulated in s. 74 of the
Contracts Act 1950 read with Tan Sri Khoo Teck Puat & Anor v
Plentiude Holdings Sdn Bhd [1995] 1 AMR 41 FC. My finding here is

51
also supported by the fact that MRTC compensated instead of penalised
the Defendant as seen in the Supplementary Agreement.

[86] Consequently, I find and hold that this head of the Defendant’s
counterclaim is without merit.

Damages for misuse of confidential information

[87] The Defendant contended that it never gave the Main Contract to
the Plaintiff but the Plaintiff nonetheless was able to make its claims
against the Defendant based on the Main Contract provisions and
information. DW3 testified as follows:

“Q: Apakah yang berlaku pada tarikh 15.01.2019?

A: Pada tarikh tersebut, saya telah membuat laporan polis (IDB 3: 732) atas
tindakan Infraprima Construction Sdn Bhd iaitu salah satu subkontraktor yang
dilantik oleh Budaya Restu Sdn Bhd untuk Projek MSPR4 atas sebab
Infraprima Construction Sdn Bhd telah melakukan pecah amanah dengan
mendedahkan atau membocorkan maklumat kontrak antara Budaya Restu Sdn
Bhd dengan Infraprima Construction Sdn Bhd kepada pihak luar dengan
menghantar salinan surat bertarikh 11.07.2017 (IDB 2:321-325) kepada Mr.
Leng Hua Teng, General Manager, MMC-GAMUDA KVMRT (PDP) SDN BHD.
sedangkan Mr. Leng Hua Teng adalah pihak luar daripada kontrak antara
Budaya Restu Sdn Bhd dengan Infraprima Construction Sdn Bhd.

Selain itu, Infraprima Construction Sdn Bhd telah menghantar satu Surat
bertarikh 09.01.2019 yang mana isi kandungan surat tersebut telah dirujuk oleh
peguamcara Budaya Restu Sdn Bhd melalui surat peguamcara bertarikh
30.01.2019 (IDB 2: 334). Infraprima Construction Sdn Bhd telah menyentuh

52
 kerahsiaan Kontrak Utama antara Budaya Restu Sdn Bhd dengan MRT
Corporation & PDP. Tindakan Infraprima Construction Sdn Bhd itu telah
melanggar hak sulit dan persendirian pihak-pihak kepada Kontrak Utama yang
boleh mengakibatkan pihak Budaya Restu Sdn Bhd disaman oleh pihak MRT
Corporation & PDP sedangkan pihak Budaya Restu Sdn Bhd tidak pernah
mendedahkan dokumen kontrak utama kepada pihak luar termasuk Infraprima
Construction Sdn Bhd.”

In addition, the Plaintiff has on 11 July 2017 written to the Defendant with
clear knowledge of information that was strictly between the MRTC and
Defendant only. The material part of the Plaintiff’s letter read as follows
with emphasis added:

“Due to all these problems knowing that without additional machineries, worforce and
extended working hours, this project will definitely complete by February 2018 and not
april 2017 for building works and the whole project by July 2017. MRT/PDP has
approved special acceleration cost to expedite the works and its ’ known to all parties
in this project.

...

Contractually according to the letter award terms and conditions, we are entitled to the
extension of time granted by MRT/PDP to your good office and also the acceleration
cost claim received by your good office.

As per our previous letter to your good office we are entitled to claim RM3.0 Million out
off the RM4.6 Million for the acceleration cost incurred paid to yourgoodoffice
by MRT.”

[88] In the premises, the Defendant maintained that the Plaintiff

unlawfully misused confidential information which had strained the
relationship between the Defendant and MRTC.

53
[89] The Plaintiff vehemently denied that it misused confidential
information of the Defendant in any way and the Plaintiff relied on the case
of Vision Cast Sdn Bhd & Anor v Dynacast (Melaka) Sdn Bhd & Ors
[2015] 1 MLJ 424 CA where Varghese George JCA held as follows:

“[40] This was where the submissions of counsel for the defendant, in our view,
became relevant. Firstly, the pleadings were bereft or devoid of any proper or
sufficient identification of the impugned material. Secondly, the plaintiffs had
failed to even show that the material sought to be protected had (1) the
necessary quality of confidence, or (2) that such material was in the second
defendant's possession or even that (3) it had been disseminated to the
detriment of the plaintiffs.

[42] In Tracerco Asia Sdn Bhd v Nor Hisham Mohd Nordin & Ors [2013] 7 MLJ 75,
Mary Lim J at the High Court endorsed this basic requirement in the following terms:

[26] The decisions of Ocular Science Ltd v Aspect Vision Care Ltd (No 2), Cm-Centres
for Medical Innovation GMBH & Another v Phythopharm PLC [1999] Ch D 235; John
Zinc Company Limited v Wilkinson & Another and Chiarapurk Jack & Others v Haw
Par Brothers International Ltd concern, inter alia, claims of similar nature, and are of
much assistance. These decisions remind the need to identify and plead clearly the
confidential information on which the plaintiff intends to rely in the proceedings; the
circumstances of confidence; the information which can be shown to be of the type
which could be treated as confidential; and that it was in fact used without license or
consent.

[27] In Ocular Science Ltd v Aspect Vision Care Ltd, at p 359, Laddie J expressed the
view that the 'rules relating to the particularity of pleadings apply to breach of
confidence actions as they apply to all other proceedings. The courts are therefore
careful to ensure that the plaintiff gives full and proper particulars of all the confidential
information on which he intends to rely on in the proceedings'. He then proceeded to
deal with the consequence of non-compliance of such rules, the inferences that may
be drawn by the court, cautioning that such actions are liable to be struck out if found
to be abuses of process or where the claims are found to be instruments of oppression
or harassment against the defendant.

[43] In Seven Seas Industries Sdn Bhd v Philips Eectronics Supplies (M) Sdn
Bhd [2008] 5 MLJ 157; [2008] 4 CLJ 217, the Court of Appeal held:

54
… The learned judge in dismissing the appellant's claim referred to Coco v AN Clark
(Engineers) Ltd [1969] RPC 41, which sets-out the three elements to be established
in order to succeed in an action for breach of confidence, that is to say, firstly, the
information sought to be protected has the necessary quality of confidence; secondly;
the information was communicated in circumstances importing an obligation of
confidence; and, thirdly, there must be unauthorised use of that information to the
detriment of the party communicating it …

[54] In the matter before us the plaintiffs' complaint as observed earlier was that
the second defendant had 'stolen' information (in general terms) and used it for
his own benefit through the first defendant. It needs to be reiterated however
that as in the situation of 'breach of confidentiality' allegation, the plaintiffs had
here firstly failed to identify with sufficient particularity in their pleading
(statement of claim), what was that 'confidential information' that had been
misused and whether it was peculiarly part of Dynacast Group's intellectual
property.

If the impugned 'information' was from within the general fund of the second
defendant's own knowledge, exposure and experience accumulated in the
diecast industry over the years as was the case here (and this would include
potential customers, price trends in the market/public domain etc), there was
definitely no grounds, in our assessment to hold that there had been a 'breach
of fiduciary duty' or even a breach of confidentiality by the second defendant in
this case.” (emphasis added)

[90] According to the Plaintiff, the Defendant neither identified nor

specifically pleaded what has been allegedly misused by the Plaintiff.
There was only references to documents relied by the Plaintiff such as the
Conditions of Main Contract and Defendant’s notice of claim dated 7
January 2016 submitted to MRTC which is plainly inadequate. Moreover,
the Plaintiff contended that these documents do not carry the quality of
confidence because they were forwarded to the Plaintiff by the Defendant
as testified by PW2 and confirmed by DW3 in respect of the notice of claim
dated 7 January 2016. In addition, the Plaintiff stressed that the

55
Conditions of Main Contract were already in the possession of the Plaintiff
as part of their given tender documents given for purposes of quoting to
the Defendant. There is also no evidence of disclosure of the alleged
confidential information by the Plaintiff to third parties.

[91] From my perusal of the Defendant’s counterclaim, I find and hold

that their plea of misuse of confidential information has been vague and
do not therefore fulfil the pleading requirement as set out in the Vision
Cast case.

[92] More pertinently, I further find and hold that there was no duty of
confidentiality in the Sub-Contract prescribed and placed upon the Plaintiff
in respect of usage of Main Contract information. In other words, the
allegedly misused documents relied upon by the Defendant are not
confidential in nature. That notwithstanding, I also find that the quality of
confidentiality (if any) has been lost in respect of the Conditions of Main
Contract when there was a copy already in the possession of the Plaintiff
prior to the entry of the Sub-Contract as well as in respect of the notice of
claim where it was actually volunteered and sent to the Plaintiff by the
Defendant which I so hold and find accordingly.

[93] Finally, I find that the Defendant did not adduce any evidence of any
misuse whatsoever by the Plaintiff particularly disseminating the same to
unauthorized third parties.

56
[94] As to the alleged loss suffered by the Defendant, I find that the
Defendant failed to justify its loss of RM1,000,000.00 as claimed such as
demonstrating that it suffered penalty or damages imposed by the MRTC.
In fact, the Defendant did not even call any witness of the MRTC to
establish that the Defendant has been reprimanded for having breached
its confidential information provisions in the Main Contract.

[95] In the premises, I find that this head of the Defendant’s counterclaim
is also without merit.

Summary of Findings

[96] Based on my abovementioned findings, the Plaintiff succeeded in

its sole head of claim for acceleration in the sum of RM100,000.00 only.

[97] However, the Defendant’s heads of counterclaim for liquidated

damages and general damages for late of completion as well as damages
for misuse of confidential information are rejected.

[98] Since the Defendant’s both heads of counterclaim have been

rejected, the Defendant’s set off against the undisputed sums of
RM274,010.00 for the balance of the Plaintiff’s final claim under the Sub-
Contract and RM963,189.16 for the release of 2nd moiety of retention
under the Sub-Contract must accordingly be rejected.

57
[99] It hence follows that the Plaintiff is therefore entitled to the sums of
RM100,000.00 + RM274,000.00 + RM963,189.16 totalling to
RM1,337,199.16.

Conclusion

[100] For the foregoing reasons, I enter judgment for the Plaintiff in the
sum of RM1,337,199.16 with interest at 5% per annum from 6 May 2019
until full realization and costs of RM85,000.00 subject to the usual
allocator. The Defendant’s counterclaim is dismissed.

Dated this 30 June 2021

t.t.

LIM CHONG FONG

JUDGE
CONSTRUCTION COURT 1
HIGH COURT KUALA LUMPUR

58
COUNSEL FOR THE PLAINTIFF: SIVA BALAN SANKARAN
(THARMINI PARAMASIVAM AND GOK CHIA WEN WITH HIM)
SOLICITORS FOR THE PLAINTIFF: TAN SWEE IM, SIVA &
PARTNERS

COUNSEL FOR THE DEFENDANT: NABILAH BINTI DIN (SYARMIN

DALIA KHALEEDA BINTI ABDUL MALIK WITH HER)
SOLICITORS FOR THE DEFENDANT: NATASHA & CO

59