H&I Niaga Sdn. Bhd.

• Contract to built the Dental Hospital at Sungei Buloh –Form 203A (Revised 10/83)

• Completion date 21.8.2011

• Significant delay in the progress of works

• Several warning letters given – lack of manpower & machinery at site

• Physical progress as at 14.6.2011 is 72% & 15.8.2011 is 75.42% (99days) delay

• EOT given in August 2011 – New completion date 31.12.2011

• Two more warning letters

• Notice of Default -28.11.2011- kerja tidak bersungguh-sungguh- Financial progress 50.3%

• Discussion between SO & Contractor 30.11.2011

- VO’s worth about RM8 million to be paid

- WJP to be shared between the Contractor and NSC

- EOT to be given

- agreed only once all the above done, contractor still

delay work, can terminated the Contractor’s

employment terminated

- Contractor to start work after CNY(mid January 2012)

- Until then Contractor to maintain the site

• EOT approved till 28.6.2012

• 30.12.2011- Warning letter given by SO Representative

• 31.1.2012 – Termination Notice – 51.9% progress

ARBITRATOR’S FINDINGS

• Wrongful termination because of supervening events

• Loss of profit on incomplete works-RM3,731,503.23

• (SO) had a meeting with M&E Consultants-Ahar

• Was told to prepare the drawings and calculation

• MOF has not decided process of appointing the

contractor and the consultants

• MOF –direct negotiation appointed contractor

• Contractor did not want Ahar – appointed their

own

• Ahar claimed in court.

• Ct allowed the Claim . There is proof of meeting

and instruction to Ahar by (SO)

• Contract - Projek Pembinaan Loji Kumbahan dan lain-lain Kerja Berkaitan di Kompleks Penjara Kajang, Selangor Darul Ehsan .

• Removal of unsuitable material more than the depth specified in the BQ. Instruction sought in writing by contractor. No decision given. Proceeded with the works. JKR paid the additional works using a fair rate without issuing Arahan Perubahan Kerja.

• Dispute brought to Arbitration. Claimant claimed for contract rate to be used for the additional works.

• Arbitrator decided it is a variation because there was a tremendous increase in the volume of unsuitable material. Fair rate was determined by Arbitrator.

• Contract to “membina asrama di Stadium Jalan Raja Muda Abdul Aziz”

• Completed – CPC issued 3.8.2012

• Defect Liability period over 3.8.2013

• Certificate of completion & Compliance not issued by Architect Consultant – staircase does not comply with Uniform Building Bylaws

• Final account not done.

• Adjudication claim filed in 2015 for the balance of contract sum.

• Adjudicator allowed the claim. Now repaired by third party

Tidalmarine Engineering

• Project – East Coast Highway Phase-2 – CH26,100 to CH

40,038 – Letter of Award 28.5.2007

• Standard Form 203A – Clause 53- VOP for 5 items

• Increase in cost of construction materials during the

project period

• SPP 3/2008 introduced – VOP for another 6 items &

contractors were offered mutual termination

• Contractor – continue with works

• Numerous warning letters given – delay in works

• 12.2.2010 – Default Notice – suspension works at site

• 11.5.2010 – Termination Notice

Tidalmarine …

• Contractor claimed for wrongful termination – Claimed

RM145 million. Respondent claimed counter-claim for

RM70million

• Issues during arbitration:

- whether the contractor suspended the work at site

- whether the suspension was for reasonable cause

- whether the termination was right

• Arbitrator’s finding

- work was suspended at site

- work was not suspended for reasonable cause

Tidalmarine

• Clause 51(ii) - if he without reasonable cause suspends

the carrying out of the whole or any part of the Works

before completion

• Default Notice – regretfully observed that you suspended

carrying out of the whole or any part of the Works before

completion of the Works and the Works is expected to be

completed on the completion date which has been fixed

on 11.3.2011.

• Question - whether default notice is

defective????????

Tidalmarine

• Default Notice – defective

• Therefore termination defective

• However, Contractor’s claim not allowed – all claims was

not based on Respondent’s wrongful termination

• Counterclaim dismissed.