What in the world is “consequential loss”?

Oftentimes, one would come across the term “consequential loss” in contracts. What in the world is that? For example:

a. A main contractor has entered into an agreement to lease a tower crane. The tower crane […]

Can claims consultants be liable for deficient legal advice?

The world of construction disputes is not only occupied by arbitrators, adjudicators and lawyers, but also encompass claims consultants. Claims consultants come with a myriad of backgrounds and experience. Some claims consultants would be legally […]

Claiming for managerial time to prepare a claim

When a claim is mounted, whether in litigation, arbitration or by way of CIPAA proceedings, obviously there would be hard costs involved. These would include costs paid to consultants, lawyers, Court fees, payments to the […]

Overcoming CP requirements for expense claims

Condition 11.7(a) of the PAM Form (2006) requires the Contractor to give written notice of its intention to claim for additional expenses together with an initial estimate duly supported by calculations within 28 days of […]

When are variations not variations?

A construction contract typically contains a variations clause, allowing for the SO to instruct for variations to the works. These variations can take the form of additions or omissions, and at times may be substantial […]

A.I.s post-CNC and post-CPC?

The Architect has a wide ambit in giving instructions during the subsistence of a construction contract.

Condition 2.1 of the PAM Form 2006 requires the Contractor to comply (mandatorily) to instructions issued by the Architect. Failure […]

Pricing LADs for sub-contracts

How to determine the LAD to be imposed for delays in sub-contracts?

This is a tricky question, because:

a. On the one hand, any delays by the sub-contractor may potentially cause a delay in the main contract […]

Can LAD be more than the subcontract value?

The imposition of LAD in construction contracts is commonplace. The PAM Form stipulates that such LAD is a genuine pre-estimate of loss, and therefore arguably it may fall within the exception of Selva Kumar and Johor Coastal requiring […]

Pakatan Harapan and force majeure

Since GE14, there has been a flurry of announcements by the new Pakatan Harapan (PH) government, almost on a daily basis. These announcements have ranged from feel-good measures (live World Cup, yay!) to major policies […]

Can omissions lead to a reduction of the contract period?

Variations are not only limited to additional or varied works, but oftentimes include omissions as well. When variations in the form of omissions are issued, then the contractor would have enjoyed a savings of time […]

Winning the war for EOTs- the critical path analysis

Delays happen in construction projects.

However, an extension of time is not granted for delays unless it affects the ultimate completion of the work, and not just the particular operation. In the words of the learned […]

Is time of the essence in construction contracts?

Lawyers are so used to say that “time is of the essence”, and eventually we grow to believe that time is of the essence in all contracts where time stipulations are found. But what does […]

The dangers of starting work based on letters of intent

Sometimes, works are commenced based entirely on letters of intent. Presumably, this is because the employer wants the work to start immediately, whilst the details of the formal contract are still being worked out. For […]

Does contractor bear design liability for shop drawings?

The duty to design usually rests with the architect or engineer. However, many contracts require contractors to prepare shop drawings. Who then is liable for design faults- the architect/engineer or the contractor who prepared the […]

The pesky task of co-ordinating design

An architect/engineer appointed to design a building is expected to be responsible for all design works. However, not all design works are carried out by the architect/engineer.

Instead, there would be various parties involved who would undertake […]

The effect of entering into construction contract based on “estimate” costs

What is the meaning of the word “estimate” in a construction contract?

Say a contractor quoted to carry out works and indicated that he estimated his costs to be a certain sum. Would that mean that […]

Is an employer liable for withholding information at tender stage?

Tenders are oftentimes carried out under a short time frame. Additionally, it may not be feasible for tenderers to undertake all the necessary tests required in order to furnish a properly-considered tender bid.

If an employer […]

Payment for preparatory works done before contract

It is quite common for contractors to start work even without signing a contract beforehand. Sometimes, these are actual works, but other times, they are preparatory works. For actual works, even if the contract is […]

Can you sue for losing a tender?

If a project is put out to tender, there is somewhat of an expectation that all tenderers would be afforded an equal opportunity. Unfortunately, a lot of tenders do not specify the criteria by which […]

Post CNC delays- need to maintain current Cl 23.9 in PAM 2006

How to deal with post-CNC delays?

In the celebrated case of Balfour Beatty Building Ltd v Chestermount Properties Ltd (1993), there were variations issued by the architect during the period post-CNC. The contractor argued that the effect […]

PAM Contract Seminar by KL Bar Committee

 

 

I’ll be speaking at a PAM Contract seminar this 24 January- doing my part in training a new breed of construction lawyers for Malaysia. Although organised by the KL Bar Committee, it is open to […]

Direct payments to subcon- a glimmer of light for main con?

On 10.10.2017, the Master Builders Association of Malaysia (MBAM) had their annual conference on the topic of Issues and Remedies relating to Nominated Sub-Contractors. Kheng Hoe was invited to be a speaker and forum panelist […]

Is a contractor bound by a programme that is approved by the architect/engineer?

Programmes are intended to be flexible documents, and not part of the contract documents. That is rightfully the case, because obligations in contracts are supposed to be fulfilled strictly. On the other hand, a programme […]

MBAM conference on issues and remedies related to NSCs

Excited to be one of the speakers in this upcoming conference by MBAM. Honoured to be featured alongside fellow construction litigation and arbitration practitioners. The conference will also feature the current Construction Court judge as […]

IF AN EMPLOYER CAUSES DELAY FOR WHICH THERE IS NO ENTITLEMENT TO EXTENSION OF TIME UNDER THE CONTRACT, WILL THE EMPLOYER STILL BE ENTITLED TO LEVY LIQUIDATED DAMAGES?

Delays in contracts are not always caused by the contractor. Sometimes, architects, engineers or the employer itself may cause the delay. Hence, extension of time clauses provide a mechanism for the completion date to be […]

Why employers should NOT make direct payments to sub-con

It is quite a common occurrence for employers to make direct payments to sub-contractors, circumventing the main contractor. This practice creates a lot of issues for the main contractor concerned, for example, how would the […]

Utilising retention fund for liquidated damages

Can an employer utilise moneys in the retention fund to set-off liquidated damages for delay?

In Thamesa Designs Sdn Bhd & Ors v Kuching Hotels Sdn Bhd, which was an appeal that came before the Supreme Court […]

Difference between aggravated, exemplary and punitive damages

There is oftentimes confusion in the use of the terms “aggravated”, “exemplary” and “punitive” damages. Are these different types of damages, or are they one and the same?

It is helpful therefore, that the Court of […]

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The perils of precision

It’s important to be precise, right? Well, think again!

In a recent Court of Appeal decision of Mammoth Empire Construction Sdn Bhd v Lifomax Woodbuild Sdn Bhd, the Plaintiff claimed for a precise amount of RM1,447,087.65, which […]

Will a claim which fails to link cause and effect necessarily fail?

The proper manner of presenting a claim before a court or arbitrator is to link the cause of delay with any resulting extra cost. However, some contractors shortcut the need to link cause and effect […]

Understanding payments in the Construction Industry

Attached is the power point slides for the topic of Payments which Kheng Hoe presented in the Practical Construction Law seminar for practitioners organized by the Bar Council. If the link is broken, you can […]

Is notice a condition precedent to claim extensions of time?

A substantial amount of dispute in construction litigation and construction arbitration revolves around the issue of extensions of time, which is co-related to the issue of liquidated damages. A common question is whether it is […]

Who is responsible for inaccurate soil reports?

Construction litigation and arbitration very much boils down to one essential question: Who foots the bill? And in this article, we deal with the question in the context of inaccurate soil reports which would translate […]

“Fitness for Purpose” and “Reasonable Skill and Care”- what’s the difference in construction disputes?

In handling construction disputes and arbitrations, one of the common defences raised is that the works rendered or goods supplied were not “fit for purpose”. Another common defence is that the works were not carried […]