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 […]


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 […]

Do You Have What It Takes To Be An Excellent Lawyer?

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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 […]

Staying an adjudication decision under s16 CIPAA

An adjudication decision is always an interim measure, which is enforceable under the provisions of the Construction Industry Payment and Adjudication Act provided it is not stayed, set aside, or the merits of the issue […]

Latest slideshare: Extension of time in Construction Contracts

We have recently posted our latest slideshare on the comprehensive topic of extension of time. Take a look and share it if helpful.


Acceleration of Works in lieu of Extension

Time is money.

This adage is all the more important in the construction industry where every delay is costly.

There is of course the issue of LAD imposed by employers on the main contractors, and usually passed […]

Different types of acceleration of works

Acceleration of works happens when the contractor takes deliberate steps to step up the pace of works. This could be for the reason of making up for past delay, or to reduce the time period […]

Effect of omissions on extension of time

It is a given that contract administrators may issue omissions for contracted works. Of course, any such omission issued must be made bona fide, and not issued for purpose of appointing a third party contractor […]

Three approaches to deal with concurrent delays in construction disputes

If a contractor delays, then he may be subject to pay LAD. If an employer is in default, on the other hand, then the contractor would be entitled to an extension of time, or otherwise […]

The difference between a prospective and retrospective extension of time

Time is money.

More so in the area of construction contracts, where delays are penalised by LAD. It is no wonder then that extensions of time can become thorny issues of dispute in construction.

Extensions of time […]