Do you face any of the following frustrations?
ISSUES WITH TENDERS
- Information in the tender documents is misleading or outrightly wrong (Dillingham Construction Pty Ltd v Downs).
- Tender called off after you incurred substantial out-of-pocket expenses for preliminary work (Spencer v Harding).
- Employer awarded contract to a late bidder after tender is closed (JB Leadbitter & Co United v Devon County Council).
- You mis-calculated on your tender bid but employer refused to allow you to withdraw (Macon Works & Trading Sdn Bhd v Phang Hon Chin).
- Employer imposes new terms in the letter of award after issuing you an initial letter of intent and after you have started work (Turiff Construction Ltd v Regalia Knitting Mills).
ISSUES WITH VARIATION AND OMMISIONS
- You carried out additional works which were necessary for performing your contract but the employer now does not want to acknowledge these works as variations (Tan Eng Hoe v Liang Hooi Kiang).
- You carried out variation works based on verbal instructions of the architect but the employer now claims these variations are not authorised (Antara Elektrik Sdn Bhd v Bell & Order Bhd).
- You received an omission order and all the omitted parts were subsequently awarded to your competitor (Carr v JA Berriman Pty Ltd).
- You received an omission order that substantially removes all the profitable parts of the contract and reduces your work to only the most difficult and unprofitable portions (Sir Lindsay Parkinson & Co v Commissioners of Works & Public Buildings).
- You have carried out variation works under a contract with bills of quantities attached but you are unhappy to be paid according to the rates in the bills of quantities because of effluxion of time and fluctuation of building material costs (Thorn v London Corporation).
- You have carried out additional works pursuant to the employer’s instructions but the employer now refuses to pay for these works because your contract was a “lump sum” basis (Sharpe v San Paulo Railway Co).
ISSUES WITH DEFECTS AND SUPPLIES
- Employer claims against you for structural cracks due to earth settlement or withdrawal of moisture in the ground, which are nothing to do with your workmanship (Jennings v Tavener). Mills).
- Employer claims against you for defects even though you have received the certificate of making good of defects (Steven Phoa Cheng Loon v Highland Properties Sdn Bhd).
- Employer claims against you for defects arising after the defects liability period because according to the employer, these defects were “latent” defects and could not have been discovered earlier (UDA Holdings Bhd v Koperasi Pasaraya (M) Bhd).
- Employer claims against you for defects but refuses to allow you to rectify the defects yourself. Instead, employer wants you to pay for the rectification costs incurred to a third-party contractor (William Tomkinson & Sons Ltd v The Parochial Church Council of St Michael & Ors).
- Employer claims against you for materials that are not fit for purpose and not of good quality even though these materials were supplied at the employer’s instructions (Young and Marten Ltd v McManus Childs, Ltd).
ISSUES WITH TERMINATION OF CONTRACT
- The employer terminates your contract halfway through but continues to hold your retention sum even though there will no longer be any certificate of practical completion or defects liability period (ML Sepakat Sdn Bhd v Suria 2000 Sdn Bhd).
Your time for completion has not yet expired but the employer terminated your contract because he is of the view that the progress of works is not fast enough and you are bound to breach the contract by failing to complete in time eventually (PKNS Engineering & Construction Bhd v Global Inter-Dream (M) Sdn Bhd).
ISSUES WITH DELAYS
- You have mobilised your workers and machinery but the site is not ready, as a result you suffer idling costs which the employer refuses to pay (Attorney General of the Falkland Islands v Gordon Forbes Construction (Falklands) Ltd (No 2)).
- You are close to completing the contract but the employer chooses to terminate the contract for delay because according to the employer, “time is of the essence” of the contract (Berjaya Times Square Sdn Bhd v M-Concept Sdn Bhd).
- Your works are delayed but the delay is not entirely due to your fault, because the employer’s agents have not co-operated with you or in some cases, have outrightly hindered your works (Luxor (Eastbourne) Ltd v Cooper).
- Even though delays are not caused by you, the employer insists that you must finish the works within the contracted period of time (Percy Bilton Ltd v Greater London Council).
- How to deal with the employer’s claim for liquidated damages when the circumstances of the case clearly renders it impossible to complete the contract within time (Lian Soon Construction Pte Ltd v Guan Qian Realty Pte Ltd).
- The consultant refuses your application for extension of time even though the works have been disrupted (Syarikat Tan Kim Beng & Rakan-Rakan v Pulai Jaya Sdn Bhd).
ISSUES WITH PAYMENTS
- You are seeking payment for work done but for which no payment certificates are issued (Syarikat Binaan Utara Jaya v Koperasi Serbaguna Sungai Gelugor Bhd).
- Payment certificates have been issued but yet you have not been paid (Hasrat Sedaya Sdn Bhd v Bumihiway (M) Sdn Bhd).
- You received an interim payment certificate but in a subsequent certificate, the consultant revised the payment due to you (Asiapools (M) Sdn Bhd v IJM Construction Sdn Bhd).
- You entered into a “back-to-back” contract and have not been paid because according to your principal, the employer has not paid him (Brightside Mechanical & Electrical Services Group Ltd & Anor v Hyundai Engineering & Construction Co Ltd).
- You have completed all defects but the employer refuses to pay because the consultant has not yet issued the certificate of making good of defects (Jetara Sdn Bhd v Maju Holdings Sdn Bhd).
ISSUES WITH PERFORMENCE BONDS
- In the midst of discussion with the employer on issues arising in your contract, the employer calls upon your performance bond (Satriadesa Corporation Sdn Bhd v Tenaga Nasional Bhd).
ISSUES WITH PROFESSIONALS
- The architect is clearly making decisions that are pro-employer in an unfair manner (Holland Hannen & Cubitts (Northern) Ltd v Welsh Health Technical Services Organisation).
- You wish to claim against the expert who furnished the information in the tender documents which have now turned out to be false or misleading (Bacal Construction (Midlands) Ltd v Northampton Development Corporation).
If you have found yourself caught in any of the above situations, we would like to invite you to a one-to-one consultation with me to explore what you need to prepare, and how you can take definitive steps to remedy the situation. During this time, you must bring along your documents so that we will not be wasting time discussing general queries but we can address specific answers to the issues confronting you.
Don’t worry. I do not charge for this initial consultation and there is no obligation on your part. Regardless whether you engage me or not, I guarantee I will be able to show you the exact steps how to take your case forward.
The reason I refuse to charge for this initial consultation is really very simple. I operate a very lean team, and building and construction contract disputes always involve a voluminous amount of documents. Therefore, to ensure that we can truly deliver the results expected of us, I will only accept a limited number of building and construction contract dispute cases per month. Therefore, whilst you are receiving valuable advice, I on the other hand would also be evaluating your case to determine whether it would be a worthwhile case to pursue.
And I will always tell you upfront if I think your case is not 100% solid.
What will happen during this initial consultation?
- We will firstly go through the salient facts of your situation to understand your current scenario.
- After that, I will review whatever documents you have to show me
- We will then discuss your objectives in contemplating legal action. This is important to ensure that your objectives are realistic and can be achieved.
- I will then discuss your relative strengths and weaknesses from the point of view of a building and construction contract dispute lawyer, pointing out where your case may have deficiencies and how you can overcome them.
- I will also briefly propose a legal approach that will assist you to achieve your commercial objective. Sometimes, the approach can be direct and obvious. Other times, a more strategic approach may need to be taken.