CONSTRUCTION LAW (QSB 4414)

The module provides an understanding of the principles of construction laws and its applications. By understanding the basic principle of construction law, the importance of adhering to the specific procedures and notices are emphasized. The next phase is to develop an in-depth knowledge on the application of the law and the remedies available to the parties. Subsequently, students will be able to adopt a systematic approach to analyze disputes and the respective liabilities. Lastly, this module focuses to enhance the students’ knowledge on matters involving contractual claims and its assessment.

TOPICS COVERED:

• Building Contracts – General Principles & Formation of Contract
• The Standard Form of Building Contract
• Collateral Contracts
• Dispute Resolution – Litigation/ Arbitration/Adjudication/Mediation
• Written Documents
• Obligations of parties & QS consultancy agreement
• Breach of Contract – Remedies
• Contractual Claims
• Negligence Claims
• Law relating to payments
• Laws relating to land – National Land Code
• Construction Statutes - UBBL

ASSIGNMENTS DONE:

SEMINAR

TOPIC: Dispute Resolution – Litigation/ Arbitration/Adjudication/Mediation

CASE STUDY

Esso Petroleum Co Ltd v Southport Corp (1956)

What happened:

The defendant’s oil tanker ran aground in an estuary partly due to weather conditions and partly due to carrying a heavy load and a fault in the steering.

The master discharged 400 tons of oil in order to free the tanker.

The oil drifted onto the claimant’s land including a marine lake which it had to close until it had been cleaned at a substantial cost to the claimant.

The claimant brought an action in negligence and nuisance.

The trial judge found for the defendant and the claimant appealed.

It was held that:

Appeal allowed (Morris LJ dissenting), the defendant was liable in negligence and public nuisance.

The Court said on private nuisance:

“In order to support an action on the case for a private nuisance, the defendant must have used his own land or some other land in such a way as injuriously to affect the enjoyment of the plaintiff's land. The ground of responsibility is the possession and control of the land from which the nuisance proceeds. Applying this principle, it is clear that the discharge of oil was not a private nuisance, because it did not involve the use by the defendants of any land, but only of a ship at sea.”

Asiapools (M) Sdn Bhd v IJM Construction Sdn Bhd & ORS (2010)

Facts:

The plaintiff was the nominated sub-contractor to build, inter alia, a swimming pool for a 161-unit condominium in Seremban. 

The defendant, the main contractor had earlier entered into a main contract with the developer (“the employer”), Ng Chee Yew Sdn Bhd, to build the condominium. 

The plaintiff had completed the swimming pool, but has not been paid fully by the defendant, as the employer had not paid the defendant. 

Pursuant to the main contract, the defendant has commenced an action against the employer to recover the sum of RM1,749,762.08. 

Under the sub-contract, the plaintiff had filed the claim in the sessions court for the unpaid sum of RM212,989.25.

Appeal

Parties are referred to in their capacities in the sessions court.

The Kuala Lumpur sessions court had allowed the plaintiff’s claim with costs against the defendant.

The defendant’s appeal to the High Court was allowed with costs.

The High Court made a further order that the judgment sum of RM271,458.29, paid by the defendant to the plaintiff, be returned to the defendant, together with interest at 8% p.a.

Court’s Decision

The plaintiff is then appealed to Court of Appeal.

Court of Appeal agreed to the High Court’s Decision by held that the sub-contractor was not entitled to any progress payment unless the same had been received by the main contractor.

GROUP ASSIGNMENT: