THAMESA DESIGNS SDN BHD & ORS V KUCHING HOTELS SDN BHD

THAMESA DESIGNS SDN BHD & ORS V KUCHING HOTELS SDN BHD
[1993] 3 MLJ 25
CIVIL APPEAL NO 02-467-91
SUPREME COURT (KUCHING)
DECIDED-DATE-1: 22 JULY 1993
JEMURI SERJAN (BORNEO) CJ, EDGAR JOSEPH JR AND MOHAMED DZAIDDIN SCJJ
CATCHWORDS:
Civil Procedure – Garnishee proceedings – Building contract – Retention money – Delay in completion of contract works due to delay in handing over of site by employer – Validity of final certificate – Right of employer to liquidated damages

Civil Procedure – Building contract – Arbitration clause – Failure to object to recourse to court – Jurisdiction of court

HEADNOTES:
The appellants were the nominated sub-contractors of the judgment debtor under a written contract between the appellants and the judgment debtor in respect of interior decoration works, fabrication, supply and installation of furniture and fittings to the Kuching Holiday Inn. As a result of non-payment for works done, the appellants sued the judgment debtor and obtained judgment for a total of RM320,720.98 which had remained unsatisfied. They then proceeded with garnishee actions against the respondents, the employer of the judgment debtor, to garnish the retention money in the hands of the respondents which was due to the judgment debtor under the contract. The garnishee orders were served on the respondents.

appellants Perayu
nominated sub-contractors sub-kontraktor yang dinamakan
judgment debtor penghutang penghakiman
written contract suatu kontrak bertulis
interior decoration works kerja-kerja perhiasan dalam
fabrication rekaan
supply pembekalan
and installation of furniture and fittings serta pemasangan perabot dan alat perkakas
fittings alat perkakas
non-payment for works done tiada pembayaran untuk kerja-kerja yang telah dibuat
works done kerja-kerja yang telah dibuat
sued menyaman
obtained judgment mendapat penghakiman
which had remained unsatisfied yang masih belum dijelaskan
proceeded with garnishee actions telah membuat tuntutan garnisan
employer majikan
the garnishee orders were served on the respondents Perintah-perintah garnisan itu telah disampaikan kepada responden
were served on the respondents telah disampaikan kepada responden

 

At the trial, the common issue was whether there was any money due or accruing to the judgment debtor from the respondent at the time the respective garnishee orders were served on the respondent. The respondent contended that there was no money to be attached because the retention fund of RM217,607.84 had been utilized to pay for the cost of rectification of defects (RM50,373.10) and for liquidated damages (RM180,000) to account for 36 days’ delay in completion of the works as shown in the final certificate of payment issued by the design consultants. The appellants did not dispute the payment for rectification of defects, but they challenged the validity of the final certificate in respect of the imposition of 36 days’ liquidated damages. The learned trial judge held that the certificate of final completion was valid and binding and therefore there was no money for the appellants to garnish. The appellants have appealed.

trial perbicaraan
the common issue isu yang dipersetujui
whether there was any money due or accruing sama ada terdapat sebarang wang yang perlu dibayar atau terakru (hutang semakin bertambah)
any money due wang yang perlu dibayar
to the judgment debtor kepada penghutang penghakiman
at the time the respective garnishee orders were served on the respondent pada masa perintah-perintah garnisan itu disampaikan kepada responden
RM217,607.84 had been utilized wang sebanyak RM217,607.84 itu telah digunakan
rectification of defects pembaikan kerosakan
challenged the validity of the final certificate Mencabar keesahan sijil penutup pembayaran penuh
challenged mencabar/menentang/mempersoalkan
validity keesahan
valid and binding sah dan mengikat
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