Pandito Minang

Dilapiek sabosar kuku dibontang saluas alam jiko hilang di cari jiko hanyut dipintas jika tenggolam di solam jiko jauh dihimbau jiko dokek digamit sauntai salam sajambak kato minum makan pinto dihalalkan dogup bicaro terlanjur kato jari sepuluh den susun maaf jua di pinto

QSs Wanted

The Royal Institution of Chartered Surveyors (RICS) in July reported that QSs have been added to the UK Home office list of professionals that are facing skill shortages. The profession is now on the national shortage occupation list. This move is hoped to allow UK firms to recruit skill practitioners from other countries.

Recent RICS research revealed there are around 6,500 QS vacancies across the UK in January 2007, and 49% of this were unfilled for more then 6 months and 35% for mote than 12 months. This shortage will be around for at least until 2012 as the country is preparing facilities for the Olympics and other regeneration projects.

With QSs on this list, it will be easier for foreign professionals to gain visas to enter and work in the UK.

Malaysia also appear to be facing QS shortages. While a small numbers have applied and gone to wok in the UK, Ireland and other countries, the biggest attraction are from contractors who have secured jobs in the Arab and Gulf countries who offer salaries never seen by local QSs before.

I wish I was younger so I can at least experience working overseas for longer periods.

Quantum Meruit

My students asked me what is meant by quantum meruit payments. Simply pu it means amount deserved. It generally applies to claims for a reasonable amount reflecting the cost of carrying out the works or providing goods or services or both.

A quantum meruit claim cannot be made if there is a contract between the parties to pay an agreed amount. Quantum meruit arise where parties have failed to agree to a price, or where a party have carried out work in the reasonable expectation of a contract being formed, but where agreement have never been reached as in cases of design and built work based on letter of intent. The latter situation is often referred to as falling within the law of restitution, or the doctrine of unjust enrichment.

The law of restitution ensure payment of reasonable price for goods or services rendered on circumstances where it is unjust to allow one party to be enriched at the expense of the other, and where the goods or services have been freely accepted.

The issues in quantum meruit can be highlighted in the recent case of Mowlem vPHI Group Ltd
where it was held that also Mowlem did supply materials to PHI but since these materials did not meet the specification ane were subsequently rejected, their claim should fail.

Wrongful Termination of Professionals

The star of 30th August 2007 reported the Federal Court decision in allowing the appeal of Arkitek Tenggara Sdn Bhd against developer Mid Valley City Sdn Bhd.

The facts of the case were were that in April6, 1984 Akitek Tenggara (AT) were appointed by MVCSB for a proposed comprehensive development opn 5 lots of land at Jalan Penghulu Mat, Kg Abdullah Hukum, KL. Their services were terminated in November that year. It claimed that the termination were unlawful as it was neither in breach of an express term or implied term of the agreement with the developer. Thery claimed professional fees and damages for wrongful termination of its services as an architect, and a breach of a contract.

MVCSB grounds for terminating was that the project had been aborted and it pleaded that its right to terminate the contract was implied by law. It also said that the letter of appointment had implied that the architect can be terminated if the project was aborted or delayed.

In December 1988 MVCSB wrote to LAM seeking assistance in seeking a letter of release from AT as well as to arbitrate for the fees amount. A month later LAM replied and advised MVCSB that if it really intended to terminate the architect's services, it should write a letter to AT clearly stating its intent.

In May 1999 the KL High Court awarded AT RM7.7m in fees due and damages and loss of profit. Unhappy, MVCSB appealed and in 2005 the Court of Appeal overturned the High Court ruling. AT appealed to the Federal Court and Justices Abdul hamid Mohamed, Abdul Aziz Mohamad and S Augustine Paul unanimously allowed the appeal.

Whatever the gounds of the ruling, the morale here is that work done must be paid, even if you want to abort the project. Time and money spent must be reimbursed.

The application of liquidated damages

A recent judgement in the English Court of Appeal that I came across presented an interesting view especially to practising contract managers in Malaysia. The case is The Bath & North East Somerset District Council v Mowlem, CA 20February 2004. The issue in question is liquidated and ascertained damages must for all purposes be treated as an adequate measure of damages in the event of a delay.

The facts of the case are as follows: The B&NESDC undertook the restoration of a hot spring spa building in Bath for use as leisure and health facilities. The work was given out to Mowlem and were expected to be completed in 2002.Unfortunately that did not occur. By mid 2003 problems appeared in the paint coating applied to the pools. The pool itself was leaking. The council attributed this to Mowlem's poor workmanship. The contractor responded that the default lay elsewhere, in inadequete design or poor specifications or inappropriate choice of materials.

Subsequently the contractor were instructed under clause 8.3 to remove all paint finishes. This was resisted by the contractor contending that the instruction should be under clause 13 and that such work should be treated as a variation. They refused to carry out the instruction under clause 8.3. The Council stood its grounds and gave notive under clause 4.1.2, that is if Mowlem did not comply within 7 days, they would employ others to carry out the work and the costs be charged to Mowlem's account.

When the new contractor wanted to carry out the work, they were denied access by Mowlem. The Council then went to the courts for an injunction restraining Mowlem from denying the alternative contractor access to the site, and they successfully got the order.

In granting the Council the injunction, judge Seymour QC was unimpressed with Mowlem's stand that the situation was beyond testing. Mowlem also pointed out that the contract contained provision for LAD at 12,000 sterling pounds per week and if it were proved in the long run that they were at fault, then the Council would be adequately compensated by the payment on those damages for the delay period.

The Council accepted that it is bound by the provisions of the delay, but claimed that its true loss would be considerably be higher if the project were to be stuck whilst the disputes are being resolved. There could have been an indefinite stalemate and they would suffer significant loss and damage which is in excess of the LAD stated. They also contended that there would be a negative effect on economic regeneration within the area and public confidence on the council.

Judge Seymour in granting the injunction agreed with these propositions so did the Court of Appeal. The LAD provisions represented a cap on the recoverable damages the Council could obtain in the event of a delayed completion and this may not be a fair measure of likely loss suffered by the Council. The Court held that Mowlem committed a breach of contract in refusing to permit the council to appoint its own contractors to carry out the paint removal works. The agreement on LAD was not an agreed price to Mowlem to commit breach of contract.