Civil Procedure - Material Facts

Case: Excel Cubic Resources Sdn Bhd v Panzana Enterprise Sdn Bhd [2023] MLJU 2621
EXCEL CUBIC RESOURCES SDN. BHD. (MALAYSIA)

Registered No. : 1010785W / 201201026295
PANZANA ENTERPRISE SDN BHD

Registered No. : 0083573P / 198201003827
Identify the following:

1. Parties
2. Material facts that establish the cause of action
3. Jurisdiction of the court
4. ⁠Reliefs
5. ⁠The defence by the defendant
Parties 1. The Plaintiff in this case is a incorporated company in Malaysia and registered address at C-6-2,
Megan Avenue 1, No. 189, Jalan Tun Razak, 50400 Kuala Lumpur and a business address at No. 28,
Jalan Indah 1/6, Taman Universiti Indah, 43300 Seri Kembangan, Selangor Darul Ehsan.
2. While the Defendant in this case is the main contractor for the project known as “Pembinaan Jalan
Pintas Rawang Bagi Mengatasi Kesesakan Lalulintas Di Bandar Rawang Secara ‘Design And
Build’: Jajaran Alternatif Yang Melalui Taman Warisan Negeri Selangor (Elevated Structure)” and
the company is registered at Tingkat 11, Menara Manulife RB, Jalan Gelenggang, Damansara
Heights, 50490 Kuala Lumpur
Material Facts
3. According to the Letter of Award (LoA) dated on 30/1/2013, the defendant awarded the sub-contract
for Pavement Works - Alignment B and Treatment To Existing Road project to the Plaintiff for the
sum of RM2,109,806.50.
4. Based on the Clause 2.1 LoA, the period of the sub-contract for the works is three months, starting
from 1/12/2013 until 28/2/2014.
5. In Clause 1.2 LoA, the Plaintiff’s scope of works includes :
Terms; plead that payment should be made in 45 days, the exact term, then default
of payment.
Cost of the project; justify why they did the additional works, the basis of entitlement.
+ payment by the defendant.
a. Provision of preliminaries.
b. New pavement works.
c. Treatment of existing roads2wq
d. Other associated works.
6. Certificate of Practical Completion (CPC) dated 26/6/2018 was agreed to be issued by the
Defendant to the Plaintiff on 12/7/2018, certified the works were completed on 21/11/2017.
7. On 30/10/2015, the Plaintiff claimed that the project had been completed, later there was a
remeasured by the Defendant on 17/1/2020 with the values of RM 3,242,241.10 as stated in
Defendant’s Statement of Final Account.
8. Unfortunately, the Defendant failed to make payment within 45 days from the date of the Interim
Payment Certificate, which breached the Clause 3.1 of the LoA, which stipulated,
a. “3.1 You shall submit a detailed claim in a format acceptable to us not later than seven (7)
days before the date of monthly valuation to be verified and approved by the Project
Manager. All approved interim payments, subject to retention, shall be paid to you within
forty five (45) days commencing from the date of valuation duly endorsed by Project
Manager”
prepare contract, letter of award, other relevant docs to be in exhibit.
Jurisdiction of IN THE HIGH COURT OF MALAYA AT KUALA LUMPUR

(CIVIL DIVISION)
the court
More than one mil, jurisdiction of HC
CIVIL SUIT NO : WA-22C-55-07-2020
Reliefs Therefore, the Plaintiff humbly prays from this Honourable Court for the following
a. The payment of the balance outstanding amount to RM 1,335,848.23.
b. Cost of actions
c. Any order, direction or other relief whatsoever as this Honourable Court deems just and reasonable.
Defence by the The Defendant claimed that the works that were carried out was within the Plaintiff’s original scope of
Defendant work under LoA and no variation works were instructed by the Defendant.
- Plaintiff contended the scope and the type of works under the LoA was changed, thus requiring remeasurement by the
Defendant. Plaintiff then claimed to complete the work 30/10/2015, but Defendant failed to make payment within 45 days
from the date of the Interim Payment Certificate (IPC) No.9, thus breaching Clause 3.1 of the LoA.
- Defendant imposed LAD against the Plaintiff from 1.3.2014 until 21.11.2017 for failing to complete the works within the
agreed sub-contract period

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Case: Excel Cubic Resources Sdn Bhd v Panzana Enterprise Sdn Bhd [2023] MLJU 2621

EXCEL CUBIC RESOURCES SDN. BHD. (MALAYSIA)

PANZANA ENTERPRISE SDN BHD

Identify the following:

Heights, 50490 Kuala Lumpur

from 1/12/2013 until 28/2/2014.

5. In Clause 1.2 LoA, the Plaintiff’s scope of works includes :

b. New pavement works.

c. Treatment of existing roads2wq

d. Other associated works.

remeasured by the Defendant on 17/1/2020 with the values of RM 3,242,241.10 as stated in

Defendant’s Statement of Final Account.

Jurisdiction of IN THE HIGH COURT OF MALAYA AT KUALA LUMPUR

CIVIL SUIT NO : WA-22C-55-07-2020

a. The payment of the balance outstanding amount to RM 1,335,848.23.

agreed sub-contract period

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