The High Court has dismissed an appeal by contractor Ho Guan Heng, upholding a decision to allow a lawsuit by the estate of the late Haji Abdullah bin Haji Metassim to proceed.
The case centres around delays in a construction project in Kiulap, Mukim Gadong, with the plaintiff seeking BND408,000 in liquidated damages for the delays.
The original lawsuit, filed by the plaintiff, who administers the estate, claims that the contractor failed to complete the project on time. According to the development agreement signed on October 28, 2014, the defendant was to construct a building and complete it within 36 months from the commencement date. Final approvals were obtained on May 12, 2016, setting a deadline for practical completion by November 12, 2019. However, practical completion was only achieved on March 16, 2020, with an occupation permit issued on May 9, 2020. The plaintiff demanded liquidated damages for the delay, totalling BND408,000.
The defendant attributed the delays to stop orders issued by authorities and inclement weather, arguing these constituted force majeure under the contract. A letter from the project architect dated June 15, 2023, supported this claim by approving a 125-day extension.
Represented by Mansur Latif of Messrs Pengiran Izad and Lee, the defendant sought to strike out the plaintiff’s claim, citing the binding nature of the architect’s extension certificate as per Clause 2.7 of the agreement. Alternatively, the defendant argued for dismissal under Order 14A, asserting that the certificate provided a conclusive defence.
However, Nuratikah Omar of Messrs Brahms Omar, representing the plaintiff, challenged this view. She argued that the stop orders were due to the contractor’s failure to comply with safety requirements and negligence, invalidating the claim for extensions. Additionally, the architect’s certificate was issued long after practical completion and after the demand for liquidated damages, raising questions about its validity.
Judicial Commissioner (JC) Edward Timothy Starbuck Woolley on Monday ruled in favour of the plaintiff, stating that the case presented arguable issues that warranted a full trial. He emphasised that striking out a claim under Order 18 should only be done in clear and obvious cases where the claim is unarguable, citing precedence in a case.
JC Woolley noted that the plaintiff was entitled to challenge the architect’s certificate and the circumstances leading to the stop orders during a trial. He also dismissed the defendant’s application under Order 14A, indicating that the issues raised involved substantial evidence that should be examined in court.
The case is set to continue in the High Court, where both parties will present their full arguments and evidence. – Fadley Faisal
