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1 vii TABLE OF CONTENTS CHAPTER TITLE ` PAGE DECLARATION OF THESIS SUPERVISOR S DECLARATION TITLE DECLARATION DEDICATION ACKNOWLEDGEMENT ABSTRACT ABSTRAK TABLE OF CONTENTS LIST OF TABLES LIST OF FIGURES LIST OF ABBRIEVATIONS LIST OF CASES LIST OF APPENDIXES i ii iii iv v vi vii xi xii xiii xv xxi 1 INTRODUCTION Background of Study Problem Statements Objective of Study Scope of Study Significance of the Study 8
2 viii 1.6 Research Methodology Identify Research Issue Literature Review Data Collection Data Analysis Conclusion and Recommendations 10 2 BREACH OF CONTRACT Introduction Statutory Provisions Repudiation Repudiation by Words or Conduct Proof of Repudiation Consequences of Repudiation Anticipatory Breach Fundamental Breach General Principles Rule of Construction Onus of Proof Breach of Fundamental Terms By Statutory Implication Because the Parties 26 Have Explicitly Made it So Because the Court so Construe it Breach by the Employer Failure to Give Possession of the Site State of the Site Extent and Time of Possession Failure to Supply Plans Breach by the Contractor Conclusion 41
3 ix 3 DAMAGES Introduction General Principles Types of Damages General Damages Special Damages Nominal Damages Substantial Damages Exemplary Damages Unliquidated Damages Liquidated Damages Remoteness of Damages The Rule in Hadley v. Baxendale Measure of Damages Mitigation of Damages Proof of Damages Conclusion 55 4 ANALYSIS OF CASE LAWS Introduction Statistical Analysis and Study of Law Reports Law Reports in Relation with 58 Construction Contract in MLJ Court Cases in Relation with 59 Breaches of Contract The Parties Engaged in the Cases Types of Project Involved in Breaches Party that Committed the Breach Types of Breaches Relief Sought Findings of Legal Issues in Relation to Damages Proof of Actual Loss 67
4 x Letrik Bandar Hup Heng Sdn Bhd v. 67 Wong Sai Hong Hock Huat Iron Foundry v. 68 Naga Tembaga Sdn Bhd Standard of Proof Nirwana Construction Sdn Bhd v. 70 Pengarah Jabatan Kerja Raya Negeri Sembilan Darul Khusus & Anor Cross Claims L Grande Development Sdn. Bhd v. 73 Bukit Cerakah Development Sdn. Bhd 4.4 Conclusion 74 5 CONCLUSION AND RECOMMENDATIONS Introduction Summary of Research Findings Objective I: To illustrate the 76 Types of Breaches of Contract that are Currently Fashionable in Malaysian Construction Industry Objective II: To Address the Legal 79 Issues in Relation to Damages 5.3 Problems Encountered during Research Time Constraint Lack of Comprehensive Data Future Researches Conclusion 81 REFERENCES AND BIBLIOGRAPHY 82 APPENDIX A 85
5 xi LIST OF TABLES TABLE NO. TITLE PAGE 4.1 Types of Breaches Relief Sought Types of Breaches that are Currently Fashionable Legal Issues in Relation to Damages 79
6 xii LIST OF FIGURES FIGURE NO. TITLE PAGE 4.1 Court Cases in Relation with Construction Contract The Parties Engaged in the Cases Types of Project Party that Committed the Breach 62
7 xiii LIST OF ABBRIEVATIONS AC All ER ALJ ALR ALJR App Cas B B & S Build LR CA CB Ch Ch App Ch D CIDB CLD DC Const LJ Const LR CP CPD DLR Exch Eq EWHC Law Reports Appeal Cases All England Law Reports Australian Law Journal Australian Law Reports Australian Law Journal Reports Appeal Cases Beavan Best and Smith s Reports Building Law Reports Court of Appeal Common Bench Reports Chancery Chancery Appeal The Law Reports, Chancery Division Construction Industry Development Board Construction Law Digest Divisional Court, England Construction Law Journal Construction Law Reports Law Reports, Common Pleas Law Reports, Common Pleas Division Dominion Law Reports Exchequer Reports Equity Case High Court of England and Wales Decisions
8 xiv FC F & F H & N HGCRA HL HKC HKLR IR KB LGR LJKB (QB) Lloyd s Rep LR LT JP MLJ NS NZLR PAM PWD PD QB TCC SLR Stark WLR WR Federal Court Foster & Finlayson s Reports Hurlstone & Norman s Exchequer Reports Housing Grants, Construction and Regeneration Act House of Lords Hong Kong Cases Hong Kong Law Reports Irish Reports King Bench Local Government Reports Law Journal Reports, King s (Queen s) Bench Lloyd s List Reports Law Reports Law Times Reports Justice of the Peace / Justice of the Peace Reports Malayan Law Journal Nova Scotia New Zealand Law Reports Pertubuhan Arkitek Malaysia Public Work Department Probate, Divorce and Admiralty Division of High Court Queen Bench Technology and Construction Court Singapore Law Reports Starkie s Nisi Prius Reports Weekly Law Reports Weekly Reports
9 xv LIST OF CASES CASES PAGE AA Valibhoy &Sons Pte Ltd v. Banque Nationale de Paris [1994] 2 SLR Ahmad Ismail v. Malaya Motor Company & Anor [1973] 2 MLJ Arvind Coal and Construction Co v. Damodar Vally Corporation AIR 1991 Pat Bath and North East Somerset District Council v. Mowlem Plc [2004] EWCA Civ Bunge Corporation v. Tradax [1981] 1 WLR , 27, 28 Cehave N.V. v. Bremer m.b.h. [1976] 1 QB Compagnie General Maritime v. Diakan Spirit [1982] 2 Lloyd s Rep Davidson v. Gioyne (1810) 12 East Dennis v Sennyah [1963] MLJ Décor-Wall International SA v. Practitioners in Marketing Ltd
10 xvi [1971] 2 All ER Federal Commerce & Navigation Ltd v. Molena Alpha Inc & Ors [1979] 1 All ER , 28 Frank & Collingwood Ltd v. Gates [1983] 1 Con LR Freeman v. Hensler (1900) 64 JP 260 CA 37 Freeth & Snor v. Burr (1874) LR 9 CP Frost v. Knight (1872) LR 7 Exch Gaze (WH) & Sons v. Port Talbot Corporation (1929) 93 JP Hadley v. Baxendale (1854) 9 Exch Hochster v. De la Tour (1853) 2 El & Bl , 29 Hock Huat Iron Foundry v. Naga Tembaga Sdn Bhd [1999] 1 MLJ Hong Kong Fir Shipping v. Kawasaki Kison Kaisha [1962] 2 QB 26 (CA) 22, 26 Hong Leong Co Ltd V. Pearlson Enterprises Ltd (No 2) [1968] 1 MLJ Hosking v. Pahang Corporation (1891) 8 TLR Hunter Engineering Inc v. Syncrude Canada Ltd (1989) 57 DLR (4d)
11 xvii Hunt and Winterbotham Ltd v. BRS (Parcels) Ltd [1962] 1 QB Ibmac v. Marshall (1968) 208 EG 851 4, 34 Industrial & Agricultural Distribution Sdn Bhd v. Golden Sands Construction Sdn Bhd [1993] 3 MLJ 433 at Johnstone v. Milling (1886) 16 QBD 460, , 29 Joo Leong Timber Merchant v. Dr Jaswant Singh a/l Jagat Singh 55 Joseph Thorley Ltd v. Orchis Steamship Co [1907] 1 KB Karsales (Harrow) Ltd. v. Wallis [1956] 2 All ER Lawson v. Wallasley Local Board (1882) 11 QBD 229 4, 31 LEC Contractors (M) Sdn Bhd v. Castle Inn Sdn Bhd [2001] 5 MLJ Letrik Bandar Hup Heng Sdn Bhd v. Wong Sai Hong [2002] 5 MLJ Levison v. Patent Steam Carpet Cleaning Co. Ltd [1978] QB Lim Sew Lan v. Pembangunan Hysham Sdn Bhd [1995] 5 MLJ Lilley v. Doubleday [1907] 1 KB Lombard v. Butterworth [1987] QB527 27
12 xviii Lovelock v. Franklyn (1846) 8 QBD 371; 115 ER , 31 Low Kon Fatt v. Port Klang Golf Resort (M) Sdn Bhd [1998] 6 MLJ L Grande Development Sdn. Bhd v. Bukit Cerakah Development Sdn. Bhd [2007] 4 MLJ Mersey Steel & Iron Co v. Naylor, Benzon & Co (1884) 9 App Cas 434 CA 41 Monarch Steamship Co Ltd V. KarlsHamns Oljefabriker [1949] AC Muralidhar Chatterjee v. International Film Co Ltd 1943 AIR 30 PC 34; [1942] LR 70 IA 35, PC 13 Nirwana Construction Sdn Bhd v. Pengarah Jabatan Kerja Raya Negeri Sembilan Darul Khusus & Anor [2008] 4 MLJ North West Metropolitan Regional Hospital Board v. TA Bickerton & Sons Ltd [1970] 1 WLR Parker Distributors (Singapore) Pte Ltd v. Svenborg [1983] 2 MLJ 26 (CA) 23 Photo Production Ltd v. Securicor Transport Ltd [1980] AC Pontifex v. Wilkinson (1845) 1 CB Raja Lope & Anor v. Malayan Flour Mills Bhd [2000] 6 CLJ Supp
13 xix Reg Glass Pty Ltd v. Rivers Locking Systems Pty Ltd (1968) 120 CLR Rhymney Rail Co v. Brtecon and Merthyr Tydfil Junction Rail Co (1900) 69 LJ Ch 813 CA 30 Robinson v Harman (1848) 1 Ex Robert v. Bury Comissioners (1870) LR 5 CP Ross T Smyth & Co Ltd v. TD Bailey, Son & Co [1940] 3 All ER Russel v. Sa da Bandeira (1862) 13 CB (NS) Schuler (L.) A.G.v. Wickman Machine Tool Sales [1974] AC 235 (HL) 28 SEA Housing Corporation Sdn. Bhd. v Lee Poh Choo [1982] 1 MLJ Seaton Brick and Tile Co Ltd v. Mitchell (1900) 2 F (Ct of Sess) Short v. Stone (1846) 15 LJQB Societie Generale de Paris v. Milders (1853) 49 LT State Trading Corporation of India v. Golodetz [1989] 2 Lloyds s Rep. 277 (CA) 28 Suisse Atlantique v. N.V. Rotterdamsche Kolen Centrale [1967] 1 AC
14 xx Syed Jaafar bin Syed Ibrahim vmaju Mehar Singh Travel & Tours Sdn. Bhd. [1999] 4 MLJ Sze Hai Tong Bank v. Rambler Cycle Co [1959] AC 576; [1959] 3 All ER 182 (PC) 23 Tan Sri Khoo Teik Puat v. Plenitude Holdings Sdn Bhd [1994] 3 MLJ Tham Cheow Toh v. Associated Metal Smelters Ltd [1972] 1 MLJ The Mersey Steel and Iron Co Ltd v. Naylor, Benzon & Co (1884) 9 App Cas Toeh Kee Keong v. Tambun Mining Co Ltd [1968] 1 MLJ Tramways Advertising Pty Ltd. v. Luna Park (NSW) Ltd. (1938) 38 SR (NSW) Trollope & Sons and Colls & Sons Ltd v. Singer (1913) 31 UGS Finance v. National Mortgage Bank of Greece [1964] 1 Lloyd s Rep Universal Cargo Carriers Corp v. Citati [1957] 2 All ER Vitoria Laundry (Windsor) Ltd v. Newman Industries Ltd [1949] 2 KB Wells v. Army & Navy Co-operative Society (1902) 86 IT Wright v. Dean [1948] 2 All ER
15 xxi LIST OF APPENDIXES APPENDIX NO. TITLE PAGE A List of Cases Examined 85
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TABLE OF CONTENTS TITLE DECLARATION DEDICATION ACKNOWLEDGEMENT ABSTRACT ABSTRAK LIST OF CASES LIST OF FIGURES LIST OF ABBREVIATIONS LIST OF APPENDICES
vii TABLE OF CONTENTS CHAPTER TITLE PAGE TITLE DECLARATION DEDICATION ACKNOWLEDGEMENT ABSTRACT ABSTRAK TABLE OF CONTENTS LIST OF CASES LIST OF FIGURES LIST OF ABBREVIATIONS LIST OF APPENDICES i ii iii
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