Kayangan Kemas Sdn. Bhd. v Pembinaan Kery Sdn. Bhd. (WA-22NCvC-452-07/2025)

On 10.12.2025 this Court allowed the Plaintiff’s application for a summary judgment. The Defendant was ordered to pay the outstanding sum of RM5,982,199.58 owed to the Plaintiff and was given time until 31.12.2025 to settlement the said amount in full. Interest of 5% is to run from 1.1.2026 until full and final settlement. It was a straightforward application, so costs of RM5,000 was ordered to paid forthwith by the Defendant, subject to allocator. 27/12/2025 17:02:39 WA-22NCvC-452-07/2025 Kand. 24 2 Factual Matrix [2] The Defendant issued a Letter of Acceptance/Award (LoA) dated 8.5.2018 to the Plaintiff as the main contractor for a project to construct a complex that comprised of a block of 15 storeys with a podium, and a building for depot of the vehicles. The Plaintiff accepted the said award on 17.5.2018.

Both parties agreed that the Agreement and Conditions of PAM Contract 2006 (with Quantities) formed part of the contract between them - Clause 22 of the LoA.

The Plaintiff had completed the works as evidenced by the Certificate of Practical Completion on 20.9.2021. Subsequently, the Interim Certification (Final Payment) No. 41 was issued on 29.7.2024 in the sum of RM6,982,199.58 by KC Tan Architect pursuant to Clause 30 of the PAM Contract 2006 (the Final Certificate).

On 26.7.2024, a meeting was held between the parties and it was mutually agreed that the Defendant was to settle the said outstanding sum of RM6,982,199.58 by way of four monthly instalments commencing from 15.8.2024 to 15.11.2024. This first proposal was formalized in writing vide a letter dated 1.8.2024.

However, there were a series of correspondences between the parties and their respective solicitors to further negotiate the terms of payment of the said outstanding sum. A second proposal materialized on 3 8.10.2024 whereby the Defendant was to pay the amount owed to the Plaintiff by way of nine monthly instalments that was to commence from 31.10.2024 to 30.6.2025.

That fell through so a third proposal was birthed. A letter dated 9.10.2024 from the Plaintiff’s former solicitors whereby the nine monthly instalments were to be made by post-dated cheques which were to be furnished to the Plaintiff before 24.10.2024. But, on 16.10.2024, the Defendant indicated it was not agreeable to the condition of furnishing post-dated cheques to the Plaintiff.

The Plaintiff replied on 18.10.2024 that it was agreeable to the second proposal without the condition of forwarding the postdated cheques for the nine instalments. As such, for the outstanding sum of RM6,982,199.58 due and payable by the Defendant to the Plaintiff, the payment schedule was as follows: Instalment No. Amount (RM) Payment Date 1 250,000.00 31.10.2024 2 250,000.00 30.11.2024 3 250,000.00 31.12.2024 4 250,000.00 31.1.2025 5 1,196,440.00 28.2.2025 6 1,196,440.00 31.3.2025 7 1,196,440.00 30.4.2025 8 1,196,440.00 31.5.2025 9 1,196,439.58 30.6.2025 TOTAL 6,982,199.58 4 [9] Failure by the Defendant to comply with any of the nine instalments shall result in the full outstanding balance of RM6,982,199.58 being due and recoverable by the Plaintiff immediately (Settlement Agreement).

Pursuant to this Settlement Agreement, the Defendant had made payments in respect of the first, second, third, and fourth instalments which totaled to RM1,000,000.00.

Before the fifth instalment was due, the Defendant proposed to the Plaintiff on 26.2.2025 a revised twelve-month instalment plan commencing from 31.5.2025 to 30.4.2026 to settle the balance of RM5,982,199.58.

The Plaintiff found that an unreasonable variation of the Settlement Agreement, so the Plaintiff rejected the variation on 28.2.2025. The Defendant was reminded to comply with the Settlement Agreement. Payment of the fifth instalment by 28.2.2025 was expected or the Plaintiff would enforce the default clause of the Settlement Agreement.

The Defendant defaulted. The fifth instalment or any other instalment for that matter was not paid to the Plaintiff. Assessment of Arguments of Parties [14] The Defendant raised various purported issues regarding the Plaintiff’s works. However, this was not raised at all after the issuance of the Certificate of Practical Completion or when negotiations for the 5 settlement of outstanding amount were discussed whether between the parties or through their respective solicitors.

Moreover, the Defendant’s conduct in actively having participated in the settlement terms of payment, superseded any contended dissatisfaction. The Defendant is bound by the Settlement Agreement and must make good its contractual obligations.

The fact that there was the Settlement Agreement and that the Defendant was bound by it were not disputed by the Defendant.

This Court found the Defendant’s arguments that summary judgment ought not be granted as there were pending negotiations or rather that the negotiations were still on-going untenable. This Court found that the Settlement Agreement was concluded by both sides. Particularly so when the Defendant’s own conduct - in having paid not one but four instalments show without a doubt that the negotiations and agreement had been concluded.

This Court sighted the relevant multiple express agreement of the Defendant with regards the payment for the outstanding sum owed to the Plaintiff. The Defendant is estopped from raising issues on so-called defects when it did not feature at all during talks of settlement. This was most definitely a case where summary judgment is most appropriate.

There are no triable issues in the matter.

The following authorities were considered by this Court in determining this application: • Multi-Purpose Finance Bhd v Tan Sri Dato Ting Pek Khiing [1998] 7 MLJ 229; [1998] 4 MLRH 802 • Puncak Alam Housing Sdn Bhd (formerly known as Bukit Cerakah Development Sdn Bhd) v Menta Construction Sdn Bhd & Anor [2014] 1 MLJ 287; [2013] 3 MLRA 574 • CJ Century Technology Sdn Bhd v Axisjaya Sdn Bhd & Anor [2020] MLJU 2086; [2020] MLRHU 1652 • Tong Ah Poo v Jasin Construction Development (M) Sdn Bhd [2013] MLRAU 260 • PVT Enginering Sdn Bhd v Agibs Engineering & Construction Sdn Bhd & Anor [2025] CLJU 1108 • Teknojaya Construction Sdn Bhd v Telliana Plantations Sdn Bhd [2016] MLJU 1486 • Ching Yew Chye & Ors v Pavitar Singh a/l Manjeet Singh & anor [2018] 10 MLJ 612; [2017] MLRHU 1388 • National Company for Foreign Trade v Kayu Raya Sdn Bhd [1984] [1984] 1 MLRA 190; [1984] 2 MLJ 300; [1984] 1 CLJ (Rep) 283 • Cempaka Finance Bhd v Ho Lai Ying (trading as KH Trading) & Anor [2006] 2 MLJ 685 • Bank Negara Malaysia v Mohd Ismail & Ors [1992] 1 MLJ 400; [1992] 1 MLRA 190; [1992] 1 CLJ (Rep) 14 • Malaysia Airports Sdn Bhd v APFT Land Sdn Bhd [2018] 10 MLJ 257; [2018] MLRHU 1018 7 • Charles Greenier Sdn Bhd v Lau Wing Hong [1997] 1 CLJ 625; [1996] 2 MLRA 188; [1996] 3 MLJ 327; [1996] 3 AMR 3533 • Liebherr Sales Kluang Sdn Bhd v Zhongji Construction Sdn Bhd [2025] MLJU 257 • Order 14 Rules of Court (ROC) 2012 DATED 26 DECEMBER 2026 ROZ MAWAR ROZAIN JUDGE HIGH COURT OF MALAYA KUALA LUMPUR For the Plaintiff: Wilson Ho together with Izyan binti Nazim [Ho Partnership & Neoh] For the Defendant: Nur Syahirah Mohamad Taib [B H Gan Nor & Kim]