Contractual Issues on Claim for Loss and Expense in the
Malaysian Construction Industry
Nurul Asyiqin Abdul Razak1, Zulhabri Ismail1,2, a) and Juliana Brahim1
1
College of Built Environment, Universiti Teknologi MARA, Shah Alam, 40450 MALAYSIA.
Institute for Biodiversity and Sustainable Development, Universiti Teknologi MARA, Shah Alam, 40450
MALAYSIA.
2
a)
Corresponding author: zulhabri@uitm.edu.my
b)
nurul.asyiqin.razak@gmail.com
c)
jubrahim@uitm.edu.my
Abstract. Construction claims can be categorized into a few types, and it is important to manage claims and conflict
immediately before they turn into disputes. Claim for loss and expense is one of the popular claims in construction since
it usually occurs when the regular progress of the works was delayed. However, there is always a dispute happened
regarding this claim. Resolving disputes can be expensive and time-consuming. Hence, this paper aimed to evaluate
contractual issues on loss and expense claims in the Malaysian construction industry. This paper examines the causes of
issues arising in the claim for loss and expense. The data collection for the research methodology was through
documentary analysis which is based on litigation cases. Findings show the most causes of issues in the claim for loss and
expense that lead to the dispute are due to three main causes which are contractual, documentation, and procedure. The
suggestion from this paper is to identify the best practices in submitting a claim for loss and expense to minimize disputes
amongst construction players.
INTRODUCTION
Loss and expense claims defined as the rights for contractors to claim for direct loss or/and expenses that they are
entitled to some causes or circumstances where the contractor is not eligible to claim from any clauses in the
condition of contracts [1]. Contractual claims are typically granted to compensate for losses and expenses, liquidated
damages, or extensions of time [2-5]. The increasing complexity and uncertainty in construction projects were
accompanied by a growth in the number of disputes [6]. Furthermore, the construction claims and disputes were
kept on increasing and putting strain on the construction industry [7]. The reasons accounting of disputes occurrence
include inconsistent viewpoints on rights and responsibilities, incomplete contracts, and opportunistic behaviours [89]. In addition, the number and severity of claims and disputes have increased dramatically during the last ten years
[10].
Besides, conflict and claims can result from the improper handling of contracts between clients and contractors.
The client-side contract demands the greatest level of project quality, while the contractor side makes an effort to
complete the task at hand while sticking to its budgetary goals [5]. Despite that, contract documents have been cited
to be one of the sources of construction disputes [11]. Contractors' strict actions during the period of dispute
resolution may bring barriers to smooth project implementation [12]. It is vital to manage claims and conflicts from
the outset before they turn into disputes [13]. Therefore, it is crucial to identify the causes of the issues related to
claims for loss and expense so that it can be manage appropriately in order to minimize the disputes.
OVERVIEW ON CONTRACTUAL ISSUES IN CLAIM MANAGEMENT
Contractually, once the contractors foresee the delay in a project, the contractors should submit an intention for
an extension of time and also claim for loss and expense. Claim for an Extension of Time (EOT) and claim for loss
and expense was two different things which are separated by two different clauses in every standard form of contract.
However, evaluation from previous studies found that all parties tend to experience losses coming from delays in
construction projects [14]. Besides, if the contractors do not realize the chances or recognise claimable event too
late, their percentage of entitlement misses will be significant, resulting in a poor claim management outcome [15].
Furthermore, the contractors encounter challenges in acquiring and employing competent staff to prepare a claim
submission which affects the claim presentation process, perhaps prompting the client to reject the claim [16]. Due
to a tight schedule, the contractors do not have the time to properly concentrate on preparation of claim presentation
[16]. Previous study provides that claims for loss and expense occurrence were due to administrators' instructions,
late information received, postponement, employer’s interference, and/or other employer's default [17]. Claims in
the actual situations had been resolved in duration timing of the final accounting process, whereby the negotiations
between both parties fail, and frequently become disputes, with both parties adopting a legal route as the method to
resolve their differences [17]. Besides, lack of interdependent information hinders the correct division of
compensation claims amongst contracting parties; thus,leading to disputes amongst them [20].
Based on the Asian International Arbitration Centre (AIAC) Annual Report 2019 & 2020, the construction
industry has the biggest percentage of claims presented in administered arbitrations (58%), followed by commercial,
marine, real estate, technology, and corporate conflicts. As claims occur over many different projects, claims
associated to delays are the most well-known, prominent, and popular type of claim [18]. In addition, delays on the
construction site, as well as the claims that result from these delays, constitute the core element of the recent
construction project [18]. Technically, claim for loss and expense is being part of claim that associated to delay.
There is a study by Ali et.al [19] that showed a list of problematic issues gathered from different sources related to
EOT claims which can be linked to claims for loss and expense. Therefore, the data from the EOT problematic
issues was referred to identify the causes of issues related to claim for loss and expense. There are twenty-nine (29)
issues clustered into eight (8) themes derived from previous study [19] as tabulated in Table 1:
TABLE 1. List Of EOT Problematic Issues
No
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
15.
16.
17.
18.
19.
20.
21.
22.
23.
24.
25.
26.
27.
28.
29.
Issues in EOT Claim Management
Too many documents
Lack of adequate contemporary records
Ineffective record keeping system
Unorganized information to prepare claim
Verbal instructions by employer or engineer
No standard format
Incomplete documents
Non-compliance with contract requirements
Poor paperwork by the contractor
Concurrent delays
Inaccessibility of documents when needed
Complexity in determining cause and effect
Lack of communication
Use of unsuitable techniques
Lack of updated programme
Insufficient personnel to prepare claim
Insufficient personnel to assess claim
Lack of experts
No computerized documentation system
In and out of organization personnel
Overdue in retrieving the needed document
Time limit
Lack of timely notifications by contractor
Lack of timely decisions by engineer regarding delays
High cost
Exaggeration of claims by contractor
Poor demonstration/presentation of the impact
Ambiguities
Lack of contract awareness
Themes
Documentation
Contractual
Procedure
Resource
Time
Cost
Presentation
Education
Table 1 shows the list of EOT problematic issues in claim management and is grouped into eight themes. Most of
the EOT claims usually are related to loss and expense claims, hence the problem between these two claims is quite
similar. Table 1 is based on particular issues that need to be handled by the experts while preparing and assessing
claims. It can be concluded that most of the issues were related to the documentation, contractual, and procedure.
Besides, the problematic issues listed in Table 1 also being used to suit with the current study.
RESEARCH METHODOLOGY
This study investigated the causes of issues related to claims for loss and expense by conducting a document
review through doctrinal research. Doctrinal research or library-based research is concerned with the analysis of the
legal doctrines and how it was developed and applied, whereby the data sources are court decisions and appeals [21].
Doctrinal research is an analytical study of existing laws, related cases, and authoritative materials as a whole, on
some specific matter. It can be considered as relatively theory-testing research which endeavours to seek whether
the theory involved within the subject is so far valid or otherwise. Therefore, a systematic doctrinal review was made
to examine and analyse relevant contents before summarising them into conclusive findings to support the aim of the
study. The data collection was conducted by using 'primary data' which is document reviewin relation to construction
law cases from 'reported (MLJ)' and 'unreported (MLJU)' data from 'Malayan Law Journal Report/Unreported' under
Lexis Advance report and Current Law Journal. Legislation delegated legislation and case law were included as
primary sources for doctrinal legal research [22]. A table of litigation cases reported in relation to claims for loss and
expense from 2010 until 2020 was looked into and found twenty- six (26) cases were utilised to affirm the causes of
issues related to claims for loss and expense.
FINDINGS
Based on the causes of issues found through journal/article review, a total of 26 cases related to claim for lossand
expense have been selected for this study to confirm the causes of issues regarding the claim for loss and expense.
These 26 litigation cases are coming from Malayan Law Journal and Current Law Journal from the year 2010 until
2020.
TABLE 2. Summary of The Litigation Cases Reported in Lexis Advance Malaysiaand Current Law Journal In Relation To Loss
And Expense Claim
No
List of Cases
Issues
1.
Sunissa Sdn Bhd v Kerajaan Malaysia & Anor [2020] MLJU 283
Time
2.
Bauer (Malaysia) Sdn Bhd v Hundred Vision Construction Sdn Bhd & Anor [2020]
Contractual
MLJU 543
3.
KL Eco City Sdn Bhd v Tuck Sin Engineering & Construction SDN BHD & Anor
Contractual
[2020] MLJU 435
4.
Taki Engineering Sdn Bhd v Ipoh Tower Sdn Bhd [2019] MLJU 66
Contractual
5.
Kuasatek (M) Sdn Bhd v HCM Engineering Sdn Bhd and other appeals [2018]MLJU 1919
Documentation
6.
Hartajaya-Benteng Timur-Amr Jeli JV Sdn Bhd v Kerajaan Malaysia and another appeal
Contractual
[2018] MLJU 331
7.
Kembang Serantau Sdn Bhd v Ybk Usahasama Sdn Bhd [2018] MLJU 100
Procedure
8.
Jaya Dingin Technology Sdn Bhd v Universiti Teknologi Malaysia [2018]MLJU 1553
Documentation
9.
Marl Jaya (M) Sdn Bhd v Kerajaan Malaysia & Ors [2017] MLJU 1312
Documentation
Procedure
10. YTK Engineering Services Sdn Bhd v Towards Green Sdn Bhd and other applications
Procedure
[2017] 2 MLJU 632
11. Casmet Sdn Bhd v Nte Engineering Sdn Bhd and another suit [2017] MLJU2382
DocumentationProcedure
12. Syarikat Bina Darul Aman Berhad & Anor v Government of Malaysia [2017]MLJU 673
Time
Contractual
13. The Government of Malaysia v Imej Warisan Sdn Bhd [2017] MLJU 1916.
Contractual
14. Pintasia Jaya Sdn Bhd v Kerajaan (Jabatan Kerja Raya) [2016] MLJU 714
Procedure
15. Ahmani Sdn Bhd v Petronas Penapisan (Melaka) Sdn Bhd, [2015] 11 MLJ 32
Documentation
16. Pembinaan Juta Mekar Sdn Bhd v Sap Holdings Berhad (dahulunya dikenali sebagai Shah
Contractual
Alam Properties Berhad) & Anor [2014] MLJU 319
Documentation
17. Exceljade Sdn Bhd v Bauer (M) Sdn Bhd [2013] MLJU 1202
Documentation
18.
Lembaga Kemajuan Ikan Malaysia v WJ Construction Sdn Bhd [2013] 5 MLJ98
19.
Setia Putrajaya Sdn Bhd v High Success Sdn Bhd & Ors [2010] MLJU 2113
20.
21.
22.
23.
24.
25.
26.
K.T.I. SDN. BHD v Syarikat Perumahan Negara Bhd [2010] MLJU 1466
SKS Pavillion Sdn Bhd v Tasoon Injection Pile Sdn Bhd [2019] 1 LNS 1512
Pembinaan Emaskami Sdn Bhd v Hakikat Engineering Sdn Bhd [2019] 1 LNS695
Daya CMT Sdn Bhd v Yuk Tung Construction Sdn Bhd [2018] 1 LNS 920
Universiti Pengajian Sultan Idris v Dama Design & Build Sdn Bhd [2018] 1LNS 2002
UCSI Group Holdings Sdn Bhd v Pembinaan Ikhasas-Merak Sdn Bhd [2018] 1LNS 2249
Lexobumi Sdn Bhd v SK M&E Bersekutu Sdn Bhd [2017] 1 LNS 291
Procedure
Procedure
Contractual
Resource
Contractual
Contractual
Documentation
Time
Time
Documentation
Resource
Procedure
Based on the ligation cases that are listed in Table 2, further findings on causes of issues related to claims for loss
and expense were simplified and tabulated in Table 3. Table 3 is derived from the causes of issues that arose and are
reported in litigation cases. Meanwhile, the case number is stated accordingly to the sequence of the cases as per
Table 2.
Issues Variable
V1
V2
V3
V4
V5
TABLE 3. Findings on Causes of Issues Related to Litigation Cases
Causes of Issues
Case No
Documentation
C5, C8, C9, C11, C15, C16, C17, C21, C24
Contractual
C1, C2, C3, C4, C6, C12, C13, C16, C18,C19, C20
Procedure
C7, C9, C10, C11, C14, C17, C18, C26
Resource
C19, C25
Time
C1, C12, C22, C23
Total No of Cases
9
11
8
2
4
Table 3 shows a few cases related to claims for loss and expense that happened due to several causes. The most
causes of issues related to this claim was coming from contractual causes which was 11 out of 34 cases. Contractual
causes for this study were referred to non-compliance with the contract provisions. It was followed by 9 cases from
documentation and 8 cases from procedure. This showed that most problems that led to disputes were from these
three main causes which were contractual, documentation, and procedure. These findings were in agreement with
previous studies [19]. The difference between this study and previous study [19] just the matter of ranking of the
causes.
DISCUSSIONS
This section discusses clearly the causes of issues related to the claim for loss and expense by selecting four
cases amongst other stated cases mentioned earlier. A systematic doctrinal review was made to examine and analyse
relevant contents before summarising them into conclusive findings. Four selected cases have been discussed in this
section as stated below:
1. Sunissa Sdn Bhd v Kerajaan Malaysia & Anor [2020] MLJU 283.
2. Government of Malaysia v Imej Warisan Sdn Bhd [2017] MLJU 1916.
3. Universiti Pengajian Sultan Idris and Dama Design & Build Sdn Bhd [2018] 1 LNS 2002.
4. Marl Jaya (M) Sdn Bhd v Kerajaan Malaysia &Ors [2017] MLJU 1312.
The first law case analysis is in relation to contractual and time issues between Sunissa Sdn Bhd v Kerajaan
Malaysia & Anor [2020] MLJU 283. Firstly, the plaintiff submitted a full particular of all claims for direct loss and
expense within ninety (90) days upon the issuance of CPC together with the supporting documents. However, the
Court does not allow the plaintiff to claim for overhead cost. In order to be eligible to such a claim, a notice as stated
inClause 44.1 is required for the defendant would not know the plaintiff’s overhead and as such it falls under what is
not reasonably contemplated. Since this case fell beyond reasonable contemplated, the Plaintiff must submit notice
in writing of intention to claim to the defendant within thirty (30) days from the occurrence of any particular event.
Since the notice had not been given with an estimate of the claim based on each day of delay, hence the Court
disallowed the head of claim for Office Overhead of RM6,307,991.58.
Secondly, having held that clause 44.1 (PWD 203) prior notice requirement is confined to a claim for "loss and
expense" not reasonably contemplated, the defendant raised the issue of whether the notice requirement is a
condition precedent or otherwise. The learned counsel for the plaintiff advanced the argument that as the words
"condition precedent" were not used in the relevant clauses in Clause 44.1, Clause 44.2, or Clause 44.3 of PWD 203,
the employer could not have intended that. However, the learned counsel then sought to impress upon this court a
similar wording of the relevant clauses in the PAM 2006 and the CIDB standard form contract where a claim for
"loss and expense" and the requisite notice period is concerned where it is spelt out as a "condition precedent". Since
Clause 44.3 (PWD 203) already spelt out the consequences, then this is considered a condition precedent. Therefore,
the Court had decided to allow the plaintiff's claim for the sum of RM2,988,480.81 being "loss and expense" that
would be within reasonable contemplation, and other claims for other items of the "loss and expense" including
general and special damages were dismissed. Based on the above issues, it is showed that although the party is
entitled to claim under clause loss and expense, that party still needed to understand clearly what is stated by the
clause in the contract and follow the stated procedure and guideline in obtaining the claim. Failing to do so will lead
to the entitlement of the claim dismissal. Besides, the party must know that every clause might have implied terms
which need to be understood before proceeding to take any further action. Misunderstanding the clause will lead to a
dispute between the parties.
The second law case analysis is in relation to contractual issues between the Government of Malaysia v Imej
Warisan Sdn Bhd [2017] MLJU 1916. After a full trial, the High Court Judge allowed the plaintiff's claim and
ordered, inter alia, that the defendant:
i.
pay the plaintiff's late payment interest of RM1,021,932.18 together with interest at 4% per annum fromthe
date of judgment until realization;
ii.
was entitled to impose LAD of 24 days only amounting to RM609,089.52 and not RM685,225.71 and to
refund to the plaintiff the difference of RM76,136.19: and
iii.
dismissed the plaintiff's claim for RM3,420,320.96 for losses and expenses.
Dissatisfied with the court decision, the defendant appealed against the whole of the decision whilst the plaintiff
cross-appealed against part of the decision relating to the late payment interest and deduction of the Liquidated
Ascertained Damages (LAD). The issues that arose for determination, inter alia, were:
i.
whether the plaintiff was entitled to late payment interest under clause 50.4 of the contract; and
ii.
whether the defendant was entitled to impose LAD amounting to RM685,225.17 against the plaintiff.
The lordship accepted the fact that there is no provision in the contract which allows for the imposition of
interest or any other claims for late payment. However, the lordship adduced that clause 50.4 entitled the plaintiff to
claim for loss, expense, interest, or financing charges incurred against the defendant for delay or late payment on
any interim certificate issued after 31 March 2006. It is agreed that the submission of learned Senior Federal
Counsel (SFC) that the computation of the 30 days for the payment of interim certificates is calculated from the date
the interim certificate is issued by the Project Director (PD). As such, the evidence showed that the interim
certificates in question were paid within the 30-day timeline. Accordingly, the question of interest chargeable on late
payment is a non-issue, and a claim for any loss and expense cannot be done. Hence, the decision of the lordship
allowing the plaintiff's claim for late payment interest was set aside.
Referring to the law case above, the plaintiff is entitled to claim for loss and expense if there is a delay in
payment. However, the evidence showed that the interim certificate was paid within the 30-day timeline since it was
calculated from the date the interim certificate is issued by the project director. Therefore, it showed that the plaintiff
did not understand the clause properly before carrying out the works and submitting the claim. Any time indication
stated in the clause should be calculated properly because there are always loopholes in this matter. Wrong
calculation will lead to nowhere because it is clearly stated how to calculate such matter. Other than that, any
payment claim or certificate should be kept and recorded at all times for future reference. The date on the payment
claim or certificate must also be correct and consistent. Numerous respondents indicated that workers at construction
sites may not fully understand the contract, which might lead to the missed potential for claiming additional time
and costs [15]. It is critical to act immediately in matters related to the claim and provide all pertinent information in
a unified document as soon as the problem is identified [23].
The third law case analysis is in relation to documentation issue between Universiti Pengajian Sultan Idris and
Dama Design & Build Sdn Bhd [2018] 1 LNS 2002, whereby the respondent claimed for the loss and expense due
to extension of time (EOT No.2) with the amount of RM90,485.00 during the proceedings at the High Court. It was
because of the delay of the appellant in giving instructions to the respondent. Then, during the proceedings at the
Court of Appeal, the appellant submitted that the learned judge erred by allowing the claims for the EOT since the
respondent failed to submit the details or prove its losses. However, the lordship allowed the claim to proceed after he
was satisfied with all the documentary evidence that had been provided by the respondent by following clause 46
(access for works) which is to notify the respondent and to prove its loss and expense.
The fourth law case analysis is in relation to documentation and procedure issues between of Marl Jaya (M) Sdn
Bhd v Kerajaan Malaysia & Ors [2017] MLJU 1312, whereby the defendant appeal to the court because the
defendant was dissatisfied with the quantum of damages as assessed by the deputy registrar. However, the judge
decided that there was no good reason for him to disturb the quantum of damages as assessed because he was satisfied
that the learned deputy registrar had proceeded on the right principles. Therefore, the defendant should proceed to
make a payment regarding the claim to the plaintiff as already decided by the deputy registrar. The plaintiff is
entitled to claim for EPF, SOCSO, and Insurance under the head of loss and expense under EOT No. 1 because it is
considered as the additional costs incurred during EOT. The plaintiff provided sufficient documents to the learned
deputy registrar such as the progress reports and also the meetings minutes. All the submitted documents raise no
doubt to the learned deputy registrar.
The defendants could have called their very own Q.S if there had been an error of classification or judgment or
assessment but since the Q.S was not called, this Court should not allow doubts to be cast on the integrity and
reliability of the Q.S report on this head of the claim. Besides, the plaintiff is also entitled to make a claim for plant
and machinery under loss and expense claim due to EOT No. 1. The plaintiff provided the formula by using pro-rated
from the sum allocated under preliminaries for the new price that had not been covered in the preliminaries due to
EOT. Other than that, the plaintiff also made a claimed for the idling cost of machinery. The defendant said that it
overlapped with the claim for plant and machinery under EOT No. 1. However, the plaintiff also provided sufficient
documents such as site daily reports and certificates of claim which made the learned deputy registrar satisfied and
allowed the claim to be made under Clause 44 of the contract. This case showed that a complete and well
documentation is really important at any time especially when people kept querying about the relevancy of the
claim. Besides, the understanding procedure in managing documents and submitting a claim is crucial to obtain a
successful claim.
It is crucial for the contractor to carefully draft and generate a proper claim document from beginning to end. In
addition, the claim must be accompanied by all necessary documents in order to describe the issue in a clear,
thorough, and comprehensive manner [24]. It is necessary to prepare the project documentation with the aim of
attaining arguments and written evidence as supporting documents. Contractors should take the initiative to get
adequate written instructions from their clients if the clients do not provide them [7]. Furthermore, Bakhary et. Al
[16] highlighted the need of having a good documentation system and a competent site personnel who can identify
claims as they arise during project execution. Other than that, keeping pertinent project data should be seen as a
crucial component of project monitoring and reporting [16].
FUTURE RESEARCH
It is quite impossible for a contract to run smoothly without any dispute but there will be few possible practices
to overcome the issues on claim for loss and expense. Therefore, the following are some of the potential topics
recommended for future research:
i.
Best practices in submitting claims for loss and expense in order to minimize disputes amongstconstruction
players.
ii.
Impact of non-successful claim application for loss and expense towards small and medium construction
companies.
Generally, the best practices that can be taken to overcome the issues are by having a good understanding on the
contract that being used for the project, prepare and keep the concerned documentation accordingly, and good in
claim management process by following the procedure stated in the contract. All these practices are derived from the
main causes of issues as stated earlier. All parties need to give their cooperation to comply the best practices to
ensure issues related to claims for loss and expense can be minimized from time to time as the process to settle the
dispute in court is quite challenging, and also waste of time and money.
CONCLUSION
In summary, issues related to claims for loss and expense always happened previously until now. Findings show
that the main causes of issues are coming from contractual, documentation and procedure. The causes of issues were
also found to be repetitive and need further action in enhancing the understanding amongst the parties related to the
claim dispute. The most important thing that needs to be considered by each party is to properly understand the
standard form of contract that became the gist of the legally binding contract amongst the parties. If there is a
problem in the future that is related to the work, people will find the contract that binds them as a guideline to solve
the dispute. It is crucial to understand and follow the procedure and guidelines stated in the contract to ensure all the
works can be done accordingly. It also gives an eye opener on how people act when dealing with claim issues in
court. Other than that, every party can refer to this study in minimizing the causes of issues in claim to make sure
each project can run smoothly and not wasting money to attend court session when dispute arise in the future.
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