Reflection on Professional Practice II

As a continuation of Professional Practice I, this module focuses on the more important clauses of the PAM Standard Form of Contract 2006 with Quantities. Several issues such as interim payment, extension of time, loss & expense, final account, etc were given priority and discussed during the module.

I realised that in order to fully understand how the contract provisions work, we need to refer to principles of law such as Natural Justice, Principle of Prevention, Benefit of the Doubt and so on, as these principles affect how the contract provisions work. One example is the non-payment of interim certificates. In lieu with the principle of benefit of the doubt, it is only possible to sue the employer on a breach of contract when there are two consecutive non-payments. This principle basically means that if there is an option to assume the good or bad of a party, the good choice shall prevail; The employer shall be assumed to not intend to commit a breach of the contract.

Another major influence to contractual issues is the use of case law. Some cases may establish precedence that are followed suit by future cases. A popular example of this is the case of Selva Kumar a/l Murugiah v. Thiagarajah a/l Retnasamy [1995] 2 CLJ 374. This case is about the principle of Liquidated and Ascertained Damages (LAD) in contracts. Even though the PAM Contracts states the amount of damages owed by the contractor to the client in case there is a delay, the case of Selva Kumar dictates that there is still a need to prove the actual extent of the damage caused by the delay, however this only applies for situations where the damages are easy to prove, and the ascertained damages cannot be more than the LAD amount stated in the PAM Contract. For complicated cases however, the damages need not be proven. 

An interesting point to note is that the recently released KLRCA Form of Contract 2017 Edition attempts to circumvent this court decision by attempting to make the contract an exception to the court decision.

In essence, this module is very interesting to me and I have gained a substantial amount of contractual knowledge.