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Principle
Reviewed by Goh Hweh
Tze
Bhd, the prevention principle still applied in Malaysia when there had
extension on time provision.
This is because superintending officer (SO) refused to grant the
extension on time to the contractor.
Hence, the prevention principle is still usable in Malaysia since that
are people unwilling to follow the term in the contract.
In Malaysia, prevention principle is still importance although the
contract has adequate extension on time provision. This is for the
fairness toward both of the contractual parties.
Referred to the Malaysian case, it seems that as long as the extension
of time (EOT) does not issue accordingly, even the contract provide
extension of time provision, the prevention principle can be enlivened.
In the case of SMK Cabinet v Hili Modern Electrix [1984] VR 391 and the case
of Rapid Building Group v Ealing Family Housing Association (1984) 29 BLR
5, the courts held that include any act of employer will trigger the prevention
principle.
On the other hand, Act of employer that will trigger the prevention principle
does not have to be a breach of the construction contract. Oppositely, the
action that trigger the prevention principle is entirely expected or allowed
event (Sharpe Pritchard, 2015) for example increase the work load.
However, the decision was opposite in the case of Balfour Beatty Building Ltd
v Chestermount Properties Ltd (1993) 62 BLR 27. In this case the Court held
that the variation order could not destroyed the liquidated damages regime.
It can be concluded that the extent of action of the employer that would
trigger the prevention principle is still unclear until now. But generally the
extent of the employers act that would enliven the prevention principle is
very wide.
Conclusion
Although the prevention principle is a long established England
common law doctrine, this principle is still useful in Malaysia.
Generally, the extent of the employers act is very wide to apply
prevention principle.
Lastly, the prevention principle will not apply even an extension
of time did not granted to the contractor. This occurred when
the contractor did not successfully claim the extension of time
and the contract requires the contractor to give notice to claim
extension of time as a condition precedent.