Building contract claims: a comparative study (Scotland, England and Malaysia)

Comparative research is undertaken on certain aspects of standard forms of building contract claims within the framework of Scottish, English and Malaysian laws. This thesis examines 'consideration' and 'jus quaesitum tertio' in contract to provide an alternative to negligence actions in tort for claims arising out of defects in building. Issues pertaining to 'Practical Completion' and 'Final Certificate' in JCT 80, JCT 63 and PAM69 standard forms are studied to settle the difference between the practice in the building industry and the legal expectation. An examination on the validity of 'automatic determination' clause is made and a revision is suggested. An old Scottish case, Arthur de Mornay Bidoulac and others v. James Kidd (Sinclair's Trustee) (1889) 17 R 144, is analysed in this context. Arbitration, being a preferred method of settling disputes, is comparatively analysed in relation to the powers of the court to supervise and hear appeals therefrom. A claim for economic loss in tort relating to defective works is examined in the light of Murphy v. Brentwood District Council [1990] 2 All ER 908. Junior Books Ltd. v. Veitchi Co Ltd 1982 SLT 492, [1982] 3 All ER 201 (HL) is defended as a sound authority for the recovery of pure economic loss by an employer from a third party specialist subcontractor. The English Defective Premises Act 1972 is examined in search of a better approach to the situation in Malaysia. The law relating to prescription and limitation period is analysed. Malaysia still enforces the law disapproved in Pirelli General Cable Works Ltd. v. Oscar Faber & Partners (a firm) [1982] 3 All ER 201 (HL). The work identifies important issues relating to building contract claims and provisions in the laws that need to be addressed and attended to for future development.