Defence of abatement for defective works

Defective works are one of the major issue in the Malaysian construction industry which have been the main concerned by the industry players, especially the employer. Although everyone in the industry is aware of this problem, the defective building works are still unpreventable and cause a lot of c...

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Main Author:	Kiprawi, Mohamad Fairuz
Format:	Thesis
Language:	English
Published:	2009
Subjects:	HD28 Management Industrial Management
Online Access:	http://eprints.utm.my/id/eprint/12542/6/MohamadFairuzKiprawiMFAB2009.pdf
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spelling	my-utm-ep.125422017-09-17T05:44:47Z Defence of abatement for defective works 2009-11 Kiprawi, Mohamad Fairuz HD28 Management. Industrial Management Defective works are one of the major issue in the Malaysian construction industry which have been the main concerned by the industry players, especially the employer. Although everyone in the industry is aware of this problem, the defective building works are still unpreventable and cause a lot of claims and litigation in the industry. In the context of construction law, the little known common law right of abatement can provide an employer with the entitlement, by way of defence to a contractor’s claim, to reduce sums otherwise payable to contractors by asserting that the sum claimed has not been earned. A typical example arises in circumstances where an employer asserts that the value of works claimed by a contractor should be reduced on account of defects in those works. To date, abatement has not achieved the same status as the similar and inter-linked defence of set-off. This common law right to abate will provide an alternative to the employer as a defence for claim for defective works. Unlike set-off, abatement is a common law rights which can be used by all the parties in the industry without having to serve any early notice or need to be stated clearly in the conditions of contract. In view of the above, this study has been conducted and the data are collected using Lexis-Nexis database. Subsequently, related cases are gathered and analysed. There are three main principles of abatement and one principle on measure of damages in abatement has been indentified. Judges will depend on the facts in every single case to award damages based on the principle of abatement. 2009-11 Thesis http://eprints.utm.my/id/eprint/12542/ http://eprints.utm.my/id/eprint/12542/6/MohamadFairuzKiprawiMFAB2009.pdf application/pdf en public masters Universiti Teknologi Malaysia, Faculty of Built Environment Faculty of Built Environment Brewer, G. (2006). “Legal Case Study: The defence of abatement”. Contract Journal, Retreive 15 July 2009, from http://www.contractjournal.com/Articles/2006/11/01/52679/legal-case-studythe- defence-of-abatement.html. Daniel Atkinson (1999). “Defects”Retreive 15 July 2007, from http://www.atkinsonlaww. com/ cases/CasesArticles /Articles/Defects.htm Dolan, S. (2007). “The Common Law Defence of Abatement : A Change of Direction” . Retrieve 18 July 2009 from http://www.mhc.ie/news-- events/legal-articles/220/. Greg Brownlee (2009), “ Understanding The Rule Of Abatement.” Retrieve 18 July 2009 from http://www.cnplus.co.uk/hot-topics/legal/understanding-the-ruleof- abatement/5204633.article Herber Smith (2009). “Set-Off and Abatement Under International Construction Contract” Retrieve 18 July 2009 from http://www.herbertsmith.com/NR/rdonlyres/2FE9904E-2AE1-4FE5-A615- 4777F206A298/11396 /Newsletter4EJune2009.pdf John Parris (1993). ”Construction Law Digest”. BSP Professional Books. Oxford. Kevin Barrett (2008). “Defective Construction Work and The Project Team.” Wiley- Blackwell. United Kingdom Lim Chong Fong, (2004). “The Malaysian PWD Form of Construction Contract.” Sweet & Maxwell Asia, Selangor. Murdoch, J. and Hughes, W. (1992). “Construction Contracts Law and Management.” E & FN Spon, Great Britian. Neil F. Jones (1991). “Set-off In The Construction Industry.” Blackwell Science, United Kingdom Silver, R. (2008). “Abatement, Set-Off and Counterclaim – What’s the Difference? ” Retrieve 2 August 2009 from http://www.silver-shemmings.co.uk/ construction-law/abatement-set-off-counterclaim.asp. Simon JA Tolson (2004). “ Payment, Abatement and Set-Off” Retrieve 2 August 2009 from http://www.fenwickelliott.co.uk/files/docs /articles/html/ payment_abatement_setoff.htm Sundra Rajoo, “The Malaysian Standard Form Of Building Contract (The PAM 1998 Form).” Malayan Law Journal Sdn. Bhd, Kuala Lumpur. Wong Bi Xia (2009).”Measure Of Damages For Defective Building Works.” Universiti Teknologi Malaysia. Tesis Msc.
institution	Universiti Teknologi Malaysia
collection	UTM Institutional Repository
language	English
topic	HD28 Management Industrial Management
spellingShingle	HD28 Management Industrial Management Kiprawi, Mohamad Fairuz Defence of abatement for defective works
description	Defective works are one of the major issue in the Malaysian construction industry which have been the main concerned by the industry players, especially the employer. Although everyone in the industry is aware of this problem, the defective building works are still unpreventable and cause a lot of claims and litigation in the industry. In the context of construction law, the little known common law right of abatement can provide an employer with the entitlement, by way of defence to a contractor’s claim, to reduce sums otherwise payable to contractors by asserting that the sum claimed has not been earned. A typical example arises in circumstances where an employer asserts that the value of works claimed by a contractor should be reduced on account of defects in those works. To date, abatement has not achieved the same status as the similar and inter-linked defence of set-off. This common law right to abate will provide an alternative to the employer as a defence for claim for defective works. Unlike set-off, abatement is a common law rights which can be used by all the parties in the industry without having to serve any early notice or need to be stated clearly in the conditions of contract. In view of the above, this study has been conducted and the data are collected using Lexis-Nexis database. Subsequently, related cases are gathered and analysed. There are three main principles of abatement and one principle on measure of damages in abatement has been indentified. Judges will depend on the facts in every single case to award damages based on the principle of abatement.
format	Thesis
qualification_level	Master's degree
author	Kiprawi, Mohamad Fairuz
author_facet	Kiprawi, Mohamad Fairuz
author_sort	Kiprawi, Mohamad Fairuz
title	Defence of abatement for defective works
title_short	Defence of abatement for defective works
title_full	Defence of abatement for defective works
title_fullStr	Defence of abatement for defective works
title_full_unstemmed	Defence of abatement for defective works
title_sort	defence of abatement for defective works
granting_institution	Universiti Teknologi Malaysia, Faculty of Built Environment
granting_department	Faculty of Built Environment
publishDate	2009
url	http://eprints.utm.my/id/eprint/12542/6/MohamadFairuzKiprawiMFAB2009.pdf
_version_	1747814940379447296

Defence of abatement for defective works

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