Defence of abatement for defective works

Abstract

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.