Sir,

After going thru the contractors letter, below is my point of view:-

1) Intro/ Observation

In this case there is no doubt that **** as the client and consultant as the agent has
failed to administer the contract in a prudent manner. Hence, the client has very
little or no concrete options left as when the completion date becomes inapplicable
due to the SO failure to grant EOT or issuing Certificate of Non Completion
accordingly. Time is often said to be at large. The idea which the phrase appears to
convey is that there is no set time for completion and the contractor has now
obligation to complete in a reasonable time. The question of what is a reasonable
time is a question of fact and it is to be judged in the light of all the surrounding
circumstances and also for the courts to decide.

As discussed earlier, I will be only providing general solutions on your query due to
insufficient information and facts provided by yourself.

2) Solutions 1

After analyzing the facts and referring some books, I now list down the solutions:-

Solution 1

As we know EOT clause is provided in a contract for the benefit of the Government/
Client. Referring to case Amalgamated Building contracts Ltd vs Walthon Holy Cross
urban District Council (1952), the contractor applied for EOT but the architect only
approved the EOT after the completion of the overall works. The contractor opposed
by saying the Architect must approve the EOT within the construction period and
not after. The courts decided that an retrospective (terkebelakang) EOT is allowed
but only on neutral events. Under the JKR203/203A (10/83) standard form of
contract some of the neutral cases are 43 (a), (b), (d), (h) (please choose
accordingly)

Lord Denning:-

They asked the architect for an extension and he did not grant it at first.Later on
the architect allowed them for the extension. He allowed it, indeed, after the date of
completion, but I dont see that they can
say there is anything invalid.

Furthermore Lord Denning;-

I would also observe that on principal there is a distinction between cases where
the cause of delay is due to some act or default of the building owner, such as not
giving possession of the site in due time, or ordering extras, or something of that
kind. When such things happened the contract time may well cease to bind the
contracts, because the building owner cannot insist on a condition if it is his own
fault that the condition has not been fulfilled.

Nevertheless, if the EOT reasons are due to the architect/client fault then the EOT
must be issued within the construction period.

One important reminder is, despite this solution the contractor still can disputed
your retrospective EOT and take the client/SO to arbitration. Please be ready for it
sir and please let the client know his risks on this option.

3) Solution 2

Another solution is as time is already at large due to breach of time obligation. One
way to deal with it is to make time is of essence again. Below write up by Michael
Patrick OReilly in his book Principles of Construction Law explains:-

In cases involving the sales and goods, time has often been held to be of essence.
But the courts have been unwilling to treat time as being the essence in
construction cases. The different in approach is, no doubt, due to the fact that if a
sale of goods contract is terminated, the goods can readily be returned, while this is
not so in the case of a building which automatically becomes the employers
property because it is fixed to his land. If time were of essence, in a construction
contract, the employer could terminate the agreement if completion was just one
day late without paying the builder; this unjust result is one that the courts
naturally, wish to avoid.

Although it appears that it is generally to be presumed in construction contracts

that time is not of the essence, the courts have allowed the employer to make time
of the essence by service of a notice on the contractor, following which he will have
a reasonable time to comply. If the contractor still fails to comply with a reasonable
time obligation, the employer may treat the contract as being at an end and refuse
further performance. Time may thus be made of the essence by reasonable notice
even where it was not of the essence at the time of making the contract.

In other words you can try to issue a notice to the contractor to reaffirm that time is
of essence and include a reasonable date of completion to be abide by the
contractor. Please be informed that you cant deduct LAD from him thru this
method. Likewise please advise your client accordingly and try to get **** legal
advisor to advice accordingly.
Another important note is, make sure the person that signs/ issues all this notices is
the person empowered and authorized in the contract as failure to abide by this rule
may result in instruction that are legally not binding. (your certificate of non
completion is not valid as it was not signed by the person authorized in the
contract) Make sure notices are also sent to the official/registered address of the
company and the procedures under the JKR203/203A are strictly followed.

Regarding the contractors argument that a notice that is not register is a wrongly
served notice based on clause 6 of JKR form. Based on my observation, his facts
dont carry any weight. Im with the opinion that a register pos notice is just to
affirm/ to prove that the other party received or deemed to received an
instruction/certificate. (Nevertheless this procedure must be followed strictly). In
this case, the contractor acknowledge that he has received all the notices and his
argument of wrongly served notices is not an issue and does not carry any weight
legally.

Above is my humble point of view and suggestions based on my personal

observations. Please get **** legal adviser input before you proceed in order to
make sure the client interest is taken care. Hope it is of some help to you. Thank
you.