Koh Michael

Michael Koh leads the Construction Law team at MahWengKwai & Associates, which advises and represents clients on construction contract drafting and negotiations, regulatory compliance, and construction litigation and arbitration.

Michael read law at the University of Leeds and is a member of the Honourable Society of the Middle Temple. He was called to the Bar in England in 2011, and to the Malaysian Bar in 2013.

With primary interest and experience in construction dispute resolution, Michael represents developers, contractors, consultants and proprietors in construction disputes involving:

• Payment and Performance Disputes

• Delay and Extension of Time Claims

• Defective Workmanship and Materials Issues

• Contract Claims and Termination

• Compliance and Regulatory Issues

• Construction Adjudication (CIPAA) and Arbitration Proceedings

Michael is a member of the Society of Construction Law, Malaysia and The Malaysian Institute Of Arbitrators.

Career to date

2024     Partner, MahWengKwai & Associates

2023     Senior Associate, MahWengKwai & Associates

2020     Associate, Zul Rafique & Partner

2013      Associate, Azman Davidson & Co

2012     Pupil in Chambers, Azman Davidson & Co

Educational achievements

2013     Called to the Malaysian Bar

2011     Called to the English Bar

2011     Bar Professional Training Course, Nottingham Trent University

2010    Bachelor of Laws (Hons), University of Leeds

Litigation Experience – Highlights

Construction Disputes

• Succesffully obtained an award of RM 10 million in Adjudication for a Sub-Contractor. The dispute arose from bespoke sub-contract works involving the relocation of utility cables. The client sought to recover nearly RM 10 million in an Adjudication after the Main Contractor under-certified their works and tried to impose Liquidated Ascertained Damages (LAD). Central to the dispute were issues stemming from delays and certification. It was successfully argued that time was “at large,” meaning LAD was not applicable. Additionally, the main contractor had significantly reduced the original contract works, rendering the LAD rate unreasonable. On the issue of certification, it was successfully argued that the Main-Contractor could not argue the works were not certified by the Employer when there were joint inspections signed by parties’ representatives.

• Successfully defended a client against an Adjudication Claim of nearly RM13 million. This was in relation to the construction of Quay Side Container Cranes. The client encountered a claim alleging responsibility for delaying works and agreeing to bear the additional costs associated with those delays. This claim was effectively refuted by demonstrating that there was no agreement wherein the client agreed that it was the cause of the delay nor to absorb these costs.

• Assisted in an Arbitration in an Oil and Gas dispute involving an Award of RM30 million. This was in relation to valves on an oil platform. The valves were discovered to not have been original as the manufacturers were able to confirm taht they had not fabricated them. The Tribunal awarded the client the cost of replacing all the valves.

• Successfully assisted a client in negotiating a settlement during Arbitration and reducing the claimed sum by nearly RM20 million. The works was for the construction of infrastructure surrounding an iconic convention centre. The contract was based off the standard PWD form of contract. The claim by the Sub-Contractor was centred around claims for under certification. The Counter-Claim by the client, the Main Contractor centred on LAD as well as a dispute over the amount of work done. The reduction of the claim sum during negotiations were attributable to, in part, the cross examination which showed that the documents relied by the Sub-Contractor also showed the claim sum to be lower than what the Sub-Contractor was claiming for.

• Successfully resisted Performance Bond Injunction worth RM10 million. A dispute over the construction of a multi million mixed development arose when a call was made on the Performance Bond under the standard PAM 2006 Contract. An ex-parte injunction against a developer,the client, was short-lived once the hearing took place. This outcome was achieved by effectively arguing that the Employer had legitimate reasons to invoke a performance bond, given the Main Contractor’s failure to demonstrate any unconscionable conduct by the Employer. Moreover, it was revealed that the Main Contractor had intentionally omitted crucial information during the initial procurement of the ex-parte injunction.

• Successfully defended a company at trial against allegations of breach of contract and/or fraud. This was a dispute by a sub-contractor who was engaged to carry out plumbing works for a mall. The claim was resoundingly dismissed after it was successfully shown that the claim was premature and that there was no foundation or basis to raise a cause of action against teh Company for fraud.

Other Litigation Experience

• Successfully recovered property from tenants (both companies and individuals) who were ‘holding-over’.

• Successfully executed a ‘Ship Arrest’.

• Debt recovery, execution and winding-up proceedings.

• Employment related disputes such as wrongful termination and retrenchment.

 Reported Cases

• Kebabangan Petroleum Operating Company Sdn Bhd v Malaysia Marine and Heavy Engineering Sdn Bhd and another case [2023] MLJU 1995

• Eversendai Constructions (M) Sdn Bhd v Samsung C&T Corporation UEM Construction JV Sdn Bhd [2023] MLJU 2025

• Prinsptek (M) Sdn Bhd v Naza TTDI Sentralis Sdn Bhd (Formely Known As Ikhlas Murni Sdn Bhd) [2020] MLJU 2426

• Adam Primus Varghese bin Abdullah v Wee Loke Choon & Ors and another appeal [2019] 3 MLJ 402

• PWC Corporation Sdn Bhd v Ireka Engineering & Construction Sdn Bhd [2018] MLJU 812

• Vy Plumbing Construction Sdn Bhd v Pembinaan Legenda Unggul Sdn Bhd & ORS [2017] MLJU 1858

• Ranchan Heavy Engineering Sdn Bhd v Pelabuhan Tanjung Pelepas Sdn Bhd [2016] MLJU 1182

Speaking Engagements

• “Recognise Liquidated Ascertained Damages (LAD) in Construction Contract” Malaysia Property Law Conference (Oct 2023)

• “Enforcing an Adjudication Decision: Direct Payment from Principal ” MWKA Online Talk (Sep 2023)

Review & Testimonials

• “We are incredibly pleased to share our experience working with MahWengKwai & Associates. Their expertise and dedication were instrumental in securing a favourable adjudication decision for us. Mr Michael Koh and Ms Noelle Au Yong demonstrated exceptional professionalism and a deep understanding of our case. Throughout the proceedings, they provided us with regular updates, kept us informed and were confident in handling our case. Their responsiveness and willingness to address our concerns promptly made a significant difference. The successful outcome we achieved is a testament to their hard work and unwavering commitment to our case. We are grateful for their outstanding representation and the positive result they secured on our behalf.” – Tony Lee, SKP Hammers Sdn Bhd