What happens when a contractor not only culpably delays the work, but refuses to or is seemingly unable to finish the work at all? In the recent case of Triple Point Technology Inc v PTT Public Company Ltd,3 the Court of Appeal considered the right of the Employer to claim liquidated damages in the context of abandonment by the original contractor.

There are three sections in this paper. The first section provides the necessary background: it notes the purpose of liquidated damages in construction contracts, summarises the previous approaches of the courts in similar claims for liquidated damages in abandonment, and finally surveys the approach adopted in Triple Point Technology. The second section criticises the court’s decision to disapply the liquidated damages clause for three reasons. First, the decision the Court of Appeal relied on as authoritative did not truly decide the point at common law and should have been distinguished. Secondly, the disapplication of the liquidated damages clause departs from the accepted understanding of accrued rights in the context of termination; and lastly, that the practical significance of Triple Point Technology creates an anomaly that incentivises breach of contract and undermines the bargain between the parties. In its final section, this paper will propose that Triple Point Technology ought to have taken what this paper terms “the Orthodox approach”, and suggests the arguments available in reforming the law as it stands.