MCC OVERSEAS (M) SDN BHD DAMAI CITY SDN BHD

MCC OVERSEAS (M) SDN BHD DAMAI CITY SDN BHD

The court dismissed the setting aside and stay applications and allowed enforcement: (1) s15 does not permit severing part of an adjudication decision as pleaded and the proposed amendment to avoid that election was properly refused; (2) the adjudicator did not deny natural justice or act beyond jurisdiction because the issues he decided were squarely raised in the adjudication papers (including Clause 25.4(d) and set-off requirements) and he properly exercised his discretion not to hold an oral hearing; (3) there were no clear and unequivocal errors nor special circumstances to justify a stay under s16; and (4) having found no valid grounds to set aside and s28 requirements met, the AD...

Citation
WA-24C-165-09/2021 (Mahkamah Tinggi)
Parties
Plaintiff/applicant (in O.s.149 & O.s.150); Defendant (in O.s.165): Damai City Sdn Bhd; Defendant/respondent (in O.s.149 & O.s.150); Plaintiff (in O.s.165): MCC Overseas (M) Sdn Bhd
Court
High Court
Jurisdiction
Malaysia
Judgment Date
23 March 2022
Case Number
WA-24C-165-09/2021 (Mahkamah Tinggi)
Procedural Posture
Originating Summons Under the Construction Industry Payment and Adjudication Act 2012 (cipaa) / Applications Heard Together: Setting Aside (s15 Cipaa), Stay (s16 Cipaa) and Enforcement (s28 Cipaa); Judgment on Applications
Outcome
Setting Aside Application dismissed; Stay Application dismissed; Enforcement Application allowed.
Legal Topics
Adjudication Under CIPAA, Enforcement of Adjudication Decision, Stay Pending Arbitration, Natural Justice in Adjudication, Set Off and Counterclaims, Jurisdiction of Adjudicator
Source Language
Malay/English
Construction Law Arbitration Law Civil Procedure Adjudication Under CIPAA Enforcement of Adjudication Decision Stay Pending Arbitration Natural Justice in Adjudication Set Off and Counterclaims +1 more

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Parties

Damai City Sdn Bhd

Plaintiff/applicant (in O.s.149 & O.s.150); Defendant (in O.s.165)

MCC Overseas (M) Sdn Bhd

Defendant/respondent (in O.s.149 & O.s.150); Plaintiff (in O.s.165)

Procedural Posture

Originating Summons Under the Construction Industry Payment and Adjudication Act 2012 (cipaa) / Applications Heard Together: Setting Aside (s15 Cipaa), Stay (s16 Cipaa) and Enforcement (s28 Cipaa); Judgment on Applications

Legal Issues

  1. 1 Whether part of an adjudication decision can be set aside under s15 CIPAA
  2. 2 Whether the adjudicator denied natural justice by deciding issues not expressly raised and by refusing an oral hearing
  3. 3 Whether the adjudicator acted in excess of jurisdiction by addressing prematurity and commerciality of counterclaims

Ratio Decidendi

The court dismissed the setting aside and stay applications and allowed enforcement: (1) s15 does not permit severing part of an adjudication decision as pleaded and the proposed amendment to avoid that election was properly refused; (2) the adjudicator did not deny natural justice or act beyond jurisdiction because the issues he decided were squarely raised in the adjudication papers (including Clause 25.4(d) and set-off requirements) and he properly exercised his discretion not to hold an oral hearing; (3) there were no clear and unequivocal errors nor special circumstances to justify a stay under s16; and (4) having found no valid grounds to set aside and s28 requirements met, the AD...

Court Disposition

Setting Aside Application dismissed; Stay Application dismissed; Enforcement Application allowed.

Orders

  • Setting Aside Application dismissed with costs of RM15,000.00 to be paid by Damai City to MCCO, subject to allocatur
  • Stay Application dismissed with costs of RM8,000.00 to be paid by Damai City to MCCO, subject to allocatur