Zhongji Construction Sdn Bhd Dewani Design Sdn Bhd

Zhongji Construction Sdn Bhd Dewani Design Sdn Bhd

s7 of the COVID-19 Act does not oust an adjudicator's jurisdiction under CIPAA nor constitute a ground to set aside an adjudication decision under s15(d); Zhongji failed to discharge its burden to prove inability due to PCIDA measures or that inability arose after the Act's enforcement date; the adjudicator did not breach the 1st or 2nd rules of natural justice and lawfully exercised statutory discretions (including on uncertified works and costs); parties may not introduce new grounds first in a second affidavit absent amendment or leave; the functus officio doctrine does not apply to CIPAA adjudicators; consequently the setting aside and stay applications were dismissed and leave to...

Citation
BA-24C-15-03/2022 (Mahkamah Tinggi)
Parties
Plaintiff and Defendant: Dewani Design Sdn. Bhd.; Plaintiff and Defendant: Zhongji Construction Sdn. Bhd.
Court
High Court
Jurisdiction
Malaysia
Judgment Date
5 July 2022
Case Number
BA-24C-15-03/2022 (Mahkamah Tinggi)
Procedural Posture
Originating Summonses Under CIPAA (setting Aside, Stay and Enforcement) / Judgment
Outcome
Setting aside application dismissed; stay application dismissed; enforcement application allowed
Legal Topics
CIPAA, Temporary Measures for Reducing the Impact of COVID 19 Act 2020 S7, Adjudication Jurisdiction, Setting Aside Adjudication Decision, Stay of Enforcement, Enforcement of Adjudication Decision S28, Natural Justice (1st and 2nd Rule), Functus Officio, Costs
Source Language
Malay/English
Construction Law Statutory Adjudication Contract Law Public Health Emergency Legislation Civil Procedure CIPAA Temporary Measures for Reducing the Impact of COVID 19 Act 2020 S7 Adjudication Jurisdiction +6 more

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Parties

Dewani Design Sdn. Bhd.

Plaintiff and Defendant

Zhongji Construction Sdn. Bhd.

Plaintiff and Defendant

Procedural Posture

Originating Summonses Under CIPAA (setting Aside, Stay and Enforcement) / Judgment

Legal Issues

  1. 1 Whether s7 of the COVID-19 Act deprives adjudicators of jurisdiction under CIPAA
  2. 2 Whether s7 bars adjudicators from proceeding with adjudication proceedings
  3. 3 Whether s7 constitutes a ground to set aside an adjudication decision under s15(d) CIPAA

Ratio Decidendi

s7 of the COVID-19 Act does not oust an adjudicator's jurisdiction under CIPAA nor constitute a ground to set aside an adjudication decision under s15(d); Zhongji failed to discharge its burden to prove inability due to PCIDA measures or that inability arose after the Act's enforcement date; the adjudicator did not breach the 1st or 2nd rules of natural justice and lawfully exercised statutory discretions (including on uncertified works and costs); parties may not introduce new grounds first in a second affidavit absent amendment or leave; the functus officio doctrine does not apply to CIPAA adjudicators; consequently the setting aside and stay applications were dismissed and leave to...

Court Disposition

Setting aside application dismissed; stay application dismissed; enforcement application allowed

Orders

  • Setting aside application by Zhongji dismissed
  • Stay application by Zhongji dismissed