MARVELANE HOME SDN BHD SUNSHINE CONSTRUCTION SDN BHD

MARVELANE HOME SDN BHD SUNSHINE CONSTRUCTION SDN BHD

Sunshine's payment claim expressly disclosed a contractual cause of action; the adjudicator therefore had jurisdiction under s27 and did not exceed it; any technical non-compliance with s5 was cured by s26; clause 25.4(d) is a conditional payment provision void under s35(1) and cannot be relied upon; there was no material breach of natural justice; no basis to exercise s16 discretion to stay enforcement; accordingly the setting aside and stay applications are dismissed and leave to enforce the adjudication decision is granted under s28 with costs to Sunshine.

Citation
BA-24C-44-08/2021 (Mahkamah Tinggi)
Parties
Plaintiff (in BA 24 C 24 05/2021); Defendant (in BA 24 C 44 08/2021 and BA 24 C 45 08/2021): Sunshine Construction Sdn. Bhd.; Defendant (in BA 24 C 24 05/2021); Plaintiff (in BA 24 C 44 08/2021 and BA 24 C 45 08/2021): Marvelane Sdn. Bhd.
Court
High Court
Jurisdiction
Malaysia
Judgment Date
13 December 2021
Case Number
BA-24C-44-08/2021 (Mahkamah Tinggi)
Procedural Posture
Originating Summons / Judgment
Outcome
Setting Aside OS dismissed; Stay OS dismissed; Enforcement OS allowed
Legal Topics
CIPAA 2012, Adjudicator Jurisdiction, Enforcement of Adjudication Decision, Stay of Enforcement, Setting Aside Adjudication Decision, Conditional Payment Clause, Natural Justice (procedural Fairness), Final Account, Set Off, Liquidated Damages
Source Language
Malay/English
Construction Law Statutory Adjudication Contract Law Civil Procedure Arbitration Law CIPAA 2012 Adjudicator Jurisdiction Enforcement of Adjudication Decision +7 more

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Parties

Sunshine Construction Sdn. Bhd.

Plaintiff (in BA 24 C 24 05/2021); Defendant (in BA 24 C 44 08/2021 and BA 24 C 45 08/2021)

Marvelane Sdn. Bhd.

Defendant (in BA 24 C 24 05/2021); Plaintiff (in BA 24 C 44 08/2021 and BA 24 C 45 08/2021)

Procedural Posture

Originating Summons / Judgment

Legal Issues

  1. 1 Whether the adjudicator had jurisdiction under CIPAA to decide the payment claim
  2. 2 Whether the payment claim complied with s5 CIPAA and effect of s26 curing provision
  3. 3 Whether Clause 25.4(d) is void as a conditional payment under s35(1) CIPAA

Ratio Decidendi

Sunshine's payment claim expressly disclosed a contractual cause of action; the adjudicator therefore had jurisdiction under s27 and did not exceed it; any technical non-compliance with s5 was cured by s26; clause 25.4(d) is a conditional payment provision void under s35(1) and cannot be relied upon; there was no material breach of natural justice; no basis to exercise s16 discretion to stay enforcement; accordingly the setting aside and stay applications are dismissed and leave to enforce the adjudication decision is granted under s28 with costs to Sunshine.

Court Disposition

Setting Aside OS dismissed; Stay OS dismissed; Enforcement OS allowed

Orders

  • Setting Aside Originating Summons (BA-24C-44-08/2021) dismissed
  • Stay Originating Summons (BA-24C-45-08/2021) dismissed