AYAM BINTANG ISTIMEWA SDN. BHD. TERA VA SDN. BHD.

AYAM BINTANG ISTIMEWA SDN. BHD. TERA VA SDN. BHD.

The court found TV failed to prove on the balance of probabilities that the Adjudication Decision was procured by fraud (s.15(a)) and failed to show denial of natural justice (s.15(b)); the Adjudicator had considered material and afforded opportunity to be heard and was entitled to take investigatory initiative under s.25(i); consequently the Setting Aside OS was dismissed and leave to enforce the Adjudication Decision was granted under s.28 CIPAA 2012 as the statutory conditions were satisfied.

Citation
BA-24C-55-08/2023 (Mahkamah Tinggi)
Parties
Applicant (enforcement Os) / Respondent (adjudication): AYAM BINTANG ISTIMEWA SDN. BHD.; Applicant (setting Aside Os) / Claimant (adjudication): TERA VA SDN. BHD.
Court
High Court
Jurisdiction
Malaysia
Judgment Date
16 November 2023
Case Number
BA-24C-55-08/2023 (Mahkamah Tinggi)
Procedural Posture
Originating Summons Under CIPAA 2012 (enforcement and Setting Aside of Adjudication Decision) / Judgment Delivered
Outcome
Setting Aside Originating Summons dismissed; Enforcement Originating Summons allowed and adjudication decision enforced
Legal Topics
CIPAA 2012 Enforcement, Setting Aside Adjudication Decision, Fraud in Adjudication, Natural Justice/audi Alteram Partem, Adjudicator Powers, Payment Dispute
Source Language
Malay/English
Construction Law Statutory Adjudication Contract Law Administrative Law (natural Justice) CIPAA 2012 Enforcement Setting Aside Adjudication Decision Fraud in Adjudication Natural Justice/audi Alteram Partem +2 more

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Parties

AYAM BINTANG ISTIMEWA SDN. BHD.

Applicant (enforcement Os) / Respondent (adjudication)

TERA VA SDN. BHD.

Applicant (setting Aside Os) / Claimant (adjudication)

Procedural Posture

Originating Summons Under CIPAA 2012 (enforcement and Setting Aside of Adjudication Decision) / Judgment Delivered

Legal Issues

  1. 1 Whether the Adjudication Decision was procured by fraud contrary to s.15(a) CIPAA 2012
  2. 2 Whether the Adjudicator denied natural justice contrary to s.15(b) CIPAA 2012 by deciding a matter not submitted by the parties
  3. 3 Whether leave to enforce the Adjudication Decision should be granted under s.28 CIPAA 2012 (three conditions)

Ratio Decidendi

The court found TV failed to prove on the balance of probabilities that the Adjudication Decision was procured by fraud (s.15(a)) and failed to show denial of natural justice (s.15(b)); the Adjudicator had considered material and afforded opportunity to be heard and was entitled to take investigatory initiative under s.25(i); consequently the Setting Aside OS was dismissed and leave to enforce the Adjudication Decision was granted under s.28 CIPAA 2012 as the statutory conditions were satisfied.

Court Disposition

Setting Aside Originating Summons dismissed; Enforcement Originating Summons allowed and adjudication decision enforced

Orders

  • Setting Aside OS (BA-24C-60-08/2023) dismissed with costs of RM5,000.00 to be paid to Ayam Bintang Istimewa Sdn. Bhd. subject to allocatur fee
  • Leave granted under s.28 CIPAA 2012 to enforce the Adjudication Decision dated 6.6.2023; Enforcement OS (BA-24C-55-08/2023) allowed