DITROLIC SDN. BHD. SAMAIDEN SDN. BHD.

DITROLIC SDN. BHD. SAMAIDEN SDN. BHD.

The court held the adjudicator had considered the LAD and other issues and did not deny Ditrolic natural justice; the adjudicator’s decision to leave the LAD issue to arbitration did not amount to jurisdictional error; Ditrolic failed to discharge the burden to set aside the AD under s.15(b); a stay under s.16 was refused because arbitration commencement alone is insufficient, contractual pre-arbitration steps must be observed and Samaiden is solvent; enforcement under s.28 was granted as the statutory conditions were satisfied.

Citation
BA-24C-11-02/2023 (Mahkamah Tinggi)
Parties
Applicant (enforcement); Respondent (setting Aside and Stay): Samaiden Sdn. Bhd.; Applicant (setting Aside and Stay); Respondent (enforcement): Ditrolic Sdn. Bhd.
Court
High Court
Jurisdiction
Malaysia
Judgment Date
11 October 2023
Case Number
BA-24C-11-02/2023 (Mahkamah Tinggi)
Procedural Posture
Originating Summonses Under CIPAA 2012 (enforcement, Setting Aside, Stay) / Judgment on Three Originating Summonses (decision on Merits and Costs)
Outcome
Setting Aside OS dismissed; Stay of Execution OS dismissed; Enforcement OS allowed.
Legal Topics
CIPAA 2012 Enforcement, Setting Aside Adjudication Decision, Stay of Execution, Liquidated Damages (set Off), Natural Justice / Audi Alteram Partem
Source Language
Malay/English
Construction Law Arbitration Civil Procedure Commercial Law CIPAA 2012 Enforcement Setting Aside Adjudication Decision Stay of Execution Liquidated Damages (set Off) +1 more

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Parties

Samaiden Sdn. Bhd.

Applicant (enforcement); Respondent (setting Aside and Stay)

Ditrolic Sdn. Bhd.

Applicant (setting Aside and Stay); Respondent (enforcement)

Procedural Posture

Originating Summonses Under CIPAA 2012 (enforcement, Setting Aside, Stay) / Judgment on Three Originating Summonses (decision on Merits and Costs)

Legal Issues

  1. 1 Whether the Adjudication Decision (AD) should be set aside under s.15(b) CIPAA for denial of natural justice or jurisdictional error
  2. 2 Whether the adjudicator erred by referring liquidated damages (LAD) set-off to arbitration and failing to consider set-offs/counterclaims
  3. 3 Whether a stay of execution under s.16(1)(b) CIPAA should be granted because arbitration has been commenced, clear error exists or the claimant is insolvent

Ratio Decidendi

The court held the adjudicator had considered the LAD and other issues and did not deny Ditrolic natural justice; the adjudicator’s decision to leave the LAD issue to arbitration did not amount to jurisdictional error; Ditrolic failed to discharge the burden to set aside the AD under s.15(b); a stay under s.16 was refused because arbitration commencement alone is insufficient, contractual pre-arbitration steps must be observed and Samaiden is solvent; enforcement under s.28 was granted as the statutory conditions were satisfied.

Court Disposition

Setting Aside OS dismissed; Stay of Execution OS dismissed; Enforcement OS allowed.

Orders

  • Setting Aside Originating Summons dismissed with costs of RM5000.00 to be paid by Ditrolic to Samaiden subject to allocatur fee
  • Stay of Execution Originating Summons dismissed with no order as to costs