ALPHA GALAXY SDN. BHD. EURO DESTAR (M) SDN. BHD.

ALPHA GALAXY SDN. BHD. EURO DESTAR (M) SDN. BHD.

The court refused to set aside the adjudication decision because Clause 7.1 was not a conditional payment provision under s 35 CIPAA, the adjudicator retained jurisdiction over the matters in the payment claim and payment response despite errors of law/fact, any alleged denial of natural justice was not shown to be decisive, and those errors can be remedied in subsequent litigation; consequently no stay was warranted and leave to enforce the adjudication decision under s 28 was granted.

Citation
BA-24C-4-01/2020 (Mahkamah Tinggi)
Parties
Applicant (setting Aside & Stay); Defendant (enforcement): Alpha Galaxy Sdn. Bhd.; Applicant (enforcement); Defendant (setting Aside & Stay): Euro Destar (M) Sdn. Bhd.
Court
High Court
Jurisdiction
Malaysia
Judgment Date
24 February 2021
Case Number
BA-24C-4-01/2020 (Mahkamah Tinggi)
Procedural Posture
Originating Summons Under CIPAA 2012 / Judgment (final Disposition on the Originating Summonses)
Outcome
Alpha's Setting Aside Application refused; Alpha's Stay Application dismissed; Euro's Enforcement Application allowed; Alpha to pay one set of costs to Euro.
Legal Topics
CIPAA 2012 Interpretation, Setting Aside Adjudication Decision, Enforcement of Adjudication Decision, Stay of Enforcement, Natural Justice, Adjudicator Jurisdiction
Source Language
Malay/English
Construction Law Statutory Adjudication Contract Law Civil Procedure CIPAA 2012 Interpretation Setting Aside Adjudication Decision Enforcement of Adjudication Decision Stay of Enforcement +2 more

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Parties

Alpha Galaxy Sdn. Bhd.

Applicant (setting Aside & Stay); Defendant (enforcement)

Euro Destar (M) Sdn. Bhd.

Applicant (enforcement); Defendant (setting Aside & Stay)

Procedural Posture

Originating Summons Under CIPAA 2012 / Judgment (final Disposition on the Originating Summonses)

Legal Issues

  1. 1 Whether Clause 7.1 of the Letter of Award was a conditional payment provision void under s 35 CIPAA
  2. 2 Whether the adjudicator exceeded jurisdiction under ss 15(d) and 27(1) read with ss 5 and 6 CIPAA by invalidating Clause 7.1
  3. 3 Whether the adjudicator breached the rule against denial of natural justice (second rule)

Ratio Decidendi

The court refused to set aside the adjudication decision because Clause 7.1 was not a conditional payment provision under s 35 CIPAA, the adjudicator retained jurisdiction over the matters in the payment claim and payment response despite errors of law/fact, any alleged denial of natural justice was not shown to be decisive, and those errors can be remedied in subsequent litigation; consequently no stay was warranted and leave to enforce the adjudication decision under s 28 was granted.

Court Disposition

Alpha's Setting Aside Application refused; Alpha's Stay Application dismissed; Euro's Enforcement Application allowed; Alpha to pay one set of costs to Euro.

Orders

  • Alpha's Setting Aside Application dismissed
  • Alpha's Stay Application dismissed with costs