1. ) FIRST COMMERCE SDN BHD 2. ) TITAN VISTA SDN BHD 1. ) TITAN VISTA SDN BHD 2. ) FIRST COMMERCE SDN BHD

1. ) FIRST COMMERCE SDN BHD 2. ) TITAN VISTA SDN BHD 1. ) TITAN VISTA SDN BHD 2. ) FIRST COMMERCE SDN BHD

The adjudicator acted within jurisdiction and did not deny natural justice: he considered the submissions, validly found the conditional payment clause void under s.35 CIPAA, applied an appropriate payment term (derived from PAM 2006 as reflected in submissions) and fixed interest accrual dates under his powers; therefore the s.15 setting aside application failed and the adjudication decision is enforceable under s.28 CIPAA.

Citation
WA-24C-100-06/2020 & WA-24C-137-06/2020 (Mahkamah Tinggi)
Parties
Plaintiff in OS WA 24 C 100 06/2020; Defendant in OS WA 24 C 137 06/2020: First Commerce Sdn Bhd; Defendant in OS WA 24 C 100 06/2020; Plaintiff in OS WA 24 C 137 06/2020: Titan Vista Sdn Bhd
Court
High Court
Jurisdiction
Malaysia
Judgment Date
2 February 2021
Case Number
WA-24C-100-06/2020 & WA-24C-137-06/2020 (Mahkamah Tinggi)
Procedural Posture
Originating Summons Under the Construction Industry Payment and Adjudication Act 2012 (cipaa) – Setting Aside and Enforcement of Adjudication Decision / High Court Decision Delivered 2 February 2021; Appeal Filed to Court of Appeal by FCSB on 21 January 2021
Outcome
Originating Summons WA-24C-100-06/2020 (FCSB application to set aside) dismissed; Originating Summons WA-24C-137-06/2020 (TYSB enforcement) allowed; FCSB filed appeal to Court of Appeal
Legal Topics
CIPAA Adjudication, Setting Aside Adjudication Decision, Enforcement as Judgment, Prohibition of Conditional Payment, Natural Justice, Interest Accrual
Source Language
Malay/English
Construction Law Civil Procedure Administrative Law Contract Law Enforcement of Judgments CIPAA Adjudication Setting Aside Adjudication Decision Enforcement as Judgment +3 more

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Parties

First Commerce Sdn Bhd

Plaintiff in OS WA 24 C 100 06/2020; Defendant in OS WA 24 C 137 06/2020

Titan Vista Sdn Bhd

Defendant in OS WA 24 C 100 06/2020; Plaintiff in OS WA 24 C 137 06/2020

Procedural Posture

Originating Summons Under the Construction Industry Payment and Adjudication Act 2012 (cipaa) – Setting Aside and Enforcement of Adjudication Decision / High Court Decision Delivered 2 February 2021; Appeal Filed to Court of Appeal by FCSB on 21 January 2021

Legal Issues

  1. 1 Whether the adjudication decision should be set aside under s.15 CIPAA for denial of natural justice
  2. 2 Whether the adjudicator acted independently or impartially
  3. 3 Whether the adjudicator acted in excess of jurisdiction by choosing accrual dates for interest

Ratio Decidendi

The adjudicator acted within jurisdiction and did not deny natural justice: he considered the submissions, validly found the conditional payment clause void under s.35 CIPAA, applied an appropriate payment term (derived from PAM 2006 as reflected in submissions) and fixed interest accrual dates under his powers; therefore the s.15 setting aside application failed and the adjudication decision is enforceable under s.28 CIPAA.

Court Disposition

Originating Summons WA-24C-100-06/2020 (FCSB application to set aside) dismissed; Originating Summons WA-24C-137-06/2020 (TYSB enforcement) allowed; FCSB filed appeal to Court of Appeal

Orders

  • OS WA-24C-100-06/2020 dismissed with costs RM5,000.00 subject to standard allocator
  • OS WA-24C-137-06/2020 allowed with costs RM5,000.00 subject to standard allocator