TENAGA NASIONAL BERHAD MALAYSIAN RESOURCES CORPORATION BERHAD

TENAGA NASIONAL BERHAD MALAYSIAN RESOURCES CORPORATION BERHAD

The court held that the adjudicator had jurisdiction despite arbitration already having been commenced (s37 CIPAA and authority in Martego), the payment claim read with accompanying documents complied with s5(2), the adjudicator acted within powers under s25 in regulating procedure and refusing a rejoinder, and there was no denial of natural justice or excess of jurisdiction warranting setting aside; accordingly the setting aside application was dismissed and enforcement under s28 CIPAA was ordered while the stay application was refused.

Citation
WA-24C-170-09/2022 (Mahkamah Tinggi)
Parties
Plaintiff (in OS170 & Os171) / Defendant (in Os172): Tenaga Nasional Berhad; Defendant (in OS170 & Os171) / Plaintiff (in Os172): Malaysian Resources Corporation Berhad
Court
High Court
Jurisdiction
Malaysia
Judgment Date
11 December 2023
Case Number
WA-24C-170-09/2022 (Mahkamah Tinggi)
Procedural Posture
CIPAA Adjudication Setting Aside, Stay and Enforcement Applications / Judgment on Originating Summons (decision Dated 11 December 2023)
Outcome
OS170 (setting aside) dismissed with costs; OS171 (stay) dismissed with costs; OS172 (enforcement) allowed (prayers 1–3) with costs
Legal Topics
CIPAA Adjudication, Jurisdiction, Enforcement Under S28 CIPAA, Stay Pending Arbitration, Natural Justice, Payment Claim Requirements, Waiver, Excess of Jurisdiction
Source Language
Malay/English
Construction Law Arbitration Civil Procedure Administrative Law CIPAA Adjudication Jurisdiction Enforcement Under S28 CIPAA Stay Pending Arbitration +4 more

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Parties

Tenaga Nasional Berhad

Plaintiff (in OS170 & Os171) / Defendant (in Os172)

Malaysian Resources Corporation Berhad

Defendant (in OS170 & Os171) / Plaintiff (in Os172)

Procedural Posture

CIPAA Adjudication Setting Aside, Stay and Enforcement Applications / Judgment on Originating Summons (decision Dated 11 December 2023)

Legal Issues

  1. 1 Whether an adjudicator lacks jurisdiction to proceed where arbitration has already commenced
  2. 2 Whether the adjudicator acted in excess of jurisdiction under s15(d) CIPAA by deciding matters outside the payment claim
  3. 3 Whether there was denial of natural justice under s15(b) CIPAA (refusal to allow rejoinder / failure to hear)

Ratio Decidendi

The court held that the adjudicator had jurisdiction despite arbitration already having been commenced (s37 CIPAA and authority in Martego), the payment claim read with accompanying documents complied with s5(2), the adjudicator acted within powers under s25 in regulating procedure and refusing a rejoinder, and there was no denial of natural justice or excess of jurisdiction warranting setting aside; accordingly the setting aside application was dismissed and enforcement under s28 CIPAA was ordered while the stay application was refused.

Court Disposition

OS170 (setting aside) dismissed with costs; OS171 (stay) dismissed with costs; OS172 (enforcement) allowed (prayers 1–3) with costs

Orders

  • Dismiss enclosure 1 of OS 170 with costs
  • Allow prayers (1), (2) and (3) in enclosure 1 of OS 172 with costs (order in terms for enforcement under s28 CIPAA)