1. ) UZMA ENGINEERING SDN. BHD. (Co. No.: 514669-P) (BA-24C-118-11/2019 didengar bersama BA-24C-119-11/2019) 2. ) KHAN CO. LTD. (BA-24C-125-12/2019) 1. ) KHAN CO. LTD. (BA-24C-118-11/2019 didengar bersama BA-24C-119-11/2019) 2. ) UZMA ENGIN

1. ) UZMA ENGINEERING SDN. BHD. (Co. No.: 514669-P) (BA-24C-118-11/2019 didengar bersama BA-24C-119-11/2019) 2. ) KHAN CO. LTD. (BA-24C-125-12/2019) 1. ) KHAN CO. LTD. (BA-24C-118-11/2019 didengar bersama BA-24C-119-11/2019) 2. ) UZMA ENGIN

The adjudication decision was set aside because Khan's claim was founded on an agreement to reimburse Khan for a payment to THHE with a 5% mark-up which, based on undisputed extrinsic electronic evidence, did not relate to 'construction work' as defined in s 4 CIPAA; therefore the adjudicator exceeded jurisdiction under s 15(d) CIPAA and the court was entitled to consider extrinsic evidence to determine CIPAA applicability.

Citation
BA-24C-118-11/2019 didengar bersama BA-24C-119-11/2019 didengar bersama BA-24C-125-12/2019 (Mahkamah Tinggi)
Parties
Plaintiff/defendant: Uzma Engineering Sdn. Bhd.; Defendant/plaintiff: Khan Co. Ltd.; Third Party (related Entity): Kong Offshore Malaysia Sdn. Bhd.
Court
High Court
Jurisdiction
Malaysia
Judgment Date
30 June 2020
Case Number
BA-24C-118-11/2019 didengar bersama BA-24C-119-11/2019 didengar bersama BA-24C-125-12/2019 (Mahkamah Tinggi)
Procedural Posture
Originating Summonses (setting Aside Adjudication Decision, Stay, Enforcement) / Judgment
Outcome
Setting Aside OS allowed; Stay OS struck out; Enforcement OS dismissed
Legal Topics
CIPAA Applicability, Jurisdiction of Adjudicator, Natural Justice, Stay of Adjudication Decision, Consideration, Extrinsic Evidence Admissibility, Enforcement of Adjudication Decision
Source Language
Malay/English
Construction Law Adjudication Law Contract Law Civil Procedure Evidence Law CIPAA Applicability Jurisdiction of Adjudicator Natural Justice +4 more

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Parties

Uzma Engineering Sdn. Bhd.

Plaintiff/defendant

Khan Co. Ltd.

Defendant/plaintiff

Kong Offshore Malaysia Sdn. Bhd.

Third Party (related Entity)

Procedural Posture

Originating Summonses (setting Aside Adjudication Decision, Stay, Enforcement) / Judgment

Legal Issues

  1. 1 Whether the adjudicator exceeded jurisdiction under s 15(d) CIPAA because the claim was not based on a construction contract relating to construction work as defined in s 4 CIPAA
  2. 2 Whether the court is barred by ss 91 and 92 Evidence Act 1950 from considering extrinsic evidence to determine whether a contract relates to construction work for CIPAA purposes
  3. 3 Whether the agreement relied upon by claimant was 'in writing' within meaning of CIPAA and Interpretation Acts

Ratio Decidendi

The adjudication decision was set aside because Khan's claim was founded on an agreement to reimburse Khan for a payment to THHE with a 5% mark-up which, based on undisputed extrinsic electronic evidence, did not relate to 'construction work' as defined in s 4 CIPAA; therefore the adjudicator exceeded jurisdiction under s 15(d) CIPAA and the court was entitled to consider extrinsic evidence to determine CIPAA applicability.

Court Disposition

Setting Aside OS allowed; Stay OS struck out; Enforcement OS dismissed

Orders

  • Setting Aside Originating Summons allowed
  • Stay Originating Summons struck out