MRCB BUILDERS SDN BHD SMM RESOURCES SDN BHD

MRCB BUILDERS SDN BHD SMM RESOURCES SDN BHD

The Court held that the adjudicator acted in excess of jurisdiction by awarding SMM’s non‑certified claims for supply of workers from October 2018 to January 2019 which fell outside the Agreement completion date; that excess part (RM181,400) is severable and set aside, the remainder of the adjudication decision is valid and enforceable under s28 CIPAA; there was no material breach of natural justice warranting whole decision being set aside and the counterclaim/set‑off challenge was a merits issue not grounds to set aside.

Citation
WA-24C-125-06/2020 & WA-24C-150-07/2020 (Mahkamah Tinggi)
Parties
Plaintiff (o.s. No. WA 24 C 125 06/2020) and Defendant (o.s. No. WA 24 C 150 07/2020): MRCB Builders Sdn Bhd; Defendant (o.s. No. WA 24 C 125 06/2020) and Plaintiff (o.s. No. WA 24 C 150 07/2020): SMM Resources Sdn Bhd
Court
High Court
Jurisdiction
Malaysia
Judgment Date
30 November 2020
Case Number
WA-24C-125-06/2020 & WA-24C-150-07/2020 (Mahkamah Tinggi)
Procedural Posture
Originating Summons Under CIPAA (setting Aside and Enforcement Applications) / Decision on Applications to Set Aside Adjudication Decision and to Enforce Adjudication Decision
Outcome
Setting Aside Application dismissed; Enforcement Application allowed except that part of the Adjudication Decision awarding RM181,400 for non‑certified claims (Oct 2018–Jan 2019) is set aside and severed; remainder of AD enforceable.
Legal Topics
CIPAA Enforcement, Setting Aside Adjudication Decision, Natural Justice, Jurisdiction of Adjudicator, Severance of Adjudication Decision, Set Off/counterclaim
Source Language
Malay/English
Construction Law Adjudication Contract Law Civil Procedure CIPAA Enforcement Setting Aside Adjudication Decision Natural Justice Jurisdiction of Adjudicator +2 more

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Parties

MRCB Builders Sdn Bhd

Plaintiff (o.s. No. WA 24 C 125 06/2020) and Defendant (o.s. No. WA 24 C 150 07/2020)

SMM Resources Sdn Bhd

Defendant (o.s. No. WA 24 C 125 06/2020) and Plaintiff (o.s. No. WA 24 C 150 07/2020)

Procedural Posture

Originating Summons Under CIPAA (setting Aside and Enforcement Applications) / Decision on Applications to Set Aside Adjudication Decision and to Enforce Adjudication Decision

Legal Issues

  1. 1 Whether the adjudicator breached natural justice by failing to give reasons and by not considering respondents' defences and set-off
  2. 2 Whether the adjudicator acted in excess of jurisdiction by awarding non‑certified claims outside the contract period (Oct 2018–Jan 2019)
  3. 3 Whether a part of an adjudication decision made in excess of jurisdiction can be severed and the remainder enforced under s28 CIPAA

Ratio Decidendi

The Court held that the adjudicator acted in excess of jurisdiction by awarding SMM’s non‑certified claims for supply of workers from October 2018 to January 2019 which fell outside the Agreement completion date; that excess part (RM181,400) is severable and set aside, the remainder of the adjudication decision is valid and enforceable under s28 CIPAA; there was no material breach of natural justice warranting whole decision being set aside and the counterclaim/set‑off challenge was a merits issue not grounds to set aside.

Court Disposition

Setting Aside Application dismissed; Enforcement Application allowed except that part of the Adjudication Decision awarding RM181,400 for non‑certified claims (Oct 2018–Jan 2019) is set aside and severed; remainder of AD enforceable.

Orders

  • Setting Aside Application dismissed.
  • Enforcement Application allowed, except the adjudicator’s award in respect of SMM’s non‑certified claims for Oct 2018–Jan 2019 in the sum of RM181,400.00 is set aside and severed from the Adjudication Decision.