GUMI ASLI ELEKTRIKAL SDN. BHD. ( / ) (Co. No.: 99036-W) DAZZLING ELECTRICAL (M) SDN. BHD. ( / ) (Co. No.: 760567-V)

GUMI ASLI ELEKTRIKAL SDN. BHD. ( / ) (Co. No.: 99036-W) DAZZLING ELECTRICAL (M) SDN. BHD. ( / ) (Co. No.: 760567-V)

The court excluded the two late letters for non-compliance with O 28 r 3C; held applicant failed to prove fraud on the balance of probabilities and failed to show the adjudication decision was improperly procured through fraud; held that by failing to serve payment and adjudication responses Gumi allowed the adjudicator to proceed lawfully under ss 6(4) and 10(3) CIPAA; consequently s 15 grounds failed and the court exercised its discretion under s 28 CIPAA to allow enforcement of the adjudication decision and dismissed the setting aside application.

Citation
BA-24C-61-06/2019 DIDENGAR BERSAMA BA-24C-78-07/2019 (Mahkamah Tinggi)
Parties
Applicant (setting Aside Os) and Defendant (enforcement Os): Gumi Asli Elektrikal Sdn. Bhd.; Defendant (setting Aside Os) and Applicant (enforcement Os): Dazzling Electrical (M) Sdn. Bhd.
Court
High Court
Jurisdiction
Malaysia
Judgment Date
1 November 2019
Case Number
BA-24C-61-06/2019 DIDENGAR BERSAMA BA-24C-78-07/2019 (Mahkamah Tinggi)
Procedural Posture
Originating Summons (setting Aside and Enforcement of Adjudication Decision) / Judgment on Consolidated Originating Summonses
Outcome
Setting Aside OS dismissed; Enforcement OS allowed; one set of costs to be paid by Gumi to Dazzling; order to enforce adjudication decision as judgment under s 28 CIPAA.
Legal Topics
CIPAA Enforcement (s28), Setting Aside Adjudication Decision for Fraud (s15(a)), Denial of Natural Justice (s15(b)), Adjudication Procedure (ss6, 10, 17), Admissibility of Evidence Under Rules of Court O28 R3 C, Parol Evidence and Evidence Act Ss91 92
Source Language
Malay/English
Construction Law Civil Procedure Statutory Adjudication Contract Law Evidence Law CIPAA Enforcement (s28) Setting Aside Adjudication Decision for Fraud (s15(a)) Denial of Natural Justice (s15(b)) +3 more

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Parties

Gumi Asli Elektrikal Sdn. Bhd.

Applicant (setting Aside Os) and Defendant (enforcement Os)

Dazzling Electrical (M) Sdn. Bhd.

Defendant (setting Aside Os) and Applicant (enforcement Os)

Procedural Posture

Originating Summons (setting Aside and Enforcement of Adjudication Decision) / Judgment on Consolidated Originating Summonses

Legal Issues

  1. 1 Whether applicant may rely on two late letters not filed as affidavits in compliance with O 28 r 3C RC
  2. 2 Whether the adjudication decision was improperly procured through fraud within s 15(a) CIPAA (alleged misrepresentation and concealment)
  3. 3 Whether adjudicator lawfully proceeded in absence of respondent and whether denial of hearing under s 15(b) CIPAA arises given ss 6(4) and 10(3) CIPAA

Ratio Decidendi

The court excluded the two late letters for non-compliance with O 28 r 3C; held applicant failed to prove fraud on the balance of probabilities and failed to show the adjudication decision was improperly procured through fraud; held that by failing to serve payment and adjudication responses Gumi allowed the adjudicator to proceed lawfully under ss 6(4) and 10(3) CIPAA; consequently s 15 grounds failed and the court exercised its discretion under s 28 CIPAA to allow enforcement of the adjudication decision and dismissed the setting aside application.

Court Disposition

Setting Aside OS dismissed; Enforcement OS allowed; one set of costs to be paid by Gumi to Dazzling; order to enforce adjudication decision as judgment under s 28 CIPAA.

Orders

  • Setting Aside Originating Summons (BA-24C-61-06/2019) dismissed
  • Enforcement Originating Summons (BA-24C-78-07/2019) allowed; leave granted to enforce the adjudication decision as if a High Court judgment under s 28 CIPAA