TK ELEVATOR MALAYSIA SDN. BHD. MERAH BAYU GLOBAL SDN. BHD.

TK ELEVATOR MALAYSIA SDN. BHD. MERAH BAYU GLOBAL SDN. BHD.

The Stay Application was dismissed because Merah Bayu failed to show that arbitration had been validly commenced under the PAM Sub‑Contract and PAM rules and failed to plead clear and unequivocal errors or interest of justice in its originating summons and affidavit; the Enforcement Application was allowed because TKE satisfied the conditions under s 28 CIPAA (adjudication decision rendered in its favour, non-payment, and no prohibition to enforcement) and Merah Bayu could not rely on s 15 grounds without a setting aside application.

Citation
WA-24C-129-08/2023 (Mahkamah Tinggi)
Parties
Plaintiff (o.s. No. WA 24 C 129 08/2023); Defendant (o.s. No. WA 24 C 145 09/2023): TK ELEVATOR MALAYSIA SDN BHD; Defendant (o.s. No. WA 24 C 129 08/2023); Plaintiff (o.s. No. WA 24 C 145 09/2023): MERAH BAYU GLOBAL SDN BHD
Court
High Court
Jurisdiction
Malaysia
Judgment Date
22 January 2024
Case Number
WA-24C-129-08/2023 (Mahkamah Tinggi)
Procedural Posture
Originating Summonses Under CIPAA 2012 to Enforce and to Stay an Adjudication Decision / Heard on Applications (stay and Enforcement) With Full Grounds of Judgment Delivered
Outcome
Stay Application dismissed; Enforcement Application allowed.
Legal Topics
CIPAA Enforcement (s 28), Stay of Adjudication Decision (s 16(1)(b)), Setting Aside Adjudication Decision (s 15), Commencement of Arbitration Under Contract/pam Rules, Costs for Procedural Non Compliance
Source Language
Malay/English
Construction Law Arbitration Civil Procedure Contract Law CIPAA Enforcement (s 28) Stay of Adjudication Decision (s 16(1)(b)) Setting Aside Adjudication Decision (s 15) Commencement of Arbitration Under Contract/pam Rules +1 more

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Parties

TK ELEVATOR MALAYSIA SDN BHD

Plaintiff (o.s. No. WA 24 C 129 08/2023); Defendant (o.s. No. WA 24 C 145 09/2023)

MERAH BAYU GLOBAL SDN BHD

Defendant (o.s. No. WA 24 C 129 08/2023); Plaintiff (o.s. No. WA 24 C 145 09/2023)

Procedural Posture

Originating Summonses Under CIPAA 2012 to Enforce and to Stay an Adjudication Decision / Heard on Applications (stay and Enforcement) With Full Grounds of Judgment Delivered

Legal Issues

  1. 1 Whether the Stay Application under s 16(1)(b) CIPAA should be granted given the existence of purported arbitration proceedings
  2. 2 Whether the Enforcement Application under s 28 CIPAA should be allowed and the adjudication decision enforced as a High Court judgment
  3. 3 Whether respondent may rely on grounds under s 15 CIPAA in resisting enforcement without filing a setting aside application

Ratio Decidendi

The Stay Application was dismissed because Merah Bayu failed to show that arbitration had been validly commenced under the PAM Sub‑Contract and PAM rules and failed to plead clear and unequivocal errors or interest of justice in its originating summons and affidavit; the Enforcement Application was allowed because TKE satisfied the conditions under s 28 CIPAA (adjudication decision rendered in its favour, non-payment, and no prohibition to enforcement) and Merah Bayu could not rely on s 15 grounds without a setting aside application.

Court Disposition

Stay Application dismissed; Enforcement Application allowed.

Orders

  • Stay Application dismissed.
  • Enforcement Application allowed and the Adjudication Decision to be enforced as a judgment of the High Court in favour of TK Elevator Malaysia Sdn Bhd for the adjudicated sum of RM101,187.50 together with adjudication costs as awarded and interest at 7.15% per annum from 21 September 2022 until full settlement.