Pelangi Hartajaya Sdn Bhd High Rise Millennium Sdn Bhd

Pelangi Hartajaya Sdn Bhd High Rise Millennium Sdn Bhd

The court held that the adjudicator complied with s12(4) by providing reasons, correctly applied contra proferentem because the retention-release clauses were reasonably susceptible to multiple constructions, and lawfully adjudicated uncertified sums under the statutory powers in s12(1) read with s25(n) despite contractual provisions to the contrary which would be void under s35; PH failed to show a clear and unequivocal error or that a stay was required in the interest of justice; consequently the stay application was dismissed and enforcement under s28 was granted with costs to HRM.

Citation
BA-24C-56-09/2021 (Mahkamah Tinggi)
Parties
Applicant (enforcement) and Defendant (stay): High Rise Millennium Sdn. Bhd.; Applicant (stay) and Defendant (enforcement): Pelangi Hartajaya Sdn. Bhd.
Court
High Court
Jurisdiction
Malaysia
Judgment Date
15 April 2022
Case Number
BA-24C-56-09/2021 (Mahkamah Tinggi)
Procedural Posture
Originating Summonses for Enforcement and Stay Under the Construction Industry Payment and Adjudication Act 2012 (cipaa) / Judgment on Concurrent Originating Summonses
Outcome
Amended Stay Originating Summons dismissed; Enforcement Originating Summons allowed
Legal Topics
CIPAA Enforcement Under S28, Stay Pending Arbitration Under S16(1)(b), Adjudicator Powers Under S12 and S25, Interpretation of Contract Clauses, Prohibition of Conditional Payment Provisions Under S35, Application of Contra Proferentem
Source Language
Malay/English
Construction Law Arbitration Law Contract Law Civil Procedure Statutory Adjudication CIPAA Enforcement Under S28 Stay Pending Arbitration Under S16(1)(b) Adjudicator Powers Under S12 and S25 +3 more

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Parties

High Rise Millennium Sdn. Bhd.

Applicant (enforcement) and Defendant (stay)

Pelangi Hartajaya Sdn. Bhd.

Applicant (stay) and Defendant (enforcement)

Procedural Posture

Originating Summonses for Enforcement and Stay Under the Construction Industry Payment and Adjudication Act 2012 (cipaa) / Judgment on Concurrent Originating Summonses

Legal Issues

  1. 1 Whether the adjudicator breached s12(4) CIPAA by failing to give reasons for the adjudicated uncertified sum
  2. 2 Whether the adjudicator erred in applying contra proferentem in construing Clauses 30.5(iii) and 30.0(viii)
  3. 3 Whether the adjudicator erred in determining uncertified sums contrary to Clause 30.2 of the contract

Ratio Decidendi

The court held that the adjudicator complied with s12(4) by providing reasons, correctly applied contra proferentem because the retention-release clauses were reasonably susceptible to multiple constructions, and lawfully adjudicated uncertified sums under the statutory powers in s12(1) read with s25(n) despite contractual provisions to the contrary which would be void under s35; PH failed to show a clear and unequivocal error or that a stay was required in the interest of justice; consequently the stay application was dismissed and enforcement under s28 was granted with costs to HRM.

Court Disposition

Amended Stay Originating Summons dismissed; Enforcement Originating Summons allowed

Orders

  • Amended Stay Originating Summons (BA-24C-56-09/2021) dismissed
  • Enforcement Originating Summons (BA-24C-48-08/2021) allowed and leave granted to enforce the adjudication decision as a judgment under s28 CIPAA