PERPETUAL NICE VIEW SDN. BHD. (Co. No.: 614871-M) PEMBINAAN TUJU SETIA SDN. BHD. (Co. No.: 711437-P)

PERPETUAL NICE VIEW SDN. BHD. (Co. No.: 614871-M) PEMBINAAN TUJU SETIA SDN. BHD. (Co. No.: 711437-P)

The court held the adjudicator did not breach the second rule of natural justice and any alleged errors were merits matters for arbitration under s13(c) CIPAA; a stay was not warranted under s16 because no clear error or injustice requiring stay was shown and PTS would suffer real prejudice to cash flow; leave to enforce under s28 was granted because the adjudication decision was in PTS's favour, unpaid and not stayed or set aside, but the court lacked power under s28 to order immediate payment beyond enforcing the decision as a judgment, so prayers for immediate payment were refused.

Citation
BA-24C-78-08/2018 (Mahkamah Tinggi)
Parties
Plaintiff/defendant: Perpetual Nice View Sdn. Bhd.; Defendant/plaintiff: Pembinaan Tuju Setia Sdn. Bhd.
Court
High Court
Jurisdiction
Malaysia
Judgment Date
8 November 2019
Case Number
BA-24C-78-08/2018 (Mahkamah Tinggi)
Procedural Posture
Originating Summons (cipaa Adjudication and Enforcement) / Judgment
Outcome
Setting Aside OS and Stay OS dismissed; Enforcement OS granted in part (leave to enforce) and denied in part (no order for immediate payment); costs to be paid by PNV to PTS
Legal Topics
CIPAA Interpretation, Natural Justice (procedural Fairness), Stay of Adjudication, Setting Aside Adjudication Decision, Enforcement as Judgment, Adjudicator Powers and Jurisdiction
Source Language
Malay/English
Construction Law Arbitration Law Adjudication Procedure Civil Procedure Enforcement of Awards CIPAA Interpretation Natural Justice (procedural Fairness) Stay of Adjudication +3 more

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Parties

Perpetual Nice View Sdn. Bhd.

Plaintiff/defendant

Pembinaan Tuju Setia Sdn. Bhd.

Defendant/plaintiff

Procedural Posture

Originating Summons (cipaa Adjudication and Enforcement) / Judgment

Legal Issues

  1. 1 Whether adjudicator breached the second rule of natural justice by failing to consider contractual provisions and valuations
  2. 2 Whether adjudicator breached the second rule by considering irrelevant matters
  3. 3 Whether the court should stay the adjudication decision pending arbitration under s16 CIPAA

Ratio Decidendi

The court held the adjudicator did not breach the second rule of natural justice and any alleged errors were merits matters for arbitration under s13(c) CIPAA; a stay was not warranted under s16 because no clear error or injustice requiring stay was shown and PTS would suffer real prejudice to cash flow; leave to enforce under s28 was granted because the adjudication decision was in PTS's favour, unpaid and not stayed or set aside, but the court lacked power under s28 to order immediate payment beyond enforcing the decision as a judgment, so prayers for immediate payment were refused.

Court Disposition

Setting Aside OS and Stay OS dismissed; Enforcement OS granted in part (leave to enforce) and denied in part (no order for immediate payment); costs to be paid by PNV to PTS

Orders

  • Setting Aside Originating Summons dismissed
  • Stay Originating Summons dismissed