FULLOOP SDN BHD WABINA CONSTRUCTIONS & ENGINEERING SDN BHD

FULLOOP SDN BHD WABINA CONSTRUCTIONS & ENGINEERING SDN BHD

Court held Wabina was correctly named as the non-paying party because Clause 7 of the main contract expressly precluded privity between the employer and nominated sub-contractors; the adjudicator did not act in excess of jurisdiction in considering the SFA because it was admissible supporting evidence for the Progress Claim and sub-s 27(3) allowed continuation despite jurisdictional challenge; there was no denial of natural justice as Wabina had opportunity to be heard and its complaints were meritorious only as challenges to factual assessment (not grounds to set aside); costs awarded fell within the adjudicator's wide discretion and are not readily reviewable under s 15 CIPAA; stay...

Citation
WA-24C-67-03/2022 (Mahkamah Tinggi)
Parties
Plaintiff (o.s. No. 42 & 78); Defendant (o.s. No. 67): Wabina Constructions & Engineering Sdn Bhd; Plaintiff (o.s. No. 67); Defendant (o.s. No. 42 & 78): Fulloop Sdn Bhd
Court
High Court
Jurisdiction
Malaysia
Judgment Date
25 August 2022
Case Number
WA-24C-67-03/2022 (Mahkamah Tinggi)
Procedural Posture
Setting Aside, Stay and Enforcement Applications Under the Construction Industry Payment and Adjudication Act 2012 (cipaa) / High Court Judgment (decision Rendered)
Legal Topics
CIPAA Jurisdiction, Natural Justice, Enforcement of Adjudication Decision, Stay Pending Arbitration, Costs of Adjudication
Source Language
Malay/English
Construction Law Adjudication Contract Law Civil Procedure Arbitration CIPAA Jurisdiction Natural Justice Enforcement of Adjudication Decision +2 more

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Parties

Wabina Constructions & Engineering Sdn Bhd

Plaintiff (o.s. No. 42 & 78); Defendant (o.s. No. 67)

Fulloop Sdn Bhd

Plaintiff (o.s. No. 67); Defendant (o.s. No. 42 & 78)

Procedural Posture

Setting Aside, Stay and Enforcement Applications Under the Construction Industry Payment and Adjudication Act 2012 (cipaa) / High Court Judgment (decision Rendered)

Legal Issues

  1. 1 Whether Wabina is a non-paying party under s 5 CIPAA
  2. 2 Whether the adjudicator acted in excess of jurisdiction by relying on a Statement of Final Account (SFA) not in the Payment Claim
  3. 3 Whether there was a denial of natural justice (reversal of burden of proof and failure to consider submissions on costs)

Ratio Decidendi

Court held Wabina was correctly named as the non-paying party because Clause 7 of the main contract expressly precluded privity between the employer and nominated sub-contractors; the adjudicator did not act in excess of jurisdiction in considering the SFA because it was admissible supporting evidence for the Progress Claim and sub-s 27(3) allowed continuation despite jurisdictional challenge; there was no denial of natural justice as Wabina had opportunity to be heard and its complaints were meritorious only as challenges to factual assessment (not grounds to set aside); costs awarded fell within the adjudicator's wide discretion and are not readily reviewable under s 15 CIPAA; stay...