TN SYNERGY SDN BHD AIROFLUID ALLIANCE SDN BHD

TN SYNERGY SDN BHD AIROFLUID ALLIANCE SDN BHD

TNS failed to prove on balance of probabilities that the adjudication decision was improperly procured through fraud: the earlier payment response of 26 July 2018 was superseded by Airofluid's new payment claim of 27 May 2019 to which TNS did not respond; there was no statutory duty on Airofluid to disclose TNS's prior payment response; TNS's evidence of fabrication (engineer's valuation and police report) was insufficient and overvaluation alone did not establish fraud; accordingly OS1 was dismissed and OS2 to enforce the adjudication decision allowed.

Citation
wa-24c-32-02/2020 & wa-24c-35-02/2020 (Mahkamah Tinggi)
Parties
Plaintiff in Os1; Defendant in OS2: TN Synergy Sdn Bhd; Defendant in Os1; Plaintiff in OS2: Airofluid Alliance Sdn Bhd
Court
High Court
Jurisdiction
Malaysia
Judgment Date
13 November 2020
Case Number
wa-24c-32-02/2020 & wa-24c-35-02/2020 (Mahkamah Tinggi)
Procedural Posture
Applications Under Construction Industry Payment and Adjudication Act 2012 (cipaa) to Set Aside and to Enforce Adjudication Decision / High Court Determination on Cross Applications (grounds of Decision)
Outcome
Originating Summons WA-24C-32-02/2020 (OS1) dismissed; Originating Summons WA-24C-35-02/2020 (OS2) allowed
Legal Topics
CIPAA S15 Set Aside, CIPAA S28 Enforcement, Fraud as Ground to Set Aside, Duty of Disclosure in Adjudication, Participation and Ex‑parte Adjudication
Source Language
Malay/English
Construction Law Civil Procedure Adjudication/enforcement CIPAA S15 Set Aside CIPAA S28 Enforcement Fraud as Ground to Set Aside Duty of Disclosure in Adjudication Participation and Ex‑parte Adjudication

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Parties

TN Synergy Sdn Bhd

Plaintiff in Os1; Defendant in OS2

Airofluid Alliance Sdn Bhd

Defendant in Os1; Plaintiff in OS2

Procedural Posture

Applications Under Construction Industry Payment and Adjudication Act 2012 (cipaa) to Set Aside and to Enforce Adjudication Decision / High Court Determination on Cross Applications (grounds of Decision)

Legal Issues

  1. 1 Whether the adjudication decision was improperly procured through fraud
  2. 2 Whether claimant had duty to disclose respondent's earlier payment response to adjudicator
  3. 3 Whether non‑participation by respondent bars enforcement defences

Ratio Decidendi

TNS failed to prove on balance of probabilities that the adjudication decision was improperly procured through fraud: the earlier payment response of 26 July 2018 was superseded by Airofluid's new payment claim of 27 May 2019 to which TNS did not respond; there was no statutory duty on Airofluid to disclose TNS's prior payment response; TNS's evidence of fabrication (engineer's valuation and police report) was insufficient and overvaluation alone did not establish fraud; accordingly OS1 was dismissed and OS2 to enforce the adjudication decision allowed.

Court Disposition

Originating Summons WA-24C-32-02/2020 (OS1) dismissed; Originating Summons WA-24C-35-02/2020 (OS2) allowed

Orders

  • OS1 dismissed with costs of MYR 7500.00 subject to 4% allocator
  • OS2 allowed with costs of MYR 7500.00 subject to 4% allocator