MRCB ENGINEERING SDN BHD TRIUMPHANT GALLERY SDN BHD

MRCB ENGINEERING SDN BHD TRIUMPHANT GALLERY SDN BHD

The court set aside the entire adjudication Decision because the adjudicator breached natural justice by refusing to entertain MRCB's backcharge counterclaim on the ground it was not pleaded in the payment response; notwithstanding views on ss.5,6 and 27, stare decisis obligations and the breach warranted setting aside the Decision in full where partial set-aside was not sought by TG.

Citation
WA-24C-176-10/2021 (Mahkamah Tinggi)
Parties
Plaintiff (os1); Defendant (os2): MRCB ENGINEERING SDN BHD; Defendant (os1); Plaintiff (os2): TRIUMPHANT GALLERY SDN BHD
Court
High Court
Jurisdiction
Malaysia
Judgment Date
9 March 2022
Case Number
WA-24C-176-10/2021 (Mahkamah Tinggi)
Procedural Posture
Originating Summons Under CIPAA to Set Aside and Enforce Adjudication Decision / Hearing and Judgment (decision Delivered)
Outcome
Originating Summons WA-24C-176-10/2021 allowed (set aside adjudication Decision); Originating Summons WA-24C-202-11/2021 dismissed (enforcement refused).
Legal Topics
CIPAA S.15 Set Aside, Adjudicator Jurisdiction (ss.5, 6, 27), Natural Justice in Adjudication, Counterclaim/set Off in Adjudication, Enforcement of Adjudication Decision
Source Language
Malay/English
Construction Law Statutory Adjudication Civil Procedure CIPAA S.15 Set Aside Adjudicator Jurisdiction (ss.5,6,27) Natural Justice in Adjudication Counterclaim/set Off in Adjudication Enforcement of Adjudication Decision

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Parties

MRCB ENGINEERING SDN BHD

Plaintiff (os1); Defendant (os2)

TRIUMPHANT GALLERY SDN BHD

Defendant (os1); Plaintiff (os2)

Procedural Posture

Originating Summons Under CIPAA to Set Aside and Enforce Adjudication Decision / Hearing and Judgment (decision Delivered)

Legal Issues

  1. 1 Whether an adjudicator may refuse to entertain a counterclaim/backcharge pleaded in the adjudication response but not in the payment response and whether that refusal breaches natural justice
  2. 2 Interplay and scope of ss.5, 6 and 27 CIPAA and the effect of s.6(4) deeming provision
  3. 3 Whether the adjudicator acted impartially or exercised procedural discretion perversely in granting/refusing extensions of time

Ratio Decidendi

The court set aside the entire adjudication Decision because the adjudicator breached natural justice by refusing to entertain MRCB's backcharge counterclaim on the ground it was not pleaded in the payment response; notwithstanding views on ss.5,6 and 27, stare decisis obligations and the breach warranted setting aside the Decision in full where partial set-aside was not sought by TG.

Court Disposition

Originating Summons WA-24C-176-10/2021 allowed (set aside adjudication Decision); Originating Summons WA-24C-202-11/2021 dismissed (enforcement refused).

Orders

  • The adjudication Decision dated 22 September 2021 is set aside in full.
  • OS 1 is allowed with costs of RM2,500.00 to the successful party subject to the usual allocator.