Oxley Rising Sdn. Bhd. Ssangyong Engineering & Construction Co. Ltd.

Oxley Rising Sdn. Bhd. Ssangyong Engineering & Construction Co. Ltd.

The High Court set aside the adjudication decision under s15(b) CIPAA because the adjudicator materially relied on a voluminous expert report included in the Adjudication Reply without giving Oxley a reasonable opportunity to comment or respond; that denial of natural justice was material to the outcome (not peripheral) and warranted setting aside the adjudication and dismissal of the enforcement application.

Citation
WA-24C-98-04/2022 (Mahkamah Tinggi)
Parties
Applicant / Defendant: SSANGYONG ENGINEERING & CONSTRUCTION CO. LTD.; Respondent / Plaintiff: OXLEY RISING SDN BHD
Court
High Court
Jurisdiction
Malaysia
Judgment Date
16 November 2022
Case Number
WA-24C-98-04/2022 (Mahkamah Tinggi)
Procedural Posture
CIPAA Adjudication Setting Aside and Enforcement Applications (originating Summons Nos. WA 24 C 97 & WA 24 C 98/2022) / Judgment on Applications; Setting Aside Allowed; Enforcement Dismissed; Appeal Filed by SSY
Outcome
Setting Aside Application allowed (adjudication decision set aside); Enforcement Application dismissed; Stay Application struck out by agreement with no order as to costs.
Legal Topics
CIPAA S15 Set Aside, Natural Justice (audi Alteram Partem), Enforcement of Adjudication Decisions, Extension of Time (eot) Disputes, Judicial Review of Adjudicator Process
Source Language
Malay/English
Construction Law Adjudication and Arbitration Law Civil Procedure CIPAA S15 Set Aside Natural Justice (audi Alteram Partem) Enforcement of Adjudication Decisions Extension of Time (eot) Disputes Judicial Review of Adjudicator Process

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Parties

SSANGYONG ENGINEERING & CONSTRUCTION CO. LTD.

Applicant / Defendant

OXLEY RISING SDN BHD

Respondent / Plaintiff

Procedural Posture

CIPAA Adjudication Setting Aside and Enforcement Applications (originating Summons Nos. WA 24 C 97 & WA 24 C 98/2022) / Judgment on Applications; Setting Aside Allowed; Enforcement Dismissed; Appeal Filed by SSY

Legal Issues

  1. 1 Whether the adjudicator denied natural justice by relying on an expert report in the Adjudication Reply without giving the respondent an opportunity to respond
  2. 2 Whether the adjudicator was biased or lacked impartiality
  3. 3 Whether the adjudicator acted in excess of jurisdiction in deciding on termination and counterclaims

Ratio Decidendi

The High Court set aside the adjudication decision under s15(b) CIPAA because the adjudicator materially relied on a voluminous expert report included in the Adjudication Reply without giving Oxley a reasonable opportunity to comment or respond; that denial of natural justice was material to the outcome (not peripheral) and warranted setting aside the adjudication and dismissal of the enforcement application.

Court Disposition

Setting Aside Application allowed (adjudication decision set aside); Enforcement Application dismissed; Stay Application struck out by agreement with no order as to costs.

Orders

  • Adjudication decision set aside pursuant to s15(b) CIPAA (denial of natural justice)
  • Enforcement Application dismissed