1. ) MEI HE DEVELOPMENT SDN BHD 2. ) EOSH INDUSTRIES SDN BHD 1. ) EOSH INDUSTRIES SDN BHD 2. ) MEI HE DEVELOPMENT SDN BHD

1. ) MEI HE DEVELOPMENT SDN BHD 2. ) EOSH INDUSTRIES SDN BHD 1. ) EOSH INDUSTRIES SDN BHD 2. ) MEI HE DEVELOPMENT SDN BHD

The Court held there was no breach of natural justice and no excess of jurisdiction: the Adjudicator had considered the bad faith and withholding arguments and explained why an oral hearing and witnesses were unnecessary given the written material; s35 precluded conditional payment/set-off arguments affecting EOSH's entitlement; accordingly the Setting Aside and Stay applications were dismissed and the Enforcement application was allowed, with costs ordered against MHD.

Citation
WA-24C-27-01/2020 & WA-24C-45-02/2020 (Mahkamah Tinggi)
Parties
Plaintiff in WA 24 C 27 01/2020; Defendant in WA 24 C 45 02/2020: Mei He Development Sdn Bhd; Defendant in WA 24 C 27 01/2020; Plaintiff in WA 24 C 45 02/2020: EOSH Industries Sdn Bhd
Court
High Court
Jurisdiction
Malaysia
Judgment Date
4 September 2020
Case Number
WA-24C-27-01/2020 & WA-24C-45-02/2020 (Mahkamah Tinggi)
Procedural Posture
Originating Summons Under the Construction Industry Payment and Adjudication Act 2012 (cipaa) / Hearing and Judgment on Setting Aside, Stay and Enforcement Applications
Outcome
Setting Aside Application dismissed; Stay Application dismissed; Enforcement Application allowed
Legal Topics
CIPAA S15 Setting Aside, Enforcement Under S28 CIPAA, Stay of Adjudication Decision S16, Natural Justice and Procedural Fairness, Adjudicator Jurisdiction and S25 Powers
Source Language
Malay/English
Construction Law Adjudication Contract Law Civil Procedure CIPAA S15 Setting Aside Enforcement Under S28 CIPAA Stay of Adjudication Decision S16 Natural Justice and Procedural Fairness +1 more

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Parties

Mei He Development Sdn Bhd

Plaintiff in WA 24 C 27 01/2020; Defendant in WA 24 C 45 02/2020

EOSH Industries Sdn Bhd

Defendant in WA 24 C 27 01/2020; Plaintiff in WA 24 C 45 02/2020

Procedural Posture

Originating Summons Under the Construction Industry Payment and Adjudication Act 2012 (cipaa) / Hearing and Judgment on Setting Aside, Stay and Enforcement Applications

Legal Issues

  1. 1 Whether the Adjudicator breached natural justice by excluding or failing to consider respondent's bad faith defence
  2. 2 Whether refusal to hold an oral hearing and call witnesses amounted to denial of natural justice
  3. 3 Whether the Adjudicator acted in excess of jurisdiction under s15(d) CIPAA

Ratio Decidendi

The Court held there was no breach of natural justice and no excess of jurisdiction: the Adjudicator had considered the bad faith and withholding arguments and explained why an oral hearing and witnesses were unnecessary given the written material; s35 precluded conditional payment/set-off arguments affecting EOSH's entitlement; accordingly the Setting Aside and Stay applications were dismissed and the Enforcement application was allowed, with costs ordered against MHD.

Court Disposition

Setting Aside Application dismissed; Stay Application dismissed; Enforcement Application allowed

Orders

  • Setting Aside Application (O.S. No. WA-24C-27-01/2020) dismissed
  • Stay Application (encl. 4 in O.S. No. WA-24C-27-01/2020) dismissed