PANGLIMA BIDANG SDN BHD PEMBINAAN BINA BUMI SDN BHD

PANGLIMA BIDANG SDN BHD PEMBINAAN BINA BUMI SDN BHD

The Setting Aside Application was allowed because the adjudicator failed to consider or give proper weight to a material defence and evidence (the Employer’s Supplemental Agreement/Employer’s SA and debit notes reflecting direct payments), a failure that had a potentially significant effect on the adjudication outcome and thus amounted to breach of natural justice; consequentially the enforcement application was dismissed.

Citation
WA-24C-19-01/2022 (Mahkamah Tinggi)
Parties
Plaintiff (o.s. No. WA 24 C 19 01/2022); Defendant (o.s. No. WA 24 C 51 02/2022): Panglima Bidang Sdn Bhd (Company No.: 394420-D); Defendant (o.s. No. WA 24 C 19 01/2022); Plaintiff (o.s. No. WA 24 C 51 02/2022): Pembinaan Bina Bumi Sdn Bhd (Company No.: 854736-K)
Court
High Court
Jurisdiction
Malaysia
Judgment Date
6 July 2022
Case Number
WA-24C-19-01/2022 (Mahkamah Tinggi)
Procedural Posture
Originating Summonses Under CIPAA (enforcement and Setting Aside of Adjudication Decision) / Judgment on Competing Applications (setting Aside Allowed; Enforcement Dismissed)
Outcome
Setting Aside Application allowed; Enforcement Application dismissed.
Legal Topics
CIPAA S15 Setting Aside, CIPAA S28 Enforcement, Natural Justice, Privity of Contract, Estoppel by Convention, Liquidated and Ascertained Damages, Late Payment Interest, Jurisdiction of Adjudicator
Source Language
Malay/English
Construction Law Adjudication Civil Procedure Contract Law Equity (estoppel) CIPAA S15 Setting Aside CIPAA S28 Enforcement Natural Justice +5 more

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Parties

Panglima Bidang Sdn Bhd (Company No.: 394420-D)

Plaintiff (o.s. No. WA 24 C 19 01/2022); Defendant (o.s. No. WA 24 C 51 02/2022)

Pembinaan Bina Bumi Sdn Bhd (Company No.: 854736-K)

Defendant (o.s. No. WA 24 C 19 01/2022); Plaintiff (o.s. No. WA 24 C 51 02/2022)

Procedural Posture

Originating Summonses Under CIPAA (enforcement and Setting Aside of Adjudication Decision) / Judgment on Competing Applications (setting Aside Allowed; Enforcement Dismissed)

Legal Issues

  1. 1 Whether the adjudicator breached natural justice by failing to consider the Employer’s Supplemental Agreement and debit notes and the effect of direct payments
  2. 2 Whether the adjudicator failed to consider or lacked jurisdiction to decide the respondent’s claim for liquidated and ascertained damages (LAD) and set-off
  3. 3 Whether the adjudicator acted in excess of jurisdiction in awarding late payment interest

Ratio Decidendi

The Setting Aside Application was allowed because the adjudicator failed to consider or give proper weight to a material defence and evidence (the Employer’s Supplemental Agreement/Employer’s SA and debit notes reflecting direct payments), a failure that had a potentially significant effect on the adjudication outcome and thus amounted to breach of natural justice; consequentially the enforcement application was dismissed.

Court Disposition

Setting Aside Application allowed; Enforcement Application dismissed.

Orders

  • Setting Aside Application allowed with costs of RM5,000.00 (subject to allocatur)
  • Enforcement Application dismissed with costs of RM3,000.00 (subject to allocatur)