Bond M & E Sdn Bhd Pali PTP Sdn Bhd

Bond M & E Sdn Bhd Pali PTP Sdn Bhd

The Court of Appeal held that Bond satisfied the requirements of section 30 CIPAA and that the phrase 'adjudicated amount' in section 30 CIPAA must be construed purposively to include the principal sum, interest and costs awarded in the adjudication decision; non‑payment is presumed upon a proper written request and the onus shifts to the principal to seek proof of payment, therefore Pali was liable to pay Bond directly the full adjudicated amount including interest and costs; Appeal 314 dismissed and Appeal 399 allowed (High Court judgment varied accordingly).

Citation
W-02(C)(A)-399-02/2021 (Mahkamah Rayuan)
Parties
Appellant (civil Appeal W 02(c)(a) 314 02/2021); Respondent (civil Appeal W 02(c)(a) 399 02/2021): Pali PTP Sdn Bhd; Respondent (civil Appeal W 02(c)(a) 314 02/2021); Appellant (civil Appeal W 02(c)(a) 399 02/2021): Bond M&E Sdn Bhd
Court
C
Jurisdiction
Malaysia
Judgment Date
9 December 2022
Case Number
W-02(C)(A)-399-02/2021 (Mahkamah Rayuan)
Procedural Posture
Civil Appeal Under CIPAA (section 30) / Court of Appeal Judgment (appeal Heard 9 Dec 2022; Judgment 1 Sep 2023)
Outcome
Appeal 314 dismissed; Appeal 399 allowed; High Court judgment varied to require Pali to pay Bond the adjudicated principal sum together with interest and costs as awarded in the adjudication decision; costs awarded to Bond.
Legal Topics
CIPAA Section 30 Direct Payment, Definition of 'adjudicated Amount', Inclusion of Interest and Costs in Enforcement, Enforcement of Adjudication Decisions, Onus of Proof of Payment
Source Language
Malay/English
Construction Law Statutory Adjudication Contract Law Civil Procedure Arbitration Law CIPAA Section 30 Direct Payment Definition of 'adjudicated Amount' Inclusion of Interest and Costs in Enforcement +2 more

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Parties

Pali PTP Sdn Bhd

Appellant (civil Appeal W 02(c)(a) 314 02/2021); Respondent (civil Appeal W 02(c)(a) 399 02/2021)

Bond M&E Sdn Bhd

Respondent (civil Appeal W 02(c)(a) 314 02/2021); Appellant (civil Appeal W 02(c)(a) 399 02/2021)

Procedural Posture

Civil Appeal Under CIPAA (section 30) / Court of Appeal Judgment (appeal Heard 9 Dec 2022; Judgment 1 Sep 2023)

Legal Issues

  1. 1 Whether the phrase 'adjudicated amount' in section 30 CIPAA includes interest and costs
  2. 2 Whether the claimant (sub‑contractor) must prove non‑payment before invoking section 30 CIPAA or whether non‑payment is presumed and onus shifts to the principal
  3. 3 Whether Pali was liable to make direct payment to Bond under section 30 CIPAA at the time of the Notice of Direct Payment

Ratio Decidendi

The Court of Appeal held that Bond satisfied the requirements of section 30 CIPAA and that the phrase 'adjudicated amount' in section 30 CIPAA must be construed purposively to include the principal sum, interest and costs awarded in the adjudication decision; non‑payment is presumed upon a proper written request and the onus shifts to the principal to seek proof of payment, therefore Pali was liable to pay Bond directly the full adjudicated amount including interest and costs; Appeal 314 dismissed and Appeal 399 allowed (High Court judgment varied accordingly).

Court Disposition

Appeal 314 dismissed; Appeal 399 allowed; High Court judgment varied to require Pali to pay Bond the adjudicated principal sum together with interest and costs as awarded in the adjudication decision; costs awarded to Bond.

Orders

  • Appeal W-02(C)(A)-314-02/2021 dismissed with costs of RM10,000.00 to Bond subject to allocator
  • Appeal W-02(C)(A)-399-02/2021 allowed; High Court judgment varied to include payment by Pali to Bond of the adjudicated amount comprising principal RM3,387,425.44 together with interest and costs as awarded in the Adjudication Decision