1. ) MRCB BUILDERS SDN BHD 2. ) SMM RESOURCES SDN BHD 1. ) SMM RESOURCES SDN BHD 2. ) MRCB BUILDERS SDN BHD

1. ) MRCB BUILDERS SDN BHD 2. ) SMM RESOURCES SDN BHD 1. ) SMM RESOURCES SDN BHD 2. ) MRCB BUILDERS SDN BHD

The adjudication decision was void under s 12(3) CIPAA because it was not released to the parties within the mandatory 45 working days and the adjudicator did not properly exercise or record a lawful withholding under s 19(5) CIPAA (no proper Form 14 notice and inconsistent Form 16), therefore the adjudicator exceeded jurisdiction and the Setting Aside Application must be allowed and enforcement dismissed.

Citation
WA-24C-97-05/2020 & WA-24C-147-06/2020 (Mahkamah Tinggi)
Parties
Plaintiff (in O.s. WA 24 C 97 05/2020); Defendant (in O.s. WA 24 C 147 06/2020): MRCB Builders Sdn Bhd (Company No.: 300947-T); Defendant (in O.s. WA 24 C 97 05/2020); Plaintiff (in O.s. WA 24 C 147 06/2020): SMM Resources Sdn Bhd (Company No.: 834478-H)
Court
High Court
Jurisdiction
Malaysia
Judgment Date
5 October 2020
Case Number
WA-24C-97-05/2020 & WA-24C-147-06/2020 (Mahkamah Tinggi)
Procedural Posture
Originating Summonss (applications Under Cipaa) / Hearing of Applications to Set Aside and to Enforce Adjudication Decision; Judgment Delivered
Outcome
Setting Aside Application allowed; Adjudication Decision declared null and void; Enforcement Application dismissed.
Legal Topics
CIPAA Time Limits (s 12), Validity and Enforcement of Adjudication Decisions, Withholding Decision Pending Payment of Fees (s 19(5)), Procedural Compliance With Adjudication Authority Rules, Natural Justice and Excess of Jurisdiction
Source Language
Malay/English
Construction Law Adjudication Law Civil Procedure Contract Law CIPAA Time Limits (s 12) Validity and Enforcement of Adjudication Decisions Withholding Decision Pending Payment of Fees (s 19(5)) Procedural Compliance With Adjudication Authority Rules +1 more

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Parties

MRCB Builders Sdn Bhd (Company No.: 300947-T)

Plaintiff (in O.s. WA 24 C 97 05/2020); Defendant (in O.s. WA 24 C 147 06/2020)

SMM Resources Sdn Bhd (Company No.: 834478-H)

Defendant (in O.s. WA 24 C 97 05/2020); Plaintiff (in O.s. WA 24 C 147 06/2020)

Procedural Posture

Originating Summonss (applications Under Cipaa) / Hearing of Applications to Set Aside and to Enforce Adjudication Decision; Judgment Delivered

Legal Issues

  1. 1 Whether the adjudication decision delivered after the 45 working day statutory period was void under s 12(3) CIPAA
  2. 2 Whether the adjudicator was entitled to withhold release of the decision pending full payment of fees and expenses under s 19(5) CIPAA and AIAC/KLRCA rules
  3. 3 Whether the adjudicator complied with prescribed notice/formalities (Form 14) when withholding the decision

Ratio Decidendi

The adjudication decision was void under s 12(3) CIPAA because it was not released to the parties within the mandatory 45 working days and the adjudicator did not properly exercise or record a lawful withholding under s 19(5) CIPAA (no proper Form 14 notice and inconsistent Form 16), therefore the adjudicator exceeded jurisdiction and the Setting Aside Application must be allowed and enforcement dismissed.

Court Disposition

Setting Aside Application allowed; Adjudication Decision declared null and void; Enforcement Application dismissed.

Orders

  • Adjudication Decision dated 20.3.2020 (as revised 10.4.2020) is set aside and declared null and void.
  • Setting Aside Application allowed with costs of MYR 7,000.00 (subject to allocator fees).