1. ) BA-24C-73-07/2020 LION PACIFIC SDN. BHD. (Co. No.: 199001015947(207616-P)] 2. ) BA-24C-70-07/2020 PESTECH TECHNOLOGY SDN. BHD. (Co. No.: 201301045990(1075814-X)] 1. ) PESTECH TECHNOLOGY SDN. BHD. [Co. No.: 201301045990 (1075814-X)] 2.

1. ) BA-24C-73-07/2020 LION PACIFIC SDN. BHD. (Co. No.: 199001015947(207616-P)] 2. ) BA-24C-70-07/2020 PESTECH TECHNOLOGY SDN. BHD. (Co. No.: 201301045990(1075814-X)] 1. ) PESTECH TECHNOLOGY SDN. BHD. [Co. No.: 201301045990 (1075814-X)] 2.

The adjudicator had jurisdiction because the parties' rights arose under the Sub-Contract concluded after CIPAA; Clause 4.1 (pay-if-certified) is a conditional payment provision and void under s35(1) CIPAA; the adjudicator did not act beyond jurisdiction nor breach natural justice and provided sufficient reasons; errors in the adjudicator's interpretation or exercise of discretion were not grounds to set aside the adjudication under s15 absent jurisdictional excess or material denial of natural justice; accordingly LP's setting aside and stay applications were dismissed and PT was granted leave to enforce the adjudication decision under s28 CIPAA.

Citation
BA-24C-70-07/2020 & BA-24C-73-07/2020 (Mahkamah Tinggi)
Parties
Plaintiff (os BA 24 C 73 07/2020) and Defendant (os BA 24 C 70 07/2020): Lion Pacific Sdn. Bhd.; Defendant (os BA 24 C 73 07/2020) and Plaintiff (os BA 24 C 70 07/2020): Pestech Technology Sdn. Bhd.
Court
High Court
Jurisdiction
Malaysia
Judgment Date
29 September 2020
Case Number
BA-24C-70-07/2020 & BA-24C-73-07/2020 (Mahkamah Tinggi)
Procedural Posture
Originating Summons (cipaa) / Judgment
Outcome
LP's setting aside application dismissed; LP's stay application dismissed; PT's originating summons for leave to enforce the adjudication decision allowed.
Legal Topics
Enforcement of Adjudication Decision, Setting Aside Adjudication Decision, Stay of Enforcement Pending Arbitration, Jurisdiction of Adjudicator, Prohibition of Conditional Payment Provisions (cipaa S35), Natural Justice in Adjudication, Interpretation of Incorporated Contracts
Source Language
Malay/English
Construction Law Statutory Adjudication Contract Law Civil Procedure Enforcement of Adjudication Decision Setting Aside Adjudication Decision Stay of Enforcement Pending Arbitration Jurisdiction of Adjudicator +3 more

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Parties

Lion Pacific Sdn. Bhd.

Plaintiff (os BA 24 C 73 07/2020) and Defendant (os BA 24 C 70 07/2020)

Pestech Technology Sdn. Bhd.

Defendant (os BA 24 C 73 07/2020) and Plaintiff (os BA 24 C 70 07/2020)

Procedural Posture

Originating Summons (cipaa) / Judgment

Legal Issues

  1. 1 Whether adjudicator had jurisdiction under CIPAA given incorporation of main contract into subcontract and date of contracts
  2. 2 Whether LP estopped from raising lack of jurisdiction for adjudication
  3. 3 Whether clause making payment conditional on certification (Clause 4.1) is void under s35(1) CIPAA and scope of s35(2) exceptions

Ratio Decidendi

The adjudicator had jurisdiction because the parties' rights arose under the Sub-Contract concluded after CIPAA; Clause 4.1 (pay-if-certified) is a conditional payment provision and void under s35(1) CIPAA; the adjudicator did not act beyond jurisdiction nor breach natural justice and provided sufficient reasons; errors in the adjudicator's interpretation or exercise of discretion were not grounds to set aside the adjudication under s15 absent jurisdictional excess or material denial of natural justice; accordingly LP's setting aside and stay applications were dismissed and PT was granted leave to enforce the adjudication decision under s28 CIPAA.

Court Disposition

LP's setting aside application dismissed; LP's stay application dismissed; PT's originating summons for leave to enforce the adjudication decision allowed.

Orders

  • LP's originating summons to set aside the adjudication decision dismissed
  • LP's application for a stay of enforcement of the adjudication decision dismissed