BAUER (MALAYSIA) SDN BHD MERIDIAN CONTRACTS SDN BHD

BAUER (MALAYSIA) SDN BHD MERIDIAN CONTRACTS SDN BHD

The Enforcement Application was allowed because Meridian satisfied the s28 CIPAA criteria (adjudication decision in its favour, non-payment and no set aside or stay) and Bauer had not applied to set aside the 3rd AD under s15; the Stay Application was dismissed because although arbitration was pending, Bauer did not demonstrate clear and unequivocal error nor that justice required a stay, and Meridian's financial position indicated it could repay the adjudicated sum, while granting a stay would undermine CIPAA's statutory purpose to protect cashflow.

Citation
WA-24C-134-08/2023 (Mahkamah Tinggi)
Parties
Plaintiff (o.s. No. WA 24 C 123 08/2023); Defendant (o.s. No. WA 24 C 134 08/2023): Meridian Contracts Sdn Bhd; Plaintiff (o.s. No. WA 24 C 134 08/2023); Defendant (o.s. No. WA 24 C 123 08/2023): Bauer (Malaysia) Sdn Bhd
Court
High Court
Jurisdiction
Malaysia
Judgment Date
15 November 2023
Case Number
WA-24C-134-08/2023 (Mahkamah Tinggi)
Procedural Posture
Originating Summonses Under the Construction Industry Payment and Adjudication Act 2012 (cipaa) Enforcement and Stay Applications / High Court Judgment on Enforcement (s28 Cipaa) and Stay (s16 Cipaa) Applications
Outcome
Enforcement Application allowed; Stay Application dismissed.
Legal Topics
Enforcement of Adjudication Decision, Stay of Adjudication Decision Pending Arbitration, Set Aside Under S15 CIPAA, Financial Capacity to Repay Adjudicated Sum, Costs
Source Language
Malay/English
Construction Law Arbitration Civil Procedure Insolvency/company Law Statutory Adjudication Enforcement of Adjudication Decision Stay of Adjudication Decision Pending Arbitration Set Aside Under S15 CIPAA +2 more

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Parties

Meridian Contracts Sdn Bhd

Plaintiff (o.s. No. WA 24 C 123 08/2023); Defendant (o.s. No. WA 24 C 134 08/2023)

Bauer (Malaysia) Sdn Bhd

Plaintiff (o.s. No. WA 24 C 134 08/2023); Defendant (o.s. No. WA 24 C 123 08/2023)

Procedural Posture

Originating Summonses Under the Construction Industry Payment and Adjudication Act 2012 (cipaa) Enforcement and Stay Applications / High Court Judgment on Enforcement (s28 Cipaa) and Stay (s16 Cipaa) Applications

Legal Issues

  1. 1 Whether the 3rd Adjudication Decision dated 17.7.2023 could be enforced under s28 CIPAA
  2. 2 Whether the 3rd Adjudication Decision should be stayed under s16 CIPAA pending arbitration
  3. 3 Whether the respondent has shown clear and unequivocal error or that justice requires a stay

Ratio Decidendi

The Enforcement Application was allowed because Meridian satisfied the s28 CIPAA criteria (adjudication decision in its favour, non-payment and no set aside or stay) and Bauer had not applied to set aside the 3rd AD under s15; the Stay Application was dismissed because although arbitration was pending, Bauer did not demonstrate clear and unequivocal error nor that justice required a stay, and Meridian's financial position indicated it could repay the adjudicated sum, while granting a stay would undermine CIPAA's statutory purpose to protect cashflow.

Court Disposition

Enforcement Application allowed; Stay Application dismissed.

Orders

  • Enforcement Application (O.S. No. WA-24C-123-08/2023) allowed and the 3rd Adjudication Decision dated 17.7.2023 enforced as if a judgment or order of the High Court.
  • Stay Application (O.S. No. WA-24C-134-08/2023) dismissed.