NCT BUILDING & CIVIL ENGINEERING SDN. BHD. SINOHYDRO CORPORATION (M) SDN. BHD.

NCT BUILDING & CIVIL ENGINEERING SDN. BHD. SINOHYDRO CORPORATION (M) SDN. BHD.

On the factual matrix of the Letter of Mandate, LoA and Consortium Agreement Sinohydro was an unpaid party within s4 CIPAA and had locus to issue the payment claim; the adjudicator did not act in excess of jurisdiction nor breach natural justice in taking into account the Performance Bond because the Performance Bond matter was raised in the pleadings (Payment Response and Adjudication Reply) and adjudication pleadings must be considered; consequently the setting aside and stay applications were dismissed and enforcement was allowed.

Citation
WA-24C-64-04/2019, WA-24C-65-04/2019 & WA-24C-82-05/2019 (Mahkamah Tinggi)
Parties
Applicant in WA 24 C 64 04/2019 & WA 24 C 65 04/2019; Defendant/respondent in WA 24 C 82 05/2019: NCT Building & Civil Engineering Sdn. Bhd.; Respondent in WA 24 C 64 04/2019 & WA 24 C 65 04/2019; Plaintiff/applicant in WA 24 C 82 05/2019: Sinohydro Corporation (M) Sdn. Bhd.
Court
High Court
Jurisdiction
Malaysia
Judgment Date
1 November 2019
Case Number
WA-24C-64-04/2019, WA-24C-65-04/2019 & WA-24C-82-05/2019 (Mahkamah Tinggi)
Procedural Posture
Originating Summonses Under the Construction Industry Payment and Adjudication Act 2012 (cipaa) for Setting Aside, Stay and Enforcement of an Adjudication Decision / Judgment on Applications to Set Aside (s15), Stay (s16) and Enforce (s28) an Adjudication Decision
Outcome
NCT's setting aside and stay applications dismissed; Sinohydro's enforcement application allowed.
Legal Topics
Payment Claim, Adjudication, Setting Aside, Enforcement, Stay, Performance Bond, Consortium Liability, Natural Justice, Jurisdictional Limits
Source Language
Malay/English
Construction Law Civil Procedure Company Law Adjudication Law Payment Claim Adjudication Setting Aside Enforcement +5 more

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 4 Authorities cited 9 Party arguments 2 Amounts and remedies 10
Sign in to unlock

Parties

NCT Building & Civil Engineering Sdn. Bhd.

Applicant in WA 24 C 64 04/2019 & WA 24 C 65 04/2019; Defendant/respondent in WA 24 C 82 05/2019

Sinohydro Corporation (M) Sdn. Bhd.

Respondent in WA 24 C 64 04/2019 & WA 24 C 65 04/2019; Plaintiff/applicant in WA 24 C 82 05/2019

Procedural Posture

Originating Summonses Under the Construction Industry Payment and Adjudication Act 2012 (cipaa) for Setting Aside, Stay and Enforcement of an Adjudication Decision / Judgment on Applications to Set Aside (s15), Stay (s16) and Enforce (s28) an Adjudication Decision

Legal Issues

  1. 1 Whether Sinohydro was an "unpaid party" entitled to issue a payment claim under s4 and s5 CIPAA
  2. 2 Whether the adjudicator acted in excess of jurisdiction under s15(d) CIPAA
  3. 3 Whether there was denial of natural justice under s15(b) CIPAA

Ratio Decidendi

On the factual matrix of the Letter of Mandate, LoA and Consortium Agreement Sinohydro was an unpaid party within s4 CIPAA and had locus to issue the payment claim; the adjudicator did not act in excess of jurisdiction nor breach natural justice in taking into account the Performance Bond because the Performance Bond matter was raised in the pleadings (Payment Response and Adjudication Reply) and adjudication pleadings must be considered; consequently the setting aside and stay applications were dismissed and enforcement was allowed.

Court Disposition

NCT's setting aside and stay applications dismissed; Sinohydro's enforcement application allowed.

Orders

  • O.S. No. WA-24C-65-04/2019 (Setting Aside) dismissed with costs of RM15000.00 payable by applicant to respondent (subject to allocatur)
  • O.S. No. WA-24C-64-04/2019 (Stay) dismissed with costs of RM5000.00 payable by applicant to respondent (subject to allocatur)