1. ) GENBINA SDN BHD 2. ) BINA PURI CONSTRUCTION SDN BHD 1. ) BINA PURI CONSTRUCTION SDN BHD 2. ) GENBINA SDN BHD

1. ) GENBINA SDN BHD 2. ) BINA PURI CONSTRUCTION SDN BHD 1. ) BINA PURI CONSTRUCTION SDN BHD 2. ) GENBINA SDN BHD

The High Court held there was no clear and unequivocal error in the adjudicator's decision and the existence of arbitration does not automatically entitle a stay; given Genbina is under receivership with secured debentures, the receivers have power to recover the adjudicated sum, so the stay was refused, enforcement...

Source-derived case information.

Citation
WA-24C-273-12/2018 & WA-24C-63-04/2019 (Mahkamah Tinggi)
Parties
Plaintiff (os WA 24 C 273 12/2018); Defendant (os WA 24 C 63 04/2019): Genbina Sdn Bhd; Defendant (os WA 24 C 273 12/2018); Plaintiff (os WA 24 C 63 04/2019): Bina Puri Construction Sdn Bhd
Court
High Court
Jurisdiction
Malaysia
Judgment Date
26 July 2019
Case Number
WA-24C-273-12/2018 & WA-24C-63-04/2019 (Mahkamah Tinggi)
Procedural Posture
Originating Summonses Under CIPAA 2012 (enforcement and Stay Applications) / High Court Judgment on Concurrent Enforcement and Stay Applications
Outcome
Enforcement application allowed; Stay application dismissed
Legal Topics
Section 16 CIPAA Stay Jurisdiction, Section 28 CIPAA Enforcement, Powers of Receivers and Managers, Deposit of Adjudicated Sum With Arbitration Centre, Set Off and Liquidated Damages, Pay Now Argue Later Principle
Construction Law Adjudication Arbitration Insolvency and Liquidation Company Law Security Interests/receivership Section 16 CIPAA Stay Jurisdiction Section 28 CIPAA Enforcement +4 more

Source-derived case record

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Parties

Genbina Sdn Bhd

Plaintiff (os WA 24 C 273 12/2018); Defendant (os WA 24 C 63 04/2019)

Bina Puri Construction Sdn Bhd

Defendant (os WA 24 C 273 12/2018); Plaintiff (os WA 24 C 63 04/2019)

Procedural Posture

Originating Summonses Under CIPAA 2012 (enforcement and Stay Applications) / High Court Judgment on Concurrent Enforcement and Stay Applications

Legal Issues

  1. 1 Whether the adjudication decision is enforceable under section 28 CIPAA
  2. 2 Whether a stay under section 16(1)(b) CIPAA should be granted because arbitration is pending
  3. 3 Whether there is a clear and unequivocal error in the adjudicator's decision justifying a stay

Ratio Decidendi

The High Court held there was no clear and unequivocal error in the adjudicator's decision and the existence of arbitration does not automatically entitle a stay; given Genbina is under receivership with secured debentures, the receivers have power to recover the adjudicated sum, so the stay was refused, enforcement was allowed, and the court ordered the adjudicated sum to be deposited with the Director of AIAC within 14 working days pending final arbitration; costs RM6,000 awarded to each successful applicant/party.

Court Disposition

Enforcement application allowed; Stay application dismissed

Orders

  • Stay Application (OS No. WA-24C-63-04/2019) dismissed with costs of RM6,000.00 subject to allocatur
  • Enforcement Application (OS No. WA-24C-273-12/2018) allowed with costs of RM6,000.00 subject to payment of allocatur fee