JDI BUILTECH (M) SDN BHD DANGA JED DEVELOPMENT MALAYSIA SDN BHD (Dulu dikenali sebagai Greenland Danga Bay Sdn Bhd)

JDI BUILTECH (M) SDN BHD DANGA JED DEVELOPMENT MALAYSIA SDN BHD (Dulu dikenali sebagai Greenland Danga Bay Sdn Bhd)

s30(5) is an essential, over-arching precondition to any s30 direct payment order; the applicant (subcontractor) bore the legal burden to prove on a balance of probabilities that at the time it served the s30(1) request there was money due or payable by the principal to the main contractor; the subcontractor failed to discharge that burden; the principal produced contemporaneous QS report, calculations and correspondence showing bona fide dispute and substantial potential set-offs; therefore a direct payment order under s30 could not be made and the High Court dismissal was upheld.

Citation
J-02(C)(A)-1066-06/2022 (Mahkamah Rayuan)
Parties
Appellant / Subcontractor / Plaintiff: JDI Builtech (M) Sdn Bhd; Respondent / Principal / Employer: Danga JED Development Malaysia Sdn Bhd (formerly Greenland Danga Bay Sdn. Bhd.); Main Contractor / Party Against Whom Adjudication Decision Was Made: CTMCC Engineering (M) Sdn Bhd
Court
C
Jurisdiction
Malaysia
Judgment Date
22 November 2023
Case Number
J-02(C)(A)-1066-06/2022 (Mahkamah Rayuan)
Procedural Posture
Civil Appeal (court of Appeal) — Appeal From High Court Dismissal of S30 CIPAA Direct Payment Application / Final Judgment on Appeal (court of Appeal) After High Court Dismissal of Originating Summons Under S30 CIPAA
Outcome
Appeal dismissed. High Court order dismissing s30 CIPAA direct payment application affirmed.
Legal Topics
Section 30 CIPAA Direct Payment, S30(5) Precondition, Burden of Proof and Evidential Shifting, Set Off and Recovery as Debt, Privity of Contract, Conditional Payment Clauses (s35 Cipaa), Concurrent Remedies Under S31 CIPAA, Effect of Liquidation on Recovery
Source Language
Malay/English
Construction Law Statutory Adjudication Contract Law Insolvency Law Civil Procedure Evidence Law Section 30 CIPAA Direct Payment S30(5) Precondition +6 more

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Parties

JDI Builtech (M) Sdn Bhd

Appellant / Subcontractor / Plaintiff

Danga JED Development Malaysia Sdn Bhd (formerly Greenland Danga Bay Sdn. Bhd.)

Respondent / Principal / Employer

CTMCC Engineering (M) Sdn Bhd

Main Contractor / Party Against Whom Adjudication Decision Was Made

Procedural Posture

Civil Appeal (court of Appeal) — Appeal From High Court Dismissal of S30 CIPAA Direct Payment Application / Final Judgment on Appeal (court of Appeal) After High Court Dismissal of Originating Summons Under S30 CIPAA

Legal Issues

  1. 1 Whether s30(5) CIPAA is a foundational precondition to invoking s30 remedies
  2. 2 Who bears the legal and evidential burden to prove that money was due or payable by the principal to the main contractor at time of request
  3. 3 Whether prior consensual direct payments or indemnity letters or later demand letters establish that money was due or payable

Ratio Decidendi

s30(5) is an essential, over-arching precondition to any s30 direct payment order; the applicant (subcontractor) bore the legal burden to prove on a balance of probabilities that at the time it served the s30(1) request there was money due or payable by the principal to the main contractor; the subcontractor failed to discharge that burden; the principal produced contemporaneous QS report, calculations and correspondence showing bona fide dispute and substantial potential set-offs; therefore a direct payment order under s30 could not be made and the High Court dismissal was upheld.

Court Disposition

Appeal dismissed. High Court order dismissing s30 CIPAA direct payment application affirmed.

Orders

  • Appeal dismissed
  • Costs to the respondent fixed at RM10000.00 subject to allocator