1. ) TECNICAS REUNIDAS MALAYSIA SDN BHD 2. ) 1. PETROVIETNAM ENGINEERING CONSULTANCY J.S.C. (PVE) 2. PETROVIETNAM ENGINEERING (M) SDN BHD 1. ) 1. PETROVIETNAM ENGINEERING CONSULTANCY J.S.C. (PVE) 2. PETROVIETNAM ENGINEERING (M) SDN BHD 2. )

1. ) TECNICAS REUNIDAS MALAYSIA SDN BHD 2. ) 1. PETROVIETNAM ENGINEERING CONSULTANCY J.S.C. (PVE) 2. PETROVIETNAM ENGINEERING (M) SDN BHD 1. ) 1. PETROVIETNAM ENGINEERING CONSULTANCY J.S.C. (PVE) 2. PETROVIETNAM ENGINEERING (M) SDN BHD 2. )

The court held that the Setting Aside Application failed: the adjudicator had jurisdiction under the CIPAA, the Payment Claim was validly served by a representative, and there was no material denial of natural justice or absolute lack of jurisdiction; RoBA did not bar adjudication/enforcement in the factual matrix; the adjudicator lawfully exercised procedural powers (including limiting documents) and made factual/legal findings on set‑offs and contract interpretation which do not justify setting aside the AD. Consequently the Enforcement Application was allowed. However, exercising its discretion under s16 CIPAA, the court granted a conditional stay of enforcement pending arbitration...

Citation
WA-24C-279-12/2019, WA-24C-280-12/2019 & WA-24C-284-12/2019 (Mahkamah Tinggi)
Parties
Plaintiff / Defendant (contracting Party): Tecnicas Reunidas Malaysia Sdn Bhd; 1st Defendant / 1st Plaintiff (consortium Member): Petrovietnam Engineering Consultancy J.S.C. (PVE); 2nd Defendant / 2nd Plaintiff (consortium Member): Petrovietnam Engineering (M) Sdn Bhd (PVEM)
Court
High Court
Jurisdiction
Malaysia
Judgment Date
19 March 2021
Case Number
WA-24C-279-12/2019, WA-24C-280-12/2019 & WA-24C-284-12/2019 (Mahkamah Tinggi)
Procedural Posture
Originating Summons Under the Construction Industry Payment and Adjudication Act 2012 (cipaa) / Applications for Setting Aside Adjudication Decision (s15), Stay Pending Arbitration (s16) and Enforcement (s28); Judgment on Applications Delivered
Outcome
Setting Aside Application dismissed; Enforcement Application allowed; Stay Application allowed subject to conditions
Legal Topics
Setting Aside Adjudication Decision, Enforcement of Adjudication Decision, Stay of Adjudication Pending Arbitration, Jurisdictional Challenges (consortium Registration), Natural Justice in Adjudication, Payment Claims and Representation, Backcharges and Set Off, Interpretation and Application of Contract Documents (saccp, TR I, Gtcc), Joint and Several Liability, Swiss Law Issues (contractual Law)
Source Language
Malay/English
Construction Law Adjudication Under CIPAA Arbitration Law Contract Law Civil Procedure Company and Insolvency Law Statutory Interpretation Setting Aside Adjudication Decision +9 more

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Parties

Tecnicas Reunidas Malaysia Sdn Bhd

Plaintiff / Defendant (contracting Party)

Petrovietnam Engineering Consultancy J.S.C. (PVE)

1st Defendant / 1st Plaintiff (consortium Member)

Petrovietnam Engineering (M) Sdn Bhd (PVEM)

2nd Defendant / 2nd Plaintiff (consortium Member)

Procedural Posture

Originating Summons Under the Construction Industry Payment and Adjudication Act 2012 (cipaa) / Applications for Setting Aside Adjudication Decision (s15), Stay Pending Arbitration (s16) and Enforcement (s28); Judgment on Applications Delivered

Legal Issues

  1. 1 Whether the adjudication decision (AD) should be set aside under s15 CIPAA for denial of natural justice or excess of jurisdiction
  2. 2 Whether an unincorporated consortium (PVE & PVEM) lacked capacity/ locus to initiate adjudication/enforce AD due to non-registration under the Registration of Business Act 1956 (RoBA) or CIDB requirements
  3. 3 Whether the Payment Claim was validly served and could be served by a representative

Ratio Decidendi

The court held that the Setting Aside Application failed: the adjudicator had jurisdiction under the CIPAA, the Payment Claim was validly served by a representative, and there was no material denial of natural justice or absolute lack of jurisdiction; RoBA did not bar adjudication/enforcement in the factual matrix; the adjudicator lawfully exercised procedural powers (including limiting documents) and made factual/legal findings on set‑offs and contract interpretation which do not justify setting aside the AD. Consequently the Enforcement Application was allowed. However, exercising its discretion under s16 CIPAA, the court granted a conditional stay of enforcement pending arbitration...

Court Disposition

Setting Aside Application dismissed; Enforcement Application allowed; Stay Application allowed subject to conditions

Orders

  • Setting Aside Application dismissed with costs RM20,000.00 to Petrovietnam Engineering Consultancy J.S.C. (PVE) and RM20,000.00 to Petrovietnam Engineering (M) Sdn Bhd (PVEM) (subject to allocator)
  • Enforcement Application to register and enforce the Adjudication Decision allowed; costs RM3,000.00 payable to PVE and RM3,000.00 payable to PVEM