MAJLIS DAERAH CAMERON HIGHLANDS PUTRA NILAI BUILDERS SDN BHD

MAJLIS DAERAH CAMERON HIGHLANDS PUTRA NILAI BUILDERS SDN BHD

The High Court set aside the Adjudication Decision because the adjudicator committed a material breach of natural justice by deciding a new alternative basis for PNB's loss and expense claim that was first raised in the adjudication reply without giving the Council an opportunity to respond, and because the adjudicator acted in excess of his jurisdiction by ordering reimbursement of LAD which falls outside CIPAA's definition of 'payment'; accordingly the enforcement application was dismissed.

Citation
WA-24C-138-08/2021 (Mahkamah Tinggi)
Parties
Plaintiff in O.s. No. WA 24 C 129 08/2021; Defendant in O.s. No. WA 24 C 138 08/2021: Putra Nilai Builders Sdn Bhd; Plaintiff in O.s. No. WA 24 C 138 08/2021; Defendant in O.s. No. WA 24 C 129 08/2021: Majlis Daerah Cameron Highlands
Court
High Court
Jurisdiction
Malaysia
Judgment Date
12 November 2021
Case Number
WA-24C-138-08/2021 (Mahkamah Tinggi)
Procedural Posture
Originating Summons Under CIPAA (setting Aside and Enforcement of Adjudication Decision) / High Court Judgment on Competing Applications to Set Aside and Enforce Adjudication Decision
Outcome
Council's setting aside application allowed; Putra Nilai Builders' enforcement application dismissed; Adjudication Decision set aside.
Legal Topics
Setting Aside Adjudication Decision, Enforcement of Adjudication Decision, Natural Justice in Adjudication, Adjudicator Jurisdiction Limits, Liquidated Ascertained Damages, Extension of Time, Loss and Expense Claims, Interpretation of CIPAA
Source Language
Malay/English
Construction Law Adjudication Civil Procedure Contract Law Setting Aside Adjudication Decision Enforcement of Adjudication Decision Natural Justice in Adjudication Adjudicator Jurisdiction Limits +4 more

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Parties

Putra Nilai Builders Sdn Bhd

Plaintiff in O.s. No. WA 24 C 129 08/2021; Defendant in O.s. No. WA 24 C 138 08/2021

Majlis Daerah Cameron Highlands

Plaintiff in O.s. No. WA 24 C 138 08/2021; Defendant in O.s. No. WA 24 C 129 08/2021

Procedural Posture

Originating Summons Under CIPAA (setting Aside and Enforcement of Adjudication Decision) / High Court Judgment on Competing Applications to Set Aside and Enforce Adjudication Decision

Legal Issues

  1. 1 Whether the adjudicator breached natural justice by deciding a new/alternative claim first raised in the adjudication reply without giving the respondent opportunity to comment
  2. 2 Whether the adjudicator acted in excess of jurisdiction by deciding an award for loss and expense on a new basis not raised in the payment claim/adjudication claim
  3. 3 Whether the adjudicator acted in excess of jurisdiction by ordering reimbursement of Liquidated Ascertained Damages (LAD) which fall outside the definition of 'payment' under CIPAA

Ratio Decidendi

The High Court set aside the Adjudication Decision because the adjudicator committed a material breach of natural justice by deciding a new alternative basis for PNB's loss and expense claim that was first raised in the adjudication reply without giving the Council an opportunity to respond, and because the adjudicator acted in excess of his jurisdiction by ordering reimbursement of LAD which falls outside CIPAA's definition of 'payment'; accordingly the enforcement application was dismissed.

Court Disposition

Council's setting aside application allowed; Putra Nilai Builders' enforcement application dismissed; Adjudication Decision set aside.

Orders

  • Adjudication Decision dated 25.6.2021 set aside
  • PNB to pay costs to the Council of MYR 5,000.00 for each application (subject to allocatur)