Wabina Constructions & Engineering Sdn Bhd Fulloop Sdn Bhd

Wabina Constructions & Engineering Sdn Bhd Fulloop Sdn Bhd

Court held adjudicator had jurisdiction: the subcontract and main contract provisions expressly disclaimed privity between employer (Seal) and the nominated sub-contractor, rendering Wabina the non-paying party under s 5(1) CIPAA; the SFA was admissible supporting evidence for the Progress Claim and the adjudicator did not act in excess of jurisdiction; there was no denial of natural justice; costs awarded by the adjudicator were within his wide statutory discretion; stay pending arbitration between Wabina and Seal was refused because that arbitration did not involve the same parties as the adjudication; consequently the application to set aside and stay were dismissed and enforcement of...

Citation
WA-24C-78-03/2022 (Mahkamah Tinggi)
Parties
Plaintiff (o.s. No. 42 & 78); Defendant (o.s. No. 67): Wabina Constructions & Engineering Sdn Bhd; Plaintiff (o.s. No. 67); Defendant (o.s. No. 42 & 78): Fulloop Sdn Bhd
Court
High Court
Jurisdiction
Malaysia
Judgment Date
25 August 2022
Case Number
WA-24C-78-03/2022 (Mahkamah Tinggi)
Procedural Posture
Originating Summonses Under CIPAA (setting Aside, Stay and Enforcement Applications) / Judgment on Grounds of Judgment (applications Heard and Determined)
Outcome
Setting Aside Application dismissed; Stay Application dismissed; Enforcement Application allowed.
Legal Topics
Setting Aside Adjudication Decision, Enforcement of Adjudication Decision, Stay Pending Arbitration, Natural Justice, Jurisdiction of Adjudicator, Costs of Adjudication
Source Language
Malay/English
Construction Law Adjudication Law Contract Law Arbitration Law Civil Procedure Setting Aside Adjudication Decision Enforcement of Adjudication Decision Stay Pending Arbitration +3 more

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Parties

Wabina Constructions & Engineering Sdn Bhd

Plaintiff (o.s. No. 42 & 78); Defendant (o.s. No. 67)

Fulloop Sdn Bhd

Plaintiff (o.s. No. 67); Defendant (o.s. No. 42 & 78)

Procedural Posture

Originating Summonses Under CIPAA (setting Aside, Stay and Enforcement Applications) / Judgment on Grounds of Judgment (applications Heard and Determined)

Legal Issues

  1. 1 Whether Wabina was a "non-paying party" under s 5(1) CIPAA and thus whether the adjudicator had jurisdiction
  2. 2 Whether the adjudicator acted in excess of jurisdiction by relying on a Statement of Final Account not pleaded in the Payment Claim
  3. 3 Whether there was denial of natural justice (reversal of burden of proof and failure to consider submissions on costs)

Ratio Decidendi

Court held adjudicator had jurisdiction: the subcontract and main contract provisions expressly disclaimed privity between employer (Seal) and the nominated sub-contractor, rendering Wabina the non-paying party under s 5(1) CIPAA; the SFA was admissible supporting evidence for the Progress Claim and the adjudicator did not act in excess of jurisdiction; there was no denial of natural justice; costs awarded by the adjudicator were within his wide statutory discretion; stay pending arbitration between Wabina and Seal was refused because that arbitration did not involve the same parties as the adjudication; consequently the application to set aside and stay were dismissed and enforcement of...

Court Disposition

Setting Aside Application dismissed; Stay Application dismissed; Enforcement Application allowed.

Orders

  • Setting Aside Application (O.S. No. WA-24C-42-02/2022) dismissed with costs of MYR 6,500.00 to be paid by Wabina to Fulloop (subject to allocatur)
  • Stay Application (O.S. No. WA-24C-78-03/2022) dismissed with costs of MYR 3,500.00 to be paid by Wabina to Fulloop (subject to allocatur)