TRIUMPHANT GALLERY SDN BHD MRCB ENGINEERING SDN. BHD.

TRIUMPHANT GALLERY SDN BHD MRCB ENGINEERING SDN. BHD.

Refusal by the adjudicator to consider MRCBE's backcharges/set‑off (first raised in the adjudication response but not in the payment response) amounted to a denial of natural justice under s.15 CIPAA and justified setting aside the entire adjudication decision; the court was bound to consider relevant authority but concluded the breach required set aside and consequently allowed the originating summons to set aside the Decision and dismissed the enforcement summons.

Citation
WA-24C-202-11/2021 (Mahkamah Tinggi)
Parties
Plaintiff (os 1) / Defendant (os 2): MRCB Engineering Sdn Bhd; Defendant (os 1) / Plaintiff (os 2): Triumphant Gallery Sdn Bhd
Court
High Court
Jurisdiction
Malaysia
Judgment Date
9 March 2022
Case Number
WA-24C-202-11/2021 (Mahkamah Tinggi)
Procedural Posture
Originating Summons Under Construction Industry Payment and Adjudication Act 2012 (cipaa) — Setting Aside and Enforcement of Adjudication Decision / Judgment on Originating Summons (grounds of Decision)
Outcome
Originating Summons WA-24C-176-10/2021 allowed; adjudication decision set aside in full; Originating Summons WA-24C-202-11/2021 dismissed.
Legal Topics
Setting Aside Adjudication Decision, Enforcement of Adjudication Decision, Natural Justice, Jurisdiction of Adjudicator, Statutory Interpretation, Set Off/backcharges, Costs
Source Language
Malay/English
Construction Law Statutory Adjudication Contract Law Civil Procedure Setting Aside Adjudication Decision Enforcement of Adjudication Decision Natural Justice Jurisdiction of Adjudicator +3 more

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Parties

MRCB Engineering Sdn Bhd

Plaintiff (os 1) / Defendant (os 2)

Triumphant Gallery Sdn Bhd

Defendant (os 1) / Plaintiff (os 2)

Procedural Posture

Originating Summons Under Construction Industry Payment and Adjudication Act 2012 (cipaa) — Setting Aside and Enforcement of Adjudication Decision / Judgment on Originating Summons (grounds of Decision)

Legal Issues

  1. 1 Whether an adjudicator may refuse to consider a cross‑claim/set‑off raised in the adjudication response that was not pleaded in the payment response under ss.5 and 6 CIPAA
  2. 2 Whether refusal to entertain such a defence amounts to denial of natural justice under s.15 CIPAA
  3. 3 Proper scope of adjudicator's jurisdiction under s.27 CIPAA and effect of s.6(4) deeming provision

Ratio Decidendi

Refusal by the adjudicator to consider MRCBE's backcharges/set‑off (first raised in the adjudication response but not in the payment response) amounted to a denial of natural justice under s.15 CIPAA and justified setting aside the entire adjudication decision; the court was bound to consider relevant authority but concluded the breach required set aside and consequently allowed the originating summons to set aside the Decision and dismissed the enforcement summons.

Court Disposition

Originating Summons WA-24C-176-10/2021 allowed; adjudication decision set aside in full; Originating Summons WA-24C-202-11/2021 dismissed.

Orders

  • Set aside the adjudication decision dated 22 September 2021 in its entirety
  • Originating Summons WA-24C-176-10/2021 allowed with costs of RM2500.00 subject to the usual allocator