TWIN PAVILION DEVELOPMENT SDN BHD CRCC MALAYSIA BERHAD

TWIN PAVILION DEVELOPMENT SDN BHD CRCC MALAYSIA BERHAD

The Court dismissed the Setting Aside Application and Stay Application and allowed the Enforcement Application because (1) Twin Pavilion’s affidavit filed only in English failed the mandatory O.92 r.1(1) requirement and so the Setting Aside Application lacked an affidavit foundation; (2) on the merits the Adjudicator lawfully exercised discretion under s 25 CIPAA in refusing extension as Twin Pavilion offered inconsistent and insufficient reasons and failed to show material prejudice or that withheld evidence would have altered the outcome; and (3) the statutory conditions for enforcement of the AD were satisfied, permitting CRCC to enforce the AD as a High Court judgment.

Citation
WA-24C-25-02/2023 (Mahkamah Tinggi)
Parties
Plaintiff (o.s. No. 25); Defendant (o.s. No. 46): Twin Pavilion Development Sdn Bhd; Defendant (o.s. No. 25); Plaintiff (o.s. No. 46): CRCC Malaysia Berhad
Court
High Court
Jurisdiction
Malaysia
Judgment Date
26 July 2023
Case Number
WA-24C-25-02/2023 (Mahkamah Tinggi)
Procedural Posture
Originating Summons Under the Construction Industry Payment and Adjudication Act 2012 (cipaa) / Hearing and Determination of Applications to Set Aside Adjudication Decision, Stay Adjudication Decision and to Enforce Adjudication Decision at High Court (grounds of Judgment)
Outcome
Setting Aside Application dismissed; Stay Application dismissed; Enforcement Application allowed
Legal Topics
Setting Aside Adjudication Decision (s 15 Cipaa), Enforcement of Adjudication Decision (s 28 Cipaa), Natural Justice (audi Alteram Partem), Adjudicator's Discretionary Powers (s 25 Cipaa), Procedural Compliance — Language of Affidavits (o.92 RC 2012), Extension/abridgement of Time
Source Language
Malay/English
Construction Law Adjudication Civil Procedure Contract Law Setting Aside Adjudication Decision (s 15 Cipaa) Enforcement of Adjudication Decision (s 28 Cipaa) Natural Justice (audi Alteram Partem) Adjudicator's Discretionary Powers (s 25 Cipaa) +2 more

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Parties

Twin Pavilion Development Sdn Bhd

Plaintiff (o.s. No. 25); Defendant (o.s. No. 46)

CRCC Malaysia Berhad

Defendant (o.s. No. 25); Plaintiff (o.s. No. 46)

Procedural Posture

Originating Summons Under the Construction Industry Payment and Adjudication Act 2012 (cipaa) / Hearing and Determination of Applications to Set Aside Adjudication Decision, Stay Adjudication Decision and to Enforce Adjudication Decision at High Court (grounds of Judgment)

Legal Issues

  1. 1 Whether there was denial of natural justice by the Adjudicator in refusing extension to file Adjudication Response and thereby failing to consider material issues including alleged novation to BT Bina
  2. 2 Whether the Adjudicator acted independently or impartially
  3. 3 Whether Twin Pavilion's originating summons should be struck out for non-compliance with O.92 r.1(1) (affidavit only in English)

Ratio Decidendi

The Court dismissed the Setting Aside Application and Stay Application and allowed the Enforcement Application because (1) Twin Pavilion’s affidavit filed only in English failed the mandatory O.92 r.1(1) requirement and so the Setting Aside Application lacked an affidavit foundation; (2) on the merits the Adjudicator lawfully exercised discretion under s 25 CIPAA in refusing extension as Twin Pavilion offered inconsistent and insufficient reasons and failed to show material prejudice or that withheld evidence would have altered the outcome; and (3) the statutory conditions for enforcement of the AD were satisfied, permitting CRCC to enforce the AD as a High Court judgment.

Court Disposition

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

Orders

  • Setting Aside Application dismissed with costs RM6,000.00 payable by Twin Pavilion
  • Stay Application dismissed with costs RM1,500.00 payable by Twin Pavilion