1. ) KPF NIAGA SDN BHD 2. ) VIGOUR BUILDERS SDN BHD 1. ) VIGOUR BUILDERS SDN BHD 2. ) KPF NIAGA SDN BHD

1. ) KPF NIAGA SDN BHD 2. ) VIGOUR BUILDERS SDN BHD 1. ) VIGOUR BUILDERS SDN BHD 2. ) KPF NIAGA SDN BHD

The Court held that on the balance of probabilities KPF proved the adjudication decision was improperly procured through fraud under s15(a) CIPAA because Vigour knowingly included a CIDB levy claim while not registered with CIDB and selectively produced edited WhatsApp exchanges and omitted supplier invoice and shipping documents which, if disclosed, would have shown under-use of Claycrete and that Vigour had placed the order — matters that directly impacted the Adjudicator’s core factual findings; accordingly the adjudication decision of 10.9.2019 is set aside and the enforcement application dismissed.

Citation
WA-24C-193-09/2019 & WA-24C-273-12/2019 (Mahkamah Tinggi)
Parties
Plaintiff (o.s. WA 24 C 193 09/2019); Defendant (o.s. WA 24 C 273 12/2019): KPF Niaga Sdn Bhd; Defendant (o.s. WA 24 C 193 09/2019); Plaintiff (o.s. WA 24 C 273 12/2019): Vigour Builders Sdn Bhd
Court
High Court
Jurisdiction
Malaysia
Judgment Date
28 August 2020
Case Number
WA-24C-193-09/2019 & WA-24C-273-12/2019 (Mahkamah Tinggi)
Procedural Posture
Applications to Set Aside and to Enforce an Adjudication Decision Under the Construction Industry Payment and Adjudication Act 2012 (cipaa) / Judgment on Competing Originating Summonses (final Determination of Applications)
Outcome
KPF's application to set aside the adjudication decision allowed; Vigour's application to enforce the adjudication decision dismissed
Legal Topics
Statutory Adjudication (cipaa), Setting Aside Adjudication Decision S15(a), Enforcement of Adjudication Decision S28, CIDB Registration Requirements, Fraud and Evidential Burden in Adjudication
Source Language
Malay/English
Construction Law Adjudication Contract Law Civil Procedure Statutory Adjudication (cipaa) Setting Aside Adjudication Decision S15(a) Enforcement of Adjudication Decision S28 CIDB Registration Requirements +1 more

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Parties

KPF Niaga Sdn Bhd

Plaintiff (o.s. WA 24 C 193 09/2019); Defendant (o.s. WA 24 C 273 12/2019)

Vigour Builders Sdn Bhd

Defendant (o.s. WA 24 C 193 09/2019); Plaintiff (o.s. WA 24 C 273 12/2019)

Procedural Posture

Applications to Set Aside and to Enforce an Adjudication Decision Under the Construction Industry Payment and Adjudication Act 2012 (cipaa) / Judgment on Competing Originating Summonses (final Determination of Applications)

Legal Issues

  1. 1 Whether the adjudication decision was improperly procured through fraud under s15(a) CIPAA
  2. 2 Whether Vigour was registered with CIDB at material times and effect on claim for CIDB levy
  3. 3 Whether Vigour concealed or edited WhatsApp communications and supplier documents to mislead the Adjudicator about quantity of Claycrete used

Ratio Decidendi

The Court held that on the balance of probabilities KPF proved the adjudication decision was improperly procured through fraud under s15(a) CIPAA because Vigour knowingly included a CIDB levy claim while not registered with CIDB and selectively produced edited WhatsApp exchanges and omitted supplier invoice and shipping documents which, if disclosed, would have shown under-use of Claycrete and that Vigour had placed the order — matters that directly impacted the Adjudicator’s core factual findings; accordingly the adjudication decision of 10.9.2019 is set aside and the enforcement application dismissed.

Court Disposition

KPF's application to set aside the adjudication decision allowed; Vigour's application to enforce the adjudication decision dismissed

Orders

  • Adjudication decision dated 10 September 2019 set aside pursuant to s15(a) CIPAA
  • Vigour Builders Sdn Bhd's enforcement application under s28 CIPAA (O.S. WA-24C-273-12/2019) dismissed