E.A.TECHNIQUE (M) SDN BHD MALAYSIA MARINE AND HEAVY ENGINEERING SDN BHD

E.A.TECHNIQUE (M) SDN BHD MALAYSIA MARINE AND HEAVY ENGINEERING SDN BHD

The court held the FSO/Vessel constituted construction work within s.4 CIPAA because it is functionally integrated to the CPP affixed to the seabed and therefore adjudicable; the AWOs were incorporated into the written Contract via the MBU Standards and Procedures in the Appendices which prevail over conflicting provisions, so the adjudicator had jurisdiction to decide the claims; the adjudicator addressed and rejected EAT's defences and there was insufficient evidence to establish fraud or denial of natural justice; recusal was unwarranted. Accordingly the setting aside application failed and the adjudication decision was enforceable.

Citation
wa-24c-96-06/2019 (Mahkamah Tinggi)
Parties
Plaintiff (os1) / Defendant (os2): E.A. Technique (M) Sdn Bhd; Defendant (os1) / Plaintiff (os2): Malaysia Marine and Heavy Engineering Sdn Bhd
Court
High Court
Jurisdiction
Malaysia
Judgment Date
1 June 2020
Case Number
wa-24c-96-06/2019 (Mahkamah Tinggi)
Procedural Posture
Originating Summons — Cross Applications Under CIPAA 2012 to Set Aside and to Enforce an Adjudication Decision / Grounds of Decision/judgment on Cross Applications
Outcome
OS1 (set aside application by EAT) dismissed; OS2 (enforcement by MMHE) allowed; adjudication decision enforced as judgment
Legal Topics
Adjudicability of Works, Jurisdiction (core and Contingent), Natural Justice in Adjudication, Recusal and Apparent Bias, Enforcement of Adjudication Decision, Fraud in Procurement
Source Language
Malay/English
Construction Law Statutory Adjudication Contract Law Civil Procedure Administrative Law Adjudicability of Works Jurisdiction (core and Contingent) Natural Justice in Adjudication +3 more

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Parties

E.A. Technique (M) Sdn Bhd

Plaintiff (os1) / Defendant (os2)

Malaysia Marine and Heavy Engineering Sdn Bhd

Defendant (os1) / Plaintiff (os2)

Procedural Posture

Originating Summons — Cross Applications Under CIPAA 2012 to Set Aside and to Enforce an Adjudication Decision / Grounds of Decision/judgment on Cross Applications

Legal Issues

  1. 1 Whether the conversion/FSO vessel is 'construction work' within s.4 CIPAA and therefore adjudicable
  2. 2 Whether the Additional Works Orders (AWO) formed part of the written Contract and were therefore subject to adjudication
  3. 3 Whether the adjudicator denied natural justice by failing to consider material defences and evidence

Ratio Decidendi

The court held the FSO/Vessel constituted construction work within s.4 CIPAA because it is functionally integrated to the CPP affixed to the seabed and therefore adjudicable; the AWOs were incorporated into the written Contract via the MBU Standards and Procedures in the Appendices which prevail over conflicting provisions, so the adjudicator had jurisdiction to decide the claims; the adjudicator addressed and rejected EAT's defences and there was insufficient evidence to establish fraud or denial of natural justice; recusal was unwarranted. Accordingly the setting aside application failed and the adjudication decision was enforceable.

Court Disposition

OS1 (set aside application by EAT) dismissed; OS2 (enforcement by MMHE) allowed; adjudication decision enforced as judgment

Orders

  • OS1 dismissed with costs of RM30,000.00 subject to 4% allocator
  • OS2 allowed; adjudication decision enforced as judgment and costs of RM30,000.00 subject to 4% allocator