KINING EXETON SDN BHD MAJLIS PERBANDARAN KUANTAN

KINING EXETON SDN BHD MAJLIS PERBANDARAN KUANTAN

The Court set aside the Adjudication Decision because the adjudicator denied natural justice by failing to bring a decisive 'time at large' issue to the parties for comment (a material breach under s15(b) CIPAA) and thereby acted in excess of jurisdiction in deciding the LAD cross-claim on that unraised basis (s15(d)); consequently the enforcement application under s28 CIPAA was dismissed.

Citation
WA-24C-61-04/2019 & WA-24C-76-05/2019 (Mahkamah Tinggi)
Parties
Plaintiff in WA 24 C 61 04/2019; Defendant in WA 24 C 76 05/2019: Kining Exeton Sdn Bhd (Company No.: 447521-V); Defendant in WA 24 C 61 04/2019; Plaintiff in WA 24 C 76 05/2019: Majlis Perbandaran Kuantan
Court
High Court
Jurisdiction
Malaysia
Judgment Date
17 October 2019
Case Number
WA-24C-61-04/2019 & WA-24C-76-05/2019 (Mahkamah Tinggi)
Procedural Posture
Originating Summons Under the Construction Industry Payment and Adjudication Act 2012 (cipaa) / Hearing and Judgment on Applications to Set Aside and to Enforce an Adjudication Decision (setting Aside and Enforcement Applications)
Outcome
Setting Aside and Stay Application allowed; Adjudication Decision set aside; Enforcement Application dismissed.
Legal Topics
Adjudication Under CIPAA, Natural Justice, Jurisdictional Limits, Enforcement of Adjudication Decision, Liquidated and Ascertained Damages (lad), Set Off, Stay
Source Language
Malay/English
Construction Law Contract Law Administrative/procedural Law Civil Procedure Adjudication Under CIPAA Natural Justice Jurisdictional Limits Enforcement of Adjudication Decision +3 more

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Parties

Kining Exeton Sdn Bhd (Company No.: 447521-V)

Plaintiff in WA 24 C 61 04/2019; Defendant in WA 24 C 76 05/2019

Majlis Perbandaran Kuantan

Defendant in WA 24 C 61 04/2019; Plaintiff in WA 24 C 76 05/2019

Procedural Posture

Originating Summons Under the Construction Industry Payment and Adjudication Act 2012 (cipaa) / Hearing and Judgment on Applications to Set Aside and to Enforce an Adjudication Decision (setting Aside and Enforcement Applications)

Legal Issues

  1. 1 Whether the adjudication decision breached natural justice under s15(b) CIPAA by refusing oral hearing and further submissions
  2. 2 Whether the adjudicator acted in excess of jurisdiction under s15(d) CIPAA by deciding the LAD issue on a 'time at large' basis not pleaded by parties
  3. 3 Whether the High Court should stay enforcement under s16(1)(a) CIPAA pending set-aside proceedings

Ratio Decidendi

The Court set aside the Adjudication Decision because the adjudicator denied natural justice by failing to bring a decisive 'time at large' issue to the parties for comment (a material breach under s15(b) CIPAA) and thereby acted in excess of jurisdiction in deciding the LAD cross-claim on that unraised basis (s15(d)); consequently the enforcement application under s28 CIPAA was dismissed.

Court Disposition

Setting Aside and Stay Application allowed; Adjudication Decision set aside; Enforcement Application dismissed.

Orders

  • Adjudication Decision dated 5.1.2019 (corrected 17.6.2019) set aside pursuant to s15(b) and s15(d) CIPAA
  • Setting Aside and Stay Application allowed with costs of RM8,000.00 payable by Kining Exeton Sdn Bhd, subject to allocator fees