TERA VA SDN. BHD. AYAM BINTANG ISTIMEWA SDN. BHD.

TERA VA SDN. BHD. AYAM BINTANG ISTIMEWA SDN. BHD.

The Court held TVA failed to prove fraud or denial of natural justice under s.15 CIPAA; the Adjudicator properly used material before her and afforded procedural fairness; a respondent may lodge a cross-claim or set-off in adjudication but such cross-claims can at most reduce or zerorise the claimant's claim and cannot result in a net award against the claimant that exceeds the claimant's original claim; although the adjudicator's award that resulted in a net sum owing by the claimant suggested excess of jurisdiction, that ground was not pleaded, therefore the Court dismissed both appeals and awarded costs to ABI.

Citation
B-02(C)(A)-1949-11/2023 (Mahkamah Rayuan)
Parties
Appellant/plaintiff: TERA VA SDN. BHD.; Respondent/defendant: AYAM BINTANG ISTIMEWA SDN. BHD.
Court
C
Jurisdiction
Malaysia
Judgment Date
6 August 2024
Case Number
B-02(C)(A)-1949-11/2023 (Mahkamah Rayuan)
Procedural Posture
Civil Appeal (court of Appeal) Appeals Against Enforcement and Setting Aside of an Adjudication Decision Under CIPAA 2012 / Judgment
Outcome
Both appeals dismissed (Appeal B-02(C)(A)-1948-11/2023 and B-02(C)(A)-1949-11/2023). The setting aside application dismissed and the enforcement appeal likewise dismissed.
Legal Topics
Cross Claim and Set Off in Adjudication, Enforcement of Adjudication Decision, Setting Aside on Fraud and Denial of Natural Justice, Adjudicator Jurisdiction and Excess of Jurisdiction, CIPAA Interpretation, Costs
Source Language
Malay/English
Construction Law Adjudication (statutory) Civil Procedure Contract Law Tort (negligence) Cross Claim and Set Off in Adjudication Enforcement of Adjudication Decision Setting Aside on Fraud and Denial of Natural Justice +3 more

Case Brief

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Parties

TERA VA SDN. BHD.

Appellant/plaintiff

AYAM BINTANG ISTIMEWA SDN. BHD.

Respondent/defendant

Procedural Posture

Civil Appeal (court of Appeal) Appeals Against Enforcement and Setting Aside of an Adjudication Decision Under CIPAA 2012 / Judgment

Legal Issues

  1. 1 Whether respondent may file a cross-claim in response to a payment claim in adjudication
  2. 2 Whether a cross-claim may exceed the claimant's payment claim and make respondent the substantive claimant
  3. 3 Whether the adjudication decision was improperly procured by fraud

Ratio Decidendi

The Court held TVA failed to prove fraud or denial of natural justice under s.15 CIPAA; the Adjudicator properly used material before her and afforded procedural fairness; a respondent may lodge a cross-claim or set-off in adjudication but such cross-claims can at most reduce or zerorise the claimant's claim and cannot result in a net award against the claimant that exceeds the claimant's original claim; although the adjudicator's award that resulted in a net sum owing by the claimant suggested excess of jurisdiction, that ground was not pleaded, therefore the Court dismissed both appeals and awarded costs to ABI.

Court Disposition

Both appeals dismissed (Appeal B-02(C)(A)-1948-11/2023 and B-02(C)(A)-1949-11/2023). The setting aside application dismissed and the enforcement appeal likewise dismissed.

Orders

  • Both appeals dismissed.
  • Costs awarded to Respondent (ABI) RM10,000.00 for the setting aside appeal subject to allocatur.