KKH DEVELOPMENT SDN BHD PINTARAS GEOTECHNICS SDN BHD

KKH DEVELOPMENT SDN BHD PINTARAS GEOTECHNICS SDN BHD

The court held the adjudicator had jurisdiction and did not act in excess of jurisdiction; the dispute had arisen prior to the Payment Claim; subject matter did not have to be referred to arbitration; loss and expense claims fall within the definition of 'payment' under s4 CIPAA and were within the adjudicator's jurisdiction; the enforcement requirements under s28 CIPAA were satisfied, therefore the application to set aside was dismissed and the adjudication decision enforced.

Citation
WA-24C-57-04/2023 (Mahkamah Tinggi)
Parties
Plaintiff (os34) / Defendant (os57): Pintaras Geotechnics Sdn Bhd; Defendant (os34) / Plaintiff (os57): KKH Development Sdn Bhd
Court
High Court
Jurisdiction
Malaysia
Judgment Date
4 September 2023
Case Number
WA-24C-57-04/2023 (Mahkamah Tinggi)
Procedural Posture
Originating Summons to Enforce and to Set Aside an Adjudication Decision Under CIPAA / Judgment on Originating Summonses (enforcement and Challenge)
Outcome
Originating Summons No. WA-24C-57-04/2023 dismissed with costs; Originating Summons No. WA-24C-34-03/2023 (enforcement) granted in part by enforcement of the Adjudication Decision dated 17.2.2023 and order in terms of prayers 1, 2(a) to (f) and 3 in enclosure 1 of OS 34.
Legal Topics
Enforcement of Adjudication Decisions, Jurisdiction of Adjudicator, Loss and Expense Claims, Arbitration Vs Adjudication, Section 28 and Section 15 CIPAA
Source Language
Malay/English
Construction Law Adjudication Contract Law Arbitration Law Enforcement of Adjudication Decisions Jurisdiction of Adjudicator Loss and Expense Claims Arbitration Vs Adjudication +1 more

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Parties

Pintaras Geotechnics Sdn Bhd

Plaintiff (os34) / Defendant (os57)

KKH Development Sdn Bhd

Defendant (os34) / Plaintiff (os57)

Procedural Posture

Originating Summons to Enforce and to Set Aside an Adjudication Decision Under CIPAA / Judgment on Originating Summonses (enforcement and Challenge)

Legal Issues

  1. 1 Whether the adjudicator lacked jurisdiction or acted in excess of jurisdiction
  2. 2 Whether the subject matter should have been referred to arbitration
  3. 3 Whether the adjudicator had jurisdiction to adjudicate loss and expense claims

Ratio Decidendi

The court held the adjudicator had jurisdiction and did not act in excess of jurisdiction; the dispute had arisen prior to the Payment Claim; subject matter did not have to be referred to arbitration; loss and expense claims fall within the definition of 'payment' under s4 CIPAA and were within the adjudicator's jurisdiction; the enforcement requirements under s28 CIPAA were satisfied, therefore the application to set aside was dismissed and the adjudication decision enforced.

Court Disposition

Originating Summons No. WA-24C-57-04/2023 dismissed with costs; Originating Summons No. WA-24C-34-03/2023 (enforcement) granted in part by enforcement of the Adjudication Decision dated 17.2.2023 and order in terms of prayers 1, 2(a) to (f) and 3 in enclosure 1 of OS 34.

Orders

  • Dismiss Originating Summons No. WA-24C-57-04/2023 with costs
  • Enforce the Adjudication Decision dated 17.2.2023 pursuant to section 28 CIPAA and grant orders in terms of prayers 1, 2(a) to (f) and 3 in enclosure 1 of Originating Summons No. WA-24C-34-03/2023