1. ) JEKS ENGINEERING SDN BHD 2. ) PALI PTP SDN BHD 1. ) PALI PTP SDN BHD 2. ) JEKS ENGINEERING SDN BHD

1. ) JEKS ENGINEERING SDN BHD 2. ) PALI PTP SDN BHD 1. ) PALI PTP SDN BHD 2. ) JEKS ENGINEERING SDN BHD

The Court held that PALI failed to prove fraud or material denial of natural justice; however the Adjudicator exceeded his jurisdiction by determining variation claims that related to interim payment certificate No.24 which were not due at the time of the Payment Claim; accordingly the Court set aside the portion of the AD awarding RM5,143,817.34 for variation works (and related interest) for breach of jurisdiction under s15(d), severed that part, allowed enforcement of the remainder (RM3,368,919.69 with interest at 7.75% p.a.), reduced adjudication costs proportionally to RM60,929.00, and dismissed the stay application.

Citation
WA-24C-5-01/2020 & WA-24C-13-01/2020 (Mahkamah Tinggi)
Parties
Plaintiff: JEKS Engineering Sdn Bhd; Defendant: PALI PTP Sdn Bhd
Court
High Court
Jurisdiction
Malaysia
Judgment Date
9 November 2020
Case Number
WA-24C-5-01/2020 & WA-24C-13-01/2020 (Mahkamah Tinggi)
Procedural Posture
Originating Summonses Under CIPAA (enforcement, Setting Aside and Stay Applications) / Judgment on Consolidated Applications
Outcome
Setting Aside Application allowed in part (s15(d)); Enforcement Application allowed in part (s28); Stay Application dismissed (s16)
Legal Topics
CIPAA S15 Setting Aside, CIPAA S28 Enforcement, CIPAA S16 Stay, Jurisdiction of Adjudicator, Natural Justice, Fraud Allegations, Variation Valuation, Extension of Time and Liquidated Damages
Source Language
Malay/English
Construction Law Adjudication Contract Law Civil Procedure Company Law CIPAA S15 Setting Aside CIPAA S28 Enforcement CIPAA S16 Stay +5 more

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Parties

JEKS Engineering Sdn Bhd

Plaintiff

PALI PTP Sdn Bhd

Defendant

Procedural Posture

Originating Summonses Under CIPAA (enforcement, Setting Aside and Stay Applications) / Judgment on Consolidated Applications

Legal Issues

  1. 1 Whether the adjudication decision (AD) was improperly procured by fraud under s15(a) CIPAA
  2. 2 Whether the Adjudicator breached natural justice under s15(b) CIPAA
  3. 3 Whether the Adjudicator acted in excess of jurisdiction under s15(d) CIPAA by deciding variation claims not due (PC No.24)

Ratio Decidendi

The Court held that PALI failed to prove fraud or material denial of natural justice; however the Adjudicator exceeded his jurisdiction by determining variation claims that related to interim payment certificate No.24 which were not due at the time of the Payment Claim; accordingly the Court set aside the portion of the AD awarding RM5,143,817.34 for variation works (and related interest) for breach of jurisdiction under s15(d), severed that part, allowed enforcement of the remainder (RM3,368,919.69 with interest at 7.75% p.a.), reduced adjudication costs proportionally to RM60,929.00, and dismissed the stay application.

Court Disposition

Setting Aside Application allowed in part (s15(d)); Enforcement Application allowed in part (s28); Stay Application dismissed (s16)

Orders

  • Set aside and annulled the portion of the Adjudication Decision awarding RM5,143,817.34 for variation works and interest attributable to that sum pursuant to s15(d) CIPAA
  • PALI ordered to pay JEKS the sum of RM3,368,919.69 (balance of adjudicated sum) together with simple interest at 7.75% per annum from the date of the Adjudication Decision until full realisation; enforcement granted under s28 CIPAA