NAIM ENGINEERING SDN BHD WCP ENGINEERING SDN BHD

NAIM ENGINEERING SDN BHD WCP ENGINEERING SDN BHD

The court found the Agreements contained only limited, non-primary additions and immaterial payment alterations; objectively the parties intended the Agreements to formalise and vary the earlier contract made by the Letters of Acceptance on 17 June 2013. Therefore the Contract was made before CIPAA commenced, the adjudicators exceeded jurisdiction, and the adjudication Decisions were set aside.

Citation
wa-24c-236-11/2019 (Mahkamah Tinggi)
Parties
PLAINTIFF: Naim Engineering Sdn Bhd; DEFENDANT: WCP Engineering Sdn Bhd
Court
High Court
Jurisdiction
Malaysia
Judgment Date
30 September 2020
Case Number
wa-24c-236-11/2019 (Mahkamah Tinggi)
Procedural Posture
Originating Summons / Judgment (grounds of Decision) on Application to Set Aside Adjudication Decision
Outcome
Application allowed as amended; adjudication decision set aside; costs awarded to the defendant
Legal Topics
CIPAA Prospective Application, Adjudication Jurisdiction, Contract Formation, Variation Vs Substitution, Savings Provision S.41 CIPAA, Retrospective Effect of Statutes
Source Language
Malay/English
Construction Law Arbitration Statutory Interpretation Civil Procedure CIPAA Prospective Application Adjudication Jurisdiction Contract Formation Variation Vs Substitution +2 more

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Parties

Naim Engineering Sdn Bhd

PLAINTIFF

WCP Engineering Sdn Bhd

DEFENDANT

Procedural Posture

Originating Summons / Judgment (grounds of Decision) on Application to Set Aside Adjudication Decision

Legal Issues

  1. 1 Whether the Contract was made on the date of the Letters of Acceptance (17 June 2013) or on the date of the later executed Agreements (13 June 2015)
  2. 2 Whether CIPAA applies to the Contract (i.e. prospective vs retrospective application)
  3. 3 Whether the adjudicators had jurisdiction under CIPAA given timing of contract formation

Ratio Decidendi

The court found the Agreements contained only limited, non-primary additions and immaterial payment alterations; objectively the parties intended the Agreements to formalise and vary the earlier contract made by the Letters of Acceptance on 17 June 2013. Therefore the Contract was made before CIPAA commenced, the adjudicators exceeded jurisdiction, and the adjudication Decisions were set aside.

Court Disposition

Application allowed as amended; adjudication decision set aside; costs awarded to the defendant

Orders

  • Adjudication decision under the Contract set aside pursuant to s.15(1)(d) CIPAA
  • Costs awarded in favour of the defendant in the sum of RM7,500.00 subject to the standard allocator