WTK ENGINEERING SDN. BHD. SERIEMAS DEVELOPMENT SDN. BHD.

WTK ENGINEERING SDN. BHD. SERIEMAS DEVELOPMENT SDN. BHD.

The court construed 'due or payable' in s 30(5) CIPAA disjunctively: 'due' means an accrued debt owing under the contract and 'payable' means an amount fallen due for immediate payment such that there is an immediately enforceable obligation. Under the PAM Contract the second moiety of retention was not 'due' (owed)...

Source-derived case information.

Citation
WA-24C-189-09/2020 (Mahkamah Tinggi)
Parties
Applicant: WTK Engineering Sdn. Bhd.; Respondent: Seriemas Development Sdn. Bhd.
Court
High Court
Jurisdiction
Malaysia
Judgment Date
18 January 2021
Case Number
WA-24C-189-09/2020 (Mahkamah Tinggi)
Procedural Posture
Originating Summons (enforcement Under S 30 Cipaa) / Judgment (high Court Decision Dismissing Application)
Outcome
Application dismissed
Legal Topics
S 30 CIPAA Direct Payment, Meaning of 'due or Payable', Retention Monies, Enforcement of Adjudication Decision, Contractual Condition Precedent (cmgd and Architect's Certificate)
Construction Law Contract Law Statutory Interpretation Civil Procedure Adjudication Law S 30 CIPAA Direct Payment Meaning of 'due or Payable' Retention Monies +2 more

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Parties

WTK Engineering Sdn. Bhd.

Applicant

Seriemas Development Sdn. Bhd.

Respondent

Procedural Posture

Originating Summons (enforcement Under S 30 Cipaa) / Judgment (high Court Decision Dismissing Application)

Legal Issues

  1. 1 What is the meaning of the phrase 'due or payable' in s 30(5) CIPAA?
  2. 2 Was the second moiety of the retention sum due or payable by the principal (Seriemas) to the contractor (PA Builders) at the time Seriemas received the direct payment request on 3.6.2020?
  3. 3 Whether s 30 CIPAA could be invoked to require direct payment by the principal where contractual conditions for payment (CMGD and Architect's certificate) had not been satisfied?

Ratio Decidendi

The court construed 'due or payable' in s 30(5) CIPAA disjunctively: 'due' means an accrued debt owing under the contract and 'payable' means an amount fallen due for immediate payment such that there is an immediately enforceable obligation. Under the PAM Contract the second moiety of retention was not 'due' (owed) until issuance of the Certificate of Making Good Defects (CMGD) and was not 'payable' (immediately enforceable) until the Architect issued the residue certificate within 14 days of the CMGD and the payment period elapsed; because neither the CMGD nor the Architect's certificate was issued as at 3.6.2020, the statutory precondition in s 30(5) CIPAA was not satisfied and the...

Court Disposition

Application dismissed

Orders

  • Application dismissed
  • Costs in favour of Respondent Seriemas Development Sdn. Bhd. RM4000.00, subject to allocator