Malaysia Case Law: Decisions & Judgments

Topic

Natural justice in adjudication

Legal area

Court

11 Dec 2023

TENAGA NASIONAL BERHAD MALAYSIAN RESOURCES CORPORATION BERHAD

Citation

WA-24C-171-09/2022 (Mahkamah Tinggi)
Court

High Court
Case number

WA-24C-171-09/2022 (Mahkamah Tinggi)

The Court held the adjudicator had jurisdiction to determine the Payment Claim despite prior arbitration (relying on s37 CIPAA and federal authority), the Payment Claim complied with s5(2) CIPAA when read with accompanying correspondence, the adjudicator did not deny natural justice in exercising procedural powers under s25(a), and errors on merits do not constitute grounds to set aside under s15; accordingly OS170 (setting aside) was dismissed, OS171 (stay) dismissed, and enforcement under OS172 granted pursuant to s28 CIPAA.
11 Apr 2023

CEDY THIRD CONTRACTING AND TRADING SDN. BHD. ANCUBIC CONSTRUCTION SDN. BHD.

Citation

WA-24C-164-08/2022 (Mahkamah Tinggi)
Court

High Court
Case number

WA-24C-164-08/2022 (Mahkamah Tinggi)

The Court held that the Payment Claim met the statutory threshold under s 5(2) CIPAA when assessed objectively; the Adjudicator did not exceed his jurisdiction, the Adjudication Decision was made and delivered within the permissible timeframe (taking into account the withholding mechanism under s 19(5)), the appointment was valid despite lack of signature, there was no breach of natural justice, and accordingly the Setting Aside and Stay Application was dismissed and the Enforcement Application allowed. Costs were awarded to the successful party in the sums ordered by the Court.
12 Apr 2022

RITMA HEBAT SDN BHD Kesutra Sdn Bhd

Citation

BA-24C-64-09/2021 (Mahkamah Tinggi)
Court

High Court
Case number

BA-24C-64-09/2021 (Mahkamah Tinggi)

The Ritma-Kesutra contract was a sham and, alternatively, void for want of consideration; therefore the adjudicator lacked jurisdiction under CIPAA to adjudicate Kesutra's payment claim, and the adjudication decision was set aside; enforcement was dismissed and no costs awarded to successful applicant given consensual participation in sham transaction.
23 Mar 2022

MCC OVERSEAS (M) SDN BHD DAMAI CITY SDN BHD

Citation

WA-24C-165-09/2021 (Mahkamah Tinggi)
Court

High Court
Case number

WA-24C-165-09/2021 (Mahkamah Tinggi)

The court dismissed the setting aside and stay applications and allowed enforcement: (1) s15 does not permit severing part of an adjudication decision as pleaded and the proposed amendment to avoid that election was properly refused; (2) the adjudicator did not deny natural justice or act beyond jurisdiction because the issues he decided were squarely raised in the adjudication papers (including Clause 25.4(d) and set-off requirements) and he properly exercised his discretion not to hold an oral hearing; (3) there were no clear and unequivocal errors nor special circumstances to justify a sta…
9 Mar 2022

MRCB ENGINEERING SDN BHD TRIUMPHANT GALLERY SDN BHD

Citation

WA-24C-176-10/2021 (Mahkamah Tinggi)
Court

High Court
Case number

WA-24C-176-10/2021 (Mahkamah Tinggi)

The court set aside the entire adjudication Decision because the adjudicator breached natural justice by refusing to entertain MRCB's backcharge counterclaim on the ground it was not pleaded in the payment response; notwithstanding views on ss.5,6 and 27, stare decisis obligations and the breach warranted setting aside the Decision in full where partial set-aside was not sought by TG.
12 Nov 2021

MAJLIS DAERAH CAMERON HIGHLANDS PUTRA NILAI BUILDERS SDN BHD

Citation

WA-24C-138-08/2021 (Mahkamah Tinggi)
Court

High Court
Case number

WA-24C-138-08/2021 (Mahkamah Tinggi)

The High Court set aside the Adjudication Decision because the adjudicator committed a material breach of natural justice by deciding a new alternative basis for PNB's loss and expense claim that was first raised in the adjudication reply without giving the Council an opportunity to respond, and because the adjudicator acted in excess of his jurisdiction by ordering reimbursement of LAD which falls outside CIPAA's definition of 'payment'; accordingly the enforcement application was dismissed.
12 Nov 2021

PUTRA NILAI BUILDERS SDN BHD MAJLIS DAERAH CAMERON HIGHLANDS

Citation

WA-24C-129-08/2021 (Mahkamah Tinggi)
Court

High Court
Case number

WA-24C-129-08/2021 (Mahkamah Tinggi)

The adjudication decision was set aside because the adjudicator materially breached natural justice by deciding a new and different basis for the loss and expense claim first raised in the adjudication reply without giving the Council an opportunity to respond, and additionally acted in excess of jurisdiction by ordering reimbursement of LAD which does not amount to a 'payment' within s 4 CIPAA; those defects justified setting aside under limbs (b) and (d) of s 15 CIPAA.
19 Jul 2021

1. ) BA-24C-5-03/2021 INTEGRAL ACRES SDN. BHD. (Co. No.: 672818-M) 2. ) BA-24C-7-03/2021 BCEG INTERNATIONAL (M) SDN. BHD. (Co. No.: 96600729-U) 3. ) BA-24C-10-04/2021 INTEGRAL ACRES SDN. BHD. (Co. No.: 672818-M) 1. ) BCEG INTERNATIONAL (M)

Citation

BA-24C-5-03/2021, BA-24C-7-03/2021 & BA-24C-10-04/2021 (Mahkamah Tinggi)
Court

High Court
Case number

BA-24C-5-03/2021, BA-24C-7-03/2021 & BA-24C-10-04/2021 (Mahkamah Tinggi)

The court held the adjudicator had jurisdiction to decide unpaid certified works and to award interest thereon, but exceeded jurisdiction under CIPAA by adjudicating Loss (EOT) and costs relating to BCEG's disputes with subcontractors (these are not "payment" under s4 and no written extension under s27(2) existed); the adjudicator also lacked power to award costs/fees of the previous adjudication after the prior adjudicator resigned; the court refused to set aside the valid parts and granted partial enforcement of the adjudication (specified sums and costs of this adjudication) and dismissed…
19 Mar 2021

1. ) TECNICAS REUNIDAS MALAYSIA SDN BHD 2. ) 1. PETROVIETNAM ENGINEERING CONSULTANCY J.S.C. (PVE) 2. PETROVIETNAM ENGINEERING (M) SDN BHD 1. ) 1. PETROVIETNAM ENGINEERING CONSULTANCY J.S.C. (PVE) 2. PETROVIETNAM ENGINEERING (M) SDN BHD 2. )

Citation

WA-24C-279-12/2019, WA-24C-280-12/2019 & WA-24C-284-12/2019 (Mahkamah Tinggi)
Court

High Court
Case number

WA-24C-279-12/2019, WA-24C-280-12/2019 & WA-24C-284-12/2019 (Mahkamah Tinggi)

The court held that the Setting Aside Application failed: the adjudicator had jurisdiction under the CIPAA, the Payment Claim was validly served by a representative, and there was no material denial of natural justice or absolute lack of jurisdiction; RoBA did not bar adjudication/enforcement in the factual matrix; the adjudicator lawfully exercised procedural powers (including limiting documents) and made factual/legal findings on set‑offs and contract interpretation which do not justify setting aside the AD. Consequently the Enforcement Application was allowed. However, exercising its discr…
24 Feb 2021

BA-24C-4-01/2020 (Mahkamah Tinggi)

Citation

BA-24C-4-01/2020 (Mahkamah Tinggi)
Court

High Court
Case number

BA-24C-4-01/2020 (Mahkamah Tinggi)

Clause 7.1 is not a conditional payment provision within s35 CIPAA; the adjudicator erred in construction and gave weight to the QS certificate but those errors were within the scope of matters referred and did not amount to excess of jurisdiction or denial of natural justice under s15, therefore the setting aside application and stay were refused and leave to enforce under s28 granted.