1. ) Amt Engineering Services v 1. ) Ah Design Communication Sdn Bhd (WA-24C-112-06/2018 & WA-24C-154-07/2018)

By delivering the notice or document personally to the party;

By leaving the notice or document at the usual place of business of the party during the normal business hours of that party; 9

By sending the notice or document to the usual or last-known place of business of the party by registered post; or

By any other means as agreed in writing by the parties.”(emphasis added) [22] The Adjudicator at the very outset of the Adjudication had in his letter to the parties dated 27.2.2018 requested the parties to confirm in writing whether they would be agreeable to include electronic mails as a mode of service of notices and documents pursuant to section 38(d) of the CIPAA. See paragraph 48 of the Adjudication Decision. [23] Both parties agreed to this mode of service as narrated by the Adjudicator in paragraphs 49-50 of the Adjudication Decision. Paragraph 51 of the Adjudication Decision is important enough for a complete reproduction below: “51. Based on the confirmation of the Claimant and Respondent, in a letter ref CKF/Adj-1495-2018/G/004 dated 08.03.2018 I have duly notified the parties’ confirmation to include emails as the additional mode of service. I have directed that in addition to electronic means, a hard copy of the document shall also be served to the respective party, I also stated that “document shall deem to be delivered and received by the recipient via email or courier or post, whichever is the earlier.””(emphasis added) [24] Such a direction on additional mode of service with respect to hard copies in addition to electronic means and also directing that any documents served by any earlier mode of service be deemed to be delivered and received by the recipient must be regarded as being derived 10 from the vast powers of the Adjudicator under section 25(j) of the CIPAA with respect to: “(j) Issue any direction as may be necessary or expedient.” [25] It was a finding of fact of the Adjudicator that the Adjudication Claim was served on 21.3.2018 via email as stated in paragraph 26 of the Adjudication Decision. The Adjudicator had written on 22.3.2018 to the Respondent to direct them to serve their written Adjudication Response within 10 working days under section 10 of the CIPAA. [26] In an email dated 2.4.2018 the Respondent wrote to inform the Adjudicator and the Claimant that they had yet to receive the hardcopy of the Adjudication Claim. See paragraph 27 of the Decision. [27] As parties had agreed to email been an effective mode of service of documents under the CIPAA and that whichever is the earlier mode of service be deemed delivered and received by the recipient, really there was no right for the Respondent to insist on the hardcopy of the Adjudication Claim before responding. [28] The Claimant replied that the documents which hardcopy the Respondent said they had not received had been sent on 23.3.2018 using Poslaju with the receipt and tracking number EH74 496 568 8MY enclosed. [29] Whilst proof of sending is deemed served and in this case by email being the earlier mode of service which the Respondent did not deny receiving, the Claimant nevertheless did check using the tracking service provided by Poslaju. The Claimant discovered and immediately informed the Respondent that according to the record in the tracking system, Poslaju did send the consignment to the Respondent on 26.3.2018 but there was no one to receive it. Hence, Poslaju had left a note to inform the recipient to 11 collect the consignment from Poslaju, Brickfields. See paragraph 29 of the Decision. [30] It is precisely because of problems of this nature that in most commercial agreements parties have invariably included a “deemed service clause” so that it may be invoked in a case where the delivery was done but the recipient was not there to receive. Otherwise a recipient bent on delaying the proceedings can always argue that they have not collected or that when they went to Poslaju to collect, the documents had been sent back to the sender after a long lapse of time. It would be providing an opportunity for the recipient to play the cat and mouse game to in finitum just to buy time and to frustrate the speedy disposal of the Adjudication. [31] The word “deem” is a very powerful word. It is to consider something as been done once the conditions are fulfilled irrespective of whether the recipient has actually received it or not. [32] In TA Securities Bhd v Ng Yen Ling [2000] 3 MLJ 743 at 746 the High Court explained the deeming service clause as follows: “Here then is a case of a contract which specifies the manner in which the process by which an action in respect of the contract is begun may be served on the defendant. The manner specified is by prepaid registered post to the defendant's address coupled with the deeming of service upon the expiry of three days. The case falls under O 10 r 3(1)(b) of the Rules of the High Court 1980 ('the RHC') which provides, inter alia, that if the writ is served in accordance with the contract 'the writ shall... be deemed to have been duly served on the defendant'. There are here two deemings of service, one contractual in para 23, the other statutory in O 10 r 3(1)(b) of the RHC. The latter endorses the former. 12 It is not in dispute that the writ in this case was sent by prepaid registered post to the proper address of the defendant and that the deeming of para 23 and of O 10 r 3(1)(b) of the RHC came into operation. The defendant, however, claims that she did not receive the writ and her counsel, contending that the deeming is rebuttable, argued that, although it is not possible for the defendant to prove non-receipt of the writ, the conduct of the defendant has been consistent with her not having received the writ and therefore her claim of not receiving the writ should be accepted as cogent and credible. In Amanah Merchant Bank Bhd v Lim Tow Choon [1994] 1 MLJ 413, the Supreme Court considered a clause in a guarantee providing for the service of notices but not of an originating process. The notice in that case was a notice of demand which was necessary to found a cause of action against the guarantor. The clause was similar in nature to para 23 in this case and contained a 'shall be deemed to be served' provision. The Supreme Court held, at p 5, that the words 'shall be deemed’ in the clause before them meant 'shall be regarded as', meaning that the deeming was not meant to be a presumption and was therefore not something that was rebuttable.” (emphasis added) [33] The Adjudication Claim had been properly served according to the agreed additional mode of service by email and by the further direction of the Adjudicator that whichever is the earlier mode of delivery and receipt shall deem to be effective delivery and receipt by the Respondent and in this case by email. 13 Whether the Adjudicator had exercised his power properly in not allowing the extension of time for the service of the Adjudication Response in the circumstances of the case [34] On the same day on 2.4.2018 that the Adjudicator received the Respondent’s email complaining that they had not received the hardcopy of the Adjudication Claim, the Adjudicator immediately emailed to the Respondent to remind that parties had agreed to include emails as an additional mode of service and he then directed the Respondent to take immediate action to collect the documents as notified by the Claimant. See paragraph 30 of the Decision as follows: “.....I have also stated in my email that the date to serve Adjudicator Response will expire on 04.04.2018. I have further directed that should the Respondent required more time to serve the Adjudication Response, he had to apply to me accordingly for consideration.” (emphasis added) [35] According to the Adjudicator the Respondent did not act as directed in his email of 2.4.2018 but instead wrote to the Claimant via their email of 3.4.2018 to inform the Claimant that the service of the “cause papers” was incomplete and thus irregular. The Respondent requested the Claimant to send the “cause papers and document” for their reference as Respondent and further informed that the Respondent will appoint a lawyer to assist the matter as soon as possible. See paragraph 31 of the Decision. [36] The Claimant responded to state that in addition to email, the document has been sent to the Respondent via Poslaju and further stated that email was an accepted mode of service by the parties. See paragraph 32 of the Decision. 14 [37] The Adjudicator felt constrained to intervene to break the impasse and he emailed to both the parties on 3.4.2018 on the fact that parties had agreed to include electronic mails (emails) as the additional mode of service and also his direction that: “Documents shall deem to be delivered by the recipient via email or courier or post, whichever is the earlier.” (emphasis added) [38] The Adjudicator again stated as a matter of fact that the Respondent had acknowledged having received the Form 7 Adjudication Claim but not the hardcopy. The Adjudicator reproduced the tracking notes of the documents that the Claimant had additionally sent by Poslaju as follows: “Mar 26, 201807:37 pm Item can be collected at Pos Laju Brickfields Mar 26, 201803:22 pm Delivery attempted. We found premises closed and left a Delivery Arrangement Notice. Item will be kept for 7 days. Please contact 1-300-300-300 or the number on the Notice for delivery arrangements, Pos Laju Brickfields.” [39] There was also a reminder on 4.4.2018 being the last day to serve the Adjudication Response and what is more important is the long suffering direction of the Adjudicator captured in the following words at paragraph 33 of the Decision: “Again, I would like to emphasize that should the Respondent require more time to serve the Adjudication Response, the Respondent is directed to apply to me accordingly for my consideration. 15 Please take note of strict timeline prescribed under the CIPAA which parties have to abide.” (emphasis added) [40] There was no explanation forthcoming from the Respondent as to why they had not collected the documents earlier having received the note from Poslaju on 26.3.2018 and having been informed that if there is no collection within 7 days at the Poslaju in Brickfield, the documents would be returned to the sender. [41] The Adjudicator stated the further chronology of events as follows at paragraphs 34-35: “34. On 04.04.2018, the Respondent again via email, wrote to the Claimant to inform that Form 7 (Adjudication Claim) was received on 21.03.2018 without the attachments, as such they could not respond to the claim without the attachment. The Respondent further informed that from the conversation with the Claimant, it was understood that Poslaju has reverted the documents back to the sender (Claimant) and further request the Claimant to immediately inform the Respondent to collect when the Claimant received the documents from Poslaju.

The Claimant responded via email that the Respondent could have enough time to collect from Poslaju when informed of the status of the documents on 02.04.2018 instead of the document being returned to the sender (Claimant). The Claimant reasoned that it was the Respondent’s intention to delay the adjudication process. The Claimant also informed the Respondent that as of 4.30pm (04.04.2018), the Claimant has not received the document from Poslaju.” 16 [42] The Adjudicator had to decide what to do at the end of the business day of 4.4.2018 for the Respondent to serve their Adjudication Response. He informed the parties by his letter dated 5.4.2018 to conclude that the Respondent had failed to serve an Adjudication Response on the expiry of 10 working days from the date the Respondent received the Adjudication Claim on 21.3.2018. See paragraph 36 of the Decision. [43] The Adjudicator went on to inform the parties that pursuant to section 12(2)(b) of the CIPAA he was required to decide the dispute and deliver the Adjudication Decision within 45 days from the expiry of the period prescribed for the service of the Adjudication Response if not Adjudication Response was received. See paragraph 37 of the Decision. [44] Upon receipt of the above email the Respondent immediately replied and requested 14 days extension to serve the Adjudication Response. [45] The Adjudicator declined to grant the extension requested for by the Respondent as the extension was only applied for after the end of business day to serve the Adjudication Response, and this was after 2 separate directions given by the Adjudicator to the Respondent to request for extension of time to serve their Adjudication Response should they require more time. This direction was given by the Adjudicator to the Respondent via emails dated 2.4.2018 and 3.4.2018. To the dismay of the Adjudicator who has impressed upon the Respondent the need to comply with the strict timeline under the CIPAA, the Respondent did not act on his direction but instead were lackadaisical about it. [46] No doubt the Adjudicator had taken a rather strict view with respect to his power to extend time to file the Adjudication Response after the timeline upon being directed to apply for the said extension before the expiry of the timeline as follows in paragraph 39 of his Decision as follows: 17 “39......I informed the Respondent that I do not have the power [to] extend time after it was determined that there was no a Adjudication Response pursuant to Section 10(3) of CIPAA and the commencement of 45 working days to deliver the adjudication decision pursuant to the said Section 12(2)(b).” [47] Whilst I would not personally interpret the provision of section 25(p) of the CIPAA so restrictively, I am nevertheless satisfied that in the circumstances of the case after the 2 repeated reminders the Respondent ought to have complied with the directions of the Adjudicator to apply for extension of time before the expiry of the timeline. [48] The directions to so apply before the expiry of the timeline is part of the vast arrays of powers that the Adjudicator may exercise under section 25(j) of the CIPAA with respect to the power of the Adjudicator to: “(j) Issue any direction as may be necessary or expedient” [49] The Respondent must respect the directions given by the Adjudicator issued in good faith for the smooth and speedy resolution of the dispute. In a Statutory Adjudication under the CIPAA where towards this end strict timelines are prescribed for documents to be filed. [50] Learned counsel for the Respondent submitted that under section 25(p) of the CIPAA the Adjudicator has untrammeled powers to extend the time to serve the Adjudication Response in this case, quite apart from the fact that the application was applied for just after the expiry of the last day to serve them document on 4.4.2018. Section 25(p) reads as follows: “25. Powers of the Adjudicator The adjudicator shall have the powers to -

Extend any time limit imposed on the parties under this Act as reasonably required.” (emphasis added) 18 [51] Having regard to the reasons given by the Adjudicator, I would not want to interfere with the exercise of discretion on the part of the Adjudicator not to allow an extension of time for this was a case where the Adjudicator had specifically directed that any application should be made before the expiry of the timeline and this direction was given not once but twice. [52] Though this Court may not completely agree with the strict interpretation of his powers to extend the time to serve the Adjudication Response, this Court would nevertheless agree with the Decision arrived at in not allowing any extension of time in the circumstances of the case. [53] By way of analogy, it is not unlike a case where the Registrar or Judge has exercised its discretion not to allow a writ to be renewed after its expiry because of no cogent reason to explain the delay and the failure to serve the writ before its expiry. Generally an appellate court would not interfere with the exercise of the discretion especially when limitation has not set in and the Plaintiff could always file a fresh writ. The fact that an appellate court would have exercised its discretion differently is no good ground to interfere with the exercise of discretion of the court of first instance. [54] If in any case of an appeal, an exercise of discretion of the court of first instance is hardly interfered with, what more in a case which is not an appeal but an application to set aside an Adjudication Decision based on the narrow grounds provided under section 15 of the CIPAA. Courts would be especially slow in interfering and substituting its decision for that of the Adjudicator in a case of the exercise of a discretionary power save in the rarest of rare cases. 19 [55] I would affirm the decision of the Adjudicator in not allowing the application for extension of time though not for the reason that he had no powers to grant the extension but because of the breach of the directions given twice by the Adjudicator to do so before the expiry of the timeline. [56] Here was a case where the Adjudicator had expressly alerted the Respondent to the need to apply for the extension of time before the expiry of the timeline so that the 45 days would run only after the expiry of the extended time to serve the Adjudication Response and after the Claimant has served their Adjudication Reply. [57] The Adjudication Claim has been properly served and even if the attachments in the hardcopy had not been received, there was nothing to suggest that the Respondent could not reply to the Claimant’s Adjudication Claim containing as it does the claim for the balance sums owing for work done and the 3 Variation Orders and the retention sum. [58] Surely it cannot be a case where the Respondent is clueless and confused as to how the Claimant had made the Payment Claim and now the Adjudication Claim. Surely if the sum claimed is wrong then the Respondent could clearly say so or that if there are defective works the Respondent would have a list of it or if the Claimant had delayed to complete the Works then surely the Respondent would have no difficulty claiming it under the Defence of set-off. [59] Based on the reasons given by the Adjudicator I would not fault the Adjudicator’s decision not to allow the extension of time applied for by the Respondent. It must be appreciated that an Adjudicator has to work within a very strict and stiff timeframe to deliver his Decision and that those who cannot comply with the strict timeframe after repeated reminders in the 20 form of a direction from the Adjudicator must learn to respect the timelines under the CIPAA and take the consequences for non-compliance. [60] An extension of time is not given as of right and so long as the refusal is not done capriciously or in bad faith, the Court would be slow to substitute its decision for that of the Adjudicator. In the circumstances of the case the Adjudicator acted properly in rejecting the request for an extension of time. The Adjudicator opined as follows in his Decision: “59. Until my determination that the Respondent has failed to serve the Adjudication Response, the Respondent made no effort to seek any time extension despite [being] direct (sic) to do so on two occasions and made little effort to collect the documents from Poslaju, Brickfield despite directed to do so. The claim by the Claimant that the Respondent is delaying the adjudication process is not without merit.” (emphasis added) [61] This is not a case where this Court should interfere with the exercise of discretion whether or not to grant an extension of time. The overall conduct of the Respondent must be considered and here the Respondent had not shown any diligence in complying with the timeline and the two directions of the Adjudicator with respect to the reminder to apply for extension of time. [62] Whilst section 25(p) of the CIPAA uses broad language without any preconditions attached, surely an Adjudicator must weigh all relevant factors before granting the extension and the Court would not interfere with the exercise of such a discretionary power unless it had been exercised capriciously and in bad faith. [63] It is not an “absolute discretion” as the learned counsel for the Respondent would have wanted us to believe, but like all discretion it must 21 be exercised subject to established principles and relevant factors. After all “unfettered discretion” is a contradiction in terms and every legal power has legal limits as is the oft-quoted dicta of His Royal Highness Sultan Azlan Shah in the Federal Court’s case of Pengarah Tanah & Galian, Wilayah Persekutuan v Sri Lempah Enterprise Sdn Bhd [1979] 1 MLJ 135 at 148. [64] It was rather audacious and presumptuous of the Respondent to blame the failure to serve the Adjudication Claim on Poslaju who the Respondent said, failed to deliver to the Respondent, as a result of which the said documents were returned to the Claimant. The Respondent had failed to see the log in their own eyes when it was a case of the office of the Respondent been closed during ordinary office hours on 26.3.2018 that resulted in Poslaju leaving a note for the Respondent to collect the documents from their Brickfields office. Certainly Poslaju cannot be faulted for this for otherwise any recipients of documents can always frustrate service of documents by closing office during normal office working hours. [65] A refusal to extend the strict timeline under section 25(p) of the CIPAA cannot amount to a breach of natural justice for here the Respondent had every opportunity to serve their Adjudication Response even without the documents as these are claims that the Respondent cannot pretend they did not know or that they were astounded as to how the claim had come about. Little wonder that the Adjudicator was inclined to agree with the Claimant that there was merit in the argument that the Respondent was delaying the adjudication process. [66] There was nothing draconian when the Respondent is deemed to know the law and in this case section 10(1) of the CIPAA that requires service of the Adjudication Response within 10 working days from the 22 service of the Adjudication Claim. This is not a case where all is lost as the Adjudication Decision is only of Interim finality and the Respondent has every opportunity to raise all their Defences and Counterclaim in the Arbitration or Litigation that the Respondent can take the lead to commence. [67] Learned counsel for the Respondent cited the case of Bina Puri Construction Sdn Bhd v NHY Borneo Sdn Bhd CIVIL CASE NO: BKI- 24-115/12-2016 Mahkamah Tinggi Kota Kinabalu where the High Court had refused to set aside the Adjudicator’s decision to grant 2 extensions of time to the Claimant who was late in serving the Adjudication Claim by 10 days and 2 days late in serving the Adjudication Reply. The Adjudicator had also granted an extension of time to the Respondent there to serve their Adjudication Response. Justice Ravinthran Paramaguru reasoned as follows: “[23] In my view, the above contention is without merit for the following reason. Section 25(p) provides that the Adjudicator shall have power to extend any time limit imposed on the parties under the CIPAA as reasonably required. This is a discretionary power given to the Adjudicator under the CIPAA. It must be borne in mind that under section 15 of the CIPAA, the court is exercising review jurisdiction and not appellate jurisdiction. Therefore, unless it is demonstrated that the discretionary power was deliberately abused by the Adjudicator, there is no reason for the court to review the exercise of it. [24] In fact, as recorded by the Adjudicator in his Adjudication Decision, Bina Puri Sdn Bhd had also successfully applied for extension of time to file the Adjudication Response. The Adjudicator 23 alluded to the extension of time granted to Bina Puri Sdn Bhd in paragraph 24 of his decision as follows:

Yet it cannot be that in such circumstances NHY Borneo Sdn Bhd cannot be granted an extension of time but a Respondent can be granted an extension of time, the same rule must apply to both. [25] Counsel for Bina Puri Sdn Bhd also submitted that the application to extend time to serve the Adjudication Claim was made two days after expiry of the stipulated ten-day time frame. The argument of counsel for Respondent is that the application for extension should have been made before the expiry of time limited to serve the Adjudication Claim. Counsel for Claimant argued that NHY Borneo Sdn Bhd was not late in applying for extension of time. Be that as it may, there is nothing in section 25(p) that requires a party to apply for extension of time before expiry of the stipulated period. A reading that any application to extend time should be made before the expiry of the stipulated time period would unnecessarily restrict the discretionary power granted to the Adjudicator by Parliament under section 25(p). [26] Furthermore, such an interpretation would not be consonant with section 26 of CIPAA that reads as follows:

Power of adjudicator not affected by non-compliance

Subject to subsection (2), the non-compliance by the parties with the provisions of this Act whether in respect of time limit, form or content or in any other respect shall be treated as an irregularity and shall not invalidate the power of the adjudicator 24 to adjudicate the dispute nor nullify the adjudication proceedings or adjudication decision. [27] This provision re-emphasizes the power of the Adjudicator to overlook a breach of rule with regard to time limit. Counsel for Bina Puri Sdn Bhd argued that time limits are an essential feature of the statutory adjudication scheme and any breach of it is fatal. I agree with him that the breaches of time stipulations by parties as well as the Adjudicator could be fatal under the CIPAA. And it must be noted that section 25(p) and section 26 do not directly excuse non-compliance of rules by the parties. However, the said provisions give power to the adjudicator to regularize breaches as to time limit, form or content. Parliament in its wisdom, perhaps to prevent meritorious claims from being defeated by non-compliance breaches, has vested the Adjudicator with wide discretionary powers to grant indulgence. [28] Thus, once the Adjudicator has exercised his power to grant extension of time, it should not be questioned except in the rarest of rare cases when there is good ground to believe that he has abused it to deliberately favour one party over the other. As pointed out by counsel for NHY Borneo Sdn Bhd, in the instant case, the Adjudicator had also indulged Bina Puri Sdn Bhd by granting it an extension of time to file the Adjudication Response. In my view, on the limited material placed before this court, interference with the exercise of the discretion of the Adjudicator is not warranted.” (emphasis added) [68] As has often been said each case must be considered based on its particular and peculiar facts. In the above there was nothing of a direction 25 given by the Adjudicator twice to remind the Respondent to apply for extension of time to serve their Adjudication Response. To date the Respondent had not given any reason for not complying with the said directions given twice. [69] There it was a case that the Adjudicator had granted an extension of time to the Respondent to serve their Adjudication Response out of time and it was only reasonable that the Claimant be given an extension of time to serve their Adjudication Reply for it cannot be that the Respondent was deserving of an extension when the timeline was exceeded but not the Claimant. [70] What is important is that the Court there had reaffirmed that section 25(p) and section 26 do not directly excuse non-compliance of rules by the parties. In other words it is accepted jurisprudence that the timelines under the CIPAA is for strict compliance and no one should presume on the discretion of the Adjudicator to by default grant an extension whenever a request is made whether before or after the expiry of the timeline. [71] To assume and presume that would undermine the philosophy behind CIPAA which works because of the acceptance by all that the strict and stiff timelines are there to facilitate a speedy dispute resolution through statutory Adjudication. [72] In as much as once the Adjudicator has exercised his power to grant extension of time, “it should not be questioned except in the rarest of rare cases when there is good ground to believe that he has abused it to deliberately favour one party over the other”, likewise once the Adjudicator has exercised his discretion not to grant an extension, that decision should not be reviewable except in the rarest of rare cases. Otherwise Adjudicator would be wary as to whether to grant or not to grant an extension of time 26 for his decision either way may be reversed upon an application to set aside on ground of biasness towards one side and against the other or a denial of natural justice or having acted in excess of his jurisdiction. [73] Not granting or granting an extension of time cannot ordinarily be a breach of natural justice for to begin with the timeline has been breached. If the documents had been served on time it is understandable that there is a denial of natural justice if the Adjudicator does not consider the matters raised. It is not a breach of natural justice and not a case of having acted in excess of jurisdiction when a discretionary power is exercised one way or the other save in cases where there is a clear biasness in favour of one Party in granting an extension but not to other party when a similar extension is applied for. [74] Therefore there is no cause to complain as the Adjudication Response was not properly before the Adjudicator with the result that the Claimant was not legally required to serve their Adjudication Reply to the Adjudication Response. [75] Though I appreciate the predicament the Adjudicator found himself to be in after informing the Respondent that they had failed to serve the Adjudication Response and were thus deemed to have failed to serve the Adjudication Response and that time had begun to run for him to deliver the Adjudication Decision, I would not put the power to extend time to be conditional only if the application is made before the expiry of the timeline. [76] However in a case where the Adjudicator had given his directions twice for the application to be made before the expiry of the timeline, I would not interfere with the ultimate decision of the Adjudicator not to grant an extension of time though the route of the Adjudicator to arriving at his decision appeared to have emanated from his misconception that he does 27 not have the power to extend the time once the timeline had expired and his directions had not been complied with. [77] There is a general default towards upholding an Adjudication Decision unless a case under section 15 of the CIPAA has been made out. In this case other than being unhappy with the decision of the Adjudicator not to extend the timeline to serve their Adjudication Response, no case has been made out under a denial of natural justice or an excess of jurisdiction. [78] The reminder of the Court of Appeal in Bauer Malaysia Sdn Bhd v Jack In Pile (M) Sdn Bhd & Another Appeal [2018] 1 LNS 427 in the overall approach with a gravitation towards upholding an Adjudication Decision of interim finality is worthy of reproduction as follows: “[18] Opposing this contention, learned counsel for the Respondent puts his contention as follows. The role of the Courts in an adjudication matter must not delve into the merits of the decision of the adjudicator even when the adjudicator had erred on a point of law. In support of that contention, we are referred to the case of Carillion Construction Ltd v. Devonport Royal Dockyard Ltd [2005] EWCA Civ 1358 where it was held by Chadwick LJ: "[85] The objective which underlies the Act and the statutory scheme requires the courts to respect and enforce the adjudicator's decision unless it is plain that the question which he has decided was not the question referred to him or the manner in which he has gone about his task is obviously unfair. It should only be in rare circumstances that the courts will interfered with the decision of an adjudicator..." 28 [86] It is only too easy in a complex case for a party who is dissatisfied with the decision of an adjudicator to comb through the adjudicator's reasons and identify points upon which to present a challenge under the labels "excess of jurisdiction" or "breach of natural justice". It must be kept in mind that the majority of adjudicators are not chosen for their expertise as lawyers. Their skills are as likely (if not more likely) to lie in other disciplines. The task of the adjudicator is not to act as arbitrator or judge. The time constraints within which he is expected to operate are proof of that. The task of the adjudicator is to find an interim solution which meets the need of the case. Parliament may be taken to have recognised that, in the absence of an interim solution, the contractor (or sub-contractor) or his sub-contractors will be driven to insolvency through a wrongful withholding of payments properly due. The statutory scheme provides a means of meeting the legitimate cash flow requirements of contractors and their subcontractors. The need to have the "right" answer has been subordinated to the need to have an answer quickly. The scheme was not enacted in order to provide definitive answers to complex questions. Indeed, it may be open to doubt whether Parliament contemplated that disputes involving difficult questions of law would be referred to adjudication under the statutory scheme..." [19] It is also pointed out to us that the aforesaid case was adopted by this Court in the case of ACFM Engineering & Construction Sdn Bhd v. Esstar Vision Sdn Bhd and another appeal [2016] 1 LNS 1522; [2016] MLJU 1776 where it was held as follows: 29 "[23] We express full agreement with what was said and further adopt it as the correct approach in our jurisdiction. [24] This was simply a case where the losing party was not happy that it had obtained an unfavourable decision and tried its chance in the judicial system. The law as it exists now correctly limits the Court's functions which expressly do not include the review the correctness of the adjudicator's decision. As pointed by the learned judge, the Court's intervention is only in very exceptional circumstances which are far and few in between. The prima facie view of the Court must be to affirm the adjudicator's decision unless the losing party can show that it has complied with the thresholds listed in section 15 of CIPAA 2012””.(emphasis added) [79] The Adjudicator might have given a wrong reason for not allowing the extension of time applied for after his directions to make the application for extension of time before the expiry of the timeline for service of the Adjudication Response. [80] If a wrong interpretation of the law or an error of law or fact does not ordinarily justify a setting aside of an Adjudication Decision unless it goes towards jurisdiction, likewise a wrong reason given for not allowing an extension of time would not cause an Adjudication Decision to be set aside when there are other reasons given that would support the rejection of the request for extension of time. [81] Section 25 of the CIPAA states that the Adjudicator “shall have the power to -“and not “shall have the duty to-”. The difference between “power” and “duty” is such that generally the Court would not interfere to compel the exercise of “power” in a certain way different from how the 30 Adjudicator has exercised it unless the way he had gone about it is capricious and an abuse of that power either arising out of biasness against the party requesting for extension or otherwise. Pronouncement [82] For all the reasons given above, I was constrained to dismiss AH Design’s application as Respondent in the Adjudication to set aside the Adjudication Decision and correspondingly allow AMT’s application as Claimant in the Adjudication to enforce the Adjudication Decision with costs of RM5,000.00 for each application in favour of the AMT. Dated: 19 November 2018. - signed - LEE SWEE SENG Judge Construction Court High Court, Kuala Lumpur 31 For the Plaintiff in : WA-24C-112-06/2018 : Azwan Bin Abdul Wahab and for the Defendant in : (Messrs Dzahara & Associates) WA-24C-154-07/2018 : For the Plaintiff in : WA-24C-154-07/2018 : Mohd Syahril Daud and for the Defendant in : (Messrs Syahril & Partners) WA-24C-112-06/2018 : Date of Decision: 30 August 2018.