1. ) Binastra Ablebuild Sdn Bhd v 1. ) JPS Holdings Sdn Bhd (WA-24C-161-12/2016 & WA-24C-171-12/2016)

It follows that the Adjudicator had no authority or jurisdiction to deal with the adjudication application of 28 December

Consequently, I find that the Adjudicator had no jurisdiction to hear the dispute, and the determination rendered by the Adjudicator must be set aside.” [50] In our case the parties have expressly reserved and preserved their rights under the Contract. [51] The Adjudicator clearly has jurisdiction to hear the dispute as this is not a case where the parties have arrived at a settlement resulting in section 37(3) CIPAA being triggered, bringing the Adjudication to an end. [52] Being a jurisdictional issue raised for the first time in this setting aside application, this Court is at liberty to hear it afresh without being fettered by any finding of fact of the Adjudicator. My conclusion as stated is that there was no settlement agreement arrived at where the Claimant 21 is not allowed to proceed with the Notice to Adjudicate. Neither has there been a settlement agreement arrived at where, if adjudication had been proceeded with, the Respondent is to withdraw the Adjudication claim under section 17(1) CIPAA or to terminate the Adjudication proceedings pursuant to section 37(3) CIPAA. [53] It was a finding of fact at para 13.4.6 of the Adjudication Decision that the outstanding sum of RM625,800.92 was admitted by the Respondent in their Adjudication Response. As pointed out by the Adjudicator the reason given by the Respondent for not paying was because of the alleged set-offs, cross claims and/or counterclaim. Para 42 of the Adjudication Response served by the Respondent is as clear as crystal: “42. Therefore, based on the terms of the Contract and the agreement between the parties, there are no payments which are due and payable under Progress Certificates No. 15 and 16 whilst under Progress Certificate No. 14, the only outstanding amount is RM625,800.92 which is a subject matter of set-off, cross-claim and/or counterclaim. ... 22

The Respondent contends that the amount of set-off, cross-claim and/or counter-claim which the Respondent has against the Claimant is in excess of the balance certified sum of RM625,800.92 under Progress Certificate No. 14 or any other alleged claim of the Claimant under Progress Certificates No. 14, 15 and 16.” (emphasis added) [54] The English decision in Shepherd Construction Ltd v Mecright Ltd [2000] BLR 489 can be distinguished because there the Technology and Construction Court held that the settlement agreement had superseded the construction Contract such that if there were still any disputes arising out of the settlement agreement, parties may sue on it but not to pursue Adjudication because there was nothing left of the construction Contract to adjudicate. [55] This is to be contrasted with our present case where as can be seen in para 42 of the Adjudication Response the Respondent had based their defense and set-off / cross-claim or counterclaim on the LAD clauses in the main Contract. [56] At any rate the Respondent had taken the stand that the handwritten notation terms had been breached by the Claimant and is no longer binding on the parties and that consistent with the parties preserving their respective rights, they are both proceeding with the 23 Adjudication. The Respondent is estopped from resiling from that position to now insist that there was a full and final settlement in the handwritten notation. [57] As to whether the Respondent’s set-off of LADs and rectification works should be allowed is a matter that had to be decided by the Adjudicator based on whether it was properly raised before him since there was no Payment Response filed. This shall be discussed shortly. Whether the Adjudicator has jurisdiction to hear the matter if the contract has been terminated [58] The Respondent had raised in their Adjudication Response in para B.1 that once the contract was terminated, CIPAA could no longer apply as the contractual provisions in terms of payment were no longer operative. The Respondent further contended at para B.2 that upon determination, parties are to conduct a joint inspection and proceed with the final accounts. [59] From the rationale and perspective of CIPAA, there is no good reason to exclude its application once a construction contract has been terminated. The Court has addressed this issue in Econpile (M) Sdn Bhd v IRDK Ventures Sdn Bhd and another case [2017] 7 MLJ 732 as follows: 24 “[56] From the rationale and purpose perspective of the CIPAA, there is no good reason to exclude its application once the construction contract has been terminated. The long title to the CIPAA sets out its preamble and captures in a concise statement the prophylactics purpose of the Act which is to: … to facilitate regular and timely payment, to provide a mechanism for speedy dispute resolution through adjudication, to provide remedies for the recovery of payment in the construction industry and to provide for connected and incidental matters. [57] Regard may also be had to the explanatory statement to the Bill of Construction Industry Payment And Adjudication Act 2012 which reads: The Construction Industry Payment Adjudication Act 2012 (‘the proposed Act’) seeks to facilitate regular and timely payment in respect of construction contracts and to provide for speedy dispute resolution through adjudication. The purpose of the proposed Act is to alleviate payment problems that presently prevails pervasively and which stifles cash flow in the construction industry. The proposed Act further provides default payment terms in the absence of 25 provisions to that effect and prohibits conditional payment terms that inhibit cash flow. The Act also seeks to provide remedies for the recovery of payment upon the conclusion of adjudication. (Emphasis added.) [58] Unscrupulous contractors would have a predilection to terminate a construction contract if that has the potent effect of preempting adjudication and with that a need to make payments forthwith on the pain of execution. Of course, any wrongful termination would finally result in damages to be paid, but that can wait for some contractors, for so long as his current cash flow is not adversely affected. That would skirt the application of CIPAA at a time when it is needed most by the claimant for survival when without the cash flow for work done, it would be suffocating and the claimant may have to slow down, suspend or even stop work altogether. [59] The issue had been raised in Singapore under their SOPA in AU v AV [2006] SGSOP 9, where a construction contract was terminated and a claim was made under SOPA. Philip Jeyaretnam SC concluded that he had jurisdiction under SOPA to hear the claim. His reasoning was as follows: 26 [13] I also noted to both counsel in the course of the hearing that while the New South Wales Act expressly included within the definition of ‘progress payment’ ‘the final payment for construction work carried out’, our Act did not. Nonetheless, I am of the view that the Act does apply even after a contract is terminated. First, the intention to protect cash flow would not be achieved if the interpretation put forward by the Respondent is adopted. If cash flow is blocked on one project, that will affect a contractor or service provider’s financial resources for other projects. Secondly, although one always speaks of termination of a contract when it is really the right and obligation to do work and be paid for it which is terminated for the future, the contract continues to govern the relationship between the parties in relation to the work already done. [60] It was conceded that there are authorities in England that suggest that an adjudicator can still proceed with an adjudication and produce his ‘determination’ even if the underlying construction contract has been terminated. This line of authorities, it was submitted, were premised on the provision of the English Act that provides that the adjudication can be proceeded ‘at any time’ (see 27 s 108(2)(a) of the Housing Grant Construction and Regeneration Act 1996 [UK] (‘the HGCRA’). [61] However the rationale set out in A & D Maintenance and Construction Ltd v Pagehurst Construction Services Ltd [1999] Lexis Citation 3443; [2000] 16 Const LK 199 QBD (TCC) is clear. There Wilcox J of the UK Technology and Construction Court observes as follows:

Even if the contract had been terminated, the matters referred to the adjudicator remain disputes under the contract. Where there is a contract to which the Act applies, as in this case, and there are disputes arising out of the contract to be adjudicated, the adjudication provisions clearly remain operative just as much as an arbitration clause would remain operative.

Had it been the intention of Parliament to limit the time wherein the party could give notice of his intention to refer a matter to adjudication, in the exercise of his right under s 108(1), it could have imposed a clear limit. Precise limits as to the appointment of Adjudicators and the time tabling of the process of adjudication are clearly set out in the Scheme. By contrast there is no such limitation under the Act or the 28 Scheme as to when a notice of intention to refer a matter to adjudication may be made. By analogy, with arbitration provisions, there is clear authority to the proposition that those terms governing reference to arbitration survive the determination of the contract. See Heyman v Darwins Ltd [1942] AC 356; [1942] 1 All ER 337. Doubtless the position in relation to arbitration was in the minds of the legislators when the clear words of s 108 were enacted. [62] For the reasons given above, I am not inclined to follow the contrary position taken by the Queensland Supreme Court in holding that upon the termination of a contract, the adjudicator has no jurisdiction to adjudicate on an outstanding claim as exemplified in McConnell Dowell Constructors (Aust) Pty Ltd v Heavy Plant Leasing Pty Ltd [2013] QSC 223 and McNab NQ Pty Ltd v Walkcrete Pty Ltd & Ors [2013] QSC 128.” [60] Here is a case where the Claimant as contractor had exercised its rights to terminate the Contract under Clause 26.2 for default in the Respondent to honor the Certificates of Payment No. 14 and 15 on their due dates. After the expiry of 14 days the Claimant issued and served on the Respondent a Notice of Determination of Employment and Termination of Contract dated 8.7.2016. 29 [61] The Respondent is now saying by para 3 of its Adjudication Response that the correct approach is for the parties to proceed with arbitration proceedings after the finalization of the final accounts as provided under the Contract and it is improper for all outstanding matters and ongoing matters to be decided summarily in an Adjudication proceeding under CIPAA. [62] On the other hand the Respondent had admitted in its letter of 2.9.2016 to the Claimant that the Claimant should not insist on signing the relevant documents relating to CCC only upon the Final Payment or Final Account Payment as “it will take a considerable amount of time to settle the final account.” [63] Whilst I accept that any disputes on the final accounts may be referred by the Employer to arbitration under Clause 26.6 (b) in the case of determination of employment by the contractor under Clause 26 of the Contract, that is not to say that the Claimant as contractor cannot avail itself of its right to Adjudication for Certificates already due for payment. [64] To deprive the Claimant such a statutory right for a speedy resolution of the dispute would be to visit the Claimant with a double whammy; on the one hand it was precisely for non-payment that the Claimant was constrained to terminate the contract and on the other hand the Claimant is barred from pursuing a speedy claim in 30 Adjudication until the final account is finalized and the Employer disputes the final account and refers the matter to arbitration. [65] That would be to defeat the purpose of CIPAA altogether and it might as well be declared loud and clear that CIPAA is not available to a contractor who terminates the Contract even for lawful grounds. If that had been the intention of Parliament on a matter of such serious ramifications, it could easily have added such a provision under section 3 on “Non-application”. [66] It would be dangerous to conclude from silence that Parliament had not intended CIPAA to apply once the Contract has been terminated, whether by the contractor or the employer, for then the full and final resolution of all disputes is better resolved at arbitration when the final account is ready. It would be a case where when CIPAA is most needed to solve the Contractor’s problem of non-payment by the Employer that its prophylactic properties are not available until final account is prepared which the Employer here admits that it would take a considerable time. [67] Whilst there may be issues that may be more fully ventilated and resolved finally in arbitration, the statutory right to Adjudication must be promoted and preserved if the purpose of CIPAA to facilitate regular and timely payment and to provide for speedy dispute resolution through 31 adjudication is not to be thwarted. Adjudication yields a result of interim finality and merely because arbitration or litigation may more fully resolve all disputes arising out of the termination of a construction contract, that is no justification for dismissing adjudication as being wholly inapplicable even when the contractor has a valid Payment Claim within the meaning of section 5 CIPAA. [68] It can be said that Parliament appreciates the interim finality of an Adjudication Decision for it is provided in section 13(c) that the decision is binding unless the dispute is finally decided by arbitration or the court. [69] Likewise it is expressly provided in section 37 CIPAA the proper relationship between Adjudication and Arbitration or Court litigation as follows: “37. Relationship Between Adjudication and Other Dispute

A dispute in respect of payment under a construction contract may be referred concurrently to adjudication, arbitration or the court.

Subject to subsection (3), a reference to arbitration or the court in respect of a dispute which is being adjudicated shall not 32 bring the adjudication proceedings to an end nor affect the adjudication proceedings.

An adjudication proceeding is terminated if the dispute being adjudicated is settled by agreement in writing between the parties or decided by arbitration or the court.” [70] It cannot be seriously stated that arbitration is a speedy mode of resolving resolution; it is anything but speedy. In jurisdictions like ours where the Courts are efficient with a target date of disposal of cases within 9 months of date of filing of the writ, litigation has become the preferred mode of dispute resolution as compared to arbitration with parties in some cases, even conceding and consenting to litigation in spite of an arbitration clause in the Contract. Many would say, with tongue in cheek, that it is faster and less expensive and with more grounds to canvass on appeal if one is dissatisfied with the Court’s decision. [71] The Claimant is not confined to pursuing its claim in arbitration only, but can have recourse to adjudication, being an additional dispute resolution mechanism introduced by CIPAA. It is certainly not precluded from availing itself of Adjudication under CIPAA for so long as it has a valid Payment Claim against the non-paying party. 33 [72] In Martego Sdn Bhd v Arkitek Meor & Chew Sdn Bhd & another case [2017] 1 CLJ 101 at pgs 119 to 120, para 76, the argument raised was that any dispute with respect to an Architect’s fees has to be referred to arbitration as provided for under section 7A of the Architects Act 1967 and rule 23 of the Architects Rules 1996 and not to Adjudication under CIPAA. The High Court observed as follows: “[76] I agree that the dispute resolution mechanism under CIPAA is by way of adjudication and the statutory requirement for dispute resolution under the Architects Act is by way of arbitration. I must also state that there is nothing strange in this difference as statutory adjudication came into being only with the coming into force of CIPAA on 10 April 2014 and that there is no need to see adjudication and arbitration to be mutually exclusive of each other as adjudication would only yield a decision of temporary finality and it is only with arbitration or litigation that one gets a final and binding decision. The whole scheme of statutory adjudication was never intended to be set in opposition to arbitration or litigation. Adjudication operates independently on a separate track and indeed a fast track and it will not run into collision with arbitration or litigation simply because its track is different. Before there was adjudication, there were 34 already arbitration and litigation. After the introduction of adjudication, both arbitration and litigation will still continue except that now there is an additional dispute resolution mechanism of temporary finality that can be embarked upon before or concurrently with arbitration or litigation as the case may be. Thus one need not have to choose in an "either or" approach between adjudication and arbitration but one can proceed in a "both and" approach in resolving a dispute on an architect's claim against his client for his professional fees. Adjudication under CIPAA was never designed to be in conflict with arbitration and litigation and so its process may be activated at any time when there is a valid payment claim under a construction contract. Premised on that proper perspective, the question of which would prevail over the other does not arise at all.” (emphasis added) [73] I would hold that the Adjudicator has jurisdiction to decide the dispute even though the Contract has been terminated. Whether there has been a breach of natural justice when the Adjudicator did not allow an extension of time for the Respondent to serve a Payment Response [74] The rules of natural justice are two-fold – (a) an affected person has the right to prior notice and an affective opportunity to make 35 presentations before a decision is made; and (b) affected person has the right to an unbiased tribunal. [75] See the English Court of Appeal decision of Amec Capital Projects Ltd v Whitefriars City Estates Ltd [2004] EWCA Civ 1418 at pg 7, para 14. [76] In this case, only the first limb – i.e. opportunity to be heard – is relevant. As such, the complainant has to show any of the following:

that he was prevented from tendering evidence or making submissions. See the Court of Appeal decision of ACFM Engineering & Construction Sdn Bhd v Esstar Vision Sdn Bhd [2016] MLJU 1776, at pages 10 to 11, paras 19, 20;

that the adjudicator decided the case on a basis not argued by either party, and without giving them a prior opportunity to comment on the “new” basis. See decision of his Court in Econpile (M) Sdn Bhd v IRDK Ventures Sdn Bhd & another case [2016] 5 CLJ 882, at pg 921, para 90(e) [77] There is no breach of natural justice where an adjudicator declines to consider evidence which – on his analysis of the law – is irrelevant. 36 [78] See the English High Court decision of Carillion Construction Ltd v Devonport Royal Dockyard Ltd [2005] EWHC 778 at para 81(1). [79] The Respondent contended that there was a breach of natural justice because the Adjudicator refused to allow the Respondent’s application for extension of time to submit a Payment Response. Surely that is not what a breach of natural justice is. [80] The application of natural justice does not require the Adjudicator to decide an issue in a particular manner. All that natural justice requires is that the Adjudicator should hear both sides and come to a determination on the issue. The fact that he has made a decision favouring one party and not the other party is no justification that he has breached natural justice. [81] The Respondent was certainly not prevented from making its application. On the contrary, the application was submitted and arguments thereon were ventilated before the Adjudicator as can be seen in the exchange of correspondence in Enclosure 2, pages 352 to 394. [82] The Claimant marshaled the argument before the Adjudicator that

the extension of time sought by the Respondent was intended to extend the Adjudicator’s jurisdiction to the set-off / counterclaim raised 37 by the Respondent; and (b) the only way in which such jurisdiction can only be extended by mutual agreement in writing of the parties as provided for under section 27(2) CIPAA. [83] Since there was no such agreement in writing to extend the jurisdiction of the Adjudicator the application was not allowed. See the Adjudication Decision in Enclosure 2, pg 642 (para 13.3.8) and pg 644 (paras 13.3.22, 13.3.23). [84] Therefore the Adjudicator declined to consider the set-off / counterclaim that had not been raised in any Payment Response. As stated by this Court on many an occasion, the Adjudicator’s jurisdiction is conferred by and confined to the matters raised in section 5 Payment Claim and section 6 Payment Response as provided for under section 27(1) CIPAA. See the case of Bina Puri Construction Sdn Bhd v Hing Nyit Enterprise Sdn Bhd [2015] 4 AMR 565 at paras 11-13 and the case of View Esteem Sdn Bhd v Bina Puri Holdings Sdn Bhd [2015] MLJU 695 at paras 60-64. [85] The Court of Appeal in View Esteem Sdn Bhd v Bina Puri Holdings Bhd [2016] 6 MLJ 717 at paragraphs 17 and 18 is even more explicit on the consequences of not meeting the deadline for the service of a Payment Response as follows: 38 “17. In dealing with sections 5 and 6, section 26 of CIPAA 2012 that pave way for the adjudicator to deal with issues relating to time limit, form or content, etc. that is to say, any irregularity and/or non-compliance of the provision of sections 5 and 6 do not mean that the adjudicator will not have jurisdiction to hear the dispute. Non-compliance if any, can be remedied and/or condone by the adjudicator as set out in the section.

The second stage is related to adjudication claim and response. It is a strict requirement under section 5 of CIPAA that the unpaid party may refer to dispute arising from a payment claim under section 5. Why we say it is a strict requirement is that the law provides for parties to extend the adjudicator’s jurisdiction only in writing and in consequent the unpaid party cannot unilaterally extend the scope of its claim. Equally the non-paying party also cannot extend the scope of its defence for adjudicator’s consideration without a written agreement between the parties as set out in section 27(2). There time frame set out in sections 5, 6, 9, 16 etc (subject to s. 26) need to be strictly complied with, failing which the parties will not be able 39 to benefit from the statutory rights provided in CIPAA

2012.” (emphasis added) [86] I would agree with the approach taken by the said Adjudicator after analyzing the legal arguments raised by both parties before him. That I must say, cannot be a breach of natural justice even if a wrong decision has been arrived at. [87] In this case I must say that I am in agreement with the arguments of the Claimant in objecting to the extension of time for the Respondent to serve a Payment Response out of time and the Adjudicator’s analysis of the arguments presented. The Adjudicator had stated succinctly as follows in his Decision: “13.3.22 In further consideration of the submissions of both parties, I find that there is no agreement in writing between the parties pursuant to section 27(2) CIPAA to extend the jurisdiction of the Tribunal to extend the time for submission of the Payment Response. On the contrary, the Claimant objected to the Respondent’s application. Furthermore, there is no submission on legal authority that specifically allows an adjudicator to enlarge his own jurisdiction by allowing time for the serving of the Payment Response.” 40 [88] It is doubtful if an Adjudicator has the power to extend the time for service of a Payment Response as this was a matter to be complied with and served before his appointment as an Adjudicator. His power to extend time under section 26 CIPAA must be over matters in which he has the jurisdiction under section 27 CIPAA. If he has no jurisdiction over a matter because no Payment Response was filed, he cannot have the power to extend time to enable him to have jurisdiction over such a matter. [89] A closer scrutiny of section 26(2) CIPAA reveals that the non-compliance in respect of time, form or content or in any other respect is in relation to “the adjudication proceedings…” Under section 8(1) CIPAA an adjudication proceeding is initiated by the service by a Claimant by a written Notice of Adjudication. Until then no adjudication proceedings have begun. [90] At any rate even if the Adjudicator has the power to extend the time for service of the Payment Response, he had in this case, not been persuaded that there are cogent grounds for an extension of time. [91] Learned counsel for the Respondent submitted that the Adjudicator failed to appreciate that the reason in why the Respondent did not issue its Payment Response within the statutory time limit, setting out its claims for liquidated damages, defective works and other 41 claims was due to the execution of the settlement agreement dated 18.7.2016 between the Claimant and the Respondent. It was further impressed upon the Adjudicator that only after the Claimant had reneged on the agreement dated 18.7.2016, which was after the due date for the service of the Payment Response, that the Respondent was compelled to make an application for an extension of time to issue its Payment Response. [92] If indeed the so-called handwritten notation was to have resulted in the Claimant not proceeding with the Adjudication, then one would have expected that to be referred to in the handwritten notation. [93] Alternatively as there were 7 more days after the conclusion of the handwritten agreement for the Payment Response to be filed, one would have expected the Payment Response to simply state that no payments are due on the 3 Certificates no 14, 15 and 16 as the time of payments had been postponed and that with those payments at the postponed dates, the parties had no further claims against each other. [94] The handwritten is strangely silent on these if indeed the terms of the so-called agreement involved the withdrawal of the Adjudication proceedings. 42 [95] It cannot escape one’s notice that the Notice of Adjudication dated 5.8.2016 was served on the Respondent on 8.8.2016. It was only on 26.10.2016 that the Respondent’s solicitors wrote to the Director of KLRCA giving Notice that there was an issue of jurisdiction that merit consideration on whether CIPAA applies as the Contract has been terminated. The said solicitors also requested for an extension of time of 7 days to file an Adjudication Response. The Adjudicator duly extended time to file the Adjudication Response to 4.11.2016 in the exercise of his powers under section 25(p) CIPAA. [96] It was only very late in the day on 4.11.2016 that the Respondent applied to the Adjudicator to serve its Payment Response out of time. If indeed the Claimant had stolen a march on the Respondent as contended by the service of the Notice to Adjudicate, then one would have thought that any application for extension of time, if that is possible, would have been applied for much earlier. Clearly when applying for extension of time to file its Adjudication Response on 26.10.2016 the Respondent’s solicitors did not see any problem with the non-filing of the Respondent’s Payment Response. The fact that the Respondent is not familiar with Adjudication is not an acceptable reason for not filing the Payment Response. As the old adage goes, the Court must proceed 43 from the premise that everyone knows the law and that ignorance of the law is no good excuse. [97] The Court should restrain itself from interfering with the exercise of discretion given by Parliament to an Adjudicator to decide on extension of time unless it has been shown that such a decision is grossly unfair or perverse in the circumstances of the case. Whether the Adjudicator has failed to act independently or impartially under section 15(c) CIPAA [98] The Respondent alleged in passing that the Adjudicator had failed to act independently or impartially merely because he refused the Respondent’s said application. [99] It would be most unfair for the Respondent to level such a accusation against an Adjudicator merely because the Respondent disagreed with the Adjudicator and strongly believed that the Adjudicator’s decision is wrong in law. [100] Unless there is cogent and convincing evidence of such lack of independence or impartiality, this Court would not venture into accusations of this nature where it is easy to allege but with no evidence raised to point in that direction other than the Respondent’s failure to 44 understand how the Adjudicator could have disagreed with the stand that learned counsel for the Respondent had taken. [101] The Adjudicator would have no opportunity to defend himself other than his grounds given in his Adjudication Decision and based in those grounds, I detect not the slightest trace of any lack of independence or impartiality. [102] This is a case where the proper course for the losing party in the Adjudication is to pay the amounts ordered by the Adjudicator and to proceed to arbitration for a final decision by way of an arbitral award. Challenging the Adjudicator’s Decision is likely to lead to a substantial waste of time and expense as was held by the English Court of Appeal decision of Carillion Construction Ltd v Devonport Royal Dockyard Ltd [2005] EWCA Civ 1358 at paras 85- 87 as follows: “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 interfere with the decision of an adjudicator. The courts should give no encouragement to the approach adopted by DML in the present 45 case; which (contrary to the DML’s outline submissions, to which we have referred in paragraph 66 of this judgment) may, indeed aptly be described as “simply scrabbling around to find some argument, however tenuous, to resist payment.

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 of “excess of jurisdiction? or “breach of natural justice?. It must be kept in mind that the majority of the 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 needs 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 subcontractors will be driven into insolvency through a wrongful withholding of payments properly due. The statutory scheme provides a means of meeting legitimate cash-flow requirements of contractors and their subcontractors. The need to have the “right” answer has been 46 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. We have every sympathy for an adjudicator faced with the need to reach a decision in a case like the present.

In short, in the overwhelming majority of cases, the proper course for the party who is unsuccessful in an adjudication under the scheme must be to pay the amount that he has been ordered to pay by the adjudicator. If he does not accept the adjudicator’s decision as correct (whether on the facts or in law), he can take legal or arbitration proceedings in order to establish the true position. To seek to challenge the adjudicator’s decision on the ground that he has exceeded his jurisdiction or breached the rules of natural justice (save in the plainest cases) is likely to lead to a substantial waste of time and expense - as, we suspect, the costs incurred in the present case will demonstrate only too clearly.” (emphasis added) 47 Pronouncement [103] For the reasons given above I had dismissed JPS’s application to set aside the Adjudication Decision and correspondingly I had allowed Binastra’s application to enforce the Adjudication Decision. As both applications were heard together, I ordered a single costs of RM10,000.00 to be paid to Binastra. Dated: 18 August 2017. - sgd - Y.A. LEE SWEE SENG Judge Construction Court Kuala Lumpur For the Plaintiff in : M.K. Chen, K Ganeson and OS WA-24C-161-12/2016 : Low Kien Seng and for the Defendant in : (Messrs M.K. Chen & Leong) OS WA-24C-171-12/2016 : For the Defendant in : Sanjay Mohan together with OS WA-24C-161-12/2016 : Wong Li Wei and for the Plaintiff in : (Messrs Thangaraj & OS WA-24C-171-12/2016 :