Ireka Engineering and Construction Sdn Bhd v Pwc Corporation Sdn Bhd (W-02(C)(A)-2069-10/2017 Heard Together with W-02(C) (A)-2070-10/2017)

Civil Appeals No. W-02(C)(A)-2069, 2070-10/2017 1 IN THE COURT OF APPEAL, MALAYSIA AT PUTRAJAYA (APPELLATE JURISDICTION) CIVIL APPEAL NO. W-02(C)(A)-2069-10/2017 BETWEEN IREKA ENGINEERING AND CONSTRUCTION SDN BHD … APPELLANT AND PWC CORPORATION SDN BHD … RESPONDENT [In the matter of the High Court of Malaya at Kuala Lumpur Originating Summons No: WA-24C-107-06/2017 In the matter of Adjudication between PWC Corporation Sdn Bhd as Claimant and Ireka Engineering and Construction Sdn Bhd as Respondent pursuant to the Construction Industry Payment and Adjudication Act 2012 And In the matter of the Adjudication Decision dated 05.06.2017 by the Adjudicator, Cheng Ho Wah @ Roland And In the matter of Section 28 of the Construction Industry Payment and Adjudication Act 2012 And Civil Appeals No. W-02(C)(A)-2069, 2070-10/2017 2 In the matter of Orders 7 and 28 of the Rules of Court 2012 Between PWC Corporation Sdn Bhd … Plaintiff And Ireka Engineering And Construction Sdn Bhd … Defendant] HEARD TOGETHER WITH CIVIL APPEAL NO. W-02(C) (A)-2070-10/2017 BETWEEN IREKA ENGINEERING AND CONSTRUCTION SDN BHD (COMPANY NO: 381566-U) … APPELLANT AND PWC CORPORATION SDN BHD (COMPANY NO: 233329-T) … RESPONDENT [In the matter of the High Court of Malaya at Kuala Lumpur Originating Summons No: WA-24C-117-07/2017 In the matter of Adjudication between PWC Corporation Sdn Bhd as Claimant and Ireka Engineering and Construction Sdn Bhd as Respondent pursuant to the Construction Industry Payment and Adjudication Act 2012 Civil Appeals No. W-02(C)(A)-2069, 2070-10/2017 3 And In the matter of the Adjudication Decision dated 05.06.2017 by the Adjudicator, Cheng Ho Wah @ Roland And In the matter of Sections 15 and 16 of the Construction Industry Payment and Adjudication Act 2012 And In the matter of Order 7 of the Rules of Court 2012 Between Ireka Engineering and Construction Sdn Bhd (Company No: 381566-U) … Plaintiff And PWC Corporation Sdn Bhd (Company No: 233329-T) … Defendant] CORAM TENGKU MAIMUN TUAN MAT, JCA MARY LIM THIAM SUAN, JCA HASNAH DATO’ MOHAMMED HASHIM, JCA Civil Appeals No. W-02(C)(A)-2069, 2070-10/2017 4 JUDGMENT OF THE COURT Introduction [1] There were two appeals before us filed by Ireka Engineering and Construction Sdn Bhd (“the appellant”). The first appeal was against the decision of the High Court in allowing the application by PWC Corporation Sdn Bhd (“the respondent”) under section 28 of the Construction Industry Payment and Adjudication Act 2012 (“the CIPAA”) to enforce the adjudication decision dated 5.6.2017. The second appeal was against the dismissal of the appellant’s application under section 15 of the CIPAA to set aside the adjudication decision. For reasons set out below, we had unanimously dismissed the appellant’s appeals. Background Facts [2] By a subcontract dated 6.7.2010, the appellant had appointed the respondent as its subcontractor for a project known as “Cadangan Membina Sebuah Bangunan Komersil 26 Tingkat Yang Mengandungi Komplek Membeli-Belah, Ruang Tempat Letak Kereta, Pusat Konvensyen/Kemudahan-Kemudahan Dan Bilik-Bilik Hotel Di Atas Sebahagian Lot TL 077579394 (LA 20-01070435), Sandakan Harbour Square, Daerah Sandakan, Bandar Sandakan, Sabah untuk ICSD Venture Sdn Bhd” (“the project”) for a contract sum of RM3,380,000.00. [3] Under the subcontract, the respondent was to provide skilled labour, material, tools, equipment and the necessary machineries for the execution Civil Appeals No. W-02(C)(A)-2069, 2070-10/2017 5 and completion of the design, fabrication, supply and installation of aluminium glazed windows and doors, lourves panel, feature fins and canopies for the project (“the subcontract work”). Outside the scope of the subcontract work, the respondent had also undertaken to do additional work. [4] Among the pertinent provisions of the subcontract are clauses 3.2 and 9.1 of the letter of award. Clause 3.2 provides: “The Sub-Contract Sum is based on the attached Provisional Bill of Quantities. The Quantities given are for guidance only. The Final Subcontract sum shall be calculated based on the remeasurement of the actual works properly executed and completed on site.”. [5] Clause 9.1 states: “Notwithstanding any other provision in the Sub-Contract, the Main Contractor shall be entitled to deduct from or set-off any money due to or becoming due to the Sub-Contractor (including any Retention Money) any sum or sums which the Sub-Contractor is liable to pay the Main Contractor whether under this Sub-Contract or otherwise or any other contract between the parties.”. [6] Clause 16.1 of the Agreement and Conditions of the Sub-Contract reads: “If the Sub-Contractor fails to complete the Works by the Completion Date(s), the Contractor shall issue a Certificate of Non-Completion (with a copy to the Consultant) stating that in his opinion, the Works (or any section of the Works) ought reasonably so to have been completed. The Contractor shall then be entitled to set-off a sum for any loss and/or expenses suffered or incurred by the Contractor, after taking into consideration the apportioning of liability where the Civil Appeals No. W-02(C)(A)-2069, 2070-10/2017 6 delays may also be caused by the Contractor and other sub-contractors. As an alternative to loss and/or expense, the parties may agree to the amount of Liquidated Damages stated in Appendix ‘A’. The loss and/or expense or any Liquidated Damages shall be set-off by the Contractor under Clause 26.9.”. [7] The amount of Liquidated Damages stated in Appendix ‘A’ was RM8,500.00 per day and the completion date for the subcontract work and the additional work was on 28.2.2011. The respondent failed to complete the works on 28.2.2011. The appellant issued a certificate of non-completion dated 1.3.2011 (“CNC”). The CNC was served on the respondent 5 years later, on 29.4.2016. The respondent lodged a police report on the CNC, contending that it was an afterthought and that it was back-dated by the appellant. [8] The respondent accomplished practical completion of the subcontract work and the additional work on or about 11.5.2012. [9] After the completion of the subcontract work and the additional work by the respondent, the appellant carried out a re-measurement exercise on site and/or from the as-built drawings to measure the actual quantity of the respondent’s work. Pursuant to the re-measurement, the contract price was revised to RM3,732,588.55. This sum comprises of RM2,798,035.78 and RM934,552.77 for the subcontract work and the additional work, respectively. [10] Between January 2011 and October 2014, the respondent issued 16 progress claims (which included its final claim) for the subcontract and the additional work done/completed, amounting to RM4,159,783.08. Civil Appeals No. W-02(C)(A)-2069, 2070-10/2017 7 [11] The appellant made a total payment of RM3,254,360.70 which includes debit notes amounting to RM8,097.00. A sum of RM47,000.00 was deducted by the appellant purportedly for the respondent’s failure to rectify the defective works. The appellant had also released the retention sum partially to the respondent. [12] The appellant contended that the balance sum payable to the respondent was RM431,277.85 but the respondent was not entitled, in any event, to payment of the said sum by reason of clause 9.1 of the subcontract on set off. The Adjudication Proceedings [13] On or about 22.11.2016, the respondent served a payment claim on the appellant. The sum claimed was RM889,229.01 for work done pursuant to the respondent’s progress claims No. 1-16. [14] On 6.12.2016, the appellant served its payment response to deny the respondent’s payment claim. Additionally, the appellant made a cross claim and/or raised the defence of set off against the respondent. The particulars of set off were:

(ii) Overpayment in the sum of RM17,790.45 for certificate of payment No. 16 for another subcontract entered into between the appellant and the respondent (“the KL Sentral Project”). Civil Appeals No. W-02(C)(A)-2069, 2070-10/2017 8 [15] On 14.3.2017, the respondent served its adjudication claim on the appellant, seeking a sum of RM889,229.01 as well as late payment interest at the rate of 8% per annum from the date of the payment claim until the settlement of the claim in full. [16] The appellant served its adjudication response on the respondent on 28.3.2017, disputing the entirety of the respondent’s claim. On 3.4.2017, the respondent filed its adjudication reply. [17] Having considered the evidence, the adjudicator accepted the respondent’s payment claim and rejected the appellant’s re-measurement of the work done. In delivering his decision against the appellant, the adjudicator found inter alia that the respondent had completed all the works in the sum of RM4,159,783.08; that the re-measurement of RM3,732,588.55 was not supported by credible evidence and was not issued in accordance with clause 3.2; and that the CNC which was dated 1.3.2011 and served on the respondent on 29.4.2016 was not issued in accordance with the subcontract. [18] Consequent thereto, the adjudicator made inter alia the following award:

(ii) The appellant’s claim for set off of LAD in the sum of RM3,723,000.00 was disallowed; Civil Appeals No. W-02(C)(A)-2069, 2070-10/2017 9

(iii) The appellant’s claim for set off of defective works and failure to provide guarantee in the sum of RM47,000.00 was disallowed; and

(iv) The appellant’s claim for set off of overpayment of RM17,790.45 was disallowed. [19] The respondent applied to the High Court to enforce the adjudication decision while the appellant applied to set it aside. Proceedings in the High Court [20] The following issues were canvassed before the learned judge:

(ii) Whether the adjudicator had acted in excess of jurisdiction when he held that the CNC was not properly issued and hence the appellant was not entitled to impose the LAD and to set off the LAD from the respondent’s claim;

(iii) Whether the adjudicator was in breach of natural justice when he held that he had no jurisdiction to hear the set off from the KL Sentral Project; and

(iv) Whether the appellant should be granted a stay of the adjudication decision pending the arbitration that had just been commenced. Civil Appeals No. W-02(C)(A)-2069, 2070-10/2017 10 [21] The learned judge alluded to section 15 of the CIPAA which provides for the setting aside of an adjudication decision on limited grounds set out below: “15. An aggrieved party may apply to the High Court to set aside an adjudication decision on one or more of the following grounds:

(ii) in imposing an additional obligation on the appellant in its re-measurement exercise, i.e. for verification of the re-measurement;

(iii) in imposing an additional obligation on the appellant with regards to its CNC although such an obligation is not an express term of the subcontract. In this regard learned counsel for the appellant submitted that there is no express requirement for the CNC to be served on the respondent within a specified time period. Civil Appeals No. W-02(C)(A)-2069, 2070-10/2017 13 [31] The appellant had also contended that the learned judge and the adjudicator had committed a breach of natural justice in refusing to consider the cross contract set off. Learned counsel relied on inter alia the English cases of Pilon Ltd v Breyer Group [2010] EWHC 837 and Thermal Energy Construction Limited v AE and E Lentjes UK Limited [2009] EWHC 408 (TCC). [32] It was further contended by the appellant that both the adjudicator and the learned judge erred in applying section 5 of the CIPAA retrospectively. In this regard, learned counsel highlighted that the subcontract was dated 6.7.2010 while the CIPAA came into force on 15.4.2014. Learned counsel submitted that the learned judge erred in relying on the wordings of section 5, namely that it refers to a single construction contract and in concluding that the adjudicator was therefore correct in not taking into account the provisions of the KL Sentral Project which was a different subcontract. [33] It was also submitted for the appellant that the learned judge had breached the principles of natural justice when his Lordship had unilaterally cited the decision of the Federal Court in View Esteem Sdn Bhd v Bina Puri Holdings Berhad [2017] MLJU 1852; [2017] 1 LNS 1378 in his grounds of judgment although the case was not yet decided when he delivered his decision on 26.9.2017. The appellant further contended that the decision of the learned judge was made on a wrong premise and ought to be set aside as his Lordship had referred to Hua Rong Engineering Pte Ltd v Civil Tech Pte Ltd [2017] SGHC 179, a case which the appellant had no opportunity to submit. Civil Appeals No. W-02(C)(A)-2069, 2070-10/2017 14 [34] Finally, the appellant argued that the learned judge erred in not granting the stay under section 16 of CIPAA and that for the following reasons, the instant case warrants a stay of execution to be granted:

(ii) there are merits in the appellant’s claim in the arbitration proceedings;

(iii) there is no immediate urgency to pay the respondent on the adjudicated amount since the project had been completed;

(iv) accordingly there can be no cash flow issues that may be faced by the respondent; and

(ii) the adjudicator had made findings of fact on the CNC and the LAD, and the set off for the KL Sentral Project based on the totality of evidence;

(iii) it is not for the court to look at the merits of the case; and

(iv) the findings of the arbitrator on the CNC and whether the appellant was entitled to charge LAD ought not to be disturbed, Civil Appeals No. W-02(C)(A)-2069, 2070-10/2017 15 until the issue of LAD has been determined in the arbitration proceedings. Our Decision [36] Having considered the submissions and the appeal records, we were not satisfied that the learned judge was plainly wrong in dismissing the setting aside application and in allowing the enforcement application and/or in the exercise of his discretion in refusing the stay application. [37] It was contended by the appellant that the adjudicator was clearly very amiable towards the respondent in allowing the full quantum of the respondent’s claim despite the lack of supporting documents. In urging this Court to allow the appeals, learned counsel for the appellant submitted that the adjudicator committed fundamental errors in that there had been a denial of natural justice and that the adjudicator had not acted impartially in allowing the respondent’s claim in its entirety without giving due consideration to the points raised by the appellant. [38] With respect, we disagreed. There are two limbs of the rules of natural justice, the first is that a man should not be the judge in his own cause (rule against bias) and the second is that the judge must hear both sides of the dispute (rule of audi alteram partem/right to be heard). Here we were concerned with the second limb which requires that both parties be accorded the opportunity to advance their case. In the context of section 15(b) of the CIPAA, the function of the court is to look at the manner in which the adjudicator conducted the hearing and whether he had accorded procedural fairness to the appellant (see Bauer (Malaysia) Sdn Bhd v Jack-In Pile (M) Civil Appeals No. W-02(C)(A)-2069, 2070-10/2017 16 Sdn Bhd and Another Appeal [2018] 10 CLJ 293; ACFM Engineering & Construction Sdn Bhd v Esstar Vision Sdn Bhd and Another Appeal [2016] 1 LNS 1522). [39] In his consideration of the respondent’s claim for the balance of work done in the sum of RM889,229.01 (RM4,159,783.08 – RM3,262,457.07), the adjudicator had directed his mind to the opposing position taken by the parties as evident below: “55. The Claimant’s final claim dated 15.10.2014 for work done of RM4,159,783.08 [refer page 60-62 of Adjudication Claim] was acknowledged receipt by the Respondent on 16.10.2014. Pursuant to Appendix ‘A’ to the Sub-Contract Conditions, the “period of honoring certificates” shall be 45 days from the date of the certificate … However, there is no record of any response, query of interim payment certificate issued by the Respondent to the final claim. The employer had issued his statement of final account on 28.11.2013 which is nearly one year before the Claimant’s final claim on 16.10.2014. Therefore the Claimant’s claim is not based on any certificate issued by the Respondent.

56. The absence of any records on the Respondent’s response after the Employer’s statement of final account dated 28.11.2013 and after the receipt of the Claimant’s final claim on 15.10.2014 prompted my direct question to the parties … on their respective positions as regards the value of work done by the Claimant.

57. In answer to my 1st question, the Claimant’s director deny the sum of RM431,227.85 for the balance of value of work done because it was calculated based on the Respondent’s re-measurement valued which they do not accept. The Respondent’s project director’s answer is that the sum Civil Appeals No. W-02(C)(A)-2069, 2070-10/2017 17 of RM431,227.85 is not due for payment because of the set off provision in clause 9.1 of the subcontract …

58. In answer to my 2nd question, both the Claimant and Respondent accept that the Claimant has completed all the works including the variation works.

59. Therefore based on section 25(n) CIPAA, I FIND and HOLD that the Claimant has completed all their works in the sum of RM4,158,783,08 even though no Certificate has been issued by the Respondent.”. [40] There was no complaint by the appellant that it was prevented from tendering evidence or from making submission on issues raised in the adjudication. Rather, the crux of the appellant’s complaint was that the adjudicator allowed the respondent’s full claim without supporting documents. The appellant’s complaint thus relates to the sufficiency of evidence. The learned judge stated that the sufficiency of the evidence and/or the weight to be attached to the evidence is a matter within the domain of the adjudicator and that it was not a ground to be raised in an application to set aside the adjudication decision. We were in full agreement with that proposition given that section 12(a) of the CIPAA has provided that the Evidence Act 1950 shall not apply to adjudication proceedings under the Act. The learned judge was further correct in concluding that the adjudicator had asked himself the right question and had correctly considered and analysed the evidence. As such, the appellant’s contention that the adjudicator had committed breach of natural justice and/or was impartial in deciding in favour of the respondent cannot be sustained. [41] On the re-measurement, the adjudicator had considered whether the respondent’s re-measurement pursuant to clause 3.2 of the subcontract in Civil Appeals No. W-02(C)(A)-2069, 2070-10/2017 18 the sum of RM3,732,588.55 was supported by evidence. The adjudicator found that there were no other terms in the Conditions of the Subcontract which explained how or when this re-measurement procedure in clause 3.2 was to be carried out. He then stated: “61. … The strict interpretation of clause 3.2 will require that the re-measurement can only be carried out after all the works have been completed which is on 11.05.2012.

62. However, the Respondent’s re-measurement is stated in the “Status of Account” which did not state any date or that it was a re-measurement issued under clause 3.2 … There was also no indication of who carried out the re-measurement and who verified the calculation.

63. In reply to question 3 in my said 2nd Order, the Claimant’s answer is that the re-measurement is an afterthought as it was not made known to the Claimant earlier. The Respondent’s answer to my question 3 is that they had performed the re-measurement in accordance with the contract …

64. I have examined the details of re-measurement and noted that the Respondent has exhibited the summary …. . I note that there is not a single signature in any of the supporting details for the re-measurement where some of which were updated on 01.12.2016. Surely someone must have verified and checked the accuracy of the calculations, but who from the Respondent?

65.

Pursuant to section 25(m) CIPAA, I FIND and HOLD on a balance of probabilities that the re-measurement sum of RM3,732,588.55 is not supported by any credible evidence and is not issued in accordance with clause 3.2.”. Civil Appeals No. W-02(C)(A)-2069, 2070-10/2017 19 [42] It was argued by learned counsel for the appellant that there was no requirement for the re-measurement documents to be verified by any party whatsoever as clause 3. 2 merely reads “… The final Sub-Contract Sum shall be calculated based on the remeasurement of the actual works properly executed and completed on site.”. Whilst that may be so, we agreed with the learned judge that even if the adjudicator’s finding of fact and his understanding of the law is faulty, the court ought not to disturb the adjudicator’s finding given that he had asked himself the correct question i.e. whether the value of the re-measured work done was RM3,732,588.55 and he had found that there was no credible evidence in support of that sum. Again, the matter of sufficiency or otherwise of the evidence is for the adjudicator to decide, not the court, especially where the basis and rationale have been clearly explained by the adjudicator. [43] On the CNC, the appellant had submitted in the adjudication proceedings, that there was no provision in the subcontract stipulating the time frame for any contractual limitation period for the issuance of the CNC pursuant to clause 16.1 of the Conditions of the Subcontract. Therefore, it was argued that the CNC may be issued at any time and that the appellant had complied with the contractual requirements for the issuance of the CNC as the appellant had in fact delivered the same to the respondent in accordance with clause 31.1 of the Conditions of Subcontract, namely by ordinary mail. [44] It was contended by the appellant that the adjudicator and the learned judge misdirected themselves on the issue of the CNC and hence on the appellant’s entitlement to the LAD. We disagreed. The learned judge found Civil Appeals No. W-02(C)(A)-2069, 2070-10/2017 20 that the adjudicator had, en-route to making his finding as to whether the CNC received by the respondent on 29.4.2016 had been backdated to 1.3.2011, had made the following astute observation at paragraph 52 of his adjudication decision as follows: “A) That there were no complaints raised on LAD by the Respondent regarding any of the 13 interim claims which were submitted after the contractual completion date on 28.02.2011. B) That the Certificate of Non-Completion (“CNC”) is dated 01.03.2011 but is post marked on 28.04.2016 and received on 29.04.2016 [refer pages 458 and 459 of Adjudication Reply]. There is no acknowledgement of receipt of the CNC by the Claimant [refer to page 188 of the said Claim]”. [45] The above were relevant considerations that were taken into account by the adjudicator to finally arrive at his conclusion that the appellant was not entitled to its LAD claim and could not set off that LAD sum from the respondent’s payment claim. [46] The learned judge ruled that the adjudicator was entitled to consider whether there was any basis for the respondent’s contention that they only received the CNC on 29.4.2016. We agreed with the learned judge that there was no justification to contend that the adjudicator had exceeded his jurisdiction in finding that the CNC was not properly acknowledged by the respondent. His Lordship committed no error in not disturbing the following findings of the adjudicator: “68. A strict interpretation of clause 16.1 would require the CNC to be issued to both the Claimant and the consultant. I note that the CNC dated 0.1.03.2011 Civil Appeals No. W-02(C)(A)-2069, 2070-10/2017 21 … bears no such acknowledgement of receipt by both the Claimant and the consultant.

69. In reply to question 3 of my said Order no. 2, the Claimant admits receipt of the CNC but only on 29.04.2016 as compared with the date on the letter of 01.03.2011. The Claimant disputes the validity of the same and has lodged a police report …

70. In reply to the same question 3 of my said Order no. 2, the Respondent’s answer is that they had complied with the contractual requirements for the issuance of the CNC. The Respondent claims that the Claimant had failed to apply for extension of time for completion of the said Subcontract due on 28.02.2011 pursuant to section 21.1 of the subcontract conditions.

71. The Claimant reply is that the CNC is backdated, that there was no complaint or issues raised by the Respondent [paragraph 15 Adjudication Reply] and the site was not ready for the Claimant [paragraph 23 Adjudication Reply].

72. Therefore, based on the contemporary records of events and pursuant to section 25(m) CIPAA, I FIND and HOLD on a balance of probabilities that the CNC is not issued in accordance with the Subcontract.”. [47] In our judgment, the adjudicator had correctly concluded that: “77. After reading the documents, I note that the Employer’s statement of final account issued on 27.11.2013, while the Respondent issued their payment certificate no. 16 on 26.09.2014 without any mention of LAD supports the Claimant’s position that the LAD was an afterthought.

78. I FIND and HOLD that the Respondent is not entitled to set off the LAD of RM3,723,000.00 against the Claimant’s claim of RM889,229.01.”. Civil Appeals No. W-02(C)(A)-2069, 2070-10/2017 22 [48] We agreed with the learned judge that even assuming for a moment that the adjudicator had made a wrong finding of fact on the CNC and hence the LAD, that is not a ground for setting aside the adjudication decision. The CNC being a certificate, could be reviewed and revised by the adjudicator pursuant to section 25(m) of the CIPAA 2012 which provides that the adjudicator shall have the power to: “(m) review and revise any certificate issued or to be issued pursuant to a construction work contract, decision, instruction, opinion or valuation of the parties or contract administrator relevant to the dispute;”. [49] We were also not persuaded that the learned judge and the adjudicator erred on the issue of set off from the KL Sentral Project. The appellant, in its payment response had undoubtedly claimed by way of set off/cross claim/counterclaim for set off for overpayment from the KL Central Project. The appellant submitted that the set off provision has been expressly stated in clause 9 of the subcontract and the same clause provided the appellant with a contractual right to set-off any amount due to the respondent against any sums due or liable to be paid by the respondent to the appellant. [50] On the set off, the learned judge relied on section 5(1) and section 5(2)(b) of the CIPAA. Section 5(1) provides “An unpaid party may serve a payment claim on a non-paying party for payment pursuant to a construction contract.”. Under section 5(2)(b) of the CIPAA, the payment claim shall be in writing and shall contain: “(b) details to identify the cause of action including the provision in the construction contract to which the payment relates.”. Civil Appeals No. W-02(C)(A)-2069, 2070-10/2017 23 [51] The learned judge noted that the singular is used with respect to ‘a construction contract’ under section 5(1) and ‘the construction contract’ under section 5(2)(b) of the CIPAA. His Lordship opined that the CIPAA envisages a payment claim for each construction contract and not for various payment claims for multiple contracts or where the payment response served is with respect to overpayment or set off in another construction contract. We are inclined to agree with the learned judge given the operation and intent of the CIPAA. This is consistent with the rule of purposive interpretation as found in section 14A of the Interpretation Acts 1948 and 1967. Similar views may be found in the English decisions of Enterprise Managed Services Ltd v Tony McFadden Utilities Ltd [2010] BLR 89; David and Teresa Bothma (In Partnership) T/A DAB Builders v Mayhaven Healthcare Ltd [2006] EWHC 2601 (QB); Fastrack Contractors Ltd v Morrison Construction Ltd & Anor [2000] BLR 168. [52] The appellant had argued that the learned judge erred in applying section 5 retrospectively. In our view, whether section 5 was applied retrospectively or prospectively was not really a material consideration. Independent of section 5, on the facts, the adjudicator and the learned judge were right to hold that it would not be appropriate for the adjudicator to decide on the set off from the KL Sentral Project when the very issue, as admitted by learned counsel for the appellant, was pending before another adjudicator in another adjudication proceedings. Further, under section 14 of the CIPAA, two or more adjudication proceedings in respect of the same subject matter which are adjudicated before the same adjudicator may be consolidated and adjudicated together, but only with the parties’ consent. The present facts do Civil Appeals No. W-02(C)(A)-2069, 2070-10/2017 24 not even come within the terms of that remit. Hence, it was entirely proper for the learned judge to draw and hold the said conclusions. [53] More importantly, in the instant adjudication, there were no documents to prove the amount of overpayment in the KL Sentral Project. The adjudicator was thus correct to state that “I cannot be certain whether the sum is an amount “which the sub-contractor is liable to pay the main contractor” as provided in clause 9.1”.. We therefore agreed with the learned judge that for the adjudicator to venture into deciding whether there is a set off and if so, for how much, would be to encroach into the jurisdiction of another adjudicator and with that, to have exceeded his jurisdiction although the set off was raised in the payment response. [54] We also agreed with the learned judge that it was an abuse of the adjudication process for the appellant to raise in this adjudication the same matter raised in another adjudication. Given the circumstances, it cannot be said that the adjudicator came to a rather narrow and restrictive view of his jurisdiction resulting in him wrongfully declining jurisdiction over the set off when he held that he has no jurisdiction to determine the merit of other contracts. [55] Finally, on whether the appellant should be granted a stay of the adjudication decision pending the arbitration that has just commenced, section 16 of the CIPAA provides: “16.

(1) A party may apply to the High Court for a stay of an adjudication decision in the following circumstances: Civil Appeals No. W-02(C)(A)-2069, 2070-10/2017 25

(2) The High Court may grant a stay of the adjudication decision or order the adjudicated amount or part of it to be deposited with the Director of the KLRCA or make any other order as it thinks fit.”. [56] The learned judge found that there were no special circumstances to warrant the exercise of his discretion to grant a stay of the adjudication decision. His Lordship held inter alia that:

(ii) the notice to arbitrate is not the “be all and end all” of the consideration for stay of the adjudication decision, for otherwise it would be a carte blanche for all who have an adjudication decision against them, to effectively get a stay of the decision by serving a notice of arbitration or to file a writ against the successful claimant, which would denude the CIPAA of its designed purpose of facilitating cash flow in the construction industry and promoting prompt payment for work done for which the contractor is already out of pocket; Civil Appeals No. W-02(C)(A)-2069, 2070-10/2017 26

(iii) the appellant had not shown that the adjudication decision contained clear and unequivocal errors such that a stay would be justified when looking at the justice of the case;

(iv) the appellant admitted that the respondent was not an “impecunious construction contractor”; and