1. ) Rimbunan Raya Sdn Bhd v 1. ) Wong Brother's Building Construction Sdn Bhd (WA-24C-56-07/2016 & WA-24C-62-08/2016)

the Construction Industry Payment and Adjudication Act 2012; And In the Matter of the Adjudication Decision dated 6.6.2016; And In the Matter of Order 7 of the Rules of Court 2012 BETWEEN RIMBUNAN RAYA SDN BHD (COMPANY NO: 53120-P) ... PLAINTIFF AND WONG BROTHERS BUILDING CONSTRUCTION SDN BHD (COMPANY NO: 583311-V) ... DEFENDANT (heard together with) 2 IN THE HIGH COURT OF MALAYA AT KUALA LUMPUR IN THE STATE OF WILAYAH PERSEKUTUAN, MALAYSIA (CIVIL DIVISION) ORIGINATING SUMMONS NO: WA-24C-62-08/2016 In the matter of an Adjudication under the Construction Industry Payment and Adjudication Act 2012 between Wong Brothers’ Building Construction Sdn Bhd and Rimbunan Raya Sdn Bhd And In the Matter of Decision dated 6.6.2016 issued by Mr Gurubachan Singh Johal And In the Matter of Section 28 of the Construction Industry Payment and Adjudication Act 2012 And In the Matter of Order 7, Rule 2 and Rule 3 and Order 92 the Rules of Court 2012 BETWEEN WONG BROTHERS BUILDING CONSTRUCTION SDN BHD (COMPANY NO: 583311-V) ... PLAINTIFF 3 AND RIMBUNAN RAYA SDN BHD (COMPANY NO: 53120-P) ... DEFENDANT THE JUDGMENT OF Y.A. LEE SWEE SENG Parties and Project [1] Rimbunan Raya Sdn Bhd ("RRSB") is the Employer for a project known as "Cadangan Pembangunan Kediaman Yang Mengandungi 16 Unit Rumah Berkembar 2 1/2 Tingkat, 25 Unit Rumah Sesebuah 3 Tingkat Jenis A dan 4 Unit Rumah Sesebuah 2 1/2 Tingkat Jenis B di Atas Lot 15646s (PT 157477) M.S(D) KA 74418, Bandaraya Ipoh, Daerah Kinta, Perak Darul Ridzuan ("the Project"). [2] RRSB appointed Wong Brothers Building Construction Sdn Bhd ("WB") as the main contractor for the Project. RRSB and WB executed the formal contract document premised on the PAM Conditions of Contract 2006 (with Quantities) ("the Main Contract"). This can be found at Attachment 1 to the adjudication claim. 4 [3] WB completed the said Project and the Certificate of Practical Completion ("CPC") was issued on 16.9.2011 and the Certificate of Making Good Defects ("CMGD") was issued on 1.3.2014. Problem [4] WB is the Claimant in the adjudication against RRSB as Respondent under the scheme of statutory adjudication provided for in Construction Industry Payment and Adjudication Act 2012 ("CIPAA"). WB's claim is for the balance amount certified as due under the Penultimate Certificate and the outstanding sum under Final Certificate issued by the Superintending Officer who is the Architect appointed by the RRSB as the Employer under the Main Contract. There was also a claim of late interest payment. The details are reproduced below:

the balance outstanding sum of RM691,296.54 pursuant to the Penultimate Certificate dated 22.9.2014;

the late payment interest for the sum of RM63,480.43 pursuant to the Penultimate Certificate dated 22.9.2014 at the rate of 7.85% (Maybank Base Lending Rate 6.85% + 1%) as at 14.8.2015; 5

the outstanding sum of RM600,422.30 pursuant to the Final Certificate dated 16.3.2015;

the late payment interest for the sum of RM15,624.96 pursuant to the Final Certificate dated 16.3.2015 at the rate of 7.85% (Maybank Base

the late payment interest for the sum of RM753,286.73 for Interim Certificate No. 1 to No. 25 at the rate of 7.85% (Maybank Base Lending Rate 6.85% + 1%) as at 14.8.2015. [5] At the adjudication each party called one witness. The Claimant's witness was Mr Lim Chong Jin, the Contract Administrator and Assistant Contract Manager for the project. (CW-l). [6] The Respondent's witness was Encik Ahmad Bokhar Bin Khalid, the person who conducted an audit on the said project (RW-l). Prayers [7] There are 2 Originating Summonses ("OS") before the Court, which by consent of the parties, were heard together. OS WA-24C-56-07/2016 dated 28.7.2016 is RRSB's application made pursuant to Section 15 (b), (c) 6 and (d) of CIPAA, to set aside the decision of the adjudicator dated 6.6.2016. [8] The grounds as set out in section 15 are that there has been a denial of natural justice, the adjudicator had not acted independently and impartially and that the adjudicator had acted in excess of its jurisdiction. [9] OS WA-24C-62-08/2016 dated 5.8.2016 is WB's application pursuant to Section 28 of CIPAA to enforce the said adjudicator's decision. [10] The parties shall be referred to as Claimant and Respondent as they were so referred to in the adjudication so as to avoid confusion. Principles [11] There is no provision for appeal against an adjudication decision made by an adjudicator under CIPAA. CIPAA however provides for the setting aside of an adjudication decision under the limited grounds set out in section 15. [12] It reads as follows: “An aggrieved party may apply to the High Court to set aside an adjudication decision on one or more of the following grounds; 7

...

there has been a denial of natural justice;

the adjudicator has not acted independently or impartially; or

the adjudicator has acted in excess of his jurisdiction” [13] The Respondent is applying to set aside the adjudication decision on grounds (b), (c) and (d). Whether the finding of the Adjudicator that there has been no double claim between the Penultimate Certificate and the Final Certificate is a finding made in breach of natural justice. [14] Under section 27(1) CIPAA it is clear that the adjudicator's jurisdiction is both circumscribed by and confined to the Payment Claim filed under section 5 and the Payment Response filed under section 6 CIPAA. [15] It is not unlike the Statement of Claim and Defence filed in the pleadings before a Court in litigation. In as much as a Judge should not stray beyond the pleadings, likewise an adjudicator has to confine himself to the issues raised in the Payment Claim and the Payment Response. 8 [16] The Claimant's Payment Claim dated 2.9.2015 and served on the Respondent on 4.9.2015 is as follows, as at 14.8.2015 consisting of the balance amounts due under the Penultimate Certificate, the Final Certificate and the late payment interest under these 2 Certificates as well as Certificates 1-25: Penultimate Certificate 691,296.54 Late Payment Interest 63,480.43 Final Certificate 600,422.30 Late Payment Interest 15,624.96 Late Payment Interest on Cert 1-25 753,286.73 TOTAL 2,124,110.96 [17] The Respondent's Payment Response dated 15.9.2015 only states as follows: "We are not in agreement with the amount claimed by your goodselves. We have on numerous occasions requested documentation supporting your claim but regret to note that to date we have not received any reply except for your current claim. 9 We wish to emphasize that we are not opposed to settling claims that we can verify, hence our request for substantiation. If we can be provided with the substantiation requested, we need not resort to the adjudication process provided for under the Construction Industry Payment and Adjudication Act 2012 (CIPA). As you would have to provide the same substantiation in the adjudication process, we fail to see the reason why we cannot be provided with the same substantiation. As such, we renew our request for documentation previously conveyed in our letters to you dated 5th August 2014, 30th April 2015 & 10th June 2015. If we can be provided the information requested, we will be in a position to verify your claims and make payment without the need to resort to CIPA." (emphasis added) [18] In the written submission of RRSB, learned counsel stated that the issues before the adjudicator are whether the Claimant is entitled to Variation orders Nos. 25, 28 and 40 until 44 and rate of late payment interest. Learned counsel for RRSB then set out the details in the table below: 10 The Variation Orders Variation Order Date Variation

Number Description

Amount (RM)

6.2011 25 Re-measurement of structure works 305,711.03 17.6.2011 28 Changes as TNB approval on design 15,755.52 30.10.2012 40 Re-measurement of Surface Water Drainage 201,344,07 30.10.2012 41 Re-measurement of Water reticulation 12,868.57 30.10.2012 42 Re-measurement of sewerage Works 887.54 30.10.2012 43 Re-measurement of External Works Outside Boundary 52,581.73 30.10.2012 44 Re-measurement of perimeter fencing 11,273.84 Total RM600,422.30 [19] This sum of RM600,422.30 is detailed and supported by the documents filed with the Adjudication Claim at paragraph 33 (c). This is the sum in the Architect's Final Certificate. This is the second part of the Claimant's claim. The first part consists of the Claimant's Claim under the Penultimate Certificate. 11 [20] Learned counsel for RRSB contended that WB's claim for RM691,296.54 as per paragraph 33(a) of the Adjudication Claim is not sustainable as this is the Penultimate Certificate sum which is already taken into account and adjusted when the Final Certificate is issued. To claim for the sum stated in the Penultimate Certificate as well as the Final Certificate sum is akin to making a double claim. He argued that in the decision handed down, the adjudicator did not address his mind to this double claim. [21] As can be seen this was not raised in the Payment Response filed by RRSB, the Respondent. All that the Respondent raised was that they denied the claim and that they had asked for substantiation of the Claimant's claim. [22] As the matter of a double claim was raised for the first time in the submissions filed, the Claimant's solicitors have rightly objected to it being raised and had nevertheless replied it to the satisfaction of the adjudicator who did not find any double claim between the Penultimate Certificate and the Final Certificate. [23] The adjudicator's reasoning is set out below in the adjudication decision: 12 "12.5 The terms and conditions governing the Project are found in the Main Contract pursuant to which the Architect being the agent of the Respondent issues the certificates for payment.

12.6 The Architect is responsible for the administration and supervision of the Project and certifies the completion of the Project at various stages.

12.7 It is a finding of fact that there was no agreement between the Claimant and Respondent that works be verified and certified by the Respondent's General Manager and Tender Committee.

12.8 The Consultants are appointed and employed by the Respondent's and are therefore bound by their certification for payments.

12.9 This is all the more so as there was a joint measurement inspection carried on 5.3.2014 and 6.3.2014 in the presence of the representatives from the Claimant and the Respondent. The QS recommended and certified the Final Account which was forwarded to the Respondent on 16.5.2014. 13 12.10 Similarly, the SO had on 16.3.2015 issued the Final Certificate for the sum of RM600,422.30 in tabulating the sums payable in the Final Certificate, the SO had certified that the entire works value to be the same sum as recommended by the QS, namely RM31,114,718.84 which included the Variation Orders No. 25,28,40 and 44.

12.11 It is clear that the Claimant had on 4.10.2012 provided all the documents requested for by the Respondent to the QS and SO prior to the issuance of the Final Account.

12.12 The QS in turn had on 8.11.2013 prepared and issued a draft Final Account which recognized the entire works value at the sum of RM31,114,718.84 which included the Variation Order No. 25, 28, 40 and 44.

12.13 On 16.5.2014, the Claimant forwarded the Final Account to the Respondent. The Respondent did not dispute the Final Account pursuant to Clause 30.12 of the Main Contract." [24] In paragraph 2.5 of the adjudication decision, the learned adjudicator had set out Clause 30.12 of the Main Contract as follows: 14 "...Unless a written notice for the arbitration shall have been given under Clause 34.0 by either party within the stipulated time stated in Clause 30.10 of the Final Account or the last amended Final Account shall be conclusive and deemed agreed by the parties other than any outstanding items to be received separately between the Employer and Contractor under Clauses 30.11(e) to 30.11(g), except where the Final Account is erroneous by reason of 30.12 (a) fraud, dishonesty or fraudulent concealment relating to the Works; or 30.12(b) any arithmetic all errors in any computation." [25] The learned adjudicator had also set out Clause 30.15 of the Main Contract which provides as follows: "...The Final Certificate shall state:

30.15(a) the Final Account; less 30.15(b) the total sums certified in previous payment certificates [whether paid or not paid] to the Contractor; 15 and the difference, if any, between the sums shall be the balance due to the Contractor by the Employer or conversely as the case may be..." (emphasis added) [26] I agree with learned counsel for the Claimant in his Submissions in Reply, that based on the format of reporting for the Final Certificate as provided in Clause 30.15, the amounts which had already been certified (whether paid or not) have already been excluded and deducted from the amounts payable and claimed in the Final Certificate. As such there is no double claim as alleged by the Respondent. [27] The Final Certificate found at Attachment 13 of the Adjudication Claim is set out below: Contract Sum RM30,207,912.60 ADD: Net Additions/Omissions RM 906,806.24 Revised Contract Sum RM31,114,718.84 DEDUCT: Previous Certificates No. 1 to 26 (Penultimate Certificate) (Kindly note that this amount represents the amount as certified regardless if it has in fact been paid or otherwise) RM30,514,296.54 Amount Certified in the Final Certificate RM 600,422.30 16 [28] This is to be compared with the Payment Claim found at Attachment 16 of the Adjudication Claim as follows: Contract Sum RM30,207,912.60 ADD: Net Additions/Omissions RM 906,806.24 Total Adjusted Contract Sum RM31,114,718.84 Less: a) Total amounts previously paid in previous Certificate No. 1 to 26 (Penultimate Certificate) b) Balance to be paid for Penultimate Certificate RM 29,823,000.00 RM 691,296.54 Balance to be paid in the Final Certificate RM 600,422.30 [29] I can agree with the Claimant's learned counsel that the above 2 Tables demonstrate that there has not been any double claim in the Penultimate Certificate and the Final Certificate. The amounts in the Penultimate Certificate amounting to RM691,296.54 does not overlap with the certified amount in the Final Certificate of RM600,422.30. [30] Thus the learned adjudicator had found both sums remain due and payable to the Claimant. 17 [31] This is a finding of fact which this Court has no basis to interfere with in a setting aside application. It is a finding arrived at by considering the evidence adduced before him and the written submissions filed. [32] Even assuming for a moment that the learned adjudicator had been wrong, that is to be corrected at arbitration if the Respondent is minded to pursue as the adjudication decision is of temporary finality only. I agree with the learned counsel for the Claimant that:

the learned adjudicator had given adequate and equal opportunity to both parties to present their case. In fact, additional opportunity was given to both parties to submit additional documents over and above those attached to the Adjudication Claim or Adjudication Response. Parties were also afforded opportunity to submit witness statements, written submissions as well as reply submissions;

the Claimant had in fact submitted sufficient documentation for the consideration of the learned adjudicator. Such documentation had also included the supporting documents for various Variation Orders No. 25, 28 and 40 to 44 which were disputed by the Claimant; 18

the learned adjudicator had given adequate and equal opportunity to the parties to call its respective witness to give oral testimony during the adjudication hearing. [33] There is clearly no good ground for asserting that there has been a breach of natural justice just because the learned adjudicator had, even assuming for a moment, failed to appreciate the evidence or had even misconstrued the evidence before him. Much less can it be alleged that the learned adjudicator had failed to act impartially or independently merely because the Respondent is unhappy with the decision arrived at. Whether the payments under the Variation Orders are due even without the signature of the Respondent's representatives [34] Learned counsel for the Respondent submitted that the Variation Price Request and the Variation Order has a column at the bottom for the employer to sign which contained these words: "l/we the undersigned acknowledged that I/we have received the variation details and agreed to the value shown above”. [35] At page 127, there is a column each for the signatures for CHECKED By Assistant Project Manager (RRSB), ENDORSED FOR CORRECTNESS 19 the General Manager (RRSB). Below these there are columns for the TENDER COMMITTEE's APPROVAL to be signed by representatives from RRSB. [36] At the hearing, the Claimant's witness CW-1 confirmed that this format was used by both parties. [37] It is true that RRSB representatives' signatures appear on the Variation Price Request form, which is found in WB’s bundle, at pages 127, 132, 136, 140, 144, 148 and 155. However as pointed out by learned counsel for the Claimant, payments had in the past been made even when the forms were not duly countersigned and that there had been part payments towards the Penultimate Certificate. To be precise, payments had been made by the Respondent on 23 of the 44 Variation Price Request as set out in pages 165 to 167 of the Adjudication Claim. [38] The relevant clauses in the Main Contract are clauses 11.7, 11.7(a) and 11.7(b). There is no provision for signatures by the Respondent. However the Respondent contended that there was a business practice wherein RRSB's representatives would approve the Variation Orders. [39] It must be highlighted that this was not the defence raised by the Respondent in the Payment Response. Nevertheless the learned 20 adjudicator had considered it as the parties had submitted on it. At paragraph 12.7 to 12.9 of the Adjudication Decision, the learned adjudicator had made his finding as follows: "12.7 It is a finding of fact that there was no agreement between the Claimant and the Respondent that works be verified and certified by the Respondent's General Manager and Tender Committee.

12.8 The Consultants are appointed and employed by the Respondent's and are therefore bound by their certification for payments.

12.9 This is all the more so as there was a joint measurement inspection carried on 5.3.2014 and 6.3.2014 in the presence of the representatives from the Claimant and the Respondent. The QS recommended and certified the Final Account which was forwarded to the Respondent on 16.5.2014." (emphasis added) [40] There is no need for the Claimant to call the Architect or the Quantity Surveyor as there is no need to go behind the Penultimate and the Final Certificates issued. At any rate the parties are bound by clause 30.12 on the conclusiveness of the Final Account unless a written notice of 21 arbitration has been given. There is no evidence that such a notice has been given by the Respondent. [41] The only issue raised with respect to the disputed Variation Orders is that the Claimant had not substantiated it. As submitted by the Claimant's counsel, there was the agreed measurement at site which was also attended by the Respondent themselves. The purpose of this joint measurement was to verify the works carried out by the Claimant in the disputed Variation Orders. The Respondent's representative had in fact jointly signed on the Joint Measurement Sheet at pages 117-121 of Attachment 6 of the Adjudication Claim. [42] After the joint site measurement, the Claimant had on 7.11.2014 resubmitted all the substantiating documents for the disputed Variation Orders. I see no good reason to interfere with the decision of the adjudicator on ground of breach of natural justice or that there has been biasness or a lack of impartiality on the part of the learned adjudicator. [43] Learned counsel for the Respondent referred to the case of Reardon Smith Line Ltd v Hansen-Tangen [1976] 1 WLR pg 989 where the approach taken by Lord Wilberforce at page 995 is as follows in interpreting contractual terms: 22 "No contracts are made in a vacuum: there is always a setting in which they have to be placed. The nature of what is legitimate to have regard to is usually described as "the surrounding circumstances" but this phrase is imprecise: it can be illustrated but hardly defined. In a commercial contract it is certainly right that the court should know the commercial purpose of the contract and this in turn presupposes knowledge of the genesis of the transaction, the background, the context, the market in which the parties are operating. And, he continues [at p 997]: "...what the court must do must be to place itself in thought in the same factual matrix as that in which the parties were'.” [44] However, where the words of the contract are clear, there is no need to rely on context to clarify, confirm or give colour to the clear words used. The Court will have to give effect to the plain meaning of the words; see the Federal Court case of City Investment Sdn Bhd v Koperasi Serbaguna Cuepacs Tanggungan Bhd [1985] 1 MLJ 285. The Respondent further complained that the learned adjudicator had not addressed his mind to the aforementioned issues canvassed by them. Whilst it can be said that the 23 reasons given were brief, it is no doubt sufficiently cogent and clear and a Court would be slow to conclude that there has been a breach of natural justice or that there has been biasness or a lack of impartiality on his part, just because fuller reasons should have been given. [45] Learned counsel for the Respondent referred to Pilon Limited v Breyer Group Plc [2010] BLR 452 where at page 452 of the headnotes it was summarized as follows: “(2) Although an adjudicator can make a mistake when answering the question put to him, and such a mistake will not affect the enforceability of his decision; a wrongful and material decision by an adjudicator not to consider a particular defence to a dispute amounts to a breach of natural justice such that the decision will not be enforced.” (emphasis added). [46] In the instant case before this Court, the only defence raised in the Respondent's Payment Response was that the Claimant had not furnished documents to substantiate its claim. It therefore can hardly be said that the learned adjudicator had not fully considered the defence raised; indeed he had given every opportunity to the Respondent to even raise matters not 24 specifically pleaded such as whether a business practice had come into being. [47] Learned counsel for the Respondent cited the case of Balfour Beatty Construction Ltd v Mayor & Burgess London Borough of Lambeth [2002] BLR 288 at paragraph number 33. “33. Thus, in my judgment, the adjudicator not only took the initiative in ascertaining the facts but also applied his own knowledge and experience to an appreciation of them and thus, in effect, did BB’s work for it. Lambeth knew of course, that Mr Richards intended first to verify the "as built programme" and it made submissions on it and on each of the Relevant Events. Mr Richards did not however inform Lambeth of what he then intended to do with the facts. He did not invite their comments on whether the "as built programme" or chart that he had drawn to depict the actual progress of the work was a suitable basis from which to derive a retrospective "critical path”. Nor did Mr Richards inform either party of the methodology that he intended to adopt or to seek observations from them as to the manner in which it or any other methodology might reasonably and property be used in the circumstances to establish or to test BB's 25 case. ln my judgment he ought to have done so. BB had not presented its case on that basis. Lambeth had criticised BB both at the outset and in its final, if belated, submissions that it had failed to establish its case in any proper way. One would ordinarily expect the appropriate method of analysis to be agreed before it was used by an architect or other contract administrator. The adjudicator steps into the shoes of such a person. lf an adjudicator intends to use a method which was not agreed and has not been put forward as appropriate by either party he ought to inform the parties and to obtain their views as it is his choice of how the dispute might be decided. An adjudicator is of course entitled to use the powers available to him but he may not of his own volition use them to make good fundamental deficiencies in the material presented by one party without first giving the other party an proper opportunity of dealing both with that intention and with the results. The principle of natural justice applied to an adjudication may not require a party to be aware of "the case that it has to meet” in the fullest sense since adjudication may be “inquisitorial" or investigative rather than “adversarial". That does not however mean that each party need not 26 be confronted with the main points relevant to the dispute and to the decision.” (emphasis added) [48] Further down the decision his Lordship observed as follows: “38 ...In my judgment Lambeth does not have to do more than establish that there is real and serious issue that the decision may be flawed by reason of the manner in which it was arrived at, which it has done.

I have therefore come to the conclusion that Lambeth has established that, for the purpose of a Part 24 application, it has realistic prospects of success that Mr Richards did not act impartially and that he failed to comply with the rules of natural justice in significant respects which cannot be disregarded and that the consequences may be sufficiently serious that they too cannot be disregarded. In my judgment an observer would conclude that by making good the deficiencies in BB's case and by overcoming the absence of a sustainable as-built programme with a critical path and the complete lack of any analysis as to which of the relevant events were critical and non-critical, the adjudicator moved into the danger zone of being impartial or liable to "apparent bias", as it is now 27 recognised. That lack of impartiality or supposed bias can easily be cured by disclosure to the other party of what is being done or thought about. In truth this case may be more a question of whether Mr Richards failed to comply with the principles of natural justice rather than whether he lacked impartiality. Certainly I have no reason to conclude that Mr Richards personally was lacking in impartiality. There is no question of actual bias. However the authorities make it clear that a person in the position of an adjudicator is obliged in certain circumstances – and these are some of them-to tell both parties of what he has in mind and give them the opportunity of either endorsing or deflecting him from that course. That Mr Richards did not do and accordingly for that reason alone the application must be dismissed since Lambeth have established reasonable prospects of success, as I have indicated.” (emphasis added) [49] Whilst I have no problem appreciating the proposition of law in that case, the facts here are poles apart. Both parties have more than enough opportunities to submit on the issue of whether a business practice has developed to require compliance in the approving of the Variation Orders 28 when the relevant clauses of the Main Contract stipulated a particular mode of approval that had already been complied with. Whether the Maybank Base Lending Rate is 6.85% and that the late interest payment of 1% above that may be imposed on late payment [50] Clause 30.17 of the Main Contract provides that in the event of any late payment, interest at the rate of Maybank Base Lending Rate plus 1% shall be payable by the defaulting party on such outstanding amount until the date payment is made. [51] There is no merits in the Respondent's contention that the interest for late payment must be included in the Final Accounts. In fact Clause 30.11 of the Main Contract provides that in preparing the Final Accounts, the consultants need not include the late payment interest as set out in Clause 30.11(g). [52] While it is true that the rate of interest charged i.e. the Maybank rate, is not found in the documents tendered at the adjudication, the Claimant's witness when questioned, had stated that he had checked this with Maybank. In the absence of evidence to the contrary produced by the Respondent, the learned adjudicator is justified to accept as proof on the balance of probabilities that the Base Lending Rate is correct. At any rate 29 the Respondent had not disputed this as an issue in their Payment Response. If they had done so, then it would be reasonable to require the Claimant to call the Banker to come as a witness or to give a letter to confirm the Base Lending Rate. [53] Learned counsel for the Respondent contended that there has also been a breach of natural justice here in that the learned adjudicator had not been independent and impartial. The test is an objective test. He cited the case of Glencot Development and Design Co Limited v Ben Barrett & Son (Contractors) Limited [2001] BLR 207 at page 219 as follows: “21. Accordingly is Mr Talbot's conduct such as to be regarded not "impartial”? lt must be emphasised that there is no question of actual bias. lt is a case of "apparent bias". Mr Talbot's personal impartiality is presumed. ln Gough Lord Woolf reiterated that "bias operates in such an insidious manner that the person alleged to be biased may be quite unconscious of its effect”. Hence there is a need for an objective test. The views of the person involved are either irrelevant or not determinative. The test is whether the "circumstances would lead a fair-minded and informed observer to conclude that 30 there was a real possibility or a real danger, the two being the same, that the tribunal was biased”.” (emphasis added) [54] Whilst it may be true that there are circumstances where the conduct of an adjudicator can lead the Court to reasonably infer that there has been a failure to act impartially and independently, the case before us is clearly not one. The matter of sufficiency of evidence to prove what is a Bank's Base Lending Rate in the absence on a contrary evidence from the Respondent other than to dispute it, would be something within the pure province of the adjudicator to decide. Even if the adjudicator should get it wrong there, it cannot by itself or even with other findings he had made, lead one to conclude that he had not acted impartially or independently. [55] The dicta of Judith Prakash J. in the Singapore case of Am Associates (Singapore) Pte Ltd v Laguna National Golf and Country Club Ltd [2009] SGHC 260, in a context not dissimilar to ours, is illuminating and is set out below: “23. There are two rules of natural justice: the first is that a man should not be the judge in his own cause and the second is that the judge or Adjudicator or other arbiter must hear both side of the dispute. The second rule is often referred to by its Latin tag, audi 31 alteram partem. Laguna’s submission, while not specifically identifying which rule of natural justice had been breached, appeared to refer to the second one.

Laguna submitted that the Adjudicator had failed to comply with the rules of natural justice in that in coming to the Adjudication Determination, he had failed to take into consideration and/or give proper weight to materials tendered by AMA which showed a discrepancy in AMA’s claim, in particular, its claim that the Concept Design had been approved. Its submissions went into the evidence in order to establish the alleged discrepancy and it then argued that if the Adjudicator had given proper consideration and weight to such discrepancy and had taken into consideration the relevant evidence tendered by the parties, he would have held that all payment claim made by AMA had been made prematurely.

Although the paragraph above contains only a brief summary of Laguna’s contentions, it can be gathered from such summary that what Laguna was complaining about was not really a failure on the part of the Adjudicator to hear both sides of the dispute but a failure on his part to decide the dispute as Laguna considered it should be decided. The audi alteram partem rule required the Adjudicator to 32 receive both parties submissions and consider them; it did not require him to decide the dispute in accordance with Laguna’s submissions. It was clear from the Adjudication Determination that the Adjudicator had conducted the adjudication in accordance with the principles of natural justice: he had called an adjudication conference at which both parties were able to make their submissions, an opportunity which Laguna had availed itself of. Thereafter, as the Adjudication Determination itself made plain, the Adjudicator gave consideration to all points raised and he then came to certain conclusions for which he gave his reasons. However dissatisfied Laguna may be with those decisions, it cannot ask for the Adjudication Determination to be set aside because it considers the decisions to be against the weight of the evidence.

The principles of natural justice are concerned with the provision of a fair hearing to contending parties. They do not mandate any particular result. As long as the parties have been given a fair hearing, the decision cannot be set aside for failure to comply with natural justice. A party who is dissatisfied with the decision on its merits cannot use the principles of natural justice to have the decision set aside...” (emphasis added) 33 [56] It was also argued that the learned adjudicator had exceeded his jurisdiction but learned counsel for the Respondent had not shown how the learned adjudicator had so exceeded his jurisdiction. The matter of interest on late payment was clearly in the Payment Claim filed and I find that there is absolutely no merits in this argument. [57] For the reasons given above, I find that there has not been any breach of natural justice and neither can it be said that the learned adjudicator had not acted impartially or independently, much less that he had acted in excess of his jurisdiction. [58] Learned counsel for the Respondent also argued that this Court should not allow the adjudication decision to be enforced as the learned adjudicator had not properly addressed his mind to the issues raised in the adjudication and that he did not give reasons for coming to his decision on crucial issues. He cited the case of Thermal Energy Construction Limited v AE & E Lentjes UK Limited [2009] EWHC 408 (TGC) as follows: “37. For all of these reasons I have reached the conclusion that this is one of those relatively rare cases where the Court must decline to enforce the decision of the Adjudicator. I should say that on the 34 evidence before me there is no reason to believe that the claimant itself or its advisers is in any way to blame for what has happened. lt may well be, and this is pure speculation, that what has happened here is that the Adjudicator was so overwhelmed by the mass of detail in terms of documentation and submission, that in seeking to provide his decision within the short timetable that he simply, through oversight, neglected to deal with an issue which he ought to have dealt with.

However, be that as it may, it seems to me that he failed to deal with the point, that as a result there is substantial prejudice to the Defendant, and that therefore the decision cannot be enforced. For those reasons, if seems to me that the application for Summary Judgment must be dismissed." (emphasis added) [59] Whilst the procedure in UK is by way of a summary judgment application for the enforcement of an adjudication decision as a judgment of a Court, the procedure under CIPAA is that of an Originating Summons to register the adjudication decision as a judgment of the Court. [60] It would be very rare for a Court having found that there are no good grounds to set aside an adjudication decision, to then nevertheless, refuse 35 to allow the decision to be enforced under section 28 CIPAA on ground of substantial prejudice to the Respondent in the adjudication. [61] At any rate this Court has held that the learned adjudicator had given proper consideration to the issues before him in spite of the Respondent's vague pleading in the Payment Response filed. He had also given sufficient reasons to justify his findings, conclusion and decision though the reasons be brief. Pronouncement [62] Therefore this Court would dismiss the OS for setting aside the adjudication decision with costs of RM10,000.00 to the Claimant and as for OS for enforcement of the adjudication decision, this Court would grant an order in terms of the application to enforce the decision with costs of RM5,000.00 to the Claimant. Dated: 30 November 2016. - signed - Y.A. LEE SWEE SENG Judge Construction Court Kuala Lumpur 36 For the Plaintiff in the Setting Aside OS WA-24C-56-07/2016 : Allen Miranda (Messrs Suraiya Arif, For the Defendant in the Miranda & Tan) Enforcement OS WA-24C-62-08/2016 : For the Plaintiff in the Enforcement OS WA-24C-62-08/2016 : Kevin Wong, Ng Dee Ming and Michelle Yoong For the Defendant in the (Messrs Yeap, Yong & Amy) Setting Aside OS WA-24C-56-07/2016 : Date of Decision: 17 August 2016