1. ) Samado Sdn Bhd v 1. ) Kerajaan Malaysia (WA-24C-99-06/2019 & WA-24C-121-07/2019)

Two applications came up before this Court for hearing; the first is the application by Samado Sdn Bhd (‘SSB’) vide Originating Summons (‘OS’) No. WA-24C-99-06/2019 filed on 12.6.2019 for enforcement of the Adjudication Decision made on 12.3.2019 by the learned Adjudicator, Sr Maria Binti Othman (‘said Decision’) as an order or judgment of the Court pursuant to section 28 of the Construction Industry Payment and Adjudication Act 2012 [Act 746] (‘CIPAA’); and second, the application by the Government of Malaysia (‘GoM’) vide OS No. WA-24C-121-07/2019 filed on 9.7.2019 to set aside the said Decision under section 15(b) and/or (d) CIPAA, O. 7 r. 28 and O. 69A rr. 1, 2 & 3 of the Rules of Court 2012 (‘RoC 2012’). 3

Having read the OS, Affidavits and written submissions filed, I am of the considered view that there is no merits in GOM’s application to set aside the said Decision. Therefore, SSB's application in OS No. WA-24C-99-06/2019 was allowed with cost of RM3,000.00 while the GOM's application in OS No. WA-24C-121-07/2019 was dismissed with cost of RM5,000.00. Both orders as to costs are subject to allocator.

The GoM has appealed against my decision as aforesaid. These are my full grounds of decision.

Only one affidavit was filed in respect of OS No. WA-24C-99-06/2019 and that is SSB’s Affidavit In Support (‘AIS’) affirmed by its Director, Mr. Omar bin Ebrahim on 17.5.2019, together with the exhibits in Volume 2 and Volume 3 (Enclosures 2, 3 and 4). 4

As for OS No. WA-24C-121-07/2019, there are three related affidavits, namely –

the GoM’s AIS affirmed by Pengarah Cawangan Kerja Kesihatan, Jabatan Kerja Raya, Mr. Mohd Rahim bin Hj Kawangit on 17.5.2019 together with the exhibits (Enclosures 2, 3, 4, 5, 6 and 7);

SSB’s Affidavit In Reply (‘AIR’) affirmed by its Director on 29.7.2019 (Enclosure 9); and

the GoM’s AIR affirmed on 14.8.2019 (Enclosure 10). Background Facts [6] By a Letter of Acceptance dated 9.8.2007 (‘LoA’), the GoM appointed SSB as the contractor for the project known as “The Design, 5 Construction, Equipping, Commissioning And Maintenance Of Belaga Health Clinic (Type 4) And Residential Quarters At Belaga, Kapit, Sarawak” (‘said Project’) for the contract sum of RM44,272,922.00. [7] The Articles of Agreement (‘AoA’) was subsequently executed on 30.6.2008 wherein by virtue of Article 4, the AoA, Conditions of Contract being the Standard Form of Design & Build / Turnkey Contract (PWD DB/T) 2002 Edition (‘CoC’), Form of Tender and LoA, among others, were deemed to form as part of the contract (‘said Contract’). [8] Paragraph 4 of the LoA states that the completion period is 30 months with the completion date set as 27.2.2010. [9] In the course of the construction works, three Extension of Time (‘EOT’) were granted, namely EOT No. 1 on 27.5.2010, EOT No. 2 on 24.9.2010 and EOT No. 3 on 31.12.2010. 6 [10] The opening of the Belaga Health Clinic (‘said Clinic’) was officiated by the then Prime Minister on 15.1.2011. [11] Liquidated and Ascertained Damages (‘LAD’) was imposed for non-completion of the works by the extended date of completion in accordance with Clause 42.1 of the CoC in the Interim Payment Certificate (‘IPC’) No. 31 dated 7.2.2011. [12] The Certificate of Non-Completion (‘CNC’) dated 9.2.2011 was thereafter issued to SSB on 21.2.2011. [13] The Form G, Occupation Permit (‘OP’) was issued by Kapit District Council on 24.3.2011. [14] SSB submitted the application for issuance of the Certificate of Practical Completion (‘CPC’) vide its letter dated 23.6.2011. The CPC was issued on 13.6.2011, certifying the date of practical completion as 11.6.2011. 7 [15] The Certificate of Making Good Defects was issued on 5.6.2014 to indicate that all defects had been made good and rectified on 18.3.2014. [16] The Final Account and Final Certificate in the sum of RM2,178,271.03 was issued on 29.4.2015 in which deduction for LAD amounting to RM1,326,140.10 (‘said Sum’) was imposed on SSB for a total of 162 days from 1.1.2011 to 12.6.2011. [17] SSB alleged that the deduction for LAD was unlawful and the said Sum must be refunded by the GoM. The Final Account was thus not signed by SSB. [18] On 3.8.2018, SSB issued a Payment Claim under CIPAA for the said Sum. The GoM did not serve a Payment Response on SSB. [19] The learned Adjudicator identified seven issues for determination, namely whether the omission of the Diagnostic Imaging Equipment 8 (‘said Equipment’) constituted an Act of Prevention; SSB’s works were completed by December 2010; time was set at large; the GoM was required to prove its actual losses; the GoM had mitigated the actual losses; the LAD sum can be proportioned; and if the LAD is allowed, would the GoM be unjustly enriched. [20] On 12.3.2019 in Kota Kinabalu, Sabah, the learned Adjudicator published the said Decision where she found that: “138. … a. The Respondent shall pay to the Claimant the sum of RM 605,766.82. This is hereby recorded as the Adjudicated Sum. b. The Adjudicated Sum shall be paid on or before 25th March 2019 and shall henceforth be called the Due Date for Payment of the Adjudicated Sum. 9 c. The Adjudicated Sum shall be paid by way of cheque or other financial instrument. d. The rate of interest payable is 4% per annum simple interest from 29th May 2015 until payment of the adjudicated sum.

The Respondent shall bear 100% of the costs of the adjudication. These costs include the AIAC registration fee of RM 265.00, AIAC fee to appoint adjudicator of RM 424.00, Claim Consultant cost of RM 50,000.00, Incidental cost of RM2,500.00, Adjudicator’s fee and expenses of RM 23,272.27 and AIAC fee of RM4,721.72.”. 10

(A) OS No. WA-24C-121-07/2019: The Setting Aside Application by the GoM [21] There is no express provision in CIPAA which allows a party who is aggrieved by an adjudication decision to appeal to the court. Instead, such party may only apply to the High Court to set aside the adjudication decision on four grounds as stipulated in section 15 CIPAA. In the present application, the GoM relied on two of the grounds, namely in section 15(b) and/or (d) CIPAA which reads: “Improperly procured adjudication decision 15. An aggrieved party may apply to the High Court to set aside an adjudication decision on one or more of the following grounds: …

there has been a denial of natural justice; …

the adjudicator has acted in excess of his jurisdiction.”. 11 [22] It is trite that the courts will not review any adjudication decision on its merits. To quote the words of Ravinthran Paramaguru J (now JCA) in Bina Puri Construction Sdn Bhd v Hing Nyit Enterprise Sdn Bhd [2015] 8 CLJ 728 at p 733: “[10] It must be noted that under CIPAA, there is no right of appeal against the decision of the adjudicator which is interim in nature or of temporary finality only. Section 15 has provided limited grounds on which the decision of the adjudicator may be set aside. Since an application under s. 15 is not an appeal, the decision of the adjudicator cannot be reviewed on merits. In the instant case, the applicant has relied on the ground of breach of natural justice and excess of jurisdiction to set aside the decision of the adjudicator. In the premises, the criticism of the adjudication decision by the applicant must clearly point to a breach of natural justice or a jurisdictional error in the adjudication process. Otherwise, the instant 12 proceeding would be converted to a full blown appeal or a rehearing of the adjudication process.” (emphasis added). [23] The principles relating to the rules of natural justice applied in the context of adjudication have been dealt with in an innumerable number of cases, some of which are discussed by the learned authors Lam Wai Loon and Ivan YF Loo in Construction Adjudication in Malaysia, Second Edition, 2018, Sweet & Maxwell (see Chapter 9 on “Duties and Obligations of an Adjudicator” – “Adherence to the principles of natural justice” and Chapter 15 on “Setting Aside of Adjudication Decision” – “Section 15(b): Breach of Rules of Natural Justice”). The illustrations of fact situations where a failure to adhere to the two pillars of natural justice - nemo judex in causa sua and audi alteram partem - are placed in these clusters by the learned authors: Deprivation of, or inadequate opportunity to present case fully or to respond; Unilateral communication with one of the parties to the adjudication; Application of the adjudicator’s own knowledge/findings without consulting the parties; Receiving new evidence during 13 adjudication; Failure to give reasons; Failure to consider a party’s submission or give proper weight to the evidence; Failure to consider previous adjudication decision; and the adjudicator erroneously taking a restrictive view of his own jurisdiction. [24] In the course of His Lordship’s judgment in CJP Builders Ltd v William Verry Ltd [2008] EWHC 2025 (TCC), Akenhead J discussed the issue of breach of natural justice as follows: “79. … …

One of the entitlements of parties to an adjudication is a right to be heard, that being the rule of natural justice “Audi Alterem Partes”. There is thus a reasonable expectation of parties to an adjudication that, within reason and within the constraints of the overall requirement to secure the giving of a decision within the requisite time period, each party’s submissions 14 and evidence will be considered by the Adjudicator. … …

Reliance was placed upon my observations in Cantillon Ltd v Urvasco Ltd [2008] BLR 250 at Paragraph 57: “From this and other cases, I conclude as follows in relation to breaches of natural justice in adjudication cases:

it must first be established that the adjudicator failed to apply the rules of natural justice;

any breach of the rules must be more than peripheral; they must be material breaches; 15

breaches of the rules will be material in cases where the adjudicator has failed to bring to the attention of the parties a point or issue which they ought to be given the opportunity to comment upon if it is one which is either decisive or of considerable potential importance to the outcome of the resolution of the dispute and is not peripheral or irrelevant.

whether the issue is decisive or of considerable potential importance or is peripheral or irrelevant obviously involves a question of degree which must be assessed by any judge in the case such as this. 16

it is only if the adjudicator goes off on a frolic of his own, that is wishing to decide a case upon a factual or legal basis which has not been argued or put forward by either side, without giving the parties an opportunity to comment or, where relevant put in further evidence, that the type of breach of the rules of natural justice with which the case can be Balfour Beatty Construction Company Limited v The London Borough of Lambeth was concerned comes into play. It follows that, if either party has argued a particular point and the other party does not come back on the point, there is no breach of the rules of natural justice in relation to thereto.””. 17 [25] The learned Senior Federal Counsel (‘SFC’) representing the GoM has chosen to cite the case of Ranhill E & C Sdn Bhd v. Tioxide (Malaysia) Sdn Bhd & Other cases [2015] 1 LNS 1435 wherein Mary Lim J (now JCA) had referred to a string of English authorities which have elucidated on the approach and attitude of the Courts in respect of provisions similar to section 15 CIPAA. Her Ladyship had also quoted passages from the decisions in Carillion Construction Ltd v. Devonport Royal Dockyard Ltd [2005] EWHC 778 and Balfour Beatty Engineering Services (HY) Ltd v. Shepherd Construction Ltd [2009] EWHC 2218 before stating that the applicant who claimed that there has been a denial of natural justice by the Adjudicator must show inter alia: “a) that the adjudicator has failed to bring to the attention of the parties a point or issue which they ought to have been given the opportunity to comment upon if decisive or of considerable potential importance to the outcome of the resolution; 18 b) that the adjudicator has gone off on a frolic of his own, ie, deciding a case based on a factual or legal basis which has not been argued or put forward by either side; c) that the adjudicator has decided on an issue or issues outside his jurisdiction; d) that the adjudicator deliberately took an enormously restrictive view of his own jurisdiction with the result that he decides not to consider an important or material element of the dispute referred to him”. [26] As for the challenge on the ground of excess of jurisdiction, the Federal Court in View Esteem Sdn Bhd v. Bina Puri Holdings Bhd [2018] 2 MLJ 22 at p 33 observed that the term “jurisdiction” under CIPAA is not used in the administrative or public law sense but in relation to matters within the scope of CIPAA. The apex court then 19 referred to the judgment of Lee Swee Seng J (now JCA) in Terminal Perintis Sdn Bhd v Tan Ngee Hong Construction Sdn Bhd (and Another Originating Summons) [2017] 7 AMR 887. At pp 913 - 914 of that case, His Lordship explained that “There are many senses in which the word “jurisdiction” may be understood.” and His Lordship went on to identify and describe three categories of jurisdiction in the following passages: “[72] Core jurisdiction would be the question of whether the subject matter of the dispute is one which the Act has conferred on the Adjudicator. … It is a case where the Adjudicator has no jurisdiction to begin with. So too if the construction contract is carried out wholly outside Malaysia. [73] If it is a question of the competence of the Adjudicator as in he has not been properly appointed in that what purported to be a Payment Claim, is not on the face of it a Payment Claim or that the Payment Claim was not 20 served or that it was not expressly stated as a claim made under CIPAA, then this Court would be at liberty to set aside the Adjudication Decision on ground of excess of jurisdiction. This is not only because the Adjudicator cannot decide on his own competence or capacity to adjudicate when the very validity of his appointment is questioned but also that it is part of the legislative intent that if there is non-compliance with a basic and essential requirement of CIPAA with respect to a Payment Claim under section 5, then the Adjudication Proceedings and the Decision made would be a nullity. [74] In a case of contingent jurisdiction, it would be a case where for there to be jurisdiction, there must be further compliance with the requirements of the Act as in that the dispute must be one falling within the matters raised in the Payment Claim and the Payment Response as provided for under section 27(1) CIPAA. 21 In that example the word “jurisdiction” is used in the sense of the scope of the dispute that is before the Adjudicator for decision. ….”. [27] As observed by the Federal Court in View Esteem, the common feature in the above mentioned three categories of jurisdiction is the presupposition that CIPAA applies to determine if the adjudicator had kept within his jurisdiction (see too, the Court of Appeal in Ideal City Development Sdn Bhd v. PWC Bina Sdn Bhd & Other Appeals [2019] 2 CLJ 615). [28] Both the learned SFC and counsel for SSB also relied on View Esteem as it is now established that section 15(d) CIPAA embraces jurisdictional grounds in the sense that the adjudicator has the jurisdiction to adjudicate the dispute referred to him but he had decided on matters which were beyond his jurisdiction. 22 [29] Having stated the legal principles to be applied in the present setting aside application by the GoM, I now turn to the three specific issues raised by the GoM in the affidavits and written submissions.

Issuance of the Occupational Permit by the Kapit District Council

(ii) The possible issuance of a Certificate of Practical Completion with conditions [30] Since both issues are inter-related, I shall deal with them simultaneously. - The Parties’ Submissions [31] The GoM contended that the Adjudicator had acted against the principles of natural justices and beyond her jurisdiction when making decisions based on issues that have never been raised by the parties. 23 [32] The SFC referred to Clause 41 of the said Contract on “Completion of the Works” in support of her submission that the Certificate of Practical Completion (‘CPC’) can only be issued when the whole of the works have reached practical completion according to the provisions of the said Contract and to the satisfaction of the Project Director (‘PD’), and the Occupational Permit (‘OP’) is not a mandatory requirement for the issuance of the CPC. [33] The learned Adjudicator is said to have gone on a frolic of her own by deciding a case based on a factual or legal basis which was not argued or put forward by either party. The Adjudicator made assumptions to the detriment of the GoM when she decided that the OP dated 24.3.2011 by the Kapit District Council signifies practical completion of the said Project by end of March 2011 when in actuality, the CPC was issued only on 13.6.2011. [34] The SFC argued that the Adjudicator failed to bring the issue regarding the issuance of the CPC with conditions to the attention of 24 both parties who ought to have been given the opportunity to comment and/ or clarify on the matter. Moreover, the SFC pointed out that there was no agreement in writing to extend the jurisdiction of the Adjudicator to decide on the matter as regards the issuance of CPC with conditions under subsection 27(2) CIPAA. [35] It was further submitted that the learned Adjudicator failed to appreciate that the contract in this case is a Design and Build Contract and so SSB is contractually obligated to conduct the radioactive testing for the X-Ray Room which forms part of the original scope of work. Even assuming that the works were completed by EOT No. 3 on 31.12.2010, the works have not reached practical completion such that the GoM can operate the clinic according to its purpose since the testing and commissioning (‘T&C’) for the X-Ray Room had not been completed. The T&C is crucial in order to avoid any untoward incident for instance, radiation leakage of the X-Ray Room which would definitely impact on public health and safety. 25 [36] In contrast, SSB contended that the works had achieved practical completion by December 2010 based on the following reasons:

the opening of the Belaga Health Clinic (‘said Clinic’) was officiated by the then Prime Minister on 15.1.2011 [refer exhibit “A-3” in SSB’s AIS in the enforcement application (Enclosure 2) for “ACD 26” in the Adjudication Claim which shows the letter from the Office of the Director, Sarawak Health Department to the Pengarah Cawangan Kerja Kesihatan, Ibu Pejabat JKR, Kuala Lumpur dated 6.1.2011 requesting that the said Clinic undergo T&C before the scheduled opening ceremony, and copies of the photographs taken during the actual opening ceremony]. Although the opening ceremony does not have contractual implication, SSB submitted that the learned Adjudicator is empowered under section 25(m) CIPAA to review and revise the CNC issued; 26

the said Clinic was occupied and used by the GoM since

the OP issued on 24.3.2011 confirms that the Kapit District Council has inspected the said Clinic and found it to be satisfactorily completed in accordance with the approved plans dated 15.10.2010 and that the said Clinic can be occupied for the purpose as stated in the approved plans (refer “ACD 27” in the same exhibit “A-3”). [37] SSB’s counsel argued that the GoM cannot be allowed to approbate and reprobate where, on one hand the GoM had occupied the said Clinic since January 2011, and on the other hand, denying that the said Clinic was practically completed by then. Since the letter in “ACD 26” clearly stated that “pihak kami memohon kerjasama daripada pihak tuan untuk memastikan Klinik Kesihatan Belaga siap menjalani pengujian dan pentauliahan sebelum perasmian dijalankan”, and the then Prime Minister had indeed officiated the opening ceremony of 27 the said Clinic, the said Project must have been practically completed on 15.1.2011. SSB even went on to question as to whether the then Prime Minister would officiate the said Clinic if the building was not fit for its purpose or was not practically complete, and that if it was so, it would amount to nothing short of a scandalous deception to the people of Belaga. [38] It was additionally submitted that the OP was not contemporaneously disputed nor protested by the GoM. Furthermore, the Fire and Rescue Department had, vide letter dated 25.1.2011 to the Kapit District Council, enclosed the Surat Sokongan Kelayakan Menduduki, and all the project consultants had certified the practical completion of the said Project by 31.3.2011 (the Architect’s letter is dated 30.3.2011; the C&S Engineer’s letter referring to the joint inspection on 28.2.2011 and 28.3.2011 is dated 31.3.2011; and the M&E Engineer’s letter referring to the joint inspection on 18 – 24 March 2011 is dated 29.3.2011) [refer exhibit “A-4” in SSB’s AIS in the enforcement application (Enclosure 2) for the Fire and Rescue 28 Department letter “ARD 1” and the consultants’ letters “ARD 34” in the Adjudication Response]. [39] The SFC submitted at length on the issue of the X-Ray Room. The key points are that –

the X-Ray Room had been physically completed leaving only the T&C of the X-Ray Room which is merely a procedural matter and must not be allowed to hinder the practical completion of the said Project pursuant to the doctrine of de minimis;

the then Prime Minister in his speech at the opening ceremony of the said Clinic as reported in Borneo Post online (refer the same exhibit “A-4” for “ARD 3” in the Adjudication Response) said that “the government would send an X-Ray machine as well as medical officers to be stationed at the new clinic”. The X-Ray machine was in fact delivered on 7.4.2012 (refer to the letter from Pejabat Kesihatan/Bahagian Kapit to SSB dated 29

29.3.2012 in the same exhibit “A-4” for “ARD 4” in the Adjudication Response). Hence, it is SSB’s contention that if the GoM’s argument that the said Clinic was not fit for its purpose without a functional X-Ray Room is to be accepted, the practical completion date of the said Clinic would be sometime in April 2012;

the GoM faced financial constraints as evidenced by the letter from Timbalan Ketua Pengarah Kerja Raya II to SSB dated 5.7.2007 in exhibit “A-3” for “ACD 28” in the Adjudication Claim wherein it was stated that: “2. Sukacita dimaklumkan bahawa Kerajaan telah mempertimbangkan tender tuan dan berhasrat untuk menerimanya. Walau bagaimanapun penerimaan tender tersebut adalah tertakluk persetujuan tuan kepada syarat-syarat berikut ; … 30

2.3 Tuan dikehendaki memberi persetujuan kepada nilai potongan sebanyak RM 4,647,000.00 yang merangkumi pengeluaran (omission) item-item seperti di bawah daripada skop projek ini, sepertimana yang dipersetujui oleh Kementerian Kesihatan Malaysia untuk menepati siling kos projek yang ditetapkan sebanyak RM 45 Juta. … Rujukan CSA Perkara Jumlah 3.07 Sterilizers RM 1,115,000.00 4.20 Imaging Equipment

Provisional sum for

(ii) Provisional sum for main Access Road RM 1,600,000.00 RM 800,000.00 Jumlah nilai potongan RM 4,647,000.00 31 Therefore, it would yield no practical benefit to the GoM if the T&C were completed by SSB at the material time; and

the non-completion of the said Project is attributable to the omission of the said Equipment and the express contractual obligation to comply with the requirements of the relevant authority i.e. the Malaysian Nuclear Agency. The said omission and obligation are said to tantamount to acts of prevention by the GoM (no cases were cited by SSB so presumably the acts of prevention meant are as laid down in Peak Construction (Liverpool) Ltd v McKinney Foundations Ltd (1970) 69 LGR 1). Nevertheless, SSB took efforts to obtain the radioactive source so that the T&C for radiation leakage test can be carried out. In this regard, SSB had approached Asia Lab, Allied Physics Sdn Bhd, Medical Physics Services Sdn Bhd, Mega Radiation Sdn Bhd and Gamedix Sdn Bhd. Mega Radiation Sdn Bhd was able to obtain the radiation source and airfreight it from the Nuclear Agency to Kuching, however the Nuclear Agency then wrote a 32 letter dated 16.3.2011 that “… perkhidmatan tersebut dibatalkan disebabkan oleh masalah teknikal berhubung dengan pengangkutan bahan radioaktif melalui udara. Masalah pengangkutan bahan radioaktif melalui udara ini tidak mungkin dapat di atasi dalam jangka yang singkat kerana ketiadaan maklumat-maklumat mengenai ‘UN Number’ dan juga ‘Material Safety Data Shoot (MSDS)’ radioaktif tersebut. Dokumen yang mengandungi maklumat-maklumat tersebut hanya boleh diperolehi dari pihak pembuat (manufacturer) dan proses mendapatkan maklumat yang diperlukan dijangka mengambil masa disebabkan bahan radioaktif tersebut dibeli pada tahun 1987.”. Pursuant to Clause 12.1.1 of the said Contract, SSB shall comply with all statutory notices required by any written law, regulation or requirements, byelaw or any local authority. The T&C was finally carried out on 12.6.2011 and the CPC was issued upon submission of the test report to the GoM on 15.6.2011 (the detailed chronology of events is explained in SSB’s Submission In Reply dated 7.10.2019 and the relevant 33 documents can be seen in exhibit “A-3” for “ACD 16” and “ACD 29” to “ACD 39” in the Adjudication Claim). [40] On the issue of the conditional contract, SSB’s position is that the Adjudicator did not make any decision but merely offered her opinion on the matter and thus, she did not act beyond her jurisdiction as circumscribed under subsection 27(1) CIPAA. In fact, the Adjudicator was merely exercising her power under section 25(m) CIPAA to decide the matter. What was asked to be adjudicated is the payment, and in order for the Adjudicator to answer this question, inevitably the Adjudicator had to consider the time that the CPC ought to have been issued. - Findings of the Court [41] Subsection 27(1) CIPAA stipulates that “Subject to subsection (2), the adjudicator’s jurisdiction in relation to any dispute is limited to the matter referred to adjudication by the parties pursuant to sections 5 and 6.”. 34 [42] The provisions in sections 5 and 6 CIPAA govern the aspects of the Payment Claim and Payment Response, respectively. It is undisputed that SSB had served the Payment Claim on the GoM on 3.8.2018 for the sum of RM1,326,140.10 being the allegedly unlawful LAD deduction. The GoM did not serve a Payment Response on SSB within 10 working days of the receipt of the Payment Claim as provided under subsection 6(3) CIPAA. Therefore, pursuant to subsection 6(4) CIPAA, the GoM is deemed to have disputed the entire Payment Claim. [43] The key contractual provision related to the issue at hand is Clause 41 in the CoC which provides as to when the works for the said Project are considered to be completed in the following terms: “41. Completion of the Works

41.1 Subject to any requirement as to the completion of any section or part of the Works under 35 Clauses 39.3 and 43 before the completion of the whole of the Works, the Contractor shall complete the whole of the Works on or before the ‘Date for Completion’ stated in Appendix 1 or such extended time as may be allowed under clause 45 hereof.

41.2 When the whole of the Works have reached practical completion according to the provisions of this Contract and to the satisfaction of the P.D., the date of such completion shall be certified by him and such date shall be the date of the commencement of the Defects Liability Period as provided in Clause 48 hereof. The certificate issued under this sub-clause shall be referred to as the ‘Certificate of Practical Completion’. 36

41.3 Notwithstanding the provision of Clauses 42 and 45, time shall be the essence of this Contract.”. [44] There is no doubt that practical completion of the works has been defined clearly in the aforesaid clause as is not uncommon in modern day construction contracts. The purpose served by having such provisions is clarified by Teng Kam Wah in Construction Defect Claims In Malaysia, Sweet & Maxwell, 2019 at p 9: “[1.033] The construction contract can set specific parameters to guide and control the contract administrator in certifying practical completion. Where the construction contract does not define the meaning of practical completion, this can become a flashpoint for disputes between the parties. The contractor would want practical completion to be certified early so as to meet the completion date and possibly to obtain release of retention money. The employer would want practical completion with the least possible defects and outstanding work.”. The learned author Chow Kok Fong in Law and Practice of Construction Contracts, Fifth Edition, Volume 1, Sweet & Maxwell, 2018 at p 560 had similarly elucidated that “9.070 Modern 37 construction contracts typically provide for the state of completion to be certified. The certification of completion is a matter of considerable significance on various points of contract administration. These include the determination of liability for delay, the preparation of final accounts, arrangements to extend the cover of the performance bond and insurances (if necessary) and the commencement of the maintenance period. ...”. [45] As regards the extensive usage of the expression “practical completion” rather than “completion” in construction contracts, Teng Kam Wah at the same page of his book attributes this as being “[1.031] … due to the fact that a building can seldom if ever, be built in full and complete compliance with the drawings and specifications. The almost inevitability of defects especially for substantial construction works has fuelled the popular use of the certificate of practical completion which may be issued where the defects are of a de minimis nature but the completed building is nevertheless functional for its intended purpose thus not precluding the contractor from delivering it to the employer.”. Chow Kok Fong, also at the same 38 page of his book, states it this way: “9.069 In most construction contracts, the works are considered to be completed when it is in a state which can be handed over to the employer to be adequately used for the purpose for which the works were commissioned. The typical expressions used in construction contracts for this purpose include “practical completion” or “substantial completion”, distinguishing the state of the works at the time of handover from that at final completion. ...”. [46] The GoM’s reading of the said Decision is that the learned Adjudicator had concluded that the OP issued by the Kapit District Council “signifies the CPC with conditions to be issued whereas in fact OP was not the requirement under the Contract” and “as the prerequisite for the issuance of the CPC with conditions”. [47] The Adjudicator’s analysis of the issue as to whether SSB’s works had been completed by December 2010 or by the end of March 2011 can be found in paragraph 120 of the said Decision which is set out below for ease of reference: 39 “120. Based on documents submitted to me, I have not found any factual documentary evidence that can prove the practical completion of the works (excluding T&C of the X-Ray Room) by December 2010: i) The reply letter from the Respondent (ref ACD 19) and letter of appeal from Claimant to the then Prime Minister (ACD 25) and the Officiating Ceremony on 15.01.2011 (ACD 26) referred to by Claimant cannot be relied on to determine the practical completion by December 2010 as these are mere statements or just possible indication without hard factual evidence. ii) The early occupation by the Respondent allegedly since January 2011 cannot determine that practical completion was achieved by December 2010. In any case I find no factual 40 documentary evidence in the submissions that can confirm the said early occupation by the Respondent. iii) The Occupation Permit (OP) dated 24.03.2011 (ref ARD 34) signifies practical completion by up to March 2011, however in the absence of any other factual documentary evidence, the OP by itself cannot determine that works were practically completed by December 2010. iv) Mere storage of expensive dental equipment in the Clinic by Respondent cannot determine practical completion. v) Payment of Security Services by the Respondent from 1.02.2011 to 31.07.2011 also cannot determine practical completion as it is only the 41 Respondent’s own initiative to ensure the safety of their equipment. vi) Evidently there were also other outstanding works that have yet to be completed (by December 2010) apart from the T&C for the X-Ray Room as shown from ARD 5, ARD 6, ARD 7 and ARD 8. vii) The copy of Joint Inspection (ie: additional documents) submitted by the Claimant does not indicate that practical completion has been achieved by end of December 2010. Evidently from the documents, there were some completed works that were accepted but with conditions.”. [48] Although the learned Adjudicator was of the view that the evidence adduced at the adjudication proceeding did not support a finding that there was practical completion of the works by December 2010, she 42 was however satisfied, from the same documents submitted by the parties, that practical completion should have been certified by 30.3.2011. Her reasons in arriving at that conclusion are in paragraph 121 of the said Decision: “… i) The Claimant’s Consultants letters of recommendation for Certificate of Practical Completion (CPC) as follows (ref ARD 34):  Architect (Jurubina Unireka) letter dated 30.03.2011  C&S Engineer (PU Engineering Sdn Bhd) letter dated 31.03.2011 referring to Joint Inspection on 28.02.2011 and 28.03.2011  M&E Engineer (Perunding Malca Sdn Bhd) letter dated 29.03.2011 referring to Joint Inspection on 18th to 24th March 2011 43 ii) The Occupation Permit (OP) dated 24.03.2011 (ref ACD 27). iii) The above stated documents are official and factual documentary evidence that support practical completion was achieved by 30.03.2011. iv) I take the view that the abovestated Consultants recommendation for CPC based on normal T&C (ie: without T&C of the X-Ray Room) is deem justified in the context of this case whereby the Diagnostic Imaging Equipment has been omitted from the contract. This is due to the fact that at later stage when the Diagnostic Imaging Equipment arrived, the T&C to the X-Ray Room would need to be carried out again even though it had already been carried out prior to the CPC dated 13.06.2011. Hence it would give no practical benefit nor difference to the Respondent even 44 if the T&C of the X-Ray Room was completed by the Claimant at the material time. v) The issuance of the Occupation Permit (OP) dated 24.03.2011 by Majlis Daerah Kapit ultimately signified the practical completion of the project by end of March

Majlis Daerah Kapit having the ultimate jurisdiction over the works will not issue the OP unless the relevant authorities have carried out the relevant tests and/or inspections and issued various clearances or letters of no objection. vi) Furthermore, I find no correspondence that shows any objection or protest by the Respondent pertaining to the issuance of the OP. Instead it was minuted in the Minutes of Meeting held on 14.03.2011 that the Respondent required Claimant to obtain the OP before 29.3.2011. Furthermore, in the said Minutes of 45 Meeting, it was also stated (by the Chairperson) that the CPC will be issued by 29.03.2011. vii) Evidently, the Claimant submitted his application for CPC only on 23.06.2011. Nevertheless, it is my view that the Respondent should still have considered the recommendation for practical completion by the Consultants as stated above and the Occupation Permit dated 24.03.2011 and accordingly certified the practical completion on 30.3.2011. Based on the prevailing practice in deciding practical completion, consideration should have been made objectively by the Respondent as follows:  Without the T&C of the X-Ray Room, the building can still function fit for the purpose it was intended to (ie: Health clinic) as the Diagnostic Imaging Equipment was omitted from the contract and therefore unavailable for use. 46  The non-completion of the T&C of the X-Ray Room could not have affected the completeness of the whole of works as the Diagnostic Imaging Equipment was omitted from the contract and therefore unavailable for use.  The issuance of the Occupation Permit by the Authorities (ie: Majlis Daerah Kapit) ultimately signifies the practical completion of the project.  The non-completion of the T&C of the X-Ray Room could not have affected or failed the Safety Test of the whole of works as the Diagnostic Imaging Equipment was omitted from the contract and therefore unavailable for use. viii) Based on the above, I take the view that the certification of practical completion on 30.03.2011 47 could have been issued by way of a CPC with conditions, that is, subject to an undertaking by Claimant. The undertaking letter ought to state that Claimant shall be liable and responsible in the event of any fault and/or leakage during the carrying out of the T&C of the X-Ray Room later when the Diagnostic Imaging Equipment is available, failing which the Respondent shall recover the loss/damage from the Performance Bond or Performance Guarantee Sum as the case may be. Such action would have given a practical and justified solution for both parties under the contract.”. [49] Thereafter, the learned Adjudicator exercised her powers pursuant to section 25(m) CIPAA to “review and revise any certificate issued or to be issued pursuant to construction work contract, decision, instruction, opinion or valuation of the parties or contract administrator relevant to the dispute” in making the following order: 48 o I revise the date of practical completion stated in the CPC to 30.03.2011. Accordingly, the LAD to be imposed shall be calculated from 1.01.2011 to 29.03.2011 (88 Days). o I revise the total LAD sum stated in the Final Certificate and Final Account to RM 720,373.28 (RM 8,186.06 / Day x 88 Days).

Therefore, the LAD sum of RM 605,766.82 (ie: being RM 1,326,140.10 – RM 720,373.28) shall be returned to the Claimant.”. [50] Based on above mentioned excerpts as well as the other parts in the said Decision, read as a whole, it is my considered view that the learned Adjudicator – 49

had considered the Payment Claim, Adjudication Claim, Adjudication Response (which covered almost 2½ pages of the said Decision), Adjudication Reply and the submissions by SSB and the GoM;

had given full opportunity to the parties to present their respective case and the Adjudicator had even directed them to make further submissions as evident from this paragraph in the said Decision: “117. Apart from the submissions made under Payment Claim, Adjudication Claim, Adjudication Response and Adjudication Reply, both parties have submitted further replies / submissions in response to my directions as below :  My letter requiring for further documents (ref: … dated 15.01.2019) 50  My letter inviting comments from both parties on the issue of whether work had reached practical completion by end of March 2011 as signified by the official documents submitted (ref: … dated 21.01.2019).  My letter inviting comments from Respondent on the issues of Security Services paid by Respondent and the anticipated issuance of CPC by 29.03.2011 as minuted in minutes of meeting submitted (ref: … dated 30.01.2019).  Related emails subsequent to the above stated letters.”. 51 The e-mails dated 21.1.2019 and 30.1.2019 from the Adjudicator to the parties are exhibited in the GoM’s AIS (Enclosure 3) as exhibit “MRK-5”. The same exhibits also include the GoM’s submissions in response to the queries posed by the Adjudicator;

had decided on the matters as raised in the Payment Claim, including as to whether the works were substantially completed by December 2010; SSB was liable to any LAD deduction; and the LAD deduction in the sum of RM1,326,140.10 was unlawfully imposed on SSB from 1.1.2011 to 12.6.2011. The Payment Claim is basically for the unlawful LAD deduction in the amount as stated. It is noted that the GoM did raise a jurisdictional challenge in its Adjudication Response that the dispute on LAD does not fall within the ambit of a claim “for payment for work done or services rendered” as defined under section 4 CIPAA to which SSB had denied in its Adjudication Reply (see paragraphs 79 and 112 in the said Decision). I am 52 unable to find the Adjudicator’s decision on this jurisdictional challenge anywhere in the said Decision. In any event, the GoM did not raise this as a ground in the instant setting aside application;

had accepted that by alleging that the works were substantially completed by December 2010, SSB was in effect challenging the date of practical completion on 11.6.2011 as certified in the CPC. Challenges of this nature may, of course, be made: see Law and Practice of Construction Contracts, supra at pp 560 - 561 viz. “9.071 From time to time, a party may challenge the date of completion as certified under the terms of the contract. In such an event, the arbitrator or the court may go behind the certificate and inquire whether the works have reached a state of readiness for use or occupation by the owner with the exception of trivial omissions or defects. In Econ Piling Pte Ltd (both formerly trading as Econ-NCC Joint Venture) v Shanghai Tunnel Engineering Co Ltd [2011] 1 SLR 246 Judith Prakash J (as she then was) decided that the issue of substantial 53 completion in the subcontract before her should be determined from an examination of the evidence in relation to what the subcontractor had done on the material date and the state of the subcontract works on that date.”. The learned Adjudicator had conducted such an examination in the adjudication between the parties in this case; and

had given reasons in arriving at the said Decision in accordance with subsection 12(4) CIPAA. Subparagraphs 121(i) to (vii) as re-produced earlier show that the issuance of the OP was not the sole factor that led the Adjudicator to the conclusion that a CPC with conditions ought to have been issued by end of March 2011. Judging from the face of the said Decision, the learned Adjudicator had sieved through the evidence and was satisfied that the said Clinic as constructed at the end of March 2011 could adequately be used for the purpose for which the works were commissioned by the GoM. In other words, the Adjudicator found that there was substantial completion of the works and the T&C of the X-Ray Room 54 amounted to a trivial omission since supply of the said Equipment was omitted from the said Contract and the said Equipment was actually delivered to the said Clinic at a much later date of 7.4.2012. In its Adjudication Response, the GoM stated that the said Clinic was “fully utilised”, or to put it another way, was 100% operational after 4.10.2011 when the said Project was handed over to the GoM. However, the Adjudicator evidently found that the said Clinic could nonetheless be occupied and used prior to that date, more precisely by 30.3.2011, even if not up to its full capacity. [51] In the premises, I find that the GoM has failed to establish that there was a breach of natural justice or excess of jurisdiction on the part of the learned Adjudicator. The parties’ right to be heard was not impinged in any way and the Adjudicator had asked the right questions in respect of the issues related to the CPC, albeit her conclusion that a CPC with conditions could have been issued on 30.3.2011 may be open to debate in light of, inter alia, the fact that Clause 41 in the said Contact does not expressly provide for the 55 issuance of CPC with conditions and SSB submitted the application for CPC only on 23.6.2011. However, that is not a reason to set aside the said Decision since the Court cannot review the same on its merits. Tengku Maimun Tuan Mat CJA (now CJ) in delivering the judgment of the Court of Appeal in Ireka Engineering And Construction Sdn Bhd v. PWC Corporation Sdn Bhd & Another Appeal [2019] 1 LNS 51 held that: “[23] The learned judge found that the adjudicator had asked himself the right question at paragraph 54 of the adjudication decision and having alluded to paragraphs 56, 58 and 59 of the adjudication decision, his Lordship stated that he was unable to find any fault with the way the adjudicator had considered and analysed the evidence before him. [24] On the issue of re-measurement, the learned judge found that the adjudicator had considered the evidence and had dismissed it as being unreliable. Having found that the adjudicator had asked himself the right question which is 56 whether the value of the re-measured work done was RM3,732,588.55; and having found that the adjudicator had given his reasons in arriving at his finding of fact 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 of the subcontract, the learned judge declined to intervene. … [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. … … [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

2 merely reads “... The final Sub-Contract Sum shall be 57 calculated based on the re-measurement 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 remeasured work done was RM3,732,588.55 and he had found that there was no credible evidence in support of that sum. …” (emphasis added). [52] In the upshot, this is a classic case where the GOM’s grievance is in the outcome of the adjudication proceeding. I am reminded of a parallel finding in ACFM Engineering & Construction Sdn Bhd v Esstar Vision Sdn Bhd & Another Case [2015] 1 LNS 756 where the concluding part of the judgment reads: “[83] This Court has gone through the whole adjudication decision and it is quite apparent that each of the seven 58 issues identified by the Adjudicator was considered, evaluated and decided. Each time, reasons were given; and that is what section 12 demands. Although the adequacy and correctness of the decision including the reasons given by the Adjudicator are not the benchmark by which the Court will consider whether the decision ought to be set aside, in this particular case, there is no cause to say that there has been a denial of natural justice. In fact, the contrary is the case. There is ample evidence of compliance with the rules of natural justice. Fair play was not compromised, whether substantially or procedurally. Both parties were afforded oral hearing with opportunities to submit written submissions. There was proper identification of the issues, proper evaluation of the evidence and proper determination of the issues and dispute referred for decision. Most of all, there was a decision accompanied with reasons. The decision which favoured Esstar did not in fact allow the whole of its claim; just what was supported by evidence adduced. 59 … [85] The decision certainly meets the litmus test of satisfying the fundamental requirements of section 12. It is reasoned, and if there are any shortcomings, they are immaterial and to be expected as part and parcel of the rough and fast nature of this mechanism. These shortcomings are not fatal as they may be rectified by the parties themselves through various available options such as arbitration or litigation. But, until then, the adjudication decision must bind the parties provisionally in the interim period until they themselves decide which option they wish to adopt. [86] So, then what does a party such as the ACFM here to do when faced with a situation where it is unhappy with the decision. Well, first of all, the party will just have to pay up because that is what is provided in any event in section 13 of 60 the Act. Alternatively, the parties can settle the subject matter of the decision by written agreement between themselves. The other option, of course, is to commence legal or arbitration proceedings in order to establish the true position of the parties’ respective claims.” (emphasis added). [53] The GoM, in not accepting the said Decision as correct whether on the facts or in law, may therefore, as one of the options open to it, pursue its grievances through legal or arbitration proceedings against

(iii) Claim Consultant Cost of RM50,000.00 - The Parties’ Submissions [54] The Plaintiff agreed that the Adjudicator has the jurisdiction to determine costs for the adjudication proceeding. However, the Plaintiff takes issue with the Adjudicator’s reasoning when allowing the amount of RM50,000.00 as the “Claim Consultant cost”. 61 [55] Even though the Adjudicator found that SSB’s claim for RM100,000.00 was not supported by the documents produced at the adjudication, the Adjudicator nonetheless made a “simple mathematic calculation” and allowed costs in the sum of RM50,000.00, taking into account the “nature and complexity of the dispute and the value of the Adjudicated Sum”. The Adjudicator did not explain what was meant by the latter phrase. [56] The SFC made reference to the case of Co-operative Central Bank Ltd v Tan Nyap How [1997] 4 MLJ 568 which had explained the meaning of the word “discretion” and how a discretion should be exercised. Ms. Nur Irmawatie submitted that it is trite law that before a discretion can be exercised, there must sufficient materials before the Adjudicator to enable her to exercise her discretion. However, the Adjudicator had gone about her task in a manner that is obviously unfair, and that such unfairness has caused the Plaintiff substantial prejudice. This error is said to amount to a denial of natural justice under section 15(b) CIPAA. 62 [57] SSB’s counsel argued that the Adjudicator has a discretion to allow costs to the winning party as she deems fit. In the instant case, the Adjudicator had complied with subsection 18(1) CIPAA and determined that costs shall follow the event. Therefore, SSB has to rightfully bear the entire costs of the adjudication proceeding and the Adjudicator did not breach the principles of natural justice by awarding RM50,000.00 as the Claim Consultant cost to SSB. - Findings of the Court [58] The issue of Claim Consultant cost was dealt with by the learned Adjudicator in these following paragraphs in the said Decision: “133. The documents submitted (ie: copy of Invoice and Time Sheet of the Claim Consultant – ref ACD 42) is not sufficient to fully substantiate the Claim Consultant Cost of RM 100,000.00. Apart from the Invoice and Time Sheet, there is no basic 63 documents submitted such as Letter of Appointment, Fee computation agreed and correspondence pertaining to the Invoice submission. Furthermore, the proof of payment of deposit (ref ARD 6) was not attached with any details, (ie: Payment Voucher).

Therefore, based on the above and taking into account the nature and complexity of dispute and the value of the Adjudicated sum, pursuant to Rule 7 of the Construction Industry Payment And Adjudication Regulations 2014, I award and amount of RM50,000.00 for the Claim Consultant Costs.”. [59] “Rule 7” as mentioned in the said Decision above is actually regulation 7 of the Construction Industry Payment and Adjudication Regulations 2014 [P.U. (A) 103/2014] (‘said 2014 Regulations’) which governs “Costs of adjudication proceedings” and it reads: 64 “7. For the purpose of subsection 18(1) of the Act, the quantum of costs in the adjudication proceedings to be paid by any party to a dispute shall be determined by an adjudicator in accordance with all relevant circumstances including –

the complexity of the claim or matter arises from the claim and the difficulty or novelty of the issues relating to the claim;

specialized skill, knowledge and responsibility of, and time and labour expended by, any party to the dispute, its consultant, expert or representatives;

the preparation of documents in the adjudication proceedings; and

the amount or value of the adjudication claim.”. 65 [60] The acknowledgement by the Plaintiff that it is within the jurisdiction of the learned Adjudicator to determine costs for the adjudication proceeding surely stands to reason in light of subsection 18(1) CIPAA, which provides that “The adjudicator, in making the adjudication decision in relation to costs of the adjudication proceedings shall order the costs to follow the event and shall fix the quantum of costs to be paid.”, and the judgments in cases beginning with BM City Realty Construction Sdn Bhd v. Merger Insight (M) Sdn Bhd [2016] 1 LNS 1096, and followed by PWC Bina Sdn Bhd v. Ideal City Development (M) Sdn Bhd and another suit [2017] 1 LNS 2078; [2017] MLJU 2029 and PCP Construction Sdn Bhd V. Leap Modulation Sdn Bhd and other appeals [2018] MLJU 1357. [61] In BM City Realty Construction, Lee Swee Seng J (as His Lordship then was) addressed the submissions regarding costs in these words: “[79] As for the meaning of “Costs to follow event” it means that the unsuccessful party has to pay the costs to the 66 successful party in the Adjudication Proceedings. See Malaysian Newsprint Industries Sdn Bhd v. Bechtel International, Inc & Anor [2008] 1 LNS 222; [2008] 5 MLJ

[80] Given that the Adjudicator had decided in favour of MISB and MISB was the successful party in the Adjudication proceeding, MISB is statutorily entitled to costs and the Adjudicator has the jurisdiction to determine the quantum of costs on such basis as he thinks fit. Further, parties were given opportunity and had addressed the Adjudicator on the issue of costs. [81] The Adjudicator had reasoned as follows: “51.2. The Claimant has sought legal costs of RM51,400.00. I have considered the matters and issues brought up by the Parties, the complexity of the Adjudication Claim and Adjudication Response and the degree of difficulty of the 67 issues raised, special skills required, knowledge, time and labour expanded. I find that the sum of RM27,000.00 is a fair assessment of the Claimant's legal costs. The Claimant's claim for disbursements is not substantiated. The Parties each had paid the sum of RM30,300.00 toward the Adjudicator's fees and the KLRCA administrative costs. The Claimant is entitled to the reimbursement of RM30,300.00 from the Respondent. The Claimant also can claim reimbursements of the sum of RM689.00 inclusive of GST for Adjudication registration and Adjudicator appointment fees. The total sum of RM30,989.00 shall be described as the cost of Adjudication.” [82] Where quantum of costs is concerned, it is something within the discretion of the Adjudicator unless it can be shown that he has acted on wrong principles. This is certainly not an area for this Court to interfere and clearly not 68 a case where the learned Adjudicator had acted in excess of his jurisdiction.”. [62] It is noted that the Adjudicator in the above cited case, just as the learned Adjudicator in the present case, did not give a detailed justification in arriving at the sum of RM27,000.00 as the claimant's legal costs and yet the Court found that it was not a matter in which the Court ought to interfere unless it can it can be shown that the Adjudicator has acted on wrong principles. [63] The SFC here has merely submitted that there was denial of natural justice in the award of the Claim Consultant costs since the learned Adjudicator appeared to arbitrarily reduce the claim amount from RM100,000.00 to RM50,000.00 despite finding that the documents submitted were insufficient to support the sum which was originally claimed. [64] In Ireka Engineering (supra), the Court of Appeal also held that “[40] … Rather, the crux of the appellant's complaint was that the 69 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.”(emphasis added). [65] Based on the excerpt from the said Decision, the learned Adjudicator found that the documents submitted were not sufficient to fully 70 substantiate the Claim Consultant costs of RM100,000.00. Therefore, relying on the documents that were before her i.e. the Invoice and Time Sheet, and taking into account the relevant circumstances as set out in regulation 7 of the said 2014 Regulations, the learned Adjudicator awarded RM50,000.00 instead. [66] In the premises, I am of the view that the GoM has not established that the learned Adjudicator acted on any wrong principles. Since the affidavit evidence has not even disclosed any discernible error, the GoM’s contention that there has been a denial of natural justice is on shaky ground indeed. The quantum of costs of the adjudication proceedings to be awarded to SSB as the successful claimant in the adjudication, which in this case includes the Claim Consultant costs, falls squarely within the discretion of the Adjudicator and no valid reason has been shown for this Court to set aside the said Decision based on this ground. 71

(B) OS No. WA-24C-99-06/2019: The Enforcement Application by SSB [67] This application by SSB is premised on section 28 CIPAA which reads as follows: “Enforcement of adjudication decision as judgment 28.

A party may enforce an adjudication decision by applying to the High Court for an order to enforce the adjudication decision as if it is a judgment or order of the High Court.

The High Court may make an order in respect of the adjudication decision either wholly or partly and may make an order in respect of interest on the adjudicated amount payable.

The order made under subsection (2) may be executed in accordance with the rules on execution of the orders or judgment of the High Court.”. 72 [68] The effect of an adjudication decision is expressly provided in section 13 CIPAA whereby – “Effect of adjudication decision 13. The adjudication decision is binding unless –

it is set aside by the High Court on any of the grounds referred to in section 15;

the subject matter of the decision is settled by a written agreement between the parties; or

the dispute is finally decided by arbitration or the court.”. [69] If this Court allows the application by the GoM in the other OS, then SSB’s application by virtue of this OS must necessarily be dismissed. The converse applies (see, among others, paragraph 16 in the judgment in Tidalmarine Engineering Sdn Bhd v. Conlay Construction Sdn Bhd & Another Case [2018] 2 CLJ 376). 73 [70] There being no merits to the setting aside application by the GoM, the said Decision must be accorded its full force and effect by allowing it to be enforced as if it is an order or judgment of this Court pursuant to subsection 28(1) CIPAA. Conclusion [71] Based on all of the aforesaid considerations, the GoM’s contentions that there is a breach of natural justice and/or the learned Adjudicator had acted in excess of her jurisdiction are misconceived and unfounded. Accordingly, I made the orders as stated in paragraph 2 of this judgment. Dated: 31 January 2020 (ALIZA SULAIMAN) Judicial Commissioner Construction Court 2 High Court Kuala Lumpur 74 Counsels/Solicitors: For Samado Sdn Bhd: Nur Hamizah Binti Hamzah Chamber of Nur Hamizah Hamzah Advocates & Solicitors No.31-2, Jalan 65C Pekeliling Business Centre Off Jalan Pahang Barat 53000 Kuala Lumpur For the Government of Malaysia: Nur Irmawatie Binti Daud Senior Federal Counsel Attorney General’s Chambers Civil Division No.45, Persiaran Perdana Presint 4 62100 Putrajaya Cases referred to: ACFM Engineering & Construction Sdn Bhd v Esstar Vision Sdn Bhd & Another Case [2015] 1 LNS 756 Balfour Beatty Engineering Services (HY) Ltd v. Shepherd Construction Ltd [2009] EWHC 2218 CTCC Carillion Construction Limited v. Devonport Royal Dockyard Ltd [2005] EWCA Civ 1358 75 Co-Operative Central Bank Ltd v Tan Nyap How [1997] 4 MLJ 568 Gazzriz Sdn Bhd v Hasrat Gemilang Sdn Bhd [2016] MLJU 1054 Ireka Engineering And Construction Sdn Bhd v PWC Corporation Sdn Bhd & Another Appeal [2019] 1 LNS 51 PWC Corp Sdn Bhd v Ireka Engineering & Construction Sdn Bhd and another appeal [2018] MLJU 152 Ranhill E & C Sdn Bhd v. Tioxide (Malaysia) Sdn Bhd & Other cases [2015] 1 LNS 1435 The King v. Susses Justices. Ex Parte Mc Carthy [1924] 1 K.B. View Esteem Sdn Bhd v Bina Puri Holdings Bhd [2015] MLJU 695 View Esteem Sdn Bhd v Bina Puri Holdings Bhd [2016] MLJU 411 View Esteem Sdn Bhd v Bina Puri Holdings Bhd [2018] 2 MLJ 22; [2019] 5 CLJ 479 Vistasik Sdn Bhd v. BME Tenaga Arus Sdn Bhd & Another Case [2018] 1 LNS 1278 76 Legislation referred to: Construction Industry Payment and Adjudication Act 2012, ss. 4, 5, 6, 12(4), 13, 15, 18(1), 25(m), 27(1), 28 Construction Industry Payment and Adjudication Regulations 2014, regulation 7 Rules of Court 2012, O. 7 r. 28, O. 69A rr. 1, 2 and 3 Other sources(s) referred to: Chow Kok Fong, Law and Practice of Construction Contracts, Fifth Edition, Volume 1, Sweet & Maxwell, 2018 Lam Wai Loon and Ivan FY Loo, Construction Adjudication In Malaysia, Second Edition, Sweet & Maxwell, 2018 Teng Kam Wah, Construction Defect Claims In Malaysia, Sweet & Maxwell, 2019