1. ) Terminal Perintis Sdn Bhd v 1. ) Tan Ngee Hong Construction Sdn Bhd (WA-24C-57-07/2016 & WA-24C-82-08/2016)

Response or even Adjudication Reply found in sections 9, 10 and It is obvious from subsections 27(1) and (2) that where the 14 parties feel that the Adjudicator’s jurisdiction is insufficient to deal with their particular dispute; the parties can sit down and agree on extending that jurisdictional cover. In the present case, the parties could have dealt with this through a written agreement amongst themselves. There was no such effort; and the Court is not required to look into the reasons for the lack of such an effort. View Esteem could easily have brought up these three additional defences, responses or matters in its Payment Response; but it chose not, for whatever reason it may have. Having exercised that option, it is not open to View Esteem to now complain. ... [63] Again, it is easy to appreciate why Parliament has seen it fit to limit the Adjudicator’s jurisdiction to only the matter(s) referred to adjudication pursuant to sections 5 and 6 when determining the dispute. Adjudication under CIPAA 2012 is both specific and special. It is specific in that it is intended only for payment disputes under construction contracts. It is special in that it offers a speedy provisionally binding resolution to that dispute. A payment dispute exists the moment a claim for payment for work or services rendered under a construction contract is not paid by the other party, or there is no 15 response to that claim. In either event, the payment dispute comes into being or it “crystallises”. The whole adjudication process that takes place after that, from the appointment of the Adjudicator to the filing of the Adjudication Claim, the Adjudication Response and the Adjudication Reply are substantially formal manifestations of the dispute containing greater details of the claim, response or reply, as the case may be of that first Payment Claim and Payment Response. [64] Because adjudication is intended to provide a speedy resolution of that payment dispute [within the time lines found in section 12, where an adjudication decision rendered outside the prescribed time lines is void unless extended by the written consent of the parties], the Adjudicator cannot be expected to deal with issues, legal and/or factual, which may still be “evolving” or in the making as the Adjudicator sits down to determine the dispute. Unrestricted arguments may unnecessarily prolong or even protract adjudication proceedings rendering the whole process impractical, inefficient or unwieldy. There should be certainty in the issues or matters that any party is expected to face in the adjudication proceedings so that the rules of fair play can be 16 readily met. That cannot possibly be achieved if issues or matters are still or yet to be identified.” (Emphasis added) [21] Justice Dr. Hamid Sultan JCA in the Court of Appeal in View Esteem Sdn Bhd v Bina Puri Holdings Bhd [2016] 6 MLJ 717, also adopts a similar view of section 27 of CIPAA. His Lordship stated as follows: “[16] Arriving at CIPAA 2012 Adjudication Award is a two stage process. Parties at this stage may settle the matter and if the matter is not settled. The dispute as borne out in the payment claim and response can only be referred to the adjudicator. This is statutorily a strict requirement (subject only to section 26) as set out in section 27, thereby making the first stage as important stage in the adjudication process.” (Emphasis added) [22] Learned counsel for the Claimant, Mr P Gananathan, had no quarrel with the propositions of the law as gleaned from the cases cited above except to highlight that the facts in the present case are patently different for in the View Esteem case, the Respondent there did not to raise specific issues in its Payment Response and then later sought to introduce various new issues and disputes in the Adjudication Response. 17 Whether the Payment Claim served herein is not a valid Payment Claim in that it did not comply with the requirements under sections 5(2) CIPAA [23] I agree with learned counsel for the Claimant that the main thrust of the Respondent's argument is that the Payment Claim is dependent on the fact of wrongful determination of the employment of the Claimant, which was never raised in the Payment Claim. As such, it was argued by the Respondent that the Payment Claim is not a valid Payment Claim and the Adjudicator had exceeded its jurisdiction in deciding on the amounts owing under the Payment Claims. [24] In particular, learned counsel for the Respondent argued that with respect to the claims for Progress Claim No. 15, the Retention Sum and Variation Orders, the Claimant has not set out a valid cause of action as required under section 5(2)(b) CIPAA in that there were insufficient details to identify the cause of action including the provision in the construction contract to which the payment relates. The Claimant, it was argued, should have pleaded the fact of unlawful termination, before they could found their action in claiming for (ii) Progress Claim No. 15, (iii) Retention Sum and (iv) Variation Orders. It was further argued by 18 the Respondent's counsel that the termination having been effected, under Clause 25.4(d) there is no obligation for the Respondent as Employer, to pay until the Final Accounts are prepared after the completion of the Project. [25] He further argued that such non-compliance is of a material provision of CIPAA such that without a valid Payment Claim, the appointment of the Adjudicator is invalid and that the whole Adjudication Proceedings and Decision is null and void. [26] The claims raised by the Claimant in the Payment Claim are: a) non-payment for value of work done as certified under Interim Certificate No. 14, relying on clauses 30.1 and 30.2 of PAM 2006; b) non-payment for value of work done under Progress Claim No. 15, relying on clauses 30.1 and 30.2 of PAM 2006; c) non release of retention sum constituting a percentage of the value of work done, relying on clauses 30.2, 30.5 and 30.6(a) of PAM 2006; and 19 d) non-payment for value of variation carried out constituting work done, relying on clauses 11.2, 11.5,

11.6 and 11.9. See: Payment Claim dated 11.11.2015 – Enclosure 2 at Exhibit “OYN-3”, pages 63 to 68 [27] I agree that the starting point in determining what falls within the jurisdiction of the Adjudicator is to first consider what is raised in the Payment Claim in the context of section 5 of CIPAA, which is reproduced herein: “5. Payment Claim 1) An unpaid party may serve a payment claim on a non-paying party for payment pursuant to a construction contract. 2) The payment claim shall be in writing and shall include-a) The amount claimed and due date for payment of the amount claimed; b) Details to identify the cause of action including the provision in the construction contract to which the payment relates; c) Description of the work or services to which the 20 payment relates; and d) A statement that it is made under this Act.” [28] Whilst it is true that CIPAA does not define a “payment claim”, its meaning is implicit in section 4 CIPAA which does provide what “payment” means, which is essentially a claim for payment for work done or services rendered under the express terms of a construction contract. I agree that the entitlement to be paid on the wording of CIPAA on standard form contract is an entitlement that accrues on the date when an interim certificate is due for payment or on the date where the certifier should have issued the relevant certificate pursuant to the timeline prescribed in the terms of these specific contracts. [29] The question is whether each and every one of the four (4) claims are claims that qualify under CIPAA as payment due for work carried out under the express terms of the construction contract. [30] The next step would be to consider whether the Payment Claim satisfies the requirement under section 5(2) of CIPAA. Each of the four (4) claims shall now be examined separately to see whether it has complied with section 5(2) CIPAA. 21 Work Done as Certified in Interim Certificate No. 14 [31] I agree that the amount claimed and the due date for payment are stipulated in the Payment Claim. The cause of action relates to provisions in the Contract and it becomes apparent that the Respondent did not honour the certified sum within the due date for payment of 15.8.2015. The description of the works to which the payment relates and the fact that the claim is made under CIPAA is stipulated in the Payment Claim. I further agree with the Claimant that this claim is not dependent on wrongful determination of the employment of the Claimant. Work Done as Claimed under Progress Claim No. 15 [32] Here too, the amount claimed and the due date for payment are stipulated in the Payment Claim. The cause of action relates to provisions in the Contract and it becomes apparent that the claim (if certified) would have been due for payment on 23.9.2015. The description of the works to which the payment relates and the fact that the claim is made under CIPAA is stipulated in the Payment Claim. This claim is not dependent on wrongful determination of the employment of the Defendant. 22 Non-Release of Retention Sum [33] I agree with the Claimant that the retention sum is the value of work done under the construction contract, save that a percentage of the total value of work was retained under the express provisions of the Contract. The fact that the Employer may retain these amounts does not change the character of what is being claimed, i.e. the value of work done as certified under the certification provision. Refer: Lee Kam Chun v Syarikat Kukuh Maju Sdn Bhd [1988] 1 MLJ 444 at 448D-E. [34] The Claimant had taken the position that the amount in the retention sum is due by reference to the due date of payment of 18.8.2015, which is the date on which the Claimant ceased to be under the employment of the Respondent/Employer. The Claimant/Contractor seeks release of the retention sum, it being trust monies, which can no longer be held by the Employer. I agree that this claim is not dependent on wrongful determination of the employment of the Claimant. Refer: Qimonda Malaysia Sdn Bhd (In Liquidation) v Sediabena Sdn Bhd [2012] 3 MLJ 422 at 432 (paragraph 19). 23 Value of Variations Carried Out [35] I agree that the amount claimed is stipulated in the Payment Claim, as is the due date for payment. The cause of action relates to provisions in the Contract and it becomes apparent that the claim (if submitted and certified) would have been due for payment. The Claimant did not have an opportunity to make the claim or have it certified and therefore, relies on the due date for payment of 18.8.2015, which is the date on which the Claimant ceased to be under the employment of the Respondent/Employer. The description of the works to which the payment relates and the fact that the claim is made under CIPAA are stipulated in the Payment Claim. This claim is not dependent on wrongful determination of the employment of the Claimant. [36] For all the 4 claims, the Claimant when making the claim, took the position that the claim is due and no dispute arises until the claim is rejected or not admitted by the Respondent/Employer by issuance of a Payment Response under section 6 of CIPAA. [37] The Claimant need not rely on any other provision in the Contract to come under what is a valid Payment Claim for which it contends that payment is due under the Contract. Neither is the 24 Claimant required to anticipate the kind of defence that the Respondent would raise in the Payment Response. [38] If one were to look from the perspective of the Payment Claim being the pleadings, the requirements of section 5 have been met. In a litigation on a contractual claim, the plaintiff only needs to state the material fact of what work was done or services rendered, what payment is due and when it is due and the fact of the breach. If indeed no cause of action has arisen, the Court before whom the claim is brought, would dismiss the claim. It is certainly not a case where the Court has no jurisdiction to hear the matter. [39] Transposing this back to the Adjudication scenario, the Adjudicator has the jurisdiction to determine whether the Payment Claim is a valid Payment Claim, where prima facie, it has all the elements of a Payment Claim in that it has stated what amount is due and when it was due, the cause of action and the provisions of the contract to which the payment relates, the nature of the work done and the fact that the claim is made under CIPAA. It is a finding of mixed question of fact and law. So long as the right question of law is asked, this Court would not interfere in a setting aside application that the wrong answer was given. As stated 25 many a time, this is not an appeal where the Court would be permitted to assess the merits of the claim. [40] The Respondent is left with options under section 6 CIPAA, namely to either admit the Payment Claim or to dispute wholly or partly the Payment Claim and to “serve a payment response in writing on the unpaid party stating the amount disputed and the reason for the dispute”. If the Plaintiff fails to respond to the Payment Claim, it is deemed to have disputed the entire Payment Claim. [41] The question then is whether the decision on whether there is a valid Payment Claim is a question that goes towards jurisdiction in that it questions the very validity of the appointment of the Adjudicator or whether it is for the Adjudicator to decide as a matter of fact whether there was a valid cause of action and that at best would go to the validity of the Adjudication Decision only. [42] Courts in Australia and Singapore have wrestled with the issue as can be seen from the cases discussed below. [43] Learned counsel for the Respondent referred to the case of In Brodyn Pty Ltd v Davenport & Anor [2004] NSWCA 394, which involves a subcontract for concreting work for 12 26 townhouses based on the standard form AS4303-1995 General Conditions of Subcontract. Eight months into the subcontract, the main contractor served a notice on the subcontractor alleging that the latter had repudiated the contract and purporting to accept the same. On 27.6.2003, the subcontractor served a payment claim under the NSW SOP Act and the main contractor responded by serving a payment schedule. On 28.8.2003 and 28.9.2003, the subcontractor served further documents stated to be payment claims under the NSW SOP Act. On 29.9.2003, the main contractor served a further payment schedule. On 2.10.2003, the subcontractor made an adjudication application under the NSW SOP Act. On 16.10.2003, the adjudicator made his determination. The main contractor contended that the payment claim was not a valid payment claim under the NSW SOP Act. The trial judge noted that if the assertion was correct, then the adjudicator mistakenly exercised a power which he did not have but refused the relief. [44] On appeal, Hodgson JA opined that before a document purporting to an adjudicator’s determination can be enforced, it must satisfy certain essential conditions laid down by the said Act, which defines the validity of the determination. Non-compliance 27 with these conditions will render the purported adjudicator’s determination void. The judge identified the basic and essential requirements as follows: a. the existence of a construction contract between the claimant and the respondent, to which the Act applies (sections 7 and 8); b. the service by the claimant on the respondent of a payment claim (section 13); c. the making of an adjudication application by the claimant to an authorised nominating authority (section 17); d. the reference of the application to an eligible adjudicator, who accepts the application (sections 18 and 19); and e. the determination by the adjudicator of this application (sections 19(2) and 21(5)), by determining the amount of the progress payment, the date on which it becomes or became due and the rate of interest payable (section 22(1)) and the issue of a determination in writing (section 22(3)(a)). Hodgson JA went on to qualify this proposition by stating that the list may not be exhaustive. 28 [45] The relevant sections contain more detailed requirements, for example: section 13(2) as to the content of payment claims; section 17 as to the time when an adjudication application can be made and as to its contents; section 21 as to the time when an adjudication application may be determined; and section 22 as to the matters to be considered by the adjudicator and the provision of reasons. A question arises whether any non-compliance with any of these detailed requirements has the effect that a purported adjudicator’s determination is void. Hodgson JA thought that it was preferable to ask whether a requirement being considered was intended by the legislature to be an essential pre-condition for the existence of an adjudicator’s determination. [46] The judge opined that what was intended to be essential was compliance with the basic requirements, a bona fide attempt by the adjudicator to exercise the relevant power relating to the subject matter of the legislation and no substantial denial of the measure of natural justice. If the basic requirements are not complied with, or if a purported determination by the adjudicator is not such a bona fide attempt, or if there is a substantial denial of this measure of natural justice, then a purported determination by the adjudicator will be void because there will then not be satisfaction 29 of requirements that the legislature has indicated as essential to the existence of a determination. [47] The Court therefore held that once the basic and essential requirements were satisfied, the question as to whether the document complies in all respects with the requirements of the NSW SOP Act are generally for the adjudicator to decide. [48] I do not think the position under our CIPAA is materially different. Looking at the grounds for setting aside an Adjudication Decision, one can say that a Court of law would uphold the Decision unless it can be shown that it was procured through fraud or bribery, or that there was a breach of natural justice or that the Adjudicator was not independent or impartial or that the Adjudicator had acted in excess of jurisdiction or that the Decision was not in compliance with the provisions of CIPAA. [49] Learned counsel for the Respondent then referred to the case of Napean Engineering Pty. Ltd. v Total Process Services Pty. Ltd (In Liquidation) [2005] NSWCA 409, where the subcontractor (Total) was engaged as a subcontractor to the contractor (Napean) for the supply and installation of pipes for a large construction project. When a dispute arose, Total served on Napean a document purporting to be a payment claim under the 30 SOP Act. No payment schedule was served by Napean. During the course of the adjudication proceedings, Napean claimed that the document served by Total was not a payment claim within the meaning of the SOP Act as it failed to identify the construction work to which the progress payment related. Hodgson JA in the Court of Appeal, after having considered some casespost Brodyn said as follows: “That is, I do not think a payment claim can be treated as a nullity for failure to comply with s. 13(2)(a) of the Act, unless the failure is patent on its face; and this will not be the case if the claim purports in a reasonably way to identify the particular work in respect of which the claim is made.” [50] Learned counsel for the Respondent then submitted that, the corollary of this proposition is that a payment claim can be treated as a nullity if it does not on its face reasonably purport to comply with section 13(2)(a) of the NSW SOP Act. I can agree with that proposition. Simply put, it the Payment Claim on the face of it, complies with the requirements of our section 5(2)(a) to (d) CIPAA, this Court would not interfere with the decision of Adjudicator on ground that he should have decided that there was 31 no valid Payment Claim on the merits or on the interpretation of the law. [51] The following analysis in Pacific GNRL Securities v Soliman and Sons [2006] NSWSC 13 is helpful. The New South Wales Supreme Court had to decide on whether non-compliance with some provisions of their Act with respect to the Payment Claim makes the Adjudication Determination void. It was observed as follows: "Is the determination void for insufficient specificity in the payment claim? 44 The Owners submit that there was non-compliance with a basic and essential requirement prescribed in the Act for there to be a valid determination, in that the payment claim did not sufficiently specify the construction work in respect of which it was made. 45 Although precision and particularity is required to a degree sufficient to apprise the parties of the real issues in dispute, regard may be had to the familiarity which the parties will have with construction industry practices and the formality and particularity of a 32 pleading is not expected [Multiplex Constructions Pty Ltd v Luikens [2003] NSWSC 1140, [76]]. A payment claim is not a nullity for non-compliance with s 13(2)(a), at least unless the non-compliance is patent on the face of the claim [Napean Engineering Pty Ltd v Total Process Services Pty Ltd (in liq) [2005] NSWCA 409, [34] – [39] (Hodgson JA), [46] – [48] (Santow JA)]. Moreover, compliance with s 13(2) is not a basic requirement fundamental to the validity of an adjudication, but one of the “more detailed requirements”, exact compliance with which is not essential to a valid determination [Brodyn, [54] – [55]]. 46 In fact, it is plain that the “period” referred to in the payment claim is the period since the last progress claim (of June 2004), and the claim is apportioned across several heads showing the percentage complete under each. Mr Dixon conceded in cross-examination that he understood precisely what was being claimed. 47 It follows that the determination is not void for insufficient specificity in the payment claim, since it sufficiently specified the construction work in respect of 33 which it was made, and even if it did not, the sufficiency of a payment claim is not a basic and essential requirement non-compliance with which results in invalidity, but a matter within the jurisdiction of the adjudicator to determine, rightly or wrongly." (emphasis added) [52] In other words, if the complaint is about the contents of the Payment Claim as in whether it shows a cause of action and the provisions of the contract relating to the claim, that is a matter that the Adjudicator has jurisdiction to decide, rightly or wrongly. For this Court to interfere with his finding on the validity of the Payment Claim from that perspective would be to descend into the merits of his findings, which is not permitted by section 15 CIPAA in a setting aside application. This is not a case where the complaint of the validity of the Payment Claim affects the validity of his appointment as Adjudicator such as in a case where the Payment Claim was not served at all. [53] The position on the kind of objection to a Payment Claim that goes to a jurisdiction of an Adjudicator was further clarified and crystallized in Brookhollow Pty Ltd v R&R Consultants Pty Ltd & Anor [2006] NSWSC ], where Palmer J stated that the judgment in Napean had changed somewhat the law as stated in 34 Brodyn. In paragraph 41 of his judgment, the learned Judge said as follows: “The law as to compliance with s. 13(2) of the Act as it emerges from Brodyn and Napean, may be summarised thus:

a payment claim which is never served on the respondent under s.13(1) of the Act cannot set in motion the machinery of Pt 3 so that any purported adjudication of that payment and any other enforcement procedures in Pt 3 founded upon that payment claim must be a nullity.

(ii) there are some non-compliances with the requirements of s.13(2) of the Act which will result in a nullity of a payment claim for all purposes under the Act; there are other non-compliances which will not produce that result;

(iii) a payment claim which does not, on its face, purport in a reasonable way to: - identify the construction work to which the claim relates; or - indicate the amount claimed; or - state that it is made under the Act, 35 fails to comply with an essential and mandatory requirement of s.13(2) so that it is a nullity for the purposes of the Act;

(iv) a payment claim which, on its face, purports reasonably to comply with the requirements of s. 13(2) will not be a nullity for the purposes of engaging the adjudication and enforcement procedures of Pt 3 of the Act;

in the case of a payment claim which purports reasonably on its face to comply with s.13(2): - if the respondent wishes to object that it does not in fact comply so that it is a nullity for the purposes of the Act, the respondent must serve a payment schedule under s.14(4) and an adjudication response under s. 20, in which that objection is taken; - if the respondent does not serve a payment schedule within the time limited under the Act and the claimant ultimately seeks the entry of judgment under s.15(4), the respondent may not resist summary judgment on the ground that the payment claim was not a valid payment claim by reason of non-compliance with the 36 requirements of s.13: the respondent has only one chance to take that objection, namely in a timeously served payment schedule;

(vi) in the case of a payment claim which was never served on the respondent or which does not purport reasonably on its face to comply with the requirements of s. 13(2): - the payment claim is a nullity for the purposes of the Act; - an adjudication founded upon that payment claim is a nullity, regardless of whether the objection to the validity of the payment claim was taken in a timeously served payment schedule; - an application under s.15(4) for judgment for the statutory debt created by s.14(4) may be defeated on the ground that there was no payment claim in existence for the purposes of s.15(1)(b).” (emphasis added) [54] In the present case, the Respondent did not say in its Payment Response that the Claimant's Payment Claim is invalid or defective or that it is not in compliance with a basic or essential 37 requirement in failing to provide details as to its cause of action. In fact the Respondent was able to set out 5 pages of Payment Response consisting of 23 paragraphs. In paragraph 8 of the Payment Response, the Respondent/Employer stated as follows: "As a result of the Terminal Perintis' determination of TNHC's employment pursuant to Clause 25.1, Terminal Perintis contends that pursuant to Clause 25.4(d), it is not bound by the (sic) any contractual provision to make further payment to the TNHC including payments, which have been certified but not yet paid when the TNHC's employment was determined. TNHC is therefore not obliged to make any payment for all the claims in the Payment Claim." [55] That was the basis of the Respondent/Employer disputing the whole of the Claimant's Payment Claim. There was no objection raised that the Payment Claim does not comply with the requirements of section 5(2)(b) CIPAA. [56] In Protectavale Pty Ltd v K2K Pty Ltd. [2008] FCA 1248, Finkelstein J in the Federal Court of Australia said in relation to section 14 of the Building and Construction Industry Security of Payment Act 2002 (Vic), which is equivalent to section 13 of the New South Wales legislation, as follows: 38 “[10] It is necessary to decide whether the invoice meets the requirements of s 14. The test is an objective one; that is, it must be clear from the terms of the document that it contains the required information: Walter Construction Group Ltd v CPL (Surry Hills) Pty Ltd [2003] NSWSC 266 at [82]. But the terms must be read in context. Payment claims are usually given and received by parties experienced in the building industry who are familiar with the particular construction contract, the history of the project and any issues which may have arisen between them regarding payment. Those matters are part of the context: Multiplex Constructions [2003] NSWSC 1140 at [76]. [11] The manner in which compliance with s 14 is tested is not overly demanding: Leighton Contractors Pty Ltd v Campbelltown Catholic Club Ltd [2003] NSWSC 1103 at [54] citing Hawkins Construction (Aust) Pty Ltd v Mac’s Industrial Pipework Pty Ltd [2002] NSWCA 136 at [20] ("[T]he requirements for a payment claim] should not be approached in an unduly technical manner ... As the words are used in relation to events occurring in the construction industry, they should be applied in a 39 common sense practical manner"); Multiplex Constructions [2003] NSWSC 1140 at [76] ("[A] payment claim and a payment schedule must be produced quickly; much that is contained therein in an abbreviated form which would be meaningless to the uninformed reader will be understood readily by the parties themselves"); Minimax Fire Fighting Systems Pty Ltd v Bremore Engineering (WA Pty Ltd) [2007] QSC 333 at [20] ("The Act emphasises speed and informality. Accordingly one should not approach the question whether a document satisfies the description of a payment schedule (or payment claim for that matter) from an unduly critical viewpoint"). [12] Nonetheless a payment claim must be sufficiently detailed to enable the principal to understand the basis of the claim. If a reasonable principal is unable to ascertain with sufficient certainty the work to which the claim relates, he will not be able to provide a meaningful payment schedule. That is to say, a payment claim must put the principal in a position where he is able to decide whether to accept or reject the claim and, if the principal opts for the latter, to respond appropriately in a payment schedule: Nepean 40 Engineering Pty Ltd v Total Process Services Pty Ltd (in liq)

64 NSWLR 462, 477; John Holland Pty Ltd v Cardno MBK (NSW) Pty Ltd [2004] NSWSC 258 at [18] - [21]. That is not an unreasonable price to pay to obtain the benefits of the statute.” [57] It cannot be gainsaid that in the present case, the Respondent had no problem responding to the Claimant's Payment Claim, giving reasons why it is disputing the whole of the Claim. The Respondent, had been able through their solicitors, to respond astutely and appropriately. The Court should not exact a stricter requirement of pleadings on Adjudication than if it were a Court proceeding. One should not be unduly critical or technical to the point of exacting an overly demanding treatment of a Payment Claim when it comes to whether it has met the requirements of section 5(2)(b) CIPAA. [58] Moreover the Payment Claim is prepared by the Claimant itself and not served through solicitors. Section 8(3) further allows a party in the Adjudication Proceedings to represent himself or by appointing his representative. The intent is to save costs and not to make it unduly technical or convoluted. As a Payment Claim it 41 has conformed with the form and format prescribed under Form 1 of the KLRCA Adjudication Rules and Procedure. [59] No doubt the expression of a "cause of action" is used in section 5(2)(b) CIPAA but that is nothing more than saying that the Claimant must set out the basis of their claim in contract. [60] In fact learned counsel for the Respondent/Employer, Mr Ivan Loo, in his book Construction Adjudication in Malaysia, CCH a Wolters Kluwer Business, with his co-author Lam Wai Loon at p 74 have taken this approach to making a payment claim necessary for triggering an adjudication process: “the amount claimed and due date for payment of the amount claimed”

4.26 The unpaid party is required to state in his payment claim the amount claimed and the due date for payment of the amount claimed. These requirements necessarily imply that every construction contract should provide an adequate mechanism for determining what, when and how payments are due under the construction contract. In the absence of such terms, or if the contract does not provide an adequate mechanism for determining what, when and how payments 42 are due under the construction contract, the default provisions on the terms of payment provided by section 36(1) of the CIPA Act 2012 would be imported into the construction contract.

4.27 The unpaid party is only required to state in the payment claim the amount claimed to be due. It does not matter whether the amount claimed may not in law be due. The right of an unpaid party to serve a valid payment claim is predicated on an amount being claimed, and not on there being an actual entitlement to the amount so claimed. Therefore, the fact that a payment claim also includes amounts which the claimant is not entitled to claim under the construction contract does not affect the validity of the payment claim. The unpaid party’s entitlement will be adjudicated upon and determined by the adjudicator in the adjudication proceedings. The ‘due date’ for payment of the amount claimed refers to the date by which payment should be made. Thus, if the construction contract provides that payment of a progress payment certificate should be made within 30 days from the date of the certification, then the due date for payment of a progress 43 payment certificate is the 30th day from the date of the certification of the progress payment certificate. However, the fact that a payment claim also includes amounts which the unpaid party is not entitled to claim does not affect the validity of the payment claim." (emphasis added) [61] If the Payment Claim were to be a Statement of Claim, I do not think that the defendant would be able to strike out the claim on the ground that there is no valid cause of action pleaded. In fact the test would be that the Court assumes the pleadings of facts to be true and based on such a plea, would there be a cause of action. I do not think we should exact a stiffer requirement of Adjudicators when it comes to determining whether there was a valid Payment Claim for the Adjudicator to assume jurisdiction. Beyond that, it becomes a question of evidence and finding of fact or a mixed question of fact and law which this Court has no business to interfere unless the grounds for setting aside are made out under section 15 CIPAA. Whether or not the Claim could succeed would be for trial in a case of litigation in as much as in an Adjudication, it would be for the Adjudicator to decide. 44 [62] I would hold that the Payment Claim served herein is a valid Payment Claim in that prima facie, it purports reasonably to have complied with the requirements of section 5(2) CIPAA. Whether the issue of a valid Payment Claim served herein goes to jurisdiction of the Adjudicator as in the validity of his appointment and his competence to adjudicate [63] Learned counsel for the Respondent pointed out that, in Chase Osyter Bar v Hamo Industries [2010] NSWCA 190, the Court of Appeal sounded a general retreat from its own decision in Brodyn. I agree that the basis for this retreat was a reconsideration of the distinction between jurisdictional and non-jurisdictional error by the Australian High Court in Kirk v IRC [2010] HCA 1. The majority of the High Court considered that there were three categories of jurisdictional error: a. the mistaken denial or assertion of jurisdiction, or misapprehension or disregard of the nature of or limits on functions and powers; b. making a decision of a kind that lies, wholly or partly, outside the limits on functions and powers as provided in the relevant statutory context; and 45 c. proceeding in the absence of a jurisdictional fact; disregarding something that the relevant statute requires to be considered as a condition of jurisdiction, or considering something required to be ignored; and misconstruction of the statute leading to misconception of functions. [64] It was submitted that the distinction between jurisdictional and non-jurisdictional error is considered to be at odds with the line of reasoning in Brodyn, particularly that part of the judgment where the narrower formulation of “basic and essential conditions” was preferred over the more general threshold of “jurisdictional error”. There is a sense in which on our jurisdiction, we need to read this distinction with caution, as in those jurisdictions in Australia, setting aside is by way of judicial review. [65] In Chase Oyster, the parties entered into a contract for fit-out work. The contractor served a payment claim under NSW SOP Act. The owner did not provide a payment schedule in response. The contractor did not serve notice of adjudication until after the expiry of the 20-day period prescribed under section 17(2)(a) of the NSW SOP Act but nonetheless proceeded to make an adjudication application. The adjudicator decided that the contractor had served the notice within the prescribed period. The 46 owner argued that the adjudicator’s jurisdiction was founded on compliance with section 17(2)(a) and as it had not been complied, it amounted to a jurisdictional error. The NSW Court of Appeal held that the adjudicator had incorrectly concluded that the notice was served in compliance with section 17(2)(a) and that the determination should be quashed for jurisdictional error. [66] Spigelman CJ in analysing Brodyn held that Hodgson JA’s comments in rejecting the applicability of the distinction between “jurisdictional” and “non-jurisdictional” error, on the basis that it “cast the net too widely” should be re-considered following the Kirk’s decision, which represented the centre piece of Australian administrative law. [67] Spigelman CJ held that it was not possible to point to “a single test or theory or logical process by which the distinction between jurisdictional or non-jurisdictional error can be determined”. The judge however agreed with the statement of principle in the case of Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28, that: “A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid. This has been preferred approach of 47 courts in this country in recent years, particularly in NSW. In determining the question of purpose, regard must be had to ‘language of the relevant provision and the scope and object of the whole statute.’” (emphasis added) [68] Spigelman CJ in Chase Oyster further observed as follows with respect to the objectives of NSW SOP Act and the need to comply with the strict statutory provision with respect to activating the Adjudication process: “[207] The Security of Payment Act operates to alter, in a fundamental way, the incidence of the risk of insolvency during the life of a construction contract. As Keane JA said, of the not dissimilar Queensland statute, the Building and Construction Industry Payments Act 2004 (Qld), in RJ Neller Building Pty Ltd v Ainsworth [2009] 1 Qd R 390; [2008] QCA 397 at [40], the statute “seeks to preserve the cash flow to a builder notwithstanding the risk that the builder might ultimately be required to refund the cash in circumstances where the builder’s … inability to repay could be expected to eventuate”. It followed, his Honour said, that the risk of inability to repay, in the event of successful action by the other party, must be regarded as one that the legislature has 48 assigned to that other party. The same is true of the regime established by the Security of Payment Act. [208] Further, the Security of Payment Act operates in a way that has been described as “rough and ready” or, less kindly, as “Draconian”. It imposes a mandatory regime regardless of the parties’ contract: s 34. It provides extremely abbreviated time frames for the exchange of payment claims, payment schedules, adjudication applications and adjudication responses. It provides a very limited time for adjudicators to make their decisions on what, experience shows, are often extremely complex claims involving very substantial volumes of documents: see, for example, my decision in Laing O’Rourke Australia Construction v H&M Engineering and Construction [2010] NSWSC 818 at [8]. [209] The Security of Payment Act gives very valuable, and commercially important, advantages to builders and subcontractors. At each stage of the regime for enforcement of the statutory right to progress payments, the Security of Payment Act lays down clear specifications of time and other requirements to be observed. It is not difficult to understand that the availability of those rights should 49 depend on strict observance of the statutory requirements that are involved in their creation. … [211] The language of section 17(2) is clear. Where there has been no payment schedule and no payment, an adjudication application “cannot be made unless” the requisite notice is given within the specified time. The words “cannot be made” suggest strongly that, in the absence of notice, there is no right to make an application." [69] It can be appreciated that statutory adjudication, being a creature of statute, there must be strict compliance with respect to activating the Adjudication Proceedings. However, not every non-compliance goes towards jurisdiction and one must look at the legislative intent. [70] In the application of our CIPAA, we are free from the shackles of the language of administrative law and judicial review. The word "jurisdiction" is used in section 15(d) as in the Adjudicator having acted in "excess of his jurisdiction" as a ground for setting aside an Adjudication Decision. It is also used in section 27(1) with respect to an Adjudicator's jurisdiction being 50 limited to the matters raised in the Payment Claim and the Payment Response. Then there is a reference to it in section 27(2) with respect to extending his jurisdiction by way of agreement in writing to deal with matters not specifically raised in the Payment Claim and Payment Response. Finally there is the reference to a "jurisdictional" challenge, which when raised, does not prevent the Adjudicator from proceeding and completing the Adjudication without prejudice to the rights of any party to set it aside under section 15 or to oppose its enforcement under section 28. [71] There are many senses in which the word "jurisdiction" may be understood. We need only to differentiate between core jurisdiction, competence jurisdiction and contingent jurisdiction. [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. Thus if a contract is not a construction contract, but a shipping or mining contract or a contract for legal fees with respect to advice given in construction contract, or that the contract is with respect to construction of a dwelling house for a natural person, then this Court will interfere if the Adjudicator got it wrong. It is a case where the Adjudicator has no jurisdiction to 51 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 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. In that example the word "jurisdiction" is used in the sense of the 52 scope of the dispute that is before the Adjudicator for decision. So for example an Adjudicator may not be able to decide on the defence of set-off arising out of costs of rectifying defective works if this has not been raised in the Payment Response. If he so decides, then this Court may set it aside as been made in excess of jurisdiction. [75] Issues as to whether there is a valid cause of action, does not go towards jurisdiction but rather to the merits of the claim which in our system of statutory Adjudication, is not a matter for the Court to interfere unless the grounds under section 15 CIPAA apply. So long as the cause of action disclosed in the Payment Claim complies with the outward requirement, it is then for the Adjudicator to descend into the merits of the claim and to decide whether there is a complete cause of action or for some reasons, the cause of action has been postponed until for example there is a final account prepared after the completion of the Project. [76] The question of the lack of a proper cause of action has nothing to do with the validity of the Adjudicator's appointment as in his competence to hear the dispute but at most, it has to do with the exercise of his jurisdiction with respect to the validity of his Decision. 53 [77] The Singapore Court of Appeal in Lee Wee Lick Terrence (alias Li Weili Terence) v Chua Say Eng (formerly trading as Weng Fatt Construction Engineering) and another appeal [2013] 1 SLR 401, sought to reconcile the seeming contradiction between the position taken in Chip Hup Hup Kee Construction Pte Ltd v Ssangyong Engineering & Construction Co. Ltd [2010] 1 SLR 658, SEF Construction Pte Ltd v Skoy Connected Pte Ltd [2010] 1 SLR 733 and AM Associates (Singapore) Pte Ltd v Laguna National Golf and Country Club Ltd [2009] SGHC 260, all decided by Judith Prakash J. on the one hand and that of Sungdo Engineering & Construction (S) Pte Ltd v Italcor Pte Ltd [2010] 3 SLR 459, by Lee Seiu Kin J on the other. [78] In Chip Hup Hup Kee's case, the respondent argued that the right to adjudication under Singapore Building Industry Security of Payment Act (“SSOP Act”) would only arise when a claimant serves a proper payment claim on the respondent. It was further argued that there must be strict compliance with the SSOP Act with respect to the time of service of the Payment Claim as well as the form and contents of the Payment Claim. Judith Prakash J (as she then was) disagreed and considered that the 54 adjudicator’s jurisdiction “could not depend on such adventitious elements” as to whether the claimant had followed the requirements of the SSOP Act in connection with the form and content of the payment claim and the time at which it had to be served or not. Judith Prakash ruled as follows: “[T]he Adjudicator's jurisdiction arose from his appointment by an authorised nominating body under s 14(1) of the SOP Act and from his acceptance of such appointment. Whether the payment claim was in proper order or not would not have an impact on the Adjudicator's jurisdiction, though of course if it was not in order, the Adjudicator would be able to throw out the claim on that basis. Once an appointment had been made and confirmed to the parties by the authorised nominating body under s 14(3), jurisdiction would have been conferred on the Adjudicator in relation to that particular adjudication application.” [79] The position is no different from our section 22 and 23 of our CIPAA with respect to the appointment of an Adjudicator by agreement of the parties and that by KLRCA and the Adjudicators's acceptance of his appointment. The Adjudicator has jurisdiction to hear the dispute as in he is competent and has 55 the capacity to hear the dispute. The scope of his jurisdiction is to decide on matters specifically referred to him as provided for in section 27(1) under the Payment Claim and the Payment Response. [80] The judge further agreed with the views expressed by Nicholas J in Parist Holdings Pty Ltd v Wt Partnership Australia Pty Ltd [2003] NSWSC 365 on the operation of the NSW SOP Act: “[56] Similarly, under our legislation, the jurisdiction of an adjudicator stems from his appointment. It does not stem from a properly completed and served payment claim. The powers and functions of the adjudicator come from section 16 of the SOP Act and not from any action on the part of the claimant. The respondent's argument in respect of the Adjudicator's jurisdiction was analogous to an argument that the High Court's jurisdiction to hear any particular dispute depends on whether the writ of summons or other originating process is in proper form when in fact the court's jurisdiction comes from the provisions of the SCJA or other relevant legislation, depending on the nature of the proceedings.” 56 [81] A different approach appears to be taken in the case of Sungdo Engineering & Construction (S) Pte Ltd v Italcor Pte Ltd [2010] 3 SLR 459 where Lee Seiu Kin J held that a court may review an Adjudicator’s Decision on whether a document properly constitutes a Payment Claim under the Act or whether a Payment Claim was proper. Lee Seiu Kin J decided that the one-page claim letter was not a payment claim under the SSOP Act even though

the document contained all the particulars required by the relevant provisions of the SSOP Act and the SOP Regulations and (b) it was accompanied by all the required enclosures. He held that for any document to amount to a payment claim, it must comply with the requirements for a payment claim as prescribed under the SSOP Act. [82] Clearly Justice Lee Seiu Kin J was referring to a Payment Claim that on the face of it, does not comply with the requirements of a Payment Claim in that it was not expressed to be made under CIPAA or that it was not served at all. In such a case, the appointment of the Adjudicator would be invalid. It is a case where there has been a failure to comply with the strict requirement of the Act with respect to activating the Adjudication Proceedings. 57 [83] The Court of Appeal in Lee Wee Lick Terence (supra) reconciled it this way: "[30] ... If there is no payment claim or if a payment claim is not served on the respondent, then the power of the [authorised nominating body] to nominate an adjudicator would not have arisen, and an appointment made in such circumstances would not be valid. The power of nomination under s 14 (1) of the Act is predicated on the existence of a payment claim and the service thereof on the respondent. An acceptance of an invalid nomination would not clothe the acceptor with the office of adjudicator. It is in this sense that an adjudicator appointed in such circumstances is said to have no jurisdiction in the matter because he has not been validly appointed under the Act. Any issue arising in relation to the validity of the appointment of the adjudicator is a jurisdictional issue which must be reviewable by the court. This was the kind of issue that Lee J was concerned with in Sungdo." [31] However, we do not think that this was the same kind of jurisdictional issue that Prakash J had in mind when she held in Chip Hup Hup Kee ([14] supra) that whether the 58 payment claim was in proper order or not would not have an impact on the adjudicator’s jurisdiction, as she also held that the court’s power of review should be restricted to supervising the appointment of adjudicators, i.e., the validity or otherwise of an appointment was subject to review by the court. What she had in mind was the case of a payment claim that was intended as a payment claim but which did not comply with all the requirements of the Act: it would still be a payment claim, but the adjudicator could “throw [it] out” for non-compliance (see [20] above). The distinction between Lee J’s proposition in Sungdo and that of Prakash J in Chip Hup Hup Kee is that the former proposition was made in relation to a payment claim which was in form a payment claim but not intended to be such, and therefore did not have the effect of a payment claim, and the latter proposition was made in relation to a payment claim which was in form a payment claim and was intended to be such, but which did not satisfy all the requirements of the Act. In the first situation, a payment claim has not come into operation as a payment claim. In the second situation, a payment claim operates as a payment claim but it is defective for non-compliance with the requirements of the Act. The first situation goes to the validity of the appointment of the 59 adjudicator. The second situation goes to the validity of the adjudication determination." (emphasis added) [84] The Court of Appeal in that case gave the following advice with respect to the role of the Adjudicator and the Court when a so-called jurisdictional issue is raised with respect to a Payment Claim: "The role of the adjudicator [64] We are of the opinion that the only functions of an adjudicator are to: (a) decide whether the adjudication application in question is made in accordance with s 13 (3)

(a), (b) and (c) of the Act (see s 16 (2) (a)); and (b) to determine the adjudication application (see s 17 (2)). If the adjudication application complies with s 13 (3) (a), (b) and

(c), the adjudicator should proceed with the adjudication. He is not competent to decide whether he was validly appointed to adjudicate the matter (see [36] above). Thus, in this case, the Adjudicator need not and should not have decided issues

to (d) (at [10] above). [65] If the respondent wishes to argue that the adjudicator was not validly appointed or that the adjudicator has not 60 exercised his power to determine the adjudication application properly (for example, because the adjudicator has not complied with s 16 (3) the Act), such argument should be made to the court. The respondent may apply to court to set aside the adjudication determination on this basis. If the respondent’s objection is that there is no valid payment claim, this should be raised as soon as possible in the payment response so as not to delay the adjudication process. The role of the court in a setting-aside action [66] Turning now to the court’s role in a setting-aside action, we agree with the holding in SEF Construction ([14] supra) that the court should not review the merits of an adjudicator’s decision. The court does, however, have the power to decide whether the adjudicator was validly appointed. If there is no payment claim or service of a payment claim, the appointment of an adjudicator will be invalid, and the resulting adjudication determination would be null and void. [67] Even if there is a payment claim and service of that payment claim, the court may still set aside the 61 adjudication determination on the ground that the claimant, in the course of making an adjudication application, has not complied with one (or more) of the provisions under the Act which is so important that it is the legislative purpose that an act done in breach of the provision should be invalid, whether it is labelled as an essential condition or a mandatory condition. A breach of such a provision would result in the adjudication determination being invalid." (emphasis added) [85] The learned author Chow Kok Fong in Security of Payments and Construction Adjudication (Second Edition) summarised the trilogy of cases by Judith Prakash J at paragraph [13.62] as follows: a. The jurisdiction of the adjudicator in the sense of his power to hear a matter stems from his appointment by the authorised nominating body (“ANB”). Once the appointment has been made under section 14(3) of the SSOP Act, jurisdiction would have been conferred on the adjudicator. The adjudicator’s jurisdiction does not depend, therefore, on the form and contents of the subject payment claim and the time at which it had to be served. 62 b. The court’s role is limited to determining that the basic requirements (or essential condition) as set out in Brodyn are present. This includes whether “prior to making an adjudication application the claimant had served a purported payment claim: and whether the appointment and conduct of the adjudicator complied with the relevant statutory provisions.” c. It is not for the courts to undertake an investigation into the merits of the dispute in order to ascertain whether the adjudicator has reached the same decision as a court would have done. [86] I agree with the above analysis is being in accord with our scheme of statutory adjudication under CIPAA. When a challenge is made to the Payment Claim filed as lacking in details in that it does not disclose a valid cause of action, that is a challenge on merits assuming that the Payment Claim has complied outwardly with the requirements of section 5(2)(b) CIPAA. It has nothing to do with the validity of the appointment of the Adjudicator. The Adjudicator appointed would then have to consider the merits of whether there exists a valid cause of action with respect to the matters raised in the Payment Claim and the Payment Response. 63 [87] Section 25 CIPAA sets out the Powers of an Adjudicator and section 26 provides that the Powers of Adjudicator shall not be affected by some non-compliance with the Act. Section 26 deals with the Jurisdiction of an Adjudicator. [88] It goes without saying that the powers of an Adjudicator are to be exercised only in cases where he has jurisdiction. If he has no jurisdiction with respect to deciding a dispute before him, then it does not make sense to talk of his exercising his powers, be it to cure a non-compliance with any provision of the Act or to extend his jurisdiction which he does not have to begin with. [89] Section 26 CIPAA reads as follows: "(1) Subject to subsection (2), the non-compliance by the parties with the provisions of this Act whether in respect of time limit, form or content or in any other respect shall be treated as an irregularity and shall not invalidate the power of the adjudicator to adjudicate the dispute nor nullify the adjudication proceedings or adjudication decision.

The adjudicator may on the ground that there has been non-compliance in respect of the adjudication proceedings or document produced in the adjudication proceedings— 64

Set aside either wholly or partly the adjudication proceedings;

Make any order dealing with the adjudication proceedings as the adjudicator deems fit; or

Allow amendment to be made to the document produced in the adjudication proceedings." [90] The powers is with respect to matters of "non-compliance in respect of the adjudication proceedings or document produced in the adjudication proceedings" as stated in section 26(2). Under section 8 CIPAA on "Initiation of Adjudication", an Adjudication Proceeding is initiated with the service of a written Notice of Adjudication. Section 8 reads:

A claimant may initiate adjudication proceedings by serving a written notice of adjudication containing the nature and description of the dispute and the remedy sought together with any supporting document on the respondent. [91] The supporting judgment in View Esteem Sdn. Bhd. v Bina Puri Holdings Bhd [2016] MLJU 662 at page 662, Prasad Sandosham Abraham JCA (now FCJ) examined the operation of section 26 of CIPAA and noted that the said provision is peculiar to the Malaysian context only as it does not appear in similar 65 legislation of comparable jurisdiction. The judge further held as follows: “[6] The intention of Parliament is clear in that any irregularity in wide terms will not render the adjudication proceedings a nullity in consonance with the spirit of the act i.e. “to facilitate regular and timely payment, to provide a mechanism for speedy dispute resolution through adjudication. [7] To come within the purview of section 26(1), a party must invoke the provisions of section 26(2) of CIPA relying on the subsection most suitable to the facts of the dispute before the adjudicator. [8] The appellant should have moved the adjudicator formally to allow matters not raised under the payment response pursuant to section 26 2(b)/(c) of the said section. The adjudicator would have had to deal with that question and rule accordingly and such a ruling would not in my view be reviewable. If the adjudicator had refused to entertain the application on a point of jurisdiction, then the same would be subject to review.” (emphasis added) 66 [92] It would appear that section 26 of CIPAA is only applicable to non-compliances which the adjudicator has jurisdiction to decide and which would not be reviewable by the Court. I would agree with the Respondent that section 26 does not apply to non-compliances which affects the adjudicator’s very own jurisdiction or capacity to hear and decide the matter with respect to competence and 'capacity to hear' jurisdiction. In such a challenge, it is the Court and not the Adjudicator who will decide on such non-compliances. The distinction is important. In Chip Hup Hup Kee, Judith Prakash J at p.675: “[44] Thus, it seemed that what was being alleged was an absolute lack of jurisdiction on the part of a particular tribunal or court to hear a particular dispute, “jurisdiction” being used in the strict sense of capacity to hear, then if the tribunal concerned does not have the jurisdiction, any party to the dispute may assert the lack of jurisdiction at any stage and can never be held to be estopped from doing so or to have waived its right to protest. On the contrary, when it is a question of irregularity of procedure or contingent jurisdiction or non-compliance with a statutory condition precedent to the validity of a step in the litigation, such irregularity or non-compliance can be waived because the effect of the waiver 67 would not be to create or confer any jurisdiction that did not previously exist. [45] It therefore appeared to me that I could not answer the preliminary question of whether the respondent was entitled to raise its challenges to jurisdiction until I determined whether or not such related to competence to hear or only to the exercise of the jurisdiction. I therefore had to consider the substantive question in order to determine the preliminary point”. [93] This passage was referred to and quoted by the Court of Appeal in the case of View Esteem where Prasad Sandosham Abraham JCA said: “[12] The issue of jurisdiction encompassed in Section 26 of CIPAA concerns jurisdiction on the question of irregularity of procedure or of a defect in a contingent jurisdiction or non-compliance with statutory conditions precedent to the validity in the step in the proceedings.” [94] I have no problem accepting the proposition of learned counsel for the Respondent that with respect to the competence or capacity of the adjudicator to hear itself, we can, to be consistent with other jurisdictions such as Singapore and 68 Australia, apply the test of whether the provision(s) of CIPAA which had not been complied with was so important that it is the legislative purpose that an act done in breach of that provision should be invalid (whether it is labelled as a basic and essential requirement or condition or mandatory condition) and result in the adjudication decision being invalid. [95] Having held that the Payment Claim filed in the instant case is a valid Payment Claim in that it has complied with the material requirements of section 15(2) CIPAA, there is no necessity then to go under section 26(2) for the curing of any irregularity. [96] It is well within the power and province of the Adjudicator to decide on the validity of the Payment Claim served as in whether at the end of the day, there is a valid cause of action shown, after hearing the evidence and considering the submissions of counsel on the proper interpretation to be given to relevant provisions of the PAM Contract. [97] That would involve going into the merits of the case and this Court would not generally interfere with such a finding of mixed law and fact unless the circumstances under section 15 CIPAA have been shown. 69 Whether the Adjudicator exceeded his jurisdiction in deciding on the validity of the Respondent's determination of the Claimant's employment with respect to compliance with the Notice Period [98] I agree with learned counsel for the Claimant that once the Respondent in its Payment Response raises the defence of the applicability of Clause 25.4(d) PAM Contract in that once there is an act of determination of the employment of the Claimant/Contractor, no further payment will be due until a final account is prepared, then the Adjudicator must of necessity decide whether Clause 25.4(d) has been properly activated, invoked or applied. [99] It becomes a matter for the Adjudicator to decide without delving into the merits of the grounds of determination of the employment, as in whether the facts justify the grounds relied on for the determination of the employment. The Adjudicator was consciously confining himself to this narrow point on whether Clause 25.4(d) can be relied on by the Respondent/Employer as in being properly invoked, stating further that the merits or 70 otherwise of the termination on the grounds stated is for the Arbitral tribunal to decide. [100] CIPAA only allows a Payment Claim and a Payment Response to be filed and there is no Payment Reply allowed for the Claimant. Thus the matters for the Adjudicator to decide are conferred as well as circumscribed by the matters raised in the Payment Claim and Payment Response. [101] Section 6(2) requires of the non-paying party to state its reasons for disputing the claim and certainly once that is done, it would be remiss of the Adjudicator not to decide whether the reasons given are valid reasons. I agree with the learned counsel for the Claimant that by relying on the determination of the Claimant's employment pursuant to Clause 25.1, the Respondent has in a very real sense submitted the issue of determination as forming part of its defence and consequently clothed the Adjudicator with the requisite jurisdiction to decide the matter. The issue was very much a live issue and at play during the Adjudication and parties submitted fully on it. The Adjudicator confirmed the Respondent's jurisdictional challenge in this Adjudication Decision as follows: 71 “Jurisdiction challenge 5) The Claimant raises in its Reply of 29.6.2016 a jurisdiction challenge on the Respondent entitlement for set-off claim for liquidated and ascertained damages (LAD). Likewise, the Respondent in its further submission of 7.4.2016 questioned the Adjudicator’s jurisdiction to deal with the validity of the Notice of Determination. The respective challenges are: … c. This adjudication tribunal has no jurisdiction to deal with the validity or otherwise of the notice of determination as it was never pleaded by the Claimant in S5 Payment Claim.” (Emphasis added) [102] The Adjudicator was careful to correctly state that he was not delving into the merits of the grounds for determination of the Contract as in whether those grounds are supported by facts justifying determination of the Claimant's employment. [103] The Adjudicator, in dealing with the jurisdictional challenge, decided as follows: 72 “19) ... But in this instant dispute, reading S5 and S6 more broadly to deal with grounds surrounding the termination of the Claimant’s contract may take this proceeding into an uncharted territory. This Tribunal should not attempt to deal with the issue surrounding the proper termination of the Claimant’s contract when the circumstances of the termination under Clause 25.1 were not even adduced. It is my respectful view that the lawfulness of the termination of the contract should be more fully and properly dealt with in the ongoing arbitration proceeding. The Claimant only sought this Tribunal to declare the notice of determination invalid or defective. 20) Since the correctness of the Respondent’s activation of Clause 25.4(d) is central to this action, I am of the opinion this tribunal should confine its decision to whether the Respondent had correctly activated the operation of Clause 25.2(d)” (emphasis added) [104] Section 27(1) of CIPAA provides that the adjudicator’s jurisdiction in relation to any dispute is limited to the “matter” referred to adjudication by the parties in the Payment Claim and 73 the Payment Response (unless otherwise extended by agreement in writing by the parties). [105] In WRP Asia Pacific Sdn Bhd v NS Bluescope Lysaght Malaysia Sdn Bhd [2015] 1 LNS 1236, Justice Mary Lim J (now JCA) said as follows: “[27] Subsection 27(1) restricts the jurisdiction of the Adjudicator to the matters found in sections 5 and 6. In short, the Adjudicator takes jurisdiction from the payment claim and the payment response; not from the adjudication claim, adjudication response or even the adjudication reply. This is materially significant and important as this brings to bear the whole scheme of CIPAA 2012; that the adjudication proceedings is to deal with or resolve a payment dispute. ... The Adjudicator’s sole task is to resolve that dispute for the reasons already made known between the parties; and nothing else. Any change to those rules of engagement requires a written consent between the parties and that is clear from subsection 27(2). Were it otherwise, there would be no fair play and ultimately, no confidence in the mechanism that has been so elaborately set up by Parliament...” (emphasis added) [106] The dispute referred to Adjudication was the refusal of the non-paying party in the Respondent/Employer to pay for the 74 reason given in the Payment Response in that Clause 25.4(d) applies. That essentially is the reason for not paying the entire of the claims made in the Payment Claim. No matter how one looks at the dispute that has arisen, one cannot run away from deciding on the applicability of Clause 25.4(d) at least in the limited sense of whether it could be properly applied. [107] It was argued that the Claimant only raised for the first time the issue of the wrongful determination in its Adjudication Claim. The Respondent then raised a jurisdictional challenge in the course of the Adjudication Proceedings that the Adjudicator had no jurisdiction to deal with this issue of the validity of the determination of the Claimant's employment as it was not a matter which had been referred to Adjudication by the Claimant in the Payment Claim or by the Respondent in the Payment Response. [108] The Claimant however contended that it was entitled to raise the issue of wrongful determination because in the Payment Response, the Respondent contended that none of the Claimant's claims were payable by virtue of the operation of clause 25.4(d) “As a result of Terminal Perintis’ determination of TNHC’s employment pursuant to clause 25.1”. 75 [109] I do not think that the Respondent/Employer can validly argue that they were stating as a matter of undisputed fact that the Claimant's employment was determined pursuant to Clause 25.1. It cannot be denied that the reason for the Respondent/Employer to state that is to support the argument that under that Clause 25.4(d) no payment is due to the Claimant. [110] It is then open to the Claimant to show the Adjudicator why the said Clause 25.4(d) cannot be applied in the circumstances of the case by reference to the non-compliance with the notice period for the Notice of Determination. I cannot follow the Respondent's submission that the Claimant can only confirm itself to the argument that its employment was not determined or that there was no determination. That would be to split hairs! The Claimant is surely at liberty to argue why Clause 25.4(d) cannot be applied in the way the Respondent wanted it to. [111] I agree with the Claimant that once the Respondent raises the defence of reliance of clause 25.4(d) then the Claimant cannot be precluded from defending its claim by contending that the procedural requirement under clause 25 were not met. The ramifications of the defence raised in the Payment Response 76 must be considered by the Adjudicator. As was held in Cantillon Ltd v Urvasco Ltd [2008] 117 ConLR 1: "[67] .....As the authorities established that the responding party can put forward any arguable defence in adjudication, ......it must follow that the adjudicator can rule not only on that defence but also upon the ramifications of the defence to the extent that it is successful in so far as it impacts upon the fundamental dispute." (emphasis added) [112] I agree with the Claimant that it would be a defeating exercise to over-analyze what the dispute constitutes in an adjudication under CIPAA. Many Adjudicator's are not lawyers by training. Their expertise is drawn from engineering, architecture, quantity surveying and the like. They do not sit as judges or arbitrators. However most would appreciate what a dispute is when they see one as evidence from the Payment Claim and the Payment Response. They have to decide within a tight time frame and their decision might not be on spot but they serve a purpose under CIPAA, which is to allow the Claimant to be paid for work done or services rendered. It is a very rough kind of justice and the refined part of it would have to be pursued at arbitration or 77 litigation. His decision is provisional in nature and of temporary finality. [113] The important thing is that the parties are fully aware of what they have to answer arising from the Payment Claim and the Payment Response. Hence the need to avoid being pedantic or overly technical or legalistic where the determination of the issues of the dispute is concerned. [114] Akinhead J in Witney Town Counsel v Beam Construction (Cheltenham) Ltd [2011] 139 ConLR 1 at 18 (paragraph 38), provides guidance in this respect: “[38]…

(iv) What a dispute in any given case is will be a question of fact albeit that the facts may require to be interpreted. Courts should not adopt an over-legalistic analysis on what the dispute between the parties is, bearing in mind that every construction contract is a commercial transaction and parties cannot broadly have contemplated that every issue between the parties would necessarily have to attract a separate reference to adjudication.” 78 [115] The entire rationale of the pleadings submitted by way of the Payment Claim and Payment Response is that the Plaintiff is not to be caught by surprise. One must not miss the wood for the trees. Judge Toulmin CMG QC in AWG Construction Services Ltd v Rockingham Motor Sppedway Ltd [2004] EWHC 888 (TCC) at paragraph 141 said: “[141] In my view, each case must depend on the circumstances and the context in which a referral is made. In some cases the issues referred are very specific. In other cases it is clear that the issues are more general and have been so treated by the parties, and that there is significantly more room for the case to be developed. The test in each case is first what dispute did the parties agree to refer to the adjudicator? And, secondly, on what basis? If the basis which is argued in the adjudication is wholly different to that which a defendant has had an opportunity to respond in advance of the adjudication, this may constitute a different dispute not referred to the adjudicator or, put another way, in so far as adjudicator reaches a decision on the new issues, it is not responsive to the issues referred to him.” 79 [116] Simply put, the Claimant's claim was for works carried out in respect of all four (4) claims. It was entitled to make a claim under section 5 of CIPAA. This became an issue when the Respondent claimed that the Claimant was precluded from receiving payment under clause 25.4(d). The parties therefore agreed to refer this issue or dispute to the Adjudicator. The Adjudicator cannot be hamstrung from deciding a matter of a consequential and ancillary nature necessary to exercise or complete the exercise of his jurisdiction conferred by the Payment Claim and the Payment Response. It would be skirting the issue for the Adjudicator not to decide on whether the reason given for non-payment being the event of determination of the contract is a valid reason and for that to decide on the limited ground of whether the notice period for issuing the Notice of Determination has been complied with. It was not a different dispute that was referred to the Adjudicator. In this regard the New Zealand Construction Contracts Act 2002 is instructive where its section 38 is concerned: “38 Jurisdiction of adjudicators

An adjudicator’s jurisdiction in relation to any dispute that has been referred to adjudication is limited to determining—

the matters referred to in sections 48, 49(1)(c), and 50(1)(c); and 80

any other matters that are of a consequential or ancillary nature necessary to exercise or complete the exercise of the jurisdiction conferred by paragraph (a).

However, the parties to an adjudication may, at any time, by written agreement, extend the jurisdiction of an adjudicator to determine any matters in addition to those mentioned in subsection (1)." (emphasis added) [117] The Respondent's submission is that although the Adjudicator re-framed the question to whether the Claimant had correctly activated the operation of Clause 25.4(d), however, the Adjudicator nevertheless approached and answered this question by examining and deciding the issue of the validity of the Respondent's determination of the Claimant's employment. The Adjudicator’s decision dealing specifically with the issue of the validity of the determination is set out in below: “49) We all know untimely termination of a contractual relationship brings to the fore whole hosts of questions relating to the proper way to handle the aftermath of this broken relationship. Amongst others, one of the most contentious is the operation of Clause 25.4(d). As a result of the far reaching effects a terminated contractual relation has 81 on the obligations of the parties, the Malaysian court has taken a specific stance on the acceptable way to end this relationship. The emphasis of the Court is the party whose contract is being terminated must be accorded fair treatment prior to the the termination. In particular, the Court in Fajar Menyinsing Sdn Bhd v Angsana Sdn Bhd [1998] 6 MLJ 80 expressed the view that in interpreting the operation of a termination clause in a contract, the court (and also the tribunal) ought to adopt a strict approach. Nik Hashim J (as he then was) explained what it meant by taking a strict approach. He said: “It is obvious by its provision and the marginal note that Clause 25.(1) is a determination clause and as such, it must be construed strictly. Its provision is mandatory in nature. Therefore, any formal or procedural requirement stipulated in the determination clause must be complied with exactly and meticulously. Hudson’s Building and Engineering Contracts (11th Ed, 1995) Vol. 2, p 1244 said: ... exact and meticulous compliance by the determining party with any formal or procedural requirements laid down in the termination clause, for example, as to notices 82 or time limits, will usually be required if a contractual termination is to be successful ... (Emphasis added) 50) The Claimant insisted that Clause 25.2 requires the Respondent as the determining party to give the Claimant as the contractor a notice of default stating precisely the defaults the contractor had incurred. This notice shall be either delivered by hand or by way of a registered post. Thereafter, the contractor shall be given 14 clear days to either rectify the defaults sufficiently to persuade the Employer not to proceed with the determination or if the contractor allows the defaults to continue, then the Employer has the option after the 14 days notice period to give the notice of determination within 10 days thereafter. It the Employer chooses to issue the notice of determination, it shall not be given unreasonably or vexatious. 51) An equally important duty of the determining party is to comply exactly and meticulously the manner the notice determination ought to be issued. According to the stance of the Malaysian courts for contract under PAM standard conditions of contract, the determining party should only issue the notice of determination after the expiry of the 14 83 clear days of the notice period stated in Clause 25.2. Unfortunately in this case, the Respondent went ahead to issue the notice of determination on 18.8.2015 which mathematically is one day too early. The one premature notice would under ordinary circumstances have been deemed as de minimis and the error overlooked. Therefore, the validity of the notice should not be affected. But the approach of the court in Fajar Menyensing, with good reasons, thinks otherwise. Faja Menyensing’s approach was subsequently adopted in Pembinaan LCL Sdn Bhd v SK Styfoam (M) Sdn Bhd [2007] 4 MLJ 113 and more recently by Dato’ Mary Lim J (as she then was) in DC Contractor Sdn Bhd v Universiti Pertahanan Nasional Malaysia [2014] 11 MLJ 653. The Claimant now sought this tribunal’s ruling that as a result of the Respondent’s mis-step in issuing the Notice of Determination it has breached Clause 25.2 and that the notice of determination should be deemed invalid. Therefore, Clause 25.4(d) had not been correctly activated. Hence, it is not entitled to invoke Clause 25.4(d) defence. 52) However, the Respondent’s contention in the light of the above arguments that the Claimant had in accepting the 84 Notice of determination agreed to the content of the said notice served one day early on 18.8.2015, thereby waived its right to the object. The Respondent further argues that the doctrine of estoppel should operate to deny the Claimant’s CEO changed in position in his written statement that he only acknowledged receipt of the notice not the truth of its content. The Respondent contends, even if this Tribunal finds that the notice of Determination was issued one day too early, this agreement by the Claimant’s conduct should override the apparent mis-step by the Respondent. 53) Whilst not diluting the force of such arguments in other fora, I am reminded by the statement of the learned judge Dato’ Mary Lim that the doctrine of estoppel would generally not apply in CIPAA 2012 unless the occasions or conduct or some special circumstances presents are so convincing or valid that suggest the doctrine of estoppel ought to apply. Even if such occasion arose, her ladyship believes it should be an exception. The occasions relied on by the Respondent; (1) in the partial handover, (2) post determination reference by the Claimant to official determination and (3) the signed Notice of Determination, 85 would not be sufficient in my humble view be considered as an exception to allow the operation of estoppel. In my opinion the doctrine cannot make right the wrong of the determining party in the breach of Clause 25.2. To do so tantamounts to allowing the Respondent to benefit from its own wrong doing. The principle was enunciated by Gopal Sri Ram JCA (as he then was) in Pentabdiran Tanah Daerah Petaling v Swee Lin Sdn Bhd 12 where the learned judge said: “But as I have said, the principle is of universal application. In the present case, that principle produces the following results. A landowner who has erected a building on his land contrary to law ought not to receive any benefit from it from an acquiring authority under the Act.” I am convinced the ratio decidendi in the aforesaid case equally applies in this case where the Respondent had breached the Clause 25.2 notice period but sought to benefit from this mis-step by citing the operation of the doctrine of estoppel. 54) The Claimant averred the respondent’s reliance on Clause 25.4(d) defence is misconceived and wrongful. I am 86 persuaded that the Respondent breach of 25.2 is fatal to its right to activate Clause 25.4(d).” (emphasis added) [118] I would say that the Adjudicator has carefully couched and crafted his decision to make it clear that he was dealing with whether the said Clause 25.4(d) can be validly relied on from the limited perspective of its proper activation with respect to the relevant notice period. The Adjudicator was clear in that he is not venturing to decide on the validity of the grounds of determination to answer the question of whether the determination of the contract was lawful from that perspective. [119] Whilst the Adjudicator might have misunderstood the dicta of Justice Mary Lim J (now JCA) with respect to the context in which estoppel does not apply to Adjudication, I do not think that in any way materially affect the finding of fact of the Adjudicator that the Claimant in acknowledging receipt of the Notice of Determination dated 18.8.2015, did not agree to the contents of the Notice of Determination. The evidence given was that the Director of the Claimant, Mr Tan Ze Guan, had specifically written the words "acknowledge received" in the column provided though the Respondent's printed words said "We have read, understood and agreed to the contents of the above letter.” See Exhibit TZG 7 87 Enclosure 6 of Claimant's affidavit to oppose the setting aside of the Adjudication Decision. There was also the Claimant's letter to the Respondent dated 23.9.2015 in Exhibit TZG 8 stating that the termination was wrongful for non-compliance with the 14-day period after the Notice of Default was issued. [120] The Adjudicator nevertheless was entitled on the facts as found by him that the Claimant was not estopped from raising the issue of premature determination of the Claimant's employment by the Respondent/Employer and that the Claimant had not accepted the factual allegations in the grounds of termination. [121] At any rate a misapprehension of the law in a finding of fact is no justification for setting aside the said finding of fact when there are evidence forming the basis of the Adjudicator's finding of fact. Here the finding of fact was that the Notice of Determination was issued prematurely and not in strict compliance with the period of 14 clear days to rectify the defaults as required under Clause 25.2. [122] Further as pointed out by learned counsel for the Claimant in the Adjudication Reply, both the Notice of Default and the Notice of Determination were marked "without prejudice", supporting 88 their contention that the parties were at the material time, still discussing the possibility of an amicable resolution. [123] All said, findings of facts and findings of mixed facts and law are matters within the sole province of the Adjudicator and this Court would not be able to interfere in a section 15 CIPAA application for breach of natural justice or excess of jurisdiction. In the context in which the above findings were made, there is nothing that goes to jurisdiction of the Adjudicator as in the validity of his appointment. Even if the Adjudicator had come to a wrong finding of fact premised on his wrong understanding of the law, this Court would not generally interfere unless that finding of fact and interpretation of the law go to jurisdiction or that the other grounds for setting aside in section 15(a) or (c) CIPAA apply. [124] I am satisfied that the Adjudicator did not decide beyond his jurisdiction in that he did not decide on the merits of the determination as to whether the grounds for determination were valid. He merely decided on the peripheral and preliminary issue as to whether the Notice of Determination had been issued in compliance with the strict time frame requirement of Clause 25.2 PAM Contract. That he is permitted to do before he could decide 89 on where the Respondent/Employer may validly rely of Clause 25.4(d) to validly withholding payment. Whether section 35 CIPAA applies to Clause 25.4(d) PAM Contract to make it a conditional payment clause and hence void and unenforceable [125] Learned counsel for the Claimant submitted that the Claimant is not entitled to payment for all the sums claimed under the Payment Claim because pursuant to Clause 25.4(d) of the Contract, the Respondent as Employer is not bound by any contractual provision to make any further payment to the Claimant as Contractor, including payments which have been certified but not yet paid when he Contractor's employment was determined. This, it was argued, is a complete defence against the whole of the Claimant's claims. Clause 25.4(d) provides as follows: “25.4 In the event that the employment of the Contractor is determined under Clause 25.1 or 25.3, the following shall be the respective rights and duties of the Employer and the Contractor:

25.4(d) the Contractor shall allow or pay to the Employer all cost incurred to complete the Works including all loss and/or expenses suffered by the Employer. Until after completion of 90 the Works under clause 25.4(a), the Employer shall not be bound by any provision in the Contract to make any further payment to the Contractor, including payments which have been certified but not yet paid when the employment of the Contractor was determined” [126] The Claimant however argued that following the case of Econpile (M) Sdn Bhd v IRDK Ventures Sdn Bhd & Another case [2016] 5 CLJ 882 (“Econpile”), Clause 24.5(d) of the Contract is void and unenforceable as it is a conditional payment provision prohibited under Section 35 of CIPAA. As such it cannot be relied on as a reason for not paying the four claims in the Payment Claim. [127] Learned counsel for the Respondent advanced the following arguments in support of his position: a. In Sundra Rajoo, Dato’ Bill WSW Davidson and Ir Harbans Singh in “The PAM 2006 Standard Form Building Contract” LexisNexis, 2010, the learned authors commented on Clause 25.4(d): “Clause 25.4 deals essentially with the specific procedures, rights and duties of the parties following the determination of 91 the contract’s employment under the contract by the employer due to performance defaults under Clause 25.1 or should automatic determination occur pursuant to Clause

25.3... Clause 25.4(d) : Procedures regulating accounts between parties ... Upon the occurrence of the determination event, the question that frequently arises is whether the employer is obliged to make any payment to the original contractor. Clause 25.4(d) answers the said question by stipulating in the second sentences that ‘until after the completion of the Works under Clause 25.4(a), the Employer shall not be bound by any provision in the Contract to make any further payment to the Contractor, including payment that have been certified but not yet paid when the employment of the Contract was determined’. Hence, the employer is relieved expressly from his contractual obligation to make any further payments to the contractor for money due to the latter as at the date of determination which would include payments certified but not paid, payments outstanding for work done but not certified, retention Fund (if applicable), etc. Such an approach is a prudent one as the 92 sums retained may be used to eventually off-set the employer’s claim against the contractor in the Final Account. The PAM Contract 2006 has expressly expanded the restricted on the employer’s scope of payment to include ‘payment which have been certified but not yet paid when the employment of the Contractor was determined’, although it would have been advantageous to also list out the other categories of the said restriction. Nonetheless, this is an improvement over the previous provision.” (emphasis added) There is no mention that this clause amounts to a conditional payment clause or a “pay-when-paid” or “pay-if-paid” clause which is/was not an uncommon construction industry practice. The sums retained by an employer pursuant to Clause 25.4(d) may be used to off-set the cost incurred by the employer to complete the works and all loss and/or expenses suffered by the employer. In this regard, Clause 25.4(d) does not have the effect of postponing payment due until the happening of a later event (in this case until after the final accounts are concluded and works completed) because in all likelihood there would be less or even no payment due to the contractor when that event 93 occurs. This is unlike Section 35(2) when full payment would still be due to the contractor if and when the event occurs. b. Clause 25.4(d) is not peculiar to standard form contracts under PAM but similar variations of the clause are also found in other major standard from contracts such as clause 44.3 of the CIDB Standard Form of Contract for Building Works (2000 Edition), clause 61.4 IEM. CE 2011 and IEM. ME 2012 and clause 56.0 of the PWD Form 203A (Rev 1/2010). These clauses have never been classified or treated as a conditional payment clause or “pay-when-paid” or “pay-if-paid” type clause. c. In addition, the courts in other jurisdictions, which have similar prohibitions to conditional payment clauses in their equivalent to CIPAA legislation have not found that the equivalent to Clause 25.4(d) of their standard form building/construction contracts are in law conditional payment provisions and therefore void. These jurisdictions include UK, Australia, New Zealand and Singapore. d. The purpose and object of CIPAA can be derived from the following: 94 i. The long title of Act, which provides that CIPAA is “to facilitate regular and timely payment, to provide a mechanism for speedy dispute resolution through adjudication, to provide remedies for the recovery of payment in the construction industry and to provide for connected and incidental matters”; ii. The Explanatory Statement of the CIPAA Bill, which provides that “The Construction Industry Payment and Adjudication Act 2011 (“the proposed Act”) seeks to facilitate regular and timely payment in respect of construction contracts and to provide for speedy dispute resolution through adjudication. The purpose of the proposed Act is to alleviate payment problems that presently prevails pervasively and which stifles cash flow in the construction industry. The proposed Act further provides default payment terms in the absence of provisions to that effect and prohibits conditional payment terms that inhibit cash flow. The Act also seeks to provide remedies for the recovery of payment upon the conclusion of adjudication.” (emphasis added) 95 [128] With respect to the above arguments, it must not be forgotten the context in which the learned authors had opined their views of Clause 25.4(d). It was at a time when CIPAA has not come into being yet and certainly has not come into force yet. The question as to whether that Clause could be caught by the prohibition of section 35 CIPAA was thus not addressed. [129] While there are other major standard form contracts that have a similar clause, the question is whether they fall foul of section 35 CIPAA and not so much as to how many of such similar clauses would be affected if the decision in Econpile were to be upheld. Likewise, though uniformity with other jurisdictions where statutory adjudication is concerned would be a good thing, one would readily admit that while the core concept is the same in many jurisdictions, yet when it comes to the scope of the contracts that comes under the respective Acts and the manner of setting aside the Adjudication Decision and enforcing it is different in different jurisdictions. [130] At the end of the day, our CIPAA is sui generis and that the Courts when confronted with strong opposing arguments as here, with respect to whether a clause is a conditional payment clause, would have to interpret it, giving meaning to the words used in the 96 relevant sections and not forgetting the over-arching purpose of the Act. [131] It is conspicuously clear that our particular provision on what is a conditional payment clause is worded differently from that of other jurisdictions. If our Parliament had wanted to follow other jurisdictions, it could have followed the same definition of a conditional payment clause. In a very real sense there is no need to reinvent the wheel. Instead it had drafted it by way of a clear declaration as a matter of principle in section 35(1) CIPAA that "Any conditional payment provision in a construction contract in relation to payment under the construction contract is void." [132] My reasoning for embarking on a more expansive approach to determining whether a provision in a contract is a conditional payment provision in Econpile is reproduced below for ease of reference: "[80]We are aware that when if the subsection had use the words "(2) For the purpose of this section, "conditional payment" means-",then we are left in no doubt that the 2 examples are exhaustive and permits of no other additional instances of conditional payment terms. If that subsection had used the word "includes" instead of "means" we would 97 also be quite clear and confident that the examples given are by no means exhaustive. [81] However seeing that Parliament had chosen to state a general principle first in s 35(1) and has couched it to be all-encompassing as in the use of the expression "Any conditional payment provision..." I would prefer a more expansive interpretation that would accord with the purpose of the Act. Parliament could have used the expression in s 35(1) as "A conditional payment provision within the meaning of subsection (2)......is void." It could be safely concluded that Parliament had left it to the Court to determine on a case by case basis as to whether a conditional payment term would be defeating the purpose of the Act. [82] For instance if a conditional payment term is merely that the unpaid party as contractor must show proof of payment to his subcontractors before the Employer needs to pay the contractor, such a condition might not be unreasonable and might be good in enhancing corporate governance and efficiency in contracts management. There might well be a myriad of conditions not all of which would be defeating the purpose of the Act. In fact the Explanatory Statement to the 98 Bill reads: "The proposed Act further provides default payment terms in the absence of provisions to that effect and prohibits conditional payment terms that inhibit cash flow." (emphasis added) [83] On the contrary, a condition like Clause 25.4(d) has the effect, upon the termination of the contract, of postponing payment due until the final accounts are concluded and the works completed and that would be defeating the purpose of the Act. Therefore such a clause is void and unenforceable and the Adjudicator may disregard it altogether." [133] As can be seen from the Explanatory Statement to the Bill, it is not every conditional payment provision that will be prohibited; it is only those which has the effect of inhibiting cash flow. Parliament has left it to the Courts to determine whether the condition in the conditional payment provision has the effect of inhibiting cash flow and so thwarting the purpose of the Act. [134] I fully endorse the proposition of law that where the language of an Act of Parliament is clear and explicit, effect must be given to it: 99 a. Hong Leong Bank Berhad v Khairulnizam Bin Jamaludin [2016] 7 CLJ 335, FC; b. Majlis Agama Islam Wilayah Persekutuan v Victoria Jayaseele Martin and Another Appeal [2016] MLJU 41, FC; and c. Andrew Lee Slew Ling v United Overseas Bank (Malaysia) Bhd [2013] 1 MLJ 449, FC. [135] Further where the language used in legislation is clear and unambiguous, effect should be given to it. (Chin Chov & Ors v Collector of Stamp Duties [1979] 1 MLJ 69 at 70, FC). [136] It was submitted by the Respondent/Employer that our Parliament intended conditional payment provisions to be confined to the instances expressed under subsection 2(a) and

of section 35. It was further argued that any expansion of the definition of conditional payment can be done through Parliament, as was the case in UK. I would venture to say that whilst this is one approach, being a relative latecomer to Adjudicator, we have the experience of hindsight of other jurisdictions and instead of leaving it to Parliament or the Minister (as in Singapore) in charged to make clear other provisional payment terms that may 100 have the effect of inhibiting cashflow and so is inimical to the object of CIPAA, our Parliament has left it to our Courts to so determine as and when the clauses are so challenged and so to develop the law further from case to case. [137] In fact as pointed out by learned counsel for the Respondent, the experience in the UK that started off with confining a conditional payment provision to a "pay when paid" clause and defining what that means, has now moved to a more expansive approach and to broaden the ambit of such a clause. The UK Parliament later supplemented the section 113 of the Housing Grants, Construction & Regeneration Act 196 ("HGCRA") by introducing section 142 of the Local Democracy, Economic Development and Construction Act 2009 that provides as follows: “(1) In the Housing Grants, Construction and Regeneration Act 1996, section 110 (dates for payment) is amended as follows.

After subsection (1) insert— “(1A)The requirement in subsection (1)(a) to provide an adequate mechanism for determining what payments become due under the contract, or when, is not satisfied 101 where a construction contract makes payment conditional on— a. the performance of obligations under another contract, or b. a decision by any person as to whether obligations under another contract have been performed.” (Emphasis added) [138] For instance, if a contract has a clause to state that before a certified payment is released to the Contractor, the Contractor shall show proof of payments to its sub-contractors, one would say that such a condition promotes good corporate governance and contract management for if sub-contractors are not paid, there is every likelihood of not meeting work schedule. Likewise if retention sum shall be released upon the procurement of a Bond in favour of the Employer for the amount released; one would see that as a reasonable condition for release of the retention sum being a security to ensure that defects are being rectified by the Contractor. There may well be a myriad of conditions and certainly not all have the effect of inhibiting cash flow. 102 [139] Singapore thus preserved a measure of latitude with respect to what a "pay when paid" provision is and so left open possible expansion of conditional payment provision in their definition in section 9 SSOPA Act as follows: "pay when paid provision" , in relation to a contract, means a provision of the contract by whatever name called -

that makes the liability of one party (referred to in this definition as the first party) to pay money owing to another party (referred to in this definition as the second party) contingent or conditional on payment to the first party by a further party (referred to in this definition as the third party) of the whole or any part of that money;

that makes the due date for payment of money owing by the first party to the second party contingent or conditional on the date on which payment of the whole or any part of that money is made to the first party by the third party;

that otherwise makes the liability to pay money owing, or the due date for payment of money owing, contingent or conditional on the operation of any other contract or agreement; or 103

that is of such kind as may be prescribed." (emphasis added) [140] Further in Singapore there is an express provision of no contracting out of the Act and with that any clause which has the effect of restricting or prejudicing the operation of their Act may be struck down. Its section 36 reads as follows:

"No contracting out

The provisions of this Act shall have effect notwithstanding any provision to the contrary in any contract or agreement.

The following provisions in any contract or agreement (whether in writing or not) shall be void: a) a provision under which the operation of this Act or any part thereof is, or is purported to be, excluded, modified, restricted or in any way prejudiced, or that has the effect of excluding, modifying, restricting or prejudicing the operation of this Act or any part thereof; 104 b) a provision that may reasonably be construed as an attempt to deter a person from taking action under this Act.

The Minister may, for the purpose of subsection (2)

(a), prescribe the type of provisions in any contract or agreement, or any class thereof, which are deemed to have the effect of excluding, modifying, restricting or prejudicing the operation of this Act or any part thereof.

Nothing in this Act shall, except as provided in subsection (1), limit or otherwise affect the operation of any other law in relation to any right, title, interest, privilege, obligation or liability of a person arising under or by virtue of a contract or an agreement." (emphasis added) [141] One may say that the Singapore SOPA has the in-built mechanism to preserve on the one hand the freedom of contract and on the other hand the object of their SOPA in facilitating payments for construction work done. 105 [142] It cannot be denied that the party most affected when there is no regular and timely payments would be the contractors and subcontractors. It is not the Employer for it only needs to pay upon certification whereas the contractor would have to expend time and costs both in labour and material to build to any stages for the purpose of submitting a progress claim to be certified. Though it can be argued that CIPAA is designed for the overall benefit of the construction industry, it is undeniably to help contractors who are most painfully affected when they are not paid for work done or services rendered. They are the more vulnerable ones in the chain of construction and Parliament recognizes that they need protection under CIPAA. Generally it is the contractors who would be in a position to make a Payment Claim and not the Employer and that is because the Employer claim against a contractor would be more in the nature of a damages claim whether under LAD claim, rectification costs or additional costs incurred in engaging a new contractor. These are not Payment Claims under CIPAA but they may be set up as valid defences of set-off against a claimant's claim. [143] It is no comfort to say to a contractor that he no longer has cash flow problems because he does not have to incur more costs 106 in doing further works. The point is that he is already out of pocket for work done. He has to pay his workers, suppliers and bankers. Whilst much may be said about freedom of contract, it is precisely because of the anomalies and aberrations that have arisen that Parliament has intervened to address this undesirable state of affairs. [144] There is nothing preventing an unscrupulous Employer from terminating a contract just to skirt payments of amounts due for work done by the Contractor. Rightly or wrongly, the Contractor would have to vacate the site. Though it is true that the Employer would be exposed to a claim for damages for wrongful termination, the question is whether the Contractor has the financial endurance and resilience to pursue the claim which may not be due until final accounts is completed with the completion of the Project. If the Project is abandoned, the Contractor might have to wait a long while to sue and in the meanwhile it might not be able to pay its sub-contractors who have done the work and if they cannot wait to be paid, they might well wind up the Contractor. Being in liquidation brings in its wake many disabilities with respect to suing and recovering amounts due to it by debtors. 107 This is certainly the kind of domino-effect that CIPAA was designed to avoid. [145] I can appreciate that an Employer too would have its claim when the determination of the contractor's employment is validly done. However, many a time such a claim would not have crystallized yet at point of determination and is still subject to proof even in a case of an Employer's LAD claim because of section 75 Contracts Act 1950 as enunciated in the case of Selva Kumar a/l Murugiah v Thiagarajah a/l Retnasamy [1995] 1 MLJ 817. One does not know how long the contractor would have to wait if he can only claim after final accounts have been issued. The next contractor that is engaged to take over might also default and so the first contractor would have to wait longer still. While the Employer can wait for arbitration to resolve its claim, the contractor has no luxury of time and might well have to languish further inspite of the over-aching principle of the Legislature in facilitating cash flow which for the moment, does not seem to be flowing to him. [146] By no means am I suggesting that Malaysian Employers have a propensity to determine the employment of Contractors to avoid the provision of CIPAA. However clearly Parliament is at 108 liberty to take into consideration past experiences of wrongful termination by Employers and to tailor the Act to meet the problems often suffered by contractors at the receiving end of a wrongful determination of termination of the construction contract. [147] One thing must not be forgotten: that at the end of the day in all these debates into what is a conditional payment clause under section 35 CIPAA and whether Clause 25.4(d) PAM Contract is such a clause, it is a matter of interpreting the relevant clauses on why no payments need to be made and that clearly does not go towards jurisdiction of the Adjudicator. It is a mix finding of fact and law and this Court would not interfere even if the Adjudicator's interpretation is not one that this Court would agree. Whether there has been a breach of natural justice when the Adjudicator referred to case law authorities not cited by the parties [148] The Respondent complained that there has been a breach of natural justice as the Adjudicator had cited cases and made reliance on these decided cases of the courts not cited by either parties and more importantly, they had no opportunity to submit on. It was also contended that these case authorities related to material aspects of the Adjudication Decision in respect of the claim and set-off raised in the Adjudication. 109 [149] I agree with learned counsel for the Claimant that CIPAA gives vast powers to an Adjudicator with respect to how to determine a dispute before him. It provides under section 25 for the following: "25 The adjudicator shall have the powers to - ......

Draw on his own knowledge and expertise; .....

Inquisitorially take the initiative to ascertain the facts and the law required for the decision...." (emphasis added) [150] These powers confer upon the Adjudicator the right to draw upon his own experience, knowledge, initiative and industry to consider whatever legal propositions that may be relevant as supported by the cases decided by the courts in our jurisdiction or elsewhere. I do not see this as a breach of natural justice as the breach contemplated by section 15 CIPAA is a material one where the notion of fair play and right to be heard has been blatantly disregarded resulting in patent prejudice to the parties producing a perverse decision. 110 [151] The salutary words of Dyson J in Macob Civil Engineering Ltd v Morrison Construction Ltd [1999] 64 ConLR 1 are worthy of repetition lest we get entangled and ensnared in unnecessary technicalities that have come to characterize many a litigation and arbitration: "14. It will be seen at once that, if this argument is correct, it substantially undermines the effectiveness of the scheme for adjudication. The intention of Parliament in enacting the Act was plain. It was to introduce a speedy mechanism for settling disputes in construction contracts on a provisional interim basis, and requiring the decisions of adjudicators to be enforced pending the final determination of disputes by arbitration, litigation or agreement: see section 108(3) of the Act and paragraph 23 (2) of Part 1 of the Scheme. The timetable for adjudication’s is very tight (see section 108 of the Act). Many would say unreasonably tight, and likely to result in injustice. Parliament must be taken to have been aware of this. So far as procedure is concerned, the adjudicator is given a fairly free hand. It is true (but hardly surprising) that he is required to act impartially (section 108(2)(e) of the Act and paragraph 12 (a) of Part 1 of the Scheme). He is, however, permitted to take the initiative in ascertaining the 111 facts and the law (section 108(2)(f) of the Act and paragraph 13 of Part 1 of the Scheme). He may, therefore, conduct an entirely inquisitorial process, or he may, as in the present case, invite representations from the parties. It is clear that Parliament intended that the adjudication should be conducted in a manner which those familiar with the grinding detail of the traditional approach to the resolution of construction disputes apparently find difficult to accept. But Parliament has not abolished arbitration and litigation of construction disputes. It has merely introduced an intervening provisional stage in the dispute resolution process. Crucially, it has made it clear that decisions of adjudicators are binding and are to be complied with until the dispute is finally resolved." (emphasis added) [152] Likewise in Balfour Beatty Construction Ltd v Lambeth London Borough Council [2002] EHWC 597 (TCC), it was clarified that the standard applicable to Adjudicator's on the issue of fairness and impartiality and for that matter, natural justice is not the same degree as that required in arbitration or litigation: "29. Nevertheless, in my judgment, that which is applicable in arbitration is basically applicable to adjudication but, in determining whether a party has been treated fairly or in 112 determining whether an adjudicator has acted impartially, it is very necessary to bear in mind that the point or issue which is to be brought to the attention of the parties must be one of which is either decisive or of considerable potential importance to the outcome and not peripheral or irrelevant. It is now clear that the construction industry regards adjudication not simply as a staging post towards the final resolution of the dispute in arbitration or litigation but as having in itself considerable weight and impact that in practice goes beyond the legal requirement that the decision has for the time being to be observed. Lack of impartiality or of fairness in adjudication must be considered in that light. It has become all the more necessary that, within the rough nature of the process, decisions are still made in a basically fair manner so that the system itself continues to enjoy the confidence it now has apparently earned. The provisional nature of the decision also justifies ignoring non-material breaches. Such errors, if apparent (as they usually are), will be rectified in any negotiation and settlement based upon the decision. The consequence of material issues and points is that the dispute referred to adjudication will not have been resolved satisfactorily by any fundamental 113 standard and the chances of it providing the basis for a settlement are much less and the chances of it proceeding to arbitration or litigation are much greater. However the time limits, the nature of the process and the ultimately non-binding nature of the decision, all mean that the standard required in practice is not that which is expected of an arbitrator. Adjudication is closer to arbitration than an expert determination but it is not the same." (emphasis added) [153] Looking at the cases cited which the Respondent counsel said he had no opportunity to submit on and distinguish, I am more than satisfied that they do no more than set out basic propositions of law that the Adjudicator was relying on. They do not material affect the outcome of the decision. It would be as good as the cases have not been referred to at all. [154] I doubt even in an appeal, where the merits of a decision can be delved into, one would be able to succeed on the ground the trial judge had referred to cases not cited by the parties. That would be to discourage further research and initiative by the Judge especially when in some cases, research by counsel or the lack of it is so telling that the trial Judge could not wrote a proper speaking judgment of substance and coherence with 114 substantiating it with court decided cases, always of course within the disputes as set out in the pleadings. [155] This ground of breach of natural justice is therefore dismissed as being unmeritorious. Whether the Requirements of Section 16(1)(a) or (b) of CIPAA 202 are met for stay of the Adjudication Decision [156] The Respondent had applied for stay of the Adjudication Decision under section 16(1)(a) or (b) CIPAA. Alternatively, the Respondent shall deposit the Adjudicated Sum with the Director of KLRCA pursuant to section 16(2) CIPAA. [157] S. 16(1)(b) CIPAA provides that “A party may apply to the High Court for a stay of an adjudication decision in the following circumstances: b) the subject matter of the adjudication decision is pending final determination by arbitration or court.” [158] It was submitted by the Respondent that this requirement was met when the Claimant commenced arbitration proceedings by serving a Notice of Arbitration on the Respondent on 11.11.2015. [159] However the condition that there is a pending arbitration is only a threshold condition for the Court to consider stay. In 115 Subang Skypark Sdn Bhd v Arcradius Sdn Bhd [2015] MLJU 286, Justice Mary Lim J (now JCA) in deciding on whether to grant a stay of the Adjudication Decision under CIPAA, examined the cases in other jurisdictions namely; England, Singapore, New South Wales, Australia and found that the Malaysian context of CIPAA is no different. The Judge further held: “[27] Since the defendant has itself issued a notice of arbitration in which it has raised the very same matters that it had raised in the adjudication, sub-s 16(2) operates. That is not to say that simply because the dispute or subject matter of the adjudication decision is now in the arbitration mode regime, the grant of stay is automatic. It is not, let alone as of right or as a matter of course. Being in arbitration merely puts the plaintiff’s case as one within s 16 for consideration; or one which has crossed the threshold. The existence of concurrent proceedings merely prequalifies the plaintiff for this application. [28] At all times, the court retains the discretion as to whether or not to grant a stay and that is obvious from the language and terms of s 16. In fact, sub-s 16(2) vests the court with discretion whether to grant the stay sought; whether to order 116 the adjudicated amount or part of it to be deposited with the Director of KLRCA; or make any other order as the court thinks fit. Upon overcoming the threshold set in sub-s 16(1), the plaintiff still has to show how the discretion is to be exercised in its favour. ... [56] ...The purpose of the (CIPAA) Act is to ensure that successful claimants are paid and paid promptly even though the adjudication decisions are provisional in nature. The Defendant must pay the adjudicated sum failing which it is available to the successful claimant to consider the next appropriate course of action. Notwithstanding these provisions, the Court retains the power to grant stay of the enforcement of the adjudication decision. It does so in order to secure the ends of justice. [57] Therefore, to allow stay to be explored in any other circumstances may be argued to stymie the efforts of Parliament where payment disputes in construction contracts are concerned. It may even render the laudable benefits which the Act is intended to bring, illusory and unachievable. 117 [58] Here, the Court finds that the Plaintiff has simply not offered any reason, cogent or worthy of examination, to warrant a stay. As amply shown in case law from other jurisdictions, reasons must be offered. Each of those reasons will be examined. If those reasons pertain to the financial status of the Defendant as one of doubtful solvency or near insolvency, the Court still needs to examine why that may be the case. In our present case, the Plaintiff has not even offered those reasons for the Court’s consideration. Instead, it has offered evidence of its own financial status; that it is in the position to pay up.” (emphasis added) [160] Likewise in Bina Puri Construction Sdn Bhd v Hing Nyit Enterprise Sdn Bhd [2015] 1 LNS 305, Ravinthiran Paramaraguru J observed inter alia that “an application for stay of an Adjudication Decision under section 16 of CIPAA is sui generis. It must be considered against the scheme and purpose of CIPAA. The discretion under section 16 must not be exercised in the same manner as ordinary applications for stay of execution or stay of proceedings as it may defeat the objective of Parliament in promulgating CIPAA in the first place.” 118 [161] It would not be right to say that in the present case that a stay would not defeat the purpose of CIPAA as the Claimant has already been terminated and therefore would not need to expend further monies on the Project. Such an argument glosses over what is due to the Claimant for work already done and the practical reality that the Claimant has to pay its workers, suppliers, sub-contractors and financiers to name a few. Practically too one does not expect a Contractor worth its salt to have just one project on-going for his success, if not survival; he would have other projects afoot which would require cash flow as well. It is the construction industry as a whole that CIPAA is concerned with. [162] Learned counsel for the Respondent marshaled a vast array of reasons to show that it has a meritorious case on appeal. That I must say is not relevant for the purpose of a stay application for the obvious reason that if one's appeal is not meritorious, one should not even have contemplated and pursued an appeal. I can do no better than to draw from the wisdom of Justice Mary Lim J (now JCA) in Subang Skypark when she observed as follows: "[31] This court is of the view that the defendant should not be deprived of the very benefit of why it resorted to 119 adjudication in the first place; save if satisfactory reasons are present for a stay of that adjudication decision. [32] It is my further view that stay should only be granted in exceptional circumstances; and such circumstances must necessarily refer to the financial status of the other party. The merits of the case before the arbitration or the court; or even the chances of success in setting aside the adjudication decision are not relevant considerations. The grant of any stay must always weigh in the primary object of the CIPAA 2012; that it is to ensure a speedy resolution of a payment dispute; that it is to inject much needed cashflow into the contractual arrangements between parties that saw progressive payments of claims as the recognised and accepted way of doing business in construction contracts. It would be futile to encourage parties to resort to adjudication and then deprive a successful claimant of its claim by staying the access to the cash simply because there is another proceeding of the nature described in sub-s 16(1) which is pending. The whole concept of temporary finality would be lost and the object of the Act defeated if such was the consideration." (emphasis added) 120 [163] Nothing has been shown by the Respondent with respect to doubting the solvency of the Claimant or for being anxious of a near insolvency situation. Aspersions were cast on the Claimant's financial viability by the Respondent's reliance on a hearsay evidence of one Mr Goh Kok Kheng, an architect practising in Johor Bahru, who could vouch for the fact that the Claimant has difficulty paying its sub-contractors and suppliers on time. That is speculative and "clutching at straws". Surely more cogent and convincing proofs are necessary to further deprive of the Adjudicated Sum until the disposal of the Arbitration. [164] Who would not have such a problem, assuming that it be true, when kept out of a sum of RM8.2 million (Adjudicated Amount) since 2015? As was observed by Coulson J in Wimbledon Construction Company 2000 Ltd v Vago [2005] EWHC 1086 (TCC) at para 26: "(f) Even if the evidence of the claimant’s present financial position suggested that it is probable that it would be unable to repay the judgment sum when it fell due, that would not usually justify the grant of a stay if:

the claimant’s financial position is the same or similar to its financial position at the time that the 121 relevant contract was made (see Herschell Engineering Limited v Breen Property Limited); or

(ii) the claimant’s financial position is due, either wholly, or in significant part, to the defendant’s failure to pay those sums which were awarded by the adjudicator (see Absolute Rentals v Glencor Enterprises Limited, unreported 16th January 2000)." [165] I am satisfied that the contemporaneous documents before the Court demonstrated that the Claimant is in a reasonably healthy financial position inspite of being deprived of payments under the Payment Claims. Its audited account of 2015 showed a net asset of RM37 million. See Exhibit TZG 3 Enclosure 6 in the Claimant's Affidavit to oppose the setting aside. [166] The Respondent has also relied for its stay application, on the Singapore Court of Appeal decision in S A Shee & Co (Pte) Ltd v Kaki Bukit Industrial park Pte Ltd [2000] SGCA 7 where the Court held in paragraph 36 that: “Furthermore, the rationale for giving temporary finality to an interim certificate could no longer hold good when the contract had come to an end. The contractor would not be 122 carrying out any more work. So the need to minimise “cash flow problems” for the project no longer existed.” [167] The above case does not deal with the issue of a stay but rather with whether a summary judgment is not appropriate under circumstances where the party treating the contract as repudiated is entitled to withhold payment on interim certificate. I agree with learned counsel for the Claimant, Mr Gananathan, that it provides little assistance as a guide to the exercise of discretion under section 16 CIPAA. [168] The Respondent highlighted that this is not a case of the impecunious construction Contractor who has not been paid at all by the Employer. On the contrary, the Respondent has already paid to the Claimant a substantial amount of monies amounting to RM33,139,605.55 for Certificates 1 to 13. It needs only be said that the fact of previous payments for work already done is no justification for withholding payments for work subsequently done. It matters not that the Claimant has been previously paid for the previous interim certificates. It certainly cannot be a case where "if I have been generous and a good paymaster in the past, you must extend some grace to me in the present". 123 [169] The fact that the Respondent/Employer is financially capable to pay and secure the Adjudicated Sum, if required by this Court, is no justification for not paying the Claimant the Adjudicated Sum. [170] I find no real justification to grant either unconditional stay or a stay subject to terms of the Adjudication Decision bearing in mind the overarching purpose of CIPAA which is to facilitate cash flow in the construction industry and to give effect to an Adjudication Decision unless it is overtaken and superseded by an Arbitral Award or a Judgment of the Court after litigation. Pronouncement [171] In the upshot I would dismiss the application to set aside the Adjudication Decision and the other prayers in the said OS and allow the application in the OS to enforce the Adjudication Decision with a single costs of RM20,000.00 and allocator to be paid before order of costs is extracted. The payment of the Judgment Sum is to be made before the expiry of 14 days from today. [172] The Respondent/Employer's application for stay of the Adjudication Decision under section 16(1)(b) CIPAA is also 124 dismissed as there is no valid ground to grant stay. It has not been shown that the Respondent can reasonably conclude that they would not be able to get the payment back in the event they should succeed in arbitration. Dated: 24 February 2017. - sgd - Y.A. LEE SWEE SENG Judge Construction Court Kuala Lumpur For the Plaintiff in : Ivan Loo together with OS WA-24C-57-07/2016 : Shannon Rajan and and for the Defendant in : Tatvaruban Subramaniam OS WA-24C-82-08/2016 : (Messrs Skrine) For the Plaintiff in : P Gananathan and Ng Yee Chien OS WA-24C-82-08/2016 (Messrs Gananathan Loh) and for the Defendant in OS WA-24C-57-07/2016 Date of Decision: 17 November 2016.