Ancubic Construction Sdn Bhd v Cedy Third Contracting and Trading (M) Sdn Bhd (WA-24C-157-08/2022)

the application by Ancubic Construction Sdn Bhd (‘Ancubic’)

the application by CEDY Third Contracting And Trading (M) Sdn Bhd (‘CEDY’) pursuant to s 28 of the CIPAA in O.S. No. WA- 24C-164-08/2022 (‘O.S. No. 164’) to enforce the AD (encl. 1; ‘Enforcement Application’). [2] After having given due consideration to the cause papers and the oral and written submissions by the parties, the Court had, on 11.4.2023, dismissed the Setting Aside and Stay Application with costs of RM10,000.00 and allowed the Enforcement Application with costs of RM5,000.00. Both orders as to cost are subject to allocatur. [3] The full grounds for the decision are set out in the succeeding part of this judgment. The Cause Papers [4] The cause papers for each application are as follows: S/N aidlGWrSyUi487/km575jg

Ancubic’s O.S. dated 12.8.2022 (encl. 1);

Ancubic’s Affidavit In Support (‘AIS’) affirmed by its Director, You Ooi Keen on 12.8.2022 (encls. 2 - 7);

CEDY’s Affidavit In Reply (‘AIR’) affirmed by its Operations Manager, Ee Chin Fatt on 23.9.2022 (encl. 9);

Ancubic’s AIR affirmed by the same deponent on 7.10.2022 (encl. 11); and

Ancubic’s Notice of Intention to Use Affidavit (encls. 2, 3 and 4 in O.S. 164) dated 8.11.2022 (encl. 12); and

CEDY’s Notice of Intention to Use Affidavit (encls. 2 and 4 in O.S. 164) dated 12.1.2023 (encl. 13). S/N aidlGWrSyUi487/km575jg

CEDY’s O.S. dated 26.8.2022 (encl. 1);

CEDY’s AIS affirmed by the same deponent on 26.8.2022 (encl. 2);

Ancubic’s AIR affirmed by the same deponent on 19.9.2022 (encl. 3);

CEDY’s AIR affirmed by the same deponent on 3.10.2022 (encl. 4);

Ancubic’s Notice of Intention to use Affidavit (encls. 2, 9 & 11 in O.S. 157) dated 8.11.2022 (encl. 5); and

CEDY’s Notice of Intention to use Affidavit (encls. 1 & 9 in O.S. 157) dated 12.1.2023 (encl. 13). S/N aidlGWrSyUi487/km575jg Background Facts [5] Ancubic is a private limited company incorporated in Malaysia with a registered address at 24A, Jalan 21/19, SEA Park, Petaling Jaya, 46300 Selangor and business address at A-1-28, IOI Boulevard, Jalan Kenari 5, Bandar Puchong Jaya, 47170 Puchong, Selangor. [6] CEDY is also a private limited company incorporated under the laws of Malaysia and having its registered address at 31A, Jalan Impian Emas Enam, Taman Impian Emas, Skudai, 81300 Johor and business address at 73 & 73A, Jalan Eko Botani 3/7, Taman Eko Botani, 79100 Iskandar Puteri, Johor. [7] By a Letter of Appointment & Acceptance of Nominated Sub-Contractor (‘NSC’) dated 18.7.2019 (‘LoA’), Ancubic appointed CEDY as its NSC for building works (‘Works’) in relation to a project known as “CADANGAN PEMBANGUNAN 2 BLOK PANGSAPURI SUITES 39 TINGKAT (1,161 UNIT) YANG MELIBATKAN:- FASA 1 a) 1 BLOK PANGSAPURI SUITS 30 TINGKAT (582 UNIT) S/N aidlGWrSyUi487/km575jg b) 8 TINGKAT PODIUM YANG MENGANDUNGI:- 1) 7 TINGKAT TEMPAT LETAK KERETA – ARAS 1 – ARAS 7 2) 1 TINGKAT TEMPAT LETAK KERETA BERSERTA 1 UNIT RUANG PERNIAGAAN DAN 3 UNIT PEJABAT – ARAS TANAH 3) 1 TINGKAT TEMPAT KERETA BERSERTA 5 UNIT RUANG PERNIAGAAN – ARAS BAWAH TANAH 1 4) 1 TINGKAT TEMPAT LETAK KERETA 2 BERSERTA 1 UNIT RUANG PERNIAGAAN – ARAS BAWAH TANAH 2 c) KEMUDAHAN PENDUDUK, 1 UNIT PENCAWANG ELEKTRIK DAN 1 UNIT PENGUMPULAN SAMPAH FASA 2 a) 1 BLOK PANGSAPURI SUITES 30 TINGKAT (579 UNIT) DI ATAS LOT 5598, JALAN 2/112C, MUKIM KUALA LUMPUR, DAERAH KUALA LUMPUR, WILAYAH PERSEKUTUAN KUALA LUMPUR UNTUK TETUAN ANCUBIC CAPITAL SDN BHD” (‘Project’) for the lump sum of RM191,853.888.00 (‘Sub-Contract Sum’). S/N aidlGWrSyUi487/km575jg [8] By Clause 5.1 of the LoA, the parties agreed to adopt the Agreement and Conditions of PAM Sub-Contract 2006 (For Use Where The Sub-Contractor Is Nominated Under The PAM Contract 2006) with the exception of those clauses in the PAM Sub-Contract 2006 which are overridden by the terms and conditions of the LoA. [9]

certified works done in accordance with Interim Certificate No. 23 dated 22.10.2021 in the sum of RM9,369,086.24; S/N aidlGWrSyUi487/km575jg

final site valuation for works done for the period ending 1.11.2021 issued by Ancubic on 19.11.2021 in respect of Progress Claim No. 24 amounting to RM10,832,610.00; and

the return of the security deposit in the form of a performance bond by CEDY to Ancubic on 10.1.2020 in the sum of RM1,000,000.00. [12] Ancubic did not serve a Payment Response but it issued a letter dated 29.1.2022 to CEDY stating that it does not recognise the purported Payment Claim as being a “payment claim” under s 5 CIPAA and hence, no response is merited or required. [13] This was followed with the issuance or submission of –

CEDY’s Notice of Adjudication dated 7.2.2022;

Ancubic’s solicitors’ letter dated 23.2.2022 reiterating that there is no valid “payment claim” and taking the position that the Notice of Adjudication being premised on a defective Payment Claim, S/N aidlGWrSyUi487/km575jg did not confer proper jurisdiction upon any adjudicator to be appointed. Another letter to the same effect and elaborating the reasons for the position taken was sent by Ancubic’s solicitors to the Adjudicator on 9.3.2022 to which the Adjudicator replied on 11.3.2022 that, unless there is an order for a stay of the adjudication proceedings, he intends to proceed to indicate his acceptance and terms of appointment. The Notice of Acceptance was duly issued on 14.3.2022;

CEDY’s request to the Director of the Asian International Arbitration Centre (‘AIAC’) to appoint an adjudicator dated 24.2.2022; (RM9,369,086.24), value of Works done pursuant to Final Account (RM8,832,610.00), the reversal of additional retention sum (RM2,000,000.00) and the release of security deposit (RM1,000,000.00); S/N aidlGWrSyUi487/km575jg

Ancubic’s Adjudication Response dated 11.4.2022;

CEDY’s Adjudication Reply dated 18.4.2022; BIM Concepts Sdn Bhd had replied on 25.4.2022. Another response from Ancubic’s solicitors ensued on 25.4.2022 and on the same date, the Adjudicator sent an e-mail granting Ancubic’s request;

CEDY’s Reply to Ancubic’s Further Reply dated 6.5.2022 (‘CEDY’s Reply’);

the Adjudicator’s e-mail dated 5.6.2022 requesting the parties to address the issue as to whether he has jurisdiction to deal with the claim for RM1,000,000.00 security deposit; and S/N aidlGWrSyUi487/km575jg Submission 2’). [14] The Adjudicator delivered the AD by a letter to the parties dated 1.8.2022 in which he determined that – “a) the Respondent shall pay to the Claimant the sum of RM5,262,086.24; b) the Respondent shall pay to the Claimant simple interest on the sum of RM5,262,086.24 at the rate of 5% per annum from 5.1.2022 until the date of this decision; c) the Respondent shall pay the sum of RM5,262,086.24 together with the interest above within 14 days from the date of this decision and thereafter shall pay simple interest on the said sum at the rate of 5% per annum from the date of this decision until the date of payment; d) the Respondent shall within 14 days from the date of this decision pay to the Claimant the Claimant's costs in the sum of RM30,689.00; S/N aidlGWrSyUi487/km575jg e) the Respondent shall pay and bear the adjudicator's fees and expenses in the sum of RM51,258.20 and AIAC's administrative fees and tax in the sum of RM10,600.00 and to the extent that the Claimant has paid any part thereof, the Respondent shall within 14 days from the date of this decision reimburse the Claimant with that amount paid; and f) the Respondent shall pay the sums above by way of bankers cheque or bank transfer.”. I. O.S. No. 157: The Setting Aside and Stay Application - The Setting Aside Application [15] Ancubic has applied to set aside the AD on the grounds there has been a denial of natural justice and the Adjudicator has acted in excess of his jurisdiction. [16] Each of the grounds relied upon by Ancubic is examined in turn below starting with three issues on the alleged excess of jurisdiction on the part of the Adjudicator. S/N aidlGWrSyUi487/km575jg 1st Issue: Whether the Payment Claim is invalid for non-compliance with sub-s 5(2) CIPAA? [17] According to Ancubic, the Payment Claim is invalid as it did not comply with the express and mandatory requirements of sub-s 5(2) CIPAA as there is failure to include –

the amount claimed and the due date for payment of the amount claimed as required under para 5(2)(a); and

the details to identify the cause of action including the provision in the construction contract to which the payment relates as required under para 5(2)(b). [18] Specifically, Ancubic submitted with regards to –

the amount claimed and the due date for payment that in para 6 of the Payment Claim, CEDY claimed for the following: S/N aidlGWrSyUi487/km575jg “Your Architect has issued Interim Certificate Nos. 1 to 23 certifying total work done to the sum of RM49,426,010,54 after retention sum for our claim of work done ending 25 September 2021 and we received only RM 40,056,924.30 in the form of payment of RM31,311,510.98, direct payment to our subcontractor of RM3,722,954.47 and debit note of RM5,022,458.85 only towards the certificates. As the last certificate no. 23 was dated 22 October 2021, you have therefore failed, neglected and/or refused to make payment of the certified sum of RM9,369,086.24 on 6 December 2021.”. Ancubic’s complaint was that CEDY did not provide any breakdown on the part of Interim Certificates Nos. 1 to 23 which has been paid and the part which has not. Ancubic highlighted that this is important because any claim under payment certificates must necessarily be based on the unpaid portion under the payment certificates and each payment certificate has a different due date. By making a general statement that Ancubic has “failed, neglected and/or refused to make payment of the certified sum of RM9,369,086.24 on 6 December 2021”, the claim for unpaid certified works in para 6 of the Payment Claim S/N aidlGWrSyUi487/km575jg could not be considered as part of a valid payment claim in compliance with s 5 CIPAA as the 23 Interim Certificates in question would all have different due dates for the payment of different amounts; and

the cause of action that –

in para 4 of the Payment Claim, CEDY stated that vide Ancubic’s letter dated 15.1.2021, the terms of the LoA have been varied whereby, inter alia, the period of honouring certificates shall be 45 days from the date of the Architect’s payment certificate. Ancubic contended that this does not show any “breach” or “cause of action” as no reference was made to the actual dates of the Interim Payment Certificates and the amount of non-payment in respect of each Interim Certificate after the due date for payment has lapsed;

(ii) in para 7 of the Payment Claim, CEDY claimed for the following: S/N aidlGWrSyUi487/km575jg “By your letter ref: … dated 1 November 2021, the Contract has been terminated by you due to the alleged defaults which we had already denied earlier. Subsequently, you have given us a computation of final account vide your letter ref: … dated 21 December 2021 showing an estimate amount of final site valuation for work done period ending 1 November 2021 in respect of our Progress Claim No. 24 (the "final site valuation") amounting to RM 10,832,610.00 inclusive of the release of the 10% up to limit of 5% retention sum. You have then proceeded to include unjust and improper deduction in a total of RM 16,958,532.70 in the same final account. As the Contract has been terminated by you unlawfully on 1 November 2021, you are not entitled to withhold any sum and/or deduct any sum under the Contract. As the final site valuation was issued on 19 November 2021, the last due date for payment of RM 10,832,610.00 for work done under the final site valuation falls on 4 January 2022.”. Ancubic argued that the above quoted para does not refer to any contractual provision or other basis to demonstrate a cause of action for the claim; and S/N aidlGWrSyUi487/km575jg

(iii) in para 8 of the Payment Claim, CEDY alleged that: “In addition, you have also failed, neglected and/or refused to return us the bank draft being the security deposit of the sum of RM1,000,000.00 million after we had submitted to you the performance bond on 10 January 2020 as stated in Paragraph 5.5 of the LOA.”

27.

Subject to subsection (2), the adjudicator's jurisdiction in relation to any dispute is limited to the matter referred to adjudication by the parties pursuant to sections 5 and 6.

The parties to adjudication may at any time by agreement in writing extend the jurisdiction of the adjudicator to decide on any other matter not referred to the adjudicator pursuant to sections 5 and 6. S/N aidlGWrSyUi487/km575jg

Notwithstanding a jurisdictional challenge, the adjudicator may in his discretion proceed and complete the adjudication proceedings without prejudice to the rights of any party to apply to set aside the adjudication decision under section 15 or to oppose the application to enforce the adjudication decision under subsection 28(1).”. [21] No further consideration of sub-s 27(2) CIPAA is required as this is not a case where the parties have agreed in writing to extend the jurisdiction of the Adjudicator. [22] With regards to sub-s 27(1) CIPAA, s 5 CIPAA provides that: “Payment claim 5.

An unpaid party may serve a payment claim on a non-paying party for payment pursuant to a construction contract.

The payment claim shall be in writing and shall include ‒

the amount claimed and due date for payment of the amount claimed; S/N aidlGWrSyUi487/km575jg

details to identify the cause of action including the provision in the construction contract to which the payment relates;

description of the work or services to which the payment relates; and

a statement that it is made under this Act.”. [23] The arguments raised by Ancubic in the instant application in alleging that the Payment Claim is invalid, and the cases cited in support of the same, have been ventilated before the Adjudicator. The Adjudicator dealt with the jurisdictional issues in paras 19 to 27 of the AD where he expressed the view that the courts have held that, although compliance with sub-s 5(2) CIPAA is strict and mandatory, 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 the statutory provision. The Adjudicator found that the Payment Claim has met the requirements of sub-s 5(2) CIPAA as it has sufficiently included the amounts claimed and the due dates for payment as well as sufficient details to identify the cause of S/N aidlGWrSyUi487/km575jg action in respect of the certified works done, final valuation of work done and the refund of the security deposit. [24] Although the Adjudicator has made a finding on his own jurisdiction, it is well-established that his decision is not binding on this Court and nor is it conclusive in any way (see Giatreka’s case (supra), EA Technique

(M) Sdn Bhd v Malaysia Marine and Heavy Engineering Sdn Bhd and another case [2020] 11 MLJ 353, Bina Puri Sdn Bhd v TKL Oil & Gas Sdn Bhd [2020] 9 MLJ 119 and Wabina Constructions & Engineering Sdn Bhd v Fulloop Sdn Bhd and other cases [2022] MLJU 2744). [25] During the hearing, when asked about the type of jurisdiction which is relevant here (see Terminal Perintis (supra) and View Esteem Sdn Bhd v Bina Puri Holdings Bhd [2018] 2 MLJ 22), Ancubic’s counsel replied that it is a total lack of jurisdiction in the sense that the Adjudicator is not clothed with any jurisdiction to enable him to adjudicate on the matter and any decision made by him would have to be set aside. [26] However, upon further consideration of Ancubic’s contentions, it is evident that the type of jurisdiction which is operative here is S/N aidlGWrSyUi487/km575jg competency jurisdiction as the validity of the Payment Claim is being challenged akin to SKS Pavillion (supra), Terminal Perintis (supra), and Tecnicas Reunidas Malaysia Sdn Bhd v. Petrovietnam Engineering Consultancy JSC (PVE) & other cases [2021] MLRHU

[27] In so far as Ancubic’s grouses with paras 7 and 8 of the Payment Claim are concerned –

the Adjudicator found that the claim for final valuation of work done in the sum of RM10,832,610.00 is premature and that when the Payment Claim was issued on 14.1.2022, CEDY was not an “unpaid party” and Ancubic was not a “non-paying party” under the CIPAA. The Adjudicator accordingly concluded that he has no jurisdiction on this claim; and

in oral submission, Ancubic’s counsel conceded that the claim for the refund of security deposit is moot as the Adjudicator had found that he has no jurisdiction on this claim. The Adjudicator had referred to the case of China Railway No 5 Engineering S/N aidlGWrSyUi487/km575jg Group Co Ltd Singapore Branch v Zhao Yang Geotechnic Pte Ltd [2019] SGHC 130 which held that a claim for the proceeds of a performance bond which is issued as security is not a claim for work done for the purposes of adjudication and hence, CEDY’s claim for security deposit is not a claim for payment for work done under the CIPAA (see para 47 AD). [28] In the circumstances, the only grounds which merit consideration by this Court relate to the issues raised by Ancubic with reference to paras 4 and 6 of the Payment Claim. Nevertheless, in the analysis to follow, I have alluded to para 7 of the Payment Claim as well. [29] In submitting for CEDY, Mr. KH Chan drew the attention of this Court to the fact that CEDY had, in para 8 of the Adjudication Reply, re-produced the Payment Claim and highlighted the parts therein where, among others, the provision of the agreement which the payment relates was stated, the cause of action was identified, and the amount claimed and the due date for payment were stated. S/N aidlGWrSyUi487/km575jg [30] The learned counsel further relied on the following excerpt from the decision in Econpile (M) Sdn Bhd v. ASM Development (KL) Sdn Bhd [2020] MLRHU 899 to support the proposition that the payment due date for each progress claim and a breakdown of the claim do not need to be specified as long as the basic and essential information as to the payment amount claimed and the due date for payment are provided: “[49] Lim Chong Fong J in Ann Joo Integrated Steel (supra) echoed the views of the Court in Terminal Perintis when His Lordship held that there is procedural flexibility in the way that claims and defences are presented in adjudication proceedings and thus, within limit of procedural fairness, the parties are not strictly bound by their presentation unlike that of pleadings in civil litigation. [50] In Progressive Builders Pte Ltd (supra), the Singapore High Court had to consider the question as to whether progress claim 13 for the month of July 2014 in respect of a housing project at Punggol West failed to comply with s 10(3)(a) of the Building and Construction Industry Industry Security of Payment Act (Cap 30B, 2006 Rev Ed) which provides that “A payment claim - (a) shall state the claimed amount, calculated by reference to the period to which the payment claim relates...”. At p 703 of the law reports, Lee Seiu S/N aidlGWrSyUi487/km575jg Kin J referred to cases such as Shin Khai Construction Pte Ltd v. FL Wong Construction Pte Ltd [2013] SGHCR 4; APH Pte Ltd v. API Co Ltd [2013] SGSOP 18; Multiplex Constructions Pty Ltd v. Luikens [2003] NSWSC 1140 and Protectavale Pty Ltd v. K2K Pty Ltd [2008] FCA 1248 in concluding that the standard of compliance required by s 10(3)(a) of the Act is not an onerous one and a payment claim will only be invalidated where the failure to comply with that provision impeded the adjudication process. His Lordship was also of the view that an excessive technical approach should not be countenanced under the Act which is characterised by speed and informality. Moreover, from the payment certificate in question, the plaintiff knew exactly what the defendant was claiming for. Under these circumstances, the Court held that there was compliance with the statutory provision and alternatively, if there was any non-compliance, that did not suffice to render the payment claim invalid. [51] As for the final case cited by Econpile, namely George Developments Limited (supra), the Court of Appeal of New Zealand in dealing with the meaning of “payment claims” as defined in s 20 of the Construction Contracts Act 2002 and whether there was compliance with s 20(2)(c) and (e) that the payment claim must “identify the construction work and the relevant period to which the progress payment relates” and S/N aidlGWrSyUi487/km575jg “indicate the manner in which the payee calculated the claimed amount”, respectively, took the approach that “[41] ... the necessary analysis must be undertaken with the purpose of the Act in mind. ... [43] ... technical quibbles should not be allowed to vitiate a payment claim that substantively complies with the requirements of the Act ... and needs to be weighed alongside the “technocratic” interpretation advanced by George.”. … [52] In view of the above mentioned authorities, the learned Adjudicator cannot be faulted in preferring to accept the common sense and practical approach as advocated by Econpile, as opposed to the overly technical method as advanced by ASM, in determining whether the requirement as to the due date for payment in para 5(2)(a) CIPAA has been fulfilled or otherwise.”. (emphasis added). [31] In my considered view, the details in the Payment Claim in this case, namely –

at para 4, the relevant provision to which the payment relates i.e., para 3 of the letter dated 15.11.2021 which states the period of S/N aidlGWrSyUi487/km575jg honouring certificates shall be 45 days from the date of the

at paras 6 and 7 where the respective cause of action i.e., the works done under Interim Certificates Nos. 1 to 23 and final account dated 21.12.2021 issued by Ancubic; the respective claimed amount of RM9,369,086.24 and RM10,832,610.00; and the respective due dates for payment i.e. 6.12.2021 and 4.1.2022, are sufficient to provide basic information regarding the payment amount claimed and its due date to the extent that a reasonable person in Ancubic’s position would be able to understand the claim made therein which is said to be due and payable based on the particulars provided in the Payment Claim. This is despite Ancubic’s protestations to the contrary as reflected in its solicitors’ letter dated 9.3.2022, particularly in subpara 3.4(b), being the first time that Ancubic has explained its reason in alleging that the Payment Claim is not a “payment claim” within the meaning of s 5 CIPAA as there is a S/N aidlGWrSyUi487/km575jg purported failure to comply with the requirement under para 5(2)(b) CIPAA. The “reasonable person” test is to be applied objectively. [32] It is notable that, akin to the facts in Terminal Perintis (supra) and Econpile (supra), CEDY too had prepared the Payment Claim on its own and without the benefit of any legal representation. Furthermore, a perusal of the Adjudication Response and the AD reveals that –

the fact that the value of works done as certified in the Interim Certificates up to Certificate No. 23 is RM49,426,010.54 was admitted by Ancubic (para 38 Adjudication Response) and accepted by the Adjudicator (para 30 AD); and

even though Ancubic asserted that it does not know how CEDY arrived at the sum of RM40,056,924.30 as the amount which has been paid (paras 41 Adjudication Response), the Adjudicator ultimately accepted Ancubic’s version that it has made payment of RM43,656,924.30 up to Payment Certificate No. 21 (para 33 AD). This then led the Adjudicator to conclude that RM5,769,086.24 is the sum which is outstanding to be paid to S/N aidlGWrSyUi487/km575jg CEDY, subject to the set offs and deductions as claimed by Ancubic. This goes to show that there is sufficient basic information in the Payment Claim to enable Ancubic to understand, and to respond to, CEDY’s claim. [33] In sum, this Court is inclined to agree with CEDY that the Payment Claim is a valid “payment claim” under s 5 CIPAA whereby the requirements in paras (2)(a) and (b) of the provision have been established. Hence, the Adjudicator did not exceed his jurisdiction when he proceeded to adjudicate on the matters as raised in paras 4, 6 and 7 of the Payment Claim. 2nd Issue: Whether the AD is void as it was issued beyond the time frame provided under para 12(2)(a) CIPAA [34] Sub-ss 12(2), 12(3), 19(5) and 19(6) CIPAA are relevant to a discussion of this issue and these are re-produced below for ease of reference: S/N aidlGWrSyUi487/km575jg “12. Adjudication and decision …

Subject to subsection 19(5), the adjudicator shall decide the dispute and deliver the adjudication decision within ‒

forty-five working days from the service of the adjudication response or reply to the adjudication response, whichever is later;

forty-five working days from the expiry of the period prescribed for the service of the adjudication response if no adjudication response is received; or

such further time as agreed to by the parties.

An adjudication decision which is not made within the period specified in subsection (2) is void.” “19. Adjudicator's fees and expenses, etc. … S/N aidlGWrSyUi487/km575jg

Before releasing the adjudication decision to the parties, the adjudicator may require full payment of the fees and expenses to be deposited with the Director of the KLRCA.

An adjudicator is not entitled to any fees or expenses relating to the adjudication if the adjudicator fails to decide the dispute within the period specified under subsection 12(2) except when the delay in the delivery of the decision is due to the failure of the parties to deposit the full payment of the adjudicator's fees and expenses with the Director of the KLRCA under subsection (5).”. [35] The following facts are undisputed:

there is no agreement by the parties to extend time under para 12(2)(c) ClPAA;

CEDY had paid its half-share of the deposit on 15.3.2022;

the Adjudication Reply was served on 18.4.2022 and the AD is dated 20.6.2022, which is 41 working days after the date of service of the Adjudication Reply; S/N aidlGWrSyUi487/km575jg

on 20.6.2022, the Adjudicator had written to the parties to give notice for withholding of the release of the AD until the sum of RM64,000.00 representing the estimate of the Adjudicator’s fees and expenses, the AIAC administrative fee and any taxes as may be imposed by the Government is deposited with the Director of AIAC. This letter is essentially Form 14 of the CIPAA;

on 28.6.2022, the AIAC sent an e-mail requesting CEDY to remit Ancubic’s half-share of the deposit on an urgent basis to which CEDY acceded on 20.7.2022. The AIAC confirmed receipt of the same on 28.7.2022; and

the AD was delivered to the parties vide e-mail dated 1.8.2022. [36] Ancubic vehemently argued that the Adjudicator has acted in excess of jurisdiction when he issued the AD beyond the stipulated time frame. It was submitted on the authority of Skyworld Development Sdn Bhd v Zalam Corp Sdn Bhd and other appeals [2019] MLJU 162 and MRCB Builders Sdn Bhd v SMM Resources Sdn Bhd and another case [2021] MLJU 1455 that, as a specific time frame is prescribed under the S/N aidlGWrSyUi487/km575jg CIPAA for the delivery of the adjudication decision, the Adjudicator’s jurisdiction and power to issue and deliver the AD is only exercisable within that time frame and ceases at the expiry of that time period. Failure to do so would render the AD as void. [37] In para 13 of the AIS, Ancubic averred that the Adjudicator had not deposited the AD with AIAC to demonstrate that the AD had in fact been made. [38] Mr. HM Ooi submitted for Ancubic that AIAC CIPAA Circular 08 requires an adjudicator to deposit one copy of the adjudication decision with AIAC apart from issuing the notice to withhold the release of the adjudication decision pending payment of deposits under sub-ss 19(5) and (6) CIPAA. It was contended that –

sub-s 19(5) CIPAA does not obviate the requirement under sub-s 12(2) CIPAA for the adjudicator to decide the dispute and deliver the adjudication decision within the 45 working day period; and S/N aidlGWrSyUi487/km575jg

the date of the deposit of the AD with AIAC must necessarily constitute the evidence required to show that the AD was, as a matter of fact, made i.e., decided and delivered, under sub-s 12(3) CIPAA, within the time prescribed in sub-s 12(2) CIPAA. [39] Based on Ancubic’s submission in this Court, the question which arises is thus whether, apart from issuing the Form 14 Notice, the Adjudicator is required to deliver the AD to the AIAC to signify that the AD has been made within the time prescribed in sub-s 12(2) CIPAA? [40] Ancubic takes the position that, as there is no evidence to show that the Adjudicator had deposited the AD with AIAC on 20.6.2022, which is the 41st working day from the service of the Adjudication Reply on 18.4.2022 or at any time within four working days thereafter i.e. up to 24.6.2022 as required under para 12(2)(a) CIPAA, the Adjudicator therefore had no jurisdiction to “make” the AD, when he did, on 1.8.2022. S/N aidlGWrSyUi487/km575jg [41] AIAC had, pursuant to s 32(d) CIPAA issued CIPAA Circular 08 dated 1.12.2020 where AIAC had clarified the procedure in relation to sub-ss 19(5) and (6) CIPAA as follows: “3) Section 19(5) and (6) of the CIPAA – Withholding Release of Adjudication Decision In the event the deposits are not paid in full, it is in the Adjudicator’s discretion to withhold the release of the Adjudication Decision to the Parties. Should the Adjudicator choose this course of action, the Adjudicator is to deposit one (1) copy of the Adjudication Decision to the AIAC only, and issue the necessary notice to withhold (i.e., Form 14) to the AIAC and the Parties. The Adjudication Decision will only be released to the Parties upon remittance of the full deposits payable.”. [42] At the hearing, Mr. HM Ooi concedes that AIAC CIPAA Circular 08 does not have the force of law, however, the learned counsel submitted that if the Adjudicator chose to withhold the AD, he must deposit one copy of the AD to the AIAC to signify that he has made the decision within the prescribed period and it is only the release of the AD that is being held back pursuant to sub-s 19(5) CIPAA. S/N aidlGWrSyUi487/km575jg [43] In MRCB Builders Sdn Bhd v SMM Resources Sdn Bhd and another case [2021] MLJU 1795, MRCB Builders Sdn Bhd posited that the AIAC Adjudication Rules and Procedure is subsidiary legislation made pursuant to ss 32 and 33 of the CIPAA and hence, any breach thereof is material that affects the sanctity of the adjudication decision or that as a result of the breach, the adjudication decision must be construed to have been delivered out of time. In the course of his analysis, Lim Chong Fong J (now JCA) said: “[38] Todate, there are the following regulations, orders, rules and circulars made pursuant to the CIPAA:

Construction Industry Payment &

(ii) Construction Industry Payment & Adjudication (Exemption Order) 2014;

(iii) Asian International Arbitration Centre (AIAC) Adjudication Rules & Procedure (the ARP is issue here);

(iv) Asian International Arbitration Centre (AIAC) Circulars 1A, 02, 03, 04, 05 and 06; and

Guide to CIPAA 2012. However, only items (i) and (ii) have been gazetted and accordingly operational. S/N aidlGWrSyUi487/km575jg [39] Consequently, I surmise that subsidiary legal instruments made pursuant to the CIPAA are legislative if they have been made by the Works Minister pursuant to s. 39 of the CIPAA and thereafter gazetted and commenced as provided in ss. 18 and 19 of the IA. It follows that the other instruments particularly those issued by AIAC are administrative; see Wrp Asia Pacific Sdn Bhd v NS Bluescope Lysaght Malaysia Sdn Bhd [2015] MLJU 1125 and/or advisory only. The precise legal status of these other instruments vis a vis the parties is debatable particularly whether they are instead contractual in nature when adopted during the adjudication proceedings; see The Legal Relationship between the Parties and the Arbitral Institutions eltelawjournal 2013 1 in relation to arbitral proceedings. [40] In the absence of the force of subsidiary legislation, I therefore find and hold that the non compliance of the ARP by the Adjudicator (if any) is not fatal to the Decision in any way.” (emphasis added). [44] After giving careful consideration to the respective contentions of the parties, in my opinion, the AIAC CIPAA Circular 08 is merely administrative in nature and in the absence of an express provision in the CIPAA itself, I am not prepared to elevate the advice given to S/N aidlGWrSyUi487/km575jg adjudicators to deposit one copy of the adjudication decision to the AIAC in the event that an adjudicator elects to withhold the same, into a mandatory requirement in all cases. [45] This Court appreciates the distinction drawn by the learned counsel for Ancubic between the making of an adjudication decision and the release of the same to the parties in an adjudication, however, no compelling reasons were advanced by Ancubic for the Court to doubt the truth of the Adjudicator’s statement in his letter dated 20.6.2022 that the AD has been completed and is ready to be delivered to the parties. Whilst the act of depositing one copy of the adjudication decision to the AIAC in the circumstances of this case may be good practice as proof that the adjudication decision has indeed been completed or made, this does not necessarily mean that when no such depositing is made, the adjudication decision must be held to have been made beyond the time frame provided under para 12(2)(a) CIPAA and thus rendering the adjudication decision as void. [46] In the absence of solid evidence to the contrary, the parties and the court should have faith in the integrity of an adjudicator when he or she S/N aidlGWrSyUi487/km575jg says that the adjudication decision is ready for delivery to the parties, but the only matter which is holding back the release of the same is the non-payment of the adjudicator’s fees and expenses to the Director of AIAC as security in advance. The decision whether adjudicators should be made to deposit one copy of the adjudication decision to the AIAC in the “withholding of the adjudication decision scenario” by an express statutory requirement to that effect is one for the policy makers to make and until then, this Court is compelled to find and hold that the delivery of the AD on 1.8.2022 in this case was well within the time prescribed in sub-s 12(2) read with sub-s 19(5) of the CIPAA. 3rd Issue: Whether the appointment of the Adjudicator is invalid as Form 5 was not signed [47] In subpara 12.1 of the AIS, apart from affirming that the Payment Claim was not in compliance with s 5 CIPAA, Ancubic averred that the appointment of the Adjudicator was incompetent. Ancubic adopted and repeated paras 9 to 43 of the Adjudication Response. S/N aidlGWrSyUi487/km575jg [48] The Adjudicator had dealt with the issue raised by Ancubic that the Request to the Director of KLRCA to appoint an adjudicator was not signed by BIM Concepts Sdn Bhd as CEDY’s representative and is therefore not a valid request and further, the appointment of the Adjudicator is invalid. In para 27 of the AD, the Adjudicator said “I am not persuaded by the arguments of the Respondent. The Director has clearly acted on the request when he appointed me and therefore must have accepted the request to have been issued by the Claimant, albeit unsigned. As such my appointment cannot be said to be invalid.”. [49] I am similarly not persuaded by Ancubic’s contention as there is no express requirement under the CIPAA for such Request or Form 5 to be signed. Moreover, CEDY’s representative had enclosed the Successful Transfer Money Acknowledgement on 24.2.2022 from CEDY via Bank of China account to AIAC’s Maybank account in the sum of RM424.00 as payment for the appointment fee for the request to appoint. [50] In addition, s 26 CIPAA provides that: S/N aidlGWrSyUi487/km575jg “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.”. [51] In the premises, the lack of signature did not affect the validity of the Request or Form 5 and I find and hold that the appointment of the Adjudicator is valid. 4th Issue: Whether there is a denial of natural justice by the Adjudicator [52] In para 14 of the AIS, Ancubic alleged that the Adjudicator had failed to adhere to the rules of natural justice by failing to –

apply the contract which parties have agreed to, which formed the basis of the entire claim permissible under the CIPAA regime;

give due consideration to Ancubic’s submission; and S/N aidlGWrSyUi487/km575jg

give proper weight to the evidence. [53] Further, in para 15 of the AIS, Ancubic averred that the denial of natural justice can be shown by, among others –

the Adjudicator’s failure to give due consideration to the jurisdictional challenge raised by Ancubic;

giving merely summary and cursory reasons in allowing CEDY’s claims and dismissing Ancubic’s set offs and deductions without sufficiently demonstrating that due consideration was given to Ancubic’s submissions and evidence submitted;

failing to consider that Ancubic’s set offs and deductions are contained in the same draft Statement of Final Account which CEDY had relied upon as its basis of making the claims in the adjudication; and

failing to consider that under the terms of the sub-contract, the withholding of a sum on account of CEDY’s failure to provide a S/N aidlGWrSyUi487/km575jg performance bond is not dependent on the issuance of any notice. [54] However, in the written submission before this Court, Ancubic has chosen to submit only in respect of subparas 53(a) and (b) above and very sparingly at that. [55] In ACFM Engineering & Construction Sdn Bhd v Esstar Vision Sdn Bhd and another appeal [2016] MLJU 1776, the Court of Appeal elucidated on the concept of natural justice and the purpose of adjudication proceedings in the following excerpts of the judgment: “[19] When one speaks of natural justice, it is nothing more than what we call the concept of “procedural fairness” which needs to be accorded to the parties in a dispute of a hearing. … … [21] There were no complaints by the Appellant that the adjudicator had got the disputes on a completely wrong footing. In fact, no complaint was made at all and the S/N aidlGWrSyUi487/km575jg adjudication process was carried out premised on those issues. If we were to consider the complaints of the Appellant, we would be looking into the merits of the decision of the adjudicator. In the context of section 15 of CIPPA 2012, it cannot be the function of the Court to look into or review the merits of the case or to decide the facts of the case. The facts are for the adjudicator to assess and decide on. The Court’s function is simply to look at the manner in which the adjudicator conducted the hearing and whether he had committed an error of law during that process. Such error of law relates to whether he had accorded procedural fairness to the Appellant. In the context of this case, the complaints of the Appellant were nothing but complaints of factual findings of the adjudicator which in our view cannot be entertained by us. [22] The learned judge in her grounds at paragraphs 67 - 87 had approached the appeal before her in a perfectly correct manner. In fact, she had meticulously discussed how the English and the Singapore Courts had approached adjudication regime in existence in their jurisdiction. Suffice for us to refer to the decision of the Court of Appeal in Carillion Construction Limited v Devonport Royal Dockyard Limited [2005] EWHC 778 where at paragraphs 85 and 86 of the judgment, the Court said: S/N aidlGWrSyUi487/km575jg “85. The objective which underlies the Act and the statutory scheme requires the Courts to respect and enforce the adjudicator’s decision unless it is plain that the question which he has decided was not the question referred to him or the manner in which he has gone about his task is obviously unfair. It should only be in rare circumstances that the courts will interfere with the decision of an adjudicator. The courts should give no encouragement to the approach adopted by DML in the present case; which (contrary to the DML’s outline submissions, to which we have referred in paragraph 66 of this judgment) may, indeed aptly be described as “simply scrabbling around to find some argument, however tenuous, to resist payment.”

It is only too easy in a complex case for a party who is dissatisfied with the decision of an adjudicator to comb through the adjudicator’s reasons and identify points upon which to present a challenge under the labels of “excess of jurisdiction” or “breach of natural justice”. It must be kept in mind that the majority of the adjudicators are not chosen for their expertise as lawyers. Their skills are as likely (if not more likely) to lie in other disciplines. The task of the adjudicator is not to act as arbitrator or judge. The time constraints within which he is expected to operate are proof of that. The S/N aidlGWrSyUi487/km575jg task of the adjudicator is to find an interim solution which meets the needs of the case. Parliament may be taken to have recognised that, in the absence of an interim solution, the contractor (or sub-contractor) or his subcontractors will be driven into insolvency through a wrongful withholding of payments properly due. The statutory scheme provides a means of meeting legitimate cash-flow requirements of contractors and their subcontractors. The need to have the “right” answer has been subordinated to the need to have an answer quickly. The scheme was not enacted in order to provide definitive answers to complex questions. Indeed, it may be open to doubt whether Parliament contemplated that disputes involving difficult questions of law would be referred to adjudication under the statutory scheme. We have every sympathy for an adjudicator faced with the need to reach a decision in a case like the present.

In short, in the overwhelming majority of cases, the proper course for the party who is unsuccessful in an adjudication under the scheme must be to pay the amount that he has been ordered to pay by the adjudicator. If he does not accept the adjudicator’s decision as correct (whether on the facts or in law), he can take legal or arbitration proceedings in order S/N aidlGWrSyUi487/km575jg to establish the true position. To seek to challenge the adjudicator’s decision on the ground that he has exceeded his jurisdiction or breached the rules of natural justice (save in the plainest cases) is likely to lead to a substantial waste of time and expense - as, we suspect, the costs incurred in the present case will demonstrate only too clearly.” [23] We express full agreement with what was said and further adopt it as the correct approach in our jurisdiction.” (emphasis added). [56] Turning now to the first of two grounds which Ancubic has chosen to elaborate as amounting to a denial of natural justice, namely that the Adjudicator failed to give due consideration to the jurisdictional challenge raised by Ancubic, this can be immediately dismissed as being baseless as evident by the section in the AD on “Jurisdictional Issues”, paras 19 - 27. Moreover, as submitted by Mr. KH Chan, apart from addressing the jurisdictional issue raised by Ancubic in the AD, the Adjudicator had, at the very early stage of the adjudication proceedings, dealt with that issue by responding to Ancubic’s letter dated 9.3.2022 vide a letter dated 11.3.2022 stating that, unless there S/N aidlGWrSyUi487/km575jg is an order for a stay of the adjudication proceedings, the Adjudicator intends to proceed to indicate his acceptance and terms of appointment. Ancubic did not file any application for a stay of the adjudication proceedings at the material time. [57] In addition, it is trite that when an adjudicator chooses to exercise his discretion to proceed with, and complete, the adjudication proceedings pursuant to sub-s 27(3) CIPAA, he is not obliged to give his reasons for concluding that he has jurisdiction (see Euroland & Development Sdn Bhd v Tack Yap Construction (M) Sdn Bhd [2018] MLJU 861) and if he does provide reasons, these can be revisited by the court in an application under limb (d) of s 15 CIPAA (see para 24 above). [58] As for the second ground that the Adjudicator did not provide a reasoned decision or that the reasons were summary and cursory in nature, a perusal of the AD again shows that this is far from the truth (see paras 28 - 78 AD and CEDY’s Reply Submission at pp 19 - 21). The Adjudicator had clearly considered the submissions of the parties and provided his reasons for accepting or dismissing the contentions of the parties. Although some of the justifications may not be as S/N aidlGWrSyUi487/km575jg comprehensive and lengthy as what Ancubic may desire, these were reasons nonetheless and do not demonstrate that the Adjudicator had in any way failed to accord procedural fairness to Ancubic. [59] Specifically, with regards to Ancubic’s claim to be entitled to various deductions and set offs, this was addressed by the Adjudicator in paras 48 - 68 of the AD. The Adjudicator clearly took into account the juxtaposed positions of the parties before making findings of fact and/ or law that –

Ancubic did not, vide its letters dated 23.7.2021 and 10.8.2021 which were issued prior to the termination of the sub-contract, exercised its right to withhold or deduct the performance bond sum from the payment due or becoming due to CEDY;

the draft final account alone cannot be used as a basis for the deductions claimed by Ancubic; S/N aidlGWrSyUi487/km575jg

the burden is on Ancubic to justify the defaults relied upon for the termination of the sub-contract and Ancubic has not discharged this burden;

Ancubic’s allegations of waiver and estoppel in respect of the various deductions and set offs are not made out; and

out of the nine items comprising the set off, Ancubic is only entitled to deduct two debit notes amounting to RM507,000.00. [60] In the premises, I have no hesitation in finding that Ancubic’s second ground of challenge is unmeritorious. [61] For the sake of completeness, it should be mentioned that in so far as the third and fourth grounds are concerned (see subparas 53(c) and

above), these have been adequately rebutted by CEDY in its submissions that –

the Adjudicator has explicitly, in paras 36 and 37 of the AD, observed that there were deductions of RM16,958,532.70 in the S/N aidlGWrSyUi487/km575jg same final account relied by CEDY. The Adjudicator has also referred to the documents submitted to him as shown in paras 54 and 62 of the AD. Each specific item in the draft final account, including the 9 items of set offs listed in another table, were considered by the Adjudicator;

the issue concerning the performance bond was addressed by the Adjudicator in paras 49 - 53 of the AD (see subpara 59(a) above) where he found, inter alia, that the items sought to be set off by Ancubic were not justified. Furthermore, the argument that the Adjudicator had failed to consider the terms of the contract and allegedly added a term or obligation to the contract are unsubstantiated as the requirement for Ancubic to have a valid set off is expressly provided in Clause 26.13 of the PAM Sub-Contract 2006; and

Ancubic gave no particulars as to how the Adjudicator had failed to apply the contract to which the parties had agreed to. If this contention relates to the purported failure by the Adjudicator to consider the terms of the contract when deciding the issue S/N aidlGWrSyUi487/km575jg regarding the performance bond, the Adjudicator had referred to Clause 5.5 of the LoA in para 50 AD. [62] In the upshot, the Adjudicator had considered the arguments raised by Ancubic and had even given Ancubic the opportunity to submit the Further Reply in the adjudication proceedings. There is not an iota of evidence to support Ancubic’s contention of a breach of natural justice by the Adjudicator. - The Stay Application [63] Ancubic cited s 16(1)(a) CIPAA which allows a party to apply for a stay of an adjudication decision where an application to set aside the adjudication decision under s 15 has been made. [64] Ancubic did not make any specific averments in the AIS as to the reasons on which it was moving this Court to order a stay of the AD except to rely on the same grounds for the Setting Aside Application and Stay Application. S/N aidlGWrSyUi487/km575jg [65] In the written submission, Ancubic reckoned that, if for any reason the decision of the Court on the setting aside of the AD is delayed, a stay of the AD is warranted in the meantime, citing View Esteem Sdn Bhd (supra) to support its contention. [66] As prayer (ii) in the Setting Aside Application and Stay Application is for the AD to be stayed unconditionally pending the full and final disposal of the Setting Aside Application and Stay Application, and Ancubic has not applied for order in terms to be granted in respect of this prayer pending the decision on O.S. No. 157 and O.S. No. 164, this relief is rendered academic and does not need further consideration. II. O.S. No. 164: The Enforcement Application [67] Cedy’s Enforcement Application is made pursuant to s 28 CIPAA which reads as follows: S/N aidlGWrSyUi487/km575jg “28. (1) A party may enforce an adjudication decision by applying to the High Court for an order to enforce the adjudication decision as if it is a judgment or order of the High Court.

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

The order made under subsection (2) may be executed in accordance with the rules on execution of the orders or judgment of the High Court.”. [68] As the Court has decided that there is no merits whatsoever in the Setting Aside and Stay Application and the conditions for the enforcement of the AD are satisfied i.e. the AD is rendered in CEDY’s favor, Ancubic has not paid the adjudicated sum in accordance with the terms in the AD and there is no prohibition to the grant of the order sought by CEDY (see Inai Kiara Sdn Bhd v Puteri Nusantara Sdn Bhd [2019] 2 MLJ 362 and the long list of cases to date which have applied the legal principles therein), it is a foregone conclusion that the Enforcement Application must be allowed. S/N aidlGWrSyUi487/km575jg Pronouncement [69] Premised on all the above-said considerations, the Setting Aside and Stay Application was dismissed and the Enforcement Application was allowed with total costs in the sum of RM15,000.00. Dated: 11 April 2023 (ALIZA SULAIMAN) Judge Construction Court 2 High Court Kuala Lumpur Counsels/ Solicitors: For the Plaintiff in O.S. No. 157 and the Respondent in O.S. No. 164: Ooi Huey Miin (Kelly Ong Ree Jen and Himin Ng with him) Messrs. Raja, Darryl & Loh Advocates & Solicitors Level 26, Menara Hong Leong No. 6, Jalan Damanlela Bukit Damansara 50490 Kuala Lumpur S/N aidlGWrSyUi487/km575jg For the Applicant in O.S. No. 164 and the Defendant in O.S. No. 157: Chan Kheng Hoe (Wong Sheng Wei with him) Messrs. Chong + Kheng Hoe Advocates & Solicitors A3-3-6, Block A3 Solaris Dutamas 1, Jalan Dutamas 1 50480 Kuala Lumpur Cases, legislation and other sources referred to in the submissions by learned counsels and in the Grounds of Judgment: Cases: ACFM Engineering & Construction Sdn Bhd v Esstar Vision Sdn Bhd and another appeal [2016] MLJU 1776 Bina Puri Sdn Bhd v TKL Oil & Gas Sdn Bhd [2020] 9 MLJ 119 China Railway No 5 Engineering Group Co Ltd Singapore Branch v Zhao Yang Geotechnic Pte Ltd [2019] SGHC 130 EA Technique (M) Sdn Bhd v Malaysia Marine and Heavy Engineering Sdn Bhd and another case [2020] 11 MLJ 353 Econpile (M) Sdn Bhd v Asm Development (KL) Sdn Bhd and another summons [2020] MLJU 1146; [2020] MLRHU 899 S/N aidlGWrSyUi487/km575jg Econpile (M) Sdn Bhd v. IRDK Ventures Sdn Bhd & Another Case [2016] 5 CLJ 882 Euroland & Development Sdn Bhd v Tack Yap Construction (M) Sdn Bhd [2018] MLJU 861 Giatreka Sdn Bhd v SGW Engineering Construction Sdn Bhd and Another Appeal [2019] MLJU 1477 JKP Sdn Bhd v. Anas Construction Sdn Bhd & Another Appeal [2022] 10 CLJ 528 MRCB Builders Sdn Bhd v SMM Resources Sdn Bhd and another case [2021] MLJU 1455 RSL (South West) Limited v Stansell Limited [2003] EWHC 1390 (TCC) SKS Pavillion Sdn Bhd v Tasoon Injection Pile Sdn Bhd [2019] 9 MLJ 396 Skyworld Development Sdn Bhd v Zalam Corp Sdn Bhd and other appeals [2019] MLJU 162 Tecnicas Reunidas Malaysia Sdn Bhd v. Petrovietnam Engineering Consultancy JSC (PVE) & other cases [2021] MLRHU 2128 S/N aidlGWrSyUi487/km575jg Terminal Perintis Sdn Bhd v Tan Ngee Hong Construction Sdn Bhd and another case [2017] MLJU 242 TYL Land and Development Sdn Bhd v SIS Integrated Sdn Bhd and another case [2018] MLJU 217 View Esteem Sdn Bhd v Bina Puri Holdings Bhd [2018] 2 MLJ 22 Wabina Constructions & Engineering Sdn Bhd v Fulloop Sdn Bhd and other cases [2022] MLJU 2744 Legislation: Construction Industry Payment and Adjudication Act 2012, ss 5, 12, 15, 16, 19, 26, 27, 28 & 32 Rules of Court 2012, O. 5 r. 3, O. 7, O. 28, O. 69A rr. 2, 3, 4 and 5 & O. 92, r. 4 S/N aidlGWrSyUi487/km575jg