Apex Communications Sdn. Bhd. v Pcs Vision Sdn. Bhd. (BA-24C-20-03/2026)

This is the Plaintiff’s application, via the Originating Summons (“OS”), seeking several declaratory reliefs and an injunction to restrain the Defendant from proceeding with two adjudication proceedings under the Construction Industry Payment and Adjudication Act 2012 (“CIPAA”) registered as AIAC/D/ADJ- 6410-2026 and AIAC/D/ADJ-6411-2026.

An ad interim injunction was previously granted pending the disposal of the OS.

The thrust of the Plaintiff’s case is that the two Letters of Award and the two Subcontract Agreements all dated 31.3.2022 and between parties were for "banking purposes only", and the true relationship between parties was an oral joint venture. On that basis, it is the Plaintiff’s contention that there is “no construction contract in writing” that would entitle the Defendant to bring adjudication proceedings under CIPAA.

Having considered the affidavits and the extensive written and oral submissions of both parties, I dismissed the Plaintiff’s OS with costs of RM10,000.00 on 30.4.2026.

Dissatisfied with my decision, the Plaintiff lodged an appeal and I append below my grounds of decision.

The dispute arose from the LRT3 Project (Package GS05) [“the Project”]. Following the termination of its previous subcontractor on 30.3.2022, the Plaintiff engaged the Defendant to complete the remaining works.

It is common ground that the following documents were executed by parties :-

the Letter of Award dated 31.3.2022 for Mechanical & Electrical (M&E) works;

(ii) the Letter of Award dated 31.3.2022 for Civil, Architectural & Infrastructure (CAI) works;

(iii) the Subcontract Agreement dated 31.3.2022 for Mechanical & Electrical (M&E); and

(iv) the Subcontract Agreement dated 31.3.2022 for Civil, Architectural & Infrastructure (CAI) works. (collectively referred to as “the Agreements” unless individually referred to)

A further document was issued by the Plaintiff and accepted by the Defendant on 31.3.2022, a letter in which parties agreed that the Agreements : “are exclusively meant for your banking purpose only and we shall enter into a Joint Venture Agreement to formalize and substitute our agreement of the above project.” [emphasis added] (“the Letter”)

Despite the passage of time, no Joint Venture Agreement was entered by parties to formalise and substitute the Agreements.

Prior to the Payment Claim dated 16.2.2026 issued under s.5 of CIPAA, the Defendant has sought to obtain payments due to the Defendant in the following manner :-

a Statutory Notice Pursuant to s. 466(1)(a) of the Companies Act 2016 dated 27.3.2025 claiming the sum of RM50,041,572.89 as full costs and expenses incurred together with 50% profit pursuant to a joint venture (“s.

(ii) a Notice of Demand dated 11.9.2025 which expressly withdrew the s.466 Notice and proceeded to demand for RM121,524,018.07 as being due under the Agreements.

Having received no payment from the Plaintiff, the Defendant subsequently commenced adjudication proceedings for unpaid works.

The Plaintiff resisted this by filing the OS, contending that because the relationship between parties was on a joint venture, albeit orally, and as the Agreements were for “banking purposes only", no "construction contract made in writing" under Section 2 of CIPAA was in existence and as such CIPAA is not engaged .

This Court accepts that for CIPAA to engage, there must be a construction contract in writing. S. 2 of CIPAA expressly provides for this :- “Application This Act applies to every construction contract made in writing relating to construction work carried out wholly or partly within the territory of Malaysia including a construction contract entered into by the Government.”

In order to invoke the adjudication mechanism, an unpaid party has to issue a Payment Claim as provided under s. 5 of CIPAA and therefore satisfy the precondition therein. “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;

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”

S. 4 of CIPAA interprets a construction contract and construction work contract as follows: “construction contract” means a construction work contract or construction consultancy contract; “construction work contract” means a contract to carry out construction work

In Bina MYK Sdn Bhd v VVO Construction Sdn Bhd [2018] 10 CLJ 705, it was held that the Adjudicator would have no jurisdiction to adjudicate a dispute that arise from an oral contract as Section 2 of CIPAA provides that the Act shall only apply to every construction contract made in writing.

The issues before this Court are narrow and may be formulated as follows :-

Whether the Plaintiff satisfies the threshold for an injunction;

(ii) Whether this is a clear case of absence of jurisdiction justifying court’s intervention.

Whether the Plaintiff satisfies the threshold for an injunction

It is trite that the applicable test for an injunction are :-

whether there are serious issues to be tried;

(ii) whether damages are an adequate remedy;

(iii) where the balance of convenience/justice lies. [Keet Gerald Francis Noel John v Mohd Noor bin Abdullah & Ors [1995] 1 MLJ 193]

serious issues to be tried

It is the Plaintiff’s case that the Agreements relied by the Defendant in the CIPAA proceedings was solely to facilitate and assist the Defendant in obtaining financing facilities and did not reflect the true arrangement between parties, which, according to the Plaintiff, was in the nature of a joint venture. The Plaintiff contends that the Letter provides evidence of this joint venture arrangement. In essence, the Plaintiff maintains that no construction contract existed between the parties so as to entitle the Defendant to invoke the adjudication regime under CIPAA.

Viewed in that light, the Plaintiff’s challenge strikes at the very foundation of the adjudication. The Plaintiff’s contention is that the adjudicator was not vested with jurisdiction to determine the dispute in the first place. This is therefore a core jurisdictional challenge.

The Defendant, on the other hand, contends that the Agreements remained valid, binding and operative unless and until a Joint Venture Agreement was entered into between the parties, as contemplated in the Letter. Accordingly, as no joint venture agreement was entered by parties, the Defendant submits that the Agreements remains operative and binding, and being construction contracts in writing, entitled it to invoke the adjudication mechanism under CIPAA.

At this juncture, whilst the Court is satisfied that there are written contracts between parties in the form of the Agreements, the Court is mindful of the Plaintiff’s assertion that the Agreements ought not be given effect, by virtue of the Letter. To accept the Plaintiff’s position, a conclusive determination of contested facts and the parties’ true relationship must be undertaken, which is inappropriate at this stage.

I find that while this is a serious issue, the existence of a serious issue is only the starting point.

adequacy of damages

It is well established that injunctive relief would not be granted if damages would be an adequate remedy to the party seeking the said relief.

In the circumstances of this case, the Plaintiff contends that it would be forced to submit to an adjudication process in which the very jurisdiction to refer the claim is being disputed.

The Plaintiff’s contention at its highest will include the Plaintiff having to incur costs of the adjudication and having to pay the adjudicated sum (should the adjudication be resolved in the Defendant’s favour).

I am of the view that the Plaintiff is not left without recourse. What the Plaintiff seeks to avoid is participation in the adjudication process itself. However, the statutory scheme of the CIPAA expressly contemplates that disputes, including jurisdictional disputes, may first be ventilated through the adjudication process and thereafter be scrutinised by the Court where necessary.

S. 27 of CIPAA envisages jurisdiction challenges and allows an adjudication to proceed notwithstanding a jurisdiction challenge. By virtue of s. 27(3) :- 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).

Further and in addition, the Defendant has the right set aside the Adjudication Decision under s. 15 of CIPAA which provides : An aggrieved party may apply to the High Court to set aside an adjudication decision on one or more of the following grounds:

the adjudication decision was improperly procured through fraud or bribery;

there has been a denial of natural justice;

the adjudicator has not acted independently or impartially; or

the adjudicator has acted in excess of his jurisdiction.

Even in an enforcement application under s. 28, the Defendant retains the right to oppose, by bringing itself within the threshold enunciated in Inai Kiara Sdn Bhd v Puteri Nusantara Sdn Bhd

2 CLJ 229, where it is open for the Defendant to show that : “there is a prohibition on the court’s discretionary power to grant leave to enforce the adjudication decision”

As such, I am of the view that not only the Plaintiff retains the right to raise all jurisdictional objections before the adjudicator, the statutory remedies under CIPAA remain available to the Plaintiff including an application to set aside on jurisdictional grounds, resistance to enforcement and any other avenues or remedies available in law, including arbitration or litigation to determine the issue of jurisdiction.

For completeness, the challenge on core jurisdiction may still be taken at the application to set aside the adjudication decision; refer View Esteem Sdn Bhd v Bina Puri Holdings Bhd (2018) 2 MLJ 22

Participation in adjudication proceedings does not constitute irreparable harm. Damages and statutory remedies are adequate.

Balance of convenience/ justice

The Defendant seeks to exercise a statutory right to adjudicate.

I can do no better than to reiterate the principle in Martego Sdn Bhd v Arkitek Meor & Chew Sdn Bhd [20202] 6 MLJ 224, where the Federal Court held that it is the legislative intention that the CIPAA regime lie in facilitating and providing remedies for speedy recovery payment in construction industry, albeit temporarily pending arbitration or litigation.

To accede to the Plaintiff’s application to restrain the right of the Defendant to exercise its statutory right to adjudicate would :-

defeat the legislative purpose of CIPAA;

(ii) encourage respondents in CIPAA adjudications to routinely bypass the adjudication process by coming to Court with like applications;

(iii) transform the Court into a pre-adjudication screening mechanism.

As observed by Lim Chong Fong J. (now JCA) in Mega Sasa Sdn Bhd v Kinta Bakti Sdn Bhd (2019) MLJU 1043, where :- “[24] On the other hand, I am persuaded by the submission of the amicus curiae that if the ad interim injunction is allowed, it would likely provide the impetus and justification which would cause a “ripple effect” resulting in parties especially the respondents in other on-going CIPAA adjudications applying likewise to forthwith halt their adjudication proceedings. Consequently, the implementation of the CIPAA would be thwarted to the prejudice and detriment of the construction industry and other related industries ultimately. There is, in other words, a greater public interest to be protected over the immediate parties’ private interest here.” [emphasis added]

In any event, the Plaintiff’s complaint is, in substance, that the Defendant is proceeding on a dispute where the adjudicator would have no jurisdiction. At the risk of being repetitious and in view of paragraphs 27- 31 above, I hold that this dispute is a type of dispute CIPAA is designed to address expeditiously, subject to all statutory safeguards available to the Plaintiff.

The balance of convenience therefore, lies in favour of allowing the adjudication to proceed.

(ii) Whether this is a clear case of absence of jurisdiction justifying court’s intervention.

In Liew Piang Voon v WLT Project Management Sdn Bhd (2020) MLJU 1431, Lim Chong Fong J (now JCA) held that : “[21] That notwithstanding, the Court has in certain cases involving jurisdiction of the adjudicator entertained the parties who have sought declarations and injunctions to halt and terminate the adjudication proceedings… The attractiveness of early court intervention is to avoid abortive costs incurable if the adjudication is eventually found to be a nullity for want of jurisdiction. Nevertheless, this sort of court intervention must be very sparingly entertained; otherwise it will encourage the opening of floodgates to frustrate or defeat the utility of statutory adjudication as a swift interim remedy to ease the cash flow of a deserving unpaid party to a construction dispute. In my view, the safeguard can be meaningfully achieved if the permissible court intervention is perhaps limited to challenges on core jurisdiction as defined in Terminal Perintis Sdn Bhd v Tan Ngee Hong Construction Sdn Bhd and another case [2017] 1 LNS 177. [22] …Nonetheless, I hasten to add that future applications of similar nature should only be entertained in clear-cut cases where core jurisdiction is absent.” [emphasis added]

The Plaintiff seeks to elevate its case into one of “no jurisdiction” on the basis there is no written construction contract in light of the Letter. Consequently, according to the Plaintiff, the Agreements are inoperative.

The Court must distinguish between absence of a contract on its face and a dispute as to the true nature or effect of an existing contract.

In this case, I find that :-

written contract exists, in the form of the Agreements;

(ii) the Agreements have set out in detail the obligations and duties of parties in the Project;

(iii) the Agreements are dated and executed; and

(iv) the Payment Claim issued by the Defendant is made pursuant to the Agreements

As such, based on the facts in this case where even the Plaintiff is not disputing that there are written contracts but the Plaintiff’s argument is that the Agreements should not be given effect. This is a merit argument, which would require a determination based on the existence and terms of an oral joint venture (if any), the construction of the Letter conclusively and a resolution of conflicting factual narratives. That exercise is open to the Plaintiff at arbitration or litigation, notwithstanding adjudication proceedings.

I find that in the circumstances of this case, the Plaintiff has failed to establish a clear cut absence of core jurisdiction to refer the dispute to adjudication.

This Court emphasises that CIPAA operates on a “pay now argue later” basis and this Court will not intervene to arrest that process save in the clearest case of absence of core jurisdiction. This case is not one of them.

For completeness I will also address the Plaintiff’s application for prayers (1) & (2) of the OS where in essence it is the Plaintiff’s submission that it has a right not to be subjected to CIPAA adjudication because no construction contract in writing exists.

S. 41 of the Specific Relief Act 1950 states : Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to the character or right, and the court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in that suit ask for any further relief: Provided that no court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration or title, omits to do so.

I am satisfied that the Plaintiff’s invocation of s. 41 is misconceived. The alleged “right” not to be subjected to adjudication is not an existing legal character but a disputed contention which depends on the very merits the Plaintiff seeks to have determined though this

Even if the Letter is relied upon by the Plaintiff, its legal effect is itself disputed by the Defendant and cannot be conclusively determined without a full evidential evaluation. At the very least, “we shall enter into a Joint Venture Agreement to formalize and substitute our agreement of the above project” stated in the Letter does not establish a clear absence of a written construction contract for the purposes of s. 2 CIPAA.

Based on the facts presented in this case and coupled with the fact that CIPAA provides a complete statutory mechanism to ventilate such objections, including jurisdictional challenges and setting aside. To grant the declaration sought would be to permit a collateral attack on the statutory adjudication regime and to undermine its legislative purpose.

As the Plaintiff has failed to satisfy the threshold for injunctive relief where the Court finds that the balance of convenience tilts in favour of the Defendant and adequacy of damages where no irreparable harm is occasioned onto the Plaintiff, and there is no clear absence of jurisdiction, I accordingly dismissed the OS with costs of RM10,000.00 to the Plaintiff, subject to allocator. Dated : 19th June 2026 t.t ………………………………………… Shahriza Zalina Binti Abdul Shukor Judicial Commissioner High Court of Malaya Shah Alam For the Plaintiff : Dato' Stanley Isaacs R. Vasanthi John Isaacs (Messrs. Isaacs & Tan) For the Defendant : Kevin Wong Gia Meng Catherine Alicia Nathan (Messrs. Christopher & Lee Ong)