This section shall only be invoked if money is due or payable by the principal to the party against whom the adjudication decision was made at the time of the receipt of G. FINDINGS OF THE COURT i. Whether this Originating Summons contravenes the principle of pari passu of the Insolvency Law and the rule of undue preference? [26] It is the contention of the Defendant that since Maxbuild Resources has been wound-up, this action pursuant to Section 30 CIPAA is against the pari passu principle of the Insolvency Law and the rule of undue preference i.e the Plaintiff as any other unsecured creditor which has its interest on the assets of Maxbuild Resources arising from the AD has to register that interest in the list of unsecured creditors in order for the appointed liquidator to deal or manage Maxbuild Resources assets and liabilities accordingly. [27] Whatever sum (if any) that is owed to Maxbuild Resources by the Defendant should be paid to the appointed liquidator in order for it to be dealt with in accordance to the Insolvency Law. It is contented by the Defendant that Section 30 CIPAA 2012 in allowing the plaintiff to recover the unpaid Adjudication Amount from the principal of Maxbuild Resources (in this case) contravenes the rule of undue preference and is against the pari passu principle. [28] The Defendant in its attempt to establish its objection had referred to the Federal Court case of Dubon Bhd (in liquidation) v Wisma Cosway Management Corp [2020] 4 MLJ 288 (Dubon case). In the Dubon case, it was held that: e, provides that after the payment of preferential debts, the liquidator acts to safeguard the interest of the unsecured creditors. That in turn is ensured by the collection and distributions of the assets of the company pari passu amongst unsecured credi 446; [1985] 1 LNS 47 (FC)). [26] Any interpretation which seeks to dislodge these statutory provisions [Emphasis added] [29] Although the Defendant takes cognisance of the Court of Appeal decision in CT Indah Construction Sdn Bhd v BHL Gemilang Sdn Bhd [2019] MLJU 1215 (CT Indah case) whereby it was held that Section 30 CIPAA 2012 creates an independent statutory obligation on the principal on its own right to pay the subcontractor, notwithstanding that the contractor was wound up, the Defendant submits that the CT Indah case was decided prior to the Dubon case and as such, the principles as stated in the Dubon case is applicable in this case. Therefore, Section 30 CIPAA 2012 cannot be invoked against the Defendant in this case as Maxbuild Resources has been wound up. [30] This argument by the Defendant was rebutted by the Plaintiff by citing the Dubon case as not relevant to the context of direct payment from principal imposed by Section 30 CIPAA 2012. It was highlighted by the Plaintiff that unlike the CT Indah case, the Dubon case involves payment of under the Strata Management Act 2013 for the property owned by the wound-up company. The question of law in the Dubon case was of a Joint Management Corporation to collect and receive payment from a proprietor under section 33 and 77 of the Strata management Act 2013 respectively, gives it a [31] It is thus argued by the Plaintiff that any payment of outgoing and service charges as in the Dubon case would be from the assets of the wound-up company unlike in the CT Indah case where the Court of Appeal held that the payment made by the principal to the subcontractor would not be from the assets of the wound up company which in this case is Maxbuild Resources. [32] ment that in the CT Indah case, it was decided by the Court of Appeal that Section 30 CIPAA 2012 creates an independent statutory obligation on the part of BHL Gemilang, as a principal in its own right, to pay CT Indah and this is a separate obligation to pay imposed by the statutes. His Lordship Abdul Rahman Sebli (CJ Sabah & Sarawak) held the following: In the instant case, the liability of the respondent to make payment is imposed by statute, i.e. by section 30(3) of CIPAA. Thus, payment made by the respondent to the appellant would not be from the assets of BHL Builders but because the adjudicated sum is paid by the respondent, it will be debt due from BHL Builders to the respondent (once the respondent makes direct payment to the appellant) which the respondent will have to recover from BHL Builders pursuant to subsection 30(4). [15] We agree with learned counsel for the appellant that a legal obligation to pay may arise either by statute (as in the present case) or by contract. In fact, an obligation imposed by statute, in this case by subsection 30(3) of CIPAA, is stronger because in the absence of proof of payment by BHL Builders as requested by the respondent under subsection (2), it becomes mandatory for the respondent as the principal to pay the adjudicated sum of RM9,065,335.67 to the appellant. It is a requirement of law which the respondent has no discretion not to comply with it. [16] We are also in agreement with learned counsel for the appellant that section 30 of CIPAA creates an independent statutory obligation on the part of the respondent, as a principal in its own right, to pay the appellant and that this is a separate obligation to pay imposed by contractor to pay the appellant under the adjudication decision. [Emphasis added] [33] The CT Indah case was subsequently followed among others by the case of Cabnet System (M) Sdn Bhd v Dekad Kaliber Sdn Bhd & Anor [2020] MLJU 311 and the case of Peck Chew Piling (M) Sdn Bhd v Panzana Enterprise Sdn Bhd [2022] MLJU 390. [34] On this issue, the Defendant has failed to steer this court away from the well-established principle set in the CT Indah Case by using the principles set in the Dubon case. It is undoubtedly clear that the Dubon case can be distinguished and that the authority which had addressed the statutory requirement under Section 30 CIPAA 2012 in relation to a wound-up company is the CT Indah Case. [35] As such, I am of the view that the Plaintiff has successfully established its right to pursue for payment from the Defendant being the principal to Maxbuild Resource despite Maxbuild Resources being wound up. Therefore, objection, I find that the Plaint preference and is not against the pari passu principle as alleged by the Defendant. ii. Whether piercing of the corporate veil between the Defendant and Maxbuild Resources is allowed? [36] The Plaintiff alleges that the Defendant and Maxbuild Resources have among others the same group of people managing and operating both the companies as if they are a single entity and not otherwise. The Plaintiff has in its affidavits and submissions as stated in paragraph 14 hereinabove shown to the court the common operating circumstances and the common management including the interchangeable roles played by the same directors in both the companies. [37] The Plaintiff has also shown to this court the signatures placed by the same person in documents issued by the Defendant and by Maxbuild Resources. [38] The Defendant however oppose the Plaintiff raising this issue of piercing the corporate veil as the same was not prayed for in its Originating Summons but only raised in its affidavit and submissions. Nevertheless, the Defendant had denied the allegations made by the Plaintiff in its reply to the [39] The Defendant had not raised any objections to the Plaintiff raising the piercing of the corporate veil through its Affidavit in Support, when it could have done so through its Affidavit in Reply. Be that as it may, though the Plaintiff has shown to this court the many occasions and or circumstances where there were common management between both the Defendant and Maxbuild Resources, what is apparent is that the Plaintiff seems to be aware of such an arrangement from the outset of its that the Progress Claims were submitted to and were acknowledged by the Defendant without any protest, this only goes to show that the Resources and had not raised any queries nor any objections to it. [40] Based on the documentary evidence before this court, I do not see the necessity to pierce the corporate veil as the Plaintiff had been aware of the manner in which the Defendant and Maxbuild Resources were operating. I refer to the Federal Court case of Sunrise Sdn Bhd v First Profile (M) Sdn Bhd [1997] 1 CLJ 529 where Chong Siew Fai CJ (Sabah & Sarawak) held that: was widely canvassed in the Court below was again raised. With respect, we did not see the necessity of invoking the doctrine in the particular facts and circumstances of the present case. Peeping behind the veil is to enable the Court to obtain information on certain features of the company, for example, its composition, type (holding, subsidiary etc.), proportion of shareholdings, control etc. Having obtained this information, the Court will examine it and then decide whether to adjudicate on the company alone or to move up the ladder of lifting the veil, to more serious repercussions. In our instant case, it was an undisputed fact that the subsidiary was wholly owned by the holding company, and it had not been challenged that holding company by proxy, through its nominees, managed the subsidiary. Thus the composition, type, shareholding and control of the subsidiary stood in front of the veil, and there iii. to Maxbuild Resources pursuant to Section 30(2) CIPAA 2012 fatal? [41] There being no denial by the Defendant that upon receipt of the Plaintiff written request as required by Section 30(1) CIPAA 2012, the Defendant had not issued a notice in writing to Maxbuild Resources to show proof that it has paid the adjudicated amount to the Plaintiff pursuant to Section 30(2) CIPAA 2012, the Defendant has failed to comply with this mandatory requirement. The question which has been posed here is whether such a failure is fatal for the Defendant to then claim that there are no monies due or payable to Maxbuild Resources. [42] In the case of PCOM Pacific Sdn Bhd v Apex. Communication Sdn Bhd [2020] 1 LNS 130, it was held that failure to comply the requirement in accordance to Section 30(2) CIPAA 2012 is fatal to the defence that there are no monies due or owing from the first defendant to the second defendant: mandated by sub-s. 30(2) of the CIPAA is fatal to the defence that there is no money due or payable by the defendant to JEKS at the time of the receipt of the said notice. In the absence of any proof of payment by JEKS, the defendant was thus compelled by sub-s. 30(3) by the CIPAA to make payment of the "adjudicated amount" in the BOND (see para. 22 of the judgment and also paras. 24 and 25 in HSL Ground Engineering Sdn Bhd v. Civil Tech Resources Sdn Bhd & Another Case [2020] CLJU 526; [2020] 1 LNS 526; [2021] 8 MLJ 347 and Bond M&E Sdn Bhd v Pali PTP Sdn Bhd [2022] 11 MLJ 58 (where the issue on Section 30(2) CIPAA 2012 was subsequently affirmed by the Court of Appeal). [43] On this issue itself, it can be concluded that the Palintiff is entitled to invoke the remedy provided in Section 30 CIPAA 2012 and has such may, for the purpose of completeness and since parties have submitted on the same, this court will examine the other balance 3 issues raised by the parties. iv. Whether the Plaintiff has discharged its legal burden to establish there are monies due and payable to Maxbuild Resources by the Defendant? [44] The defence raised by the Defendant in an attempt to resist Section 30 application is that there is no money due or payable to MPM written request. [45] In the case of Chong Lek Engineering Works Sdn Bhd v PFCE Integrated Plant And Project Sdn Bhd [2020] 1 LNS 2251, Wong Kian Kheong J (as he then was) held that it was inadequate for the Employer to simply make a bare assertion, as the burden is on the Employer to prove that there is no money due to be paid to the main contractor. Failure to substantiate its assertion with documentary evidence would lead the court to invoke an adverse inference against the Employer. [46] His Lordship had further stated that whilst the Defendant had the evidential burden to prove that there is no money due or payable, the Plaintiff bears the legal burden to prove there is money due or payable. [47] he court in, among others, Chong Lek Engineering Works (supra) , HSL Ground Engineering Sdn Bhd v. Civil Tech Resources Sdn Bhd and another [2020] 1 LNS 526; [2021] 8 MLJ 347, MKP Builders Sdn Bhd v. Turnpike Synergy Sdn Bhd [2021] 1 LNS 1238, WTK Engineering Sdn Bhd v. Seriemas Development Sdn Bhd [2021] 1 LNS 424; [2021] MLJU 520 and Zeta Letrik Sdn Bhd v. Jaks Island Circle Sdn Bhd [2022] 1 LNS 427 have considered the words "due or payable" in Section 30(5) CIPAA 2012 and interpreted the same literally, according to their ordinary plain meaning. [48] I make specific reference to the case of HSL Ground Engineering Sdn Bhd v. Civil Tech Resources Sdn Bhd and another summons [2020] 1 LNS 526 where the meaning of "due or payable" in the context of Section 30(5) CIPAA 2012 was considered and Lim Chong Fong J (as he then was) held, inter alia, that: "[29] It is plainly provided in s. 30(5) of the CIPAA that the defendant is only obliged to make direct payment if there is money due or payable to CTSB. It is not due and payable. In the English Court of Appeal case of Videocon Global Ltd & Anr v. Goldman Sachs International [2016] EWCA Civ 130, it was held that there is a distinction between due and payable in that a debt accrues when it is due whilst an obligation to pay arises when it is payable. They are thus not synonymous and it seems that the former is stricter when compared to the latter. In the English building contract case of Dunlop & Ranken Ltd v. Hendell Steel Structures Ltd, Pitchers Ltd (Garnishees) [1957] 1 WLR 1102 on garnishment, it was held that money under a building contract based on the RIBA form is not due for attachment until a certificate by the architect has been issued for that sum of money. It is plain that for purposes of garnishment under the then Rules of the Supreme Court of England, only debt due or accruing debt could be garnished. Thus, in my view, if it is just payable instead of due and payable, it suffices so long there is an obligation or liability to pay upon it being properly claimed. (Emphasis added) [49] In this case, in applying the settled principle in what constitute Practical Completion (CPC) has been issued on 26.7.2019 and by that the 1st moiety has been released by the Defendant to Maxbuild Resources. The fact that the CMGD is yet to be issued and as such the 2nd moiety is still being retained by the Defendant clearly shows that [50] Having established that there is money payable it is my view that the Plaintiff has proven on a balance of probabilities that there is money to the least payable if not due from the Defendant to Maxbuild Resources at the time the request pursuant to Section 30(1) CIPAA 2012 was made to the Defendant. Therefore, the Plaintiff has discharged its legal burden. v. Whether the Defendant has discharged its evidential burden to prove that there are no monies due and payable to Maxbuild Resources? [51] Although it has been established that there is a part of the retention sum which has not been released to Maxbuild Resources, however, based on the summary of accounts given by the Defendant on the payments in relation to the contract between the Defendant and Maxbuild Resources, according to the Defendant there is a sum of RM1,902,992.32 which is said to have been overpaid by the Defendant to Maxbuild Resources. [52] The Defendant had produced documents including bank statements as evidence to show the payments which had been made in relation to this project. However, there is no document shown to this court reflecting the summary account provided by the Defendant conveyed to Maxbuild Resources and the acceptance of the same by the latter. [53] The Plaintiff has payments made to 3rd parties and various debit and credit notes issued and that the sum that was paid to Maxbuild Resources had only been for an amount of RM54,350,953.94. Indicating that there are sums which are still payable to Maxbuild Resources. [54] Give the fact that both the Defendant and Maxbuild Resources were under the same management and sharing the same address, the risks of accounts manipulation is likely to be high. The Defendant has failed to show to this court the payments made were indeed payments made for the purpose of the project and not for other purposes as some transactions involved individuals who are said to be commonly managing both the Defendant and Maxbuild Resources. [55] In the absence of clear and substantiated accounts shown to the court in relation to payments made to Maxbuild Resources for the work done in the Project coupled with the winding up of Maxbuild Resources after the AD made in favour of the Plaintiff and the invocation of s.30 CIPAA 2012 by the Plaintiff, it is all too convenient to declare that there are no monies due or payable to Maxbuild Resources by the Defendant. [56] As such, the Defendant has failed to discharge its evidential burden to prove to this court on a balance of probabilities that the Defendant had in fact over paid Maxbuild Resources and as such there is a sum of RM1,902,992.32 owing to the Defendant by Maxbuild and as such the 2nd moiety sum is no longer available as due or payable to Maxbuild Resources at the time the written request was made by the Plaintiff. [57] Based on the foregoing, the Plaintiff has successfully fulfilled the four (4) conditions in respect of an application as enunciated in the case of Cabnet System (M) Sdn Bhd v Dekad Kaliber Sdn Bhd & Anor (supra): i. Maxbuild Resources has failed to pay the adjudication amount to the Plaintiff; ii. The Plaintiff has made a written request to the Defendant to pay the adjudicated amount directly to the Plaintiff; iii. There is money due or payable from the Defendant to Maxbuild Resources at the time of receiving the written request; and iv. The Defendant did not compl Request and did not pay the adjudication amount to the Plaintiff v. Whether Adjudication Amount includes interest and cost? [58] The final issue to be determined is whether the adjudication amount includes interest and costs. The Court of Appeal in the case of Pali PTP Sdn Bhd v. Bond M&E Sdn Bhd & Another [2023] 9 CLJ 740 [2023] 1 LNS 1787 had decided as follows on this issue: In the absence of definition of the phrase 'adjudicated amount' in CIPAA, we therefore find on our purposive construction or interpretation that it includes interest and costs in furtherance of the purpose and object of the statute to protect and/or safeguard the rights particularly of the small contractors and/or subcontractors. The phrase 'adjudicated amount' shall be [59] Therefore, I conclude that the adjudication amount includes through this Originating Summons pursuant to Section 30 CIPAA 2012 with costs of RM10,000.00 to be paid by the Defendant to the Plaintiff subject to allocatur fee.