Better Power Sdn Bhd v Agv Offshore Sdn Bhd (BA-24C-54-09/2025)

of the Construction Industry Payment and Adjudication Act 2012; And In the matter of Orders 7, 28, 69A and Order 92 Rule 4 of the Rules of Court 2012. ANTARA BETTER POWER (M) SDN BHD [ NO. SYARIKAT: 544240-P] … PEMOHON DAN AGV OFFSHORE SDN BHD [ NO. SYARIKAT: 1008140-A] …RESPONDEN Heard together with S/N a2qtVNP5xkOifalPBd86sw DALAM MAHKAMAH TINGGI MALAYA DI SHAH ALAM DI NEGERI SELANGOR DARUL EHSAN, MALAYSIA NO. GUAMAN SIVIL: BA-24C-59-10/2025 In the matter of Adjudication (Adjudication Reference No. AIAC/D/ADJ-5887-2025) between AGV Offshore Sdn Bhd and Better Power (M) Sdn Bhd; And In the matter of an Adjudication Decision on 29.08.2025 by Tan Chi Sian made; And In the matter of Sections 28 of the Construction Industry Payment and Adjudication Act 2012; And In the matter of Orders 5, 7, 28, 69A Rule 1 and 5 and Order 92 Rule 4 of the Rules of Court 2012 ANTARA AGV OFFSHORE SDN BHD [ NO. SYARIKAT: 1008140A] … PEMOHON DAN BETTER POWER (M) SDN BHD [ NO. SYARIKAT: 544240P] …RESPONDEN GROUNDS OF JUDGMENT S/N a2qtVNP5xkOifalPBd86sw

This case concerns an application by Better Power (M) Sdn Bhd (“Better Power”) to set aside an adjudication decision dated 29.8.2025 (“AD”) made pursuant to the Construction Industry Payment and Adjudication Act 2012 (“CIPAA”), by which a sum of RM218,848.50 was awarded to AGV Offshore Sdn Bhd (“AGV”), on the grounds of excess of jurisdiction, breach of natural justice, and, belatedly, a non-existent contracting entity.

OS 54 is the application by Better Power pursuant to S. 15(b) and

(d), CIPAA for an order to set aside the AD whilst OS 59 is the application by AGV pursuant to S.28, CIPAA for an order to enforce the AD.

By agreement of parties on 23.10.2025, both Originating Summonses were heard together.

As OS 59 is dependent on the outcome of OS 54, the Court proceeded to determine OS 54 first.

After hearing submissions from both parties, this Court made the following orders on 27.1.2026 :-

OS 54 was dismissed with costs of RM5,000;

(ii) OS 59 was allowed with costs of RM3,000.

Dissatisfied with my decision, Better Power filed the present appeal on 13.2.2026. I set below my grounds for dismissing OS 54 and allowing OS 59. S/N a2qtVNP5xkOifalPBd86sw

Better Power has premised its application to set aside the AD on S. 15 (b) & (d) of CIPAA in that :-

there has been a denial of natural justice; and

(ii) the adjudicator has acted in excess of jurisdiction.

The relevant cause papers for OS 54 are as follows:-

the Originating Summons dated 21.09.2025 (Enclosure 1);

(ii) Better Power’s Affidavit in Support affirmed by Allakhappayee a/l Solamuthu on 19.09.2025 (Enclosures 2-4);

(iii) AGV’s Affidavit in Reply affirmed by Thavaselvam a/l Krishnan on 15.10.2025 (Enclosure 11); and

(iv) Better Power’s Reply Affidavit affirmed by Allakhappayee a/l Solamuthu on 04.11.2025 (Enclosure 12).

Better Power has averred in Enclosure 2 that the Adjudicator has both exceeded his jurisdiction and/or denied the principle of natural justice when he :-

decided that AGV has completed 46% of the Engineering & Design Works when he was faced with a claim of 60% work completion;

(ii) failed to consider material evidence and documents referred to him by Better Power. S/N a2qtVNP5xkOifalPBd86sw

Belatedly, only in its Reply Affidavit (Enclosure 12) did Better Power raise the issue of the legality of Better Power’s name in the AD.

This application is made by AGV to enforce the AD and the relevant cause papers are as follows :-

the Originating Summons dated 17.10.2025 (Enclosure 1);

(ii) AGV’s Affidavit in Support affirmed by Thavaselvam a/l Krishnan on 17.10.2025 (Enclosures 2-5);

(iii) Better Power’s Affidavit in Reply affirmed by Allakhappayee a/l Solamuthu on 04.11.2025 (Enclosure 8); and

(iv) AGV’s Affidavit in Reply affirmed by Thavaselvam a/l Krishnan on 18.11.2025 (Enclosure 9).

12.

The Sub-Contract was terminated on 15.4.2024. AGV’s claim against Better Power is for payment in respect of engineering and design works allegedly completed prior to the said termination.. S/N a2qtVNP5xkOifalPBd86sw

AGV initiated its claim under CIPAA and the key steps taken by parties are as follows :- Event Date Payment Claim 13.3.2025 Payment Response 28.3.2025 Notice of Adjudication 7.4.2025 Adjudication Claim 3.6.2025 Adjudication Response 19.6.2025 Adjudication Reply 1.7.2025 Rejoinder request rejected 10.7.2025 AD issued 29.8.2025

The terms of the AD are as follows : (verbatim) “33.1 that the Claimant’s claims are hereby allowed as follows :- i. the adjudicated sum is RM218,848.50 and I hereby direct that the Respondent shall make payment of this adjudicated sum within 14 days of receipt of this Adjudication Decision; ii. the Respondent shall pay to the Claimant the interest at 5% per annum from 30.12.2024 until the full amount is S/N a2qtVNP5xkOifalPBd86sw settled. This payment shall be paid within 14 days of receipt of this decision.

33.2 that the Respondent shall pay to the Claimant the cost incurred including the Adjudicator’s fees and expenses, AIAC’s administration charges, taxes and Claimant’s solicitors cost and disbursement for the total sum of RM36,573.24 as stated above within 14 days of receipt of this decision”

CIPAA was enacted to address payment disputes within the construction industry, its primary objective being to facilitate regular and timely payment for construction work.

In this regard, the adjudication mechanism established under CIPAA is intended to provide a speedy and interim dispute resolution process.

Zulkefli Ahmad Makinudin PCA in View Esteem Sdn Bhd v Bina Puri Holdings Berhad (2018) 2 MLJ 22 held that : “[6] It is noted that CIPAA was enacted to introduce statutory adjudication to address lengthy payment times that affected the contractors in the Construction Industry. It is intended as an interim measure to ease the contractors’ cash flow.” S/N a2qtVNP5xkOifalPBd86sw

Section 15 of CIPAA provides very limited circumstances in which an adjudication decision may be set aside.

Section 15 of CIPAA provides as follows :-

Improperly Procured Adjudication Decision 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.

When considering an application under this provision, the Court is not required to delve into the facts of the dispute and / or look into or review the merits of the case. It follows that the Court must adopt a minimalist intervention and in the words of the Court of Appeal in the case of ACFM Engineering & Construction Sdn Bhd v Esstar Vision Sdn Bhd and another appeal [2016] MLJU 1776, the Court’s function is simply to look at the manner at which the Adjudicator conducted the hearing and whether the Adjudicator had committed an error of law during that process, such error relates to whether he had accorded procedural fairness to the parties. S/N a2qtVNP5xkOifalPBd86sw

Further, in the case of Enra Engineering and Fabrication Sdn Bhd v Gemula Sdn Bhd and another case [2020] 7 MLJ 482 where it was held that: “[61] In Bina Puri Construction Sdn Bhd v Hing Nyit Enterprise Sdn Bhd [2016] 7 MLJcon 119; [2015] MLJU 941, the High Court dismissed the applicant’s application to set aside the adjudication decision which was granted in favour of the claimant subcontractor in the adjudication proceedings. Ravinthran Paramaguru J observed as follows: [9] … It must be noted that under CIPAA, there is no right of appeal against the decision of the adjudicator which is interim in nature or of temporary finality only. Section 15 has provided limited grounds on which the decision of the adjudicator may be set aside. Since an application under s 15 is not an appeal, the decision of the adjudicator cannot be reviewed on merits … [12] … As I said earlier, s 15 does not envisage that the decision of the adjudication can be reviewed on its merits. Therefore, it is immaterial if the adjudicator had erred in his finding of facts. The decision of an adjudicator is only of temporary finality pending final settlement of accounts. In the premises, unless there is a clear cut breach of natural justice or excess of jurisdiction, the court should be slow to set aside the decision of the adjudicator.” S/N a2qtVNP5xkOifalPBd86sw

It bears emphasis that the grounds for setting aside an adjudication decision under s.15 of CIPAA are circumscribed. In this regard, it is instructive to consider the observations of Lee Swee Seng J in PCP Construction Sdn Bhd v Leap Modulation Sdn Bhd and other suits (2017) MLJU 905, where His Lordship elaborated on the governing principles applicable to applications to set aside an adjudication decision: “[22] There are very limited grounds for setting aside an Adjudication Decision under section 15 CIPAA, with the common grounds being that under section 15(b) in that there has been a breach of natural justice or under section 15(d) in that the Adjudicator has acted in excess of his jurisdiction. [27] I agree with the Claimant that an adjudication decision may only be set aside if:

the learned Adjudicator has failed to answer the question referred to her or she has answered a question which was not referred to her; or

the manner in which she has gone about her task is obviously unfair; which may then amount to one of the grounds under Section 15 CIPAA.”

This Court also found reference to the case of Terminal Perintis Sdn Bhd v Tan Ngee Hong Construction Sdn Bhd and another case [2017] MLJU 242 where again Lee Swee Seng J held that the Court would uphold the decision made by the adjudicator unless it can be proven that the said decision was made by the Adjudicator not in compliance within the prescribed law under CIPAA: S/N a2qtVNP5xkOifalPBd86sw “[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.”

As Better Power has in its submission premised its application to set aside the AD on grounds which are intertwined under Sections 15(b) and (d) of CIPAA, the essence of its complaints may be summarised as follows :-

a preliminary objection in that there was an alleged non-existent contracting party in the form of Better Power Sdn Bhd;

that the Adjudicator has introduced his own methodology to access completion at 46% based on drawing submissions;

that the Adjudicator has failed to consider material documents submitted by Better Power.

I shall deal with the above issues in turn, including Better Power’s complaints that the Adjudicator has declined to permit it to file a Rejoinder and the uncertainty of the terms of the AD. S/N a2qtVNP5xkOifalPBd86sw

preliminary objection on identity of Better Power

Better Power’s primary contention is that the adjudication was commenced, and the AD was obtained, against “Better Power Sdn Bhd”, an entity said to be non-existent, whereas the present proceedings concern “Better Power (M) Sdn Bhd”, which is the correct legal entity.

Relying on Hock Seng Trading & Construction v Hongler Enterprise & Anor appeal (2025) MLJU 1820, it was contended by Better Power that this discrepancy is fatal and renders the adjudication, and by extension the AD, void ab initio.

The Court of Appeal in Hock Seng’s case was concerned with a situation where the party sued was not a legal entity, in that “Hock Seng Trading & Construction” had no legal status. It was held in that case that :- “44. For the aforesaid reasons, our decision is as follows :

in a case where a party is a sole proprietor, he can only be sued in his own name and to add below his name, the business name he is trading as within brackets

Hock Seng Trading & Construction, without more, was wrongly named as the respondent at the adjudication proceedings. The attendant consequence of the failure is that the proceedings are, therefore, void ab initio. S/N a2qtVNP5xkOifalPBd86sw

In the circumstances, the AD that followed the impugned proceedings has no legs to stand on and therefore, null and void.”

In this case under consideration, the following facts are largely undisputed by parties:-

the Sub-contract entered between parties where :-

the contracting parties are stated to be Better Power Sdn Bhd with registration number 544240-P and AGV Offshore Sdn Bhd with registration number 1008140-A;

(ii) the deponent of Enclosure 2 executed the Sub-contract as the director of Better Power and did not amend, vary or modify the name of Better Power to include “(M)” at the name of Better Power

upon the issuance of the Payment Claim by AGV to Better Power Sdn Bhd as the non-paying party under CIPAA, Better Power through their Solicitors disputed the amount claimed by issuing a Payment Response pursuant to S.6(2) of CIPAA, where even the Solicitors for Better Power unequivocally referred to their client as “Better Power Sdn Bhd” in the said

OS 54 was initially taken out by Better Power Sdn Bhd on 21.9.2025 and only by a Consent Order dated 2.10.2025 Better Power was allowed to amend all pleadings and cause S/N a2qtVNP5xkOifalPBd86sw papers filed to include “(M)” to its name, i.e Better Power (M) Sdn Bhd.

The following features are also material for this Court:

there was no dispute as to the identity of the contracting parties, both parties were legal entities;

Better Power responded to the Payment Claim as Better Power Sdn Bhd and participated without protest;

the parties participated fully in the adjudication proceedings;

no party was taken by surprise as to the identity of the parties in dispute;

there is no evidence before the Court that there exists a separate entity known as “Better Power Sdn Bhd” bearing registration number 544240-P;

more tellingly, Better Power itself commenced OS 54 under the name “Better Power Sdn Bhd”, invoking s.15 of CIPAA as an aggrieved party.

In the case of Jalex Sdn Bhd v China Construction Yangtze River (Malaysia) Sdn Bhd and another case [2022] MLJU 2641, the High Court held that despite the wrong name used in the adjudication proceeding, the entire adjudication proceeding remains valid against CCYR. Lim Chong Fong J (now JCA) at paragraph [29] to [32] held that:- S/N a2qtVNP5xkOifalPBd86sw “[29] Secondly regarding CCYR’s contention that the party named in Jalex is not CCYR’s legal name, I find and hold that the use of

(M) in CCYR’s name by Jalex on the payment claim is merely an abbreviation to (Malaysia). There is no confusion on identity or entity of the intended party to be named as there is no other company or entity with the same name with abbreviation (M) or registered as such in the Companies Commission of Malaysia”

In substance, the adjudication was conducted between the correct commercial parties. The omission of “(M)” does not, in the circumstances of this case, amount to the naming of an entirely different or non-existent entity so as to deprive the proceedings of legal validity.

Having considered the materials, this Court is not persuaded that the discrepancy rises to the level of a jurisdictional nullity.

The Court adopts a substance-over-form approach, consistent with the objectives of CIPAA. To elevate this discrepancy into a jurisdictional defect would undermine the statutory scheme intended for expeditious dispute resolution.

Accordingly, on the issue of Better Power’s name in the AD, I find that this was no more than a misdescription of the Plaintiff, compounded by Better Power itself in the Sub-Contract between the parties and by Better Power’s own solicitors in the Payment Response. The legal status of Better Power was never in issue. S/N a2qtVNP5xkOifalPBd86sw

that the Adjudicator has introduced his own methodology to access completion at 46% based on drawing submissions

Better Power took issue with the methodology adopted by the Adjudicator in determining AGV’s claim. Its argument was twofold: first, that the Adjudicator has decided issues not placed before him; and second, that he adopted a method not advanced by the parties in the dispute.

This Court must carefully distinguish between the Adjudicator deciding a dispute not relied upon in the Payment Claim (which may amount to excess of jurisdiction) and the Adjudicator interpreting or evaluating the same contractual entitlement by reference to surrounding facts and documents submitted (which is within jurisdiction). The former is jurisdictional. The latter concerns the merits.

In its Payment Claim, as reflected in its Adjudication Claim, AGV sought the sum of RM530,770.50, being an amount said to represent 60% completion of its works, inclusive of the retention sum and the performance bond.

Better Power, vide its Payment Response and Adjudication Response, denied AGV’s claim and advanced a counterclaim in the sum of RM3,270,629.50 against AGV.

As detailed at page 20 of his AD, the Adjudicator was thus tasked with the determination of :- S/N a2qtVNP5xkOifalPBd86sw “1. Whether the Claimant is entitled to the payment claim of RM530,770.50 which include the Retention sum and Performance bond; and 2. Whether the Respondent is entitled to the payment claim of RM3,270,629.50 as the losses suffered.”

The dispute referred to adjudication concerned a claim made by AGV for the extent of work done and the value thereof. The Adjudicator was entitled to evaluate the evidence submitted to him and arrive at his own assessment.

The Adjudicator’s jurisdiction is to determine the dispute arising from the Payment Claim and Payment Response. The valuation of work done falls squarely within that remit.

In coming to a determination of AGV’s entitlement to claim against Better Power, the Adjudicator referred and relied on the materials before him and the Adjudicator came to a conclusion that the percentage of works completed by AGV was 46%.

In the following circumstances I find that the method adopted by the Adjudicator was part of his reasoning process in determining whether payment was due to AGV under the contractual relationship as performed, and if so, the amount.

Whether that reasoning is correct is immaterial, the methodology adopted may be right or wrong, but it is not jurisdictional. Even if S/N a2qtVNP5xkOifalPBd86sw erroneous, it is an error within jurisdiction. The jurisdiction invoked remained the same: entitlement to payment under the contract.

Accordingly, no excess of jurisdiction is established, nor does it constitute a denial of natural justice.

Additionally, Better Power has also complained that the Adjudicator has failed to provide reasons in coming to a determination that AGV has completed 46% of its work, contrary to Section 12 (4) of CIPAA.

However, I note that at paragraphs 24(iii)- (v) of his AD (at p. thereof), the Adjudicator has clearly and succinctly stated his reasons for arriving at the said percentage: (verbatim) “iii. In view of the above, I then have to decide on the value of works done by the Claimant. The Claimant claimed that they have completed 60% of the D & E submission. It is clear that both parties agreed that, at this point of time, the number of submissions is 95, and since there is no dispute about this and there is no one submitted to me that what is the actual number of submissions that constitute 100% for this stage, hence, I shall take the number of 95 to be 60% of total submission required from the Claimant; iv. Further, from the Engineering & Design List provided by the Respondent in the Payment Response, I am convinced that the number of submissions that was approved by the Respondent was 26, and it is clear that the submission that was approved with comments is 16, lastly the submission S/N a2qtVNP5xkOifalPBd86sw pending approval was 2. The submissions that were not approved was 51; v. Based on the above, I am in agreement with the Claimant that the Claimant has completed 44 submissions that was either approved, approved with comments and pending approval, whereby the Respondent has either assessed it and has approved it, fully or conditionally, or has yet to assess it which, in the context of the Claimant’s position, they have submitted and hence, completed their works; Therefore, the percentage of works done is 46% out of the total 60% of works submitted at the point of this adjudication;”

S. 12(4) of CIPAA provides that “(t)he adjudication decision shall be made in writing and shall contain reasons for such decision unless the requirement for reasons is dispensed with by parties.”

Whilst S. 12(4) requires reasons, the threshold is minimal. Even brief reasons suffice. I am of the view that the Adjudicator has provided a discernible basis for his findings at paragraphs 24 (iii)-

of his AD (as set out verbatim above), including the calculation leading to the 46% assessment.

As such, I find that the statutory requirement is satisfied. S/N a2qtVNP5xkOifalPBd86sw

that the Adjudicator has failed to consider material documents submitted by Better Power.

Better Power further contended that the Adjudicator has failed to consider material evidence, including notices of default and termination.

According to Better Power had the Adjudicator considered the documents submitted by Better Power in the adjudication proceedings, namely all 6 of the Notices of Default and Notice of Termination, the Adjudicator would have allowed Better Power’s counter-claim against AGV which would extinguish AGV’s claim.

I pause here to reproduce (verbatim) paragraphs 24(ii)–(iv) of the Adjudication Decision (at p. 24 thereof), where the Adjudicator expressly referred to the Notices of Default and the Notice of Termination issued by Better Power and found them to be lacking:- “ii. Further, after the perusal of the Respondent’s Notice of Termination dated 12.4.2024, I am agreeable with the Claimant that the Respondent’s termination has not comply with the contractual requirement as provided for under Clause 19 of the Sub-contract, specifically sub-clause 19.1, whereby the Respondent shall specifying the defaults and notifying the Claimant to remedy the defaults within 7 days from the date thereof; Since the Respondent rely on the notice dated 12.4.2024 as the Notice of Termination for the purpose under Clause 19, the 7 days required for the remedies shall be S/N a2qtVNP5xkOifalPBd86sw provided in the said Notice of termination and not in the Notice of Defaults, if any; iii. In addition to the above, I also noticed that the Respondent has not submitted to this adjudication the supporting document to show the actual engagement and/or losses, and if there is any, it is merely an estimation by the Respondent. I am agreeable with the case cited by the Claimant, in Iso Technic Electrical Sdn Bhd v Calibre M & E Sdn Bhd [2017] MLJU 47; iv. I have also notice that the Respondent has not shown to this adjudication that how much losses and damages suffered by the Respondent from the Notices of Default dated 30.1.2024,

1.2.2024, 2.2.2024, 12.2.2024, 5.3.2024 and 7.3.2024 claimed to have sent to the Claimant;”

I am unable to discern any basis upon which it can be said that the Adjudicator has failed to consider these documents, where he had clearly done so as evidenced above.

At best, Better Power’s complaint is directed at the weight accorded to this evidence and, by extension, the conclusions drawn by the Adjudicator therefrom; such disagreement does not, without more, engage a breach of natural justice. S/N a2qtVNP5xkOifalPBd86sw Issues arising

Rejoinder issue

Better Power made a passing assertion at paragraph 21 of Enclosure 2 that the Adjudicator rejected its application to file a Rejoinder on the basis that AGV had purportedly raised new issues in its Adjudication Reply. It is contended that this refusal deprived Better Power of its right to be heard and was contrary to the principles of natural justice.

This issue was not canvassed by Better Power in its submissions and, in the circumstances, it would appear that this ground has been abandoned in its application to set aside the AD.

Be that as it may, this Court takes this opportunity to re-iterate that S. 12(1) of CIPAA reinforces the principle that the adjudicator was the master of the adjudication procedure before him.

The Court of Appeal in TSR Bina Sdn Bhd v Sykt Pembenaan Yeoh Tiong Lay Sdn Bhd & Anor appeal (2024) 4 MLJ 405 held that “(T)o conclude on the issue of natural justice, whether or not a further response/ rejoinder be permitted is purely a matter of a proper exercise of discretion by the LA. Here, the LA is satisfied that there are sufficient materials before him to deliberate and to decide. Based on our reasons adumbrated above, we find that the exercise of the discretion by the LA is not unreasonable and it does not amount to a breach of natural justice. The LA had acted within his S/N a2qtVNP5xkOifalPBd86sw power under the law to make the decision. In fact, as a master of his own procedure, the LA is well entitled to do so under CIPAA.”

I therefore accept that the Adjudicator is the master of his own procedure and has the discretion to allow or not allow further responses (by way of rejoinder) subject to observance of the rule of natural justice under S. 24(c) of CIPAA, to which Better Power has failed to show a breach of.

S. 12(5) of CIPAA

The final issue concerns Better Power’s contention that the Adjudication Decision is contrary to s.12(5) of CIPAA. Although this point was not pleaded — in particular in Enclosures 2 and 12 — Better Power has nevertheless advanced detailed submissions on it.

As the Adjudication Decision has been reproduced in full at paragraph 15 above, the alleged uncertainty relied upon by Better Power is confined to the manner of payment of the adjudicated sum.

A careful and thorough reading of the Adjudication Decision dispels Better Power’s contention that it is uncertain.

Payment of the Adjudicated Sum, interest and costs is spelt out expressly. There is simply no room to argue ambiguity.

Support for this can be found in the case of Pasukhas Sdn Bhd v Empire Multiple Sdn Bhd & Anor appeal (2019) MLJU 1393 where at paragraph 31, the Court held that : S/N a2qtVNP5xkOifalPBd86sw “The manner of payment would refer to whether it is in one lump sum or by way of instalments and generally if not stated otherwise it would mean the whole of the Adjudicated sum is to be paid by the appointed date.”

This contention is devoid of merit and is rejected.

Based on the preceding paragraphs, I am satisfied that Better Power has not been able to discharge the burden that there has been a breach of natural justice and/or that the Adjudicator has exceeded his jurisdiction in arriving at the AD.

Finally, this conclusion accords with the statutory policy underlying CIPAA, which is to provide a swift, interim and commercially efficacious mechanism for resolving payment disputes in the construction industry. As cautioned by UDA Holdings Sdn Bhd v Bisraya Construction Sdn Bhd & Anor case (2015) 11 MLJ 499, per Mary Lim J (as Her Ladyship then was), an adjudicator’s decision, though enforceable, possesses only provisional effect for the intervening period, a concept commonly described as “temporary finality”

The courts have repeatedly cautioned against undue intervention which would undermine the speed and utility of adjudication by converting enforcement or setting-aside proceedings into a merits review. As none of Better Power’s complaints discloses jurisdictional error, material breach of natural justice, or any want of S/N a2qtVNP5xkOifalPBd86sw independence or impartiality, this court should, and does, decline to intervene.

As held in Gazzriz Sdn Bhd v Hasrat Gemilang Sdn Bhd (2016) MLJU 1054 the only recourse for correcting alleged merit-based error is through final dispute resolution, which Better Power has demonstrably failed to pursue. At paragraph 47, the Court held :- “That ‘error’ if there be will have to be corrected at arbitration or litigation as the adjudication decision is only interim finality and will be overtaken by the fully final arbitral award or litigation judgment.”

S.28(1) of CIPAA states as follows: “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.

In Inai Kiara Sdn Bhd v Puteri Nusantara Sdn Bhd (2019) 2 CLJ 229, the Court of Appeal held that the court may exercise its discretion to grant leave under S.28(1) and (2) of CIPAA to enforce an adjudication decision if 3 conditions are met :-

the adjudication decision has been made in favour of the party applying for leave; S/N a2qtVNP5xkOifalPBd86sw

(ii) the party against whom an adjudication decision has been made, has failed to pay the adjudicated amount on the date specified in the adjudication decision; and

(iii) there is no prohibition on the court’s discretionary power to grant leave to enforce the adjudication decision.

As there are no merits in the setting aside application, the AD remains in force which remained unpaid by Better Power to AGV and there is no prohibition to grant the order sought by AGV pursuant to S.28 of CIPAA.

The threshold laid down by the Court of Appeal in Inai Kiara has accordingly been met by AGV for an enforcement order under S. of CIPAA.

The Court therefore dismissed Enclosure 1 (OS 54) with costs of RM5,000.00 to be paid by the Plaintiff (Better Power) to the Defendant (AGV) and subject to allocator.

Enclosure 1 (OS 59) is allowed with costs of RM3,000.00 to be paid by the Defendant (Better Power) to the Plaintiff (AGV) and subject to allocator. S/N a2qtVNP5xkOifalPBd86sw Dated : 24 March 2026 t.t ………………………………………. Shahriza Zalina Binti Abdul Shukor Judicial Commissioner High Court of Malaya Shah Alam For Better Power : Nadesh Ganabaskaran Nurul Hibbah Abd Khalid (Messrs. Malek, Gan & Partners) For AGV : Lee Hui Ming Chew Cal vin (Messrs. Cal Vin, Hong & Partners) S/N a2qtVNP5xkOifalPBd86sw