13.3 costs in the sum of RM89,533.22 which includes t fees, AIAC administrative costs, taxes as well as party to party costs [10] The parties agreed for this court to hear and decide the 3 OS together. [11] Being dissatisfied with my decision, a Notice of Appeal has been filed by BMG. D. OBJECT CIPAA 2012 [12] CIPAA 2012 is a creature of the legislation intended to facilitate speedy and regular payments in the construction industry. As cash flow is the utmost important factor in the construction industry, CIPAA provides interim measures to disputing parties to solve payment issues expeditiously so as not to jeopardise the continuance of the construction contract entered into by them. (see Martego Sdn Bhd v. Arkitek Meor & Chew Sdn Bhd and another appeal [2019] 8 CLJ 433; [2019] 5 AMR 516 FC; Bertam Development Sdn Bhd v. R&C Cergas Teguh Sdn Bhd [2017] 1 LNS 2228) E. ISSUES [13] BMG 2012 is premised on : i. The Adjudicator had breached the rules of natural justice in and/or ii. The Adjudicator had not acted impartially and had breached natural justice in failing to consider all documents presented to him which led to him acting in excess of his jurisdiction in arriving at a disproportionate outcome to the detriment of BMG. [14] application for a stay of execution of the AD pursuant to s16 of CIPAA 2012 is premised as follows: i. Pending the full and final determination in arbitration pursuant to s. 16(1) (b) of the CIPAA; ii. That there is a clear and unequivocal error in the AD; and iii. That be able to repay the Adjudication Sum should BMG is successful at the Arbitration. [15] Juang 2012 is premised as follows; i. that the Adjudicated Amount is not paid by BMG; and ii. that the AD is neither set aside nor stayed. F. FINDINGS OF THE COURT I. Setting Aside OS-Suit 38 (s.15 of CIPAA 2012) [16] The issues which BMG had raised against the AD are particularly pursuant to s.15(b), (c) and (d) of CIPAA 2012. As such, I will consider whether BMG had discharged its burden on a balance of probabilities to prove to this court that there has been a denial of Natural Justice by the Adjudicator, that the Adjudicator had failed to act impartially and that the Adjudicator had acted in excess of his jurisdiction respectively in arriving to his conclusion of the Adjudication Proceedings. It is also the contention of BMG that there are clear and unequivocal errors in the AD. a. s.15(b) of CIPAA 2012 [17] It is Adjudicator had failed to properly or at all consider all the defences raised by BMG as such the Adjudicator had acted in breach of Natural Justice and in excess of his jurisdiction. In particular, the Adjudicator had on LAD as stated in paragraph 28 of the AD on the ground that :- i. Due to the absence of an extension of time clause, the ii. extension of time, Juang merely needs to complete the works within a reasonable time. [18] It defence raised by BMG with regards to the LAD issue as stated in its Adjudication Response. According to BMG, the Adjudicator in his decision at paragraph 28 had failed to consider that there is a total delay of 743 days (from the Completion Date of 18.11.2019 until the date of practical completion on 30.11.2021) which exceeds the total number of days of extension of time that Juang is entitled to. [19] I refer to the case of MRCB Builders Sdn Bhd v. Wazam Ventures Sdn Bhd and another case [2020] 1 LNS 891; [2020] MLJU 208, where Wong Kian Kheong J (as he then was) held that it is sufficient to dislodge a complaint of breach of natural justice if the Adjudicator had given just one reason to have arrived to his decision. [20] The principle of Natural Justice that is said to have been denied here is the right to being heard, audi alteram partem. In an Adjudication Proceedings, the Adjudicator has the duty to accord procedural fairness to the parties during the course of the proceedings whereby the issues raised by both parties are to be considered and a decision is to be derived therefrom. In the case of ACFM Engineering & Construction Sdn. Bhd. v. Esstar Vision Sdn Bhd & another appeal [2016] 1 LNS 1522; [2016] MLJU 1776, the Court of Appeal held: [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 [21] In perusing through the AD, unlike what is claimed by BMG, the Adjudicator had deliberated on the issue of LAD at paragraph 17 onwards till he reached a conclusion on this issue at paragraph 28 of the AD. [22] Even BMG had conceded to the fact that the Adjudicator had considered the LAD issue before concluding at paragraph 28 i.e that time is at large and that Juang only has to complete the works within a reasonable time. [23] With regards to the issue of set off of RM398,745.03 being the differential sum as a result of remeasurement, the Adjudicator deliberated at length on this issue at paragraph 36(b) to 38 of his AD before coming to his decision whereby he had decided against claim for a set off. [24] Therefore, BMG address the issue of set off raised by it at the Adjudication Proceedings is totally unsubstantiated and unfounded. [25] On whether the Adjudicator had considered issues which were raised by Juang in the Adjudication Reply, it cannot be denied that the Adjudication Reply and a final Sur-Rejoinder by Juang. The issue which was said to have been raised in the Adjudication Reply was that time is set at large, which BMG had addressed in its Rejoinder opposing the same. Juang had also addressed the same issue in its Sur-Rejoinder. As such, BMG has failed to prove to the court that the Adjudicator had not accorded procedural fairness in the Adjudication Proceedings. [26] but had also made his findings in accordance to all the documents in relation to these issues which had been submitted for the purpose of this proceedings. [27] I refer to the case of Bina Puri Construction Sdn Bhd v Hing Nyit Enterprise Sdn. Bhd. [2015] 8 CLJ 728 where it was stated as follows: Adjudicator may be set aside. Since an application under s.15 is not an b. s.15 (c) of CIPAA 2012 [28] An AD can be set aside if it can be established pursuant to s. 15(c) of CIPAA 2012 if BMG discharges its legal burden that the Adjudicator lacked independence or impartiality in conducting the Adjudication Proceedings and in delivering the AD. [29] On the issue of lack of independence or impartiality of the Adjudicator, Lee Swee Seng J (as he then was) in the High Court case of Teguh Wiramas Sdn Bhd v. Thien Seng Chan Sdn Bhd [2017] 1 LNS 619; [2017] 4 AMR 501 had stated the following: There is also no basis for the Respondent to allege that the Adjudicator had failed to act independently and impartially. The fact that the Adjudicator did not agree with the Respondent's position on the law is no proof that he had failed to act independently and impartially. Such an allegation should not be launched without some evidence pointing inexorably to a lack of independence or impartiality in the hearing and the delivery of the Adjudi [30] In this case, it is BMG consider issues which had been raised by BMG at the Adjudication Proceedings, such as, omissions and recalculations. It is also said that the Adjudicator had failed to invite for further submissions on these issues and the issue on LAD which BMG had raised as its cross-claim at this proceedings. Hence, the Adjudicator had failed to display impartiality and independence in his role when arriving to his decision. [31] Apart from the allegations made against the Adjudicator, BMG had not adduced any evidence to show that the Adjudicator lacked independence or impartiality in making his decision in favour of Juang. As shown in the above paragraphs when dealing with s.15(b) of CIPAA, the Adjudicator had reasoned out every conclusion that he had reached when deliberating the issues brought before him. As such, I am not convinced that BMG has discharged the burden of proving the allegation made against the Adjudicator under this limb. c. s.15(d) of CIPAA 2012 [32] s.27 of CIPAA 2012 provides the jurisdiction in which the Adjudicator can conduct the Adjudication Proceedings. s.27(3) of CIPAA particularly gives the Adjudicator the discretion to proceed and complete the adjudication proceedings not withstanding any jurisdiction challenge, without prejudice to the rights under s.15 and s.28 accordingly. [33] An AD is commonly applied to be set aside in reliance of s.15(d), as such the case of Terminal Perintis Sdn. Bhd. v Tan Ngee Hong Construction Sdn. Bhd. and another [2017] 1 LNS 177; [2017] MLJU J (as his he then was) classified jurisdiction 3 categories ie. core jurisdiction, competence jurisdiction and contingent jurisdiction. [34] In this case, the jurisdiction challenge is on the contingent jurisdiction as stated in the Terminal Perintis Sdn. Bhd. v Tan Ngee Hong Construction Sdn. Bhd. and another (supra): there must be further compliance with the requirements of the Act as in that the dispute must be one falling within the matters raised in the Payment Claim and the Payment Response as provided for under section 27(1) CIPAA. In that example the word "jurisdiction" is used in the sense of the scope of the dispute that is before the Adjudicator for decision. So, for example an Adjudicator may not be able to decide on the defence of set-off arising out of costs of rectifying defective works if this has not been raised in the Payment Response. If he so decides, then this Court may set it aside as been made in [35] In this case, BMG a frolic of his own in coming to his decision and as such he had acted in excess of his jurisdiction. However, on t all the issues which the Adjudicator had dealt with had been brought to him, including the issue pertaining to LAD. [36] In fact, BMG had in its Affidavit in Support stated that the Adjudicator had failed to consider Clause 17 of the Letter of Award date 19.9.2017 and PILING WORKS STRUCTURES 8.1 PILING WORKS (ALL PROVISIONAL) Note: All when deliberating issues involving omissions and recalculation. [37] However, BMG failed to show that this issue was in fact raised during the Adjudication Proceedings. As submitted by Juang, BMG had never raised the issue pertaining to clause 17 of the LOA and the terms in Tender Bill No. 8 in the adjudication proceeding. [38] Therefore, BMG cannot now allege that the Adjudicator has exceeded his jurisdiction because he failed to consider clause 17 of the LOA and terms in Tender Bill No. 8 because these points were never raised by BMG in the Adjudication Proceedings in the first place. [39] Therefore, having failed to establish s.15(b), (c) and (d) of CIPAA 2012 against the Adjudicator, BMG has failed to discharge its burden on balance of probabilities to set aside the AD. As such, this application to set aside the AD is hereby dismissed with costs of RM5,000.00 to be paid to Juang by BMG subject to allocatur fees. II. Stay of Execution Suit 39 (s.16 of CIPAA 2012) [40] BMG via its affidavit in support deposed by its director had stated this application is in reliance to s.16(1)(b) CIPAA and that the execution of the AD should be stayed on the basis that there is a pending civil suit. [41] The Federal Court case of View Esteem Sdn Bhd v. Bina Puri Holdings Bhd [2019] 5 CLJ 479 His Lordship Zulkefli Ahmad Makinuddin PCA had in delivering the judgement stated the following: s. 16 of CIPAA would allow some degree of flexibility to the courts to stay the award where there are clear errors, or to meet the justice of the individual case. It is accepted that a stay of the award ought not be given [42] Since I have deli aside the AD, I am of the view that there are no clear and unequivocal errors in the AD which warrant a stay of execution to be granted. [43] On the grounds that stay should be granted pending the final determination of a pending civil suit, to prevent an abuse of s16 CIPAA, I fall back on what was said by Justice Lee Swee Seng (as his Lordship then was) in the case of Pasukhas Sdn Bhd v. Empire Multiple Sdn Bhd and Another Case [2019] 1 LNS 757; [2019] MLJU 1393. His Lordship in his judgment had succinctly reasoned that in spite of s. 16(1)(b), allowing a stay merely on the fact that the arbitration had commenced with the service of a notice to arbitrate would render the entire purpose of the CIPAA futile and statutory adjudication wholly ineffective to ensure cashflow in the construction industry. [44] The final reason given for this stay application is that the financial standing of Juang is weak and as such, should BMG is successful in the civil suit, Juang will not be able to pay back the Adjudication Sum to BMG. [45] reveals that Juang has suffered a loss after tax of RM88,524.99. As such, Juang may not be able to repay BMG should it be successful at the civil suit. [46] Be that as sit may, in the same report, it also shows that Juang has a revenue of RM56,874,555.56. A revenue of such an amount certainly does not reflect Juang as a weak concern. BMG has failed to suit decision nugatory should it be made in favour of BMG. [47] In the upshot, I d application with costs of RM5,000.00 subject to allocator fees. III. Enforcement OS Suit 43 (s.28 of CIPAA 2012) [48] As guided by Her Ladyship Mary Lim Thiam Suan JCA (as she then was) in the Court of Appeal case of Inai Kiara Sdn Bhd v. Puteri Nusantara Sdn Bhd [2019] 2 CLJ 229, the court may exercise its discretion to grant leave under s. 28(1) and (2) CIPAA to enforce an adjudication decision if the following three conditions (3 Conditions) are met: applying for leave under s. 28 CIPAA;