Crcc Malaysia Berhad v Twin Pavilion Development Sdn Bhd (WA-24C-46-03/2023)

the application by Twin Pavilion Development Sdn Bhd (‘Twin Pavilion’) pursuant to s 15(b) and (c) of the Construction Industry Payment and Adjudication Act 2012 [Act 746] (‘CIPAA’) and O. 69A, rr. 2 and 3 and O. 92, r. 4 of the Rules of Court 2012 (‘RC 2012’) in Originating Summons No. WA-24C-25-02/2023 (‘O.S. No. 25’) to set aside the Adjudication Decision dated 10.1.2023 (subsequently re-dated as 11.1.2023 to correct typographical errors) (‘AD’) by the learned Adjudicator, Sivabalan Sankaran (‘Adjudicator’) (‘Setting Aside Application’);

the application by Twin Pavilion pursuant to s 16(1)(a) and O. 32, r. 4 and O. 69A, rr. 2 and 4 RC 2012 in encl. 3 in O.S. No. 25 to stay the AD until the disposal of the Setting Aside Application (‘Stay Application’); and

the application by CRCC Malaysia Berhad (‘CRCC’) pursuant to s 28 CIPAA in O.S. No. WA-24C-46-03/2023 (‘O.S. No. 46’) to enforce the AD (‘Enforcement Application’). [2] On 26.7.2023, after having considered the affidavit evidence and the submissions of the parties, the Court had dismissed both the Setting Aside Application and the Stay Application with costs of RM6,000.00 and RM1,500.00, respectively, and allowed the Enforcement Application with costs of RM2,500.00. All orders as to costs are subject to payment of the standard allocatur fees. [3] Twin Pavilion is aggrieved by the decision of this Court in respect of the Setting Aside Application and the Enforcement Application and is pursuing its right to appeal against the same. The Cause Papers [4] The cause papers are as follows:

Twin Pavilion’s O.S. dated 24.2.2023 (encl. 1);

Twin Pavilion’s Affidavit In Support (‘AIS’) affirmed by its Director, Lee Seng Khoon on 23.2.2023 (encl. 2);

CRCC’s Affidavit In Reply (‘AIR’) affirmed by its Project Manager, Kaw Kok Ching on 23.3.2023 (encl. 5);

Twin Pavilion’s AIR affirmed by the same deponent on 17.4.2023 (encl. 9); and

CRCC’s Notice of Intention To Use Affidavit (all affidavits in O.S. No. 46) dated 22.6.2023

CRCC’s O.S. dated 23.3.2023 (encl. 1);

CRCC’s AIS affirmed by the same deponent on 23.3.2023 (encls. 2 and 3);

Twin Pavilion’s AIR affirmed by the same deponent on 17.4.2023 (encl. 6);

Twin Pavilion’s AIR affirmed by the same deponent on 2.5.2023 (encl. 7); and

CRCC’s Notice of Intention To Use Affidavit (all affidavits in O.S. No. 25) dated 22.6.2023 (encl. 8). Background Facts [5] Twin Pavilion is a private limited company incorporated in Malaysia with a registered address at Level 5, Tower 8, Avenue 5, Horizon 2, Bangsar South City, 59200 Kuala Lumpur and a business address at Lot A1.48 (Ground Floor), Tower A, Plaza Pantai, Jalan Pantai 59200 Kuala Lumpur. Its business is in property development. [6] CRCC is also a private limited company incorporated under the laws of Malaysia with a registered address at No. 29-3, Jalan 1/116B, Kuchai Entrepreneurs’ Park, Off Jalan Kuchai Lama, 58200 Kuala Lumpur. Its business address is at Suite 20-02, 20-03 & 20-04, 20th Floor, Menara Tan & Tan, 207, Jalan Tun Razak, 55000 Kuala Lumpur. CRCC's nature of business is the construction of infrastructure and other related activity. [7] Twin Pavilion is the owner and the developer of the project known as “Cadangan Membina 1 Blok Pejabat Yang Mengandungi:- Blok F 25 Tingkat Di Atas Lot 2508 Hingga 2511, 4096 dan 4099, Lebuhraya Persekutuan Kuala Lumpur Untuk Tetuan Twin Pavilion Development Sdn Bhd [Bangsar Trade Centre — Block F]” (‘Project’). [8] By the Letter of Award dated 20.5.2018 (‘LoA’), Twin Pavilion, through its consultant, NRY Architects Sdn Bhd (‘NRY’) had awarded the Project to CRCC subject to the Agreement And Conditions of PAM Contract 2006 (With Quantities) ('PAM Contract'), Specifications, Bills of Quantities, Drawings, Conditions of Tendering, Form of Tender, addendums and stipulations of the Tender Documents ('Contract') for the contract sum of RM59,629,021.79. The representatives of CRCC confirmed their agreement to the LoA on 6.6.2018. [9] According to Clause 2 of the LoA, the main building works shall be carried out and completed within 20 calendar months from 28.5.2018. [10] On or around 2020, the Project was allegedly novated by Twin Pavilion to BT Bina Group Sdn Bhd (‘BT Bina’) whereby all payments thereafter were made directly by BT Bina to CRCC. [11] A dispute arose between the parties regarding payments allegedly due and owing by Twin Pavilion to CRCC which led to the submission of CRCC's Payment Claim on 25.8.2022 pursuant to s 5 CIPAA. [12] In para 4 of the Payment Claim, CRCC stated that, on 20.5.2020, NRY issued an Interim Payment Certificate No. 7 certifying a sum of RM2,525,175.95 as due to CRCC (‘IPC No. 7’). Part payment in the sum of RM150,000.00 was made on 27.5.2020 leaving an outstanding sum of RM2,375,175.95. [13] It is further stated in paras 5 and 6 of the Payment Claim that, pursuant to Clause 6(f) of the LoA and Clause 30.1 of the PAM Contract that Twin Pavilion is required to make payment to CRCC one month from the date of issuance of the payment certificate and by failing to make payment for the sum of RM2,375,175.95 by 20.6.2020, Twin Pavilion has breached the Contract. [14] Twin Pavilion did not serve any Payment Response. Based on sub-s 6(4) CIPAA, Twin Pavilion is deemed to have disputed the entire Payment Claim. [15] The Notice of Adjudication pursuant to s 8 CIPAA was served on Twin Pavilion on 13.9.2022. [16] The Adjudicator accepted the appointment as adjudicator on 6.10.2022. [17] On 25.10.2022, CRCC served its Adjudication Claim on Twin Pavilion pursuant to s 9 CIPAA. [18] As at 9.11.2022, being the last day for Twin Pavilion to submit its Adjudication Response, Twin Pavilion did not do so. [19] Several correspondences between the Adjudicator and the parties ensued and this will be elaborated in the succeeding part of these grounds of judgment. Suffice to say for the moment that the Adjudicator had, on 17.11.2022, rejected Twin Pavilion's application for abridgement of time to serve the Adjudication Response. [20] Eventually the Adjudicator determined, in para 47 of the AD, that: "… A. The Respondent, to pay the Claimant the sum of RM2,375,175.95 on or before the 25th January 2023; B. The Respondent shall bear the costs of the Claimant in the sum of RM10,000.00 to be paid on or before 25th January 2023; C. The Respondent shall pay simple interest of 5% per annum on the sum of RM2,375,175.95 from 20th June 2020 until 24th January 2023 on or before 25th January 2023. D. In default of paragraph 47A above, the Claimant Respondent shall pay simple interest of 5% per annum on the sum of RM2,375,175.95 from 26th January 2023 until full settlement; E. The Respondent shall bear the full costs of this adjudication. These costs shall include RM31,567.90 being the adjudicators fees and RM6,660.60 being AIAC’s administrative fees." (hereinafter referred to as the 'Adjudicated Sum'). [21] On 13.2.2023, CRCC's solicitors sent a letter to Twin Pavilion demanding payment for the sums as awarded in the AD. However, no payment was forthcoming from Twin Pavilion. The Setting Aside Application [22] Section 15 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:

…

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.”. [23] The brief grounds in support of the application as can be seen in O.S. No. 25 are that: “1. Kesemua prosiding adjudikasi termasuk Keputusan Adjudikasi bertarikh semula pada 11.01.2023 adalah batal dan tidak sah (“null and void”);

Adjudikator telah melanggar dan gagal mematuhi keadilan asasi (“denial of natural justice”) dan tidak bertindak dengan bebas dan saksama apabila enggan membenarkan lanjutan masa bagi membenarkan Plaintiff memfailkan dan mengemukakan dokumen-dokumen;

Adjudikator gagal dan/atau enggan mempertimbangkan isu yang dibangkitkan Plaintif semasa permohonan lanjutan masa yang mewajarkan pertimbangan adil walaupun terdapat beberapa isu dan percanggahan fakta dibangkitkan dan diakui dalam Keputusan

Adjudikator tidak melaksanakan tugas dengan wajar dan betul apabila gagal dan/atau enggan menimbang dan mengambilkira segala fakta dan isu dengan sepenuhnya tanpa mengambilkira permohonan Plaintiff untuk memohon lanjutan masa bagi mengemukakan dokumen bagi hujahan;

Adjudikator gagal melaksanakan tugas dengan wajar dan betul apabila gagal dan/atau enggan melaksanakan kuasanya untuk mendapatkan kesemua bukti yang relevan semasa membuat keputusan mengenai isu-isu dalam tuntutan adjudikasi tersebut;

Keengganan dan/atau kegagalan Adjudikator seperti yang dinyatakan di atas telah menjejaskan proses untuk mencapai keputusan yang adil dan saksama;

Oleh yang demikian, Keputusan Adjudikasi tersebut tidak boleh dipertahankan dan harus diketepikan.”. - Preliminary Objection by CRCC [24] CRCC raised a preliminary objection in relation to CRCC's AIS which is said to be in direct contravention to O. 92, r. 1(1) RC 2012 which provides that "Subject to paragraph (2), any document required for use in pursuance of these Rules shall be in the national language and may be accompanied by a translation thereof in the English language, except that the translation for the purpose of Order 11, rule 6(4) and rule 7(1) shall be prepared in accordance with rule 6(5) of that Order: Provided that any document in the English language may be used as an exhibit, with or without a translation thereof in the national language.". [25] Ms. Shirley Hor, in submitting for CRCC, cited the following passage from the judgment of this Court in Kok Kon Sang v Institut Akauntan Malaysia [2020] 1 CLJ 702 (the appeal against the decision was struck out on 1.10.2019): “[46] On the issue of language of the AIS, O. 92 r. 1(1) ROC 2012 provides that any document required for use in pursuance of ROC 2012 shall be in the national language and may be accompanied by a translation thereof in the English language. The parties and counsel representing them must pay heed to this mandatory requirement, less they shall suffer from the inevitable consequent of non-compliance. Abdul Malik Ishak JCA in Dato’ Seri Anwar Ibrahim v. Tun Dr Mahathir Mohamad [2010] 1 CLJ 444; [2010] 2 MLJ 41 at p. 58 said that the mandatory provisions of art. 152 of the Federal Constitution read together with s. 8 of Act 32 and s. 3 of the Interpretation Acts 1948 and 1967 (Consolidated and Revised 1989) (Act 388) must be adhered to and any failure would amount to a blatant breach. [47] In this case, the Malay language version of the AIS merely states the words: Di hadapan saya ILLEGIBLES Pesuruhjaya Sumpah under what is alleged to be the appellant’s signature. There is no proof that the Malay text of the AIS was affirmed before a Commissioner of Oaths who then placed his or her stamp on the affirmation page of the AIS. This is clearly contrary to the mandatory requirement for the AIS to be sworn or affirmed before a Commissioner of Oaths (see Gan Thing Phing v. Ong Gek Kim (No 2) [1999] 7 CLJ 146; [1998] 7 MLJ 351 at p. 356). In these circumstances, this Court is entitled to make a finding that no AIS of encl. 9 has been filed at all. [48] Without an AIS, encl. 9 has no legs to stand on. ...". [26] CRCC argued that Twin Pavilion has failed to comply with the statutory requirement as provided in O. 92, r 1(1) RC 2012 as the AIS was filed only in the English language and as a result, the Setting Aside Application is defective and bad in law. The Court was urged to strike out the Setting Aside Application in limine. [27] In its response to the Preliminary Objection, Twin Pavilion relied on several provisions in the RC 2012 in submitting that –

under O. 1A and O. 2, rr. 1 and 3 of the RC 2012, the Court has an inherent power to put the interest of justice beyond technical non-compliance and the power to cure the irregularities of technical non-compliance: "Regard shall be to justice (O. 1A) In administering these Rules, the Court or a Judge shall have regard to the overriding interest of justice and not only to the technical non-compliance with these Rules." “Non-compliance with Rules (O. 2, r. 1)

1.

Where, in beginning or purporting to begin any proceedings or at any stage in the course of or in connection with any proceedings, there has, by reason of any thing done or left undone, been non-compliance with the requirement of these Rules, the non-compliance shall be treated as an irregularity and shall not nullify the proceedings, any step taken in the proceedings, or any document, judgment or order therein. …

The Court or Judge may, on the ground that there has been such non-compliance as referred to in paragraph (1), and on such terms as to costs or otherwise as it or he thinks just, bearing in mind the overriding objective of these Rules, exercise its or his discretion under these Rules to allow such amendments, if any, to be made and to make such order, if any, dealing with the proceedings generally as it or he thinks fit in order to cure the irregularity.";

under O. 2, r. 3 of the RC 2012, the Court has inherent power to cure the defects of the application: “Preliminary objection for non-compliance of rules not allowed (O. 2, r. 3)

A Court or Judge shall not allow any preliminary objection by any party to any cause or matter or proceedings only on the ground of non-compliance of any provisions of these Rules unless the Court or Judge is of the opinion that such non-compliance has occasioned a substantial miscarriage of justice or occasioned prejudice that cannot be cured either by amendment or an appropriate order for costs or both."; and

under O. 92, r. 4 of the RC 2012, the Court is empowered to look beyond the rules and the Court has inherent powers to prevent any purported injustice which occurred in this case: “Inherent powers of the Court (O. 92, r. 4)

For the removal of doubt, it is hereby declared that nothing in these Rules shall be deemed to limit or affect the inherent powers of the Court to make any order as may be necessary to prevent injustice or to prevent an abuse of the process of the Court.". [28] Ms. Aqilah attempted to persuade the Court that the English language is not foreign to either party, especially since the adjudication proceedings was conducted in English. Hence, there is no prejudice to CRCC. Moreover, in Kok Kon Sang, the Court proceeded to hear the matter and it was not dismissed purely on the ground that there was an irregularity in respect of the affidavit. [29] At the hearing of the Setting Aside Application, the Court had enquired as to why, after Twin Pavilion was aware of the Preliminary Objection, it took no steps to apply to file the AIS in the national language. Ms. Aqilah said that Twin Pavilion had chosen to affirm the AIS in English as its preferred language. [30] In the absence of any justification for the non-filing of the AIS in the national language and in what appears to be a flagrant disobedience to the mandatory legal provisions as explained in the above quoted passage from Kok Kon Sang's case (see too, paras 44 - 48 in the judgment of the Court of Appeal in Rekha d/o Munisamy v Ortus Expert White Sdn Bhd & Anor [2021] 5 MLJ 836), I was inclined to the view that this is not a case where Twin Pavilion can avail itself to the provisions of the RC 2012 as cited by its learned counsel. [31] The Court therefore made a similar finding as in Kok Kon Sang, namely that there is no AIS to support the Setting Aside Application and consequently, the application in encl. 1 of O.S. No. 25 has no legs to stand on and should be dismissed for the reason of the Preliminary Objection. [32] Nevertheless, in the event that I am found to be wrong in allowing the Preliminary Objection, I had considered the Setting Aside Application on its merits, including the contents of the AIS, as discussed below. 1st Issue: Whether there is a denial of natural justice as the Adjudicator had failed to consider the substantial issues and facts raised by Twin Pavilion and to provide cogent justifications in denying Twin Pavilion's request for extension of time to submit the Adjudication Response [33] Based on the AIS, Twin Pavilion's complaints that there is a breach of natural justice may be summarised as follows:

the Adjudicator had arbitrarily exercised his power in contravention of ss 24 and 25 CIPAA;

the Adjudicator failed to consider the unreasonable, limited and insufficient amount of time provided for Twin Pavilion to submit a reasonable and concrete defence to the Adjudication Claim, including the necessary documentation to respond to CRCC's claims; and

in denying the request for abridgment of time to allow Twin Pavilion to serve its Adjudication Response to CRCC, the Adjudicator had disregarded the issues and facts raised by Twin Pavilion in the letter dated 17.11.2022, specifically the claim that the Project was novated to BT Bina and BT Bina has given an undertaking to issue payments directly to CRCC, and failed to obtain clarification from Twin Pavilion about the purported nominee. This caused grave injustice towards Twin Pavilion. The cumulative effect of all the above is contended to have rendered the AD null and void for the reason that the issues raised by Twin Pavilion were not addressed and no decision was made on the same. [34] It is well-entrenched in the law that "natural justice" in s 15(b) of the CIPAA relates to the second rule of natural justice; basically that there is procedural fairness in the manner that the adjudicator conducted the adjudication proceedings. The parties in the adjudication have the right to prior notice and an effective opportunity to make representations before the adjudicator makes a decision. A breach of the audi alteram partem rule does not automatically result in an order for the adjudication decision to be set aside. The breach must be material and not merely peripheral or irrelevant. The breach must be decisive or of considerable potential importance to the outcome of the adjudication. This involves a question of degree (see Balfour Beatty Engineering Services (HY) Ltd v Shepherd Construction Ltd [2009] EWHC 2218 (TCC); Cantillon Ltd v Urvasco Ltd [2008] EWHC 282 (TCC); Guangxi Dev & Cap Sdn Bhd v. Sycal Bhd & Another Appeal [2019] 1 CLJ 592 (CA); Ireka Engineering and Construction Sdn Bhd v PWC Corp Sdn Bhd and another appeal [2019] MLJU 35 (CA); Construction Adjudication in Malaysia, Third Edition, Sweet & Maxwell, 2022 by Lam Wai Loon & Ivan YF Loo at pp 227 - 232 and 365 - 367; and Law, Practice And Procedure Of Adjudication, Volume 2, Lexis Nexis, 2023 by Datuk Professor Sundra Rajoo, Leong Hong Kit & Cindy Wong Xien Yee at pp 1100 - 1104). [35] Sections 24 and 25, particularly paras (g), (i) and (p) as cited by Twin Pavilion, of the CIPAA read as follows: "Duties and obligations of the adjudicator

The adjudicator shall at the time of the acceptance of appointment as an adjudicator make a declaration in writing that–

there is no conflict of interest in respect of his appointment;

he shall act independently, impartially and in a timely manner and avoid incurring unnecessary expense;

he shall comply with the principles of natural justice; and

there are no circumstances likely to give rise to justifiable doubts as to the adjudicator's impartiality and independence. Powers of the adjudicator

The adjudicator shall have the powers to – …

conduct any hearing and limiting the hearing time; …

inquisitorially take the initiative to ascertain the facts and the law required for the decision; …

extend any time limit imposed on the parties under this Act as reasonably required.". [36] It has often been reiterated that the adjudicator is the master of his own procedure in the adjudication. Generally speaking, there is no denial of natural justice if the adjudicator decides to exercise or not to exercise any of the discretionary powers under s 25 CIPAA [see Rosha Dynamic Sdn Bhd v Mohd Salehhodin bin Sabiyee & Ors and other cases [2021] MLJU 1222; Dekinjaya Builder Sdn Bhd v Chong Lek Engineering Works Sdn Bhd and another case [2020] MLJU 2455; and Mei He Development Sdn Bhd v. EOSH Industries Sdn Bhd [2021] 1 LNS 425 (the appeal was struck out on 13.10.2021)]. [37] However, the courts have held that the adjudicator had breached the second rule of natural justice where it was established that the adjudicator's exercise of the powers under the CIPAA was done in bad faith or in a manner which was unfair to the complainant (see Guangxi Dev & Cap Sdn Bhd (supra); Kining Exeton Sdn Bhd v Majlis Perbandaran Kuantan and another summon [2020] MLJU 659 (the appeal was struck out on 28.9.2021); Perbadanan Perwira Harta Malaysia v Kuntum Melor Sdn Bhd and another case [2021] MLJU 1593 (the appeal was dismissed on 12.4.2022); and Cescon Engineers Sdn Bhd v Pesat Bumi Sdn Bhd and another case [2022] 9 MLJ 79 (the appeal was discontinued on 10.5.2022). [38] Returning now to the adjudication proceedings in the instant case, in order to fully appreciate Twin Pavilion's grounds to set aside the AD, the chronology of events from the last date when Twin Pavilion was supposed to have submitted its Adjudication Response according to the timeline as provided in sub-s 10(1) CIPAA, namely, within 10 working days from the receipt of the Adjudication Claim, must first be understood. [39] The relevant correspondences are in exhibits “KKC-11” to “KKC-17”, encl. 3 in O.S. No. 46 (see too, exhibits “KKC-1” to “KKC-7”, encl. in O.S. No. 25). A perusal of these exhibits would show the following:

On 26.10.2022, the Adjudicator notified Twin Pavilion that he had received the Adjudication Claim on 25.10.2022 and accordingly Twin Pavilion had 10 working days to serve the Adjudication Response (see para 14 of the AD).

On 14.11.2022, the Adjudicator issued a letter to CRCC's solicitors and Twin Pavilion seeking confirmation whether CRCC had received the Adjudication Response. On the same day, CRCC’s solicitors replied that they have not received the Adjudication Response by the deadline of 9.11.2022 or at any point thereafter. CRCC requested the Adjudicator to exercise his power to decide and deliver the adjudication decision within 45 working days from the expiry of the period prescribed for the service of the Adjudication Response, pursuant to para 12(2)(b) of CIPAA.

On 15.11.2022, the Adjudicator responded by e-mail stating that the adjudication decision would be delivered within 45 working days from the date the Adjudication Response was due. In any event, should either party wish to make any submissions –

such submissions shall be delivered by e-mail to the Adjudicator no later than 25.11.2022;

(ii) any reply submissions shall be delivered by e-mail no later than 1.12.2022;

(iii) submissions should be no more than 25 A4 pages and reply submissions no more than 15 A4 pages; and

(iv) any documents relied upon should be no more than 200 pages in total for submissions and reply submissions. The e-mail was copied to Twin Pavilion, namely, foongkh@twinpavilion.com and sklee@twinpavilion.com.

On 16.11.2022, Twin Pavilion’s solicitors sent a letter to the Adjudicator indicating that they have just been appointed by Twin Pavilion on that day and that: "At the onset, we regret for the delay in our Client’s response to the case due to the confusion that arises from the process. In light of our recent appointment, we humbly seek your Learned Adjudicator’s kind indulgence for the following: - i. To extend and abridge the time for the Respondent under section 25 (p) CIPAA 2012; ii. To allow the Respondent to submit the Adjudication Response thereafter; and iii. If item (i) and (ii) is granted, we humbly request for a copy of the Claimant’s Notice of Adjudication (with its attachments), and Adjudication Claim (Form 7) to be forwarded to our office, for our further action. We look forward to your kind consideration to accord the Respondent an opportunity to defend this matter.". The Adjudicator responded on the same day via e-mail at 7.06 p.m. stating, among others, that: "Before I consider your application please 1) provide a comprehensive explanation as to the delay to enable the exercise of my powers to extend / abridge time, and 2) advise whether your client will agree to extend the time for delivery of an adjudication decision along the lines of any extention (if any) In the mean time please let me have your urgent written consent to include my PA, Doreen in all correspondences I will also seek the Claimants views and revert by close of business on 17 Nov 2022. Dear Claimants counsel As you see, the Respondent has appointed solicitors. I trust you have been copied the same letter as I have. Before i make any decision please let me have your views on the Respondants application. I will expect responses from both parties by 12 noon Thursday 17 November.".

On 17.11.2022, Twin Pavilion’s solicitors issued a letter to the Adjudicator which reads, inter alia, as follows: "We have our Client's instruction to state and sincerely apologise for the delay which was purely an oversight due to the following: -

That the above project has been novated to a Third Party known as BT Bina Group Sdn Bhd (“BT Bina”) since at around year 2020. At all material time since the novation of project, payments were made directly by BT Bina to the Claimant.

At all material time, the relationship between parties are cordial and direct communications regarding the project was ongoing between parties.

Further, at all material times, all liabilities ware novated onto BT Bina and the Respondent believed that the arrears claimed by the Claimant will be settled fully by BT Bina. It was only after receiving legal advice that the Respondent realised that they are mandated to reply to the Claimant's claims.

Further, BT Bina had also given undertaking to make the payments directly to the Claimant since the project was novated to them for which payments was made by them in the past.

In any event, the Respondent humbly apologise for the genuine, sincere error of judgment and oversight by the Respondent.

The Respondent have no objection to extend the time for delivery of an adjudication decision along the lines of any extension and to include your Learned Adjudicator’s PA in our correspondences.”. Later at 1.54 p.m. on the same day, having considered Twin Pavilion’s explanation, the Adjudicator replied by e-mail that: "I have received the Claimants request for an extension till 3 pm to reply to my email of 16| Nov 2022 and the Respondents counsels letter also of 16 Nov 2022. I have also received the Respondents letter dated 17 \Nov 2022 in which the Respondent explains the reason for its failure to comply with the provisions of section 10(1) of CIPAA. I must say that in its letter of 16 Nov the Respondent claimed the delay was due to a confusion that, "arises from the process". Comparing this with the reasons ensconced in the letter of 17 November, it appears that the two explanations are irreconcilable. In order for me to exercise discretion, not only must the Respondent be candid but must obviously forward cogent reasons for the delay. I do not in the circumstances find the reasons advanced by the Respondent sufficient or reasonable to warrant an exercise of my discretion pursuant to section 25 (p) of CIPAA. In light of the above the Respondents application to extend / abridge time is dismissed. Therefore it follows that, ii and iii, in the Respondents counsels letter of 16 Nov 2022 do not require consideration. The Claimant's request for an extension is superfluous and is rejected in light of the dismissal of the Respondents request. I have given parties directions as to submissions. I would be grateful if Claimants counsel could kindly share the emails I sent previously.". [40] The Adjudicator recorded the above-mentioned events in paras 14 to 20 of the AD. [41] In Part F of the AD, the Adjudicator discussed the issues before him whereby in relation to Twin Pavilion's application for abridgement, the Adjudicator opined that: “26. The application by M/s Raja S Devan & Veni for abridgement was made after the expiry of the time pursuant to section 10 (1) of CIPAA. Whilst an adjudicator is able to, pursuant to section 25 (p) of CIPAA, extend any time limit imposed on parties by the act (CIPAA), that discretion must be exercised carefully.

With regard to the contents of the letters purportedly making and supporting the application, it was evident that the first and second letters were irreconcilable. Clearly the contents of the second letter did not support the initial contention of any procedural confusion. In its expanded explanation, it was obvious that the Respondent had failed to marshall payments albeit by its novated nominee.

It was not in any document before me that the Claimant had knowledge of this novation. On the contrary the evidence before me reveals the direct opposite. Interim Certificate no. 7 is copied to the Respondent by the consultant and not to BT Bina Group as alleged in M/s Raja S Devan & Veni's letter. Further the statement of account of 30/5/2022 is also addressed to the Respondent. I was therefore left in no doubt that the application should be denied.

Turning to the claim for payment of Interim Certificate no. 7, I accept that the Interim Certificate no. 7 & has not been protested within the timelines provided for in the PAM Contract.

The Claimant argues that the Responded has accepted the Interim Certificate as it has paid RM150,000.00, however I find that the history for the payment on behalf (see paragraph 23 above) of the Respondent is unclear. For the purposes of its claim, I am of the view that reliance by the Claimant on the decision of L'Grand Development Sdn Bhd 8 CLJ 507 is correct under the circumstances. I accept the Interim Certificate no. 7 as a correct and accurate reflection of what is owned to the Claimant by the Respondent. …

I am also mindful of the Respondent’s failure to comply with section 10 of CIPAA. I am left only therefore with the Claimant's Adjudication Claim. I have not seen any documents contained within the Claimant's Bundle of Documents any material which suggests the Respondent protested Interim Certificate no. 7.

The parties also did not avail themselves to file any submissions despite being invited to do so.”. [42] Ms. Aqilah referred to paras 27, 28, 30 and 37 of the AD in submitting that the Adjudicator failed and refused to seek and allow the tendering of documents via the Adjudication Response despite the Adjudicator himself having expressed doubts in his decision. The learned counsel emphasised that an adjudicator should not only concentrate on providing a speedy relief to a contractor under the CIPAA, at the expense of a fair hearing and neglecting all possible outcome. It was further submitted that the parties were indeed in active and constant communication for settlement and this was confirmed by CRCC themselves. [43] In Bricomp Maju Sdn Bhd v Visi Nusajaya Sdn Bhd [2020] MLJU 740, Azizah Haji Nawawi J (now JCA) held that: "[24] From the above provisions, I am of the considered opinion and I agree with BRICOM that the Adjudicator is conferred with discretionary power to conduct the Adjudication Proceedings; and it is not a duty/obligation for the Adjudicator to exercise all or even any of the powers under section 25 of CIPAA. In the present application, the Adjudicator has a discretion whether to allow an extension of time for the parties to file their documents. The duty of the Adjudicator is to consider each and every application before him, but it does not mean that he has to grant the application, as the discretion rests with him as to whether to approve or dismiss the same. [25] In the case of AMT Engineering Services v AH Design Communication Sdn Bhd (and Another Originating Summons) [2019] 2 AMR 234, the Kuala Lumpur High Court (Construction) observed and held as follows: - “[70] What is important is that the court there had reaffirmed that s 25(p) and s 26 do not directly excuse noncompliance of rules by the parties. In other words it is accepted jurisprudence that the timelines under the CIPAA is for strict compliance and no one should presume on the discretion of the adjudicator to by default grant an extension whenever a request is made whether before or after the expiry of the timeline. [71] To assume and presume that would undermine the philosophy behind the CIPAA which works because of the acceptance by all that the strict and stiff timelines are there to facilitate a speedy dispute resolution through statutory adjudication. [72] In as much as once the adjudicator has exercised his power to grant extension of time, “it should not be questioned except in the rarest of rare cases when there is good ground to believe that he has abused it to deliberately favour one party over the other”, likewise once the adjudicator has exercised his discretion not to grant an extension, that decision should not be reviewable except in the rarest of rare cases. Otherwise adjudicator would be wary as to whether to grant or not to grant an extension of time for his decision either way may be reversed upon an application to set aside on ground of biasness towards one side and against the other or a denial of natural justice or having acted in excess of his jurisdiction. [73] Not granting or granting an extension of time cannot ordinarily be a breach of natural justice for to begin with the timeline has been breached. If the documents had been served on time it is understandable that there is a denial of natural justice if the adjudicator does not consider the matters raised. It is not a breach of natural justice and not a case of having acted in excess of jurisdiction when a discretionary power is exercised one way or the other save in cases where there is a clear biasness in favour of one party in granting an extension but not to other party when a similar extension is applied for. [74] ... [80] If a wrong interpretation of the law or an error of law or fact does not ordinarily justify a setting aside of an adjudication decision unless it goes towards jurisdiction, likewise a wrong reason given for not allowing an extension of time would not cause an adjudication decision to be set aside when there are other reasons given that would support the rejection of the request for extension of time. [81] Section 25 of the CIPAA states that the adjudicator “shall have the power to -”and not “shall have the duty to-”. The difference between “power” and “duty” is such that generally the court would not interfere to compel the exercise of “power” in a certain way different from how the adjudicator has exercised it unless the way he had gone about it is capricious and an abuse of that power either arising out of biasness against the party requesting for extension or otherwise.” [27] Having considered the factual matrix of this case and the reasons given by the Adjudicator, it cannot be said that this gives rise to a rare circumstance to allow this court to review the discretionary power of the Adjudicator in refusing to grant the extension of time. VISI NUSAJAYA knew all the facts and the procedures but did not take any action to file the Adjudication Response. They only communicated with the Adjudicator seeking an extension of time of 21 days after the expiry of the time to file the Adjudication Response. [28] I am therefore of the considered opinion that it is not a breach of natural justice when a discretionary power is exercised one way or the other, save in cases where there is a clear biasness in favour of one party in granting an extension but not to other party when a similar extension is applied for. In the circumstances, I am of the considered opinion that VISI NUSAJAYA’s application to set aside the Adjudication Decision is totally misconceived in law, particularly where they are seeking this Court to review the discretionary powers conferred upon the Adjudicator to conduct the Adjudication proceedings under CIPAA". (emphasis added; see too, the cases decided by this Court in Econpile (M) Sdn Bhd v ASM Development (KL) Sdn Bhd and another summons [2020] MLJU 1146 at para 71 (the appeal in respect of the setting aside application was dismissed on 26.4.2022); Yuen Keong Construction & Renovation Sdn Bhd v Trendzone Engineering & Construction (Malaysia) Sdn Bhd and another case [2023] MLJU 1257 at paras 27 - 29 (the appeal was discontinued on 14.6.2023); and TUV SUD (Malaysia) Sdn Bhd v Intisari Mulia Engineering Sdn Bhd and another case [2023] MLJU 1205 at paras 62 - 65). [44] Similarly, in the case before this Court, I was not persuaded to review the discretionary power exercised by the Adjudicator in refusing to allow Twin Pavilion's application for extension of time to serve the Adjudication Response because –

the Adjudicator and CRCC's solicitors had ensured that Twin Pavilion was copied in all correspondence. Twin Pavilion was aware that it must serve its Adjudication Response by 9.11.2022 but yet it kept silent until the letter dated 16.11.2022 was sent by its newly appointed solicitors to the Adjudicator;

the Adjudicator had considered the said application and he had decided to exercise his discretion in a way which was not favorable to Twin Pavilion. The Adjudicator gave a reasoned decision, namely, that the justification for not submitting the Adjudication Response within the statutory time limit as stated in Twin Pavilion's solicitors' letters dated 16.11.2022 and 17.11.2022, which is just one day apart, are irreconcilable whereby in the former, the excuse given was due to the confusion with regards to the process/ procedure while in the latter, the alleged novation of the Project to BT Bina was raised;

although the Adjudicator refused to allow more time to Twin Pavilion to submit the Adjudication Response, nonetheless time was given for the parties to submit their written submissions. However, Twin Pavilion chose not to submit any written submission; and

in the affidavit evidence, Twin Pavilion did not aver what documents it would have produced in the adjudication proceedings had it been allowed the extension of time to serve the Adjudication Response, and to exhibit the same, and how such evidence would have considerable potential importance to the outcome of the adjudication. The affirmations in Twin Pavilion’s AIS and AIR, for example, in para 32 of the AIS and exhibit “TP-4” as to CRCC’s revised tender letter dated 3.11.2017, are to my mind insufficient as proof that a breach of the rules of natural justice has occurred and that it is a material breach. [45] In the upshot, it is my considered view that Twin Pavilion has not established, on a balance of probabilities, that there is a denial of natural justice on the part of the Adjudicator when he exercised the discretionary power conferred upon him to conduct the adjudication proceedings in the manner that he did. 2nd Issue: Twin Pavilion's citation of limb (c) of s 15 CIPAA in O.S. No. 25 and citation of limb (d) in the Written Submission [46] In the intitulement and the body of the O.S., apart from citing limb (b) of s 15 CIPAA, Twin Pavilion had also mentioned limb (c) of the same provision as the basis for the Setting Aside Application. [47] Twin Pavilion had averred and submitted that the Adjudicator had failed to act independently and impartially in the adjudication proceedings [see paras 14, 23.1, 24, 37 and 45 in the AIS (encl. 2); para 20.3 in the AIR (encl. 9); paras 25.1, 25.2, 33.3, 38, 57, 58 and 72.5 in the Written Submission (encl. 12); and paras 24, 28, 31 and 34.5 in the Reply Submission (encl. 17)]. [48] However, in the Executive Summary of Twin Pavilion's Submissions (encl. 33), the issue of "Whether there was a breach of natural justice" was stated as the sole the ground to set aside the AD. [49] In any event, the Court had considered Twin Pavilion's accusation that the Adjudicator has not acted independently or impartially and finds that this ground to set aside the AD was merely thrown in and no case authorities were cited by Twin Pavilion as to the applicable test for establishing apparent or appearance of bias and nor was there any submission on whether the test has been fulfilled in this case (see Rosha Dynamic (supra); PCP Construction Sdn Bhd v Leap Modulation Sdn Bhd and other appeals [2018] MLJU 1357; and ATSA Architects Sdn Bhd v Teguh Majuria Sdn Bhd and another case [2022] MLJU 3329; see too, paras 29 and 30 in Bricomp Maju's case). [50] Furthermore, the Adjudicator had considered the merits of CRCC's claim (see paras 29 - 37 and 39 - 42 of the AD) and had awarded simple interest at the rate of 5% per annum instead of at the rates as implored by CRCC in the Payment Claim and Adjudication Claim which is Maybank Base Lending Rate plus 1% in respect of any amount due after the due date of payment. This shows that the Adjudicator had applied his mind to the issues at hand and remained objective in his assessment even though Twin Pavilion did not serve its Adjudication Response and written submission. [51] In sum, Twin Pavilion has not convinced this Court that the AD should be set aside under limb limb (c) of s 15 CIPAA. [52] With regards to the references to limb (d) of s 15 CIPAA, these were detected by CRCC's counsel in paras 15 and 28 of encl. 12. [53] During the hearing, Ms. Aqilah admitted that the references to limb (d) of s 15 CIPAA in encl. 12 are typographical errors. Moreover, scrutiny of O.S. No. 25, the AIS and encls. 12 and 17 clearly show that Twin Pavilion did not invoke limb (d) of s 15 CIPAA as a ground to set aside the AD. Hence, nothing more needs to be considered in respect of CRCC's submission as to Twin Pavilion's purported reliance on limb

of s 15 CIPAA in the Setting Aside Application. The Enforcement Application [54] The AD is binding on the parties unless it is set aside by this Court on any of the grounds as proffered by Twin Pavilion or the dispute is finally decided by arbitration or the court. In this case, there is no evidence of there being any written settlement agreement between the parties (see s 13 CIPAA). [55] Twin Pavilion's basis in submitting that the enforcement of the AD cannot be granted was that there is a material breach of natural justice in the making of the AD as the Adjudicator did not properly consider the matter at hand and failed to exercise his powers to obtain information, facts and evidence such that Twin Pavilion was withheld from filing its statement, defence and evidence. In other words, the ground relates to the 1st Issue as discussed previously. [56] As the Court has found that the 1st Issue is unsubstantiated, and further, that the three conditions as laid down in Inai Kiara Sdn Bhd v Puteri Nusantara Sdn Bhd [2019] 2 MLJ 362 are fulfilled, namely, that the AD has been rendered in CRCC's favour; Twin Pavilion has failed to pay the Adjudicated Sum on or before 25.1.2023 which is the date specified in the AD; and there is no prohibition to the grant of the order to enforce the AD, CRCC's Enforcement Application was therefore allowed. [57] In effect, CRCC can enforce the AD as if it is a judgment or order of the High Court in that CRCC can avail itself to all modes of enforcement which are available under O. 45 RC 2012. This would fulfil the objective of the CIPAA in securing early payment to an "unpaid party" within the meaning of s 4 CIPAA (see ASM Development (KL) Sdn Bhd v. Econpile (M) Sdn Bhd & Other Appeals [2023] 1 MLRA 646 (CA) and [2021] 8 MLJ 99 for the decision of the High Court). Pronouncement [58] Based on the aforesaid considerations, the Setting Aside Application was dismissed and the Enforcement Application was allowed. [59] As for costs, Ms. Shirley prayed for RM5,000.00 as costs for each of the three applications whilst Ms. Aqilah submitted the sum of RM10,000.00 for all the applications as they were heard together and there was not much documentation involved. [60] On this aspect, the Court agreed with Twin Pavilion's counsel and thus, costs were ordered in the total sum of RM10,000.00 with the apportionment of RM6,000.00 for the Setting Aside Application, RM2,500.00 for the Enforcement Application and RM1,500.00 for the Stay Application. Dated: 11 September 2023 (ALIZA SULAIMAN) Judge Construction Court 2 High Court Kuala Lumpur Counsels/ Solicitors: For the Plaintiff in O.S. No. 25 and the Defendant in O.S. No. 46: Nur Aqilah Aprjanto Messrs. Raja S Devan & Veni Advocates & Solicitors B-02-06, Block B Level 2, VIVA No. 378, Batu 3 Jalan Sultan Azlan Shah 51200 Kuala Lumpur For the Plaintiff in O.S. No. 46 and the Defendant in O.S. No. 25: Hor Shirley (Kelly Ong Ree Jen with her) Messrs. Raja, Darryl & Loh Advocates & Solicitors Level 26, Menara Hong Leong No. 6, Jalan Damanlela Bukit Damansara 50490 Kuala Lumpur Cases, legislation and other sources referred to in the submissions by learned counsels and in the Grounds of Judgment: Cases: ASM Development (KL) Sdn Bhd v Econpile (M) Sdn Bhd [2021] 8 MLJ 99 (HC) ASM Development (KL) Sdn Bhd v Econpile (M) Sdn Bhd and other appeals [2022] 6 MLJ 392; [2023] 1 MLRA 646 (CA) ATSA Architects Sdn Bhd v Teguh Majuria Sdn Bhd and another case [2022] MLJU 3329 AT&T Corp and another v Saudi Cable Co [2000] All ER (D) 657 Balfour Beatty Engineering Services (HY) Ltd v Shepherd Construction Ltd [2009] EWHC 2218 (TCC) Bricomp Maju Sdn Bhd v Visi Nusajaya Sdn Bhd [2020] MLJU 740 Cantillon Ltd v Urvasco Ltd [2008] EWHC 282 (TCC) Cescon Engineers Sdn Bhd v Pesat Bumi Sdn Bhd and another case [2022] 9 MLJ 79 Dekinjaya Builder Sdn Bhd v Chong Lek Engineering Works Sdn Bhd and another case [2020] MLJU 2455 Econpile (M) Sdn Bhd v ASM Development (KL) Sdn Bhd and another summons [2020] MLJU 1146 Gazzriz Sdn Bhd v Hasrat Gemilang Sdn Bhd [2016] MLJU 1054 Guangxi Dev & Cap Sdn Bhd v Sycal Bhd & Another Appeal [2019] 1 CLJ 592 (CA) Inai Kiara Sdn Bhd v Puteri Nusantara Sdn Bhd [2019] 2 MLJ 362 Inovatif Engineering (M) Sdn Bhd v Nomad Engineering Sdn Bhd [2016] MLJU 1351 Ireka Engineering and Construction Sdn Bhd v PWC Corp Sdn Bhd and another appeal [2019] MLJU 35 (CA) Kanciltek (M) Sdn bhd v Mayban Finance Bhd [2002] 6 MLJ 185 Kining Exeton Sdn Bhd v Majlis Perbandaran Kuantan and Another Summon [2020] MLJU 659 Kok Kon Sang v Institut Akauntan Malaysia [2020] 1 CLJ 702; [2019] MLJU 476 Mei He Development Sdn Bhd v. EOSH Industries Sdn Bhd [2021] 1 LNS 425 PCP Construction Sdn Bhd v Leap Modulation Sdn Bhd and other appeals [2018] MLJU 1357 Perbadanan Perwira Harta Malaysia v Kuntum Melor Sdn Bhd and another case [2021] MLJU 1593 Rekha d/o Munisamy v Ortus Expert White Sdn Bhd & Anor [2021] 5 MLJ 836 Rosha Dynamic Sdn Bhd v Mohd Salehhodin bin Sabiyee & Ors and other cases [2021] MLJU 1222 TUV SUD (Malaysia) Sdn Bhd v Intisari Mulia Engineering Sdn Bhd and another case [2023] MLJU 1205 Wong Huat Construction Co v Ireka Engineering & Construction Sdn Bhd [2018] 7 MLJ 659 Yuen Keong Construction & Renovation Sdn Bhd v Trendzone Engineering & Construction (Malaysia) Sdn Bhd and another case [2023] MLJU 1257 Legislation: Construction Industry Payment and Adjudication Act 2012, ss 4, 5, 6, 8, 9, 10, 13, 15, 16, 24, 25, 27 & 28 Rules of Court 2012, O. 1A, O. 2, rr. 1 and 3, O. 32, r. 4, O. 45, O. 69A, rr. 2, 3 and 4 & O. 92, r. Other sources: Datuk Professor Sundra Rajoo, Leong Hong Kit & Cindy Wong Xien Yee, Law, Practice And Procedure Of Adjudication, Volume 2, Lexis Nexis, 2023 Lam Wai Loon & Ivan YF Loo, Construction Adjudication in Malaysia, Second Edition, Sweet & Maxwell, 2018 Lam Wai Loon & Ivan YF Loo, Construction Adjudication in Malaysia, Third Edition, Sweet & Maxwell, 2022