Ditrolic shall bear 100% of the costs of the adjudication proceeding. These costs include: AIAC Registration Fee of RM265.00 (inclusive of 6% SST); and [12] On 11.10.2023, this court heard all 3 OSs together and dismissed the Setting Aside OS and the Stay of Execution of the AD OS, whereas the Enforcement OS was allowed. [13] Being dissatisfied with the decision, a Notice of Appeal has been filed by Ditrolic for which this Grounds of Judgement is written. D. OBJECT CIPAA 2012 [14] 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 [15] application to set aside the AD pursuant to s.15(b) of CIPAA 2012 is premised on the following grounds: i. Adjudicator failed to give Ditrolic an opportunity to submit on the issue of time set at large (which was only raised in adjudication reply stage) before making a determination on the same; ii. Adjudicator has committed an error in his own jurisdiction in deciding that the comprehensive submission on the issue LAD of RM2,200,000.00 should be dealt by an arbitrator; and iii. Adjudicator has failed to consider and/or not deal with consider/determine the defence of set-off in equity and counterclaim by Ditrolic. [16] Ditrolic stay of execution of the AD pursuant to s16 of CIPAA 2012 is premised as follows: i. An arbitration proceeding has commenced pursuant to s.16(1)(b) of CIPAA 2012; ii. that there is a clear and unequivocal error in the AD; and iii. that there are special circumstances to warrant a stay of execution i.e Samaiden is financially weak. [17] application to enforce the AD pursuant to s.28 of CIPAA 2012 is premised as follows; i. that the Adjudicated Amount is not paid by Ditrolic; and ii. that the AD is neither set aside nor stayed. F. FINDINGS OF THE COURT I. Setting Aside OS [18] As all the three (3) reasons raised by Ditrolic which makes up the grounds for which the AD should be set aside centres around the issue of set off for LAD raised by Ditrolic in its Adjudication Response, I will address all these issues together. Whether there is a denial of natural justice? 15(b) [19] The principle of natural justice that is said to have been denied here is the right to being heard, audi alteram partem. In 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 in a dispute of a hearing. In this appeal the Appellants complaint on the breach of natural justice is contained in pages 15-19 of his written submission. We informed counsel for the Appellant that it appeared that his complaint about the decision of the adjudicator related substantially to the manner in which the adjudicator arrived at his decision after evaluating the evidence provided to him and that would only be questioning the findings of fact by the adjudicator Learned counsel for the Appellant was not able to convince us that our view was wrong when we also pointed out to him that in his submission he had contended that the adjudicator had premised his decision on "his own assessment" (see paragraph 11.4 of submission). ... [21] There were no complaints by the Appellant that the adjudicator had got the disputes on a completely wrong footing. In fact, no complaint was made at all and the adjudication process was carried out premised on those issues. If we were to consider the complaints of the Appellant, we would be looking into the merits of the decision of the adjudicator. In the context of section 15 of CIPAA 2012, it cannot be the function of the Court to look into or review the merits of the case or to decide the facts of the case. The facts are for the adjudicator to assess and decide on. The Court's function is simply to look at the manner in which the adjudicator conducted the hearing and whether he had committed an error of law during that process. Such error of law relates to whether he had accorded procedural fairness to the Appellant In the context of this case, the complaints of the Appellant were nothing but complaints of factual findings of the adjudicator (Emphasis added) [20] decision (as he then was) in the case of MRCB Builders Sdn Bhd v. Wazam Ventures Sdn Bhd and another case [2020] 1 LNS 891; [2020] MLJU 208. In this case, it was held that it is sufficient to dislodge a complaint of breach of natural justice if the Learned Adjudicator had given just one reason and His Lordship also set out a list of circumstances which should not justify the setting aside of the AD. [21] The question that needs to be asked is whether Ditrolic was denied the right to being heard as alleged? In this case, as seen in the AD, the Adjudicator had deliberated on all the issues raised by both Ditrolic and Samaiden at the Adjudication Proceedings at length before coming to his conclusion. [22] No where in the Adjudication Proceedings that is seen where Ditrolic had requested disallowed or denied Ditrolic the right to do so. Since, this issue was already known to Ditrolic when it was previously raised in other Adjudication Proceedings between parties, to the very least, Ditrolic should have requested to reply or submit on this issue when the same was raised at this proceeding. [23] Furthermore, since the issue of LAD was raised by Ditrolic in its Adjudication Response, it is only natural that Samaiden would respond to this issue in its reply. It is not a new issue raised by Samaiden as how it has been made out to look. The Adjudicator would naturally think that the same i.e. Samaiden had responded to the LAD issue raised by Ditrolic. reply, it has to be requested by Ditrolic to do so. [24] Since the Adjudicator had deliberated the issue of LAD at paragraphs 162 to 178 of the AD, it can very well be seen that the Adjudicator had given due considerations to the issue of LAD raised by Ditrolic. If the Adjudicator had not considered this issue of LAD at all then it would be right for Ditrolic to claim that it was denied the right to be heard or that the Adjudicator had not exercised procedural fairness in conducting the Adjudication Proceedings but that not being the case, I do not see how was Ditrolic denied the right to be heard as claimed. [25] Be that as it may, it must be realised that from the outset the Adjudicator had in his findings found that Samaiden was entitled for its claim of RM2,539,140.99. The issue of LAD was only to ascertain whether the sum sought by Ditrolic for LAD can be allowed, if so the sum of RM2,200,000.00 will be deducted from the allowed claim. In this case, it is the considered view of the Learned Adjudicator that the issue in relation to LAD is best to be dealt with by an arbitrator and as such, no deductions were made to the allowed claim. Hence, the allowed sum of RM2,539,140.99 still remains under the contract. [26] I find that the Adjudicator had used the powers conferred upon him pursuant to s. 25 of CIPAA 2012 in deliberating all the issues raised before him at the Adjudication Proceedings. The Adjudicator had considered each and every issue raised by both parties at the Adjudication Proceedings and deliberated on the same before arriving to his decision. Not being satisfied dings cannot be the basis for the AD to be set aside under this limb. [27] As stated in the case of Bina Puri Construction Sdn Bhd v Hing Nyit Enterprise Sdn. Bhd. [2015] 8 CLJ 728 : e adjudicator may be set aside. Since an application under s.15 is not an [28] As such, whether the Adjudicator had assessed the issues raised correctly or not is not up to this court to determine as the decision of the Adjudicator cannot be reviewed on its merits. Merely being unsatisfied with [29] In the upshot, having failed to establish s.15(b) of CIPAA 2012 against the Adjudicator, Ditrolic has failed to discharge its burden on a 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 Samaiden by Ditrolic subject to allocatur fee. II. Stay of Execution OS [30] One of the 3 reasons Ditrolic had applied for Stay of Execution of the AD is because of its allegation that there is a clear and unequivocal error in the AD. Since this issue has been dealt and dismissed in the setting aside application, this is no longer a ground which I will consider in this stay application. [31] The other reason for this application is pursuant to s.16(1)(b) of CIPAA 2012 i.e the subject matter of the adjudication decision is pending contention that arbitration has been commenced and as such, stay of execution should be granted. [32] In this case, ation proceeding is not able to proceed further than its commencement as pursuant to Clause 22 of the LOA, the parties are contractually bound to bring their dispute to the Senior Management Settlement Consultation prior to it being brought to arbitration. Therefore, if the AD is stayed by a mere commencement of arbitration, the objective of CIPAA will surely be defeated. [33] 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 readily and [34] In seeing the need to prevent abuse of s16 CIPAA 2012, I fall back on what was said by Lee Swee Seng J (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) of CIPAA 2012, 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. It was further explained in the following terms: erved. If stay should be granted the moment there is a pending arbitration or litigation, then a losing party in an Adjudication would be tempted just to commence these proceedings with the sure and certain expectation that a stay would invariably be granted by the Court of the Adjudication Decision. That would scuttle and stultify the application of the CIPAA designed to facilitate cash flow in the construction industry such that a party that is already out of pocket for the work done is not put to further [35] The final reason is that the financial standing of Samaiden is weak and as such, if Ditrolic is successful at the arbitration, Samaiden will not be able to pay back the adjudication amount to Ditrolic. In this regard, in the absence of any cogent evidence to substantiate this ground, I am convinced by the Companies Commission of Malaysia (CCM) report that Samaiden is a solvent concern. [36] Therefore, if the decision at arbitration is subsequently made in favour of Ditrolic, Samaiden will be able to repay Ditrolic the adjudication amount. As such, this contention to establish this argument to this court. On the contrary, based on the CCM report, Samaiden has assets worth much more than what is required should it have to repay the adjudication amount to Ditrolic. Mere fear does not warrant for a stay to be granted. [37] Hence, the Stay of Execution OS is dismissed with no order as to costs. III. Enforcement OS [38] 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: for leave under s. 28 CIPAA;