It is only if the adjudicator goes off on a frolic of his own, that is wishing to decide a case upon a factual or legal basis which has not been argued or put forward by either side, without giving parties the opportunity to comment, or where relevant put in further evidence, that the type of breach of the rules of natural justice with which the case of Balfour Beatty Construction v. The London Borough of Lambeth [2002] was concerned comes into play. It follows that, if either party has argued a particular point and the other party does not come back on the point, there is no breach of the rules of natural justice in relation thereto.”. [25] On the issue of lack of independence or impartiality under Section 15 (c) CIPAA 2012, this concerns the need for the adjudicator to act without bias and the test applicable is whether there is a real danger of bias. Refer to AMEC Capital Projects Ltd v Whitefriars City Estates Ltd [2005] 1 ALL ER 723 (Court of Appeal): - “[21] The mere fact that the tribunal has decided the issue before is therefore not enough for apparent bias. There needs to be something of substance to lead the fair-minded and informed observer to conclude that there is a real possibility that the tribunal will not bring an open mind and objective judgment to bear... [22] It is easy enough to make challenges of breach of natural justice against an adjudicator. The purpose of the Scheme of the 1996 Act is now well known. It is to provide a speedy mechanism for settling disputes in construction contracts on a provisional interim basis, and requiring the decisions of adjudicators to be enforced pending final determination of disputes by arbitration, litigation or agreement. The intention of Parliament to achieve this purpose will be undermined if allegations of breach of natural justice are not examined critically when they are raised by parties who are seeking to avoid complying with adjudicators' decisions. It is only where the defendant has advanced a properly arguable objection based on apparent bias that he should be permitted to resist summary enforcement of the adjudicator's award on that ground.". [26] What is clear from above is the need for cogent and convincing evidence on the existence of the lack of independence or impartiality before this court can exercise to review the decision of the adjudicator under Section 15 (c) CIPAA 2012. See Binastra Ablebuild Sdn Bhd v JPS Holdings Sdn Bhd and another case [2017] MLJU 1260 (High Court): - “Unless there is cogent and convincing evidence of such lack of independence or impartiality, this court would not venture into accusations of this nature where it is easy to allege but with no evidence raised to point in that direction other than the respondent's failure to understand how the adjudicator could have disagreed with the stand that learned counsel for the respondent had taken.”. [27] Lastly, on the excess of jurisdiction under Section 15 (d) CIPAA 2012, it refers to an adjudicator deciding on matters beyond his jurisdiction. Refer to View Esteem Sdn Bhd v Bina Puri Holdings Berhad [2019] 5 CLJ 479 (Federal Court): - “[15] We are of the view in substance, the "jurisdiction" spoken of in s.15(d) of CIPAA are in circumstances where CIPAA applies and where there is a dispute if the adjudicator has kept himself within his jurisdiction. Thus, by s. 27(2) of CIPAAthe parties may by consent extend the jurisdiction of the adjudicator to decide on matters outside the claim on which he first acquired jurisdiction. This is possible only if the term "jurisdiction" is used in the sense of CIPAA being applicable in the first place. [16] The term "jurisdiction" under CIPAA is not used in the administrative or public law sense but in relation to matters within the scope of CIPAA. On this point, in Terminal Perintis Sdn. Bhd. v. Tan Ngee Hong Construction Sdn. Bhd. & Other Case [2017] 1 LNS 177; [2017] MLJU 242, Lee Swee Seng J observed as follows (at [70]): In the application of our CIPAA, we are free from the shackles of the language of administrative law and judicial review. The word 'jurisdiction' is used in section 15(d) as in the Adjudicator having acted in 'excess of his jurisdiction' as a ground for setting aside an Adjudication Decision. It is also used in section 27(1) with respect to an Adjudicator's jurisdiction being limited to the matters raised in the Payment Claim and the Payment Response. Then there is a reference to it in section 27(2) with respect to extending his jurisdiction by way of agreement in writing to deal with matters not specifically raised in the Payment Claim and Payment Response. Finally there is the reference to a 'jurisdictional' challenge, which when raised, does not prevent the Adjudicator from proceeding and completing the Adjudication without prejudice to the rights of any party to set it aside under section 15 or to oppose its enforcement under section 28... Issues as to whether there is a valid cause of action, does not go towards jurisdiction but rather to the merits of the claim...”. [28] On the present matter, P in its affidavit in-support was aggrieved by the adjudicator’s decision on the following issues: - [29] Firstly, P alleged that the adjudicator did not consider that the invoices issued by D were statute barred and that P was disputing the amount claimed. [30] Secondly, P was dissatisfied with the adjudicator placing the burden of proof on them concerning the issue of limitation when this should be within the adjudicator’s knowledge being an issue of law. [31] Thirdly, P also found fault with the adjudicator deciding that P was in a position to retrieve their respective financial records via bank statements for instance to verify previous payments made to D under the project. [32] Fourthly, P stated that D had failed to detail the nature of the work done under Certificate of Payment No 1 to 29. An allegation was also made on the adjudicator’s lack of knowledge on the documents presented to arrive at a fair decision. There was also an allegation that the purported non-application of limitation laws by the adjudicator amounted to a breach of natural justice. [33] A perusal of the grounds above is nothing but merely an attempt by P to have this Court review the decision of the adjudicator. In other words, P is unhappy with the merits of the adjudicator’s decision and seeks to have it reviewed or reheard before this court. [34] Unfortunately for P, this Court could only review the decision of the adjudicator on the premises underlined by Section 15 CIPAA 2012 as reproduced above. [35] Refer to ACFM Engineering & Construction Sdn Bhd v Esstar Vision Sdn Bhd & Another Appeal [2016] CLJU 1522 (Court of Appeal): - “[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 CIPPA 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 which in our view cannot be entertained by us.”. (emphasis added) [36] In Martego Sdn Bhd v Arkitek Meor & Chew Sdn Bhd & Another Appeal [2018] 2 CLJ 163, the Court of Appeal at page 182 held that:- “[55] The courts' power to set aside adjudicators' decision is circumscribed by statute in s. 15 CIPAA 2012 and it is not a provision which allows the courts to sit in an appellate jurisdiction. The grounds which the courts can rely on to set aside the adjudicator's decision are limited such that the courts are not allowed to look into the merits of parties' case. The courts' prima facie duty must be to uphold the adjudicator's decision and not to look at it with a fine-tooth comb with the aim to find the faults in the adjudicator's decision. As long as the learned adjudicator had approached his task by adhering to the due process of his adjudication, the courts will not interfere. Only with this approach by the courts, will the aim of CIPAA 2012 of providing a regime to alleviate the cash problem faced by contractors in the building industry be addressed and achieved.”. (emphasis added) [37] Furthermore, P had failed to demonstrate in what manner is the adjudication decision tainted by any of the vitiating circumstances envisaged by Section 15 CIPAA 2012 as their respective affidavits are silent on this. [38] Although P’s affidavits do allude to issues such as natural justice, impartiality and jurisdiction, this court views such attempts as insufficient and merely parroting the provisions of the law namely Section 15 CIPAA 2012 without detailing in what manner within the confines of Section 15 CIPAA 2012 did the adjudicator’s decision fall short so as to justify a review by this Court. On this refer to Standard Chartered Bank Malaysia Bhd v Tunku Mudzaffar Tunku Mustapha [2005] 5 CLJ 119 (High Court). While this is not a case concerning CIPAA 2012, it can serve as a reference that it is insufficient merely to parrot the words used in statute without more to substantiate an averment in an affidavit: - “In the present case, the only evidence adduced by the plaintiff in order to prove service of the Form 16D on the defendant is its process server's statutory declaration. But in my view, the content of that statutory declaration is vague and meaningless. The statutory declaration, by merely stating: dengan meninggalkan surat dan Borang 16D tersebut di alamat di atas (emphasis added) is only parroting the provision of s. 431(1)(c)(i). It is not only grossly insufficient and vague but is also inappropriate for the process server to just state 'meninggalkan' in the statutory declaration. Such an averment is unfair to the defendant. The process server must furnish some meaningful information as to how the service was done. In other words, the affidavit of service must elaborate as to what is meant by 'meninggalkan'. The affidavit of service must state, for example, whether the notice was left by the process server in the defendant's letterbox; or at some other part of the defendant's premises. Or, whether the process server handed it to the defendant's secretary or to some other staff of the defendant; or whether it was left with a member of the defendant's family. Only where such details are supplied in the affidavit of the process server would the defendant be in a proper position to rebut the plaintiff's claim as to service or to dispute the legality of the service; and, likewise, would the court be in a position to make a proper finding on the issue as to whether or not there was in fact service; and, if there was any, whether the service, in the manner that it was effected, was in accordance with the law.”. [39] A perusal of P’s submission shows that they are predicating OS 19 on Section 15 (b) and (d) CIPAA 2012 principally. Various authorities were put forward by P to substantiate their claims but this Court was unable to find any single averment by P to show in which manner did a purported breach of natural justice occur or in which manner did the adjudicator acted in excess of his jurisdiction. [40] On the breach of natural justice alleged under Section 15(b) CIPAA 2012, there is no such breach at all following the guidelines underlined in Urvasco and followed by Malaysian courts. The adjudicator has also considered the various arguments and evidence adduced by all parties and there is not an iota of evidence to justify P’s allegation on the breach of natural justice. [41] Refer to Carillion Construction Limited v Devonport Royal Dockyard Limited [2005] EWHC 778 (Court of Appeal): - “85. The objective which underlies the Act and the statutory scheme requires the Courts to respect and enforce the adjudicator's decision unless it is plain that the question which he has decided was not the question referred to him or the manner in which he has gone about his task is obviously unfair. It should only be in rare circumstances that the courts will interfere with the decision of an adjudicator. The courts should give no encouragement to the approach adopted by DML in the present case; which (contrary to the DML's outline submissions, to which we have referred in paragraph 66 of this judgment) may, indeed aptly be described as "simply scrabbling around to find some argument, however tenuous, to resist payment."