Game on Fun Park (Southern) Sdn Bhd v Bond M&E Sdn Bhd (WA-24C-3-01/2025)

5.1 that Bond had failed to carry out the Works diligently which resulted in damage and loss to GOF

5.2 that Bond had yet to rectify the issue of a staifactory thermal comfort for the theme park 5.3 despite clear evidence of Bond’s failure and/or omission the adjudicator had decided in favour of Bond Brief Background Facts [6] GOF is a private limited company which intend to operate a theme park known as “Game On Fun Park” addressed at Toppen Shopping Centre, Level 4 E.01 and 02, No. 33A, Jalan Harmonium, Taman Desa Tebrau, 81100 Johor Bahru, Johor Darul Takzim (“Premise”). [7] GOF approached Bond to issue out a quotation for commencement of mechanical and electrical work, which included but was not limited to maintenance of air-conditioning, mechanical ventilation (ACMV) to provide air flow for fan coil unit and Variable Refrigerant Flow System (“Defendant’s Work Scope”) on the Premise. As such, Bond accordingly produced and issued a tender submission dated 23.08.20231 for the sum of RM 625,628.56 pertaining to the Bond’s Work Scope. [8] GOF then issued an appointment letter dated 19.09.20232 to Bond, for the purpose of commencement of Bond’s Work Scope, whereafter subsequently, GOF paid a deposit of RM187,688.00, which was received by Bond on 30.8.2023. [9] GOF submits that, while Bond proceeded with the additional works as instructed, they failed to address GOF’s primary concern regarding the air conditioning and thermal comfort issues. [10] Disputes arose between parties where in Bond issued a payment claim dated 07.06.2024 pursuant to CIPAA to GOF for the alleged outstanding sum of RM 604,998.47 under the contract between parties. [11] On 21.11.2024, the Adjudicator, Sr Wong Chong Wei issued an adjudication decision against GOF where it was required to pay Bond the following sums on/before 05.12.2024;

11.1 The adjudicated sum of RM 604,998.47; 7 11.2 Interest at the rate of 5% per annum on the amount of RM 312,814.83 which is calculated from 14.01.2024 until the date of full settlement of the said sum;

11.3 Interest at the rate of 5% per annum on the amount of RM 133,646.33 which is calculated from 14.01.2024 until the date of full settlement of the said sum;

11.4 Interest at the rate of 5% per annum on the amount of RM 158,537.31 which is calculated from 14.01.2024 until the date of full settlement of the said sum; and 11.5 Costs of adjudication proceedings of RM 81,439.04. Analysis & Findings Preliminary Objection [12] With respect, after perusing Enclosure 1 of OS 3 and based on the preliminary objection (“PO”) raised by Bond, I had found that the Stay Application was in the same Enclosure 1 as the Setting Aside Application. This I hold is contrary to Order 69A of the Rules of Court 2012 which provides

An application to which this Order applies may be made by originating summons in Form 5 which shall-

state in its intitulement any provision of these rules and any provision of the Act under which the court is being moved;

include a concise statement of-

the remedy claimed; and

(ii) any question on which the applicant seeks the decision of the court ;

state the grounds in support of the originating summons; Order 69A rule 3

In every application to set aside an adjudication decision under section 15 of the Act, the originating summons shall, in addition to the matters stated in subrule 2(1)-

give details of the adjudication decision challenged;

identify which part or parts of the adjudication decision are challenged; and

specify the grounds on which it is contended that the adjudication decision should be set aside. Order 69A rule 3

An application for a stay of an adjudication decision under section 16 of the Act must be supported by an affidavit which must-

have exhibited to it a copy of the adjudication decision and any other document relied on by the applicant;

show that an application to set aside the adjudication decision under section 15 has been made or the subject matter of the adjudication decision is pending determination by arbitration or the court;

state the grounds on which it is contended that the adjudication decision should be stayed; and

set out the evidence relied on by the applicant.

An application to which this rule applies must be made-

where an action under rule 3 is pending, by way of notice of application in the action; and

in any other case, by originating summons. [13] For the sake of completeness, I will also quote Order 7 rule 2(1A) of the Rules of Court which is in pari materia with Order 69A and of which the former reads

Every originating summons shall state in its intitulement any provision of these rules and any provision of any written law under which the court is being moved. [14] In Classic Series Sdn Bhd v Ng Lung Yang [2023] 1 LNS 2066, my learned sister Aliza Sulaiman J had held in respect of Order 69A as follows “[24] In TS Land Management Sdn Bhd v. Pengarah, Pejabat Tanah dan Galian Shah Alam Selangor Darul Ehsan [2016] CLJU 122; [2016] 1 LNS 122; [2016] 10 MLJ 740, the High Court found that: "[7] There are obvious and glaring flaws in the originating summons filed. The most obvious being that there is no nexus between the intitulement and the prayers asked for. The importance of the intitulement cannot be downplayed as is obvious from reading of the Rules of Court 2012 more specifically O. 7 r. 2 of the rules which is a worded in a mandatory language.... [9] The flaws apparent on the originating summons cannot be corrected by explanation and facts affirmed in the supporting affidavit. Here even the supporting affidavit is unclear as to what is the actual grievance of the plaintiff which has led to the filing of this originating summons.". [25] As alluded to earlier, one of the statutory provisions which is stated in the intitulement of the O.S. is s. 15 of the CIPAA. However, that provision is nowhere to be found in the body of the O.S.. Fraud and denial of natural justice is mentioned in para 14 of the AIS” [15] Apart from what I have alluded to earlier, I have further found in this matter that the relevant rules of court were not referred to in the intitulement of OS 3 and the grounds for either the Stay Application or the Setting Aside were not stated in Enclosure 1 thereto save that to say that the grounds were in the Affidavit In Support. [16] In my view, the compliance with the requirements in Order 69 A are mandatory in nature and I agree with Aliza J in the aforementioned case that the importance of the intitulement cannot be downplayed as the Rules of Court 2012 is worded in a mandatory language and that such flaws apparent in the originating summons cannot be corrected by explanation and facts affirmed in the supporting affidavit. [17] I had also decided that the said Stay Application should have been in a separate Notice of Application as per the requirement in Order 69A rule 4(2) (a) of the Rules of Court 2012 and not under Enclosure 1 as is currently the case together with the Setting Aside Application. See also this Court’s decision in Samsung C&T Corporation & Anor v Global Wall (Malaysia) Sdn Bhd & Other cases [2024] CLJU 2198. [18] In the circumstances, I had on the above grounds held that the Stay Application and the Setting Aside Application in Enclosure 1 of OS 3 was defective and was to be dismissed due to the mandatory requirements in the aforesaid Rules of Court. Main Issues [19] In any event I had also considered the various issues raised by GOF to support their Setting Aside Application and found that there are no clear errors in the Adjudicator’s decision in the AD. Letter of Appointment [20] In coming to my decision on the issue of whether there were clear errors in the AD and that there was no breach of natural justice occasioned therein , I had examined the AD and found that he had considered all submissions, evidence and arguments if the parties which is evident from the AD, and found with regards the issue of GOF’s Letter of Appointment where the Adjudicator had observed that GOF had deemed the Letter of Appointment dated 19.9.2023 which it had issued and served on Bond to be the contract whereas the Claimant (Bond) deemed its tender submission of 23.8.2023 as the contract for the Project and the Adjudicator then made a finding that the proof of delivery of the Letter of Appointment submitted by GOF is actually the transmittal for the Tender Submission based on the discrepancy of the dates therein. [21] The Adjudicator further made a finding that GOF had failed to proof the serving of the Letter of Appointment to Bond and that both parties had acted in accordance with the Tender Submission as Bond had commenced work upon acceptance of the Tender of 23.8.2023 and GOF had made a deposit payment of RM187,688 to Bond on 30.8.2023. [22] From all of the above, I am satisfied that the Adjudicator had considered the issue of the Letter of Appointment and had dealt with it accordingly. The issue raised by GOF on this point is in my view actually a challenge as to the merits of the Adjudicators decision which it is not entitled to do. The law on this is settled as can be seen in the cases of TYL Land and Development Sdn Bhd v SIS Intergrated Sdn Bhd [2018] MLJU 217 and Enra Engineering and Fabrication Sdn Bhd v Gemulka Sdn Bhd & anor [2019] MLJU 369. GOF’s Defence [23] It was also contended by GOF that the Adjudicator had failed to consider its defence in the Adjudication proceedings which inter alia consisted that Bond had not completed its works and thus not entitled to be paid the sum claimed in the Adjudication proceedings. [24] On the above said contention of GOF, I have after reading the AD in toto found that the Adjudicator did indeed consider GOF’s defence in the Adjudication proceedings when the Adjudicator went through meticulously both parties case and assertions and found after analyzing the same that 13 24.1 the handover form was duly signed by both parties and that there was a remark from Bond on the handover form “FCU

A/C still not up to satisfactory thermal comfort” 2 he had sighted the VRF System Testing & Commissioning Report and found out that the same was carried out by a third party and the results were positive 24.3 other reports including air balancing report for the FCU ducting also showed positive results 24.4 Bond had submitted the AS Built drawing and catalogues as evidence of Works completed 24.5 Bond had submitted 3 Progress claims totaling RM604,998.47 to GOF which was acknowledged by the latter 24.6 GOF did not dispute the sum of RM604,998.47 as the actual value of Works completed but had only disputed that Bond had failed to rectify the alleged air conditioning problem despite being 9informed of it on several occasions 24.7 Bond had discharged its burden that the Works were completed [25] I am again satisfied that the Adjudicator did consider GOF’s defence and as such GOF’s contention on this issue is untenable and wholly without merit. Alleged Losses Suffered By GOF [26] On the issue of the alleged losses suffered by GOF which GOF submits was not considered by the Adjudicator, I have also on this contention found by examining the AD that the Adjudicator once again after analyzing the parties respective case on this issue found inter alia with regards GOF’s counter claim for the alleged losses being reparation of the amount RM633,331.85

26.1 that the Contract only covered the supply and installation of ducting form the FCU to the respective locations in the premises and did not cover the supply and installation of the FCU itself 26.2 Bond’s letters to GOF clearly communicated that the alleged air conditioning issue was caused by FCU which is supplied and maintained by the Landlord 26.3 there were no correspondences where GOF refutes or contests the above issue 26.4 GOF had failed to show that the air conditioning was caused by the ducting works and irrelevant to the FCU itself and thus Bond should not be held liable for the defects or rectification works 26.5 Bond was not in breach of the Contract and therefore GOF was not entitled to cross claim by witholding the payment due to Bond 26.6 the amount RM633,331.85 was speculative and without evidentiary basis 26.7 GOF had also failed to provide evidence that the loss in sales revenue was caused by Bond [27] Consequently, I do hold that the Adjudicator had in fact asked himself the right question on this issue and whether he had made a wrong finding of fact or law based on the same is in law not a ground in which the AD can be set aside, see Naza Engineering & Construction Sdn Bhd v SSl Dev Sdn Bhd [2020] 9 MLJ 499 and MCC Overseas (M) Sdn Bhd v Teng Yue Overseas construction Sdn Bhd [2023] MLJU 1097. On this the law is trite. Such errors, if any, may of course be rectified subsequently in the Arbitration proceedings or a court of law where the disputes are to be eventually and finally determined. Alleged Failure of Adjudicator to Exercise Powers [28] On the final issue of the alleged failure of the Adjudicator to exercise his powers conferred to him under CIPAA, I have considered GOF’s assertion on this point and hold that the same is misconceived and is to be dismissed. [29] Under section 25 (i) and (n) of CIPAA it is provided that The adjudicator shall have the powers to:-

(a)

(b)

(c)

…

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

decide or declare on any matter notwithstanding no certificate has been issued in respect of the matter; [30] I hold that such vast powers under section 25 CIPAA are within the Adjudicator’s discretion which I will not interfere with. Refer to the High Court decision in SKS Pavillion Sdn Bhd v Tasson Injection Pile Sdn Bhd [2019] MLJU 1051 which held “[28] Counsel for the Plaintiff submitted that these issues were not canvassed at all by the parties, nor did the Adjudicator allow the parties an opportunity to address them. Therefore, it was contended that the Adjudicator had gone on a ‘frolic of his own’. [29] I am unable to agree with this contention, bearing in mind section 25 of the CIPAA which provides the Adjudicator with vast powers in the determination of a dispute” [31] Also refer to Enra Engineering and Fabrication Sdn Bhd v Gemula Sdn Bhd & Anor [2019] 10 CLJ 33 where the Court therein held “[37] Whether or not the adjudicator should avail himself of any of the vast powers conferred on him in s. 25 of the CIPAA is a matter best left to the adjudicator in the exercise of his discretion and the court would generally abstain from interfering or intervening in an application to set aside an adjudication decision. [38] He may exercise any of the powers given on him from s. 25(a) to

either alone or in combination with other powers. It is not mandatory for the adjudicator to exercise all of his powers provided under s. 25 of the CIPAA. Pursuant to s. 12(1) of the CIPAA, the adjudicator shall conduct the adjudication in the manner as the adjudicator considers appropriate within the powers provided under s.

25.” Stay Application [32] On the Stay Application, apart from the fact the enclosure 1 in OS 3 does not contain any specific grounds in support of the Stay, I hold that GOF has not met the threshold for a Stay pursuant to section 16 CIPAA. [33] Section 16 CIPAA states

A party may apply to the High Court for a stay of an adjudication decision in the following circumstances:

an application to set aside the adjudication decision under section 15 has been made; or

the subject matter of the adjudication decision is pending final determination by arbitration or the court. [34] Premised on Econpile (M) Sdn Bhd v ASM Development (KL) Sdn Bhd and anor appeal [2024] 3 MLJ 157 the Federal Court has held that the Court is not to grant a stay if the AD is not set aside. [35] Accordingly, as I have held based on all of my grounds aforesaid that there is no clear error in the AD, the Stay Application has to be dismissed. Enforcement of AD [36] With regards the enforcement of the AD, section 28(1) and (2) CIPAA provides

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.

The High Court may make an order in respect of the adjudication decision either wholly or partly and may make an order in respect of interest on the adjudicated amount payable. [37] As there are no further impediments on the AD, I hereby hold that pursuant to section 28 (1) and (2) CIPAA that the AD is to be enforced as per OS 214. Decision [38] I thus dismiss OS 3 with costs of RM10,000.00 and grant Order In terms for prayers (a), (b), (c), (d), (e), (f) and (g) costs of RM5,000.00 of enclosure 1 in OS 214. Dated: 1st day of July 2025 sgd. NADZARIN WOK NORDIN HIGH COURT JUDGE CONSTRUCTION COURT 1 COUNSEL FOR THE PLAINTIFF (OS 3)/DEFENDANT (OS 214) : Nattawynn a/l Su Wit (Messrs Susan Lee & Co.] COUNSEL FOR THE RESPONDENT (OS 3)/PLAINTIFF (OS 214): Deepak Mahadevan and Loon Ann Ni (Messrs Azmi Fadzly Maha & Sim)