(b) Tan Chong’s financial standing. Ground (a) - Granstep’s jurisdictional challenge [39] For ground (a) learned counsel replicated Granstep’s jurisdictional challenge, based the same grounds when applying to set aside the AD (OS No. 11). Counsel submitted that there are clear and unequivocal errors in the AD because the Adjudicator had no jurisdiction and therefore in the circumstances it would be just to grant a stay. [40] It bears repeating that the learned HCJ was not convinced by Granstep’s jurisdictional challenge. As earlier stated by us in the earlier part of our judgment herein, we find no error in the ruling by His Lordship on the issue. We find no reason to depart from our said finding in respect of Granstep’s jurisdictional challenge for OS No. 12 (Appeal No. 1598). Thus, we find no merit in ground (a). S/N leLtCulhUOeiTnEWvmg7w Ground (b) - Tan Chong’s financial standing [41] For ground (b) learned counsel contended that there is a high probability that Tan Chong would be unable to repay Granstep at the end of the proceedings, in the event the outcome favours Granstep. Counsel relied on the fact that Tan Chong vide Originating Summons No. NA-24NCC-6-03/2020, had applied for Judicial Management, based on Tan Chong’s inability to pay its trade creditors and banks. Even though on 08.03.2021, the Court dismissed the Judicial Management Application, counsel contended that RHB Bank Berhad and all the other creditors of Tan Chong are free to initiate execution proceedings against Tan Chong. (It bears mention that Tan Chong was subsequently wound up on 28.07.2021 by the Seremban High Court in Companies Winding-Up No. NA-28NCC-10-04/2021, upon the petition of RHB Bank Berhad). [42] Counsel submitted that the learned HCJ acknowledged Tan Chong’s commercial insolvency but declined to stay the AD despite the overwhelming risk that Tan Chong may not be able to pay back the sum sought to be enforced by the Granstep or the sum allowed to be enforced by the learned HCJ in the event that the arbitration outcome is in favour of the Granstep. [43] Counsel further averred that even though the learned HCJ took into consideration the judgment obtained by Granstep against Tan Chong, the sum allowed to be enforced via the AD remains large, which counsel contended, Tan Chong may not be able to pay back. Counsel relied on the High Court cases of Pinnacle Supreme Sdn Bhd v DSG Projects Malaysia Sdn Bhd [2021] MLJU 961 and Kayangan Kemas Sdn Bhd v Tmt Solutions Sdn Bhd [2019] MLJU 1277 and Panzana Enterprise Sdn Bhd v MKP Builders Sdn Bhd and S/N leLtCulhUOeiTnEWvmg7w another case [2021] MLJU 386. [44] Concerning ground (b), namely, Tan Chong’s financial capability, we referred to the Federal Court case View Esteem Sdn Bhd v. Bina Puri Holdings Sdn Bhd [2018] 2 MLJ 22, wherein, on the applicability of section 16 CIPAA, Zulkefli Ahmad Makinudin PCA states the following: “[84] The High Court and the Court of Appeal in the present case took the view that no stay was available unless the appellant could show that the respondent was unable to repay the adjudication sum. With respect we are of the view that the correct approach for the High Court under s. 16 of CIPAA would be to evaluate each case on its merits without the fetter of a pre-determined test not found in the section itself namely the financial capacity of the contractor to repay. It could be a factor but not the only factor.” [Emphasis added] [45] In our view having appraised the GOJ, for OS No. 12, the learned HCJ had duly followed the principle laid out in View Esteem above mentioned. As an appellate Court, we are minded by the guidance and reminder by the Federal Court in case of Ng Hoo Kui & Anor v Wendy Tan Lee Peng [2020] 10 CLJ 1 where it held as follows: “As long as the trial judge's conclusion can be supported on a rational basis in view of the material evidence, the fact that the appellate court feels like it might have decided differently is irrelevant. In other words, a finding of fact that would not be repugnant to common sense ought not to be disturbed. The trial judge should be accorded a margin of appreciation when his treatment of the evidence is examined by the appellate courts.” [46] Section 16 of CIPAA allows some degree of flexibility to the courts to slay an adjudication award where there are clear errors, or to meet S/N leLtCulhUOeiTnEWvmg7w justice of the individual case. As found by the learned HCJ, with which we are in concurrence, there was no error on the part of the Adjudicator in proceeding and thereafter in determining the 2nd Adjudication and premised on his Lordship’s said findings aforesaid, found that Tan Chong had established all the requirements under section 28 of CIPPA and based on that allowed enforcement of the AD. Granstep failed to show any error on the part of the Adjudicator and/or the learned HCJ. [47] Thus, we would also dismiss Granstep’s appeal for Appeal No. 12 and accordingly, we affirmed the decision of the HC. Overall Conclusion [48] For the 3 Appeals before us, by and large counsels had repeated and refreshed their respective submissions made before the High Court for OS Nos. 11, 12 and 13. Having considered the reasonings of the learned HCJ in dismissing OS Nos. 11 and 12 and in allowing OS No. 13, we are in concurrence with the said findings and decision of the HCJ. [49] We find that his Lordship was not plainly wrong in his finding. We could not find any error to warrant our intervention. [50] All in all, we are of the considered view, that Granstep failed to show that the learned HCJ was plainly wrong, on the law and the facts in dismissing Granstep’s Setting Aside Application (OS No. 11) and also in not granting a stay of enforcement of the same, pending arbitration (OS No. 12). The learned HCJ was also not plainly wrong in allowing leave to Tan Chong to enforce the AD (OS No, 13). S/N leLtCulhUOeiTnEWvmg7w [51] Based on the aforesaid reasons, we are constrained to dismiss all the 3 Appeals. Hence Appeals No. 11, 12, and 13 are respectively dismissed with Costs of RM20,000-00 to Tan Chong, subject to allocator. t.t AHMAD ZAIDI BIN IBRAHIM JUDGE COURT OF APPEAL PUTRAJAYA Dated: 15.04.2024 For the Appellant: Richard Kok, Messrs Richard Kok Advocates & Solicitors For the Respondent: Ganesalingam Vijayaratnam Messrs Ganesalingam Vijayaratnam & Aishah Jothilingam, Advocates & Solicitors Cases Referred: