Hexatech Energy Consolidated Sdn. Bhd. v China Construction Yangtze River (Malaysia) Sdn. Bhd. (WA-24C-28-02/2026)

The Plaintiff ("Hexatech") commenced this Originating Summons ("OS") seeking to set aside the Adjudication Decision dated 22.7.2024("Adjudication Decision") under Section 15(a) of the Construction Industry Payment and Adjudication Act 2012 ("CIPAA") on the sole ground that it was improperly procured through fraud ("Setting Aside Application").

The central issue is whether CCYR's non-disclosure of the Global Settlement Agreement(as referred below) during the adjudication proceedings amounted to fraud within the meaning of section 15(a) of CIPAA.

Having considered the OS, the affidavits, the parties' written submissions and the authorities relied upon, I allowed Hexatech's Setting Aside Application with costs.

CCYR has appealed against my decision setting aside the Adjudication Decision in its entirety . These are my full grounds for that decision.

By a Letter of Award dated 30.9.2017, the Defendant("CCYR"), as main contractor for a project undertaken for the employer, Gold Mart Sdn Bhd("Employer"), at Pulau Melaka ("Project"), appointed Hexatech as the nominated sub-contractor to carry out and complete the Electrical Installation Works for the Project, for a sum of RM58,220,380.00.

Hexatech had previously commenced two adjudication proceedings against CCYR under CIPAA arising from the Sub-Contract obtaining Adjudication Decisions dated 26.2.2020 ("1st CIPAA Decision") and 24.8.2021 ("2nd CIPAA Decision") respectively.

Following the 2nd CIPAA Decision, Hexatech and CCYR entered into a Settlement Agreement dated 23.11.2021 ("Settlement Agreement") to, amongst others, (i) regulate the discharge and payment of amounts due under the two prior adjudications; and (ii) agree on how future payments of certified sums, retention monies and uncertified sums arising under the Sub-Contract were to be dealt with.

Clause 3.4(15) of the Settlement Agreement provided that CCYR would release to Hexatech the retention sum and payments of interim certificates said to be due, provided that CCYR had managed to recover these sums from the Employer in the arbitration proceedings ("Arbitration") between CCYR and the Employer, with the quantum to be determined and apportioned in accordance with the Arbitration decision.

Clauses 3.4(16) and 3.4(17) further provided that the parties would review and assess entitlement to recover sums from the uncertified amount or other contractual entitlements in that arbitration, and that CCYR would reserve its right to make only those deductions reflected in the Arbitration decision.

On 23.2.2024, Hexatech commenced a third CIPAA adjudication against CCYR vide AIAC Adjudication Reference No. AIAC/D/ADJ 5273-2024 ("3rd CIPAA Adjudication"), claiming a total sum of RM11,715,999.11 comprising, amongst others, unpaid certified work done, uncertified work done, costs of materials and goods, losses and expenses, and the return of retention sums.

In its Adjudication Response dated 25.4.2024, CCYR pleaded at paragraph 27.4 (and repeated in substance at paragraph 119.1) that, in reliance on clause 3.4(15) of the Settlement Agreement, the retention sum and interim certificate payments would only become due upon CCYR's recovery from the Employer in the Arbitration and that, since no such recovery had occurred, Hexatech's claims were premature.

Unbeknownst to Hexatech, CCYR had, some seven months earlier, already entered into a Global Settlement Agreement dated 18.9.2023 ("Global Settlement Agreement") with the Employer, together with Prolific Properties Sdn Bhd and MDSA Alliance Sdn Bhd ("MDSA"), under which all disputes between CCYR and the Employer arising from the Project were compromised and finally settled.

Under the first limb of the Global Settlement Agreement—the only part material to the present application—a sum of RM10 million was to be paid to CCYR through the sale of Lot 455 by MDSA to Temu Cove Sdn Bhd ("Temu Cove"), a company incorporated by Hexatech for that purpose.

That part of the settlement did not in the event materialise, as the Sale and Purchase Agreement between Temu Cove and MDSA was never executed and Temu Cove indicated it was no longer interested in the purchase.

On 22.7.2024, the learned Adjudicator, Mr. Mohanadass Kanagasabai delivered the Adjudication Decision, dismissing all of Hexatech's claims in the 3rd CIPAA Adjudication and ordering Hexatech to pay costs of RM60,775.00 to CCYR within 10 working days.

Materially, the Adjudicator held, at paragraphs 99 to 102, that clause 3.4(15) of the Settlement Agreement, read as a whole, was intended to regulate not only the matters contemplated in Recitals E to F but also other claims and potential claims, such that the claims for retention sum and payment certificates were "beyond [his] jurisdiction" and "need not be paid pending the outcome of the arbitration contemplated therein".

The disputes over work valuation (paragraphs 104-105) were held to be similarly "on hold" pending that Arbitration. The claims for costs of materials and goods (RM3,717,961.70) and for loss and expenses (RM1,169,012.06) were separately dismissed at paragraphs 113 to 119 for want of documentary proof, and the claim for interest was dismissed at paragraph 120 "having regard to [the Adjudicator's] conclusion and findings as before said".

On 4.11.2025, Hexatech commenced a separate civil action against CCYR via Kuala Lumpur High Court Civil Suit No. WA-22C-66 11/2025 ("Suit 66"), pleading breach of the Settlement Agreement and seeking to recover the very sums dismissed in the Adjudication Decision. At the time the action was commenced, Hexatech's Statement of Claim in Suit 66 did not plead fraud against CCYR.

On 11.12.2025, CCYR filed its Defence and Counterclaim in Suit 66, pleading, amongst others, that Hexatech's claims were inconsistent with the unchallenged Adjudication Decision, and counterclaiming for the RM60,775.00 costs awarded in the 3rd CIPAA Adjudication, which remains unpaid.

Hexatech's case is that it only discovered, in or around February 2026, that CCYR had settled its dispute with the Employer as far back as 18.9.2023 some 7 months before CCYR filed its Adjudication Response asserting that recovery from the Employer remained pending.

Hexatech contends that the existence of the Global Settlement Agreement was disclosed by CCYR for the first time in CCYR's Affidavit in Reply filed in these proceedings, together with a heavily redacted copy of that agreement.

On 19.2.2026, as a reactive measure following CCYR's Defence and Counterclaim in Suit 66, Hexatech filed the present OS on the sole ground that it was improperly procured by CCYR's fraud, namely, CCYR's deliberate concealment of the Global Settlement Agreement while representing to the Adjudicator that recovery from the Employer remained pending in the Arbitration.

Hexatech has since also applied to amend its Statement of Claim in Suit 66 to plead the same fraud allegation there, for the purposes of its claim for exemplary damages and costs on an indemnity basis. Hexatech avers that CCYR did not object to that amendment.

Hexatech maintains that the OS and Suit 66 are pursued for different reliefs the former a statutory challenge to the integrity of the adjudication process, the latter a contractual claim for final substantive remedies and are not duplicative.

Against that factual background, the present application raises a narrow but important question: whether CCYR's alleged non-disclosure of the Global Settlement Agreement, coupled with its reliance on the continued existence of the Arbitration, amounted to fraud within the meaning of section 15(a) of CIPAA so as to warrant setting aside the Adjudication Decision.

Hexatech's case, as advanced in the OS, affidavits and written submissions, may be summarised as follows: a) the sole ground relied upon is section 15(a) of CIPAA that the Adjudication Decision was improperly procured through fraud; b) the fraud lies in CCYR's deliberate concealment, during the 3rd CIPAA Adjudication, of the existence of the Global Settlement Agreement, coupled with CCYR's positive representation in its Adjudication Response that recovery from the Employer remained pending in a subsisting arbitration; c) relying on the principles laid down by the leading authorities in Malaysia i.e. Gumi Asli Elektrikal v Dazzling Electrical (M) Sdn Bhd [2020] 1 LNS 189 and KPF Niaga Sdn Bhd v Vigour Builders Sdn Bhd [2021] 1 LNS 141, Hexatech need only show, on a balance of probabilities, that the Adjudication Decision was improperly procured through fraud, directly or indirectly it need not show that the Adjudicator was complicit in that fraud; d) the concealment falls within the category of fraud recognised in SG South Ltd v King's Head Cirencester LLP [2009] EWHC 2645 (TCC) that neither was nor could reasonably have been raised during the adjudication, since Hexatech was not privy to the arbitration between CCYR and the Employer and had no means of independently verifying its status; e) the fraud had a material and operative influence on the Adjudication Decision, because the Adjudicator's dismissal of the claims for retention sum, interim certificates and work valuation was expressly premised on the footing which Hexatech says was false that recovery remained pending in an ongoing arbitration; f) Hexatech further contends that CCYR's disclosure of the Global Settlement Agreement only in its Affidavit in Reply, coupled with its continued denial of any duty of disclosure, reinforces the inference of dishonesty. g) accordingly, applying KPF Niaga (supra), the Adjudication Decision ought to be set aside in its entirety, since the fraud directly impacted the subject matter of the decision as a whole and was not confined to a single, severable finding.

CCYR disputes each of those propositions and contends that the Setting Aside Application is procedurally defective and substantively devoid of merit. Its position may be summarised as follows: a) procedurally, Hexatech has failed to plead deliberateness and dishonesty in the OS, and has failed to identify the specific part or parts of the Adjudication Decision said to be tainted, contrary to Order 69A rules 2(1)(c) and 3(1)(b) and (c) of the ROC 2012; b) substantively, there was no fraud: CCYR was under no legal or contractual duty, either under the Settlement Agreement or otherwise, to disclose the existence or status of its settlement with the Employer to Hexatech or the Adjudicator, and mere silence in the absence of a duty to speak cannot constitute fraud, relying on Lau Hee Teah v Hargill Engineering Sdn Bhd & Anor [1980] 1 MLJ 145 and Abdul Manaf bin Ahmad v Mohd Kamil Datuk Haji Mohd Kassim [2011] 4 MLJ 346; c) the statements at paragraph 119.1 of the Adjudication Response were true and accurate both as a recitation of clause 3.4(15) of the Settlement Agreement and as a statement of the plain fact that CCYR had not, to date, recovered any monies from the Employer, a fact which CCYR says remains true irrespective of the settlement; d) in any event, Hexatech knew, or ought to have known, of the Global Settlement Agreement well before the Adjudication Decision, through Temu Cove's dealings over Lot 455, and having remained silent throughout the adjudication, cannot now rely on the alleged non-disclosure; e) the allegation of fraud is inconsistent with Hexatech's own pleaded case in Suit 66, where until a recent and belated application to amend Hexatech pleaded only breach of the Settlement Agreement and made no allegation of fraud; this inconsistency, together with the fact that the OS was filed some 1.5 years after the Adjudication Decision and only after CCYR's Defence and Counterclaim in Suit 66, points to the OS being a tactical afterthought amounting to res judicata, issue estoppel and multiplicity of proceedings, and an abuse of process of this Court; f) allegations of fraud require strict proof by way of viva voce evidence and cross-examination, which Hexatech did not seek despite the availability of that procedure under Order 28 rule 4(3) (4) of the ROC 2012, such that this Court cannot resolve the disputed allegations on affidavit evidence alone; and g) in any event, applying the "but for" test endorsed in Tera Va Sdn Bhd v Ayam Bintang Istimewa Sdn Bhd & Another Appeal [2025] 1 CLJ 221, the alleged fraud had no causal or operative link to the Adjudication Decision, since the dismissal of Hexatech's claims rested on independent jurisdictional, contractual and evidential grounds unconnected to the Global Settlement Agreement, such that the outcome would have been identical even had disclosure been made. D. THE LEGAL FRAMEWORK a) From Gumi Asli Elektrikal (supra) and KPF Niaga (supra), two cumulative requirements must be satisfied:

The applicable legal principles emerging from the authorities relied upon by the parties may be summarised as follows: i) Fraud has been committed (proof on a balance of probabilities not beyond reasonable doubt, per Sinnaiyah & Sons Sdn. Bhd. v. Damai Setia Sdn Bhd [2015] 7 CLJ 584-FC); ii) The fraud must have directly impacted the subject matter of the Adjudication Decision, that is, it must have been operative and causally connected to the outcome.

The Court of Appeal's decision in Tera Va (supra), relied upon by CCYR, further illustrates that fraud which does not impact the claim upon which the decision was based should not generally be deployed to prevent enforcement. The fraud must be of the type that neither was nor could reasonably have been raised during the adjudication, but emerged afterwards.

The authorities further draw an important distinction, drawn in SG South (supra) and adopted locally in Gumi Asli Elektrikal (supra) and KPF Niaga (supra), is between fraud that was raised, or was capable of being raised, during the adjudication itself where, once adjudicated upon, the decision remains enforceable and fraud that neither was nor could reasonably have been raised during the adjudication but emerges only afterwards, which may properly found an application under section 15(a).

As to pleading, Order 69A rule 2(1)(c) and rule 3(1)(b) and (c) of the ROC 2012 require that an originating summons under section 15 of CIPAA state the grounds relied upon, identify the part or parts of the adjudication decision challenged, and specify the grounds on which it is contended the decision should be set aside.

Fraud, being a serious allegation, must additionally be distinctly pleaded and distinctly proved: Paragon Finance plc v DB Thakerar & Co (a firm) [1999] 1 All ER 400, as applied in Zaliah bt Zakaria v Standard Chartered Bank Malaysia Bhd [2009] 8 MLJ 545.

Mere silence or passiveness, in the absence of a fiduciary relationship or a duty to speak, does not amount to fraudulent concealment: Abdul Manaf (supra).

Allegations of fraud should not, as a general rule, be resolved solely on conflicting affidavit evidence. Where the affidavits disclose genuine disputes of fact material to the allegation, the court should ordinarily confine itself to the undisputed facts unless the disputed matters are tested by viva voce evidence and cross-examination: Serac Asia Sdn Bhd v Sepakat Insurance Brokers Sdn Bhd [2013] 5 MLJ 1, applying the Privy Council's observations in Tay Bok Choon v Tahansan Sdn Bhd [1987] 1 MLJ 433.

Conversely, that principle does not, however, prevent a court from making a finding of fraud where the alleged fraud is established by undisputed contemporaneous documents or admissions, such that no genuine dispute of fact requiring cross-examination arises.

CCYR raises two procedural objections: first, that deliberateness and dishonesty were not expressly pleaded in the Originating Summons; and second, that the specific parts of the Adjudication Decision challenged were not identified as required under Order 69A rule 3(1)(b) and (c) of the ROC 2012.

These objections carry some weight in principle, but they are not decisive. The OS expressly pleads fraud and fraud, by its very nature, imports wilfulness and dishonesty. It is difficult to conceive of inadvertent or innocent fraud. As noted in Paragon Finance (supra) (cited in Zaliah (supra)), fraud must be distinctly alleged and here it is: the OS states the AD was "improperly procured by fraud" through deliberate concealment.

While more particularised pleading of dishonesty would have been better practice, reviewing the OS together with the supporting affidavits and written submissions and authorities submitted, the substance of the allegation including deliberate and wilful concealment is sufficiently communicated. Courts in Malaysia have been slow to strike out substantive applications on pure technicality when the substance is clear.

On the identification of impugned parts: the OS does identify the claims said to have been affected (certified sums, retention sum, uncertified sums). This is adequate, if imprecise. Accordingly, I would not dispose of the application on these procedural grounds.

I accept that the pleading standard articulated in Zaliah (supra) (applying Paragon Finance) is more exacting than the OS strictly satisfies, and that better practice would have been to plead deliberateness and dishonesty expressly.

However, the allegation that the Adjudication Decision was "improperly procured by fraud" through "concealment" of a material document, read together with the supporting affidavit, sufficiently conveys the essential complaint — namely, that the non-disclosure was knowing and deliberate rather than inadvertent or innocent. CCYR was therefore left in doubt as to the case it had to meet, as evidenced by the detailed Affidavit in Reply addressing the allegations on its merits. In those circumstances, I decline to dismiss the OS on this pleading point alone.

CCYR claims that the OS constitutes an abuse of process given the concurrent Suit 66, characterising the 2 proceedings as involving the same subject matter and creating the risk of inconsistent findings.

I am unable to accept CCYR's contention. The 2 proceedings are fundamentally different in nature and relief:

The OS under Section 15(a) CIPAA is the exclusive statutory gateway to challenge an Adjudication Decision on fraud. It is not a merits-based challenge and cannot be pursued in an ordinary civil suit. Section 15 and Section 28 CIPAA operate in distinct domains. Suit 66, by contrast, is a contractual action for breach of the Settlement Agreement, seeking final substantive remedies including exemplary damages.

CCYR's reliance on Asia Commercial Finance (M) Berhad v Kawal Teliti Sdn Bhd [1995] 3 CLJ 783, Lai Kim Loi v Dato Lai Fook Kim & Anor [1989] 2 MLJ 290 and Penang Port Commission v Kanawagi s/o Superumaniam [2008] 6 MLJ 686 is distinguishable — those cases involved parallel proceedings seeking identical reliefs.

Here, the reliefs are qualitatively different and non-duplicative. The doctrine of judicial estoppel relied upon in Sykt Rodziah (sued as a firm) v Malayan Banking Bhd [2021] 5 MLJ 688 and Leisure Farm Corp Sdn Bhd v Kabushiki Kaisha Ngu (formerly known as Dai-Ichi Shokai) & Ors [2017] 5 MLJ 63 equally does not bite Hexatech's position is not inconsistent.

It discovered the fraud after Suit 66 was filed, promptly amended its Statement of Claim in Suit 66 (unopposed by CCYR), and simultaneously invoked the only statutory mechanism available to challenge the AD itself. This is consistent conduct, not forum shopping.

I have also considered CCYR's contention that the OS was filed some 1.5 years after the Adjudication Decision, and only shortly after CCYR filed its Defence and Counterclaim in Suit 66, such that the OS bears the appearance of a reactive tactical manoeuvre.

I am, however, of the considered view that timing alone is not determinative where a plausible and unrebutted explanation is provided. Hexatech's explanation that it did not discover the alleged concealment until CCYR disclosed the Global Settlement Agreement for the first time in its Affidavit in Reply, is not contradicted by any evidence that it had earlier knowledge of that concealment. I deal separately below with CCYR's argument that such knowledge was imputed to Hexatech through Temu Cove.

Equally significant is the fact that, upon discovering the Global Settlement Agreement, Hexatech acted promptly by filing the present OS and separately seeking to amend its Statement of Claim in Suit 66. The amendment application was not opposed by CCYR. This conduct is, in my view, more consistent with genuine discovery of the alleged fraud than with opportunistic forum shopping.

CCYR relies heavily on Serac Asia (supra) and the Privy Council's observation in Tay Bok Choon (supra) that when affidavits conflict on disputed facts, the court must confine itself to incontrovertible facts and cannot make findings of fraud without oral evidence and cross-examination.

This submission requires closer examination. My view is that it would be dependent on whether the material facts are truly disputed or whether the fraud is provable from the face of the documents.

Critically, the following facts are not disputed and are established from the documents themselves: a) The Global Settlement Agreement was executed on 18.9.2023. CCYR does not deny this. b) CCYR's Adjudication Response was filed on 25.4.2024 — some seven months later. c) In the Adjudication Response at para 119.1, CCYR expressly stated that "since the Respondent had yet to recover from the Employer, the payments for interim certificate and retention sum are not due and payable." CCYR does not deny making this statement. d) The Adjudication Decision was delivered on 22.7.2024 over 10 months after the settlement was inked.

These are not disputed facts requiring credibility findings through cross-examination. The alleged fraud is established, if at all, by contemporaneous documentary evidence rather than disputed oral testimony. CCYR made a positive representation about a state of affairs (pending arbitration, non-recovery) which it knew, from its own signed agreement, to be untrue.

The Serac Asia (supra) principle applies most forcefully where both sides' affidavits paint conflicting factual accounts that cannot be resolved without hearing witnesses. Here, the core fraud is established by CCYR's own documents and its own admissions. Hexatech did not need to cross-examine because the fraud is revealed on the face of the record. Issue 4: Was There Fraud within the meaning of s 15(a) of CIPAA?

This is the central question and based on the contemporaneous documents exhibited in the exchange of affidavits, I find in Hexatech's favour.

CCYR's defence is essentially threefold: (a) it was merely reciting clause 3.4(15) of the Settlement Agreement; (b) it had no legal or contractual duty to disclose the Global Settlement Agreement; and (c) its statements about pending recovery were technically accurate since it had in fact not yet recovered from the Employer.

I am unable to accept of these submissions.

On (a) — "merely reciting the clause": Clause 3.4(15) refers to CCYR recovering from the Employer "in the arbitration between CCYR and the Employer." By the time of the Adjudication Response, that arbitration had been settled and discontinued. CCYR did not merely cite the clause it represented that the condition precedent (arbitration pending, recovery not yet received) was currently operative and subsisting.

Para 119.1 contains an active present-tense assertion: "Since the Respondent had yet to recover from the Employer, the payments... are not due and payable." This is a representation of present fact, not merely a citation of contractual terms.

On (b) no duty to disclose: CCYR's reliance on Lau Hee Teah (supra) and the principle that mere silence does not constitute fraud is misplaced. The distinction between Lau Hee Teah (supra) (silence about a machine's history in a private commercial negotiation) and the present case is fundamental. In Lau Hee Teah (supra), there was no positive assertion made; there was simply non-disclosure of background facts.

Here, CCYR did not merely remain silent it advanced a positive defence in adjudication proceedings before a quasi-judicial tribunal, asserting that the arbitration was ongoing and that recovery from the Employer was pending.

The duty of candour in legal proceedings is qualitatively higher than in private commercial dealings. A party who chooses to run a positive defence based on a state of affairs has, at the very least, an obligation not to assert that state of affairs when it knows it to be false. To say one has "no obligation to speak" cannot justify a positive representation known to be untrue.

On (c) - "technically accurate since no recovery received": This argument overlooks the fact that it conflates two distinct things. The Settlement Agreement contemplated a specific mechanism payment upon recovery through the Arbitration. The Arbitration was the agreed mechanism for determining what CCYR recovered and, consequently what Hexatech was entitled to receive.

Once the Arbitration was settled by the Global Settlement Agreement, the very mechanism through which Hexatech's entitlement was to be quantified ceased to exist. By continuing to represent to the Adjudicator that this arbitration-based mechanism remained pending, when CCYR knew that it had already been brought to an end, CCYR induced the Adjudicator to proceed on the mistaken premise that Hexatech's claims remained premature pending the outcome of the Arbitration.

I therefore find that CCYR knowingly made a material misrepresentation during the adjudication proceedings, which falls within the concept of fraud contemplated by section 15(a) of CIPAA. It goes beyond mere non-disclosure and constitutes the type of wilful dishonesty recognised in KPF Niaga (supra).

CCYR further contends that, in any event, Hexatech knew of the Global Settlement Agreement well before the Adjudication Decision. In support of this contention, it relies on correspondence between Temu Cove and MDSA concerning the proposed purchase of Lot 455, as well as an email from an address said to be linked to Hexatech's corporate group. I am unable to accept this submission.

That correspondence relates to a separate, and ultimately aborted transaction for the sale of Lot 455 between Temu Cove and MDSA the mechanism said to fund the first limb of CCYR's settlement with the Employer. It nowhere refers to, much less discloses, the existence or terms of the Global Settlement Agreement, or the discontinuance of the Arbitration between CCYR and the Employer.

Awareness that a related entity was involved in discussions concerning the proposed purchase of a particular parcel of land is not equivalent to knowledge that CCYR and the Employer had, months earlier, fully and finally settled all disputes arising from the Project.

More importantly, CCYR's own affidavit evidence stops well short of asserting, let alone establishing, that Hexatech was ever informed of either the Global Settlement Agreement or the discontinuance of the Arbitration. Accordingly, this argument does not assist CCYR. Issue 5: Causal Link — Did the Fraud Directly Impact the Adjudication Decision?

The question of causation requires separate consideration, as different parts of the Adjudication Decision were decided on different grounds. Category A Retention Sum, Payment Certificates, and Work Valuation Disputes:

Looking at the Adjudication Decision itself, paragraphs 99-105 are critical. The Adjudicator held at paragraph 100 that clause 3.4(15) means the sums "need not be paid pending the outcome of the arbitration contemplated therein." His conclusion at paragraph 101 that these claims are "beyond my jurisdiction" was a direct consequence of his prematurity finding — which itself rested on the premise of a pending arbitration. Paragraph 105 expressly states disputes over work valuation are "similarly on hold pending the arbitration."

CCYR's argument that the Adjudicator's decision was based purely on contractual interpretation of clause 3.4(15) without reference to the ongoing arbitration is a misreading of the decision. The Adjudicator did not find that the clause operated in perpetuity regardless of the arbitration's fate. He found the claims premature because the arbitration was pending. The entire jurisdictional finding is premised on the arbitration being an existing, operative proceeding.

Had the Adjudicator known that the Arbitration had been settled and discontinued some 10 months earlier, he could not have found the claims premature "pending the arbitration." He would have been compelled to consider whether clause 3.4(15) could still operate and likely whether the condition precedent had been frustrated, rendering the sums immediately due, or whether a different analysis was required. The fraud was not merely tangential it was the foundational premise of the dismissal of the primary claims. The causal nexus is clear and direct.

Nor does CCYR's further argument assist it. CCYR contends that the Settlement Agreement is, in any event, not a "construction contract" within the meaning of section 4 of CIPAA, such that the Adjudicator's lack of jurisdiction over the retention and certificate claims is unassailable regardless of the alleged fraud. I am unable to accept that submission.

Hexatech's complaint is not that the Adjudicator was wrong to find that clause 3.4(15) governed those claims; it is that the Adjudicator was induced into concluding that the pre-condition in clause 3.4(15) recovery pending in a subsisting Arbitration remained unsatisfied, when in truth it could never be satisfied because the arbitration no longer existed.

Whether or not the Settlement Agreement is itself a construction contract, that does not answer Hexatech's complaint. The fraud goes to the factual premise on which the Adjudicator concluded that the claims remained premature pending the Arbitration. That premise was false.

Four features, viewed cumulatively, compel the conclusion that the Adjudication Decision was improperly procured through fraud:

the Global Settlement Agreement had already superseded the Arbitration;

(ii) CCYR nevertheless advanced its defence on the premise that the Arbitration remained operative;

(iii) the true position was exclusively within CCYR's knowledge; and

(iv) the Adjudicator relied on that premise in treating substantial parts of the claim as premature. Category B — Materials and Goods Claim (RM3,717,961.70) and Loss and Expenses (RM1,169,012.06):

These claims were dismissed at paragraphs 113-119 of the Adjudication Decision on purely evidential grounds, the Adjudicator having found that Hexatech failed to produce adequate supporting documentation. The Adjudicator made no reference to the Arbitration or the Global Settlement Agreement in dismissing these claims. To this extent, I accept CCYR's submission that disclosure of the Global Settlement Agreement would not have cured Hexatech's evidential deficiencies. The necessary causal link between the fraud and the dismissal of these claims is therefore absent.

The interest claim was dismissed "...having regard to my conclusion and findings as before said" (paragraph 120). The dismissal was therefore consequential upon the Adjudicator's earlier findings concerning the primary claims. Since those findings were themselves founded upon the false premise identified above, the dismissal of interest claim likewise falls with them. Issue 6: Extent of Setting Aside — Entire Adjudication Decision or Only Affected Parts?

CCYR submits this Court to consider that even if some findings are tainted, the court should grant proportionate and targeted relief rather than setting aside the entire Adjudication Decision. I am not persuaded by CCYR's submission.

The tension here is between two statutory provisions: Section 28 CIPAA expressly allows for partial enforcement; Section 15 is silent on partial setting aside but does not expressly exclude it.

However, applying KPF Niaga's principle that the Adjudication Decision is set aside in its entirety where the fraud directly impacts the subject matter of the decision the answer favours entire setting aside. The fraud went to the foundational premise upon which the Adjudication Decision proceeded. The Adjudication Decision must be read as a whole. Having concluded that the primary claims were premature because the Arbitration remained pending, the Adjudicator dismissed the claim in its entirety. The work valuation disputes and interest claim were expressly linked to this same premise.

Although the materials and loss claims were dismissed on independent evidential grounds, they formed part of a single Adjudication Decision whose overall disposition—including the costs order—was reached against the backdrop of the Adjudicator's findings on the primary claims.

It would create an anomalous and unworkable result to set aside only parts of the Adjudication Decision, since the Adjudicator's reasoning on costs, quantum and the overall disposition was interlinked. Furthermore, it would also be unjust to permit CCYR to retain part of the benefit of an Adjudication Decision that was improperly procured through fraud merely because certain components were capable of being supported on independent grounds.

There is, in addition, a practical difficulty with any partial setting aside. The costs order of RM60,775.00 against Hexatech was made on the footing that Hexatech was wholly unsuccessful in the 3rd CIPAA Adjudication.

Given my finding that the primary claims were dismissed on a false factual premise brought about by CCYR's fraud, the costs consequences flowing from that wholesale dismissal cannot realistically be severed and preserved in part. This reinforces my conclusion that the Adjudication Decision must be set aside as a whole, rather than piecemeal. F. CONCLUSION In summary:

First, the procedural objections raised by CCYR do not defeat the application. The allegations of fraud are sufficiently pleaded and the essential facts are established by the contemporaneous documentary evidence.

Second, the OS is not an abuse of process. The section 15(a) application and Suit 66 are fundamentally different proceedings seeking different reliefs, and the statutory setting-aside jurisdiction is the exclusive mechanism available to Hexatech to challenge the Adjudication Decision on fraud grounds.

Third, CCYR committed fraud within the meaning of section 15(a) of CIPAA by advancing a positive defence founded on a state of affairs which it knew to be untrue, namely that the Arbitration remained pending notwithstanding the Global Settlement Agreement concluded some 7 months earlier.

Fourth, the fraud was directly operative and causally connected to the Adjudication Decision. The Adjudicator's finding that the principal claims were premature pending the Arbitration proceeded on a false factual premise supplied by CCYR. That premise likewise underpinned the findings on work valuation and interest, and therefore affected the Adjudication Decision as a whole.

Fifth, the Adjudication Decision must be set aside in its entirety. Given my findings on the operative effect of the fraud, partial setting aside would neither reflect the manner in which the Adjudicator reached his decision nor permit a principled severance of the consequential findings, including the costs order. The parties are therefore to proceed on the basis of a fresh adjudication, if so advised, upon a true factual footing.

Finally, for the reasons already given, I reject CCYR's contention that Hexatech knew of, or was complicit in, the Global Settlement Agreement through Temu Cove's dealings over Lot 455. That contention does not detract from my finding that CCYR's conduct amounted to fraud within the meaning of section 15(a) of CIPAA.

Accordingly, I allow the application and set aside the Adjudication Decision dated 22.7.2024 in its entirety. I award costs of RM12,500.00 to Hexatech subject to allocatur. Dated this 19th day of May 2026 RAJES RAGHAVJI JUDICIAL COMMISSIONER HIGH COURT CONSTRUCTION COURT 1 KUALA LUMPUR COUNSEL: For the Plaintiff Shasha Chin Sim Cheng (Messrs Shasha Chin) For the Defendant : Damian Kethan a/l Anthony Jeyakumar (Messrs Raj, Ong & Yudistra) Case(s) referred to: Gumi Asli Elektrikal v Dazzling Electrical (M) Sdn Bhd [2020] 1 LNS 189 KPF Niaga Sdn Bhd v Vigour Builders Sdn Bhd [2021] 1 LNS 141 SG South Ltd v King's Head Cirencester LLP [2009] EWHC 2645 Lau Hee Teah v Hargill Engineering Sdn Bhd & Anor [1980] 1 MLJ 145 Abdul Manaf bin Ahmad v Mohd Kamil Datuk Haji Mohd Kassim [2011] 4 MLJ 346 Tera Va Sdn Bhd v Ayam Bintang Istimewa Sdn Bhd & Another Appeal [2025] 1 CLJ 221 Sinnaiyah & Sons Sdn. Bhd. v. Damai Setia Sdn Bhd [2015] 7 CLJ 584 FC) Zaliah bt Zakaria v Standard Chartered Bank Malaysia Bhd [2009] 8 MLJ 545 Serac Asia Sdn Bhd v Sepakat Insurance Brokers Sdn Bhd [2013] 5 MLJ 1 Tay Bok Choon v Tahansan Sdn Bhd [1987] 1 MLJ 433 Asia Commercial Finance (M) Berhad v Kawal Teliti Sdn Bhd [1995] 3 CLJ 783 Lai Kim Loi v Dato Lai Fook Kim & Anor [1989] 2 MLJ 290 Penang Port Commission v Kanawagi s/o Superumaniam [2008] 6 MLJ 686 Sykt Rodziah (sued as a firm) v Malayan Banking Bhd [2021] 5 MLJ 688 Leisure Farm Corp Sdn Bhd v Kabushiki Kaisha Ngu (formerly known as Dai-Ichi Shokai) & Ors [2017] 5 MLJ 63 Legislation(s) referred to: