Intisari Mulia Engineering Sdn Bhd v Tuv Sud (Malaysia) Sdn Bhd (W-02(C)(A)-538-04/2023)

the LHCJ erred in fact and/or law in failing to consider that the LA does not have jurisdiction to adjudicate the claim where no written contract has been entered into between the parties;

the LHCJ erred in fact and/or law by taking into consideration CC 03 in her decision;

the LHCJ erred in fact and/or law in failing to consider that there is no due date pleaded in the Payment Claim and the LA has breached s 15(3) of the CIPAA; and

the LHCJ has erred by not taking into consideration all the objections raised by Intisari with regards to lack of jurisdiction on the part of the LA to hear and/or to proceed with the proceedings, and by not considering the Intisari’s comments on the Statement of Account filed by TUV. Our Decision [11] Before us, the crux of Intisari’s arguments and TUV’s counter arguments evolved around the main issue that is, whether the LA has jurisdiction to adjudicate and later decide on the Adjudication Claim filed by TUV where there is no formal contract in writing entered into between the parties. Based on those arguments, we are of the view that the first, second and the first part of the fourth grounds advanced by Intisari in its paragraph (a), (b) and (d) of the MOA are to be first determined and decided together. [12] To begin with, the law related to the Payment Claim by a claimant under CIPAA is trite. Any claimant who wishes to file a Payment Claim must establish the existence of a construction contract. For ease of reference, the applicability of the CIPAA as provided under s 2 is as follows: Application 2. This Act applies to every construction contract made in writing relating to construction work carried out wholly or partly within the territory of Malaysia including a construction contract entered into by the Government. Premised on the said provision, it is obvious that the law requires a claimant must fulfil two elements. First, the claimant must establish that there is a “construction contract made in writing” and second, “the construction contract must relate to construction work carried out wholly or partly within the territory of our country”. [13] In the present appeal before us, the troubling issue is related to the first element, that is, what constitutes a “construction contract made in writing”. Unfortunately, there is no definition assigned or any further elaboration provided to the words “contract made in writing” in CIPAA. Be that as it may, there is a definition for “construction contract” in its Interpretation under s 4 of the CIPAA as follows: "construction contract" means a construction work contract or construction consultancy contract; Meanwhile, the definition of "construction work" under the same interpretation section is as follows: "construction work" means the construction, extension, installation, repair, maintenance, renewal, removal, renovation, alteration, dismantling, or demolition of-

any building, erection, edifice, structure, wall, fence or chimney, whether constructed wholly or partly above or below ground level;

any road, harbour works, railway, cableway, canal or aerodrome;

any drainage, irrigation or river control work;

any electrical, mechanical, water, gas, oil, petrochemical or telecommunication work; or

any bridge, viaduct, dam, reservoir, earthworks, pipeline, sewer, aqueduct, culvert, drive, shaft, tunnel or reclamation work, and includes-

(A) any work which forms an integral part of, or are preparatory to or temporary for the works described in paragraphs (a) to (e), including site clearance, soil investigation and improvement, earth-moving, excavation, laying of foundation, site restoration and landscaping; and

(B) procurement of construction materials, equipment or workers, as necessarily required for any works described in paragraphs (a) to

(e); [14] As to the existence of a formal written contract between the parties in relation to TUV’s Payment Claim against Intisari before the LA, it is undisputed that there is none. TUV has admitted that their claim is only based on the documents, that are, purchase order and invoices, exchange of correspondences and conduct of the parties which include the partial payments made by Intisari. [15] Upon deliberation and consideration on the issue raised before him by Intisari on the existence of a “construction contract in writing”, the LA made the following finding at paragraph 50 of his AD:

Whether there is a construction contract in writing? - in light of the provisions of Circular 3 and the decision on Innovatif Engineering (M) v Nomad Engineering Sdn Bhd 2017 AMR 722, I find there is a construction contract based on the exchange of correspondence, issuance of PO and invoices and partial payments made and exchanged between the parties. From the said finding, it is obvious that the LA himself acknowledged that there is no formal written contract entered into by the parties and yet made a finding that there is a “construction contract” based on the contemporaneous documents and also the conduct of the parties. [16] Meanwhile, the LHCJ also made the same observation as to the existence of a written contract between the parties in TUV’s Payment Claim against Intisari before the LA. At paragraph [29] of the GOJ, the finding of the LHCJ is as follows: [29] The statements forming the basis of TUV’s claim against Intisari in the Payment Claim is as per paras 7, 8, 10, 11 and 12 above. There is obviously no written agreement or contract signed by both parties. The LHCJ then refers to three previous High Court decisions in Zana Bina Sdn Bhd v Cosmic Master Development Sdn Bhd and another case [2017] MLJU 146 (Zana Bina’s case), Poly Ritz Venture Sdn Bhd v Vestland Resources and another case [2016] MLJU 1351 (Poly Ritz Venture’s case) and Ong Teik Beng (t/a MJV Construction) v Wow Hotel Sdn Bhd and another case [2022] 8 MLJ 10 (Ong Teik Beng’s case), and made the following findings in her GOJ: [44] In the light of the above-mentioned case authorities, Intisari’s contention that the dispute cannot be adjudicated for the reason that there is no written contract between TUV and Intisari is unmeritorious. The court in Poly Ritz Ventures (supra) and Ong Teik Beng (supra) have held that purchase orders and quotations can constitute a contract. [45] The Adjudicator had relied on Circular CIPAA 03 issued by the then Kuala Lumpur Regional Centre for Arbitration and the case of Inovatif Engineering in finding that there is a construction contract based on the exchange of correspondence, the issuance of purchase orders and invoices and the partial payments made between the parties. The supporting documents referred to by the Adjudicator were exhibited for purposes of the Setting Aside Application namely, the Purchase Orders, Invoices, Daily and Weekly Time Sheets, Credit Notes, Statement of Account and other documents. Intisari had sent the Purchase Orders dated 22.5.2018 for Project 1 and Purchase Orders dated 21.7.2020 and 7.3.2020 for Project 2, respectively, to TUV. Upon examination of these documents, the Court is satisfied that the essential elements of contract have been established. [46] Consistent with the current approach in the interpretation of the phrase “construction contract made in writing” in s 2 of the CIPAA, to which Intisari has not provided any cogent reason for this Court to take a different view, the absence of a written agreement or contract does not automatically exclude the application of the CIPAA. The Court finds and holds that Intisari has not proven the first ground to set aside the AD, on a balance of probabilities. A. The First Element - Construction Contract Made in Writing [17] After hearing the arguments on this main issue, we invited the learned counsel for the parties to file further submissions on the said main issue. In the further submission, the learned counsel for Intisari referred to the Statutory Adjudication in the United Kingdom (UK) which was governed by Housing Grants, Construction and Regeneration Act 1996 (HGCRA). He submitted that by virtue of s 107 of the HGCRA, the court in UK took a strict and literal interpretation approach whereby the definition of “construction contract made in writing” was confined within the four walls of the agreement in writing as decided by the Court of Appeal in RJT Consulting Engineers Ltd v DM Engineering Ltd [2002] EWCA Civ 270 (RJT’s case). It was argued that the strict approach changed when the legislature in the UK decided to repeal s 107 of the HGCRA in the year 2011 by virtue of s 139 of Local Democracy, Economic Development and Construction Act 2009. Hence, s 107 which defined “Construction Contract Made in Writing” was no longer in force. [18] It was further argued that in light of the RJT’s case and the repeal of s 107 of the HGCRA in UK, CIPAA had to be amended first before interpreting the definition “Construction Contract in Writing” in an expansive approach since it was never the intention of the parliament. Had the parliament intended for CIPAA to be construed in that way hence, the wordings of the CIPAA will surely be aligned with the wordings of HGCRA as CIPAA was passed in 2012 which is post the amendment of HGCRA in 2011. [19] Then, the learned counsel for Intisari referred to the law governing statutory adjudication in Singapore under the Building and Construction Industry Security of Payment Act 2004 (BCISPA) specifically to subsections 4(4) and (5) which provide as follows:

For the purpose of this section, a contract is treated as being made in writing -

if the contract is made in writing, whether or not it is signed by the parties to the contract;

if the contract is made by an exchange of written communications;

if the contract made otherwise than in writing is recorded by one of the parties to the contract, or by a third party, with the authority of the parties to the contract; or

if the parties to the contract agree otherwise than in writing by reference to terms that are in writing.

Where a contract is not wholly made in writing, the contract is treated as being made in writing for the purpose of this section if, subject to the provisions of this Act, the matter in dispute between the parties to the contract is in writing. It was submitted that the High Court of Singapore had interpreted “construction contract made in writing” by referring to the express provision of s 4 of BCISPA. In our jurisdiction, CIPAA has never had such an express provision despite the fact that CIPAA was enacted in 2012 which is eight years after BCISPA. Had Parliament intended for the expansive approach like Singapore with regard to the definition “construction contract made in writing”, surely the CIPAA would have been drafted in the same manner as BCISPA. Thus, it was submitted that this Court should not take the same position as in UK and Singapore. [20] As to the ACC 03, it was argued that the circular issued by AICC is not legally binding since CIPAA did not provide any provision or authority for AIAC to issue such circular hence rendering the ACC 03 to be a mere guideline for the Adjudicator. It was further argued that even though the LHCJ has attempted to give a wide and liberal interpretation to the definition “construction contract made in writing” by referring to the ACC 03 and Zana Bina’s case, the LHCJ failed to appreciate that the ACC 03 does not have a legal binding effect but only a mere guideline. Therefore, the interpretation of “construction contract made in writing” should be given its clear and literal meaning since had the parliament intended the definition to be as extensive as the ACC 03, the parliament surely will legislate it so as there have been numerous provisions in other countries that have been provided as such. [21] The learned counsel for Intisari concluded that without a clear provision under CIPAA, it is insufficient for only a part of the agreement to be recorded in writing but instead the whole agreement must be put in writing before the matter can be heard and tried in adjudication proceedings. As such, purchase orders or invoices do not comply with s 2 of the CIPAA and cannot be relied on in the adjudication as a construction contract made in writing. [22] On the other hand, learned counsel for TUV referred to High Court Decision in Integral Acres Sdn Bhd v. BCEG International (M) Sdn Bhd & Other Cases [2021] 1 LNS 1620 on the object and purpose of CIPAA, and the dissenting judgement in the Federal Court decision in Anas Construction Sdn Bhd v JKP Sdn Bhd & Another Appeal [2024] 2 CLJ 665 which emphasized that CIPAA is a different regime from civil court litigation and the court should not take a pedantic technical approach without proper and due regard to the whole scheme, the intent of CIPAA, its operation, and its application in order to avoid any misdirection. It was submitted that in the construction industry, an over technical approach that all construction contracts must be in writing will result in cumbersome, technical and costly approach in adjudication proceedings which defeats the object of CIPAA, and the courts should not allow their hand to be tied down by a narrow and strict interpretation of s 2 of the CIPAA. [23] As regard to ACC 03, learned counsel for TUV submitted that AIAC in exercising its function under s 32(d) of the CIPAA, namely “any functions as may be required for the efficient conduct of adjudication under the Act”, issued ACC 03 to provide clear guidance and definition as to what the phrase “construction contract made in writing” means. By issuing ACC 03, AIAC is discharging its statutory function to ensure that parties to a construction contract are guided as to whether or not payment disputes arising under their contract can be referred to adjudication under CIPPA. It further eliminates the need for the adjudicator who may not be legally trained to grapple with the complexity of the issue whether a construction contract is in writing. Based on the High Court decision in Ancubic Construction Sdn Bhd v CEDY Third Contracting and Trading (M) Sdn Bhd and Another Case [2023] MLJU 1204 and Gazzriz Sdn Bhd v Hasrat Gemilang Sdn Bhd [2016] AMEJ 2209, learned counsel for TUV conceded that ACC 03 is administrative or advisory in nature and not binding. However, from the analysis of the local decided cases so far, there is no prohibition imposed by the courts upon the parties from referring to and be guided and assisted by ACC 03, and in fact, ACC 03 has been widely referred to and applied by the High Courts in many cases, with the aim to achieve the spirit of CIPAA to ensure continuous cashflow among the subcontractors who are relying on speed and informality of the adjudication proceedings. [24] On the interpretation and treatment of s 2 of the CIPAA together with Circular 03 in the Context of Statutory Adjudication, learned counsel for TUV referred to the Federal Court decision in Julian Chong Sook Keok & Anor v Lee Kim Noor & Anor [2024] MLJU 869 (Julian Chong Sook Keok’s case) and Tebin bin Mostapa (as administrator of the estate of Hj Mostapa bin Asan, deceased) v Hulba-Danyal bin Balia & Anor (as joint administrators of the estate of Balia bin Munir, deceased) [2020] 4 MLJ 721 and concluded that the definition of construction contract in writing by reading s 2 CIPAA along with ACC 03 must be applied holistically in the context of CIPAA and the adjudication proceeding, with the object and purpose of CIPAA in mind. Interpreting the Phrase “Construction Contract Made in Writing” [25] One of the most substantial or principal duty of the judiciary is the interpretation of the statutes or laws which are in force. The courts in delivering justice in a legal dispute, have to strictly decide within the boundaries set by the legal framework which may include a plethora of legislation. Interpretation of statutes is a process commonly adopted by the courts for determining the exact intention of the legislature based on the correct understanding of the law. The objective of the courts is not only merely to read the law but is also to apply it in a meaningful manner to suit from case to case. It is also used for ascertaining the actual connotation of any Act or document with the actual intention of the legislature. [26] There are plethora of cases under the common law that laid the principles on the interpretation of the statute. Among others, in In Crawford v Spooner (1846) 6 Moore PC 1 at p 9: We cannot aid the legislature's defective phrasing of an Act, we cannot add and mend, and, by construction, make up deficiencies which are left there. In Dovey and the Metropolitan Bank (of England and Wales), Limited v John Cory [1901] AC 477 at p 488, Lord Macnaghten said: … I do not think it desirable for any tribunal to do that which Parliament has abstained from doing - that is, to formulate precise rules for the guidance or embarrassment of businessmen in the conduct of business affairs. There never has been, and I think there never will be, much difficulty in dealing with any particular case on its own facts and circumstances; and speaking for myself, I rather doubt the wisdom of attempting to do more. Lord Denning in London Transport Executive v Betts [1959] AC 213 at p 247 said: The judges have no right to fill in gaps which they supposed to exist in an Act of Parliament, but must leave it to Parliament itself to do so; see Magor and St Mellons Rural District Council v Newport Corporation [1952] AC 189, [1951] All ER 839. No court is entitled to substitute its words of the Act (see Goodrich v Paisner [1957] AC 65 at p 88, [1956] 2 WLR 1053). … the business of the courts is to see what Parliament had said, instead of reading into an Act what ought to have been said (per Lord Coleridge CJ in R v Mansel Jones (1889) 23 QBD 29 at p 32. In Fothergill v Monarch Airlines [1980] 3 WLR 209 at p 221, Lord Diplock said: The constitutional function performed by courts of justice as interpreters of the written law laid down in Acts of Parliament is often described as ascertaining 'the intention of Parliament'; but what this metaphor, though convenient, omits to take into account is that the court, when acting in its interpretative role, as well as when it is engaged in reviewing the legality of administrative action, is doing so as mediator between the state in the exercise of its legislative power and the private citizen for whom the law made by Parliament constitutes a rule binding upon him and enforceable by the executive power of the state. Elementary justice or, to use the concept often cited by the European court, the need for legal certainty demands that the rules by which the citizen is to be bound should be ascertainable by him (or more realistically, by a competent lawyer advising him) by reference to identifiable sources that are publicly accessible. The source to which Parliament must have intended the citizen to refer is the language of the Act itself. These are the words which Parliament has itself approved as accurately expressing its intentions. If the meaning of those words is clear and unambiguous and does not lead to a result that is manifestly absurd or unreasonable, it would be a confidence trick by Parliament and destructive of all legal certainty if the private citizen could not rely upon that meaning but was required to search through all that had happened before and in the course of the legislative process in order to see whether there was anything to be found from which it could be inferred that Parliament's real intention had not been accurately expressed by the actual words that Parliament had adopted to communicate it to those affected by the legislation. In Duport Steels Ltd & Ors v Sirs & Ors [1986] 1 WLR 142 Lord Diplock said this at p 157: … the role of the judiciary is confined to ascertaining from the words that Parliament has approved as expressing its intention what that intention was, and to giving effect to it. Where the meaning of the statutory words is plain and unambiguous it is not for the judges to invent fancied ambiguities as an excuse for failing to give effect to its plain meaning because they themselves consider that the consequences of doing so would be inexpedient, or even unjust or immoral. In controversial matters such as are involved in industrial relations there is room for differences of opinion as to what is expedient, what is just and what is morally justifiable. Under our constitution, it is Parliament's opinion on these matters that is paramount. … It endangers continued public confidence in the political impartiality of the judiciary, which is essential to the continuance of the rule of law, if judges, under the guise of interpretation, provide their own preferred amendments to statutes which experience of their operation has shown to have had consequences that members of the court before whom the matter comes consider to be injurious to the public interest. [27] Back to our jurisdiction, our apex court adopted the same stand where the intention of the legislature is paramount consideration. See Supreme Court decision in Tan Weng Chiang v PP [1992] 2 MLJ 625 at p 630; Federal Court decision in Loh Kooi Choon v Government of Malaysia [1977] 2 MLJ 187 at p 188; Tan Kim Chuan & Anor v Chandu Nair [1991] 2 MLJ 42 at p 44; R Rama Chandran v The Industrial Court of Malaysia & Anor [1997] 1 MLJ 145 at pp 218 & 219; and Chor Phaik Har v Farlim Properties Sdn Bhd [1994] 3 MLJ 345 at p 352. [28] In the development of law on the interpretation of statute, ‘mischief rule’ is considered as a canon of interpretation. Although rarely used, much of the “mischief” can be discerned in the preamble of the statute. In Re Tan Boon Liat [1976] 2 MLJ 83, Abdoolcader J said that: “The preamble undoubtedly throws light on the intent and design of the enacting authority and indicates the scope and purpose of the legislation itself but it should not be read as a part of a particular section of that written law.” Be that as it may, s 15 of the Interpretation Acts 1948 and 1967 now provides that the preamble shall be construed and have effect as if it were a part of the Act. In addition to the usage of preambles, Gopal Sri Ram JCA (as his Lordship then was) in Citibank Bhd v Mohamad Khalid Farzalur Tahaman & Ors [2000] 3 CLJ 748 stated that the courts have in recent years extended the rule beyond the common law position at the time of the passing of an Act to include “the whole state of the law at the time an Act was passed to see the mischief it sought to cure.” Consequently, the mischief rule has been extended and is nowadays known as a purposive approach. [29] In Syed Mubarak Syed Ahmad v. Majlis Peguam Malaysia [2000] 3 CLJ 659 at pp 662 & 663, Gopal Sri Ram JCA said that: Now, it is true that a literal interpretation of s. 30(1)(c) would produce the meaning contended for by the appellant. But if you look at the decisions of our courts over the past few years, you will notice that we no longer resort to the literal rule when interpreting statutes. We will not use it when it will produce an absurd result. Neither will we use it if it does not advance the aim or object of a statute. Indeed, parliament has noticed the change in our attitude and given express effect to it in s. 17A of the Interpretation Acts 1948 & 1967. That section reads:

In the interpretation of a provision of an Act, a construction that would promote the purpose or object underlying the Act (whether that purpose or object is expressly stated in the Act or not) shall be preferred to a construction that would not promote that purpose or object. It is interesting to note that in England too the courts have preferred the purposive approach to other guides to construction. In Carter v. Bradbeer [1975] 3 All ER 158, Lord Diplock made some observations of general importance that merits recall. He said (at p. 161): A question of statutory construction is one in which the strict doctrine of precedent can only be of narrow application. The ratio decidendi of a judgment as to the meaning of particular words or combinations of words used in a particular statutory provision can have no more than a persuasive influence on a court which is called on to interpret the same word or combination of words appearing in some other statutory provision. It is not determinative of the meaning of that other provision. This is because the inherent flexibility of the English language may make it necessary for the interpreter to have recourse to a variety of aids or canons of construction, which are not merely lexicographical, in order to select from what may be a number of different meanings which the words as a matter of language are capable of bearing, the precise meaning in which the legislature intended them to be understood. Canons of construction may prove to be conflicting guide posts: they may point different ways. Fashions in parliamentary draftsman ship and the attitude of the legislature toward innovations in established law are not unchanging. Such changes as have taken place are properly reflected in the relative importance to be attached to the guidance given by competing canons of construction which point in different ways. If one looks back to the actual decisions of this House on questions of statutory construction over the past thirty years one cannot fail to be struck by the evidence of a trend away from the purely literal towards the purposive construction of statutory provisions. Changes in the judicial approach to questions of statutory construction are not the result of some specific decision of your Lordships’ House identifiable as a landmark in this field of law. They have been fostered by the influence, persuasive and pervasive, of the similarity of reasoning to be found in the judgments of individual judges even though they may differ as to the result of applying that reasoning to the particular words of the particular statute which is under consideration in the case. The persuasive reasoning which involves a reformulation of particular canons of construction or consideration of the circumstances which affect the relative weight to be attached to them, does not depend on whether the author of the judgment is among the majority or the minority as respects the actual decision in the case. [30] In AJS v JMH and another appeal [2022] 1 MLJ 778, the Federal Court laid down that the standard canon of interpretation has always been that the court should, in usual cases, begin with the literal rule and the purposive rule ought only to be relied on where there is ambiguity. Meanwhile, in a recent decision in the case Julian Chong Sook Keok’s case, the Federal Court took the following approach: [28] When interpreting statutes, there must be proper regard to s 17A of the Interpretation Acts 1948 and 1967 (Act 188). It should not be and is in fact no longer a case of applying the literal rule first and only resorting to the purposive rule of interpretation when all else fails with the introduction of this purposive rule of interpretation into legislation, rendering this rule no longer a common law canon of interpretation but one with statutory force. This is clear from the line of authorities emanating from this court - see Tebin bin Mostapa (as administrator of the estate of Hj Mostapa bin Asan, deceased) v Hulba-Danyal bin Balia & Anor (as joint administrators of the estate of Balia bin Munir, deceased) [2020] 4 MLJ 721; [2020] 7 CLJ 561; Bursa Malaysia Securities Bhd v Mohd Afrizan bin Husain [2022] 3 MLJ 450; [2022] 4 CLJ 657; AJS v JMH and another appeal [2022] 1 MLJ 778; [2022] 1 CLJ 331; Tan Kah Fatt & Anor v Tan Ying [2023] 2 MLJ 583; [2023] 2 MLRA 525; Datuk Bandar Kuala Lumpur v Perbadanan Pengurusan Trellises & Ors and other appeals [2023] 3 MLJ 829; [2023] 5 CLJ 167; [2023] 4 MLRA 114. [29] These authorities remind us of a contextual construction within the purview or in accordance with the intent or object of the legislation, that is, the purposive rule of construction as statutorily enunciated in s 17A. The reading or meaning that the courts give to the provisions must promote and not stifle the object or intent of the legislation concerned. In any event, it would be difficult to envisage an interpretation which runs afoul of the literal rule of interpretation just to accord with the purposive rule as legislation is written in accord and to facilitate the intent and purpose of the legislation, and not otherwise. [emphasis added] Our Finding on the Interpretation [31] Based on the authorities above, we remind ourselves of the fundamental principle of statutory interpretation, that is, the words of a statute are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme and the object of the statute, and the intention of the legislature. There can be mischief which is required to be cured by the statute, and this can be done by applying various norms and theories of interpretation which might go against the literal meaning at times. [32] The purpose behind interpretation is to clarify the meaning of the words used in the statutes which might not be that clear. This is because the nature of drafting of the statute by the legislature does not always speak clearly and may be ambiguous such that it can be subject to different arguments of interpretation. Even if statutory language appears to be straightforward, questions of the meaning of the words may arise. The statutory interpretation involves making a choice between uncertainties that allow the judges to employ a variety of methods to find the message of the legislature and decide in specific cases what the law means. [33] With those trite principles of law in mind, we proceeded to deal with the issue at hand, that is, what is the true meaning of the phrase “construction contract made in writing” under s 2 of the CIPAA. [34] First of all, we noted that there are numerous High Court decisions on this issue. As observed by the LHCJ and acknowledged by the learned counsel for the parties in their submission before us, almost all of the decided cases leaned towards an expansive interpretation of the phrase “construction contract made in writing”. To name a few, in Zana Bina’s case Lee Swee Seng J (now JCA) held that an expansive and generous interpretation is to be given to the meaning of the phrase “contract made in writing” in line with the purpose of CIPAA which is captured to some extent by its long title, in Innovatif Engineering (M) v Nomad Engineering Sdn Bhd [2017] AMR 722 (Innovatif Engineering’s case), Ravinthran Paramaguru J (now JCA) adopted the view that the phrase “Construction contract made in writing” ought to be given liberal meaning and should not be restricted only to a formal contract, in Poly Ritz Venture’s case, Lim Chong Fong J (now JCA) referred to Inovatif Engineeering’s case and opined that a Purchase Order, regardless of the fact that it could refer to another document or whether it is dated prematurely pending execution of another contract, is a written document comes within the meaning of the phrase “contract in writing”, and in Ong Teik Beng’s case, Amarjeet Singh JC (now HCJ) is in agreement with the liberal approach rather than the stringent approach, and that purchase orders and quotations can constitute a “contract in writing”. See also Lee Swee Seng J decisions in Terminal Perintis Sdn Bhd v Tan Ngee Hong Construction Sdn Bhd and another case [2017] MLJU 242 and Euroland & Development Sdn Bhd v Tack Yap Construction (M) Sdn Bhd [2018] MLJU 861. [35] Besides that, we also refer to our own decision in Bina MYK Sdn Bhd v VVO Construction Sdn Bhd [2017] MLJU 2080 (Bina MYK’s case) where it was agreed that the phrase “construction contract made in writing” should be construed widely and to include written correspondences between the parties in relation to a construction contract. From the said decision, it is clear that this court endorsed or is in agreement with the High Courts’ decisions in interpreting the phrase “construction contract made in writing”. The question is, whether there is any reason for us to depart from the said decision? [36] As earlier mentioned, CIPAA defined the phrase “construction contract” to mean a construction work contract or construction consultancy contract. Meanwhile, the phrase “construction work” is also properly defined as earlier stated in paragraph [11] above. What is left to be determined is the phrase “made in writing”. [37] To begin with, we look at the meaning of the word “make”. According to Oxford Languages dictionary, the meaning of the word “make” is as follows:

form (something) by putting parts together or combining substances; create,

cause (something) to exist or come about; bring about. In a simple term, we can understand that the word 'make' means to make or assemble something or it can also mean to create. [38] Next, we have to look at the phrase “in writing”. Section 3 of the Interpretation Acts 1948 and 1967 defined the word “writing” or “written” as follows: “writing” or “written” includes typewriting, printing, lithography, photography, electronic storage or transmission or any other method of recording information or fixing information in a form capable of being preserved. From the definition, it is comprehensible that the phrase “in writing” refer to the mode of recording of information or fixing information in a form capable of being preserved. We have to accept that the meaning of “in writing” can differ based on how, when or where it is used. [39] We are of the view that by combining the meaning of the words that form the phrase “construction contract made in writing” it simply means that, a construction contract created either in typewriting (or even hand written), printing, lithography, photography, electronic storage or transmission or any other method of recording information or fixing information in a form capable of being preserved. As it involved a construction contract which is an agreement between two parties that creates an obligation to perform the construction work, it has to be a communicated to the other party made by hand or electronically, resulting in a permanent record or in a form that can be seen and provides proof of receipt and formally communicated through mediums either physically sent or by other means such as mail, email or electronic procurement systems where verification of the receipt is provided. [40] From the above meaning of the phrase “construction contract made in writing”, can we say that it is only confined to a formal written contract? In answering the question, we have to remind ourself of the recent Federal Court decision in Julian Chong Sook Keok’s case which clearly pronounced that the reading or meaning that the courts give to the provisions of the law must promote and not stifle the object or intent of the legislation concerned, and in our case, the CIPAA. As to the raison d’être of CIPAA the Federal Court in Martego Sdn Bhd v Arkitek Meor & Chew Sdn Bhd and another appeal [2020] 6 MLJ 224 (Martego’s case) made the following observation and findings: [46] At the risk of repetition, we say that the raison d’être of the CIPAA 2012 regime lie in facilitating and providing remedies for the recovery of payment in the construction industry. the CIPAA 2012, brings three major changes to the construction industry in Malaysia:

a ‘right to progress payment’, unless otherwise agreed to by the parties;

a speedy resolution through adjudication for construction disputes relating to payment for works carried out under the construction contract; and

a determination which has temporary finality. A party, which executes construction work and which is unpaid in whole or in part, under the construction contract may serve a payment claim on non-paying party to the construction contract. [47] From the Preamble, it is clear that the CIPAA 2012 is ‘An Act to facilitate regular and timely payment, to provide a mechanism for speedy dispute resolution through adjudication, to provide remedies for the recovery of payment in the construction industry and to provide for connected and incidental matters. [48] The Explanatory Statement to the CIPAA Bill 2011 states as follows: … EXPLANATORY STATEMENT The Construction Industry Payment Adjudication Act 2011 (‘the proposed Act’) seeks to facilitate regular and timely payment in respect of construction contracts and to provide for speedy dispute resolution through adjudication. The purpose of the proposed Act is to alleviate payment problems that presently prevails pervasively and which stifles cash flow in the construction industry. The proposed Act further provides default payment terms in the absence of provisions to that effect and prohibits conditional payment terms that inhibit cash flow. The act also seeks to provide remedies for the recovery of payment upon the conclusion of adjudication. (Emphasis added.) (See: Explanatory Statement of CIPAA Bill 2011) [49] The speech by the Deputy Minister during the Second Reading of the Bill to introduce the CIPAA 2012 in Dewan Rakyat on 2 April 2012 revealed that the raison d’être of the CIPAA 2012 is to resolve the payment problem and facilitate regular and timely payment, provide for speedy dispute resolution through adjudication:

Tuan Yang di-Pertua, industri pembinaan mempunyai potensi yang tinggi untuk terus berkembang. Antara cabaran yang perlu ditangani bagi mencapai aspirasi ini ialah isu pembayaran yang melibatkan pihak-pihak dalam rantaian pembinaan termasuk kontraktor utama, subkontraktor, sub-subkontraktor, para perunding dan pembekal-pembekal bahan-bahan. Sekiranya masalah pembayaran ini tidak ditangani dengan berkesan, ia boleh menjejaskan aliran tunai dan seterusnya menyebabkan kelewatan menyiapkan projek, kemerosotan kualiti kerja, peningkatan kos dan dalam kes-kes kritikal, kontrak akan ditamatkan … Pendek kata, tempoh masa yang lama dan kos prosiding yang tinggi adalah merupakan antara faktor utama yang mengekang pihak-pihak terlibat untuk merujuk pertikaian kepada mahkamah atau timbangtara. Justeru itu, kerajaan amat prihatian dengan isu pembayaran dalam industri pembinaan dan telah menggubal Rang Undang-undang Pembayaran dan Adjudikasi Industri Pembinaan 2011 bagi membantu pihak-pihak yang terlibat untuk menyelesaikan pertikaian pembayaran dengan mudah, murah dan cepat. Rang undang-undang ini diwujudkan selepas diadakan beberapa siri perbincangan dan dialog bersama agensi kerajaan, penggiat industri, pihak-pihak yang berkepentingan atau stake holders dan badan profesional yang berkaitan. … Pertikaian yang boleh dirujuk kepada adjudikasi adalah berkaitan dengan pembayaran bagi kerja siap atau perkhidmatan yang dibekalkan, yang sepatutnya dibayar di bawah terma-terma nyata kontrak dalam kontrak pembinaan. Ia termasuklah bayaran interim mengikut kemajuan kerja. Prosiding adjudikasi boleh dimulakan sebaik sahaja timbul pertikaian pembayaran sama ada semasa projek pembinaan sedang dijalankan atau selepas projek disiapkan … (Emphasis added.) (See the Deputy Minister’s Policy Speech in Dewan Rakyat and the summary of the speech by Mary Lim J (as she then was) in Uda Holdings v Bisraya Construction Sdn Bhd & Anor and another case [2015] 5 CLJ 527). [50] It can be clearly discerned from the Deputy Minister’s speech that the CIPAA 2012 is enacted by the Parliament to provide an easily accessible, faster and cheaper resolution forum ie the adjudication. The following characteristics of the CIPAA 2012 is in tandem with the said intent:

it involves tight time constraints. The deadline for each step is fixed and the timeline for each stage is relatively short to ensure that the disputes are resolved rapidly and quickly;

it involves a significant degree of informality;

it gives adjudicator’s determination a degree of conclusiveness;

it involves rights which are interim only. The rights and liabilities under the Act do not affect other entitlement a person may have under a construction contract or any other remedy a person may have for recovering such entitlement;

the standard adjudicator’s fee is introduced and the charges are cheaper than arbitration. Low-cost decision making is a core object of the scheme in the Act; and

the grounds on which the court can rely upon to set aside the adjudicator’s determination are limited. The court primary duty must be to uphold the adjudicator’s determination and not to revisit the factual or legal matters canvassed before the adjudicator. [51] It is clear, therefore, that the issue of cash flow is the primary objective of the CIPAA 2012 as it is deemed to be the life-blood of the construction industry. This position has been recognised by our courts. … [55] We have also perused and scrutinised the Preamble, the Explanatory Notes to the Bill and the speech of the Deputy Minister when tabling the CIPAA Bill. We have no hesitation in agreeing and endorsing the interpretation expounded by the High Court and the majority. It is clear from the materials mentioned above that the primary objective of the CIPAA 2012 is to alleviate cash flow issues by providing an effective and economical mechanism. The courts are consistent on the finding that the CIPAA 2012 is intended to alleviate cash flow issue. Therefore, the mischief that the CIPAA 2012 intends to cure is none other the cash flow in the construction industry through effective and economical mechanism; for deciding otherwise would run counter to the legislative purpose of creating an expedited adjudication process. [41] Based on the ratio decidendi in Julian Chong Sook Keok’s case and raison d’être of CIPAA as observed in Martego’s case, we find that there is no reason for us to depart from our decision in Bina MYK’s case that “construction contract made in writing” should be construed widely and to include written correspondences between the parties in relation to a construction contract. We also agree with the High Courts’ decisions as mentioned in paragraph [34] above which allows for an expansive, generous and liberal interpretation to be given to the meaning of the phrase “construction contract made in writing”. To conclude, a claimant before the Adjudicator should be allowed to prove their claim based on “construction contract made in writing” which may include any written correspondences such as letter of award, or any other written documents that can prove the existence of a construction contract such as purchase orders and invoices. ACC 03 [42] As regard to the status of the ACC 03, we refer to the High Court decision in Zana Bina’s case where the learned judge made the following observation and finding as regard to the ACC 03: [55] This Court finds the following Guideline issued by KLRCA helpful with respect to whether there is a construction contract made in writing: “Circular CIPAA 03 KLRCA’s Guideline on the meaning of “Construction Contract Made In Writing” 28 Apr 2014 The Construction Industry Payment and Adjudication Act 2012 (“CIPAA”) came into operation on 15 April 2014. Section 2 of the Act provides that statutory adjudication regime shall apply to construction contracts made in writing. However, no definition or further elaboration is provided in the Act as to what ‘construction contract made in writing’ means. Given the fact that there are various means by which a construction contract may be made, a clear guideline on the meaning of a ‘construction contract made in writing’ will ensure that parties to a construction contract are guided as to whether or not payment disputes arising under their contract can be referred to adjudication under the Act. Further, it will eliminate the need for the adjudicator who may not be legally trained to grapple with the complexity of the issue of whether a construction contract is in writing. As such the KLRCA is of the view that it would be expedient and/or necessary to provide clear guidance and definition as to what the phrase ‘construction contract made in writing’ mean, for giving full effect and the better carrying out of the provisions of the Act. The KLRCA adopts the following definition of a ‘construction contract in writing’: ‘Construction Contract In Writing’

There is a contract in writing: -

if the contract is made in writing (whether or not it is signed by the parties);

if the contract is made by exchange of communications in writing; or

if the contract is evidenced in writing.

Where parties agree otherwise than in writing by reference to terms which are in writing, they make a contract in writing.

A contract is evidenced in writing if a contract made otherwise than in writing is recorded by one of the parties, or by a third party, with the authority of the parties to the contract. The KLRCA Guideline on Construction Contract in Writing shall apply to all adjudication cases commenced under CIPAA. A copy of the KLRCA Guideline can be found at: www.klrca.org.my Dated 28th day of April, 2014. Professor Datuk Sundra Rajoo Director of KLRCA [56] Clearly an expansive and generous interpretation is to be given to the meaning of a “contract made in writing” in line with the purpose of CIPAA which is captured to some extent by its long title that reads: “An Act to facilitate regular and timely payment, to provide a mechanism for speedy dispute resolution through adjudication, to provide remedies for the recovery of payment in the construction industry and to provide for connected and incidental matters.” [57] It must be borne in mind that generally it is the Employer that would rely on the fact that there is no construction contract in writing to defeat or delay a Payment Claim for work done. The Claimant/Contractor on the other hand has a limited time frame to complete the works and it cannot be that if he does the work, he is damned if there is no concluded contract in that further documents are to be signed! Conversely, if he does not commence work, as in this case when completion date is from the date of site possession which had already been given, he runs the risk of late completion and be damned with LAD claims! [58] When the Respondent here had every opportunity to stop the Claimant from starting the balance Works until those further Contract Documents are signed, it must mean that the Respondent had waived that requirement or is otherwise estopped from contending otherwise by their very conduct. [43] We agree with the learned judge’s finding in Zana Bina’s case that ACC 03 remains as a useful guideline to determine whether there is a “construction contract made in writing” as required under s 2 of the CIPAA. On the same point, we also agree with the High Court decision in In MRCB Builders Sdn Bhd v SMM Resources Sdn Bhd and another case [2021] MLJU 1795 that the circulars issued by AIAC are administrative and/or advisory in nature as those circulars are not subsidiary legislation. See also another High Court decision in Ancubic Construction Sdn Bhd v Cedy Third Contracting and Trading (M) Sdn Bhd and another case [2023] MLJU 1204. [44] As to the submission by learned counsel for Intisari that the LHCJ has failed to appreciate that the ACC 03 does not have legal binding effect but only a mere guideline, we cannot find anywhere in the LHCJ’s GOJ that she made a finding that ACC 03 is legally binding on the parties or the LA. Therefore, we find that there is no merit in the submission and the issue raised before us on legality of ACC 03 is actually a non-starter. The Second Element - Construction Contract Must Relate to Construction Work [45] Having decided that a “construction contract made in writing” may include the contemporaneous documents such as purchase orders and/or invoices issued and/or the conduct of the parties such as the part payment made under the contract, we are of the considered view that those contemporaneous documents and/or the conduct of the parties relied on should be conscientiously scrutinised and strictly interpreted to ensure that it conform or relate to a “construction work”. [46] Under CIPAA, a claimant before the Adjudicator bears the burden to proof that his claim is under a construction contract related to “construction work” which is exhaustively defined in s 4 of the CIPAA. At risk of repeating but for better reference, we once again reproduce the definition of “construction work” under s 4 of the CIPAA as follows: "construction work" means the construction, extension, installation, repair, maintenance, renewal, removal, renovation, alteration, dismantling, or demolition of-

any building, erection, edifice, structure, wall, fence or chimney, whether constructed wholly or partly above or below ground level;

any road, harbour works, railway, cableway, canal or aerodrome;

any drainage, irrigation or river control work;

any electrical, mechanical, water, gas, oil, petrochemical or telecommunication work; or

any bridge, viaduct, dam, reservoir, earthworks, pipeline, sewer, aqueduct, culvert, drive, shaft, tunnel or reclamation work, and includes-

(A) any work which forms an integral part of, or are preparatory to or temporary for the works described in paragraphs (a) to (e), including site clearance, soil investigation and improvement, earth-moving, excavation, laying of foundation, site restoration and landscaping; and

(B) procurement of construction materials, equipment or workers, as necessarily required for any works described in paragraphs (a) to

(e); [47] From the said definition, it is obvious that a claimant must prove that the work done under the Payment Claim must be related to either construction, extension, installation, repair, maintenance, renewal, removal, renovation, alteration, dismantling, or demolition work of any building or other forms of building listed in paragraphs (a) to (e) of the definition and also include any work related to the matters mentioned in paragraphs (A) and (B) of the definition. TUV’s Payment Claim and Adjudication Claim [48] TUV filed its Payment Claim dated 4.10.2021 via Form 1 under