Intisari Mulia Engineering Sdn Bhd v Tuv Sud (Malaysia) Sdn Bhd (WA-24C-146-07/2022)

the application by TUV SUD (Malaysia) Sdn Bhd (‘TUV’)

the application by Intisari Mulia Engineering Sdn Bhd (‘Intisari’)

TUV’s Affidavit In Support (‘AIS’) affirmed by its Sales Executive & Admin, Khaidil Azrol Bin Hazes @ Aziz on 23.6.2022 (encl. 2);

Intisari’s Affidavit In Reply (‘AIR’) affirmed by its Director, Ronizain Bin Ismail on 21.7.2022 (encl. 4); and

TUV’s AIR affirmed by the same deponent on 4.8.2022 (encl. 5).

Intisari’s AIS affirmed by Ronizain Bin Ismail on 21.7.2022 (encl. 2);

TUV’s AIR affirmed by Khaidil Azrol Bin Hazes @ Aziz on 11.8.2022 (encl. 6); and S/N fPXweJekGkiiSwO23auj6A

Intisari’s AIR affirmed by the same deponent on 25.8.2022 (encl. 7). Background facts [5] TUV is a private limited company incorporated in Malaysia with a business address at 6th Floor, Wisma Akademi Etiqa, No. 23, Jalan Melaka, 50100 Kuala Lumpur. [6] Intisari is also a private limited company incorporated in Malaysia with its registered address at 38B, Jalan Jernai, Medan Idaman, Jalan Gombak, 53100 Kuala Lumpur and business address at No. 25, Jalan Putra Mahkota 7/8D, Putra Point Business Centre, Putra Heights Subang Jaya, Selangor. [7] Aker Solutions Malaysia Sdn Bhd (‘Main Contractor 1’) had appointed TUV for the “Supply of manpower, equipment & consumables for NDT Inspection Services for Aker Solutions (M) Sdn Bhd at PFKZ Port S/N fPXweJekGkiiSwO23auj6A Klang, Selangor” (‘Project 1’). TUV then appointed Intisari as its sub-contractor for the works in respect of Project 1. [8] Apart from that, Air Products Malaysia Sdn Bhd (‘Main Contractor 2’) had also appointed TUV for the “Supply of manpower & equipment UTTG & MPI for Air Products Malaysia Sdn Bhd” (‘Project 2). Similarly, TUV subsequently appointed Intisari as its sub-contractor for the works for Project 2. [9] The contracts between TUV and Intisari were claimed to be founded on Purchase Orders dated 22.5.2018 for Project 1 and Purchase Orders dated 21.7.2020 and 7.3.2020 for Project 2, respectively. [10] According to TUV, the parties had agreed that Intisari would send invoices to Main Contractor 1 and Main Contractor 2 for the works done by TUV. Upon receipt of the payments for work done, Intisari would remit 95% out of the same to TUV and retain 5% as its commission. [11] TUV claimed that it has completed the works for Main Contractor 2 whilst for Main Contractor 1, works commenced in September 2018 and was completed on a stage-by-stage basis, both in accordance with S/N fPXweJekGkiiSwO23auj6A the instructions of Intisari and the Main Contractors, respectively, from time to time. [12] TUV sent several invoices to Intisari for payment of 95% of the total value of works done, however, it did not receive any payment from Intisari. [13] This led TUV to issue a Payment Claim on 4.10.2021 claiming the total sum outstanding as at that date i.e. RM1,703,148.97. The Payment Claim was served on Intisari at its registered address on 7.10.2021 (see para 2 in the Notice of Adjudication and para 15 in the Adjudication Claim) but it chose not to submit a Payment Response. [14] On 1.11.2021, TUV issued a Notice of Adjudication and this was followed with several correspondences between TUV’s solicitors and the Asian International Arbitration Centre (‘AIAC’) as to the existence of a “construction contact made in writing relating to construction work” within the meaning of s 2 CIPAA. S/N fPXweJekGkiiSwO23auj6A [15] For present purposes, suffice to say that, on 17.2.2022, Mr. Sivabalan Sankaran accepted the appointment as the Adjudicator. [16] TUV then issued the Adjudication Claim on 7.3.2022. Intisari did not submit an Adjudication Response as it took the position that, as no agreement in writing was concluded, s 2 of the CIPAA is not fulfilled. There is similarly extensive correspondences between the solicitors who represented the parties in the adjudication proceedings and the Adjudicator as to Initisari’s objection for the dispute to be heard via adjudication under the AIAC (refer to the letters and e-mails as exhibited in the parties’ affidavits). [17] On 10.6.2022, the Adjudicator released his decision dated 27.5.2022 to the parties whereby he determined that: “59. … A. IMESB, the Respondent shall pay TUVSSB, the Claimant the sum of RM1,703,148.97 on or before 10 June 2022; S/N fPXweJekGkiiSwO23auj6A B. IMESB, the Respondent shall bear the costs of TUVSSB, the Claimant in the sum of RM10,000.00 which shall be paid on or before 10 June 2022. C. In default of payment of A above, IMESB shall pay simple interest of 5% per annum from 11 June 2022 until full settlement on the sum of RM1,703,148.97. D. IMESB, the Respondent shall bear the full costs of this adjudication. These costs shall include RM27,257.80 being the Adjudicators fee and RM5,746.85 being AIAC's administrative fees. …”. S/N fPXweJekGkiiSwO23auj6A I. O.S. No. 146: The Setting Aside Application [18] Intisari applied to set aside the AD by relying on the following limbs of s 15 CIPAA: “Improperly Procured Adjudication Decision

An aggrieved party may apply to the High Court to set aside an adjudication decision on one or more of the following grounds:

…

there has been a denial of natural justice;

the adjudicator has not acted independently or impartially; or

the adjudicator has acted in excess of his jurisdiction.”. S/N fPXweJekGkiiSwO23auj6A [19] On the hearing date, Intisari’s counsel had informed the Court that Intisari will not pursue the ground of challenge pursuant to limb (c) of s 15 CIPAA. 1st Ground: Whether there is a written contract between TUV and Intisari as required under sub-s 5(1) CIPAA? - The Parties’ Submissions [20] Intisari asserted, on the case authorities of View Esteem Sdn Bhd v Bina Puri Holdings Bhd [2018] 2 MLJ 22 and Punj Lloyd Sdn Bhd v Ramo Industries Sdn Bhd & Anor and another case [2019] 11 MLJ 574, that the Adjudicator did not have jurisdiction to determine the dispute because there is no written construction contract between TUV and Intisari as required under s 5 CIPAA, read together with s 2 CIPAA. Intisari argued that TUV never produced a written contract between the parties as an exhibit. S/N fPXweJekGkiiSwO23auj6A [21] Furthermore, vide letter dated 28.12.2021, the AIAC itself had raised the issue as to whether the requirement under s 2 of the CIPAA is fulfilled. [22] However, TUV refuted this argument by alleging that Intisari remained silent despite AIAC’s requests on 16.11.2021 and 28.12.2021 for confirmation as to the existence of a written agreement and Intisari only raised the jurisdictional objection to AIAC almost four months later on 2.3.2022. By this time, the Adjudicator had already been appointed. It is TUV’s submission that Intisari did not properly raise the jurisdictional challenge by filing a payment response or an adjudication response. - The Findings of the Court [23] The CIPAA 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.” (see s 2 CIPAA). S/N fPXweJekGkiiSwO23auj6A [24] Sub-s 5(1) of the CIPAA provides that “An unpaid party may serve a payment claim on a non-paying party for payment pursuant to a construction contract.”. [25] “Construction contract” is defined under s 4 CIPAA as “a construction work contract or construction consultancy contract;”. [26] “Construction work contract” means “a contract to carry out construction work”. [27] “Construction work” in turn 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; S/N fPXweJekGkiiSwO23auj6A

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 S/N fPXweJekGkiiSwO23auj6A

(B) procurement of construction materials, equipment or workers, as necessarily required for any works described in paragraphs (a) to (e);”. [28] The word “payment” is defined under s 4 CIPAA as “payment for work done or services rendered under the express terms of a construction contract;”. [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. [30] This led to the AIAC sending the letter dated 28.12.2021 to draw the attention of TUV’s solicitor to s 2 CIPAA and to AIAC CIPAA Circular 1B which provides that the CIPAA applies to every construction contract made in writing within the meaning of s 4, and under which a payment claim is made. AIAC requested the parties to revert with their confirmation that there is no contract in writing between the parties. [31] TUV’s solicitor replied to AIAC on the same day clarifying that – S/N fPXweJekGkiiSwO23auj6A “… it is not compulsory for a contract to be in writing for the matter to be put under the purview of CIPAA. It would be suffice so long there are written evidence and/ or documents proof for works done by the Claimant for the Respondent. For this purpose, we refer tor to Circular CIPAA 03 KLRCA's Guideline on the meaning of "Construction Contract Made In Writing" wherein the following definition of a 'construction contract in writing' has been adopted:- … Hence, it is the Claimant's position that there is a contract in writing as all the transactions of this matter is evinced in writing including but not limited to Invoices, Client Contract List for Equipment/Consumables, Daily Client Radiographic Film Approval Record, Weekly Timesheet, Quotations and payments made by Respondent to the Claimant for works done, which was attached together with our Payment Claim dated 4/10/2021.”. S/N fPXweJekGkiiSwO23auj6A There was no response from Intisari’s solicitor. [32] On 7.1.2022, AIAC again wrote to TUV’s solicitor to say, among others, as follows: “We stand by our AIAC Circular 03 dated 28th April 2014, but wish to highlight that the documents furnished to us by the Claimant towards establishing the existence of an agreement between the Parties are in fact, documents evincing the arrangement between the Respondent and third parties not named in the adjudication proceedings. Further, the invoices furnished to us issued by the Claimant to the Respondent, arises from an arrangement or a relationship that has not been documented in writing, as required under CIPAA. Moreover, by the Claimant’s own letter dated 7th December 2021, it has been indicated that “There is no main contract or supplemental agreement for all the works subcontracted by the Respondent to the Claimant. All works S/N fPXweJekGkiiSwO23auj6A are performed by the Claimant in accordance with the instructions given by the Respondent from time to time. As such, there is no fixed value of works”. It is for the above-mentioned reasons that we are conscious of the exclusions in CIPAA 2012 in proceeding with the registration of these adjudication proceedings. Notwithstanding this, and having already highlighted our concerns in proceeding with the above matter, if the Claimant is minded to proceed with the registration, we are content to leave this matter to the determination of the adjudicator when so appointed. For the avoidance of doubt, the Claimant is put on notice that its proceeding in this matter, including, vide any Request to the Director of the AIAC to appoint an adjudicator (Form 5) and continue thereafter, is strictly and solely at their own risk.”. [33] TUV’s solicitor replied to AlAC on 11.1.2022 to confirm TUV’s intention to proceed with registration of the claim and to leave to the Adjudicator, when so appointed, to determine on the issue of whether the claim falls S/N fPXweJekGkiiSwO23auj6A within the ambit of the CIPAA and/ or whether the Adjudicator has power to determine the claim. TUV’s solicitor additionally informed that it will present relevant documents to the Arbitrator to show the parties’ arrangement in writing. [34] Intisari finally broke the silence when it sent the letter dated 1.3.2022 to AIAC, referring to AIAC’s letter dated 7.1.2022 and AIAC CIPAA Circular 1A dated 11.11.2014 which – “… highlighted and emphasis strongly that the CIPAA 2012 applies to every construction contract made in writing within the meaning of Section 4 of the CIPAA. This matter is said to be binding upon AIAC as the issue has been well answered in the High Court of UDA HOLDINGS BHD V BISRAYA CONSTRUCTION SDN BHD and CAPITAL AVENUE DEVELOPMENT SDN BHD V BAUFR (M) SDN BHD. Hence, the following to the abovesaid Circular 1A abovesaid, we have been instructed by our client as follow: S/N fPXweJekGkiiSwO23auj6A a) That the Parties have not signed any formal and/or written agreement and/or contract with regard to the appointment of the Claimant as Subcontractor for the works at Aker Solutions; b) Following to the non-existence of such written agreement and/or contract between the Parties on the sub-contracting, the above matter is not suitable to be heard before the Adjudicator. c) As such, our client strictfully object that the abovesaid dispute to be heard via Adjudication under the AIAC. We are instructed by our client that our client reserve their rights under the law. …”. [35] Intisari’s current ground of challenge as properly understood involves the question as to whether the Adjudicator is clothed with jurisdiction S/N fPXweJekGkiiSwO23auj6A to enable him to adjudicate or to make a decision in respect of the dispute which was referred to him. Based on the types of jurisdictions as elucidated by the learned Judge in Terminal Perintis Sdn Bhd v Tan Ngee Hong Construction Sdn Bhd and another case [2017] MLJU 242 [see too, paras 16 and 17 in the judgment of View Esteem (supra)], the category of jurisdiction which comes into play is core jurisdiction. [36] It is well established that matters of jurisdiction, whether the total lack or excess of an adjudicator’s jurisdiction, may be raised before or after an adjudication decision has been made. It is immaterial that the complaint of lack or excess of jurisdiction was not raised during the adjudication proceeding. Even if the adjudicator makes a finding on his own jurisdiction, his decision is open to scrutiny by the court. This is because the adjudicator’s decision on his own jurisdiction is not binding and nor is it conclusive in any way (see Construction Adjudication In Malaysia, Third Edition, Sweet & Maxwell, 2022 by Lam Wai Loon and Ivan YF Loo at p 431 and the cases cited in the footnotes including Giatreka Sdn Bhd v SGW Engineering Construction Sdn Bhd (and Another Originating Summons) [2020] 1 AMR 193, Dekinjaya Builder Sdn Bhd v Chong Lek Engineering Works Sdn Bhd and another case S/N fPXweJekGkiiSwO23auj6A [2020] MLJU 2455, SS Builders Sdn Bhd v Darma Mekar Sdn Bhd [2020] MLJU 1147, EA Technique (M) Sdn Bhd v Malaysia Marine and Heavy Engineering Sdn Bhd and another case [2020] 11 MLJ 353 and Ahmad Zaki Sdn Bhd v Swaja Fascade Sdn Bhd & Anor [2019] MLJU 1224). [37] In this case, the Adjudicator had traced the events from the time that Intisari’s counsel wrote to the Adjudicator on 21.3.2022 (see paras 32 to 41 of the AD) stating, among others, the following: “… We refer also to the Adjudication Claim (Form 7) that have been received by our good office on 7th March 2022. Accordingly, as purported in Section 10 of CIPAA Act whereby the Respondent shall file an Adjudication Response (Form 8) responding to the said Adjudication Claim (Form 8) within 10 working days from the date of receipt of Adjudication Claim (Form 7). It is understood that thereof, the filing for S/N fPXweJekGkiiSwO23auj6A Adjudication Response (Form 8) would be on 21st March 2022. However, we have on 2nd March, 2022 sent an email dated 2nd March 2022 enclosing our letter dated 1st March, 2022 raising our client's objection regarding this Adjudication proceeding which until to date we have not received reply from your good office. Therefore, we humbly request that the filing of the said Adjudication Response be filed after we have received your good self's respond and/ or reply regarding our abovesaid request. …”. [38] The Adjudicator had called for a case management by Zoom hearing on 15.4.2022 whereby in the AD it was explained that – S/N fPXweJekGkiiSwO23auj6A “42. At the hearing, I canvassed Circular 3 of AIAC (then KLRCA, section 27(3) of CIPAA and the decision of Ravindran Paramaguru J (as he then was) in Innovatif Engineering (M) v Nomad Engineering Sdn Bhd 2017 AMR 722, where his Lordship adopted the view that “Construction contract in writing” ought to be given liberal meaning and should not be restricted to a formal contract.

Alarmingly, counsel appearing for IMESB admitted that he had never come across Circular 3 or the judicial treatment of Circular 3 and most disconcerting was counsel's admission that he had not come across section 27(3) of CIPAA.

I intimated that I would make my reasons known as to why I felt IMESB's position was untenable.

In Terminal Perintis Sdn Bhd v Tan Ngee Hong Construction Sdn Bhd and Anor case 2017 MLJU 242, S/N fPXweJekGkiiSwO23auj6A jurisdiction, according to the learned judge could be either core, competency or contingent. As I understand it, the issue which IMESB believes ousts my jurisdiction is core competence namely whether the lack of a written contract in writing puts this adjudication beyond the ambit of section 2 of CIPAA. Regretfully, in light of Circular 3 and the evidence provided by TUVSSB in its schedules accompanying the Adjudication Claim, there is ample proof of a contract.

Generally, an adjudicator does not have the power to make a finding on his own jurisdiction. (SQA Builders Sdn Bhd v Luxor Holdings 2017 AME 656), however as the objection raised here is misplaced, I decided to proceed with the adjudication.

IMESB had options to, raise a proper jurisdictional challenge whilst at the same time bringing itself within the rights accorded to file an Adjudication Reply. Unfortunately, by failing to do so, I do not have the S/N fPXweJekGkiiSwO23auj6A power to consider its position. As section 27(1) points out, an adjudicator is. “limited to the matter referred to adjudication by the parties pursuant to section 5 and 6”

I pause to state that even if it were properly framed and raised within IMESB's Adjudication Reply, it would have been a futile position to take and utterly lacking in merit.”. [39] The Adjudicator went on to consider the issue as to whether there is a construction contract in writing and opined in para 50 of the AD that “in light of the provisions of Circular 3 and the decision in 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.”. [40] The courts have thus far leaned towards an expansive interpretation of the words “construction contract made in writing” in s 2 of the CIPAA. S/N fPXweJekGkiiSwO23auj6A In Zana Bina Sdn Bhd v Cosmic Master Development Sdn Bhd and another case [2017] MLJU 146, one of the issues for determination by the High Court was whether there was a construction contract made in writing upon which a dispute has arisen which is referable to adjudication under the CIPAA. In the course of the discussion, Lee Swee Seng J (now JCA) said: “[37] However, with respect to issue of core jurisdiction, as in here the issue of whether there was a construction contract made in writing, I would say it is not too late to raise it for the first time in the Adjudication Response or at any time during the Adjudication proceedings and even at the stage of setting aside under section 15 CIPAA or in opposing an enforcement of the Adjudication Decision under section 28 CIPAA. … [51] The learned Adjudicator had considered the jurisdictional objection raised in that there was no construction S/N fPXweJekGkiiSwO23auj6A contract made in writing. In paragraph 13.1 of his Decision, the learned Adjudicator found as follows: “13.1 ...I found that it is a valid and enforceable construction contract in writing between the Claimant and the Respondent to which shown (sic) relationship of the parties as the ‘Contractor’ vs ‘Employer’. Therefore, according to section 2 of CIPAA, the Claimant is entitled to refer the payment disputes and claims of the unpaid work done under the CIPAA. The Respondent's jurisdiction (sic) challenge to dispute the validity of LoA shall be dismissed.” [52] Admittedly, the reason given is brief but brevity is not a ground for setting aside a finding of jurisdiction. I agree that if the learned Adjudicator had arrived on a wrong conclusion of jurisdiction, this Court in deciding the matter unfettered by any finding of fact of the learned Adjudicator, is at liberty to arrive at its own finding on jurisdiction. S/N fPXweJekGkiiSwO23auj6A [53] l see no good reason to disagree with the learned Adjudicator. The fact that there is a construction contract between the Claimant and the Respondent as borne out by Clause 2 of the LoA is self-evident. It was on the strength of this LoA together with the supporting documents that the Claimant was allowed possession of site and to commence the balance Works.”. [41] His Lordship had also made reference to Circular CIPAA 03 and held that: “[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 S/N fPXweJekGkiiSwO23auj6A The Construction Industry Payment and Adjudication Act 2012 (“CIPAA”) came into operation on 15 April

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. S/N fPXweJekGkiiSwO23auj6A 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. S/N fPXweJekGkiiSwO23auj6A

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 … [56] Clearly an expansive and generous interpretation is to be given to the meaning of a “contract made in writing” in line S/N fPXweJekGkiiSwO23auj6A with the purpose of CIPAA which is captured to some extent by its long title … [57] lt 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. S/N fPXweJekGkiiSwO23auj6A [59] The justification for that becomes more understandable when, as here, it is the Architect and QS appointed by the Respondent that had certified the Interim Progress Claims. [60] I would therefore hold that there is a construction contract in writing from which a dispute has arisen and that the Adjudicator has jurisdiction to hear the dispute and decide accordingly.”. [42] In Poly Ritz Ventures Sdn Bhd v Vestland Resources Sdn Bhd And Another Case [2020] MLJU 2061, Lim Chong Fong J (now JCA) had occasion to refer to the case of Inovatif Engineeering (M) Sdn Bhd v Nomad Engineering Sdn Bhd [2016] MLJU 1351 in the following passages: “[29] Furthermore in Inovatif Engineeering …, Ravinthran Paramaguru J (now JCA) held as follows with emphasis added by me: S/N fPXweJekGkiiSwO23auj6A “I shall first consider the jurisdictional ground under limb

of section 15. Counsel for applicant submitted that Adjudicator had no jurisdiction because there was no written contract between the parties. Section 2 of CIPAA provides that a construction contract must be in writing to come within its ambit. Counsel for applicant submitted that the first Purchase Order is dated earlier that the Letter of Award between the applicant and the main contractor (ABB Malaysia Sdn Bhd). In my opinion, there is no merit in this ground for the following reason. It may well be that the Letter of Award was dated later than the first Purchase Order issued by the applicant. This issue was considered by the Adjudicator. However, there is no denial that the applicant had issued the said Purchase Order in question and had even acknowledged the work done by the respondent under the said Purchase Orders by making part payment. Therefore it is not material that the Purchase Orders were not countersigned by the respondent. The fact that all the three Purchase Orders were issued by the S/N fPXweJekGkiiSwO23auj6A Operations Director of the applicant is not disputed. The applicant had also issued the Certificate of Work Done No.1 dated 31st May 2012. In the premises, as noted by the Adjudicator, although there is no formal contract in writing such as a separate Letter of Award or Agreement, the said Purchase Orders constitute a contract in writing within the meaning of section 2. In my opinion, “contract in writing” should be given a liberal meaning and should not be restricted to a “formal” contract. For this reason, I see nothing wrong in the assistance derived by the Adjudicator in referring to the circular issued by the KLRCA on the meaning of “contract in writing”. The said circular (KLRCA CIPAA CIRCULAR 03) reads as follows: … The purpose of CIPAA is to ensure that subcontractors are paid speedily upon certification of works so that the construction industry as whole is not adversely affected S/N fPXweJekGkiiSwO23auj6A by chronic delays in payment pending finalization of accounts. As 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, I am of the view that it comes within the meaning of a “contract in writing”.” I share Justice Ravinthran’s views and see no why reason they should not be also applicable here. The Court of Appeal cases of of Bekalan Sains P & C Sdn Bhd v Bank Bumiputra Malaysia Bhd (supra), Macvilla Sdn Bhd v Mervyn Peter Guan Yin Hui & Anor (supra) and Baldah Toyyibbah (Prasarana) Kelantan Sdn Bhd v Dae Hanguru Infra Sdn Bhd and another appeal (supra) relied by Poly Ritz are thus distinguishable on their facts, if not irrelevant here. [30] Consequently, I find and hold that there is nothing lacking in the Work Order which does not make it a construction contract in writing as contemplated by the CIPAA. The Adjudicator accordingly acted within her S/N fPXweJekGkiiSwO23auj6A jurisdiction when she found for Vestland based on the Work Order.”. [43] The High Court in Ong Teik Beng (t/a MJV Construction) v Wow Hotel Sdn Bhd and another case [2022] 8 MLJ 10 had similalry dealt with the issue as to whether there is a construction contract as defined by s 2 of the CIPAA. The analysis and findings of the court can be seen in the following excerpt from the judgment: “First reason: No construction contract within meaning of CIPAA [12] This reason is based on the ‘excess of jurisdiction’ ground. It is asserted by the defendant that there was no construction contract as defined by s 2 of the CIPAA entered into by the parties. It is claimed that the quotation relied by the plaintiff has not been mutually agreed and that therefore there is no written agreement between the parties which is based on the established elements of offer and acceptance. The record between the parties was not a complete agreement. S/N fPXweJekGkiiSwO23auj6A Reliance was made on the United Kingdom cases of RJT Consulting Engineers Ltd v DM Engineering (Northern Ireland) Ltd [2002] EWCA Civ 270; Hart Investments Ltd v Fidler & Anor [2006] EWHC 2857 (TCC); and Mott Macdonald Ltd v London & Regional Properties Ltd [2007] EWHC 1055 (TCC). [13] In this regard the adjudicator had stated that the ‘the actual existence of the quotation’ satisfies the requirement of an exchange of communication in writing had taken place between the parties and because the defendant had allowed the plaintiff to proceed with work and had made part payment for work done the defendant is estopped from denying the existence of the quotation being a written contract. [14] I am of the view that the contention of the applicant that at best there the quotation was unilaterally issued by the plaintiff is untenable as it is not in accord with the reality of things in the ordinary course of business. The quotation had identified in detail the works that were to be carried out. The S/N fPXweJekGkiiSwO23auj6A works were ‘renovations’ works. Only the person seeking to renovate knows what is to be restored, refurbished, repaired or changed or other works by way of renovation. The quotation therefore cannot exist in vacuity. It can only be based on what the defendant wanted done and is evidence of a meeting of the minds. The existence of the quotation was not in dispute and it was irrelevant that the defendant did not countersign the quotation. The facts show that the plaintiff did the works and part payments were made on invoices issued based on the quotation. [15] I am further supported by the following High Court cases where it is opined that the words ‘contract in writing’ should be accorded a liberal meaning and should not be restricted to a ‘formal’ contract (Inovatif Engineering (M) Sdn Bhd v Nomad Engineering Sdn Bhd [2016] MLJU 1351; [2017] 1 AMR 722 and Poly Ritz Ventures Sdn Bhd v Westland Resources Sdn Bhd [2020] MLJU 2016). I am in agreement with the liberal approach rather than the stringent approach of the United Kingdom cases cited by the defendant.”. S/N fPXweJekGkiiSwO23auj6A [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. S/N fPXweJekGkiiSwO23auj6A [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. 2nd Ground: Whether there is a due date for the amount claimed by TUV 3rd Ground: Whether there is a cause of action in the Adjudication Claim which allows TUV to claim against Intisari in the adjudication proceedings - The Parties’ Submissions [47] Intisari contended that there is no due date for the amount claimed by TUV in this action and that TUV did not produce any document agreed by both TUV and Intisari with regards to the date of payment which shows that Intisari needs to make payment on certain dates. The decision of this Court in Broadway Power Sdn Bhd v Eden S/N fPXweJekGkiiSwO23auj6A Construction (M) Sdn Bhd [2020] MLJU 1150 was cited as authority in support of Intisari’s arguments. [48] It was further submitted that TUV’s Adjudication Claim does not have a cause of action which allows TUV to claim against Intisari as the Adjudication Claim is based on invoices without referring to any provision in the construction contract. The Court was invited to consider s 9 of the CIPAA and the judgment in JKP Sdn Bhd v Anas Construction Sdn Bhd and another appeal [2022] MLJU 2124. [49] In rebuttal, TUV argued that Intisari only raised the issue that the Adjudicator has no jurisdiction to hear the matter as the Payment Claim did not state the due date of payment and cause of action for the first time during the Setting Aside Application. [50] Referring to Terminal Perintis (supra), TUV submitted that the validity of the Payment Claim falls under the competency jurisdiction which the Adjudicator have the jurisdiction to determine, and the Court cannot set aside the AD unless the Adjudicator has breached s 15 CIPAA. TUV insisted that the court is a wrong forum for Intisari to raise the S/N fPXweJekGkiiSwO23auj6A issue of validity of the Payment Claim for the first time and this constitutes an invalid reason to set aside the AD. - The Findings of the Court [51] Sub-s 5(2) CIPAA stipulates that: “The payment claim shall be in writing and shall include –

the amount claimed and due date for payment of the amount claimed;

details to identify the cause of action including the provision in the construction contract to which the payment relates;

description of the work or services to which the payment relates; and S/N fPXweJekGkiiSwO23auj6A

a statement that it is made under this Act.”. [52] As for an adjudication claim, sub-s 9(1) CIPAA provides that: “The claimant shall, within ten working days from the receipt of the acceptance of appointment by the adjudicator under subsection 22(2) or 23(2), serve a written adjudication claim containing the nature and description of the dispute and the remedy sought together with any supporting document on the respondent.”. [53] Upon careful consideration of Intisari’s 2nd and 3rd grounds to set aside the AD, I am in agreement with TUV’s submission that the jurisdictional challenge that the Payment Claim did not state the due date of payment and cause of action is unfounded for the following reasons:

In the column in respect of the “Basis of Claim / Reference Period of this claim” in the Payment Claim, TUV had stated, among others, that “It is mutually agreed between the Unpaid Party and the Non-Paying Party that the Non-Paying Party would send S/N fPXweJekGkiiSwO23auj6A invoices to the main contractors for the work done by the Unpaid Party (Appendix “TSMY-1”). Upon receipt of the payments for work done by the Non-Paying Party, the Non-Paying Party shall remit 95% out of the payments for work done to the Unpaid Party.” whilst in the column on the “Particulars of the amount claimed” the Invoices/ Credit Notes were listed and enclosed as Appendix “TSMY-2”. Each of the Invoice contains a statement that payment must be made within 30 days without deduction. This means that there are different due dates for each Invoice.

The total outstanding sum of RM1,703,148.97 as stated in the Payment Claim was already due as at the date of the same i.e.

4.10.2021. Since payment was already due, there is an accrued cause of action by TUV against Intisari, especially when the Main Contractors have made payment for the invoices to Intisari. Based on the exchange of correspondence between the parties, the issuance of the Purchase Orders and Invoices and the partial payments made by Intisari, Intisari was well aware of the date of each Invoice and the arrangements for payment. S/N fPXweJekGkiiSwO23auj6A

In para 29 of the AD, the Adjudicator said that “A statement of account dated June 2021 shows comprehensively in my view the chronology of the transactions and the balance due.”. In paras 52 and 53 of the AD, the Adjudicator went on to find that TUV has carried out the works as claimed because the Main Contractor 1 has paid Intisari but Intisari has not made full payment to TUV.

The courts have consistently rejected taking an overly technical approach or interpretation in addressing the issue of compliance with the statutory requirements of a Payment Claim (see paras 46 - 52 in the decision of this Court in Econpile (M) Sdn Bhd v ASM Development (KL) Sdn Bhd and another summons [2020] MLJU 1146).

The facts in JKP Sdn Bhd (supra) can be distinguished as in that case, the adjudicator made out a cause of action as per clause 36.6 of the contract when the claim presented before him was predicated on clauses 28, 55 and 56 of the contract. Clause 36.6 of the contract was not stated at all in the S/N fPXweJekGkiiSwO23auj6A payment claim and thus, the Court of Appeal held that the requirements under sub-s 5(2) CIPAA were not complied with and the adjudicator had acted in excess of his jurisdiction when he decided on matters never raised and pleaded in the payment claim, payment response and all the adjudication pleadings. 4th Ground: Whether the Adjudicator has acted beyond the power and/ or jurisdiction under the CIPAA [54] Intisari’s counsel relied on sub-s 27(2) CIPAA which reads: “(2) The parties to adjudication may at any time by agreement in writing extend the jurisdiction of the adjudicator to decide on any other matter not referred to the adjudicator pursuant to sections 5 and 6.” and on the decision in Naza Engineering & Construction Sdn Bhd v SSL Dev Sdn Bhd [2020] 9 MLJ 499 in submitting that the Adjudicator continued with the adjudication proceedings even though there is no S/N fPXweJekGkiiSwO23auj6A written contract between the parties, and he has therefore acted beyond his jurisdiction under the CIPAA as the requirements under ss 5 and 6 of the CIPAA were not fulfilled. [55] Intisari averred that the Adjudicator had acted beyond his power and/ or jurisdiction under the CIPAA when he decided to continue with the adjudication proceeding based on the draft agreement attached in the Adjudication Claim. [56] In the course of his submission, En. Husin posited that the Adjudicator had made his decision based on the unsigned draft agreement attached in the Adjudication Claim. Upon further enquiry by the Court, the learned counsel explained that during the Zoom hearing before the Adjudicator, Intisari submitted that there is no contract in writing but the Adjudicator had referred to the draft agreement. [57] The Court then drew the attention of counsel to para 34 of the AIS wherein no mention is made to the Zoom hearing and the fact that, judging on the AD, there is no indication that the Adjudicator had arrived at his decision based on the draft agreement, to which En. Husin had conceded to the same. S/N fPXweJekGkiiSwO23auj6A [58] There is no evidence to support the claim that the Adjudicator had made his decision based on the draft agreement attached in the Adjudication Claim. The allegation that the Adjudicator had acted in excess of jurisdiction is unsubstantiated. 5th Ground: Whether the Adjudicator has breached the second rule of natural justice by not allowing Intisari’s application to file the Adjudication Response - The Parties’ Submissions [59] Intisari asserted that the Adjudicator had breached the second rule of natural justice under s 15(b) CIPAA, namely that the parties must be given adequate notice and opportunity to be heard, when the Adjudicator did not allow Intisari’s application to file the Adjudication Response out of time where the objection was raised on the issue of jurisdiction of the Adjudicator. S/N fPXweJekGkiiSwO23auj6A [60] According to Intisari, the Adjudicator’s action shows that he had denied Intisari’s defence and that Intisari had been prevented from the right to respond, oppose and/ or to reply to the Adjudication Claim even though Intisari had initially objected to the adjudication proceedings and had already applied for an extension of time to file the Adjudication Response. It was alleged that the Adjudicator failed to decide on Intisari’s objection. [61] TUV refuted Intisari’s contentions as the chronology of events in the adjudication proceeding clearly demonstrate that the Adjudicator had given prior notice and an effective opportunity for Intisari to make representations before the Adjudicator delivered the AD. - The Findings of the Court [62] The Court has scrutinised the chronology of events as affirmed by the parties in their respective affidavits and supported by the documentary evidence as exhibited as well as the events as tabulated in Appendix A in TUV’s Written Submission, and finds that – S/N fPXweJekGkiiSwO23auj6A

there were altogether five applications by Intisari to the Adjudicator for Intisari to be given time to either file the Adjudication Response or the submission as to its right to file the Adjudication Response by a certain date (see Intisari’s solicitor’s letters dated 21.3.2022, 22.3.2022, 28.3.2022, 1.4.2022 and 4.4.2022);

the Adjudicator has wide powers under s 25 CIPAA in the conduct of an adjudication and these relate substantially to administrative and procedural matters that will better promote the more efficient conduct of adjudication and its proceedings (see WRP Asia Pacific Sdn Bhd v NS Bluescope Lysaght Malaysia Sdn Bhd [2015] MLJU 1125). Among the powers are to issue any direction as may be necessary or expedient and to extend any time limit imposed on the parties under the CIPAA as reasonably required (see s 25(j) and (p) CIPAA);

in this case, the Adjudicator had promptly replied to Intisari’s application either on the same day or on the next day. The S/N fPXweJekGkiiSwO23auj6A Adjudicator had evidently given due consideration to each application and had decided to reject them with reasons whereby in respect of –

the first application on 21.3.2022, the Adjudicator had replied that there is no necessity for him to respond to Intisari’s letter dated 1.3.2023 as that letter was addressed to AIAC and AIAC had reverted to Intisari by e-mail;

(ii) the second application on 22.3.2022, the Adjudicator said that he cannot exercise his discretion pursuant to s 25(p) CIPAA to abridge the time allowed pursuant to sub-s 10(1) CIPAA because “… The difficulty with your sussicint [sic] application is that it provides no reasons for the application. Surely it must occur to you that when seeking an extension as you put it, some cogent reasons must be advanced to enable a consideration before an Adjudicator can exercise that discretion. In my previous correspondence, I had given directions and even reminded you of the timeline. At no point before 22 March did you see fit to make an application S/N fPXweJekGkiiSwO23auj6A for abridgement of time. Had there been a proper application with reasons, I certainly would have looked favourably at the application in the interests of being fair to the parties.”;

(iii) the third application on 28.3.2022, the Adjudicator stood firm that “… Your protestations notwithstanding, what is glaring is, aside from a complete disregard to my directions and reminders, that even in this last ditch effort to enlist my discretion, you fail to provide cogent reasons for an extension. I have already decided that the adjudication shall proceed in the manner directed on 23 March 2022.”;

(iv) the fourth application on 1.4.2022, where the justification given by Intisari’s solicitor was that there were some documents still pending from Intisari and that the lawyer in charge has just finished a trial which was held for 4 days from 28 until 31st March 2022, the Adjudicator had posed two questions as follows to Intisari’s solicitor: S/N fPXweJekGkiiSwO23auj6A

(A) What steps were taken by Intisari’s solicitor to comply with the Adjudicator’s directions from 23 March till 28 March when his trial commenced?

(B) What documents are required from Intisari that would assist in answering the legal question of whether Intisari has a right of further submission? However, Intisari’s solicitor did not answer these questions. The Adjudicator then replied that: “… At the outset, I must state that I am not impressed by the eleventh hour application. Whislt I am prepared to give every application from any or either party a fair and equitable consideration, I find that the urgency of counsel or rather the lack of it disconcerting. … To me, an application could have been made earlier as I do not believe a hearing would jump up suddenly. An earlier timeous application would have enabled S/N fPXweJekGkiiSwO23auj6A time for the Claimants counsel to consider and perhaps even agree to the request. On the second ground, in the absence of a reply as to the nature of the documents ought, I am left with no doubt that as the submission required by today's deadline was a legal issue, I seriously doubt the veracity of the inclusion of the second ground as stated. Be that as it were, I will reluctantly allow the Respondents request. I hereby extend the time for the Respondent to provide its submission until 9 am on Monday 4 April. I will not entertain any further application for extension. Such submission is to be delivered by 9 am th [sic] the Claimants counsel and to me by email. The claimants counsel shall have until 9 am on 6 April 2022 to reply.”; and S/N fPXweJekGkiiSwO23auj6A

the fifth application on 4.4.2022 on the ground that Intisari’s solicitor had only seen the Adjudicator’s e-mail granting the extension of time when the solicitor came back from court on the night of 4.4.2022, and in view of the solicitor’s conduct in serving the submission by hand to TUV’s solicitor on 5.4.2022, the Adjudicator called for a meeting via Zoom to be held on 15.4.2022. At that meeting, TUV’s solicitor informed that TUV intends to submit TUV’s Statement of Account showing the previous partial payments made by Intisari to TUV. The Adjudicator allowed the application by TUV’s solicitor. On 20.4.2022, the Adjudicator requested Intisari to advise him if Intisari has any issue with the Statement of Account provided by TUV’s solicitor on 15.4.2022 by 5.00 p.m. on 21.4.2022. Should the Adjudicator fail to hear from Intisari, he will proceed to rely on the Statement of Account and the Adjudicator will not entertain last minute requests made by Intisari. Intisari’s solicitor reverted with its comments on the Statement of Account on 21.4.2022. TUV gave its S/N fPXweJekGkiiSwO23auj6A response to these comments on 25.4.2022. On 17.5.2022, the Adjudicator informed the parties that he will deliver his decision on or before 30.5.2022, which is 45 working days from 21.3.2022. [63] In my judgment, the manner in which the Adjudicator had conducted the adjudication proceedings shows that he is aware of the duty and obligation to comply with the principles of natural justice as expressly stipulated in s 24(c) CIPAA and concurrently, to ensure that his decision is delivered within the time as provided under sub-s 12(2) CIPAA. There is certainly no lack of effort on the part of the Adjudicator in according procedural fairness to the parties, but this task was made difficult by Intisari itself and its counsel. [64] This case is a glaring example of a party flagrantly ignoring and continuously defying the Adjudicator’s directions and reminders. Intisari’s failure to file the Adjudication Response within the timeline set by the Adjudicator was at its own peril, leaving the Adjudicator no choice but to decide the dispute without the benefit of Intisari’s defence to TUV’s claim. Nevertheless, even right until the end, the Adjudicator S/N fPXweJekGkiiSwO23auj6A still gave Intisari the opportunity to give its comments on the Statement of Account. [65] Notably, on the part of Intisari, it did not demonstrate how the purported breach of the rule of natural justice is “decisive” or “material” to the AD such as to warrant an order to set aside the same. There is no “real possibility” that the Adjudicator would have reached a decision which would be different from the AD as the Adjudicator had considered the jurisdictional challenge notwithstanding the absence of the Payment Response and Adjudication Response. [66] As for the contention that the Adjudicator failed to consider Intisari’s defence as raised during the Zoom hearing and in the comments on the Statement of Account, these are Intisari’s grievances against the merits of the AD. It is trite that a setting aside application is not an appeal and the court will not consider arguments as to the merits of an adjudication decision (see the long line of cases such as ACFM Engineering & Construction Sdn Bhd v Esstar Vision Sdn Bhd and another appeal [2016] MLJU 1776, Martego Sdn Bhd v. Arkitek Meor & Chew Sdn Bhd & Another Appeal [2018] 2 CLJ 163, TYL Land and S/N fPXweJekGkiiSwO23auj6A Development Sdn Bhd v SIS Integrated Sdn Bhd and another case [2018] MLJU 217, Dekinjaya Builder (supra), Naza Engineering (supra) and Globalcon Holding (M) Sdn Bhd v Dmc Builder Sdn Bhd [2020] MLJU 1644). [67] In the final analysis, the 5th ground of challenge in the Setting Aside Application is completely devoid of merit and must be rejected. II. O.S. No. 129: The Enforcement Application [68] TUV’s Enforcement’s Application is made pursuant to s 28 CIPAA which provides that a party may enforce an adjudication decision by applying to the High Court for an order to enforce the adjudication decision as if it is a judgment or order of the High Court. [69] In view of the fact that the Court was persuaded to dismiss the Setting Aside Application and that the conditions for a positive order to be made with regards to the Enforcement Application are fulfilled in that the AD is rendered in TUV’s favour; Intisari has not paid the S/N fPXweJekGkiiSwO23auj6A adjudicated sum by the date as decided by the Adjudicator; and there is no prohibition to the grant of the order sought by TUV, it necessarily follows that the Enforcement Application must be allowed. Pronouncement [70] Premised on all the above-said considerations, the Setting Aside Application in O.S. No. 146 was dismissed with cost of RM6,000.00 and the Enforcement Application in O.S. No. 129 was allowed with cost of RM4,000.00. Dated: 12 May 2023 (ALIZA SULAIMAN) Judge Construction Court 2 High Court Kuala Lumpur S/N fPXweJekGkiiSwO23auj6A Counsels/ Solicitors: For the Plaintiff in O.S. No. 129 and the Defendant in O.S. No. 146: Wong Wai Sam Messrs. WS Wong & Co. Advocates & Solicitors A-1-29 IOI Boulevard Jalan Kenari 5 Bandar Puchong Jaya 47170 Selangor For the Plaintiff in O.S. No. 146 and the Defendant in O.S. No. 129: Hussin Bin Mohd Razak Messrs. Mohd Irwan Mohd Mubarak Advocates & Solicitors Suite 15-2, Jalan Melati Utama 4 Taman Melati Utama Gombak 53100 Kuala Lumpur Cases, legislation and other sources referred to in the submissions by learned counsels and in the Grounds of Judgment: Cases: ACFM Engineering & Construction Sdn Bhd v Esstar Vision Sdn Bhd and another appeal [2016] MLJU 1776 Ahmad Zaki Sdn Bhd v Swaja Fascade Sdn Bhd & Anor [2019] MLJU 1224 S/N fPXweJekGkiiSwO23auj6A Alpha Galaxy Sdn Bhd v Euro Destar (M) Sdn Bhd and another case [2021] MLJU 767 Bluedream City Development Sdn Bhd v Pembinaan Bina Bumi Sdn Bhd and another case [2020] MLJU 2531 Broadway Power Sdn Bhd v Eden Construction (M) Sdn Bhd [2020] MLJU 1150 Dekinjaya Builder Sdn Bhd v Chong Lek Engineering Works Sdn Bhd and another case [2020] MLJU 2455 EA Technique (M) Sdn Bhd v Malaysia Marine and Heavy Engineering Sdn Bhd and another case [2020] 11 MLJ 353 Econpile (M) Sdn Bhd v Asm Development (KL) Sdn Bhd and another summons [2020] MLJU 1146 Giatreka Sdn Bhd v SGW Engineering Construction Sdn Bhd (and Another Originating Summons) [2020] 1 AMR 193 Globalcon Holding (M) Sdn Bhd v Dmc Builder Sdn Bhd [2020] MLJU 1644 Inovatif Engineeering (M) Sdn Bhd v Nomad Engineering Sdn Bhd [2016] MLJU 1351 S/N fPXweJekGkiiSwO23auj6A JKP Sdn Bhd v Anas Construction Sdn Bhd and another appeal [2022] MLJU 2124 Mammoth Empire Construction Sdn Bhd v STAM Engineering Sdn Bhd and another case [2019] 10 MLJ 58 Martego Sdn Bhd v. Arkitek Meor & Chew Sdn Bhd & Another Appeal [2018] 2 CLJ 163 MKP Builders Sdn Bhd v PC Geotechnic Sdn Bhd and another case [2020] MLJU 1927 Naza Engineering & Construction Sdn Bhd v SSL Dev Sdn Bhd [2020] 9 MLJ 499 Ong Teik Beng (t/a MJV Construction) v Wow Hotel Sdn Bhd and another case [2022] 8 MLJ 10 Permintex JSK Resources Sdn Bhd v Follitile (M) Sdn Bhd and another case [2017] MLJU 377 Poly Ritz Ventures Sdn Bhd v Vestland Resources Sdn Bhd and another case [2020] MLJU 2061 Punj Lloyd Sdn Bhd v Ramo Industries Sdn Bhd & Anor and another case [2019] 11 MLJ 574 S/N fPXweJekGkiiSwO23auj6A SS Builders Sdn Bhd v Darma Mekar Sdn Bhd [2020] MLJU 1147 Sunshine Construction Sdn Bhd v Marvelane Sdn Bhd and other cases [2022] MLJU 428 Terminal Perintis Sdn Bhd v Tan Ngee Hong Construction Sdn Bhd and another case [2017] MLJU 242 TYL Land and Development Sdn Bhd v SIS Integrated Sdn Bhd and another case [2018] MLJU 217 View Esteem Sdn Bhd v Bina Puri Holdings Bhd [2018] 2 MLJ 22 WRP Asia Pacific Sdn Bhd v NS Bluescope Lysaght Malaysia Sdn Bhd [2015] MLJU 1125 Zana Bina Sdn Bhd v Cosmic Master Development Sdn Bhd and another case [2017] MLJU 146 Legislation: Arbitration Rules 2018 Construction Industry Payment and Adjudication Act 2012, ss 2, 3, 4, 5, 9, 15, 25, 26, 27 & 28 S/N fPXweJekGkiiSwO23auj6A Rules of Court 2012, O. 7, O. 28 & O. 92, r. Other sources referred to: Circular CIPAA 03 Kuala Lumpur Regional Centre for Arbitration’s Guideline on the meaning of “Construction Contract In Writing” Lam Wai Loon and Ivan YF Loo, Construction Adjudication In Malaysia, Third Edition, Sweet & Maxwell, 2022 S/N fPXweJekGkiiSwO23auj6A