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1 IN THE COURT OF APPEAL, MALAYSIA (APPELLATE JURISDICTION) CIVIL APPEAL NO: J-02(C)(A)-1345-06/2018 BETWEEN ISKANDAR REGIONAL DEVELOPMENT AUTHORITY … APPELLANT AND SJIC BINA SDN BHD … RESPONDENT (NO. SYARIKAT: 809930-U) [In the Matter of the High Court of Malaya at Johor Bahru Originating Summons No. JA-24C-05-09/2017 In the matter of Section 15 (a) and (d) of the Construction Industry Payment and Adjudication Act 2012 And In the matter of an Adjudication Decision by Mr. Masoud Moinfar dated 03.08.2017 under Kuala Lumpur Regional Centre Registration No. KLRCA/D/ADJ-0816-2017; And In the matter of Order 7 and Order 28 and Order 92 Rule 4 of the Rules of Court 2012 2 Between Iskandar Regional Development Authority … Plaintiff And SJIC Bina Sdn Bhd … Defendant] (No. Syarikat: 809930-U) [Heard together with] IN THE COURT OF APPEAL, MALAYSIA (APPELLATE JURISDICTION) CIVIL APPEAL NO: J-02(C)(A)-1346-06/2018 BETWEEN ISKANDAR REGIONAL DEVELOPMENT AUTHORITY … APPELLANT AND SJIC BINA SDN BHD … RESPONDENT (NO. SYARIKAT: 809930-U) [In the Matter of the High Court of Malaya at Johor Bahru Originating Summons No. JA-24C-05-09/2017 In the matter of Section 15 (a) and (d) of the Construction Industry Payment and Adjudication Act 2012 And 3 In the matter of an Adjudication Decision by Mr. Masoud Moinfar dated 03.08.2017 under Kuala Lumpur Regional Centre Registration No. KLRCA/D/ADJ-0816-2017; And In the matter of Order 7 and Order 28 and Order 92 Rule 4 of the Rules of Court 2012 Between Iskandar Regional Development Authority … Plaintiff And SJIC Bina Sdn Bhd … Defendant] (No. Syarikat: 809930-U) CORAM: ABDUL RAHMAN BIN SEBLI, JCA MARY LIM THIAM SUAN, JCA HASNAH BINTI DATO’ MOHAMMED HASHIM, JCA JUDGMENT OF THE COURT [1] These two appeals emanated from a single decision of the learned judge who had dismissed the appellant’s application made pursuant to section 15 of the Construction Industry Payment and Adjudication Act 2012 4 [CIPAA] and/or inherent jurisdiction of the Court to set aside the adjudication decision dated 14.8.2017. [2] The appellant relied on the then recent decision of the Court of Appeal in Bauer (Malaysia) Sdn Bhd v Jack-In-Pile (M) Sdn Bhd [2018] 10 CLJ 293 which held that CIPAA applied prospectively and not retrospectively. It was the contention of the appellant that the adjudication decision ought to be set aside as CIPAA did not apply to the construction contract in question as the contract was made before CIPAA came into force. [3] In these appeals, the Letter of Award in which the appellant was awarded the project in question is dated 17.12.2008 whereas the formal conditions of contract together with the Articles of Agreement were executed by the parties on 16.6.2009. The project was completed with the Certificate of Practical Completion issued on 25.5.2011 and the Final Certificate was issued on 27.2.2014. The respondent issued its version of the Final Accounts on 24.3.2014. On 15.4.2014, the appellant adjusted the contract sum by issuing a number of “Pelarasan Harga Kontrak” [PHK]. [4] The dispute that went to adjudication under CIPAA concerned payment disputes in relation to the PHK issued on 15.4.2014 and the Final Certificate dated 27.2.2014. [5] CIPAA came into force on 15.4.2014. 5 [6] It was argued by the appellant, raised as a preliminary point before the learned judge, that CIPAA did not apply as the contract and/or the dispute arose before CIPAA came into force. The decision in Bauer (Malaysia) Sdn Bhd v Jack-In-Pile (M) Sdn Bhd [supra] was cited in support. [7] The learned judge disagreed and dismissed the preliminary objection, taking the view that Bauer was limited to its facts and concerned only the interpretation of section 35 of CIPAA and that it was not of general application. Section 35 deals with pay when paid provisions of contract. [8] After hearing submissions, we similarly dismissed both appeals finding that we were in agreement with the learned judge. [9] The decision of the Court of Appeal in Bauer (Malaysia) Sdn Bhd v Jack-In-Pile (M) Sdn Bhd went on appeal to the Federal Court. On 16.10.2019, the Federal Court upheld the decision of the Court of Appeal. [10] In essence, the Federal Court has since held that CIPAA does not apply retrospectively; that the entire Act applies prospectively. Consequently, where the construction contract is one made before the legislation came into force, CIPAA has no application. That is the position in this case. [11] The doctrine of stare decisis requires us to abide by the recent decision of the Federal Court reported in Bauer (Malaysia) Sdn Bhd v Jack-In-Pile