Jambatan Kedua Sdn Bhd v Gammerlite Sdn Bhd (WA-24C-87-05/2023)

the application by Jambatan Kedua Sdn Bhd (‘JKSB’) pursuant to s 16 of the Construction Industry Payment and Adjudication Act 2012 [Act 746] (‘CIPAA’) in Originating Summons No. WA- 24C-87-05/2023 (‘O.S. No. 87’) to stay the Adjudication Decision dated 28.4.2023 (‘AD’) by the learned Adjudicator, Mr. Ho June Khai (‘Adjudicator’) pending the final determination by way of arbitration (‘Stay Application’); and

the application by Gammerlite Sdn Bhd (‘Gammerlite’) pursuant to sub-s 28(1) CIPAA in O.S. No. WA-24C-112-07/2023 (‘O.S. No. 112’) to enforce the AD as corrected on 15.5.2023 (‘Enforcement Application’). [2] The parties agreed for the Stay Application and the Enforcement Application to be heard together. After having considered the affidavit evidence and the oral and written submissions of the parties, I had, on 27.9.2023, allowed the Enforcement Application and also the Stay Application in the alternative prayer i.e. for a conditional stay whereby the sum of RM8,137,527.93 is to be placed in a stakeholder and interest bearing account held by Gammerlite’s solicitors, within 30 days from the date that the Order is sealed, until final determination of the disputes between the parties by arbitration. [3] JKSB is aggrieved with my decision in allowing the Enforcement Application whilst Gammerlite is dissatisfied with my decision in allowing the alternative prayer in the Stay Application. I now provide my full grounds of judgment for the purpose of the parties’ appeals. The Cause Papers [4] The cause papers in each application are as follows:

JKSB’s O.S. dated 29.5.2023 (encl. 1);

JKSB’s Affidavit In Support (‘AIS’) affirmed by its Chief Executive Officer, Faisal Bin Shahbudin on 29.5.2023 (encls. 2 - 5);

Gammerlite’s Affidavit In Reply (‘AIR’) affirmed by its Project Director, Wan Razali Bin Wan Muda on 16.6.2023 (encl. 8); and

JKSB’s AIR affirmed by the same deponent on 28.6.2023 (encl. 9).

Gammerlite’s O.S. dated 14.7.2023 (encl. 1);

Gammerlite’s AIS affirmed by the same deponent on 14.7.2023 (encl. 2);

JKSB’s AIR affirmed by the same deponent on 9.8.2023 (encl. 6);

Gammerlite’s Supplemental Affidavit affirmed by the same deponent on 18.8.2023 (encl. 7); and

Gammerlite’s AIR affirmed by the same deponent on 21.8.2023 (encl. 8). Background Facts [5] JKSB is wholly owned by the Minister of Finance Incorporated and has a registered address at 7th Floor, Bangunan Setia 1, 15 Lorong Dungun, Bukit Damansara, 50490 Kuala Lumpur and a business address at the 4th Floor of the same building. JKSB’s nature of business is constructing, developing and operating Jambatan Sultan Abdul Halim Mu’adzam Shah or the Second Penang Bridge (‘Bridge’). [6] Gammerlite has its business and registered address at Shoplot 117, 1st Floor, Taman Jindo, Jalan Kolam, 88300 Kota Kinabalu, Sabah. Its business is the undertaking of contract and maintenance works. [7] JKSB is the concessionaire responsible for the design, construction, management, operation and maintenance of the Bridge. [8] By the Letter of Acceptance of Tender dated 12.1.2015 (‘LoA’), JKSB appointed Gammerlite as the contractor for the Integrated Asset Management System for the Bridge (‘Works’) for the sum of RM133,168,000.00, which was later revised to RM134,280,728.15. [9] Other than the LoA, the parties executed, amongst others, the Standard Form of Design and Build Contract PWD Form DB (Rev. 1/2010) and its addendum (‘Contract’). [10] The Works were divided into the Development Stage and the Implementation Stage. [11] The date for possession of the site was 19.1.2015. The original contract period was seven years with the date for completion for the whole of the Works was 18.1.2022. This was later extended to 17.2.2022. [12] The original date for completion for the Development Stage was 18.1.2016 and this was also extended to 28.2.2017. [13] According to Gammerlite, other than granting the extension of time (‘EoT’) until 28.2.2017, JKSB also certified that the actual percentage of work progress for the Development Stage as of 11.1.2017 is 89.50%. [14] On 28.3.2017, JKSB issued a Certificate of Practical Completion (‘CPC’) subject to, among others, the completion of the minor outstanding works as listed under Appendix 1, and certified that the Development Stage was satisfactorily completed on 28.2.2017 and taken for implementation on 1.3.2017. [15] The whole of the outstanding works as listed in Appendix 1 was to be completed on or before 30.4.2017, however, JKSB alleged that Gammerlite failed to do so. [16] In respect of the whole of the Works, Gammerlite requested for EoT to complete the same, but this was rejected by the Project Director. A Certificate of Non-Completion was issued on 9.3.2022 (‘CNC’). [17] Gammerlite then served a Payment Claim dated 7.6.2022 on JKSB pursuant to sub-s 5(1) CIPAA for the unpaid sums of RM16,387,889.60 [without Liquidated Ascertained Damages (‘LAD’)] or RM19,044,272.00 (with LAD) as per Progress Claim No. 75. [18] On 22.6.2022, JKSB served its Payment Response on Gammerlite disputing the entire claim. [19] This was followed with the service of the Adjudication Claim dated 16.12.2022. In essence, Gammerlite claimed for the sum of RM3,655,033.26 as outstanding payment for certified work and RM17,457,032.71 for uncertified work. [20] In JKSB’s Adjudication Response dated 17.1.2023, it sought for, among others, Gammerlite’s claim to be dismissed with costs. [21] Ultimately the Adjudicator determined that: “Q. ADJUDICATION DECISION

… 1) The Respondent shall pay to the Claimant the sum of RM7,881,924.96. This is hereby recorded as the Adjudicated Sum. 2) The Respondent shall bear the full Adjudication Cost and pay the Claimant the amount of RM255,603.00. 3) The Adjudicated Sum together with the Adjudication Cost shall be paid by the Respondent to the Claimant within thirty (30) calendar days from the date of this adjudication decision, ie. on or before 28th May 2023. This date shall be called the Due Date for payment of the Adjudicated Sum and Adjudication Cost. 4) The Respondent shall pay to the Claimant simple interest at a rate of 5% per annum from the Due Date for payment until full payment of the Adjudicated Sum and Adjudication Cost.”. [22] Meanwhile, JKSB issued a notice to Gammerlite on 22.3.2023 to remedy the alleged events of defaults/ breaches and this was followed with a notice to terminate the Contract dated 11.4.2023. [23] On 25.5.2023, JKSB commenced arbitration proceedings against Gammerlite. I. THE ENFORCEMENT APPLICATION [24] JKSB initially raised the issue of non-compliance with O. 69A, r. 5(3) of the Rules of Court 2012 as Gammerlite did not exhibit the original or a certified true copy of the AD in exhibit “WR-4A” in the AIS (encl. 2). [25] However, on the hearing date, Ms. Victoria Loi informed that JKSB will not be pursuing that ground as Gammerlite had filed a Supplementary Affidavit exhibiting a certified true copy of the AD (see exhibit “WR-7”, encl. 7). [26] The provision on the enforcement of an adjudication decision as a judgment is provided in s 28 of the CIPAA which states that: “Enforcement of adjudication decision as judgment

28.

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.

The High Court may make an order in respect of the adjudication decision either wholly or partly and may make an order in respect of interest on the adjudicated amount payable.

The order made under subsection (2) may be executed in accordance with the rules on execution of the orders or judgment of the High Court.”. [27] In the AIR, JKSB averred that there is no failure to pay on its part as alleged by Gammerlite and the AD should not be enforced because, whilst the Adjudicator decided that Gammerlite is entitled to the sum of RM8,137,527.96 under the AD (‘Adjudicated Sum’), the Adjudicator had also found that the CNC is valid and JKSB is contractually entitled to impose LAD on Gammerlite. The Adjudicator had accordingly imposed LAD on Gammerlite in the sum of RM1,258,443.00 calculated from 9.3.2022 until 4.4.2022. [28] Pursuant to Clause 45.2 of the Conditions of Contract (‘CoC’), JKSB asserted that it is entitled to impose LAD until the date of issuance of the CPC or the date of termination of the Contract on 11.4.2023. Thus, to JKSB, in addition to the LAD in the sum of RM1,258,443.00, it is entitled to further LAD calculated from 5.4.2022 until 11.4.2023 amounting to RM17,338,548.00 (RM46,609.00 x 372 days). [29] JKSB submitted that the LAD has since accumulated to a sum that far exceeds the Adjudicated Sum and hence, the Adjudicated Sum is completely extinguished. JKSB is also entitled, pursuant to Clause 45.2 CoC, to recover the sum of RM17,338,548.00 as a debt due from Gammerlite and JKSB therefore has the right to set off the same against the Adjudicated Sum. Basically, it is Gammerlite that owes JKSB the sum of RM9,201,020.04 (RM17,33 8,548.00 - RM8,137,527.69). [30] JKSB additionally averred that the subject matter of the adjudication that culminated in the AD is pending final determination in the arbitration which was commenced by JSB vide the Notice of Arbitration dated 25.5.2023. In paragraph 16 of the AIR, JKSB provided a summary comparison of the issues in the adjudication and arbitration proceedings as shown below: Adjudication Arbitration

Works purportedly carried out by the Plaintiff and the valuation of such works as

Works purportedly carried out by the Plaintiff and the valuation of such Works as at at 22.3.2022 (i.e., the date of valuation in IPC No. 75);

Imposition of LAD by the Defendant on the Plaintiff (until 4.4.2022);

Validity of the CNC issued by the P.D. in respect of the whole of the works; and

Plaintiff’s failure to fulfil its contractual obligations, including failure to complete the Works.

11.4.2023 (i.e., date of termination of the contract);

Imposition of LAD by the Defendant on the Plaintiff (until termination of the contract on 11.4.2023);

Validity of the CNC issued by the P.D. in respect of the whole of the works;

Validity of the CPC issued by the P.D. in respect of the

Plaintiff’s failure to fulfil its contractual obligations, including failure to complete the Works; and

Validity of the termination of the contract by the Defendant. [31] Section 13 of the CIPAA provides the effect of an adjudication decision in these terms: “13. The adjudication decision is binding unless –

it is set aside by the High Court on any of the grounds referred to in section 15;

the subject matter of the decision is settled by a written agreement between the parties; or

the dispute is finally decided by arbitration or the court.”. [32] It is indisputable that JKSB did not file an application pursuant to s 15 CIPAA to set aside the AD. The subject matter of the AD has not been settled by a written agreement between JKSB and Gammerlite and the dispute has also not been finally decided by arbitration or the court. [33] Section 28 CIPAA confers a discretion on the High Court which must be exercised judiciously, having regard to the underlying facts and the applicable principles under the CIPAA. This discretionary power does not extend to requiring the applicant to show that there are no grounds for setting aside the adjudication decision under s 15 CIPAA. All that the applicant needs to do is to satisfy the court that –

there is an adjudication decision that has been rendered in the applicant’s favor;

there has been non-payment of the adjudicated sum by the date specified in the adjudication decision; and

there is no prohibition to the grant of the order that is sought in that the adjudication decision has not been set aside or stayed; there is no written settlement of the subject matter between the parties, or there is no final decision rendered on the payment claim, whether made in arbitration or by a court of law [see Inai Kiara Sdn Bhd v. Puteri Nusantara Sdn Bhd [2019] 2 MLJ 362 (CA) at paragraphs 24 - 26, pp 370 and 371]. [34] As all requirements laid down in Inai Kiara have been satisfied, I was persuaded to allow the Enforcement Application in keeping with the overarching purpose of statutory adjudication which is to facilitate speedy cash flow in the construction industry and the “pay now, argue later” dispute resolution process (see among others, Inai Kiara (supra, at paragraph 28, p 371), Martego Sdn Bhd v Arkitek Meor & Chew Sdn Bhd and another appeal [2020] 6 MLJ 224 (FC) at paragraphs 46 - 55, pp 242 - 246 and ASM Development (KL) Sdn Bhd v Econpile (M) Sdn Bhd and other appeals [2022] 6 MLJ 392 (CA) at paragraph 40, p 406). [35] A dispute in respect of “payment” under a “construction contract” as defined in s 4 of the CIPAA, may, of course, be referred concurrently to adjudication, arbitration or the court (see sub-s 37(1) CIPAA). In the circumstances of this case, I was not swayed by JKSB’s arguments regarding its entitlement to LAD which is said to extinguish the Adjudicated Sum or gives it a right to set off, and is pending final determination in the arbitration proceedings, as a reason to justify dismissing the Enforcement Application. [36] Among the grounds raised by JKSB in defending the Enforcement Application is that there are serious doubts as to Gammerlite’s ability to repay the Adjudicated Sum. These same grounds can be found in the Stay Application which will be discussed next. II. THE STAY APPLICATION [37] The Stay Application was made pursuant to s 16 of the CIPAA which reads as follows: “Stay of adjudication decision

(1) A party may apply to the High Court for a stay of an adjudication decision in the following circumstances:

an application to set aside the adjudication decision under section 15 has been made; or

the subject matter of the adjudication decision is pending final determination by arbitration or the court.

The High Court may grant a stay of the adjudication decision or order the adjudicated amount or part of it to be deposited with the Director of the KLRCA or make any other order as it thinks fit.”. [38] There is no doubt that JKSB has met the threshold requirement to apply for a stay of the AD as the subject matter of the AD is pending final determination by arbitration. However, this does not automatically result in the granting of a stay (see Subang Skypark Sdn Bhd v Arcradius Sdn Bhd [2015] 11 MLJ 818 (HC) and Pasukhas Sdn Bhd v Empire Multiple Sdn Bhd and another appeal [2019] MLJU 1393 (HC) which were referred by the Court of Appeal in ASM Development (KL) Sdn Bhd v Econpile (M) Sdn Bhd and other appeals (supra) at pp 404 and 405; see too PWC Corp Sdn Bhd v Ireka Engineering & Construction Sdn Bhd and another appeal [2018] MLJU 152 (HC), Ireka Engineering and Construction Sdn Bhd v PWC Corp Sdn Bhd and another appeal [2019] MLJU 35 (CA) and the decisions of this Court in Puncak Niaga Construction Sdn Bhd v Mersing Construction & Engineering Sdn Bhd (and 2 Other Originating Summonses) [2022] 1 AMR 249 at paragraph 69, pp 286 - 287 (affirmed by the Court of Appeal on 8.8.2022, see [2022] MLJU 2107) and JEKS Engineering Sdn Bhd v PALI PTP Sdn Bhd and another case [2022] 9 MLJ 541 at paragraph 124, p 588). [39] The test as to whether a stay of the AD is to be allowed was laid down by the Federal Court in View Esteem Sdn Bhd v Bina Puri Holdings Bhd [2018] 2 MLJ 22 namely, the applicant must establish that there are clear errors in the AD, or that it is in the interest of justice for the enforcement of the AD to be stayed. The correct approach under s 16 of the CIPAA would be to evaluate the individual case on its merits where the financial capacity of the unpaid party to repay the adjudicated sum could be a factor but is not the only factor to be considered (see paragraphs 79 and 82 of the judgment at pp 47, 48 and 49). [40] JKSB averred in paragraph 40 of the AIS that it is in the interest of justice that the enforcement of the AD be stayed as –

the sum of RM8,137,527.96 which was awarded to Gammerlite pursuant to the AD had been extinguished completely owing to the accrued LAD and it is Gammerlite that owes JKSB a sum of RM9,201,020.04 (see paragraphs 41 - 47 of the AIS);

the subject-matter of the adjudication forms part of the subject-matter in the arbitration pursuant to the arbitration agreement between the parties and is pending final determination, in particular, Gammerlite’s entitlement to the sum of RM8,137,527.96 is subject to the issue of LAD for the Development Stage and JKSB’s claim for reimbursements being finally decided in the arbitration (see paragraphs 49 - 59 of the

there is a real possibility that Gammerlite is unable to repay the Adjudicated Sum to JKSB in the event that the outcome of the arbitration is in JKSB’s favour (see paragraphs 61 - 70 of the AIS). [41] There are several cases which have discussed how the tests of clear and unequivocal errors and justice of the case are to be applied in the exercise of the discretion of the court whether to grant a stay or otherwise (see EA Technique (M) Sdn Bhd v. Malaysia Marine And Heavy Engineering Sdn Bhd [2021] 1 AMR 594, Maju Holdings Sdn Bhd v. Spring Energy Sdn Bhd [2020] 1 LNS 1194, Pinnacle Supreme Sdn Bhd v. DSG Projects Malaysia Sdn Bhd [2021] 1 LNS 852, Sun Plaza Development Sdn Bhd v. Hejingkang Sdn Bhd [2021] 1 LNS 629 and CRCC Malaysia Bhd v M101 Entity Sdn Bhd and other cases [2021] MLJU 1305). [42] The determination as to what is right and fair so as to meet the justice of the individual case must necessarily be dependent on the factual matrix in each case. Justice of the case involves the exercise of discretion; whether the conscience of the court is pricked in the special circumstances of the case such that it is minded in granting the stay. Considerations of justice of the individual case to justify the stay of an adjudication decision have to be stringently applied lest it would defeat the statutory intent of the CIPAA to ensure cash flow in the construction industry (see Genbina Sdn Bhd v. Bina Puri Construction Sdn Bhd and another appeal [2020] 2 MLRH 101 at p 111, EA Technique (M) Sdn Bhd v Malaysia Marine and Heavy Engineering Sdn Bhd (supra, at p 603), Zeta Letrik Sdn Bhd v JAKS Sdn Bhd and other cases [2022] MLJU 2734 and RA Suria Sdn Bhd v Cedy Third Contracting and Trading (M) Sdn Bhd and other cases [2023] MLJU 247). [43] In so far as the grounds as stated in subparagraphs 40 (a) and (b) are concerned, I agree with the submission by Mr. Ashok Kandiah for Gammerlite that the fact there is an ongoing arbitration between the parties and the subject-matter of the adjudication forms part of the subject-matter in the arbitration are irrelevant. The merits of JKSB’s case in the arbitration is also not a relevant consideration in the Stay Application [see ASM Development (supra) and Ireka Engineering (supra)]. [44] I was, however, persuaded by the submission by Ms. Victoria Loi for JKSB, relying on the Companies Commission of Malaysia Search (‘CCM Search’) on Gammerlite as at 19.5.2023 and Gammerlite’s “Financial Report for the financial year ended 31 May 2021” (exhibit “JKSB-11”, encl. 5) that there are serious doubts as to Gammerlite’s ability to repay the Adjudicated Sum if JKSB succeeds in the arbitration. My reasons are as follows:

Gammerlite’s current assets stands at RM32,200,388.00 and non-current assets is RM255,006.00 giving a total of RM32,455,394.00. Approximately 50% of Gammerlite’s current assets is made up of “Cash and bank balances” in the sum of RM16,533,125.00 whereby the sum of RM16,513,087.00 is “Fixed deposit pledged for banking facilities” and RM7,714,944.00 is a bank overdraft resulting in a cash and cash equivalents of negative RM7,694,906.00 (see paragraph 9 in the “Notes to the Financial Statements” at p 32 of the Financial Report which has a remark that “All fixed deposits are pledged with the licensed bank for committed bank facilities.”). The cash and cash equivalents for financial year end (‘FYE’) 2020 is negative RM8,379.310.00. The total cash at banks and cash in hand is RM20,038.00 only. Gammerlite’s current assets have also reduced from RM34,800,814.00 for FYE 2020 to RM32,200,388.00 for FYE 2021.

Gammerlite has current liabilities of RM15,425,045.00 and non-current liabilities of RM116,714.00. The total liabilities for FYE 2021 increased to RM15,541,759.00 as compared to RM15,429,591.00 for FYE 2020.

Gammerlite recorded a gross loss in FYE 2021 of RM239,663.00 and a meagre gross profit in FYE 2020 of RM23,560.00. Its administrative expenses are, however, substantial at RM3,403,613.00 for FYE 2021 and RM4,778,540.00 for FYE 2020 which far exceeds the gross profit. This reflects an unhealthy trend. Gammerlite made consecutive losses of RM2,860,916.00 (after tax) for FYE 2021 and RM3,950,802.00 (after tax) for FYE 2020.

Gammerlite’s current assets, after deducting the “Cash and bank balances” is RM15,667,263.00. With the total liabilities at RM15,541,759.00, Gammerlite does not have sufficient current assets to be liquidated to repay the sum of RM8,137,527.96.

Gammerlite has 11 unsatisfied charges in the total sum of RM65,342,300.00. This amount substantially exceeds its current assets of RM32,200,388.00, revenue of RM7,089,794.00 and retained earnings of RM15,413,634.00. In any event, retained earnings are not current assets that Gammerlite can utilise to repay the Adjudicated Sum to JKSB. In paragraph 11 in the “Notes to the Financial Statements” at p 33 of the Financial Report, it is stated that “… the Company will be able to distribute dividends out of its entire retained profits under the single tier tax system.”. Hence, the retained earnings may be distributed as dividends to the shareholders.

Gammerlite’s attempt in comparing its financial position with that of JKSB’s is misconceived because in determining whether a stay of the AD is warranted in the circumstances of this case, the relevant consideration is Gammerlite’s financial status, and not JKSB’s. [45] In the course of submissions, the learned counsels for the parties have relied on case authorities such as Perkapalan Dai Zhun Sdn Bhd v Formosa Plastics Marine Corporation & Ors and another case [2020] 1 LNS 737 and Wabina Constructions & Engineering Sdn Bhd v Fulloop Sdn Bhd and other cases [2022] MLJU 2744 to support the argument for, or against, the finding on Gammerlite’s ability to repay the Adjudicated Sum. However, in my opinion, each case has to be evaluated based on the facts as affirmed by the parties in their affidavits and the documents produced whether in the form of the CCM Search, Financial Report(s) and/ or CTOS Report. [46] After giving utmost consideration to the CCM Search and the Financial Report for FYE 2021 and the parties’ affirmations and submissions on the contents of these documents, I was persuaded that, albeit no application was made by JKSB to set aside the AD under s 15 of the CIPAA, this is an appropriate case for the enforcement of the AD to be stayed in the interest of justice due to the precarious financial position of Gammerlite which raises a real concern as to its ability to repay the Adjudicated Sum if required to do so following the outcome of the arbitration proceedings. [47] In the exercise of my discretion, I was minded to allow the Stay Application in the alternative prayer i.e. to grant a conditional stay whereby the sum of RM8,137,527.93 is to be placed, not in a fixed deposit account jointly held by the parties’ solicitors as stakeholders as prayed, but instead in an interest bearing account to be held by Gammerlite’s solicitors as stakeholders until the final determination of the disputes between the parties in the arbitration proceedings. Initially, I ordered that this is to be done within 30 days from the date of the decision, however, upon the request by JKSB’s counsel, the period of 30 days would start to run only from the date of issuance of the sealed Order of the Court. [48] The order for a conditional stay would achieve the objective of striking a balance between the competing commercial interests of the parties in that, recognition is given to the Adjudicated Sum as reflected in the AD and the fear or concern of Gammerlite’s inability to repay the same is obliviated as the Adjudicated Sum will be earning interest in the stakeholder account (see Punj Lloyd Sdn Bhd v Ramo Industries Pte Ltd & Anor and another case [2019] 11 MLJ 57 at paragraphs 128 - 132, Samsung C & T Corporation UEM Construction JV Sdn Bhd v Eversendai Constructions (M) Sdn Bhd [2022] MLJU 2642 at paragraphs 21 - 25, Mudajaya Corporation Bhd v KWSL Builders Sdn Bhd and another case [2023] MLJU 669 at paragraphs 21 - 25 and Samsung C&T Corporation UEM Construction JV Sdn Bhd v Eversendai Constructions (M) Sdn Bhd [2023] MLJU 2555 at paragraph 28). [49] On a final note, I have allowed the Enforcement Application and the alternative prayer in the Stay Application as I am of the view that, legally there is no impediment for such orders to be made. There are no express prohibitions in the CIPAA to the effect that applications for stay of adjudication decisions must be dismissed if the applications for enforcement of the same adjudication decisions are allowed. Furthermore, an adjudication decision is not merged into a judgment if an application under s 28 CIPAA is allowed since an order obtained pursuant to that provision merely permits the adjudication decision to be enforced as a judgment of the court; it is not a judgment in itself (see paragraphs 23 and 24 in ASM Development (supra), EA Technique (supra) and the decision of this Court in ASM Development (KL) Sdn Bhd v. Econpile (M) Sdn Bhd [2023] MLRHU 939 which involved ASM Development’s application against Econpile and its directors for contempt of court). [50] There are several cases decided by the High Court where the applications to enforce the adjudication decisions and to stay the same have both been allowed (see Kuasatek (M) Sdn Bhd v HCM Engineering Sdn Bhd and other appeals [2018] MLJU 1919, Punj Lloyd (supra), Mudajaya Corporation (supra) and Marvesco Sdn Bhd v Apex Communications Sdn Bhd and another case [2022] MLJU 127). [51] As at the date of hearing (5.9.2023) and decision (27.9.2023) of the Enforcement Application and the Stay Application, the Court and the learned counsels were aware of the decisions by the Court of Appeal as delivered by Mohd Nazlan Ghazali JCA and Abu Bakar Jais JCA in ASM Development (supra; ‘CIPAA 1’) and ASM Development (KL) Sdn Bhd v Econpile (M) Sdn Bhd & other appeals [2023] 4 MLJ 720 (‘CIPAA 2’), respectively, and that the motions by the disgruntled parties for leave to appeal to the Federal Court in respect of the decisions in the applications pursuant to s 16 of the CIPAA have been allowed. [52] In the appeal against the decision in CIPAA 1, one of the questions of law posed to the Federal Court is “Whether an adjudication decision, after having been enforced pursuant to s. 28 CIPAA as an Order of the Court, can be stayed pursuant to s. 16(1)(b) CIPAA”. [53] As at the time of writing these grounds of judgement, the Federal Court has decided, on 3.10.2023, to allow the appeal by Econpile (M) Sdn Bhd in CIPAA 1 and to dismiss the appeal by ASM Development in CIPAA 2. The full grounds of judgment have yet to be released. Conclusion [54] Based on the aforesaid considerations, both the Enforcement Application in O.S. No. 112 and the Stay Application in O.S. No. 87 were allowed. [55] In the circumstances, I exercised my discretion in making no order as to costs for both applications. Dated: 26 December 2023 (ALIZA SULAIMAN) Judge Construction Court 2 High Court Kuala Lumpur Counsels/ Solicitors: For the Plaintiff in O.S. No. 87 and the Defendant in O.S. No. 112: Victoria Loi Tien Fen (Hoo Yee Huan and Kienan Yeo with her) Messrs. Shook Lin & Bok Advocates & Solicitors 20th Floor, AmBank Group Building 55, Jalan Raja Chulan 50200 Kuala Lumpur For the Plaintiff in O.S. No. 112 and the Defendant in O.S. No. 87: Ashok Kandiah (David Soosay and Ashvinderjeet Kaur with him) Messrs. Haris Ibrahim Kandiah Partnership Advocates & Solicitors Suite 12.01, Level 12 Menara Choy Fook On Jalan Yong Shook Lin 46050 Petaling Jaya Selangor Cases, legislation and other sources referred to in the submissions by learned counsels and in the Grounds of Judgment: Cases: Aliran Asia Sdn Bhd v Astaka Padu Sdn Bhd [2021] MLJU 2562 ASM Development (KL) Sdn Bhd v Econpile (M) Sdn Bhd and other appeals [2022] 6 MLJ 392; [2023] 1 CLJ 1 (CA) ASM Development (KL) Sdn Bhd v. Econpile (M) Sdn Bhd [2023] MLRHU 939 (HC) Bumimetro Construction Sdn Bhd v Mayland Universal Sdn Bhd and another appeal [2017] MLJU 2245 CRCC Malaysia Bhd v M101 Entity Sdn Bhd and other cases [2021] MLJU 1305 Duli Yang Amat Mulia Tunku Ibrahim Ismain Ibni Sultan Iskandar Al-Haj v. Datuk Captain Hamzah Mohd Noor & Another Appeal [2009] 4 CLJ 329 EA Technique (M) Sdn Bhd v. Malaysia Marine And Heavy Engineering Sdn Bhd [2021] 1 AMR 594 Genbina Sdn Bhd v Bina Puri Construction Sdn Bhd and another appeal [2019] MLJU 1933; [2020] 2 MLRH 101 Hamidah Fazilah Sdn Bhd v Universiti Tun Hussein Onn Malaysia (UTHM) [2017] 7 MLJ 274 Inai Kiara Sdn Bhd v Puteri Nusantara Sdn Bhd [2019] 2 MLJ 362 (CA) Ireka Engineering & Construction Sdn Bhd v Tri Pacific Engineering Sdn Bhd and another summons [2020] MLJU 548 Ireka Engineering and Construction Sdn Bhd v PWC Corp Sdn Bhd and another appeal [2019] MLJU 35 (CA) Kuasatek (M) Sdn Bhd v HCM Engineering Sdn Bhd and other appeals [2018] MLJU 1919 Leong Keng Chiang v Prema Bonanza Sdn Bhd [2021] MLJU 714 Low Cheng Soon v. TA Securities Sdn Bhd [2003] 1 CLJ 309 Maju Holdings Sdn Bhd v. Spring Energy Sdn Bhd [2020] 1 LNS 1194 Marvesco Sdn Bhd v Apex Communications Sdn Bhd and another case [2022] MLJU 127 Mudajaya Corporation Bhd v KWSL Builders Sdn Bhd and another case [2023] MLJU 669 Ng Choon Mei v Yap Kean Hong [2021] MLJU 1096 Office 2 Go (M) Sdn Bhd v Probina Project Sdn Bhd [2021] MLJU 2009 Pasukhas Sdn Bhd v Empire Multiple Sdn Bhd and another appeal [2019] MLJU 1393 (HC) Perkapalan Dai Zhun Sdn Bhd v Formosa Plastics Marine Corporation & Ors and another case [2020] 1 LNS 737 Pinnacle Supreme Sdn Bhd v. DSG Projects Malaysia Sdn Bhd [2021] 1 LNS 852 Puncak Niaga Construction Sdn Bhd v Mersing Construction & Engineering Sdn Bhd (and 2 Other Originating Summonses) [2022] 1 AMR 249 (HC) Puncak Niaga Construction Sdn Bhd v Mersing Construction & Engineering Sdn Bhd [2022] MLJU 2107 (CA) Punj Lloyd Sdn Bhd v Ramo Industries Sdn Bhd & Anor and another case [2019] 11 MLJ 574 Pwc Corp Sdn Bhd v Ireka Engineering & Construction Sdn Bhd and another appeal [2018] MLJU 152; [2018] 1 LNS 163 RA Suria Sdn Bhd v Cedy Third Contracting and Trading (M) Sdn Bhd and other cases [2023] MLJU 247 Samsung C & T Corporation UEM Construction JV Sdn Bhd v Eversendai Constructions (M) Sdn Bhd [2022] MLJU 2642 Samsung C&T Corporation Uem Construction JV Sdn Bhd v Eversendai Constructions (M) Sdn Bhd [2023] MLJU 2555 Seal Properties (KL) Sdn Bhb v. Wabina Constructions & Engineering Sdn Bhd [2022] 1 LNS 680 Skyworld Development Sdn Bhd v. Zalam Corp Sdn Bhd and Other Appeals [2019] 1 LNS 173 Subang Skypark Sdn Bhd v Arcradius Sdn Bhd [2015] 11 MLJ 818 Sun Plaza Development Sdn Bhd v. Hejingkang Sdn Bhd [2021] 1 LNS 629 Syarikat TD Sdn Bhd v Jeks Engineering Sdn Bhd and another case [2019] MLJU 1754 Terminal Perintis Sdn Bhd v Tan Ngee Hong Construction Sdn Bhd and another case [2017] MLJU 242 Uzma Engineering Sdn Bhd v. Khan Co. Ltd and another summons [2020] 1 LNS 1153 View Esteem Sdn Bhd v Bina Puri Holdings Bhd [2018] 2 MLJ 22; [2019] 5 CLJ 479 Wabina Constructions & Engineering Sdn Bhd v Fulloop Sdn Bhd and other cases [2022] MLJU 2744 YKS Enterprise Sdn Bhd v. Aspirasi Ternama Sdn Bhd [2019] 1 LNS 1697 Zeta Letrik Sdn Bhd v JAKS Sdn Bhd and other cases [2022] MLJU 2734 Legislation: Construction Industry Payment and Adjudication Act 2012, ss 5, 13,16 & 28 Rules of Court 2012, O. 1A, O. 2, O. 32, O. 69A rr. 2, 3, 4 and 5 & O. 92 r.