Kerjaya Prospek (M) Sdn Bhd v Apple 99 Development Sdn Bhd (BA-24C-31-05/2025)

Schedule

Schedule 1C of this Agreement ; Interest : Simple interest based on Malayan Banking Berhad’s Base Lending Rate plus one (1) percent, payable by the Employer on all the outstanding amount due and owing to the Contractor, immediately a day after the Revised Completion Date ; Interim Period : the period between the issuance of the CCC for the Hotel till the end of the Expiry Date; Operation Losses : as defined in Clause 6.2(c)(iv); Proprietor : City Mall Sdn Bhd (Company No. 198301005224 (99626-A) ) ; Relevant Land: the piece of land held under master title Geran 62362, Lot 12015, Kawasan Bandar XXl, District of Melaka, State of Melaka. Revised Completion : 31st October 2020, subject further to Date Clause 23.0 under the PAM contract, if any; Residual Contract: the sum of Ringgit Malaysia One Sum Hundred Sixty Million Five Hundred Seventy One Thousand Six Hundred Forty-Eight and Eight cents only (RM 156, 571, 648-08), being the agreed balance due and payable by the Employer to the Contractor under the PAM contract for the completion of the Works; Unsold Units : the unsold serviced suites (including those sold on the Agreement Date but terminated at the point of and Event of Default) forming part of the Project, if any, at the point of an Event of Default as defined under Clause 9; Unsold Units SPA: the undated sale and purchase agreement(s) in favour of the Contractor in respect of the Unsold Units; Works: as define under Recital 2.1. 6. Settlement of the Residual Contract Sum, Operation Losses and/or interest 6.1 In consideration of the Contractor resuming and completing the Works, as described in Clause 7, and to secure the Employer’s obligation to pay the Residual Contract Sum, Operating Losses and/or Interest, if any, the Employer hereby agree that: (a) on/before the Agreement Date, the Employer shall procure or execute the following in favour of/for the benefit of the Contractor: (i) it will secure the Existing Chargee’s agreement to: (A) allow the Employer to create a fourth (4th) legal charge on the Relevant Land in favour of the Contractor (“4th Charge”) to secure the Contractor’s rights and interests over the Hotel as security for the Employer’s payment of the Residual Contract Sum, Operating Lossess and/or Interest, if any ; (B) allow the 4th Charge to rank pari passu in point of priority and security with the Existing Charges ; vide a Deed of Priorities in such form and substance as may be agreed to between the Empoloyer, Existing Chargee and the Contractor; (ii) execute the Hotel SPA, which is to be held in escrow by the Contractor’s Solicitors as a stakeholder and dealt with in accordance with Clause 9A.1(b)(i): (iii) the Guarantee; (iv) the Corporate Guarantee; (v) the creation of 4th Charge at the relevant land office; and (vi) such other future security documents which may be required from time to time by the Contractor to be provided by the Employer in place of any of the security Documents set out in Clause 6.1(a)(i) to (v) or as further security. (b) the Project Management shall be handled by the Contractor in its absolute discretion; (c) it shall pay Interest to the Contractor on the outstanding Residual Contract Sum immediately a day after the Revised Completion Date; (d) it shall also repay the Residual Contract Sum, Operation Losses and Interest, if any, in full without any deduction or set-off or withholding at any time on/before the Expiry Period. For the avoidance of doubt, the Employer shall also continue to pay the Contractor Interest on any of the outstanding Residual Contract sum and/or the Operating Losses, if any, from its due date till payment in full; 6.2 The Residual Contract Sum, the Operating Losses and Interest, if any, shall, where applicable, be settled and paid by the Employer to the Contractor in full without any deduction or set-off in the following manner: (a) all proceeds paid into the HDA Account shall, to the extent that it is allowed under the HDA and the regulations thereto, only be utilised towards payment of the Residual Contract Sum and the Existing Facility. To this end, the Employer undertakes not to submit to the Existing Chargee any claims on the HDA Account in favour of any person other than the Contractor and the Existing Chargee, including themselves, until full settlement of the Residual Contract Sum; (b) the parties shall, on a best effort basis, each seek to find a third party to purchase the Hotel (“Third Party Purchaser”) for no less than Ringgit Malaysia One Hundred Twenty Million (RM 120, 000, 000-00) before the end of the Expiry Period; (c) from the issuance of the CCC for the Hotel till the end of the Expiry Period (“Interim Period”), assuming the Hotel has yet to be sold to the Third Party Purchaser, the parties agree that: (iii) it shall be the Employer’s responsibility to provide any funds required by the Hotel Operator for the operations of the Hotel during the Interim Period. However, the contractor may, at its sole discretion contribute funds towards the operations of the Hotel during the Interim Period; (iv) if at the end of the Interim Period or the sale of the Hotel, whether by way of private treaty or foreclosure, whichever is the later, the Contractor suffers any losses due to monies paid by the Contractor pursuant to Clause 6.2 (c) (iii) for advancements towards the cost of operating the Hotel, having taken into account any profits received pursuant to Clause 6.2 (c) (ii), such losses shall be deemed to be a debt due and owing by Employer to the Contractor that is in addition to the Residual Contract Sum (“Operating Losses”) under the terms of this Agreement; (d) the Employer shall continue to endeavour to sell, on a best effort basis, the Unsold Units before the end of the Expiry Period, the proceeds of which are to be deposited into the HDA Account and dealt with in accordance with Clause 6.2(a) above. For the avoidance of doubts, all serviced suites must be sold for cash basis and on arm’s length transaction and the Employer shall not be permitted to contra any of its debts nor shall the Employer be entitled to enter into any set-off arrangement through its Unsold Units or any other right whatsoever in respect of the Relevant Land, the Unsold Units the Hotel and/or any part thereof to any 3rd Party, person, firm or company during the subsistence of this agreement (“Employer’s 3rd Party Contra-Arrangement). The Employer shall fully indemnify the Contractor should there be any shortfall of collectible and/or receivable amount as represented in Schedule 1E of the Agreement; (e) should either the Existing Chargee or the Contractor receive monies in excess of the debt owed to them in respect of the Existing Facility, the Residual Contract Sum, Operating Losses and/or Interest, as the case may be, pursuant to Clause 6.2(a) to(c) (“Surplus Monies”), the parties agree that the party who receives the Surplus Monies, if any, shall pay the Surplus Monies to the other party, be it the Existing Chargee or the Contractor, as the case may be, to the extent necessary to achieve full settlement of the Existing Facility, the Residual Contract Sum Operating Losses and/or Interest, as the case may be; (f) only where the Existing Facility, the Residual Contract Sum, Operating Losses and/or Interest, if any, have been settled in full shall any excess monies be paid to the Employer. 7. Resumption of the Project 7.4 For the sake of clarity, the parties agree and confirm that unless otherwise specifically modified and/or amended by the terms of this Agreement, all terms and conditions in the PAM Contract as stated therein shall continue to be applicable and bind the parties. 9. Events of Default 9.1 For so long as any part of the Residual Contract Sum, Operating Losses and/or Interest, if any, shall remain due and owning by the Employer to the Contractor, in the event of the happening of any of the following: 9.1.1 the Residual Contract sum, Operating Losses and/or Interest, if any, is not settled in full by the Expiry Period; (collectively “Events of Defaults” and individually “Event of Default”) 9A. Consequences of an Event of Default by the Employer 9A.1 In the event the Employer commits any Event of Default as outlined under Clause 9, then at once or at any time thereafter, the Contractor may, at its absolute discretion, by written notice to the Employer, declare the outstanding of the Residual Contract Sum, Operating Losses and/or Interest, if any, then owing by the Employer to the Contractor to be immediately due and payable whereupon: (a) without prejudice to the Contractor rights under Clause 9A.1(b) and (c), the Contractor may exercise its rights under the Corporate Guarantee and the Guarantee against the Corporate Guarantor and the Guarantor respectively; (b) should the Hotel yet be sold to a third party pursuant to Clause 6.2(b), the Contractor may (but not obliged to) exercise any of the following options, to either; (i) utilise the Hotel SPA to perfect the sale and transfer of the Hotel to the Contractor at the agreed purchase consideration of Ringgit Malaysia One Hundred Twenty Million (RM120,000,000-00), or (ii) … (iii) where the Contractor exercises its right under Clause 9A.1(b)(i), the Contractor shall pay the Existing Chargee not less than Ringgit Malaysia Sixty Million (RM60,000,000-00) towards settlement of the outstanding under the Existing Facility in exchange for a waiver and disclaimer/discharge of charge, as the case may be, of the Hotel from the Existing Chargee in respect of the Existing Charges; (c) should there be any Unsold Units, the following shall occur: (i) the Employer shall execute or cause to be executed the Unsold Units SPA and memorandums of transfer for the Unsold Units and deliver or cause to be delivered the said documents to the Contractor’s Solicitors as stakeholder to be dealt with in accordance with the terms of this Agreement; (ii) the Contractor shall perfect the sale and transfer of the Unsold Units SPA at Fifty percent (50%) of their value based on the Employer’s Advertising Permit for the Project relating to the Unsold Units, the said value of which shall be deemed to go towards settlement of the outstanding of the Residual Contract Sum, Operating Losses and/or interest, if any, subject to the Contractor’s redemption of the Unsold Units from the Existing Chargee. (d) Should either the Existing Chargee or the Contractor receive monies in excess of the debt owed to them in respect of the Existing Facility, the Residual Contract Sum, Operating Losses and/or Interest, as the case may be, pursuant to Clause 9A.1(a) to (c) (“Surplus Monies”), the parties agree that the party who receives the Surplus Monies, if any, shall pay the Surplus Monies to the other party, be it necessary to achieve full settlement of the Existing Facility, the Residual Contract Sum, Operating Losses and/or interest, if any; (e) only where the Existing Facility, the Residual Contract Sum, Operating Losses and/or Interest, if any, have been settled in full shall any excess monies be paid to the Employer.” [emphasis mine] 9. The relevant chronology of events subsequent to the SA were:- (i) 17.12.2021 : CCC for the Project was issued (ii) 1.4.2023 : CPC for the Works was issued (iii) 28.4.2023 : Final Account was issued and accepted by all parties 10. Based on the above dates and in accordance with the provisions of the SA, the Expiry Period was on 16.12.2023 (2 years from the issuance date of the CCC). 11. It is pertinent to note that the SA made specific provisions for the payment of, inter alia, the Residual Contract Sum at Clause 6.2 where all proceeds paid into the HDA Account shall be utilised towards payment of the Residual Contract Sum and the Existing Facility. 12. Clause 9.1.1 further provides that an event of default is triggered when, inter alia, the Residual Contract Sum is not paid in full by the Expiry Period. 13. It is a common fact by both parties that the Hotel remained unsold by the Expiry Period and the 4th Charge in favour of Kerjaya Prospek was not created. 14. According to Kerjaya Prospek, there was a balance of the Residual Contract Sum amounting to RM105,135,885.20 due from Apple 99 as at the Expiry Period. Civil Action at the Shah Alam High Court vide BA-22NCVC-340- 08/2024 (“Civil Suit”) 15. As Kerjaya Prospek did not receive payment of the Residual Contract Sum by the Expiry Date, Kerjaya Prospek issued the notice dated 18.12.2023 under Clause 9.1 of the SA, giving Apple 99 60 days to remedy the said breach. [paragraph 18 Statement of Claim, Exhibit BKL-7, Enclosure 2 Setting Aside] 16. However, no payment was made by Apple 99 to Kerjaya Prospek. 17. Thus, Kerjaya Prospek initiated the Civil Suit on 22.8.2024 seeking to specifically enforce the terms at Clause 9A.1(b)(i) of the SA where in default of receiving the full payment of the Residual Contract Sum from Apple 99, the executed of the Sale & Purchase Agreement of the Hotel was to take effect and Apple 99 was to transfer the Hotel to Kerjaya Prospek at an agreed purchase consideration of RM120,000,000.00. 18. The transfer of the Hotel to Kerjaya Prospek is only subject to one condition : viz. condition at Clause 9A.1(b)(iii) that Kerjaya Prospek is to pay the Existing Chargee not less than RM60,000,000.00 to receive a waiver and disclaimer/ discharge of charge, as the case may be, of the Hotel from the Existing Chargee. 19. I hasten to add that Kerjaya Prospek has also made an alternative prayer for damages of RM105,135,885.20 in the Civil Suit. Adjudication Proceedings 20. Whilst the Civil Suit was in its infancy, Kerjaya Prospek initiated adjudication proceedings on 27.11.2024 , a mere 16 days after Apple 99 served their Defence and Counterclaim in the Civil Suit, under CIPAA claiming an amount of RM105,135,885.20 as due under the Final Account dated 28.4.2023 issued pursuant to the Construction Contract. [paragraphs 15-19 Adjudication Claim, Exhibit BKL-8, Enclosure 8 Setting Aside, pages 10-12]. 21. In the adjudication proceedings Apple 99 mounted a preliminary jurisdictional challenge on the grounds, inter alia, that as Kerjaya Prospek has elected to pursue its claim for specific performance in the Civil Suit, Kerjaya Prospek is estopped from bringing the same dispute to the adjudication process for monetary claim under CIPAA. 22. The Adjudicator rejected the jurisdictional challenge. He was of the view that he had jurisdiction on the following 3 grounds :- (i) the Adjudicator agreed with Kerjaya Prospek that there was nothing in the SA which deprived Kerjaya Prospek of its rights to recover the sums due for work done under the Project; (ii) the Adjudicator was of the view that “(T)he underlying dispute under the Suit and CIPAA remains the amount which should be paid to the Claimant for work done. CIPAA allows contractors temporary relief to facilitate cashflow and I do not find anything objectionable whether in terms of jurisdiction or on the merits for the Claimant to bring that claim to adjudication to obtain temporary relief even though Suit 340 seeks primary relief for specific performance.” (iii) the Adjudicator also was of the view that S. 37(1) of CIPAA allows the dispute to be referred concurrently to adjudication, arbitration or the court. 23. The Adjudicator proceeded to deliver his Adjudication Decision on 9.5.2025 (“AD”) granting Kerjaya Prospek RM75,460,851.16, interest, costs and the adjudicator’s fees and expenses. OS 30 24. Apple 99 immediately launched their application to set aside the AD and premised their application on S. 15 (b) & (d) of CIPAA in that :- (i) there has been a denial of natural justice when the Adjudicator failed to address his mind whether he had jurisdiction in the first place as Kerjaya Prospek was seeking both monetary relief under CIPAA and equitable relief from the Civil Suit, both reliefs emanating from the same dispute; and (ii) the adjudicator has acted in excess of jurisdiction. 25. The cause papers relevant for OS 30 are as follows :- (i) the Affidavit in Support affirmed by Boo Kuang Loon on 23.5.2025 (Encl.s 2- 9 Setting Aside); (ii) the Affidavit in Reply affirmed by Gan Jui Siang on 26.6.2025 (Encl. 14 Setting Aside); (iii) the Reply Affidavit affirmed by Boo Kuang Loon on 11.7.2025. (Encl. 15 Setting Aside). OS 31 26. Kerjaya Prospek, on the other hand, sought to enforce the AD based on S. 28, CIPAA as the Adjudicated Amount remained unpaid by Apple 99 and the AD was neither set aside not stayed. 27. The cause papers relevant in this application are :- (i) the Supporting Affidavit affirmed by Gan Jui Siang on 30.5.2025 (Encl. 2 Enforcement); (ii) the Affidavit in Reply affirmed by Boo Kuang Loo on 1.7.2025 (Encl. 5 Enforcement); (iii) the Reply Affidavit by Gan Jui Siang on 15.7.2025 (Encl. 7 Enforcement). Findings of the Court Setting Aside Application (OS 30) 28. The Federal Court in View Esteem Sdn Bhd v Bina Puri Holdings Berhad (2018) 2 MLJ 22 cited with approval the decision of Terminal Perintis Sdn Bhd v Tan Ngee Hong Construction Sdn Bhd (2017) MLJU 242, in that there is a need to differentiate between the jurisdictional challenge raised, i.e between core jurisdiction, competence jurisdiction or contingent jurisdiction challenge. In Terminal Perintis, Lee Swee Seng J (as he then was) held: “[72] Core jurisdiction would be the question of whether the subject matter of the dispute is one which the Act has conferred on the Adjudicator…” 29. Based on the grounds advanced by Apple 99, it is the Adjudicator’s core jurisdiction that was being challenged. 30. Thus, in order to resolve the question of whether core jurisdiction in this case have been made out, it behoves on this Court to refer to CIPAA where the long title of CIPAA is stated to be : “The function of CIPAA is to facilitate regular and timely payment, to provide a mechanism for speedy dispute resolution through adjudication, to provide remedies for the recovery of payment in the construction industry.” 31. Under S.4 of CIPAA, the following words are interpreted as: “payment” a payment for work done or services rendered under the express terms of a construction contract; “unpaid party” a party who claims payment of a sum which has not been paid in whole or in part under a construction contract; “non-paying party” a party against whom a payment claim is made pursuant to a construction contract. 32. In OS 30, Apple 99 is challenging the Adjudicator’s core jurisdiction in determining the financial relief sought by Kerjaya Prospek in the adjudication proceedings, and as the SA explicitly provided for the payment of the Residual Contract Sum in an unconventional manner, Apple 99 contended that the Adjudicator lacked jurisdiction. [paragraphs 57(a) & (d), Enclosure 2 Setting Aside, page 47 & 50] 33. This Court will now embark to determine whether the Adjudicator has the original source of jurisdiction, without which the power and authority to adjudicate and decide will not be bestowed on the Adjudicator. In short, whether the Adjudicator is clothed with the necessary authority. 34. It is pertinent at this juncture, to return to the SA and the objective the SA was entered by parties. 35. At Clause 3 of the SA, parties have unequivocally agreed with the provision that: “In reliance on the representations, warranties, covenants, agreements and undertakings of the Employer in this Agreement and subject to strictly to there being no breach of any terms and conditions of this Agreement by the Employer in whatsoever manner, the Contractor hereby agrees to enter into this Agreement to set out the manner in which the Residual Contract Sum, Operating Losses and/or Interest, if any, is to be settled.” 36. Whilst Clause 6 of the SA dealt with the payment mechanism on how the Residual Contract Sum, Operating Losses and/or Interest, if any, was to be settled by Apple 99 to Kerjaya Prospek, Clause 9A dealt with the default mechanism in the event of default of such payment, i.e. by the transfer of the Hotel and the Unsold Units to Kerjaya Prospek. 37. It is the opinion of this Court that the SA has taken out the payment amount, payment mechanism and default mechanism from the Construction Contract between parties and as a result, not only the remaining contract sum under the Construction Contract became determined (which is termed as the Residual Contract Sum in the SA), the payment of which was also agreed by parties to be outside the scope and purview of the Construction Contract (by virtue of Clause 6 of the SA). 38. Putting it another way, this Court finds that Apple 99 is expressly relieved from its contractual duty to make any further payments due to Kerjaya Prospek under the Construction Contract, post SA. 39. Further based on Clause 9A of the SA Kerjaya Prospek has agreed that its only recourse, if there was a default in the payment of the Residual Contract Sum by the Expiry Period, is to take a transfer of the Hotel in its favour (subject to the payment of RM60,000,000.00 to the Existing Chargee) and the Unsold Units (subject to the redemption of the Unsold Units from the Existing Chargee). 40. This is evident from the words employed at Clause 9A.1 :- “In the event the Employer commits any Event of Default as outlined under Clause 9, then at once or at any time thereafter, the Contractor may, at its absolute discretion, by written notice to the Employer, declare the outstanding of the Residual Contract Sum, Operating Losses and/or Interest, if any, then owing by the Employer to the Contractor to be immediately due and payable whereupon :- “whereupon” must necessarily mean that the subsequent sub-paragraphs thereafter would ensue/ would apply. 41. This position between parties was further fortified by Kerjaya Prospek’s own action in initiating the Civil Suit for the remedy of specific performance which was triggered by the non-payment of the outstanding balance of the Residual Contract Sum. 42. Additionally, by initiating the Civil Suit, this Court accepts that Kerjaya Prospek has, upon Apple 99’s default in settling the Residual Contract Sum by the Expiry Period, unequivocally elected to obtain the transfer of the Hotel in its favour by invoking the remedy of specific performance of Clause 9A.1(b)(i), subject to Clause 9A.1(b)(iii), of the SA. 43. Thereafter, to have the outstanding Residual Contract Sum adjudicated under CIPAA, Kerjaya Prospek has made an attempt to seek further relief from Apple 99, a relief which is inconsistent in nature to the one sought in the Civil Suit. 44. As this Court has earlier made a finding that Kerjaya Prospek is only entitled to have the Hotel and Unsold Units transferred to it in the event of default by Apple 99, I further hold that there is no “payment” (as defined by S. 4 of CIPAA) due to Kerjaya Prospek under the Construction Contract which consequently took the dispute between Kerjaya Prospek and Apple 99 outside the ambit of CIPAA. 45. As such, I find that the Adjudicator has no core jurisdiction under CIPAA to begin with as the dispute is not a dispute for “payment” as defined in S.4 of CIPAA, the dispute for the payment of the Residual Contract Sum fell outside the core jurisdiction of the Adjudicator. 46. In any event, with the prior election by Kerjaya Prospek to the remedy of specific performance in the Civil Suit, Kerjaya Prospek no longer has the option to pursue monetary claim against Apple 99. This is in line with the ratio in Kelana Megah Development Sdn Bhd v Kerajaan Negeri Johor and anor appeal (2016) 8 CLJ 804 where the Court of Appeal held: “[18] Reference in this connection may be made to the case of Bato Bagi & Ors v Kerajaan Negeri Sarawak and another appeal [2011] 6 MLJ 297. In that case, the Federal Court cited with approval, the English Court of Appeal’s decision in Verschures Creameries, Limited v Hull And Netherlands Steamship Company, Limited [1921] 2 K.B. 608 wherein Scrutton L.J held— “A plaintiff is not permitted to “approbate and reprobate.” The phrase is apparently borrowed from the Scotch law, where it is used to express the principle embodied in our doctrine of election – namely, that no party can accept and reject the same instrument: Ker v. Wauchope (1); Douglas-Menzies v. Umphelby (2). The doctrine of election is not however confined to instruments. A person cannot say at one time that a transaction is valid and thereby obtain some advantage, to which he could only be entitled on the footing that it is valid, and then turn round and say it is void for the purpose of securing some other advantage. That is to approbate and reprobate the transaction.” 47. Based on the facts made available to this Court, it is evident that Kerjaya Prospek has found it fitting to launch 2 proceedings emanating from one dispute, the first of which is the Civil Suit, under which Kerjaya Prospek was seeking for the transfer of the Hotel with a market value of RM160,000,000.00 as at July 2024 [paragraphs 41- 44 of Apple 99’s Defence And Counterclaim dated 11.10.2024 in the Civil Suit, exhibit BKL-7, Enclosure 2 Setting Aside, page 245] and the other under CIPAA, for the same dispute, i.e the outstanding Residual Contract Sum amounting to RM105,135,885.20. 48. Kerjaya Prospek cannot and should not be allowed to utilise the terms in the Construction Contract (i.e the issuance of Final Account) to submit an adjudication claim for “payment” thereunder, having accepted, performed and claimed under the SA. The inconsistent conduct of Kerjaya Prospek must be deprecated and thus, rejected. 49. On the Court making a finding of lack of jurisdiction at this juncture, I can do no better than to refer to the Federal Court case of View Esteem (supra.) where it was held as follows: “[18] We are in agreement with the contention of the appellant that the error in the judgment of the Court of Appeal is the failure to recognise that the jurisdictional complaint in the present case is that the CIPAA did not apply at all because of s 41, and not an ‘excess of jurisdiction’ under s 15, on the basis that CIPAA applied. It is what is termed as an absolute lack of jurisdiction that may be taken up at any time. On this point, the Singapore High Court case of Chip Hup Hup Kee Construction Pte Ltd v Ssangyong Engineering & Construction Co Ltd [2010] 1 SLR 658 had this to say: Thus, it seemed that when what was being alleged was an absolute lack of jurisdiction on the part of a particular tribunal or court to hear a particular dispute, ‘jurisdiction’ being used in the strict sense of capacity to hear, then if the tribunal concerned does not have such jurisdiction, any party to the dispute may assert the lack of jurisdiction at any stage and can never be held to be estopped from doing so or to have waived its right of protest. On the contrary, when it is a question of irregularity of procedure or contingent jurisdiction or non-compliance with a statutory condition precedent to the validity of a step in the litigation, such irregularity or non-compliance can be waived because the effect of the waiver would not be to create or confer any jurisdiction that did not previously exist.” 50. In light of the above analysis and deliberation, I am of the view that Apple 99 has successfully shown that there was lack of core jurisdiction on the part of the Adjudicator and hence, I am constrained to allow the setting aside of the Adjudication Decision. Enforcement Application (OS 31) 51. S.28(1) of CIPAA states as follows: “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. 52. In Inai Kiara Sdn Bhd v Puteri Nusantara Sdn Bhd (2019) 2 CLJ 229, the Court of Appeal held that the court may exercise its discretion to grant leave under S.28(1) and (2) of CIPAA to enforce an adjudication decision if 3 conditions are met :- (i) the adjudication decision has been made in favour of the party applying for leave; (ii) the party against whom an adjudication decision has been made, has failed to pay the adjudicated amount on the date specified in the adjudication decision; and (iii) there is no prohibition on the court’s discretionary power to grant leave to enforce the adjudication decision. 53. As the AD has been set aside, there is no adjudication decision to be enforced and as such OS 31 is dismissed. Conclusion 54. Based on the analysis and finding above, the following orders were made on 17.10.2025 :- (i) OS 30 is allowed with costs of RM15,000.00 to be paid by Kerjaya Prospek to Apple 99, subject to allocator; (ii) OS 31 is dismissed with costs of RM5,000.00 to be paid by Kerjaya Prospek to Apple 99. Dated : 11 November 2025 - Signed - ………………………………………. SHAHRIZA ZALINA BINTI ABDUL SHUKOR JUDICIAL COMMISSIONER HIGH COURT OF MALAYA SHAH ALAM For the Plaintiff : Vishal V Kumar (Prem Sahiil Anghavi & Marissa Nazeera Binti Mohd Mahamud) (Messrs. James Monteiro) For the Defendant : Chan Kheng Hoe (Pung Kian Bang) (Messrs. Kheng Hoe & Lee Yuen)