Martego Sdn. Bhd . ... Appellant v Arkitek Meor & Chew Sdn. Bhd. ... Respondent (W-02(C)(A)-1496-08/2016)

(b) Whether statutory adjudication in other jurisdictions makes a distinction between final bills and interim bills. [2] The 1st appeal is Martego’s appeal to set aside the adjudication under section 15 of CIPAA 2012. The 2nd appeal is also Martego’s appeal to set aside the enforcement order made by the learned High Court judge in respect of the adjudication decision pursuant to section 28 of CIPAA

If the 1st appeal is allowed, it will follow that the 2nd appeal must be allowed and the enforcement order given under section 28 will have to be set aside. [3] It was contended before us by the respondent to both appeals that it was wrong for this court to direct the parties to submit on the two issues related to jurisdiction, which was not raised and argued by the parties in the court below. And heavily relied on the Federal Court case of Dato’ Tan Chin Who v Dato’ Yalumallai @ M Ramalingam s/o V Muthusamy [2016] 5 MLJ 590 and RHB Bank Bhd (substitution Kwong Yik Bank Bhd) v Kwan Chew Holdings Sdn Bhd [2010] 2 MLJ 188. I take the view that both cases are good law but there are a number of exceptions. That is to say, the Federal Court in Dato’ Tan’s case itself recognises the exceptions. His Lordship Arifin Zakaria CJ had this to say: “[14] While it is true that the Court of Appeal can consider a point not expressly taken in the memorandum of appeal or argued in the court below based on the broad wording of s 69(4) of the CJA and r 18(2) of the Rules of the Court of Appeal 1994 , this is subject to the overriding discretion of the 4 court to do justice. Where the justice of the case requires a departure from the rule that parties should be bound by the grounds in the memorandum of appeal, the court may allow a new point to be argued (see Luggage Distributors (M) Sdn Bhd v Tan Hor Teng & Anor [1995] 1 MLJ 719; [1995] 3 CLJ 520; Cheow Chew Khoon (t/a Cathay Hotel) v Abdul Johari bin Abdul Rahman [1995] 1 MLJ 457; [1995] 4 CLJ 127; Mohd Azam Shuja & Ors v United Malayan Banking Corporation Bhd [1995] 2 MLJ 851; [1995] 1 CLJ 861). In so doing, it is however not the duty of the Court of Appeal, to invent or create a cause of action or a defence under the guise of doing justice for the parties as it is also trite that parties in litigation are bound by the four corners of their pleadings (see RHB Bank Bhd (substituting Kwong Yik Bank Bhd) v Kwan Chew Holdings Sdn Bhd [2010] 2 MLJ 188). [15] What happened in the present case was that the Court of Appeal in the purported exercise of its discretion under s 69(4) of the CJA had substituted the defence of qualified privilege with that of absolute privilege, a defence which was never pleaded nor raised before the High Court. From the authorities set out earlier and the plain reading of s 69(4) of the CJA, the power of the Court of Appeal is only to draw inferences of facts and to make an order which ought to have been made by the High Court. The power is essentially limited to making of inferences of facts from the facts as found by the High Court. …”. [4] The question posed by the court is related to jurisdiction and in consequence both the cases will not apply. Whilst it is trite that as a general rule, a new point cannot be raised in an appeal, which was not pleaded or argued in the courts below, this rule is subject to more than two exceptions. Some of them are as follows:-

(i) first, a point of law could be taken up for the first time on appeal if it raised a question of jurisdiction; 5

(a) Martego engaged the respondent who were architects as the Project Architect for the Project.

(b) The clear provision of the Architect Act and/or Rules requires that a dispute as to fees of the architect must be referred to arbitration.

(c) Martego terminated the respondent before the completion of the contractual obligation of the respondent. Respondent accepted the termination and filed a claim under CIPAA 2012 for professional fees and services rendered.

(d) The matter proceeded for adjudication under CIPAA 2012. The adjudicator granted a sum of RM258,550.00 only with pre-award interest, post-award interest and costs of RM20,585.00 to the respondent.

(e) To set aside the decision, Martego before the High Court had relied on two grounds, namely that (i) the adjudicator had acted in excess of jurisdiction; (ii) there has been a breach of 8 natural justice as the adjudicator failed to hold an oral hearing despite three separate requests from Martego. [8] The Memorandum of Appeal in respect of the 1st appeal reads as follows: “1. The Learned Judge erred in law and in fact in dismissing the Appellant's application in Kuala Lumpur High Court Originating Summons No.: WA-24C-39-06/2016 to set aside the Adjudication Decision dated 14.4.2016 made by Ir. Lai Sze Ching ("Adjudication Decision"). Statutory Interpretation of CIPAA

The learned Judge erred in law and in fact in holding that the Construction Industry Payment and Adjudication Act 2012 (CIPAA) applies to all parties who provide construction consultancy services in relation to construction work when in fact the Preamble of CIPAA specifically sets out the objectives of CIPAA as being connected to or in relation to recovery of payment in the construction industry.

The learned Judge erred in law and in fact in holding that the definition of 'construction consultancy contract' under Section 4 of CIPAA is inclusive such that the words appearing after 'include' must mean either a single component of the services referred to, or a combination of all or a few of the services referred to when in feet, the said definition under Section 4 of CIPAA is exhaustive.

The learned Judge erred in law and in fact in holding that an expansive reading must be given to the definition section (under Section 4 of CIPAA) where as far as the purpose of the CIPAA is concerned the High Court in Uda Holdings Bhd. v Bisraya Construction Sdn. Bhd. [2015] 5 CLJ 527 held that the definitions found in Section 4 of CIPAA are "unusually definitive and 9 exhaustive in their defines as opposed to the practice of drafting general or non-exhaustive definitions".

The learned Judge erred in law and in fact in holding that to require one to say that the definition of 'construction consultancy contract' under Section 4 of CIPAA has a reference only to 'Design and Build' contracts would be to put an undue strain to the definition of the term, when in fact, that reference was intended by Parliament.

The learned Judge erred in law and in fact in presuming the existence of a casus omissus in the interpretation of the definition of 'construction consultancy contract' under Section 4 of CIPAA which is contrary to all rules of construction when in fact, the definition under Section 4 is plain and unambiguous.

The learned Judge erred in law and in fact in construing the phrase construction consultancy contract' under Section 4 of CIPAA disjunctively rather than conjunctively despite the use of the operative phrase '...and includes...' in the said provision.

The learned Judge erred in law and in fact in holding that the term 'architectural work' is to be read as a definition of 'construction consultancy contract' under Section 4 of CIPAA when it is in fact an extension of the phrase 'construction consultancy contract'.

The learned Judge erred in law and in fact in according a broad definition of 'construction consultancy contract' pursuant to Section 4 of CIPAA to include the provision of architectural consultancy services when in fact the definitions in Section 4 have a particular and peculiar but limited meaning and understanding.

The learned Judge erred in law and in fact in holding that the Contract satisfies all the requirements of a 'construction consultancy contract' under Section 4 of CIPAA. 10 The Contract between the Appellant and Respondent

The learned Judge erred in law and in fact in holding that the Respondent was able to avail itself of the remedies under CIPAA when in fact the Letter of Appointment dated 22.8.2014 ("Contract") between the Appellant and the Respondent is not a construction contract which triggers the application of CIPAA.

The learned Judge erred in law and in fact in failing to consider that the Respondent's scope of services under the Contract was for 'contract administration' pursuant to Section 3(b) of the Contract thereby rendering the Respondent a 'contract administrator' per the definition of Section 4 of

The learned Judge erred in law and in fact in failing to give the term 'contract administration' its plain meaning when the language in the Contract is unequivocal, unambiguous and needs no explanation. The Architects Act 1967 (AA) and the Architects Rules 1966 (AR)

The learned Judge erred in law and in fact in failing to consider the mandatory dispute resolution mechanism under Sub-Rule 24, Third Schedule, Part One of AR which provides that disputes between a professional architect and his client which require settlement shall be by way of arbitration.

The learned Judge erred in law and in fact in applying the established rules of construction expressed by the latin maxim generalibus specialia non derogant which provides that the specific legislation or the special provision in the specific legislation, namely the AR read together with AA, will exclude the operation of the general legislation, namely CIPAA.

The learned Judge erred in law and in fact in holding that the Respondent was entitled to avail itself to the adjudication process under 11 CIPAA in contravention of the mandatory dispute resolution mechanism by arbitration provided under the AR.

The learned Judge erred in law and in fact in failing to give effect to the intentions of the Parliament by holding that merely because there is a procedure for an architect or his client to proceed with mediation and arbitration that by itself should not exclude them from the adjudication process under CIPAA.

The learned Judge erred in law and in fact in failing to consider that the Contract between the Respondent and Appellant is a contract between a professional architect and his client which falls under the purview of the AA read together with the AR.

The learned Judge erred in law and in fact in failing to consider that the appointment of an adjudicator under CIPAA falls within the jurisdiction of the KLRCA whereas the appointment of an arbitrator under the AA read together with the AR vests with the President of the Board of Architects Malaysia.

The learned Judge erred in law and in fact in holding that parties are at liberty to have the procedure under the AR running concurrently with adjudication when in fact, the use of the word 'shall' in Sub-Rule 24(1) of the AR makes it unequivocal in its requirement that the parties refer their dispute to arbitration.

The learned Judge erred in law and in fact in holding that there is nothing to prevent the Appellant from proceeding with arbitration under the AR even after the adjudication process is over as the language used in Sub-Rule 24(1) of the AR makes it mandatory, rather than directory, that arbitration must be used as the mode of dispute resolution.

The learned Judge erred in law and in fact in failing to consider and/or apply established principles of law that where a statute creates a right and, "in plain language, gives a specific remedy or appoints a specific tribunal for its 12 enforcement, a party seeking to enforce the right must resort to that remedy or that tribunal and not to others. Natural Justice

The learned Judge erred in law and in fact in finding that there was no breach of natural justice from the Adjudicator's failure to hold an oral hearing despite the Appellant's 3 requests for an oral hearing to present its case and meet the case against it. Appellate Interference

The learned Judge erred in law and in fact by making findings that a proper and thorough judicial appreciation of the factual matrix and the law would not have lent itself to, and fell into plain and obvious error, without a proper appraisal of the said factual matrix and submission of the law tendered, and consequently by erroneously dismissing the Appellant's claim with costs.” [9] The Memorandum of Appeal for the 2nd appeal reads as follows: “1. The Learned Judge erred in law and in fact in allowing the Respondent's application in Kuala Lumpur High Court Originating Summons No.: WA-24C-47-06/2016 to enforce the Adjudication Decision dated 14.4.2016 made by Lai Sze Ching ("Adjudication Decision"). Statutory Interpretation of CIPAA

The learned Judge erred in law and in fact in holding that the Construction Industry Payment and Adjudication Act 2012 (CIPAA) applies to all parties who provide construction consultancy services in relation to construction work when in fact the Preamble of CIPAA specifically sets out the objectives of CIPAA as being connected to or in relation to recovery of payment in the construction industry. 13

The learned Judge erred in law and in fact in holding that the definition of 'construction consultancy contract' under Section 4 of CIPAA is inclusive such that the words appearing after 'include' must mean either a single component of the sentences referred to, or a combination of all or a few of the services referred to when in fact, the said definition under Section 4 of CIPAA is exhaustive.

The learned Judge erred in law and in fact in holding that an expansive reading must be given to the definition section (under Section 4 of CIPAA) where as far as the purpose of the CIPAA is concerned the High Court in Uda Holdings Bhd. v Bisraya Construction Sdn. Bhd. [2015] 5 CLJ 527 held that the definitions found in Section 4 of CIPAA are "unusually definitive and exhaustive in their defines as opposed to the practice of drafting general or non-exhaustive definitions".

The learned Judge erred in law and in fact in holding that to require one to say that the definition of 'construction consultancy contract' under Section 4 of CIPAA has a reference only to 'Design and Build' contracts would be to put an undue strain to the definition of the term, when in fact, that reference was intended by Parliament.

The learned Judge erred in law and in fact in presuming the existence of a casus omissus in the interpretation of the definition of 'construction consultancy contract' under Section 4 of CIPAA which is contrary to all rules of construction when in fact, the definition under Section 4 is plain and unambiguous.

The learned Judge erred in law and in fact in construing the phrase 'construction consultancy contract' under Section 4 of CIPAA disjunctively rather than conjunctively despite the use of the operative phrase '...and includes...' in the said provision. 14

The learned Judge erred in law and in fact in holding that the term 'architectural work' is to be read as a definition of 'construction consultancy contract' under Section 4 of CIPAA when it is in fact an extension of the phrase 'construction consultancy contract'.

The learned Judge erred in law and in fact in according a broad definition of ‘construction consultancy contract' pursuant to Section 4 of CIPAA to include the provision of architectural consultancy services when in fact the definitions in Section 4 have a particular and peculiar but limited meaning and understanding.

The learned Judge erred in law and in fact in holding that the Contract satisfies all the requirements of a 'construction consultancy contract' under Section 4 of CIPAA. The Contract between the Appellant and Respondent

The learned Judge erred in law and in fact in holding that the Respondent was able to avail itself of the remedies under CIPAA when in fact the Letter of Appointment dated 22.8.2014 ("Contract") between the Appellant and the Respondent is not a construction contract which triggers the application of CIPAA.

The learned Judge erred in law and in fact in failing to consider that the Respondent's scope of services under the Contract was for contract administration' pursuant to Section 3(b) of the Contract thereby rendering the Respondent a 'contract administrator-per the definition of Section 4 of

The learned Judge erred in law and in fact in failing to give the term 'contract administration' its plain meaning when the language in the Contract is unequivocal, unambiguous and needs no explanation. 15 The Architects Act 1967 (AA) and the Architects Rules 1966 (AR)

The learned Judge erred in law and in fact in failing to consider the mandatory dispute resolution mechanism under Sub-Rule 24, Third Schedule, Part One of AR which provides that disputes between a professional architect and his client which require settlement shall be by way of arbitration.

The learned Judge erred in law and in fact in applying the established rules of construction expressed by the latin maxim generalibus specialia non derogant which provides that the specific legislation or the special provision in the specific legislation, namely the AR read together with AA, will exclude the operation of the general legislation, namely CIPAA.

The learned Judge erred in law and in fact in holding that the Respondent was entitled to avail itself to the adjudication process under CIPAA in contravention of the mandatory dispute resolution mechanism by arbitration provided under the AR.

The learned Judge erred in law and in fact in failing to give effect to the intentions of Parliament by holding that merely because there is a procedure for an architect or his client to proceed with mediation and arbitration, that by itself should not exclude them from the adjudication process under CIPAA.

The learned Judge erred in law and in fact in failing to consider that the Contract between the Respondent and Appellant is a contract between a professional architect and his client which falls under the purview of the AA read together with the AR.

The learned Judge erred in law and in fact in failing to consider that the appointment of an adjudicator under CIPAA falls within the jurisdiction of the KLRCA whereas the appointment of an arbitrator under the AA read together with the AR vests with the President of the Board of Architects Malaysia. 16

The learned Judge erred in law and in fact in holding that parties are at liberty to have the procedure under the AR running concurrently with adjudication when in fact, the use of the word 'shall' in Sub-Rule 24(1) of the AR makes it unequivocal in its requirement that the parties refer their dispute to arbitration.

The learned Judge erred in law and in fact in holding that there is nothing to prevent the Appellant from proceeding with arbitration under the AR even after the adjudication process is over as the language used in Sub-Rule 24(1) of the AR makes it mandatory, rather than directory, that arbitration must be used as the mode of dispute resolution.

The learned Judge erred in law and in fact in failing to consider and/or apply established principles of law that where a statute creates a right and, in plain language, gives a specific remedy or appoints a specific tribunal for its enforcement, a party seeking to enforce the right must resort to that remedy or that tribunal and not to others. Natural Justice

The learned Judge erred in law and in fact in finding that there was no breach of natural justice from the Adjudicator's failure to hold an oral hearing despite the Appellant's 3 requests for an oral hearing to present its case and meet the case against it. Appellate Interference

The learned Judge erred in law and in fact by making findings that a proper and thorough judicial appreciation of the factual matrix and the law would not have lent itself to, and fell into plain and obvious error, without a proper appraisal of the said factual matrix and submission of the law tendered, and consequently by erroneously allowing the Respondent's application with costs.” 17 Oral Hearing and Breach of Natural Justice [10] On the issue of oral hearing and breach of natural justice, I wish to say that the adjudicator is a master of the proceeding and he has to exercise his discretion fairly and justly taking into consideration CIPAA 2012 is meant to be quick and summary process. As it is a quick and summary process, Parliament in its wisdom has been careful to identify the qualified persons to hear dispute relating to CIPAA 2012. One category of persons that CIPAA 2012 directly and/or by legal construct recognises as competent and qualified to hear CIPAA 2012 disputes are arbitrator and/or judges and will necessarily include arbitrators in KLRCA panel as well as ex-judges. [See Citibank Berhad v Mohamed Khalid Bin Farzalur Rahman & 2 Ors [2000] 3 AMR 3475; CIT v Hindustan Bulk Carriers (2003) 3 SCC 57]. This is set out in section 13 of CIPAA 2012 itself. The other category of persons will relate to the appointment made by KLRCA pursuant to section 32 of CIPAA 2012 and ordinarily will relate to professionals who need to be trained to appreciate legal niceties and ability to write adjudication decision. The law having provided for qualified persons to hear CIPAA 2012, the decision of such persons on procedural matters will rarely be a subject matter of intervention of the court. Being a competent and qualified person to hear CIPAA 2012 dispute itself is not sufficient as the sole right to appoint a competent and qualified person to hear a CIPAA 2012 dispute relating to adjudication is vested solely with KLRCA. [See section 23 of CIPAA 2012]. If there is constant justifiable complaint against an adjudicator for conduct or misconduct, it will be unlikely for the said adjudicator to obtain further assignment through KLRCA. In essence, the law provides proper check and balance for competency, qualification as well as appointment sufficient to say that the Director of KLRCA will 18 only assign cases to appropriate persons taking into consideration the nature of dispute and the expertise required. In addition, parties themselves can appoint any person as an adjudicator of their own choice. That is to say, party autonomy in the appointment of adjudicator is well recognised in CIPAA 2012. [See section 21 of CIPAA 2012]. Having appointed the adjudicator at their own choice, the court will not ordinarily entertain the decision of the adjudicator on procedural matters. [See Ng Chee Yew Sdn Bhd & Ors v IJM Corporation Bhd & Anor [2009] 10 CLJ 378]. [11] If the Director of KLRCA compromises his discretion in appointing adjudicator, it will cause grave injustice to parties and there is little court can do to remedy any form of injustice arising from the appointment of adjudicators who are not proficient or who do not subscribe to impartiality principle as well as the concept related to natural justice itself. Such appointment will have damaging effect if CIPAA 2012 is made applicable to final payment. Jurisdictional Issues [12] If any party is dissatisfied with decision of the adjudicator they can re-agitate the issues by way of arbitration or litigation as the case may be. The issues related to jurisdiction will be the real issue which will determine this appeal and I will deal with it in details. The grounds taken by the appellant read as follows: “(a) the Adjudicator has no jurisdiction to adjudicate a dispute under CIPAA when the Architects Act 1967 ("AA") read together with the Architects Rules 1996 ("Rules") specifies a specific dispute resolution mechanism where the fees of an architect is in dispute; and 19

(b) the Contract is, in any event, not a 'construction contract' under CIPAA.” [13] On the first issue, the learned trial judge had spent substantial time in justifying that CIPAA 2012 is applicable, notwithstanding the provision in the Architect Act read with the Rules, by statutory formula has to go for arbitration. What I wish to say here is CIPAA 2012 is not against arbitration or litigation. It only gives a statutory formula for compulsory adjudication to be able to decide the issue summarily. If the Architect Act and Rules says it should be sent for arbitration does not necessarily mean that CIPAA 2012 is excluded when CIPAA 2012 itself does not say so. I find merit in the reasoning and decision of the learned trial judge limited for the purpose of the instant case only and in consequence I will not labour on this issue further, as CIPAA 2012 also gives the option for arbitration. [14] On the 2nd issue whether CIPAA 2012 applies to ‘construction contract’, the learned trial judge had dealt with it extensively and held it applies. What I wish to say here is that CIPAA 2012 defines construction contract very widely to encompass all and every work which has nexus to construction and will cover pre-construction work and also all form of consultancy work related to the proposed construction, provided it is in writing. The crucial element of the contract must be in relation to construction work. This is well articulated in section 2 of CIPAA 2012 which reads as follows: “2. This Act applies to every construction contract made in writing relating to construction work carried out wholly or partly within the territory of Malaysia including a construction contract entered into by the Government.” 20 [15] The interpretation section gives some clarity to what construction work will entail. The relevant part of the interpretation provision in section 4 does not appear to restrict the meaning of section 4. Section 4 defines construction consultancy contract, construction contract, construction work, construction work contract and contract administrator, in the widest form, as follows: “"construction consultancy contract" means a contract to carry out consultancy services in relation to construction work and includes planning and feasibility study, architectural work, engineering, surveying, exterior and interior decoration, landscaping and project management services; "construction contract" means a construction work contract or construction consultancy contract; "construction work" means the construction, extension, installation, repair, maintenance, renewal, removal, renovation, alteration, dismantling, or demolition of—

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

(b) any road, harbour works, railway, cableway, canal or aerodrome;

(c) any drainage, irrigation or river control work;

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

(e) 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 21 site clearance, soil investigation and improvement, earth-moving, excavation, laying of foundation, site restoration and landscaping; and

(B) procurement of construction materials, equipment or workers, as necessarily required for any works described in paragraphs (a) to (e)\ "construction work contract" means a contract to carry out construction work; "contract administrator" means an architect, engineer, superintending officer or other person howsoever designated who administers a construction contract.” [16] The learned trial judge’s deliberation on the meaning of construction contract has merits and I take the view it subscribes to the wide definition endorsed in CIPAA 2012. However, whether a construction contract in writing was in existence for the matter to be referred to adjudication is a jurisdictional issue. Further, whether the claim is related to interim payment or final account or final payment, will also be a jurisdictional issue. In this respect, final account or final payment or final certificate may not be one and the same. It may all depend on the facts and circumstances of the case. I will deliberate on the said issues further based on the non-controverted facts. Brief facts and law related to Architectural Consultancy Contract [17] In this case, the architectural consultancy services contract was terminated and accepted by the respondent. That is to say, there is no dispute that it has been terminated. Once it is terminated, there will not be an existing contract for the matter to be referred to pursuant to CIPAA 2012. However, if the termination is not accepted, then there is a 22 dispute for the matter to be referred to adjudication. I find merit in the submission of the learned counsel limited for the purpose of this case only. To save courts time, I repeat the submission of the learned counsel for the appellant which read as follows: “B(ii). The obligations of the parties post-termination of the Contract

It is worth reiterating that the Respondent served the Invoice for payment on the Appellant after the termination of the Contract was accepted by the Respondent and when the Contract no longer subsisted. What then became of the obligations of the parties under the Contract?

The answer, we submit, is found in Section 63 of the Contracts Act 1950 (see IA(P) 3- Tab 20). Once the parties agree to rescind the Contract, the Contract need not be performed (see also, Ramli bin Shahdan v Motor Insurers' Bureau of West Malaysia [2006] 2 MLJ 116 at 134 -135, IA(P) 4- Tab 35).

Indeed, this was the intention of the parties going by the strict letter of the Contract itself where at Clause 6, the obligation of the Appellant to make payment to the Respondent based on the schedule/mode of payment under the Contract was expressed as UP to the point of termination only. Beyond the termination of the Contract, the Appellant is not obliged to make payment to the Respondent based on the schedule/mode of payment prescribed under the Contract.

A somewhat similar issue was ventilated before the High Court in Econpile (M) Sdn Bhd v IRDK Ventures Sdn Bhd [2017] 7 MLJ 732 at 752 (see IA(P) 3- Tab 25) where Lee Swee Seng J took the view that "just because there is no express provision in the CIPAA to say that it is applicable in cases where the construction contract has been terminated does not mean that the CIPAA is inapplicable when the contract has been terminated'. 23

In this regard, we respectfully submit that where there is no express provision in CIPAA providing for the question of law and/or issue at hand, the Courts ought not go beyond their judicial role and interpret CIPAA at will. The interpretation of CIPAA ought to at all times reflect the intention of Parliament.

In Duport Steels Ltd and others v Sirs and others [1980] 1 All ER 529 at 541-542 (see (l(A)P 4- Tab 34) (as affirmed in the Federal Court in R Rama Chandran v the Industrial Court of Malaysia & Anor [1997] 1 MLJ 145 at 218-219, l(A)P 3- Tab 24), Lord Diplock held that: "... Parliament makes the laws, the judiciary interpret them...the role of the judiciary is confined to ascertaining from the words that Parliament has approved as expressing its intention what that intention was, and to giving effect to it. Where the meaning of the statutory words is plain and unambiguous it is not for the judges to invent fancied ambiguities as an excuse for failing to give effect to its plain meaning because they themselves consider that the consequences of doing so would be inexpedient, or even unjust... ...it is for Parliament, not for the judiciary, to decide whether any changes should be made to the law as stated in the Acts, and if so. what are the precise limits that ought to be imposed ... It endangers continued public confidence in the political impartiality of the judiciary, which is essential to the continuance of the rule of law, if judges, under the guise of interpretation, provide their own preferred amendments to statues which experience of their operation has shown to have had consequences that members of the court before whom the matter comes consider to be injurious to the public interest..." (emphasis added)

In applying the foregoing, we respectfully submit that the stand taken by Lee Swee Seng J in Econpile (supra) at 752 (see IA(P) 3 - Tab 25) is erroneous. By interpreting CIPAA so as to effect a change in the law when there are no express wordings in the legislation to the same effect, his 24 Lordship had effectively gone beyond his role as a Judge (which is to interpret a piece of legislation to mirror the intention of Parliament) and into the realm of law-making.

In any event, the facts of Econpile (supra) (see IA(P) 3 - Tab 25) are distinguishable from that of the present case. In the former case, there were two payment certificates, in the nature of progress claims issued, both dated 24.3.2015 and 31.3.2015 respectively ("outstanding invoices"). The contract between the parties was terminated on 17.4.2015. After the termination, the claimant served its payment claim for the outstanding invoices on 20.5.2015.

In short, the outstanding invoices were issued before the termination of the contract and accordingly, the High Court determined that the subsequent termination of the contract did not preclude the claimant from making a valid claim under CIPAA.

By contrast, however, the facts in the instant case are different. Here, the Respondent issued the Invoice dated 8.10.2015 for claims well after the termination of the Contract. The Invoice is not a progress payment as it was not made during the currency of the Contract. What then was the effect of the termination of the Contract on the Invoice?

In Gantley Pty Ltd v Phoenix International Group [2010] VSC 106 at 46 (see IA(P) 4 - Tab 30), the Supreme Court of Victoria considered the effect of termination at common law and said that:- “144. It is well accepted that when a contract is terminated at common law by the acceptance of a repudiation, both parties are discharged from the further performance of the contract, but rights which have already been unconditionally acquired are not divested or discharged unless the contract provides to the contrary."

This does not mean that the 'wronged party' is left without a remedy. It merely means that the remedy available is no longer to be sought for under 25 CIPAA. Instead, the remedy of contractual damages on the basis of a quantum meruit ought to be pursued by the 'wronged party' who has accepted the termination of a contract.

At paragraph 146 of Gantley (supra) (see IA(P) 4 - Tab 30), the Supreme Court of Victoria aptly summarized the position thus:- "146. On this analysis, the first question becomes: do the rights to make progress claims under each of the relevant contract up to the date of termination accrue such that they are not rights which are divested or discharged on termination but rather are rights which are "unconditionally acquired" and thereby survive termination? If this is the case, the Act will apply. If not, it won't." (emphasis added).

In summary, the amount claimed by the Respondent under the Invoice was not a valid progress payment under the Contract. If it was, it would have been a cause of action which survived the termination of the Contract. However, since the Contract had already been terminated by the time the Invoice was issued, CIPAA will have no operation in relation to it.” Brief facts and law in relation to interim or final account or final payment [18] The architectural consultancy services contract was related to 4 Towers and 3 stages of work and each stage the respondent is entitled to a percentage of remuneration as follows: Element Scope of Work Proposed fee based on progress of work Podium car park structure  To manage the construction from Ground floor up to 5th storey podium Monthly progressive billing over 14 months Tower 1  A. Contract documentation – 35% 26 upon completion of tender drawing Tower 2  A. Contract documentation – upon completion of tender drawing 35% Tower 3  A. Contract documentation – upon completion of tender drawing 35% Tower 4  A. Contract documentation – upon completion of tender drawing 35% [19] It is not in dispute that the termination took place before the completion of the construction of the towers. If there has been no termination or unilateral termination, their claim would have been for interim payment and the matter can be referred pursuant to CIPAA

If the contract has been terminated and accepted as in this case, then the claim of the respondent will relate to final account or final payment and in consequence CIPAA 2012 will not be applicable. My reasons are as follows:

(a) CIPAA 2012 deals with construction contract and not the rights and liabilities of parties related to construction dispute and the law. The distinction here is not one of an apple and orange but it is one of a marble and pumpkin. The payment in CIPAA 2012 relates to contractual claim and progress payment is based on contractual terms. However, when it comes to final account or final payment, the whole area of construction law and/or part may become applicable. For example, if the contractor is liable in negligence to adjoining owners and in consequence the employer becomes liable then the employer may have claims against the contractor. 27

(b) To appreciate the scope of CIPAA 2012 and the construction contract, construction dispute and construction law, the phrases need to be explained:

(i) CIPAA 2012 has everything to do with written construction contract. If there is a breach of the terms which resulted in non-payment, the law applicable to decide the issue to a large extent will be the law of contract.

(c) Construction dispute excluding CIPAA 2012 will naturally embrace many areas of law inclusive of civil, commercial as well as administrative law, etc. CIPAA 2012 is meant only to cover the contractual dispute and not construction dispute. When it comes to final account or final payment, the commercial reality is for the parties to settle the construction dispute as a whole, at least at the stage of final payment.

(d) Construction contract itself may have defined what are the necessary considerations to be taken into account for final certificate or final account. Further, in some construction contracts, the meaning of final certificate or final account may have been contractually provided that does not necessarily mean the employer or employee is restrained from making claims which had nexus to the construction contract itself before the issue of final payment is settled. In in the case of Pembenaan Leow Tuck Chui Sdn Bhd v Dr Leela Medical Centre Sdn Bhd [1995] 2 MLJ 57, Edgar Joseph Jr observed: "It is well known to lawyers engaged in the field of construction contract law that the question whether a building owner or main contractor is entitled to refuse to make payment of money to a contractor or contractor, as the case may be, allegedly due and payable under an interim certificate issued by an architect or engineer, pursuant provisions in a RIBA contract and other known forms of building contracts and sub contracts, on the ground that he has cross-claims alleging defective work or over-valuation or damages for delay, is a the question of ever-recurring importance, which inevitably throws open for discussion the actual terms of the 29 particular contract or sub-contract in the case and the all too familiar trilogy of cases of Dawnays Ltd v FG Minter Ltd & Anor [1971] 2 All ER 1389; [1971] 1 WLR 1205, Gilbert-Ash (Northern) Ltd v Modern Engineering (Bristol) Ltd [1974] AC 689; [1973] 3 All ER 195; [1973]3 to WLR 421, Mottram Consultants Ltd v Bernard Sunley & Sons Ltd [1975] 2 Lloyd's ' Rep 197 and their progeny."

(e) The word final account is not mentioned in the Act. However, section 36 particularly provides a positive right to progress payment only. This will be consonant to the principle that CIPAA 2012 is meant to be for summary determination where rule of law relating to trial or hearing procedure can be compromised and parties can resort to arbitration and/or litigation if they are not satisfied with the adjudicator’s decision. The said section 36 reads as follows: “36. (1) Unless otherwise agreed by the parties, a party who has agreed to carry out construction work or provide construction consultancy services under a construction contract has the right to progress payment at a value calculated by reference to —

(a) the contract price for the construction work or construction consultancy services;

(b) any other rate specified in the construction contract;

(c) any variation agreed to by the parties to the construction contract by which the contract price or any other rate specified in the construction contract is to be adjusted; and

(d) the estimated reasonable cost of rectifying any defect or correcting any non-conformance or the diminution in the value of the construction work or construction consultancy services performed, whichever is more reasonable. 30

(a) to (d), reference shall be made to —

(a) the fees prescribed by the relevant regulatory board under any written law; or

(b) if there are no prescribed fees referred to in paragraph (a), the fair and reasonable prices or rates prevailing in the construction industry at the time of the carrying out of the construction work or the construction consultancy services.

(a) monthly, for construction work and construction consultancy services; and

(b) upon the delivery of supply, for the supply of construction materials, equipment or workers in connection with a construction contract.

(f) It is trite that in litigation, dispute cannot be taken on instalment basis, though there may be exceptions. [See Henderson v Henderson [1843] 3 Hare 100; Shahidan bin Shafie v Atlan Holdings Bhd & Anor [2013] 7 MLJ 215]. If Parliament in its wisdom had intended for CIPAA 2012 to be applicable for final account or final payment, it would have clearly done so. It will not be the function of the court to add or minus what has been stated in the statute to broaden the scope of CIPAA 2012 to include the final payment, save as to clarify the meaning attributable to the word or phrase based on the principles relating to ‘Harmonious Construction of 31 Statute’. Harmonious Construction of Statute may lead the court to recognise the implied or broad meaning of a word or phrase in a section, taking a holistic approach to other provisions of the Act as well as statutes. [See Citibank Berhad v Mohamed Khalid Bin Farzalur Rahman & 2 Ors [2000] 3 AMR 3475; CIT v Hindustan Bulk Carriers (2003) 3 SCC 57]. Without a proper trial or hearing in the form of arbitration or litigation and to allow a party to summarily execute a decision of the adjudicator may ultimately cause prejudice to the respondent to the award. This is so because the adjudicator’s decision can inter alia be used to wind up the company against whom the decision has been made.

(g) In addition, section 29 of CIPAA 2012 deals with suspension of work. At common law, it is trite that a contractor as a general rule will not be able to suspend work for non-payment though he may have a right to terminate the contract. [See Kah Seng Construction Sdn. Bhd. [1997] 1 CLJ 448; Citex (M) Sdn Bhd v Ingeback (M) Sdn Bhd [1995] 1 LNS 52]. Learned authors of Keatings on Building Contract, 5th Edn., at page 157 observes:- “No general right to suspend work. Although particular contracts may give the contractor express rights if certificates are not paid, there is no general right to suspend work if payment is wrongly withheld. This is consistent with the principle that, except where there is a breach of condition or fundamental breach of contract, breach of contract by one party does not discharge the other party from performance of his unperformed obligations.” 32

(h) Section 29 displaces the common law rule and allows the contractor to suspend work and it relates to progress payment. Section 29 of CIPAA 2012 read as follows: “29. (1) A party may suspend performance or reduce the rate of progress of performance of any construction work or construction consultancy services under a construction contract if the adjudicated amount pursuant to an adjudication decision has not been paid wholly or partly after receipt of the adjudicated decision under subsection 12(6).

(a) is not in breach of contract;

(b) is entitled to a fair and reasonable extension of time to complete his obligations under the contract;

(c) is entitled to recover any loss and expenses incurred as a result of the suspension or reduction in the rate of progress of performance from the other party; and 33

(d) shall resume performance or the rate of progress of performance of the construction work or construction consultancy services under a construction contract in accordance with the contract within ten working days after having been paid the adjudicated amount or an amount as may be determined by arbitration or the court pursuant to subsection 37(1).”

(i) Final account or payment may include the exercise to open up, review and revise the certificate and/or certificate of extension, etc. To say CIPAA 2012 includes the final claim is not strictly supported by the legislation. Reliance on the Singapore position or other jurisdictions where their statutes allow final account or payment to be dealt by summary process, will not subscribe to the Rule of Law related to statutes and our case laws. Further, their appeal and enforcement procedure as well as case laws related to adjudicator’s decision may be different. A disputed adjudication decision made summarily as per the case laws in Malaysia will be fatal to the employer as well as the contractor as the decision can be used to wind up the company immediately as opposed to an arbitration award and/or judgment of the court. Pay first and dispute later principle may be a good option for progress payment but not for final account and/or final payment. Learned authors Chow Kok Fong, Lim Chong Fong and Oon Chee Kheng in their book titled “Adjudication of Construction Payment Disputes in Malaysia”, at pages 42 and 43 observes: 34 “[5.4] In each of these instances, the Contractor's entitlement to be paid relates relevantly to the amount certified on the interim certificate but this entitlement only accrues on the date when the Contractor should have received payment. There is authority in Malaysia for the proposition that a progress payment certificate which has been properly and duly issued enjoys temporary finality. It creates a debt due from the employer to the contractor which is capable of being enforced summarily.” and at pages 122 and 123 observes:- “[13.3] In this connection, a question which may arise is the extent to which the temporarily finality of an adjudication decision is comparable with the temporary finality which is ascribed by the authorities to a payment certificate issued as part of the certification process provided in a construction contract. [13.4] It is settled law in Malaysia that a progress payment certificate which has been properly and duly issued enjoys temporary finality. In BMC Construction Sdn Bhd v Dataran Rentas Sdn Bhd

(j) It is also interesting to note that the learned authors are careful to use the word progress payment several times in pages cited above to anchor the argument of material injustice which may arise if a construction of the statute is given to include final account or final payment. Though the learned authors make a distinction between the adjudication 36 decision and payment certificate, the principles for winding up is related ‘debt due and owing’ and it is not necessary for an award or judgment to be in existence.

(k) In addition, the preamble of CIPAA 2012 says regular and timely payment. Regular and timely payment will only be in issue if it is a contract which needs to be performed and not to an obligation which has been completed. The phrase ‘regular and timely’ is conjunctive and not disjunctive. The position arguably, may be different if it had been stated as ‘Regular or timely payment’. The preamble relates to overcome cash flow problem relating to construction contracts and not construction dispute. The observation of the Federal Court relating to cash flow in the case of Globe Engineering Sdn Bhd v Bina Jati Sdn Bhd [2014] 7 CLJ 1 is instructive. The court dealt with some of the cases in relation to construction contract, interim payment and cash flow or liquidity and stated on the facts inter alia as follows: “[33] That liability was contingent was also impliedly refuted by cl. 19 in the sub-contract. It should not be lost that "the purpose of an interim certificate is to provide by payments on account a cash-flow to enable the contractor to finance the work" Crown House Engineering Ltd v. Amec Projects Ltd (1990) 6 Const LJ 141, per Slade LJ), to enable "interim payments to be made to the contractor as the Works progress" (Tameside Metropolitan Borough Council v. Barlow Securities Group Services Ltd (2001) 75 Con LR 112, [2001] EWCA Civ 1). "The primary purpose of the interim certificates in this kind of contract is to ensure that the contractor will receive regular stage payments as his work progresses" (London Borough of Camden v. Thomas McInerney & Sons Ltd (1986) 9 Con LR 99; see also Rohcon Ltd v. SIAC 37 Architectural Ltd [2003] IEHC 1133S 01) so "that the sub-contractor can have the money in hand to get on with his work and the further work he has to do" (Dawnays Ltd v. FG Minter Ltd and Another [1971] 2 All ER 1389 per Lord Denning MR, which dictum was adopted by the Federal Court in Bandar Raya Developments Bhd v. Woon Hoe Kan & Sons Sdn Bhd [1971] 1 LNS 11; [1972] 1 MLJ 75). "... the purpose of interim certificates is to see that the contractor is in sufficient funds to carry on the construction as it progresses" (Unpaid Interim Payment Certificates by Vinayak Pradhan [1997] 2 MLJ xv).” [20] In view of sections 29 and 36, any reasonable tribunal appraised with the facts and law relating to construction claim, construction contract, construction dispute and construction law will come to a conclusion that CIPAA 2012 is limited to progress claim. On this issue, I find merit in the submission of the learned counsel for the appellant. To save judicial time, I repeat the submission verbatim and it reads as follows: “C. Was the Invoice for a 'progress payment' or a 'final claim'?

It is worth reiterating that the term 'progress payment' under CIPAA is found in Section 36 (see IA(P) - Tab 1) which provides for a statutory right to progress payment where there is no specific mechanism for the calculation of the same in construction contracts. In the instant case, the value of the progress payment is calculated by reference to the rate specified in the Contract (per Section 36(1)(b) of CIPAA) (see IA(P)- Tab 1).

CIPAA does not define a 'progress payment' nor does the Act expressly mention whether its application would cover final payments. 38

The court in Gantley (supra) (see IA(P) 4 - Tab 30) drew a distinction between progress claims and final payment claims at paragraph 233 of the judgment and the distinguishing features may be summarized as follows:-

(a) once the final payment is made pursuant to a final payment claim, the rights and claims of the parties under the contract are settled through accord and satisfaction with the result that each party's obligations under the contract are discharged; and

(b) by contrast, a progress claim under the contract does not have this effect. Progress payment made pursuant to a progress claim which turns out to be wrong would not preclude a later adjustment to correct the error.

Further, at paragraph 239 of the judgment in Gantley (supra) (see IA(P) 4- Tab 30), the court held that "the provision of a final balancing of account between the contracting parties is a hallmark of a final payment claim."

In the instant case, we would submit that that the Invoice is neither a progress payment nor a final claim under the Contract for the simple reason that the Invoice was issued after termination of the Contract. Further: -

(a) the Invoice could not have been a 'progress payment' because the progress payment in respect of Towers 1, 2 and 3 only fell due upon completion of the Contract Documentation Phase. It is glaring from the Respondent's Payment Claim itself that the Invoice comprised work done for 'partial completion' of the Contract Documentation Phase in respect of Towers 2 and 3;

(b) nor could the Invoice have been a 'final claim' because the contractual process for the making of a final payment claim under the Contract was extinguished upon the early mutual termination of the Contract – i.e. the balance 10% under the Contract would have been due only upon the Respondent 39 obtaining the Certificate of Completion and Compliance. This was not the case; and

(c) like in Gantley (supra) at p 72, para 238 (see IA(P) 4 - Tab 30), the Invoice was prepared and served well after the termination had occurred, following which no further work was carried out under the Contract.

As such, the distinction between a 'progress payment' and a 'final claim' is, we submit, not pertinent in deciding the instant case. Regardless of its form, the Invoice was in substance made post-termination of the Contract.

The jurisprudence in this area is divided - with the Court of Appeal in View Esteem Sdn Bhd v Bina Puri Holdings Bhd [2016] 6 MLJ 717 at 744 (see IA(P) - Tab 15) suggesting in obiter on the one hand that CIPAA's application is only in relation to interim payments: "[32] ...the CIPAA 2012 relates to interim payments and not the final accounts between the parties." while the High Court in Econpile (supra) (see IA(P) 3 - Tab 25) on the other hand suggesting that from the rationale and purpose perspective of the Act, there was no good reason to exclude its application once the construction contract had been terminated. C(ii). The meaning of 'right to progress payment' under Section 36 of CIPAA by reference to similar provisions in other jurisdictions

(a) The Australian position - the Old Victorian Act and the Old NSW Act

As submitted earlier on, the Old Victorian Act bears resemblance to CIPAA. Section 9 of the Old Victorian Act (see IA(P) 3 – Tab 19) provides for the 'rights to progress payments' and subsection (1) reads:- 40

(a) who has undertaken to carry out construction work under the contract, or

(b) who has undertaken to supply related goods and services under the contract, is entitled to a progress payment under this Act, calculated by reference to that date."

The corresponding provision in CIPAA is found in Section 36(1) (see IA(P) - Tab 1) which although drafted differently, bears the same meaning in so far as it states:-

(a) the contract price for the construction work or construction consultancy services;

(b) any other rate specified in the construction contract;

(c) any variation agreed to by the parties to the construction contract by which the contract price or any other rate specified in the construction contract is to be adjusted; and

(d) the estimated reasonable cost of rectifying any defect or correcting any non-conformance or the diminution in the value of the construction work or construction consultancy services performed, whichever is more reasonable, (emphasis added).

In interpreting the Old Victorian Act, the Supreme Court of Victoria had on at least 2 occasions determined that the Old Victorian Act's application is exclusive to 'progress payments' only, in line with the intent and purpose of the Old Victorian Act:- 41

(a) In De Martin and Gasparini Pty Ltd v Energy Australia arid Another (2002) 55 NSWLR 577 at 590-591 (see IA(P) 3 -Tab 26) the Supreme Court of NSW acknowledged that while the term 'progress payments' is not fully articulated in the Old Victorian Act, the court referred to the decision in Jemzone Pty Ltd v Trytan Pty Ltd (2002) 42 ACSR 42 (see IA(P) 4 - Tab 31) where the learned Judge in the latter case concluded that:- "if the Act (the Old Victorian Act) was intended to apply in the case of final payment on practical completion, it would have been a simple matter for the drafter of the statement of the object of the Act in s 3(1) to refer to the entitlement to receive all payments due under the construction contract, rather than only 'specified progress payments'."

(b) In Gantley (supra) at pp. 53-54 (see IA(P) 4 - Tab 30), the Supreme Court of Victoria once again delivered its views on the definition of 'progress payments' and took the position that it would be 'straining the language' to suggest that a claim for 'progress payment' can be made upon, inter alia, termination of a contract:- "172. ...There being no definition provided by the Old Act (the Victorian Act) the construction of 'progress payment' in the first instance is to be derived from the ordinary and natural meaning of the words as used in the context of the text of the legislation. 'Progress payments' in a construction contract are payments made by providing instalments of part of the agreed contract price sequentially and progressively over the life of a contract. As Finkelstein J said in Protectavale: 42 Progress payments are effectively payments by instalments or periodic payments made over the life of the contract for construction work a/ready completed. In my opinion, it would be straining the language to suggest that a 'progress payment' can be made following either the completion of the contract or its termination." (emphasis added).

In fact, the Old NSW Act which was applied in Jemzone Pty Ltd (supra) (see IA(P) 4 - Tab 31) also provides for the 'right to progress payments' under Section 8. Section 8(1) and (2)(a) of the Old NSW Act (see IA(P) 3 - Tab 17) are almost identical to Section 9(1) and 2(a) of the Old Victorian Act (see IA(P) 3 - Tab 19) with the only difference being the parentheses in Section 8(2)(a)(ii) of the Old NSW Act.

The court in Gantley (supra) at paragraph 245 (see IA(P) 4- Tab 30) also held that if indeed the claims made in that case were final payment claims, they were not permitted to be made under the Old Victorian Act. This, the court said, was in line with the core purpose of the Act:- "249. The core purpose of the Act is to provide a statutory right to payment of progress payments under a construction contract and to provide a mechanism to enable the party so entitled to recover those payments. The framework under the Old Act was confined to providing this facility in respect of 'progress payments'.

Under this ground, I am satisfied that the payment claims were invalid. They failed to satisfy a basic and essential requirement of the legislation in a substantial and material way, and further that the failures were manifest on the face of the documents. There was therefore jurisdictional error." (emphasis added) 43

If the rationale in Gantley (supra) (see IA(P) 4- Tab 30) was adopted, would this mean that the Respondent would be left without a remedy? Surely not - as the Respondent would still be able to seek remedies in litigation or arbitration as provided under the Contract. As explained by the court in paragraph 252 of the judgment:- "252. If final payment claims are to be made in respect of construction contracts to which the Old Act applies, the contractual mechanism, if there be one, should be engaged. If there be a failure on the part of a respondent to such a claim to make payment, when pursuant to the contract it is required to do so, litigation and not the Act, is the last resort for enforcement. Likewise, in cases such as the present, if the construction contract to which the Old Act applies has been terminated prior to the time when the contract permits a final payment claim to be made, and the contractual mechanism for the making of a final payment claim is not, or cannot be engaged, in circumstances where a principal or head contractor refuses payment of what is due, litigation and not the Act is again the last resort for enforcement of what may be due to a contractor." (emphasis added).

(b) The Singaporean position

The High Court of Singapore adopted a broad interpretation of the Singaporean Building and Construction Industry Security of Payment Act 2006 ("Singaporean Act") (see IA(P) 3- Tab 16) in Tionq Seng Contractors (Pte) Ltd v Chuan Lim Construction Pte Ltd [2007] 4 SLR 364 at 370 (see IA(P) 4- Tab 27) to include adjudication of final progress payments. At paragraph 27, the court held:- "27. Looking at the structure and wording of the provision, it appears that an exclusion of 'final payments' from the ambit of the Act can only be justified by express wording to that effect. It would not suffice to infer a legislative intention to exclude simply on the basis that 'final payments' were not included in a non-exhaustive supplementary 44 definition, ostensibly provided for clarification. If the Legislature had intended to exclude final claims from the adjudicatory ambit of the Act, it could have clearly included a proviso or provision to that effect. In the absence of such express exclusion, the primary broad-ranging definition in the main limb must be determinative." (emphasis added)

By contrast to CIPAA and the Old Victorian Act, the Singaporean Act (see IA(P) 3- Tab 16) defines 'progress payment' as:- "...a payment to which a person is entitled for the carrying out of construction work, or the supply of goods or services, under a contract, and includes—

(a) a single or one-off payment, or

(b) a payment that is based on an event or a date;

Notably absent from the Singaporean Act is the 'right to progress payment' which features in the Old Victorian Act, Old NSW Act and CIPAA. It was for this reason that the Singapore High Court in Tionq Sena Contractors (Pte) Ltd (supra) at (see IA(P) 4- Tab 27) distinguished Jemzone Ptv Ltd (supra) (see IA(P) 4 - Tab 31) which was decided on the Old NSW Act:- "44. I am of the view that Austin J's holding in Jemzone ([20] supra) loses its significance once we appreciate that s 8 of the NSW Act (as it then was) did not define or explain the term 'progress payment'...In contrast to the NSW Act (as it then was), s 2 of our current version of the Act unambiguously defines 'progress payments' as 'a payment to which a person is entitled for the carrying out of construction work, or the supply of goods or services, under a contract" - a definition which leans towards the adjudicatory ambit of the Act." 45

(c) The Malaysian position under CIPAA

In Tunku Yaacob Holdings Sdn Bhd v Pentadbir Tanah Kedah & Ors [2016] 1 MLJ 200 at 218, (see IA(P) 3 - Tab 22) the Federal Court considered the 'settled general rule' that 'when a statute is susceptible of two or more interpretations, normally that interpretation should be accepted as reflecting the will of the legislation which is presumed to operate most equitably, justly and reasonably as judged by the ordinary and normal conceptions of what is right and what is wrong and of what is just and what is un just.

Accordingly, we humbly submit that the interpretation of CIPAA to be exclusive to progress payments only would best reflect the will of the legislation.” [21] In my view, CIPAA 2012 if by decisions of courts is made applicable to final account or final payment in relation to construction disputes as opposed to construction contract for interim payment, it may lead to abuse of process. My reasons are as follows:

(i) CIPAA 2012 was meant to assist contractor to receive the interim payment for work in progress timely, as the law was that the contractor was obliged to complete the contract within time frame even if the employer did not pay timely the contractual payments for work done.

(v) CIPAA 2012 must not be interpreted by the courts to oppress the employers as that was not the aim, purpose and intent of the Act.

(a) The claim by the respondent is not related to CIPAA 2012 and adjudicator will not have the jurisdiction to hear the dispute. In consequence, the decision of the adjudicator dated 14-4-2016 must be set aside.

(b) Upon the decision of the adjudicator being set aside, it will follow that the enforcement of the decision has to be set aside. [25] For reasons stated above, both the appeals are allowed with costs. Both the decisions of the High Court related to section 15 and section 28 are set aside. The respondents shall pay the appellant a global sum of RM25,000.00 as costs for both appeals subject to allocatur. Deposit is to be refunded, with a note that the majority have dismissed the appeal with costs. 49 Dated: 15 September 2017 sgd (DATUK DR. HJ. HAMID SULTAN BIN ABU BACKER) Judge Court of Appeal Malaysia. Note: Grounds of judgment subject to correction of error and editorial adjustment etc. Counsel for Appellant: Mr. M. Nagarajah [with Ms Tanya Lopez and Ms Corrine Chin] Messrs Shook Lin & Bok Peguambela & Peguamcara 20th Floor, Ambank Group Building 55 Jalan Raja Chulan 50200 Kuala Lumpur. [Ref: CMS/TML/NM/17658/15/MSB/AM&CSB/07-2022396] Counsel for Respondents: Mr. Sivabalan [with Ms Tharmini Paramasivan] Messrs Tan Swee Im, Siva & Partners Peguambela & Peguamcara Suite D-3A-03 to 06, Block D Plaza Mont Kiara, No. 2, Jalan Kiara Mont Kiara 50480 Kuala Lumpur. [Ref: TSI/S/853/2015/ARMC]