Martego Sdn Bhd v Arkitek Meor & Chew Sdn Bhd (No. 02(f)-2-01/2018 (W) & No. 02(f)-3-01/2018(W))

(i) Whether an adjudicator acts within his jurisdiction in deciding on a matter referred to him under CIPAA 2012 when, at the time of service of the payment claim pursuant to section 5(1) of CIPAA, the construction contract had been terminated and the termination was accepted by both parties and the claim was for determination of sums finally due to the unpaid party?;

(a) Whether CIPAA 2012 is applicable to disputes pertaining to interim claims only or is it also applicable to disputes relating to final claims?; and

(b) Whether CIPAA 2012 should prevail over Architect’s Act 1973. The Factual Background and the Antecedent Proceedings [3] The factual background and the antecedent proceedings which are relevant and germane for disposal of this instant appeal may be shortly stated as follows:-

(a) The majority erred in fact and in law in failing to hold that the respondent could not have made a valid claim under CIPAA 2012 when the payment claim was served after the construction contract dated 22.8.2014 between the appellant and respondent had been terminated and the respondent accepted the termination of the said contract on 7.8.2015 (“jurisdiction issue”);

(b) The majority erred in fact and in law in holding that CIPAA 2012 applied to both “interim and final claims”; and

(c) The majority erred in fact and in law in failing to hold that where a statute created a right, in plain language, which gave a specific remedy or appointing 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. [5] As regard ground (a), learned counsel for the appellant submitted that as a general rule, there was a requirement under CIPAA 2012 for a construction contract to be in existence. Since the construction contract entered between the appellant and the respondent had been terminated and accepted by the respondent, then there was no longer a “construction contract” for the purpose of CIPAA 2012. According to learned counsel, a “construction contract” was one in which a party undertake to carry out “construction work”, and after the determination of the contract, there was no such undertaking. Further, pursuant to clause 6 of the construction contract, the appellant’s obligation to make payment to the respondent was based on the schedule/mode of payment under the said construction contract which was expressed as “up to the point of termination only”. Under the legal maxim, “eodem modo quo oritur, eodem modo disselvitur”, an agreement created by parties may be extinguished by them by a subsequent agreement. Section 63 of the Contract Act 1950 (Act 136) provides that if the parties to a contract agree to substitute a new contract for it, or to rescind or alter it, the original contract need not be performed (see Ramli bin Shahdan v Motor Insurances Bureau of West Malaysia [2006] 2 MLJ 116). [6] The appellant also referred us to the decision of the Supreme Court of Victoria in Gantley Pty Ltd v Phoenix International Group [2010] VSC 106 (“Gantley”) where the Court considered the effect of termination of a contract at common law and said – “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 directly been unconditionally acquired are not divested or discharged unless the contract provides to the contrary.”. [7] Relying on Gantley, learned counsel further submitted that the only exception to the general rule for the requirement of a construction contract to be in existence was where an unpaid party had accrued rights under the express terms of a construction contract prior to the termination. [8] According to learned counsel, the facts of this instant appeal revealed that the respondent’s claims were not rights which were “unconditionally acquired” prior to termination of the said contract which would have survived such termination. The Adjudicator had determined that the respondent did not complete the Contract Documentation Phase Tower 1, nor did the respondent complete the Contract Documentation for Towers 2 and 3. Therefore, it was the contention of learned counsel for the appellant that the respondent’s claim was not a claim under the said contract.

(a) Detailed Design Development i. Upon obtaining statutory approvals, to prepare and submit plans for obtaining the building plans approval or work permit for early work commencement whichever earlier; ii. Liaising with authorities; iii. Proposing amendments for improvement of building design including façade treatment and planning in liaison with Chief Design Architect, Cecil Chao & Associate of Hong Kong; iv. To coordinate with the Consultant, and to hold regularly, the Technical and the Client-Consultant Meetings; v. To inform the Client on a regular basis on the Status of the Project and other technical and financial issues; vi. To seek Client’s approval on all matters involving cost implications and selection of building products.

(b) Contract Administration i. Work in collaboration with all the Consultant in preparing the Tender documentation, detail drawings, and working drawings for construction; ii. To recommend the list of Contractors and Sub-Contractors for Tenders; iii. To award the Contract on the Client’s behalf; iv. To coordinate and to conduct regular site meeting; v. To report on the Status of the Project; vi. To issue the Progress Claim Certificates to the Contractors(s) upon consultation to the Client; vii. To issue the Progress certificates certifying the Stage Completion upon request by the Client; viii. Upon satisfactory completion of the Project, apply to the authority for the Certificate of Completion and Compliance (“CCC”).

(c) Others i. Any other matters deemed necessary.”. [19] In his endeavour to persuade us, learned counsel for the appellant urged us to affirm the views of the learned dissenting Judge who endorsed the views of the Supreme Court of Victoria in Gantley (supra) which held that the Old Victorian Act provides for payment claims to be served after termination under two (2) limited circumstances only –

(i) where the construction contract expressly or impliedly provides for a payment claim to be served following termination; and

(a) the contract expressly or impliedly allows this, or

(b) there is an accrued right to a progress payment before termination for work done prior to termination, and the fact that the amended Victoria Act now provides for a “final progress payment” demonstrates that the intention of the previous version of the Victoria Act was to allow for a final progress claim. [23] The majority rejected the application of the case of Gantley and stated that it had no application to the case at hand. We are fully in agreement with the majority for the following reasons –

(a) the factual matrix of Gantley is different from that in the present appeal. The claim in Gantley was about the damages arising from a repudiation while the claim by the respondent in this instant case is for work done. The issue of whether the termination was due to a repudiation was never raised and decided in Gantley; the termination letter was not exhibited. The facts in Gantley are poles apart from the facts of the case before us; and

(b) the court in Gantley discussed the validity of the progress claim made pursuant to a final claim arising out of a termination. The progress claim issued pursuant to the old Victorian Act did not cover the final claim disputes. This is not the case under CIPAA 2012. Plainly, the issue before Gantley is not germane to the issue before us. [24] On the issue of deriving assistance from foreign case law in interpreting our legislations; we say it must be exercised with circumspection. This is because the resort to case law of foreign jurisdictions by persons not fully acquainted with the practice in these jurisdictions or with the concept and techniques of foreign system entails a real risk that foreign legal position would be misinterpreted. [25] Concerning ground (b), learned counsel for the appellant vehemently argued that CIPAA 2012 did not cover claims for final accounts or sums finally due to unpaid party unless the contractual mechanism for the payment of the final accounts (if provided under the contract) had been engaged. [26] In support of his submission, learned counsel advanced, inter alia, the following reasons –

(a) The phrase “final account” is notably absent in the CIPAA 2012. The glaring omission of this phrase from CIPAA 2012 is an indication of the draftsmen’s intention to exclude final account;

(b) Existence of section 36 of CIPAA 2012 (a default provision that can be applied in the absence of payment terms in the construction contract) and reading of CIPAA 2012 in its entirety will indicate that CIPAA 2012 was intended to apply to interim claims only;

(c) The main purpose of CIPAA 2012 was to assist the parties of the construction contract to receive prompt payments for work done pursuant to their construction contract and the adjudication proceedings was set out to advance the said purpose. The CIPAA 2012 was intended to be applied to interim claim which involved payments on account. Hence, any dispute as to the amount that is finally due is to be resolved through other dispute resolution forum such as court or arbitration;

(d) The construction contract had provided the time period to make an interim and final claim. In the present appeal, the Invoice was not made pursuant to the time and therefore it was neither a progress claim nor a final claim;

(e) The majority fell into serious error in holding that Australia State of Victoria’s Building and Construction Industry Security of Payment Act 2002 (Victoria No. 15 of 2002) (“Old Victorian Act”)’s interpretation of “rights to progress claim” has no significance on the basis that the context in which the phrase was interpreted in the Old Victorian Act is different from CIPAA 2012. In actual fact, CIPAA 2012 and the old Victorian Act are glaringly similar as both Acts require the existence of construction contract for a payment claim to be made specifically refers to “progress payment” and do not expressly exclude the application of the Act to final claims; and

(f) Singapore Building and Construction Industry Security of Payments Act 2004 (“SOPA”) does not resemble CIPAA 2012 due to the absence of the phrase “right to progress payment” and existence of definition to the “progress payment”. [27] In response, learned counsel for the respondent submitted that there is no limitation to CIPAA 2012 in relation to final and interim claims. CIPAA 2012’s primary objective is to alleviate the cash flow and this is done by eliminating payment issues quickly. It is the contention of learned counsel that limiting CIPAA 2012 to interim claims will prejudice the claimant’s right to payment and such limitation will defeat the very purpose of CIPAA 2012 which was to alleviate cash flow in the construction industry through an effective adjudication mechanism. [28] Learned counsel for the respondent urged this Court to adopt a purposive approach in interpreting CIPAA 2012 as mandated by section 17A of the Interpretation Act 1948 and 1967. [29] Learned counsel contended that the distinction on whether a claim is final or interim is unnecessary in providing a right for payment which is intended to alleviate the cash flow issue in the industry and will affect the stakeholders in the construction chain who are financially weaker than the appellant as in the present case. Further, drawing the distinction between final or interim will only destroy the robust change that the industry has started to experience. Our Findings on Ground (b) [30] We are of the opinion that the majority was on firm ground when it held that Australian State of Victoria’s Building and Constructions Industry Security of Payment Act 2002’s interpretation of a “right to progress claim” is not relevant to the interpretation of CIPAA 2012. [31] CIPAA 2012 is not modelled after the Old Victorian Act. The purpose of the Old Victorian Act is more to safeguarding the interest of individuals compared to CIPAA 2012 which was intended for the construction industry as a whole. The purpose of Singapore Building and Construction Industry Security of Payment Act (Cap 30B, 2006 Rev Ed) (“SOPA”) is similar to CIPAA 2012. Hence, in our view, referring to SOPA rather than the Old Victorian Act in interpreting “final claim” will be more appropriate. [32] At the outset, it is pertinent to note that the issue of applicability of CIPAA 2012 to a final or interim claim was not raised by the parties before the Court of Appeal. In the course of argument before the Court, the following questions were posed by the Court to the parties – “(a) whether the subject matter of the adjudication was based on interim payment claim or a final claim.

(b) whether statutory adjudication in other jurisdiction makes a distinction between final bills and interim bill.”. [33] Despite of objection raised by learned counsel for the respondent, the Court of Appeal proceeded to deliberate on the issues on the ground that the issues were relevant to the Adjudicator’s jurisdiction. The Court held that jurisdictional challenge had always been allowed by the courts at any stage of proceedings. [34] On question (a), the majority held that as long as the claims are payment claims relating to a construction contract as defined in section 4 of the CIPAA 2012, the Act comes into play. That being the case, it does not matter whether the payment claims were interim or final claims made after unilateral or mutual termination. [35] On question (b), the majority reasoned that the Old Victorian Act relied by the appellant, as interpreted by the Victoria Supreme Court on the phrase “right to progress payment” in section 19 was housed in Part 3 the Act – “Right to Progress Payment”, was of no significance as the context in which it was interpreted was totally different from the case at hand. In CIPAA 2012 there are specific provisions which allow a claimant to make a claim in respect of all payment for works and services done under a construction contract. Hence, the decision in Gantley (supra) cannot be used to support the proposition of the appellant (see para 45 of the majority judgment of the Court of Appeal). [36] The minority came to a different conclusion. The minority was of the opinion that if there had been no determination, their claims would have been for interim payment and the matter could be referred to CIPAA 2012. If the contract had been terminated and accepted as in the instant case, then the claim of the respondent would relate to final account or final payment and in consequence CIPAA 2012 would not be applicable. Since the claim by the respondent in this instant appeal was not related to CIPAA 2012, the Adjudicator would not have the jurisdiction to hear the dispute (see paras 78 and 81 of the minority judgment). [37] The minority further held that if CIPAA 2012 was 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 an abuse of process. According to the minority, it was wrong to construe CIPAA 2012 to include claims for final payment when the mischief it intended to cure was the timely payment for work related to progress payments and not the final account. It was principally wrong to read into the Act the phrase “final payment” when Parliament has not expressly stated so and the holistic reading of the Act would learn towards interim payment only (see para 75 of the minority judgment). [38] With respect, we are unable to agree with the minority and we are in full agreement with analysis of the majority that as long as they are payment claims relating to a construction contract as defined in section 4, CIPAA 2012 would applied. In our view, it is difficult to fathom any basis for concluding that Parliament intended a bifurcated approach depending on the type of claim. We could see no conceivable basis and/or logical reason that the Parliament would have intended a different approach between the interim payment and final payment. If the Parliament had intended to exclude final claims from the adjudicatory ambit of CIPAA 2012, it could have clearly included a proviso or provisions to that effect. Further, if the Parliament had intended a different approach for interim and final claims, the Parliament would have deliberately utilised a different language evincing such an intention. [39] In our view, the interpretation expounded by the majority is consistent with the purpose and structure of the adjudication process outlined in CIPAA 2012. The modern approach to interpretation of statute mandates that a construction of a statute which promotes the purpose or object of an Act is to be preferred to a construction which does not. For this purpose, all extrinsic materials may be consulted. For example, courts are prepared to consider the Hansard debates, the Preamble, the Explanatory Notes to the bill and Law Commission Report. However, that does not mean that ordinary meaning or clear language may be discarded, for construction and/or interpretation is not divination and courts must respect separation of powers when construing the Acts of Parliament. [40] The leading case in which a purposive approach was accepted by the House of Lords was Pepper v Hart [1993] AC

(a) First, ascertaining the possible interpretations of the text, as it has been enacted. This however should never be done by examining the provision in question in isolation. Rather, it should be undertaken having due regard to the context of that text within the written law as a whole.

(b) Second, ascertaining the legislative purpose or object of the statute. This may be discerned from the language used in the enactment; … it can also be discerned by resorting to extraneous material in certain circumstances. In this regard, the court should principally consider the general legislative purpose of the enactment by reference to any mischief that Parliament was seeking to address by it. In addition, the court should be mindful of the possibility that the specific provision that is being interpreted may have been enacted by reason of some specific mischief or object that may be distinct from, but not inconsistent with, the general legislative purpose underlying the written law as a whole. …

(c) Third, comparing the possible interpretations of the text against the purposes or objects of the statute. Where the purpose of the provision in question as discerned from the language used in the enactment clearly supports one interpretation, reference to extraneous materials may be had for a limited function – to confirm but not to alter the ordinary meaning of the provision as purposively ascertained … (emphasis added in italics and bold italics) [43] In Malaysia, the requirement to have regard to purpose of an Act is contained in section 17A of the Interpretation Act 1948 and 1962 which are in the following terms – “Regard to be had to the purpose of Act 17A. In the interpretation of a provision of an Act, a construction that would promote the purpose or object underlying the Act (whether that purpose or object is expressly stated in the Act or not) shall be preferred to a construction that would not promote that purpose or object.”. [44] On proper application of the provision of the section 17A of the Interpretation Act 1948 and 1983, we refer to the case of All Malayan Estate Staff Union v Rajasegaran & Ors [2006] 6 MLJ 97 wherein the Federal Court had laid down the principle, inter alia, as follows – “In summarising the principles governing the application of the purposive approach to interpretation, Craies on Legislation (8th Ed), says at p 566:

(a) a “right to progress payment”, unless otherwise agreed to by the parties;

(b) a speedy resolution through adjudication for construction disputes relating to payment for works carried out under the construction contract; and

(c) a determination which has temporary finality. A party, which executes construction work and which is unpaid in whole or in part, under the construction contract may serve a payment claim on non-paying party to the construction contract. [47] From the Preamble, it is clear that CIPAA 2012 is “An Act 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 and to provide for connected and incidental matters”. [48] The Explanatory Statement to CIPAA Bill 2011 states as follows – “… EXPLANATORY STATEMENT The Construction Industry Payment Adjudication Act 2011 (“the proposed Act”) seeks to facilitate regular and timely payment in respect of construction contracts and to provide for speedy dispute resolution through adjudication. The purpose of the proposed Act is to alleviate payment problems that presently prevails pervasively and which stifles cash flow in the construction industry. The proposed Act further provides default payment terms in the absence of provisions to that effect and prohibits conditional payment terms that inhibit cash flow. The act also seeks to provide remedies for the recovery of payment upon the conclusion of adjudication.”. (emphasis ours). (See: Explanatory Statement of CIPAA Bill 2011) [49] The speech by the Deputy Minister during the Second Reading of the Bill to introduce CIPAA 2012 in Dewan Rakyat on 2.4.2012 revealed that the raison d’être of CIPAA 2012 is to resolve the payment problem and facilitate regular and timely payment, provide for speedy dispute resolution through adjudication – “12. Tuan Yang di-Pertua, industri pembinaan mempunyai potensi yang tinggi untuk terus berkembang. Antara cabaran yang perlu ditangani bagi mencapai aspirasi ini ialah isu pembayaran yang melibatkan pihak-pihak dalam rantaian pembinaan termasuk kontraktor utama, subkontraktor, sub-subkontraktor, para perunding dan pembekal-pembekal bahan-bahan. Sekiranya masalah pembayaran ini tidak ditangani dengan berkesan, ia boleh menjejaskan aliran tunai dan seterusnya menyebabkan kelewatan menyiapkan projek, kemerosotan kualiti kerja, peningkatan kos dan dalam kes-kes kritikal, kontrak akan ditamatkan…” Pendek kata, tempoh masa yang lama dan kos prosiding yang tinggi adalah merupakan antara faktor utama yang mengekang pihak-pihak terlibat untuk merujuk pertikaian kepada mahkamah atau timbangtara. Justeru itu, kerajaan amat prihatian dengan isu pembayaran dalam industri pembinaan dan telah menggubal Rang Undang-undang Pembayaran dan Adjudikasi Industri Pembinaan 2011 bagi membantu pihak-pihak yang terlibat untuk menyelesaikan pertikaian pembayaran dengan mudah, murah dan cepat. Rang undang-undang ini diwujudkan selepas diadakan beberapa siri perbincangan dan dialog bersama agensi kerajaan, penggiat industri, pihak-pihak yang berkepentingan atau stake holders dan badan profesional yang berkaitan. …….. Pertikaian yang boleh dirujuk kepada adjudikasi adalah berkaitan dengan pembayaran bagi kerja siap atau perkhidmatan yang dibekalkan, yang sepatutnya dibayar di bawah terma-terma nyata kontrak dalam kontrak pembinaan. Ia termasuklah bayaran interim mengikut kemajuan kerja. Prosiding adjudikasi boleh dimulakan sebaik sahaja timbul pertikaian pembayaran sama ada semasa projek pembinaan sedang dijalankan atau selepas projek disiapkan …”. (emphasis is ours). (See the Deputy Minister’s Policy Speech in Dewan Rakyat and the summary of the speech by Mary Lim J (as she then was) in Uda Holdings v Bisraya Construction Sdn Bhd & Anor and another case [2015] 5 CLJ 527). [50] It can be clearly discerned from the Deputy Minister’s speech that CIPAA 2012 is enacted by the Parliament to provide an easily accessible, faster and cheaper resolution forum i.e. the adjudication. The following characteristics of CIPAA 2012 is in tandem with the said intent –

(a) it involves tight time constraints. The deadline for each step is fixed and the timeline for each stage is relatively short to ensure that the disputes are resolved rapidly and quickly;

(b) it involves a significant degree of informality;

(c) it gives adjudicator’s determination a degree of conclusiveness;

(d) it involves rights which are interim only. The rights and liabilities under the Act do not affect other entitlement a person may have under a construction contract or any other remedy a person may have for recovering such entitlement;

(e) the standard adjudicator’s fee is introduced and the charges are cheaper than arbitration. Low-cost decision making is a core object of the scheme in the Act; and

(f) the grounds on which the court can rely upon to set aside the adjudicator’s determination are limited. The court primary duty must be to uphold the adjudicator’s determination and not to revisit the factual or legal matters canvassed before the adjudicator. [51] It is clear, therefore, that the issue of cash flow is the primary objective of CIPAA 2012 as it is deemed to be the life-blood of the construction industry. This position has been recognised by our courts. [52] In the case of PWC Corporation Sdn Bhd v Ireka Engineering & Construction Sdn Bhd & Other Case (No. 2) [2018] 1 LNS 163, Lee Swee Seng J in refusing a stay application pursuant to section 16 of CIPAA 2012, observed the purpose of CIPAA 2012 as follows – “[111] Whilst the Respondent had fulfilled the threshold condition of obtaining a Stay in that a Notice to Arbitrate has been served on the Claimant and that the Arbitration would decide fully and finally all issues that have arisen in the dispute between the parties, that threshold is only a mere trigger for the Court to consider exercising its discretion with respect to Stay. It is not the “be all and end all” of the consideration for Stay of the Decision for otherwise it would be a carte blanche for all who have an Adjudication Decision against them to effectively get a Stay of the Decision by serving a Notice of Arbitration or to file a Writ against the successful Claimant. That would be to denude the CIPAA of its designed purpose of facilitating cash flow in the construction industry and promoting prompt payment for work done for which the contractor is already out of pocket. The construction scene is strewn with sob stories of contractors who have fallen down the slippery slope of financial stress simply because payments for work done or services rendered were delayed.” (emphasis added). [53] When the High Court decided on both the Enforcement and Setting Aside Applications, the learned Judge made the following observations – “[93] In all this debate we must not forget Parliament’s intention in enacting CIPAA is to provide a mechanism for speedy dispute resolution through adjudication, to provide remedies for the recovery of payment in the construction industry and to provide for connected and incidental matters. The objective and purpose for CIPAA are to provide a solution to payment problems that stifles cash flow in the construction industry …”. [54] The majority shared the same view on the CIPAA – “38. … Here of course there is no specific provision in CIPAA 2012 which states that it only applies to “interim payment claims” or that it applies to both “interim and final claims”.

(a) the amount claimed and due date for payment of the amount claimed;

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

(c) description of the work or services to which the payment relates; and

(d) a statement that it is made under this Act.”. [60] Sections 4 and 5 stipulate who, when and how one can initiate proceedings under CIPAA 2012 –

(a) Who can claim – an unpaid party who is being owed payments for work done (either part of payment or full payment) under an express provision of a construction contract;

(b) When can claim-once work is done and the payment is due under the express provisions of the construction contract; and

(c) How to initiate proceedings under CIPAA 2012 – issue a payment claim. [61] There can be no doubt that so long as there is a sum payable under a construction contract for work done and as long as the party remains unpaid, the claim can still be brought against the other party through CIPAA 2012 as it is payment dispute under the construction contract. The section does not suggest that the payment claim should be confined to interim claims only. [62] We also agree with the High Court and the majority that referring to SOPA over old Victorian Act in interpreting “final claim” will be more appropriate. SOPA applies to payments for construction works done or goods or service rendered for the construction industries. [63] Similar to the position in Malaysia, the SOPA is silent to the word “final claim”. The word “progress payment” in SOPA does not mention anything regarding a final account. The Singapore Court had attempted to define progress payment in the case of Tiong Seng Tiong Seng Contractors (PTE) Ltd v Chuan Lim Construction Pte Ltd [2007] 4 SLR 364 where Justice Lai Siu Chiu stated as follows – “[24] Adopting a literal perspective, such an interpretation is justified by the unambiguous wording of the Act, which 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” (“the main limb”). Such a definition expressly includes a “single or one-off payment” or a payment “based on an event or date” (“the supplementary limb”). [25] The plaintiff had submitted that the Act does not cover final claims on the basis that they are not expressly provided for. I have several comments to make on this submission. First, the word “includes” alludes to the non-exhaustive nature of the sub-provisions that follow. From this perspective, the operative definition of “progress payment” should be centred on the main limb rather than the supplementary limb. [26] The plaintiff appeared to have adopted the tack that “final payments” should not be included simply because they were not specifically identified in the supplementary limb as included within the main limb. This approach, with respect, neglects the structure of the provision, which unambiguously defines “progress payments”, at the outset, as payments to which a person is entitled for the carrying out of construction work under a contract. [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 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. [28] In addition, a plain reading of “a payment that is based on an event or a date” or a “single or one-off payment” clearly encompasses final payments. Such a conclusion is vindicated by the fact that the Act at no time makes any distinction between “final claims” and “non-final claims”. Implying such a distinction from the supplementary limb would severely impair the protection afforded by the Act, as it would create a carte blanche for contractors to renege on the final stages of payment, which would have an equally deleterious effect on cash flow affecting other ongoing construction projects. (emphasis ours). [64] In the case of Libra Building Construction Pte Ltd v Emergent Engineering Pte Ltd [2016] 1 SLR 481, the Singapore High Court compared SOPA with New South Wales Building and Construction Industry Security of Payment Act 1999. On the issue of final account, the Court stated as follows – “46. First, "progress payment" is defined in very similar language in both statutes save that the NSWA has an expanded definition to make clear that a final payment under a construction contract is also a “progress payment”. This is not a material difference as it was decided by this court in Tiong Seng Contractors (Pte) Ltd v Chuan Lim Construction Ltd [2007] 4 SLR(R) 364 ("Tiong Seng Contractors") (at [27]) (approved in Chua Say Eng (at [95])) that a final payment would be regarded as a “progress payment” under the Act.”. [65] In the case of Lee Wee Lick Terence (alias Li Weili Terence) v Chua Say Eng (formerly trading as Weng Fatt Construction Engineering) and another appeal [2013] 1 SLR 401, the Singapore Court of Appeal had stated as follows – “95. The other point to note in this case is that PC6 was a final claim for payment and not a progress payment. The Act is expressed to apply to progress payments (s 5). The expression “progress payment” is defined in s 2 as follows: “progress payment” means 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 ... Even though no argument has been made to us on whether a final payment is a progress payment as defined, it seems to us that the definition is wide enough to include a final payment as it is a payment, albeit final, to which a person is entitled for the carrying out of construction works.”. (emphasis added). [66] The Singapore Courts are of the opinion that the definition of progress payment is wide enough to include the final payment as the payment under final account is also for work done or services rendered. So too CIPAA 2012. [67] A broader view in understanding section 5 of CIPAA 2012 is supported by Datuk Professor Sundra Rajoo in “A Practical Guide to Statutory Adjudication in Malaysia”, which was published by KLRCA, wherein the learned author said – “Payment: Under CIPAA, the unpaid party is only allowed to refer a ‘payment’ dispute to adjudication. Section 4 defines payment to mean “payment for work done or services rendered under the express terms of a construction contract”. As such, the definition excludes reference of extra – contractual claims, such as tortious claims or general damages arising from breaches of contract. Unlike the statutory adjudication regime in the United Kingdom which allows all disputes arose under a construction contract to be adjudicated upon, the scope of application of CIPAA is restrictive to payment disputes under a construction contract. However, the parties may expand the scope of reference of the adjudication to matters other than ‘payment’ disputes. ‘Payment’ in this context refers to payment for “construction work” done and “consultancy services” rendered arising “under the express terms” of the construction contract. Falling under this category are progress payments, whatever their form and frequency of disbursement (i.e. monthly, stage payment, advance payment, etc.), final payment, etc. It should also cover items of payment such as for varied work or changes, diminution in value, prime cost sums, preliminaries, cost adjustments, provisional sums, contingent sums, retention sums etc. so long as these are expressly provided for under the construction contract in question.” (emphasis ours). [68] That, however, is not the end of the matter. Learned counsel for the appellant relied on section 36 of CIPAA 2012 in contending that the intention of Parliament in enacting CIPAA 2012 is to adjudicate interim claim only. [69] Section 36 of CIPAA 2012 is in the following terms – “Section 36 of CIPAA

(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.

(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.

(i) the 1st question – In the affirmative;