MCC Overseas (M) Sdn Bhd v Damai City Sdn Bhd (WA-24C-165-09/2021)

the application by Damai City Sdn Bhd (‘Damai City’) pursuant to s 15(a), (b) and (d) of the Construction Industry Payment and Adjudication Act 2012 [Act 746] (‘CIPAA’) read together with O. 7, O. 28 and O. 69A, rr. 1, 2 and 3 and/ or O. 92, r. 4 of the Rules of Court 2012 (‘RC 2012’) in Originating Summons No. WA-24C- 149-09/2021 (‘O.S. No. 149’) to set aside the Adjudication Decision dated 18.8.2021 (‘AD’) by the learned Adjudicator, Sr. Nik Hasbi Fathi (‘Adjudicator’) (encl. 1; ‘Setting Aside

the application by Damai City pursuant to s 16 of the CIPAA and O. 7, O. 28 and O. 69A, rr. 1, 2 and 3 and/ or O. 92, r. 4 of the RC 2012 in O.S. No. WA-24C-150-09/2021 (‘O.S. No. 150’) to unconditionally stay the AD (encl. 1; ‘Stay Application’) pending full and final disposal of the fast track arbitration proceedings between the parties arising from the Notices of Arbitration dated 14.8.2020 and 8.10.2020 (‘Arbitration Proceedings’); and

the application by MCCO Overseas (M) Sdn Bhd (‘MCCO’)

Damai City’s O.S. dated 1.9.2021 (encl. 1);

Damai City’s Affidavit In Support (‘AIS’) affirmed by Tan Wah Keong dated 1.9.2021 (encls. 2 - 22);

MCCO’s Affidavit In Reply (‘AIR’) affirmed by Tsen Fui Teng @ Danny dated 11.10.2021 (encls. 24 - 25);

Damai City’s AIR affirmed by the same deponent dated 1.11.2021 (encl. 26);

Damai City’s Notice of Intention to Use Affidavits in encls. 2 and 29 in O.S. No. 150 and encl. 5 in O.S. No. 165 dated 8.11.2021 (encl. 27); and

MCCO’s Notice of Intention to Use Affidavits in encl. 28 in O.S. No. 150 and encls. 2, 3 and 7 in O.S. No. 165 dated 6.12.2021 (encl. 28). [6] The cause papers for the Stay Application are as follows:

Damai City’s O.S. dated 1.9.2021 (encl. 1);

Damai City’s AIS affirmed by Tan Wah Keong dated 1.9.2021 (encls. 2 - 26);

MCCO’s AIR affirmed by Tsen Fui Teng @ Danny dated 11.10.2021 (encl. 28);

Damai City’s AIR affirmed by the same deponent dated 1.11.2021 (encl. 29);

Damai City’s Notice of Intention to Use Affidavits in encls. 2 and 26 in O.S. No. 149 and encl. 5 in O.S. No. 165 dated 8.11.2021 (encl. 30); and

MCCO’s Notice of Intention to Use Affidavits in encls. 24 and 25 in O.S. No. 149 and encls. 2, 3 and 7 in O.S. No. 165 dated 6.12.2021 (encl. 31). [7] The following are the cause papers for the Enforcement Application:

MCCO’s O.S. dated 24.9.2021 (encl. 1);

MCCO’s AIS affirmed by Tsen Fui Teng @ Danny dated 24.9.2021 (encls. 2 - 3);

Damai City’s AIR affirmed by Tan Wah Keong dated 1.11.2021 (encl. 5);

Damai City’s Notice of Intention to Use Affidavits in encls. 2 and 26 in O.S. No. 149 and encls. 2 and 29 in O.S. No. 150 dated 8.11.2021 (encl. 6);

MCCO’s AIR affirmed by the same deponent dated 19.11.2021 (encl. 7); and

MCCO’s Notice of Intention to Use Affidavits in encls. 24 and 25 in O.S. No. 149 and encl. 28 in O.S. No. 150 dated 6.12.2021 (encl. 8). Brief Facts [8] The background facts to this dispute have been set out in extenso in the judgment of this Court in O.S. No. WA-24C(ARB)-35-04/2021 (‘O.S. No. 35’) involving the same parties. In that case, Damai City had sought declaratory and injunctive reliefs to restrain MCCO from continuing with the adjudication proceedings pending full and final disposal of the Arbitration Proceedings (‘Injunction Application’). Evidently, since the current applications were filed and registered in this Court, Damai City was unsuccessful in its quest in O.S. No. 35. [9] For present purposes, it is suffice for the facts to be summarised in the following paragraphs. [10] By way of the Letter of Acceptance dated 19.5.2017 (‘LoA’), the Plaintiff appointed the Defendant as the main contractor to construct and complete the works for a mixed development project consisting of, among others, service apartments and hotel suites, on Lot 20000 at Jalan Conlay, Kuala Lumpur (‘Project’) for the contract sum of RM1,428,000,000.00 (‘Contract Sum’). [11] On 1.6.2017, the parties entered into the 1st Supplemental Agreement (‘1st SA’) to revise the method and timing of payment for the Project by deferring payment for the works done by MCCO for the Main Builder’s Works (‘MBW’) and the Prime Cost and Provisional Sum Works (‘PCPSW’) in accordance with the terms and conditions in the 1st SA. [12] Subsequently disputes arose between the parties in relation to the balance outstanding sum pursuant to Interim Payment Certificate (‘IPC’) No. 19 to 23, IPC No. 24 and Goods and Services Tax and the Deferred Payment Fee (Cash). This dispute was resolved vide the letter dated 20.9.2019 (‘2nd SA’) from the Defendant to the Plaintiff wherein the outstanding amounts were to be paid in agreed instalments and by the revised due dates. In addition, the parties had agreed to revise the Sectional Completion Dates and the completion requirements stipulated in Clause 3 of the LoA by taking into account all the previous extension of time (‘EoT’) granted and any EoT previously submitted by the Defendant including associated loss and/ or expenses and preliminaries. [13] In O.S. No. 35, this Court had found that the contract forming the subject matter of the adjudication proceedings comprises all the documents as listed in Article 7(q) of the Articles of Agreement (‘AoA’) as amended and the 1st SA and 2nd SA. The documents in Article 7(q) of the AoA are as follows:

the LoA;

the AoA;

the Conditions of Contract (‘CoC’);

the Annexure To CoC: Amendments, Amplifications and

the Contract Drawings;

the Contract Bills; and

other documents incorporated in the Contract Documents, unless expressly stated to be excluded therefrom (hereinafter collectively referred to as the ‘Contract’). [14] The disputes between the parties continued with MCCO contending that Damai City failed to pay MCCO the sums due and owing to MCCO under the Contract whilst Damai City asserted that, by July 2020, it was apparent that MCCO would not be able to complete the Project by the Revised Sectional Completion Dates. [15] On 30.7.2020, the Architect, on behalf of Damai City, issued the Notice of Default pursuant to Clause 25.1 of the CoC. [16] MCCO did not remedy the defaults listed in the Notice of Default within 14 days as contractually required under Clause 25.2 of the COC and accordingly, on 24.8.2020, Damai City issued a Notice of Determination to determine MCCO’s employment under the Contract. [17] Pursuant to arbitration agreement between the parties, the Defendant issued a Notice of Arbitration on 14.8.2020 and 8.10.2020 followed with a Commencement Request on 11.2.2021 to the Director of the Asian International Arbitration Centre (‘AIAC’) pursuant to the AIAC Fast Track Arbitration Rules 2018 (‘Fast Track Rules’). [18] However, on 13.7.2021, a Modification to the Arbitration Agreement was entered into between the parties, by which the Fast Track Rules ceased to apply. The Arbitration Proceedings are now administered by the Arbitral Tribunal ad hoc, under the Arbitration Act 2005 [Act 646] (‘AA 2005’), albeit still on an expedited basis. [19] On 1.10.2021, the Arbitral Tribunal issued Procedural Order No. 4 whereby the Evidential Hearings were split into two tranches i.e. the factual witnesses would give evidence from 6.10.2021 to 14.10.2021, and the expert witnesses would give evidence from 3.1.2022 to 8.1.2022. [20] At the conclusion of the October 2021 tranche of the Evidential Hearings, the Arbitral Tribunal directed that the parties are to exchange written closing submissions on 8.2.2022 and rebuttal submissions on 8.3.2022. The Arbitral Tribunal has further fixed 13.4.2022 and 14.4.2022 for oral submissions. As such, Damai City anticipates that the final arbitral award will be rendered by July 2022, or latest, in August 2022. [21] MCCO had additionally, through its solicitors, issued a Payment Claim to Damai City pursuant to the CIPAA on 18.12.2020 for the total sum of RM166,224,249.34 as follows:

Outstanding certified sum under

Certified sum previously deferred in accordance with the 1st SA; and

Amount certified under IPC Nos. 36 and 37. RM104,897,316.08 RM 27,386,124.75

Retention Fund RM 33,940,808.51 Total Sum RM166,224,249.34 [22] Thereafter, the following documents were issued:

Damai City’s Payment Response dated 5.1.2021 wherein it was stated that it is entitled to make deductions/ exercise set-offs/ raise cross-claims and/ or counterclaims against MCCO for a sum of RM613,086,057.60 as assessed at that time;

MCCO’s Notice of Adjudication dated 10.2.2021 for the same amount as per the Payment Claim;

MCCO’s Adjudication Claim dated 21.4.2021;

Damai City’s Adjudication Response dated 6.5.2021 where the right to raise a set-off/ counterclaim was again reiterated, but this time, for the sum of RM557,195,357.00 or such other sum that the Adjudicator may deem fit and proper; and

MCCO’s Adjudication Reply dated 18.5.2021. [23] On 18.8.2021, the Adjudicator delivered the AD in favour of MCCO. [24] On 17.9.2021, MCCO through its solicitors wrote to the Adjudicator to request the Adjudicator to correct the following computational/ typographical errors in the AD pursuant to sub-s 12(7) of the CIPAA:

the computation of deferred payment and non-deferred sums under IPC Nos. 36 and 37 in paras 235(i) and (ii) and consequentially, the adjudicated amount to be paid to MCCO stated in paras 332(i) and 333(3) to (6) of the AD; and

para 335 of the AD. [25] Having considered the request for corrections, the Adjudicator via his letter dated 23.9.2021 decided to make a correction in respect of only para 335 of the AD. [26] After incorporating the correction, Part Q of the AD on the Adjudicator’s determination reads as follows: “332. Based on the above findings, I now come to the following determination: Q1. On the relief and remedies sought by the Claimant

For the recovery of the Certified sum of RM132,283,440.83, I allow the following sums: For IPC 36, an amount of RM3,897,706.28 For IPC 37, an amount of RM12,533,968.57

(ii) For the recovery of the Retention Sum of RM33,940,808.51, I dismiss the claim

(iii) For Interest for late payment of 6.4% pa, I allow the claim only for the adjudicated sum in para Q1

above

(iv) For further and/or other reliefs, I allow none. Q2. On the relief and remedies sought the Respondent

For the counter-claim of RM557,195,357.00 be allowed, I allow none.

(ii) For the Adjudication claim to be dismissed, I decide that the amounts stated in Q1 (i) are allowed while the remainder of the claim be hereby dismissed.

(iii) For costs on indemnity basis addressed after reply, I dismiss the claim.

(iv) For the Adjudicators fees and expenses, the Respondent shall fully bear.

For late payment interest on costs awarded, I dismiss this claim.

I hereby decide that the Respondent shall pay for the following:

The Adjudicator’s fee of RM89,615.00

The AIAC fees and charges

For IPC 36, an amount of RM3,897,706.28

For IPC 37, an amount of RM12,533,968.57

Interest at the rate of 6.4% per annum on the principal sum of RM3,897,706.28 commencing from 3.9.2020 until the date of realisation.

Interest at the rate of 6.4% per annum on principal sum of RM12,533,968.57 commencing from 3.10.2020 until the date of realisation. All of the above costs mentioned in the foregoing paragraphs shall be payable within fourteen (14) days from the date of this Decision.

Having regard to the deposits that have been made by the parties to AIAC, the balance thereof, if any, shall be returned to the parties, or any further amount required to be made, shall be made within fourteen (14) days from the date of this Decision.

Save for items in para 333 items (3), (4), (5) and (6), if any part of the adjudicated amount is not paid within the time directed, the party owing shall also pay simple interest to the other party being owed, on the unpaid amount at five per centum (5%) per annum calculated from the expiry of fourteen (14) days from the date of this Decision, until full settlement of the unpaid amount.”. I. O.S No. 149: The Setting Aside Application [27] In O.S. No. 149, Damai City stated that its application is pursuant to s 15(a), (b) and (d) of the CIPAA which provides that: “Improperly Procured Adjudication Decision

An aggrieved party may apply to the High Court to set aside an adjudication decision on one or more of the following grounds:

The adjudication decision was improperly procured through fraud or bribery;

There has been a denial of natural justice; …

The adjudicator has acted in excess of his jurisdiction.”. [28] The three broad grounds upon which the application is premised (see too, paras 37 to 41 of the AIS) can be summarised as follows:

the AD was improperly procured through fraud of MCCO;

there has been a breach/ denial of natural justice on the part of the Adjudicator; and

the Adjudicator had acted in excess of his jurisdiction as MCCO is not an “unpaid party” as defined in s 4 of the CIPAA. [29] However, on the hearing date, the learned counsel who appeared for Damai City, Mr. T. Sudharsanan had withdrawn the ground pursuant to s 15(a) CIPAA and further, upon clarification, confirmed that the grounds being relied upon by Damai City are as per the Speaking Note (encl. 65), Executive Summary of Submissions (encl. 50) and Executive Summary of Rebuttal Submissions (encl. 44). Hence, in deciding the Setting Aside Application, the Court had considered the grounds as contained in encls. 44, 50 and 65 and as further elaborated in Damai City’s Written Submission (encl. 37) and Supplemental Submission (encl. 42), which are primarily related to s 15(b) and (d) of the CIPAA. [30] Apart from the abovementioned broad grounds of challenge by Damai City, MCCO had raised a preliminary issue regarding prayer 1 in encl. 1 of O.S. No. 149 (‘Prayer 1’). Before addressing the grounds relied upon by Damai City to set aside the AD, I shall first deal with the preliminary issue as submitted by MCCO. Preliminary Issue: Whether part of the AD can be set aside - The Parties’ Submissions [31] Prayer 1 in the Setting Aside Application is for “an Order setting aside that part of the Adjudication decision dated 18.08.2021 … delivered by the learned Adjudicator … ordering, inter alia, that the Plaintiff pays the Defendant a sum of RM16,431,674.85 within … (14) days from the date of the Adjudication Decision … with interest of 6.4% per annum …” (emphasis added). [32] In the light of the wordings in Prayer 1 as stated above, MCCO argued that s 15 CIPAA does not allow for a party to set aside part of an adjudication decision. The AD has to be accepted as a whole and if Damai City is dissatisfied with the findings made by the Adjudicator, Damai City’s right lies in pursuing concurrent proceedings to right whatever wrong that is perceived to have been committed by the Adjudicator, which had been done by Damai City in the Arbitration Proceedings. [33] Damai City disagreed with MCCO’s contention and submitted that the Setting Aside Application was directed at the whole of the operative section of the AD and not merely a part thereof. The subject matter of the Setting Aside Application and the Enforcement OS Application is the same, namely the Adjudicated Sum. [34] In any event, Damai City contended that the Adjudicated Sum comprises solely of the Non-Deferred Sum under IPC Nos. 36 and 37 and is severable from the rest of the AD. Relying on the case authorities of TYL Land and Development Sdn Bhd v. SIS Integrated Sdn Bhd and another case [2018] 1 LNS 145 and JEKS Engineering Sdn Bhd v PALI PTP Sdn Bhd and another case [2022] 9 MLJ 541, the courts have consistently held that an adjudication decision can be set aside in part if the impugned portion can be severed from the rest of the decision. - Determination of the Court [35] Firstly, MCCO’s preliminary issue has to be understood in the context of what had transpired prior to the hearing of the current triple applications. [36] The hearing of the Setting Aside Application, the Stay Application and the Enforcement Application were initially fixed on 16.12.2021. On that date, the Court had queried Damai City’s counsel as to the intent of prayer 1 in O.S. No. 149 to which Mr. T. Sudharsanan first replied that Damai City was seeking for an Order to set aside the whole AD and this was subsequently clarified to mean the whole of the operative part of the AD. [37] Mr. H.L Choon responded that, in the written submission, Damai City had taken a legal position that Prayer 1 is correct and if the Court agrees with MCCO that s 15 of the CIPAA does not provide for setting aside of part of the AD, then encl. 1 is defective and must be dismissed. The learned counsel implored the Court to then proceed with the Enforcement Application and that can be allowed in whole or in part. [38] The learned counsel for Damai City made an oral application to amend Prayer 1, however this was objected to by his opponent. The Court then directed Damai City to file a formal application to amend O.S. 149, which it did on 22.12.2021 pursuant to O. 20, r. 7 read with r. 5 of the RC 2012 and/ or the inherent jurisdiction of the court (encl. 51). [39] In the proposed Amended O.S., Damai City applied to delete the words “that part of” in Prayer 1. The hearing of encl. 51 took place on 20.1.2022 and after considering the cause papers and submissions of the parties, the Court had dismissed Damai City’s application with cost in the cause for the following reasons:

On the authority of the decision of the Court of Appeal in U-Meng Holdings Sdn Bhd & Anor v. Tan Sri Datuk Ibrahim Mohamed; Ambank (M) Bhd (Third Party) [2010] 9 CLJ 411, O. 20, r. 5 of the RC 2012 is all encompassing in that it applies to an O.S., an originating notice of motion and a writ. Hence, the case authorities which deal with the rules on amendment of pleadings such as Yamaha Motor Co Ltd v Yamaha Malaysia Sdn Bhd & Ors [1983] 1 MLJ 213 and Hong Leong Finance Bhd v Low Thiam Hoe and another appeal [2016] 1 MLJ 301 are equally applicable to the amendment of the O.S.

In view of the fact that Damai City made no attempt to apply to amend the O.S. although it knew, from the prior exchange of affidavits and MCCO’s written submissions, that MCCO had raised a preliminary issue regarding Prayer 1, and that encl. was filed only as a result of the query by the Court as to Prayer 1 on the first hearing date, I was inclined to find that the amendment application in encl. 51 was made at a very late stage and therefore, the principles in Yamaha Motor (supra) are not the sole considerations (see para 33 in Hong Leong Finance (supra) wherein the Federal Court held that additionally, there has to be cogent and reasonable explanation in the applicant’s affidavit as to why the application was filed late; the application is not a tactical maneuver; the proposed amendment must disclose full particulars for the court to ascertain if there is a real prospect of success in proving the same; and the delay in making the application to amend cannot be compensated by payment of costs).

With regards to Damai City’s first ground in support of the amendment application, namely that the proposed amendment will not turn the O.S. from one character into an O.S. of another and inconsistent character, Damai City affirmed in para 15 of the AIS (encl. 52) that –

O.S. No. 149 is directed at the whole of the dispositive/ operative section of the AD, and not merely a part thereof;

(ii) the amendment application was filed to clarify that the Setting Aside Application is directed at the whole of the AD; and

(iii) the reference to “that part of” in Prayer 1 was made in abundance of caution to preserve Damai City’s position as there are portions of the AD that are favorable to Damai City. In his oral submission, learned counsel for Damai City said that Damai City is desirous to set aside all the reliefs in the AD as stated in paras 332 and 333, however, at the same time, he submitted that it is the order as to payment for IPC Nos. 36 and 37 with interest thereon, the Adjudicator’s fees and the AIAC fees and charges that were sought to be set aside. Previously, on 16.12.2021, the Court had enquired as to what Damai City’s counsel meant by the words “operative part” or “dispositive part” of the AD. Mr. T. Sudharsanan referred to the judgment of the Federal Court in Siemens Industry Software GmbH & Co KG (Germany) v. Jacob And Toralf Consulting Sdn Bhd & Ors [2020] 5 CLJ 143 where the question of law which arose for consideration in that case was “Whether for the purposes of an application made under section 38 of the Arbitration Act 2005 and Order 69 rule 8 of the Rules of Court 2012 (“Recognition and Enforcement Application”), the recognition and enforcement of an arbitration award by way of entry as a judgment of the High Court of Malaya ought to relate only to the disposition of the said award and not the entire award containing the reasoning, evidentiary and factual findings of the arbitral tribunal?”. Tengku Maimun Tuan Mat CJ, in delivering the decision of the Court, held that the High Court did not err in concluding that it is the dispositive portion or the ultimate and final conclusion of the arbitral tribunal which is intended to be given due recognition as binding and enforceable by conferring it with the status and effect of a judgment of the High Court. The dispositive part of the award is the decision of the arbitral tribunal and not the reasoning or findings (see, in particular, paras 34 - 37 of the judgment). By analogy, the dispositive portion of the AD would be paras 333 to 335 in the AD. In the proposed Amended O.S., the part of Prayer 1 which relates to the Adjudicator’s decision that Damai City pays MCCO a sum of RM16,431,674.85 with interest remains unchanged (see subparas 333(3) to (6) of the AD). Upon consideration of the parties’ oral and written submissions, I am inclined to agree with MCCO that Damai City did not take an unequivocal stand on the matter and that Damai City’s true intent has always been to set aside only part of the AD. The reason for this is obvious; there are parts of the AD which is favorable to Damai City, for example, the Adjudicator’s decision in dismissing MCCO’s claim for the retention sum and Damai City would naturally wish to maintain these sections of the AD. The Court also found this argument of MCCO to be convincing; that if the proposed amendment is allowed by the Court, it would turn the nature of the Setting Aside Application from setting aside part of the AD to the whole of the AD, and this would require the Court to deliberate on an entirely different set of matters. Moreover, Damai City had elected to set aside part of the AD from the very beginning, and it should not be allowed to retract its election through the amendment application just because during the hearing on 16.12.2021, it sensed that the Court is not convinced that Prayer 1 could be worded in the manner as it appeared in O.S. No. 149. On the issue as to whether the Court has the power to set aside part of the AD. Mr. H.L. Choon drew support from the decisions in BM City Realty & Construction Sdn Bhd v. Merger Insight (M) Sdn Bhd & another case [2016] 1 LNS 1096, MKP Builders Sdn Bhd v. PC Geotechnic Sdn Bhd & another case [2020] 1 LNS 1559 and Integral Acres Sdn Bhd v BCEG International (M) Sdn Bhd and other cases [2021] MLJU 1889 in submitting that the answer is in the negative. In Integral Acres, one of the issues for consideration was whether the court can enforce only the valid part of the adjudication decision. Wong Kian Kheong J referred to His Lordship’s earlier decision in Naza Engineering & Construction Sdn Bhd v SSL Dev Sdn Bhd [2020] 9 MLJ 499 where His Lordship addressed the issue of whether the court has the power under s 15 to vary the adjudication decision or to sever the “contaminated part” of the same. It is accepted that s 15 of the CIPAA is silent as to the power of the High Court to sever and set aside only part of the adjudication decision. The court in Naza Engineering (supra) held that the power of the court to sever or vary an adjudication decision is derived from sub-s 28(2) of the CIPAA and thus, where there are two simultaneous applications before the court pursuant to ss 15 and 28 CIPAA, the court may, in an appropriate case, sever the adjudication decision so as to enforce only a part of the same. However, as the sole application that was brought in Naza Engineering was under s 15 CIPAA, it was ultimately held that the court had no power to sever the decision and the entire adjudication decision was set aside pursuant to s 15(d) CIPAA. This Court in JEKS Engineering (supra) had considered Naza Engineering together with other cases and expressed support for severance of the adjudication decision and allowing for part of the same to be enforced in an appropriate case under sub-s 28(2) CIPAA (see paras 115 - 120 of the judgment; see too the discussion in Construction Adjudication In Malaysia, Third Edition, Sweet and Maxwell, 2022 by Lam Wai Loon and Ivan YF Loo at pp 472 - 475). Apart from the cases of Inai Kiara Sdn Bhd v. Puteri Nusantara Sdn Bhd [2019] 2 CLJ 229 and TYL Land (supra) Damai City also relied on JEKS Engineering in submitting that the courts have consistently held that an adjudication decision can be set aside in part if the impugned portion of the decision can be severed from the rest of the decision. However, what Damai City failed to appreciate is that in JEKS Engineering, the prayer in the O.S. filed by PALI PTP Sdn Bhd was simply for an order to set aside the adjudication decision.

As for Damai City’s second ground in support of the amendment application i.e. that the proposed amendment will not cause any prejudice that cannot be compensated with costs, MCCO made a strong case that the amendment application was not intended to clarify any confusion but it was to allow Damai City a second bite at the cherry based on a new position. It was argued that if Damai City was held to its original position of wanting to set aside a certain part of the AD, this would inevitably lead to the Setting Aside Application being dismissed and the Enforcement Application being allowed. Damai City was thus using the amendment application to undo and change the course of this inevitable process, which was the direct and natural outcome of the election made by Damai City in praying for an order to set aside part of the AD pursuant to s 15(a), (b) and (d) of the CIPAA. This constitutes prejudice that cannot be compensated with costs. I agree.

The amendment application was not made bona fide, but rather, as described by MCCO’s counsel, it was “an attempt to shift the goalposts after the game has started and a goal about to be scored”. MCCO had raised the defective nature of Prayer 1 right from the start and Damai City chose to maintain its position until the hearing on 16.12.2021. Damai City abandoned its stance only after having been questioned by the Court regarding the wordings of Prayer 1.

There was an inordinate delay on the part of Damai City in filing the amendment application and no explanation was offered to justify the delay. The events as narrated above would show that the amendment application was filed consequent to the decision of the Court in disallowing Damai City’s oral application to amend Prayer 1. Contrary to Damai City’s contention that there was no delay as the application was filed merely six days after 16.12.2021, the clock had actually started ticking from the filing of MCCO’s AIR on 11.10.2021 when it raised the preliminary matters in paras 6 and 7. [40] Consequent to the above findings and conclusions in respect of Damai City’s application in encl. 51, Prayer 1, properly read, seeks to set aside part of the AD. However, there is no express provision in the CIPAA which allows the Court to set aside only part of the AD. The cases decided by the High Court to date are with regards to the power under sub-section 28(2) of the CIPAA to sever an adjudication decision so as to enforce part of the AD. [41] The Court agrees with MCCO that Prayer 1 is bad in law. Nonetheless, the Court had considered the merits of the Setting Aside Application and it is to this matter that I shall now discuss. 1st Ground: Whether there is denial of natural justice when the Adjudicator did not give Damai City the opportunity to be heard on issues which were not raised by the parties in the adjudication proceedings - The Parties’ Submissions [42] A Summary of the Adjudicator’s Findings in Disallowing Damai City’s Counterclaims was enclosed as Annexure A to Mr. T. Sudharsanan’s Speaking Note and is re-produced below to aid in the understanding of this ground of challenge against the AD: DCSB’s Counterclaims Adjudicator’s Findings Reference to Adjudication

Defaults by MCCO (RM134,099,600.00)

Additional construction costs (RM128,472,503.81) Satisfied evidentially as to proof of this counterclaim. However, this counterclaim is premature, as payment is subject to final account stage pursuant to Clause 25.4(d) of the COC.

Paragraphs 300, 301 and 315 Project consultants’ fees (RM5,627,095.67) Satisfied evidentially as to proof of this counterclaim. However, this counterclaim is premature, as payment is subject to final account stage pursuant to Clause 25.4(d) of the COC. Paragraphs 300, 301 and 316 Defects, non-compliance and upgrading related costs (RM18,223,153.00)

Defects, non-compliance and upgrading related costs (RM18,223,153.00) Satisfied evidentially as to proof of this counterclaim. However, this counterclaim is premature, as payment is subject to final account stage pursuant to Clause 25.4(d) of the COC. Paragraphs 302, 303 and 318 DCSB’s Counterclaims Adjudicator’s Findings Reference to Adjudication Decision Additional costs and expenses resulting from the delay in the completion of the Project (RM48,898,577.00)

LAD to purchasers of Tower A Residence (RM19,014,555.00) Not part of construction works but a commercial arrangement that may be dealt with in a forum other than adjudication.

Paragraph 319 Penalty imposed by Kempinski

Additional financing costs

Additional operational costs (RM5,381,329.00) Loss of business profits (RM65,714,104.00)

Loss of business profits from the Hotel operation (RM21,627,683.00) Not part of construction works but a commercial arrangement that may be dealt with in a forum other than adjudication.

Paragraph 321 Loss of business profits from the Hotel Residence operation

Loss of business profits from the Retail Space operation (RM17,185,773.00) DCSB’s Counterclaims Adjudicator’s Findings Reference to Adjudication

Loss of business profits from the Carpark operation (RM3,833,818.00) Opportunity loss resulting from the delay in the completion of the Project

Opportunity loss resulting from the delay in the completion of the Project (RM292,261,923.00) Not part of construction works but a commercial arrangement that may find and be dealt with a forum other than adjudication. Paragraph 321 [43] Based on the above table, the Adjudicator had disallowed Damai City’s –

counterclaims for –

additional construction costs and Project consultants’ fees of RM134,099,600.00; and

(ii) defects, non-compliance and upgrading related costs of RM18,223,153.00 on the ground that these counterclaims are premature and had not been determined at the final account stage under Clause 25.4(d) of the CoC; and

right of set-off/ counterclaims for –

additional costs and expenses resulting from delay in the completion of the Project in the sum of RM46,896,577.00;

(ii) loss of business profits of RM65,714,104.00; and

(iii) opportunity loss resulting from delay in the completion of the Project of RM292,261,923.00 on the ground that these counterclaims are “not part of construction works but a commercial arrangement” that may be dealt with by a forum other than adjudication. [44] Damai City contended that it is undisputed that issues on the prematureness of its right of set-off/ counterclaims and that the counterclaims are not part of the construction works but are commercial arrangements between the parties were never raised as questions for determination in the adjudication proceedings by MCCO or the Adjudicator. However, the Adjudicator had gone on a frolic on his own and had decided on issues which were not previously raised by the parties without giving Damai City the opportunity to be heard on these decisive matters. [45] It was further argued that, if Damai City was given an opportunity to be heard on this issue, it would have submitted that –

if Clause 25.4(d) of the CoC is void, as held by the Adjudicator, by virtue of Clause 35 of the CIPAA, it must be void against both parties;

s 35 of the CIPAA must be applied equally, otherwise it would result in unequal treatment between an employer and a contractor, and would lead to an unfair and unjust outcome;

s 35 of the CIPAA must be construed in a way that is consistent with the universal principle that a party should not be allowed to take advantage of its own wrong. By allowing MCCO’s claim for the Non-Deferred Sum under IPC Nos. 36 and 37, on the one hand, and by disallowing Damai City’s right of set-off/ counterclaim, on the other hand, the Adjudicator was allowing MCCO to take advantage of its own wrong; and

the distinction drawn by the Adjudicator between damages that are part, or not part, of construction works is based on a flawed construction of Clause 25.4(d) CoC, and not derived from the terms of the Clause itself, which do not lend themselves to such a dichotomy. [46] Damai City accentuated that there were real legal issues of considerable importance to the outcome of its right of set-off/ counterclaims, which warranted fair consideration by the Adjudicator and his failure to accord the parties with an opportunity to be heard on these issues occasioned a material breach, and not just a peripheral breach, particularly because the Adjudicator had found that the determination of MCCO’s employment by Damai City was valid and lawful, and that Damai City has a legal right to set-off and its expert had satisfied the Adjudicator on the validity of the set-off/ counterclaim amounts. Hence, there is a real possibility that the Adjudicator would have allowed items nos. 1 to 3 in the table at para 42 above and this would have extinguished the Adjudicated Sum entirely. [47] Damai City’s counsel also submitted that any contention that the prematurity issue can be raised and canvassed again in the Arbitration Proceedings is not a convincing argument as the effect of the AD is that Damai City is liable to pay in excess of RM16,431,674.85 without having been accorded a prior opportunity to be heard on this issue. [48] MCCO’s response to the foregoing submissions of Damai City are summarised as follows:

the Adjudicator did not act on a frolic of his own because, based on paras 163 and 164 of the Adjudication Response, Damai City was the one who relied on Clause 25.4(d) of the COC in justifying its set-off/ counterclaim against MCCO;

the Adjudicator had meticulously considered Damai City’s set-off/ counterclaim and specifically its claim for loss and damage pursuant to Clause 25.4(d) of the COC and had dismissed the same on the ground that Damai City had not fully complied with the condition precedents for set-off and the damages sought would be more appropriately dealt with in another forum other than adjudication due to the nature of the claims. This determination is premised on findings of fact and law made by the Adjudicator after having gone through the voluminous evidence and all the propositions and arguments put forth by the parties and regardless of the correctness of these findings, is not something that the Court is vested with power to interfere;

Damai City’s request for an oral hearing/ clarification session (‘Request’) was a bare request as it did not provide any specific reason or particulars as to why the hearing or clarification was necessary. In any event, the Adjudicator had considered the Request and was of the view that there was sufficient evidence before him to make a determination of the issues in dispute; and

Damai City did not provide any proof that the alleged denial of natural justice had affected the eventual outcome of the AD. - The Determination of the Court [49] Clause 25.4(d) of the CoC states that: “In the event that the employment of the Contractor is determined under Clause 25.1 or 25.3, the following shall be the respective rights and duties of the Employer and Contractor:

25.4(d) the Contractor shall allow or pay to the Employer all cost incurred to complete the Works including all loss and/or expense suffered by the Employer. Until after the completion of the Works under Clause 25.4(a), the Employer shall not be bound by any provision in the Contract to make any further payment to the Contractor, including payments which have been certified but not yet paid when the employment of the Contractor was determined. Upon completion of the Works, an account taking into consideration the value of works carried out by the Contractor and all cost incurred by the Employer to complete the Works including loss and/or expense suffered by the Employer shall be incorporated in a final account prepared in accordance with Clause 25.6.”. [50] The above quoted Clause first appeared in para 13 of the Payment Response in this manner: “13. In any event, as a consequence of the determination of MCCO’s employment, which was valid and lawful, pursuant to Clause 25.4(d) of the COC, DCSB shall not be bound to make any further payment to MCCO, including payments which have been certified but not yet paid, until after the completion of the Works under Clause 25.4(a) of the COC.”. [51] In paras 59 to 61, Part F3 of the Adjudication Claim, MCCO cited the case authorities of Econpile (M) Sdn Bhd v IRDK Ventures Sdn Bhd and another case [2017] 7 MLJ 732 (HC) and IRDK Venture Sdn Bhd v Econpile (M) Sdn Bhd and another appeal [2020] MLJU 939 (CA) to support the proposition that Clause 25.4(d) of the CoC is a conditional payment provision which is prohibited under the CIPAA and/ or defeats the purpose of the CIPAA. The precise para in Econpile’s case (HC, supra) which was quoted is re-produced below: “[83] … a condition like cl 25.4(d) has the effect, upon the termination of the contract, of postponing payment due until the final accounts are concluded and the works completed and that would be defeating the purpose of the Act. Therefore such a clause is void and unenforceable and the adjudicator may disregard it altogether.”. [52] Further reference to Clause 25.4(d) of the CoC can be found in para 163 of the Adjudication Response under Part H on Damai City’s Counterclaim/ Right To Set-Off: H2. MCCO’s Liability under the CoC. To appreciate the context in which Clause 25.4(d) of the CoC was relied upon by Damai City, reference is made to paras 162 and 164 as well as follows: “162. In the circumstances, we would respectfully submit that the learned Adjudicator must accept the evidence and submissions advanced by DCSB, in that MCCO’s employment was lawfully determined under Clauses 25.1 and 25.2 of the COC. …

Accordingly, DCSB is contractually entitled under the COC to determine MCCO’s employment under the COC and to further claim against MCCO, compensation for, inter alia, the following loss and damages:- i. All costs incurred to complete the Project / Works, including all loss and/or expense suffered by DCSB. ii. All costs and/or expense incurred for the rectification of existing defects in respect of the Project / Works. iii. All loss and/or expense occasioned by the delay in the completion of the Project / Works, as a result of MCCO’s breaches and/or acts of default. iv. Loss of opportunity / loss of profit arising from MCCO’s breaches and/or acts of default.”. [53] Following from the earlier part in the Adjudication Response where Damai City submitted that an abundance of overwhelming evidence shows that MCCO was guilty of default and delays and was lawfully determined under Clauses 25.1 and 25.2 of the CoC, Damai City then quoted Clause 25.4(a) and (d) of the CoC, with the words “the Contractor shall allow or pay to the Employer all cost incurred to complete the Works including all loss and/or expense suffered by the Employer” being given emphasis, to support its contention that it was also contractually entitled to claim compensation against MCCO for loss and damages as stated in subparas 164(i) to (iv) of the Adjudication Response. [54] In reply to Part H of the Adjudication Response, MCCO in the Adjudication Reply asserted that Damai City is not entitled to its counterclaim/ set-offs on the grounds, inter alia, that –

Damai City has not satisfied the conditions precedent for set-off under Clause 30.4(a) and (b) of the CoC which provides that: “The Employer shall be entitled to set-off all cost incurred and loss and expense where it is expressly provided under Clauses 2.4, 4.4, 5.1, 6.5(e), 6.7, 14.4,

15.3(b), 15.3(c), 15.4, 15.5, 19.5 and 20.A.3. No set-off under this clause may be made unless:

30.4(a) the Architect (on behalf of the Employer) has submitted to the Contractor complete details of their assessment of such set-off; and

30.4(b) the Employer or the Architect on his behalf has given the Contractor a written notice delivered by hand or by registered post, specifying his intention to set-off the amount and the grounds on which such set-off is made. Unless expressly stated elsewhere, such written notice shall be given not later than twenty eight (28) Days before any set-off is deducted from any payment by the Employer. …”. According to MCCO, Damai City did not produce evidence of any notice issued under Clause 30.4 of the CoC in respect of its counterclaim of RM613,086,057.60 and all that it could show was a notice of intention to set-off dated 24.12.2020 for the sum of RM143,620,948.89. The said notice of intention was issued after the last certificate i.e. IPC No. 37 dated 19.8.2020 became due and payable on 3.10.2020 and was therefore too late to have any effect;

applying the legal principle established in Pembenaan Leow Tuck Chui & Sons Sdn Bhd v Dr Leela's Medical Centre Sdn Bhd [1995] 2 MLJ 57, Damai City is limited to making deductions from the amounts claimed as fall strictly within the scope of permitted set-offs under the Clauses as stated in Clause 30.4 of the CoC. Damai City cannot seek to utilise any claims it has pursuant to Clause 25 of the CoC as pleaded in Parts H2 and H3 of the Adjudication Response to set-off against MCCO’s claim, which are for certified sums, and instead it has to pursue its claim as a separate claim, which it has done in the Arbitration Proceedings; and

Damai City’s set-offs/ counterclaims have yet to crystallise, and are not certain and unascertainable at the time of the adjudication proceedings. [55] Moving on to the AD itself, the Adjudicator, in leaning in favour of allowing MCCO’s claim for the certified amount in IPC Nos. 36 and 37, had at first considered two possibilities as explained in the following excerpt from the AD: “243. If the Respondent exercises his rights post-termination, can he then withhold the payment under Clause 25.4(d)? The literal reading of this clause appears to give the Respondent that right, which is what the Respondent is asserting. The Respondent has given credible estimate by the QS on the likely additional costs involved, complete with the Statutory Declaration.

On the other side of argument is the objective of CIPAA as I have mentioned in what I hold as the philosophy to advance its objectives that may override the contractual provision. I also take note of s.35 and the authorities advanced by the Claimant on the position of withholding certified payments.

I lean on the side of advancing the objectives of CIPAA to provide regular and timely (read as when is due per the period of honouring certificate) payment, in my interpretation of s.35. My reading of clause 25.4 is that once terminated, there will be additional costs incurred by the Employer in getting others to do the work that the contractor has left (or been made to leave). This can only be determined at the final account stage that neither party could predict in terms of timeframe. This makes the final determination of the account as uncertain and conditional upon the completion.

I am not saying that parties are not free to contract in any way they want, but when an action is brought under CIPAA, the dispute is governed by the regime of CIPAA and in my view, the interpretation of clause 25.4(d) as befitting the definition of s.35, is very much in line with the objectives of CIPAA.”. [56] It is thus evident that, even before the Adjudicator had dealt with the issue of Damai City’s set-off and counterclaim from paras 279 to 321 of the AD, he had accepted MCCO’s submission that Clause 25.4(d) of the CoC is a conditional payment provision which defeats the purpose of the CIPAA. The Adjudicator had also taken the view, upon finding the determination of MCCO’s employment by Damai City was lawful, that once the Contract is terminated, whatever additional costs incurred by Damai City in employing other persons to carry out and complete the works for the Project and to make good any defects can only be conclusively determined at the final account stage. [57] The Adjudicator’s assessment of the matter was maintained in his analysis of Damai City’s set-off and counterclaim (which he dealt with in two categories of set-off RM143,620,948.89 and counterclaim RM557,195,357.00; see para 282 of the AD) wherein at paras 286 to 288 of the AD, he said: “286. Clause 25.4(d) details out that the final account shall be determined after the works is completed when all the costs including loss and expense suffered by the Employer can be properly ascertained. Here, I agree with the contention of the Respondent that the Employer is not contractually bound to honour certificate of work that has been issued and not paid. However, as I reasoned above, this position is not tenable under the CIPAA regime as in my view clause 25.4(d) in itself conditions the payment upon ascertainment, that I opine to be a conditional payment.

The argument that I have to consider is the word ‘shall allow or pay' that in the sentence that begins clause 25.4(d). My understanding of the Respondent’s contention is that it is permissible to ‘allow’ as in allocate a reasonable amount to cover any possible shortfall of the final account that tilts in favour of the Employer. This is somewhat speculative as the process to determine those components that make up the final account is a complex one, especially when involving loss and expense.

I am not keen to interpret ‘allow’ as to mean ‘allocate’; primarily because the sentence itself does not confer power for the Employer (or their agents i.e. Architect and QS) to allocate an amount to be reserved to overcome any possible shortfall. My interpretation is that the sentence depicts the condition that the Contractor has to abide by in the formulation of the final account: to allow (meaning deduct) or pay should the account results in an amount that the Contractor owes to the Employer after all the allowable deductions are accounted for.”. [58] The Adjudicator made further references to Clause 25.4(d) of the CoC in paras 296, 297, 303, 305, 306, 311, 315, 316 and 318 of the AD. [59] The discussion on the claims as per items nos. 1 to 3 in the table at para 42 above and the Adjudicator’s reasonings and conclusions can be seen in paras 313 to 318 of the AD. Basically, the Adjudicator justified his decision in rejecting these claims on the basis of the prematurity of the claims as explained in the preceding paras of the AD, among others, as follows: “297. However, clause 25.4(d) states the type of costs and states the time when this is due: Upon completion of the works, an account taking into consideration the value of works carried out by the contractor and all costs incurred by the Employer shall be incorporated in a final account prepared in conformity with clause 25.6. …

However, as I reasoned above, the operative clause 25.4(d) from the earlier enabling clauses, is only exercisable upon completion of the works. The parties of course at liberty to further test these points in other fora (‘forums’) as accorded by CIPAA.”. [60] In addition, references were made to Clause 30.4 of the CoC in paras 290 and 291 of the AD whereby the Adjudicator finally agreed with MCCO’s submission that the stringent requirement before the right of set-off can be exercised has not been fulfilled. The following is what the Adjudicator had concluded: “308. I do not dispute the authorities given by the Respondent in support of the legal rights to set-off. Further, even the Claimant’s culpability has been established. Be that as it may, I have to view the exercise through the lens of the COC more specifically. I note the notice given by the Architect of his intention to set-off (RBOD A-19) but I have elaborated on the requirements of the COC that gives the stringent condition for set-off covering the occasions and the procedures. Both of these have not been fully complied with to give effect to the set-off as claimed by the Respondent. In conclusion, I cannot allow the amount sought by the Respondent under this head.”. [61] In so far as the claims under items nos. 4 to 12 in the table at para 42 above are concerned, the Adjudicator was of the opinion that damages are not part of the construction works as reflected in these paras of the AD: “319. … Without the need to elaborate further, these costs are damages that is not part of construction works but a commercial arrangement that may find and be dealt with a forum other than adjudication thus I consider the claim to be out of the adjudicator’s scope to determine. …

I appreciate the great lengths the Respondent’s expert have gone in giving the derivation of the figures and the application of the varying NDPV percentages of 12% and 15%, and the elaboration of how these constitutes the losses to be suffered by the Respondent. I may not doubt the derivation and the rationale of the costs as have been elaborately explained in the report, but in my view as a construction professional, not only this would stretch my imagination to fathom and appreciate the severity, unless I am guided by another expert to verify, which in this case I have not, they also fall under damages not part of construction works but a commercial arrangement that may find, and be dealt with, a forum other than adjudication.”. [62] After having carefully scrutinised the adjudication papers, particularly the Payment Response, Adjudication Claim, Adjudication Response and Adjudication Reply, I am satisfied that the Adjudicator did not go on a “frolic of his own”, the meaning of which has been explained in cases such as Balfour Beatty Construction Company Ltd v The Camden Borough of Lambeth [2002] BLR 288 and applied in, among others, Hiform (M) Sdn Bhd v. TSR Bina Sdn Bhd & Another Case [2020] MLRHU 588 and Samado Sdn Bhd v. Kerajaan Malaysia & Another Case [2020] 5 MLRH 165, for the following reasons:

Damai City had relied on Clause 25.4(d) of the COC in justifying its set-off and counterclaim against MCCO. As such, it was a live issue that fell within the ambit for determination by the Adjudicator who had had rightfully extended his views on the operation of the said Clause including as to whether the damages claimed could be raised as a defence under the CIPAA. The cases of WRP Asia Pacific Sdn Bhd v. NS Bluescope Lysaght Malaysia Sdn Bhd & Other Case [2015] 1 LNS 1236 and Kining Exeton Sdn Bhd v. Majlis Perbandaran Kuantan [2017] 1 LNS 1905 as cited by Damai City to support its submission can be distinguished. In WRP Asia Pacific, the High Court had set aside the adjudication decision because the adjudicator had relied and heard the adjudication dispute on matters that were not found in the Payment Claim and the Adjudication Claim and this was contrary to the provisions of sub-s 27(1) CIPAA. The Court held that the adjudicator had breached the rules of fair play and exceeded his jurisdiction. Sub-s 27(1) and (2) of the CIPAA read as follows: “Jurisdiction of adjudicator

27.

Subject to subsection (2), the adjudicator's jurisdiction in relation to any dispute is limited to the matter referred to adjudication by the parties pursuant to sections 5 and 6.

The parties to adjudication may at any time by agreement in writing extend the jurisdiction of the adjudicator to decide on any other matter not referred to the adjudicator pursuant to sections 5 and 6.”. In the instant case, the parties had not entered into a written agreement as stipulated in sub-s 27(2) CIPAA. With regards to sub-s 27(1) CIPAA, after the judgment in WRP Asia Pacific, the Federal Court in View Esteem Sdn Bhd v. Bina Puri Holdings Bhd [2018] 2 MLJ 22 had decided that an adjudicator is obliged to consider all defences which are raised by the non-paying party in the adjudication response, irrespective of whether these had been previously raised in the payment response. In Kining Exeton, this Court held that there was a material breach of the rule of natural justice and that the Adjudicator had acted in excess of his jurisdiction when he failed to bring to the attention of the parties the issue on “time at large”, which was not raised or submitted by the parties for the adjudicator’s determination and which the parties ought to have been given a fair opportunity to comment upon, as it turned out to be the decisive issue upon which the adjudicator had dismissed the respondent’s cross-claim for liquidated and ascertained damages.

The Adjudicatorhad meticulously considered Damai City’s set-off and counterclaim by analysing the issues in terms of, among others, the value of work done and the time of determination of such value, and when the deduction for the amounts claimed by Damai City can be exercised. The Adjudicator found that Damai City’s right of set-off and counterclaim is premature as it has not been determined at the final accounting stage, which falls within the 2nd limb of Clause 25.4(d) of the COC. The decision to dismiss the claims for loss and damage are premised on findings of fact and/ or of law. In essence, Damai City’s complaint is on the merits of these findings, which, regardless of whether they are correct or otherwise, is not something that the Court is vested with power to interfere pursuant to s 15(b) of the CIPAA (see, inter alia, Terminal Perintis Sdn Bhd v Tan Ngee Hong Construction Sdn Bhd and another case [2017] 1 LNS 177, Guangxi Dev & Cap Sdn Bhd v Sycal Bhd [2019] 1 CLJ 592, Globalcon Holding (M) Sdn Bhd v. DMC Builder Sdn Bhd [2020] MLRHU 1366 and Perbadanan Perwira Harta Malaysia v. Kuntum Melor Sdn Bhd & Another Case [2021] MLRHU 1202).

Even if the Adjudicator had arrived at the findings on the issue of Clause 25.4(d) of the COC on his own accord, this did not have a direct bearing on the AD as he had already found that Damai City had failed to comply with the condition precedents for set-off. This was a separate and independent finding of fact. In other words, irrespective of the Clause 25.4(d) CoC issue, the Adjudicator would have reached the same conclusion i.e. that Damai City’s set-off and counterclaim cannot be allowed to extinguish MCCO’s claim. [63] Turning next to the issue of the Request, Damai City had made the Request in response to the Adjudicator’s letter dated 28.7.2021, which mentions two items, namely regarding the mode of service and an extension of time (‘EoT’) for delivery of the adjudication decision. In Damai City’s letter dated 3.8.2021, apart from conveying that it was agreeable to the request for EoT, Damai City stated the following: “5. Further, in view of the challenges and constraints faced by the learned Adjudicator due to the FMCO, the Respondent respectfully seeks an oral hearing / clarification session conducted via remote video conference under Section 25(g) of Construction Industry Payment and Adjudication Act 2012, to assist the learned Adjudicator by highlighting and drawing the learned Adjudicator’s attention to the salient points of each parties’ case. In that regard, the Respondent’s solicitors are available anytime next week and the week after, for the proposed oral hearing / clarification session, which we foresee, would not take more than one (1) full day. For the avoidance of doubt, the oral hearing / clarification will be confined to the parties’ existing submissions and it is not for the parties to raise any new issues.”. [64] The Adjudicator replied on 6.8.2021 to say that: “Oral Hearing I note the concerns expressed by the Respondent on the evidence issue and the request for oral hearing. At the same time, I also note the Claimant’s views. Having considered the situation, that I shall also address in the Adjudication Decision, I am not inclined to hold any hearing and will be making my decision based on the documentary evidence presented to me thus far. Nonetheless, I thank the parties for their views.”. [65] Damai City did not pursue the Request by sending a further letter to the Adjudicator after receiving the Adjudicator’s letter dated 6.8.2021. [66] In the AD, the Adjudicator had addressed the matter pertaining to the Request in these words: “61. The Respondent vide their letter of 3.8.2021, in reply to my application for second EOT requested for oral hearing / clarification. I did not grant the request even though adjudicators are empowered to conduct hearing under s.25(g). This is a discretion as a matter of right by the adjudicator if he feels the situation warrants as such. I appreciate the Respondent's drawing to my attention the complexity of the issues and the quantum of claims and counter-claims. However, I have my views on the purpose of statutory adjudication and the process that I elaborate herein. Having balanced the issues and the timeframe requirements that by now have twice been extended, and having viewed the evidence and concluded that I am not impeded in any way from addressing the issues and pleadings without having to hold a hearing, I respectfully declined the request. Thus, there was no requirement for me to ask the Claimant from submitting their opinion on the matter, although they did so on their own initiative. …

Other than that, I will have to use the existing documents and evaluate it accordingly, for better or for worse. That is the reason why I refrained myself in this adjudication from exercising the powers accorded by s.25(b) in particular. I do not want to unnecessarily delay the timeframe stipulated in CIPAA and respect the intention of the statute.

CIPAA is a summary proceeding where direction is only necessary if it renders a decision could not be made due to missing information, or if there is any clarification needed for the same reason that the Adjudicator cannot weigh the information provided. If this were to be tasked to the Adjudicator then it would defeat the purpose of getting the speedy albeit temporary solution and it would send the message to the parties that they can hurriedly put up a case without much thoughts, as the Adjudicator is compelled to make a discovery. Section 25 only gives the discretion to the Adjudicator to exercise such powers sparingly and not liberally so as not to hamper the timeline.”. [67] After having considered the parties’ submissions on this point, it is my finding that –

the Request was general in nature, seeking to assist the Adjudicator by drawing his attention to the “salient points of each parties’ case”. Damai City did not provide any specific reason or any particulars as to why the oral hearing or clarification session was necessary. If indeed Damai City had a specific issue that it wished to address the Adjudicator, it would surely have identified the issue and explained the need for such a session. I agree with MCCO’s submission that Damai City’s present contention is an afterthought; that it actually never had any issue of materiality that required an oral hearing or clarification and that the matter was brought up in the Setting Aside Application simply because the Adjudicator did not decide the issue of set-off and counterclaims in favour of Damai City. I also agree with MCCO that, if a bare or general request as in this case, which was not granted by the Adjudicator, is construed as a denial of natural justice, it could very well have the effect of altering the statutory scheme to make oral hearings mandatory; and

the Adjudicator had justified his decision in declining the Request by mentioning that this involves the exercise of his discretion whereby a delicate balance has to be struck between achieving the purpose of statutory adjudication i.e. the speedy resolution of disputes over payment for work done or services rendered under the express terms of a construction contract within the stipulated timeframes, and the need to address all issues raised by the parties in the adjudication proceedings. The Adjudicator was clear that, having examined the evidence, he was in a position to make a decision on the issues without the need for an oral hearing or a clarification session. [68] In the premises, the issue of deprivation of Damai City’s request for an opportunity to be heard simply does not arise. [69] The learned authors Lam Wai Loon and Ivan YF Loo in their book, Construction Adjudication In Malaysia, Third Edition, Sweet and Maxwell, 2022 at pp 365 - 366, had referred to a selection of recent cases in summarising the approach taken by the courts when faced with an application such as the Setting Aside Application in the following passage: “[15.030] In determining whether or not the adjudicator has acted in breach of the rules of natural justice, the court’s function is to look at the manner in which the adjudicator has conducted the hearing and whether he has accorded procedural fairness to the parties. Per Lim Chong Fong J in Genting Malaysia Bhd v PLM Interiors Sdn Bhd, the principle of procedural fairness in relation to statutory adjudication proceedings has to be construed contextually. There is no uniform exactness in its application as it would be case sensitive depending on the facts of each case. The court would also look at the adjudication decision in its entirety, and not merely consider some parts thereof to the exclusion of the rest of the adjudication decision, so as to avoid any misconstruction out of contract. [15.031] Specifically with regard to the Second Rule, even if there is proof that an adjudicator has breached the Second Rule, the court would not set aside the adjudication decision under section 15(b) of the CIPA Act 2012 unless it can be shown that (1) there is a “real possibility” that, without the breach, the adjudicator would have reached a different decision I favour of the objector; and (2) the breach is “decisive” or “material” to the adjudication decision which warrants the court to set aside the adjudication decision.” (see too, the meaning of “procedural fairness” as expounded in, among others, ACFM Engineering & Construction Sdn Bhd v. Esstar Vision Sdn Bhd & Another Appeal [2016] 1 LNS 1522 and Ireka Engineering And Construction Sdn Bhd v. PWC Corporation Sdn Bhd & Another Appeal [2019] 1 LNS 51). [70] In the final analysis, Damai City has not established that there was a failure on the part of the Adjudicator to accord procedural fairness in the conduct of the adjudication proceedings. 2nd Ground: Whether the Adjudicator had acted in excess of his jurisdiction by disallowing Damai City’s right of set-off/ counterclaims on the basis of issues which were not raised by either party [71] Basically, Damai City relied on the same arguments as it did in respect of the 1st Ground of challenge against the AD, namely, that the Adjudicator had acted in excess of his jurisdiction by deciding on matters which were not raised in the adjudication “pleadings”. Following from the findings of the Court in respect of the 1st Ground, Damai City’s contentions in this regard must be rejected [72] Further to the above, Damai City in its AIS also contended that the Adjudicator had acted in excess of his jurisdiction as MCCO is not an “unpaid party” under the CIPAA. MCCO is said to have received 49 Payment-in-Kind Units (‘49 Units’) under the 1st SA and Damai City has a bona fide right of set-off and/ or counterclaim against MCCO for sums far in excess of the Adjudicated Sum. [73] However, as submitted by MCCO, the issue of whether MCCO is an “unpaid party” was considered by this Court in O.S. No. 35 and therefore, the principles of res judicata and issue estoppel are applicable (see, Asia Commercial Finance (M) Bhd v Kawal Teliti Sdn Bhd [1995] 3 MLJ 189 and Dato’ Sivananthan Shamugam v Artisan Fokus Sdn Bhd [2015] 2 CLJ 1062). [74] The Adjudicator had given his views on Damai City’s assertions that MCCO is “Not an unpaid party” in para 45 of the AD as follows: “45. I respectfully disagree if the Respondent assert that at the time of the dispute, for the purpose of CIPAA, the Claimant is not an unpaid party. CIPAA gives this definition of an unpaid party in s.4 as ‘a party who claims payment of a sum which has not been paid in whole or in part under a construction contract’ (emphasis added). If the intention of CIPAA is to for the powers that be, to first of all ascertain the allegation of the Claimant that they are indeed not being paid as they alleged, even on prima facie case basis, then in my view, it defeats the purpose of CIPAA. As per the literal translation of the definition in s.4, the viewpoint is from the Claimant’s, who alleges (claims) that he is not being paid. As a matter of fact, the Payment Response mirrors that: when the unpaid party makes a demand in a Payment Claim for a certain sum, the non-paying party (defined as a party against whom a payment claim is made), the Payment Response establishes the dispute in the amount not admitted. The Adjudication proceeding is the very avenue to ascertain by way of document that if this is the case of the Claimant and the Respondent may then raise their contention as a defence in the adjudication proceedings.”. [75] Even if I was to consider the arguments on the 49 Units, I would come to the same conclusion i.e. that Damai City has not established, on a balance of probabilities, that MCCO is not an unpaid party. The reasoning for this conclusion is elaborated below. [76] The issue as to the 49 Units was first raised by Damai City in the Adjudication Response where it took the position that MCCO has received full payment, in kind, for the sums that it was claiming for because MCCO was still holding out as the owner, and/ or as retaining the benefit, of the 49 Units under the Payment-in-Kind Scheme. MCCO is said to have entered into Sale and Purchase Agreements (‘SPA’) with Damai City for the 49 Units and has accepted the 49 Units as part payment of the Contract Sum and/ or as part payment towards the Deferred Sums up to a maximum of RM120 milllion as provided under Clause 6.1(a) of the 1st SA. The selling price of the 49 Units is alleged to be in excess of the sums claimed in the Payment Claim (see paras 112 and 118 to 120 in the Adjudication Response). [77] In para 80 of the Adjudication Reply, MCCO stated that: “80.1 The 49 SPAs were terminated after the termination of the Contract pursuant to Clause 6.5(a) of the SA 1, Part D above are repeated herein;

80.2 Flowing from the above, the benefit of the 49 Payment-in-Kind Units was no longer retained by or accrued to the Claimant;

80.3 Even if the 49 SPAs are still in force, the 49 Payment-in-Kind Units are absolutely worthless since they are uncompleted and not tenantable at all.

80.4 In this regard, the selling price is merely assessed, not definite. The Respondent also has not adduced any evidence in this regard.

80.5 The fact remains that the Claimant has not received a single cent of the Deferred Payment. There is no unjust enrichment on the part of the Claimant.”. [78] The above quoted position of MCCO was repeated in para 23.1 of its AIR (encl. 24) and it was additionally averred that the 49 Units are not completed and the completion of which is beyond MCCO’s control; Damai City has retained all sums arising from the sale of the 49 Units; the 49 Units are absolutely worthless until and unless they are completed; and the issue is before the Arbitral Tribunal. [79] In para 19 of the AIR (encl. 26), Damai City denied MCCO’s averments and had put MCCO to strict proof thereof. Damai City maintained that the 49 SPA are still subsisting and have not been terminated and that MCCO remains the legal and beneficial owners of the 49 Units. The documents relating to the sale of one of the 49 Units for the sum of RM2,366,000.00 and the breakdown of MCCO’s net profit for the sale of this unit was shown in exhibit “TWK-34”. Also produced in exhibit “TWK-32” is a table of the valuation of the 49 Units and their respective sale prices which, in total, is alleged to be more than the Adjudicated Sum. [80] However, as pointed out by Mr. H.L. Choon in his submission for MCCO, there are no documents to support the details as tabulated in exhibit “TWK-32”. Moreover, the selling price of each of the 49 Units is merely an assessment and the documents in exhibit “TWK-34” pertain to the sale of only one of the 49 Units. There is no documentary evidence to show that MCCO has, in fact, received the proceeds of sale from the other 48 of the 49 Units. [81] Based on the affidavit evidence, the Court accepts MCCO’s submission that it has not been paid by Damai City, whether in cash or in kind, for the construction works that it had carried out under the Contract. By all accounts, MCCO is an “unpaid party” under s 4 CIPAA. [82] Following from the foregoing discussion, it is obvious that Damai City is attacking the merits of the Adjudicator’s findings of facts and/ or of law under the guise of, not only, a purported breach of natural justice, but as a jurisdictional challenge as well. It is my considered view that the grounds put forth by Damai City in its attempt to set aside the AD are absolutely unsubstantiated. II. O.S. No. 150: The Stay Application - The Parties’ Submissions [83] Damai City submitted that, in the event the Setting Aside Application is not allowed, the AD nevertheless ought to be stayed pending the full and final disposal of the Arbitration Proceedings. The attention of the Court was drawn to paras 79, 81 and 82 in the judgment of View Esteem’s case (supra) where the Federal Court concluded that s 16 CIPAA should be given a more liberal reading to allow some degree of flexibility for the courts to grant a stay of the adjudication decision where there are clear and unequivocal errors, or to meet the justice of the case. [84] Damai City cited the following reasons as justifying its Stay Application:

the threshold requirements under para 16(1)(a) and/ or (b) CIPAA have been fulfilled. Further, Damai City has strong prospects of success in the Arbitration Proceedings as the Adjudicator had found that –

the determination of MCCO’s employment by Damai City was valid;

(ii) Damai City has the legal right to set-off; and

(iii) Damai City’s expert had satisfied the Adjudicator on the validity of the set-off/ counterclaim amounts;

the interest of justice lies in favour of granting a stay of the AD because –

Damai City has a bona fide right of set-off/ counterclaim against MCCO for the total sum of RM557,195,357.00, which is far in excess of the Adjudicated Sum. A string of cases was submitted to support its contentions, namely, Gilbert-Ash (Northern) Ltd. Appellants and Modern Engineering (Bristol) Ltd. Respondents [On appeal from Modern Engineering (Bristol) Ltd. v. Gilbert-Ash (Norther) Ltd.] [1974] AC 689, Lee Guat Eng v. Seet Tiam Hock [1974] 1 MLJ 178, Federal Commerce & Navigation Co. Ltd. v. Molena Alpha Inc. ‘The Nanfri’ [1978] QB 927, Societe Des Etains De Bayas Tudjuh v. Woh Heng Mining Kongsi [1978] 2 MLJ 267, Permodalan Plantations Sdn Bhd v. Rachuta Sdn Bhd [1985] 1 MLJ 157, Hiap Tian Soon Construction Pte Ltd and another v. Hola Development Pte Ltd and another [2003] 1 SLR 667 and Syarikat Makmur Alat-alat Ganti Sdn Bhd v. USF Hicom (M) Sdn Bhd [2008] 6 MLJ 813; and

(ii) if Damai City is successful in the Arbitration Tribunal, there is a realistic prospect that the arbitral award will be rendered nugatory if the AD is not stayed as MCCO is facing financial difficulties. Furthermore, there is a real risk that the Adjudicated Sum will be used by MCCO to pay the sub-contractors, one of whom has no local presence and hence, the Adjudicated Sum will be placed beyond Damai City’s reach. For these submissions, reference was made to View Esteem, Leap Modulation Sdn Bhd v. PCP Construction Sdn Bhd and another appeal [2019] 1 MLJ 334 and Niko Bioenergy Sdn Bhd v. RH Balingian Palm Oil Mill Sdn Bhd [2018] 1 LNS 1621;

there are clear and unequivocal errors in the AD when the Adjudicator applied Clause 25.4(d) of the CoC and found that Damai City’s counterclaim was premature and that the counterclaims are “not part of construction works but a commercial arrangement”. The learned counsel for Damai City relied on the case authorities of Econpile (HC, supra), IRDK Venture (CA, supra), Genting Malaysia Berhad v. PLM Interiors Sdn Bhd and another case [2020] 1 LNS 218 and Skyworld Development Sdn Bhd v. Zalam Corporation Sdn Bhd & Other Cases [2019] 1 LNS 173 to support his arguments; and

Damai City is only seeking for a stay of, at most, eight months (calculated from the date of the Written Submission) as the arbitral award is expected to be published, latest by August 2022. [85] MCCO resisted the Stay Application on the following broad grounds:

there are no errors in the AD and even if so, these can be corrected at the Arbitration Proceedings;

there are no exceptional or special circumstances to justify a stay of the AD. There is no “justice” to be met by granting a stay as MCCO had carried out the works pursuant to the Contract and has not been paid for the same. A summary of MCCO’s rebuttal of the points raised by Damai City was annexed to the Written Submissions as Appendix 2 and the refutations will be discussed in detail in the succeeding analysis of the Court; and

there is no date fixed by the Arbitral Tribunal for the delivery of the arbitral award, and as such, there is no certainty as to when the Arbitration Proceedings will come to a final resolution. - Determination of the Court [86] The provision on “Stay of Adjudication Decision” in the CIPAA is as follows: “16. (1) A party may apply to the High Court for a stay of an adjudication decision in the following circumstances:

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

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

The High Court may grant a stay of the adjudication decision or order the adjudicated amount or part of it to be deposited with the Director of the KLRCA or make any other order as it thinks fit.”. [87] Whilst undoubtedly both the threshold requirements under paras 16(1)(a) and (b) CIPAA are fulfilled, however, as submitted by MCCO, the fact that the dispute between the parties have been referred to Arbitration Proceedings does not automatically entitle Damai City to a stay under s 16 CIPAA. In Genbina Sdn Bhd v. Bina Puri Construction Sdn Bhd [2020] 2 MLRH 101, this Court said: “[28] Even though BPC advocated that the test for a stay is now less rigorous as that held in Subang Skypark (supra), in my view, the judgment of Mary Lim J (now JCA) remains good law in a scenario where the Court is faced with concurrent proceedings, namely an arbitration which is in progress, and an application under section 16(1)(b) CIPAA. The learned Judge articulated the point in the following words: “[27] … That is not to say that simply because the dispute or subject matter of the adjudication decision is now in the arbitration mode regime, the grant of stay is automatic. It is not, let alone as of right or as a matter of course. Being in arbitration merely puts the plaintiff’s case as one within s. 16 for consideration; or one which has crossed the threshold. The existence of concurrent proceedings merely prequalifies the plaintiff for this application. [28] At all times, the court retains the discretion as to whether or not to grant a stay and that it is obvious from the language and terms of s 16. In fact, sub-s 16(2) vests the court with discretion whether to grant the stay sought; whether to order the adjudicated amount or part of it to be deposited with the Director of KLRCA; or make any other order as the court thinks fit. Upon overcoming the threshold set in sub-s 16(1), the plaintiff still has to show how the discretion is to be exercised in its favour.” (emphasis added).”. (see too, among others, Pasukhas Sdn Bhd v Empire Multiple Sdn Bhd [2019] 1 LNS 757 and Econpile (M) Sdn Bhd v ASM Development (KL) Sdn Bhd and another summons [2020] MLJU 1146). [88] The amplification of the phrases “clear and unequivocal errors” and “to meet the justice of the case” in the judgment of View Esteem can be found in several subsequent decisions of the High Court. In Office 2 Go (M) Sdn Bhd v Probina Projek Sdn Bhd and another case [2021] MLJU 2009, this Court referred to some of these decisions in the following passage: “[65] In arriving at the conclusion that the issues advanced by EA Technique in EA Technique (M) Sdn Bhd v Malaysia Marine and Heavy Engineering Sdn Bhd [2020] MLJU 2058 substantially involved findings of fact and do not qualify as clear and unequivocal errors and nor are they of sufficient magnitude of clear errors as envisaged in View Esteem which pricked His Lordship’s conscience, Lim Chong Fong J had, in the preceding passages of the judgment, opined that: “[26] In amplification, I think that the Federal Court has opened the window but certainly not the flood gates to permit the Court to review the merits of the adjudication decision in rare and exceptional cases of error. It is not possible to define the size of the window because this obviously varies with the facts of each case. The error must no doubt be very serious and I venture a general example such as when the adjudicator has decided on the merits of the dispute in blatant disregard of a statutory provision or trite case authority of the Federal Court. [27] Furthermore in the View Esteem case, it is also stated that the financial status is not the sole factor in determining the grant of the stay. The stay may be allowed to meet the justice of the individual case aside from clear error. They seem to be disjunctive as explained in the Leap Modulation case. Justice of the case is of course even more subjectively objective. It involves the exercise of discretion. However in light of the caveat of caution mentioned in the View Esteem case, I am also only minded to grant the stay if my conscience is pricked in the special circumstances of the case. Beyond that, it is incapable of definition or illustration. [28] The bottom line is that considerations of both clear error as well as justice of the individual case to justify the stay of an adjudication decision have to be stringently applied as this would otherwise defeat the statutory intent of the CIPAA to ensure cash flow in the construction industry; see Subang Skypark Sdn Bhd v Arcradius Sdn Bhd [2015] 1 CLJ 801. [66] In another case, Panzana Enterprise Sdn Bhd v Mkp Builders Sdn Bhd [2020] MLJU 607, His Lordship gave the following reminder: “[27] The granting of a stay of an adjudication decision is undoubtedly an exercise of judicial discretion. It is fact sensitive and dependent on the circumstances of each case as held in the English case of Partner Projects Ltd v Corinthian Nominees Ltd [2011] EWHC 2989 (TCC). However, it must be considered cautiously when there is the allegation of clear error in the adjudication decision and the court must not be over ready to grant the stay in light of the aforesaid allegation.” (see too, Maju Holdings Sdn Bhd v. Spring Energy Sdn Bhd [2021] 1 LNS 367). [89] Damai City’s contends that there are clear and unequivocal errors in the AD when the Adjudicator applied and relied on Clause 25.4(d) of the CoC, which is a provision that is rendered void under sub-s 35(1) CIPAA, to disallow Damai City’s counterclaims in items 1 to 3 in the table at para 42 above as well as when he rejected the counterclaims in items 4 to 12 in the same table. These points of argument have been addressed in relation to the Setting Aside Application and I do not intend to repeat them here. [90] In any event, if indeed there is any error in the AD, such an error can be corrected at the Arbitration Proceedings. The AD, being of temporary finality, ought to be upheld pending resolution in the Arbitration Proceedings. [91] Damai City further argued that the interest of justice lies in favour of granting a stay of the AD because Damai City has a bona fide right of set-off/ counterclaim against MCCO for the total sum of RM557,195,357.00, which is far in excess of the Adjudicated Sum. Moreover, as at the date of filing of the written submissions, the duration of the stay would be for only eight months i.e. until the award is issued by the Arbitral Tribunal. Furthermore, Damai City is confident that it has strong prospects of success in the Arbitration Proceedings. [92] However, as outlined in the background section of this judgment, the parties had agreed to modify the Arbitration Agreement such that the Fast Track Rules no longer applies and the Arbitration Proceedings are now administered under the AA 2005 on an expedited basis. Although Damai City expects that the arbitral award will be delivered by August 2022, as at the date of hearing of the Stay Application, there is actually no certainty as to when, and how, the Arbitration Proceedings will end. [93] The legal principles when determining an application under s 16 CIPAA is as laid down in View Esteem’s case and mentioned in para 83 above. In para 84 of the judgment, the apex court laid down the correct approach for the High Court under s 16 of the CIPAA, which is to evaluate each case on its merits, without the fetter of a pre-determined test not found in the statutory provision itself, and thus, the financial capacity of a party like MCCO in this case to repay the Adjudicated Sum could be a factor to consider, but it is not the sole factor. [94] With regards to the issue of the 49 Units which was raised by Damai City to support its argument that MCCO would not be prejudiced if the AD is stayed, the same averments were made by the deponents of Damai City’s and MCCO’s affidavits for the Stay Application (see subparas 55.1.1 to 55.1.3 in Damai City’s AIS, encl. 2; subpara 27.1 in MCCO’s AIR, encl. 28; and subpara 20.1 of Damai City’s AIR, encl. 29). This issue has similarly been dealt with under the Setting Aside Application. [95] The other justification mentioned by Damai City on the ground of there being no prejudice to MCCO is that MCCO is the beneficiary of the MBW Corporate Guarantee and the PCPSW Corporate Guarantee, both dated 2.6.2017, issued by KSK Group Berhad, the holding company of Damai City, for the total sum of RM230 million. However, in my opinion, MCCO has adequately rebutted this point by affirming that it did not receive and retain any benefit from the realisation of the MBW Corporate Guarantee & PCPSW Corporate Guarantee. To the contrary, MCCO’s previous demand of honouring the MBW Corporate Guarantee was rejected by KSK Group Berhad as the claim was said to have been made prematurely and in disregard of Clause 7 of the MBW Corporate Guarantee which provides that “If the Construction Contract and Supplemental Agreement are terminated, any notice or demand is subject to any dispute(s) between the Employer and the Contractor being first resolved in accordance with the dispute resolution mechanism in the Construction Contract.”. [96] For the sake of completeness, Damai City had additionally affirmed that it is in good health as evidenced by its “Financial statements for the year ended 31.12.2019” in exhibit “TWK-47”. However, MCCO has correctly countered that Damai City’s financial position is irrelevant to the determination of the Stay Application. [97] Damai City made several averments to the effect that the arbitral award will be rendered nugatory if the AD is not stayed and these, together with MCCO’s responses and findings of the Court, are set out below:

Although initially Damai City contended that MCCO had failed to lodge its audited financial statements for the year ended 31.12.2019, MCCO had provided a reasonable explanation for the delay in subparas 28.1 to 28.2 of its AIR, namely that its new auditors, Messrs. Deloitte, who took over from the previous auditors in September 2020, required time to carefully review MCCO’s previous audited accounts in order to ensure that the subsequent reporting is aligned or coherent with the previously reported audited accounts. Further delay was also due to restrictions in Messrs. Deloitte’s working arrangements arising from the Movement Control Order imposed due to the Covid-19 pandemic. Messrs. Deloitte has since filed its “Report Of The Directors And Financial Statements For The Year Ended 31 December 2019” (see exhibit “D-9”). I have scrutinised the Financial Statements, especially at pp 10 to 17 of the document, and it is observed that as at 31.12.2019, MCCO’s total comprehensive loss is RM57,786,053.00, total assets is RM818,525,627.00 (compared to RM675,183,872.00 as at 31.12.2018), total liabilities is RM831,714,734.00 and cash and cash equivalents is RM71,496,771.00 (compared to RM33,434,598.00 as at 31.12.2018). MCCO had also exhibited –

four transfer slips as evidence that funds amounting to RM93,012,233.12 were transferred by its Chinese parent company on 9.2.2021,

10.5.2021,

10.6.2021 and 15.6.2021 (see exhibit “D-10”); and

(ii) the Facility Agreement dated 13.7.2020 which was signed by Deutsche Bank (Malaysia) Berhad (‘Deutsche Bank’) and MCCO wherein the former’s facility letter dated 22.12.2015 was revised such that the aggregate principal amount of the Facilities was increased from RM150 million to RM230 million. MCCO affirmed that this facility was guaranteed by its listed parent company, Metallurgical Corporation of China Ltd. (see exhibit “D-11”). In my opinion, all the above-mentioned affidavit evidence goes to show that, overall, the Financial Statements do not equate to financial impecuniosity and with the support rendered by its parent company, MCCO’s financial standing is not so dire that it will not be able to pay the sum counterclaimed by Damai City in the Arbitration Proceedings or repay the Adjudicated Sum to Damai City, in the event that Damai City succeeds in the Arbitration Proceedings.

Damai City referred to the news reports in Bernama, The Edge Market and Utusan Malaysia (exhibit “TWK-49”) that MCCO’s Managing Director and Finance Director were remanded on 23.4.2021 for investigations for having allegedly mismanaged and/ or misappropriated MCCO’s funds, giving bribes and falsifying profits under s 16(b) of the Malaysian Anti-Corruption Commission Act 2009 [Act 694]. However, short of a conviction by the court on specific charges brought against these individuals, this evidence does not assist to strengthen Damai City’s application for a stay of the AD in any way.

Damai City relied on the following evidence in contending that MCCO had previously admitted to facing financial difficulties:

The letters dated 19.12.2019 and 26.12.2019 where MCCO appealed to Damai City for early release of payment for IPC No. 29. MCCO subsequently explained that the request for early payment under IPC No. 29 by 20.1.2019 was intended to manage its cash flow efficiently in light of the approaching Chinese New Year (‘CNY’) and to accommodate the procurement and/ or replenishing of its stock of construction material since the heavy vehicle road ban would be imposed four days before, and after, the CNY break. The early payment would also allow MCCO to make advance payments to its domestic sub-contractors and suppliers before CNY. In my view, MCCO has provided satisfactory explanation and in any event, these letters were sent more than 2½ years ago.

(ii) The letter dated 30.3.2020 where MCCO requested for a temporary suspension of the Financing Scheme for IPC No 32 to IPC No. 37 as it was facing funding difficulties due to the outbreak of Covid-19 and unforeseen rejection by its banker to utilise its credit facility for the Project. According to MCCO, this request was to enable it to have more cash flow for the Project and to obtain alternative funding channels in the interim. In any event, MCCO continued to fulfil its deferred payment obligations under the 1st SA until the date of determination of its employment under the Contract. It also had to bear substantial costs incurred for the Covid-19 measures in compliance with the Government’s Standard Operating Procedure for the Project; an indicia that MCCO has the capacity to weather the financial challenges posed by the pandemic. This Court similarly accepts MCCO’s clarification that the intention behind the request was to allow it to take a “cooling-off period” so that it may re-calibrate its financial position and strategy for future long-term business sustainability in the face of the challenges brought about by the pandemic, which is not unique to MCCO alone, and pending the transfer of a portion of the RM150 million Facilities that it enjoyed with Malayan Banking Berhad (‘MBB’) to Deutsche Bank. With the said transfer, MCCO’s overall Facilities with MBB were correspondingly reduced from RM150 milllion to RM70 million. The fact that Deutsche Bank agreed to increase the aggregate principal amount of the Facilities indicates that MCCO has a viable and robust financial standing. Anyway, following the determination of MCCO’s employment under the Contract, MCCO did not take up the increased facility from Deutsche Bank. In the premises, the Court is satisfied that this letter is not indicative of MCCO being in a continuous state of financial conundrum.

(iii) The letter from Damai City to MCCO dated 26.6.2020 which had recorded that during a lunch meeting on 15.6.2020, MCCO’s Managing Director had informed Damai City’s representatives that MCCO “have been having and will continue to have financial difficulties especially in the months of July 2020 and August 2020 and as such have requested, amongst others, that we consider suspending our DPS scheme for 6 interim certificates and provide an advance of RM5,000,000.00 to MCCO”. Damai City also alleged that MCO had indicated that it was no longer supported by its Chinese parent company. MCCO retorted that this request was made as a commercial proposal with a view to afford MCCO with business flexibility for its financial and cash flow planning pending the completion of the transfer of the Facilities with MBB to Deutsche Bank. Further, the statement by MCCO’s Managing Director that “at first we thought that our HQ side able to help us this time, I have to have a Plan B…” (at minute 59:56 at p 9825 of exhibit “TWK-50”, Damai City’s AIR, encl. 26) was made in the backdrop that the transfer process required approval from, inter alia, the State Administration of Foreign Exchange which involves a strict process and was beyond the control of MCCO’s parent company. This Court has considered and has accepted MCCO’s averment that the proposal which was made at the lunch meeting was to ensure sufficient cash flow for the Project and should not be taken as a concession by MCCO that it was in serious financial difficulty.

Damai City claimed that MCCO failed to make timely payments to the nominated sub-contractor, Syarikat Ong Yoke Lin Sdn Bhd (‘OYL’), as can be seen from OYL’s letters to MCCO dated 13.5.2020, 15.5.2020 and 22.5.2020 for the overdue sums of RM2,305,393.88 and RM969,469.49. MCCO asserted that the delay in payment was due to the closure of its office during the Movement Control Order and a sum of RM1,296,313.73 for the period ending February 2020 was paid on 20.5.2020 (see OYL’s letter to MCCO in exhibit “D-12”). In view of MCCO’s prompt response to OYL’s request for payment and since Damai City did not show that MCCO was habitually late in paying all or most of the progress claims made by its sub-contractors, this point of contention does not lend much weight to the Stay Application.

In its letter dated 10.7.2020 to Damai City, MCCO had requested for acceleration cost in the sum of RM45,380,000.00 to be borne by Damai City pursuant to Clause 11.1(d)(iv) of the CoC as MCCO had received the Architect’s Instruction for works to be accelerated. The letter included a table describing the delay events which MCCO alleged were not attributable to itself. In my opinion, it is well within MCCO’s contractual right to submit the request for acceleration cost and it is up to Damai City/ the Architect to assess the matter and provide their response to MCCO. The request does not, by itself, or taken together with the other factors as aforesaid amount to a sign of MCCO’s financial impecuniosity.

Although Damai City had decided not to pursue the argument that the AD was improperly procured through fraud under s 15(a) CIPAA for the Setting Aside Application, nevertheless one of the contentions in the Stay Application, namely, that there is a real risk that the Adjudicated Sum will be used by MCCO to pay the sub-contractors, one of which is a Chinese entity without a presence in Malaysia, is an offshoot of Damai City’s averments on the alleged sub-contracting of a substantial portion of the works under the Contract to sub-contractors in breach of the CoC (see para 55.2.5 of the AIS, encl. 2). In rebuttal, MCCO submitted that it should not be barred from utilising the Adjudicated Sum to pay any of its sub-contractors with a view to discharge its contractual obligations under the sub-contracts, and even if such payments are made, it would not affect MCCO’s ability and legal obligations to repay the Adjudicated Sum to Damai City should the Arbitral Tribunal decide in favour of Damai City. Having considered the submissions of the parties, I am in agreement with MCCO’s position on the matter.

In its AIS, Damai City initially averred that MCCO had submitted excessive progress claims which did not reflect the actual works carried out. No supporting documents were exhibited, and this prompted MCCO to deny Damai City’s allegations on the ground that they were unsubstantiated. It was only in the AIR that Damai City produced copies of MCCO’s Progress Claim No. 34 dated 25.4.2020 for the sum of RM33,886,499.41 and Progress Claim No. 35 dated 25.5.2020 for the sum of RM33,734,205.98 and the letter from Messrs. Vescope Sdn Bhd, the Project’s Quantity Surveyor, dated 16.6.2020 as exhibit “TWK-54”. In Vescope’s letter, MCCO is accused of “overclaiming consistently for work done in the past” and in respect of Progress Claim Nos. 34 and 35, of submitting “exaggerated interim claims knowing well the site is in total lockdown during the period of MCO since 18 March 2020”. In view of the fact that Damai City chose to exhibit these documents in its AIR rather than AIS, even though Damai City must have possessed the documents or was in the position to obtain the same much earlier, the Court is hesitant in accepting the evidence in Damai City’s AIR when MCCO did not have the opportunity of providing its responses to the averments and documents as the exchange of affidavits had closed. In any event, this Court is not in a position to ascertain whether Damai City’s allegations on this matter are justified or otherwise. [98] In conclusion, the Court is of the view that Damai City has not established a case for the AD to be stayed as there are no clear and unequivocal errors and nor has it been shown that the justice of the case merits a stay and that there are special or exceptional circumstances. The grounds put forth by Damai City in support of the Stay Application, even considered collectively and at maximum evaluation, do not, in my view, form sufficient basis for the AD to be stayed. III. O.S No. 165: The Enforcement Application [99] MCCO’s application was made pursuant to s 28 of the CIPAA which provides that: “Enforcement of adjudication decision as judgment 28.

A party may enforce an adjudication decision by applying to the High Court for an order to enforce the adjudication decision as if it is a judgment or order of the High Court.

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

The order made under subsection (2) may be executed in accordance with the rules on execution of the orders or judgment of the High Court.”. [100] In the second last para of the judgment in Tecnicas Reunidas Malaysia Sdn Bhd v. Petrovietnam Engineering Consultancy JSC (PVE) & Other Cases [2021] MLRHU 2128, this Court said: “[208] In so far as the Enforcement Application is concerned, the AD is binding unless it is set aside by the High Court on any of the grounds referred to in s 15 or the dispute is finally decided by arbitration 146 or the court (see s 13(a) and (c) CIPAA). It necessarily follows from the decision to dismiss the Setting Aside Application that the Enforcement Application should be allowed (refer to the legal principles in Inai Kiara Sdn Bhd v. Puteri Nusantara Sdn Bhd [2019] 1 MLRA 207; [2019] 2 MLJ 362) …”. [101] The same legal principles are applicable to this case except that, unlike in Tecnicas Reunidas’s case (supra), this Court is not inclined to exercise its discretion to allow the Stay Application in the instant case for the reasons as alluded to earlier. [102] As MCCO has complied with all statutory requirements in respect of its Enforcement Application and the requirements under O. 69A, r. 5 of the RC 2012, and there are no valid grounds proffered by Damai City to justify a finding in favour of Damai City in relation to the Setting Aside Application and Stay Application, it is thus a foregone conclusion that the Enforcement Application must be allowed. Conclusion [103] Based on all the above said considerations, the Setting Aside Application and the Stay Applications were dismissed, and the Enforcement Application was allowed. [104] Mr. H.L. Choon prayed for costs of RM20,000.00 for the Setting Aside Application where the main arguments were concentrated (and inclusive of the cost for Damai City's application in encl. 51 which was dismissed with cost in the cause of O.S No. 149), RM10,000.00 for the Stay Application as arguments about the Arbitration Proceedings were put forth and RM10,000.00 for the Enforcement Application since affidavits were filed. [105] This was countered by Mr. T. Sudharsanan with a proposal of costs of RM15,000.00 for the Setting Aside Application and encl. 51, RM8,000.00 for the Stay Application and RM5,000.00 for the Enforcement Application. [106] The Court agreed with Damai City’s counsel that the cost as offered is a fair and appropriate in the circumstances of this case and it was so ordered, subject to the payment of the allocatur fees. Dated: 27 July 2022 (ALIZA SULAIMAN) Judge Construction Court 2 High Court Kuala Lumpur Counsels/ Solicitors: For the Plaintiff/ Applicant in O.S. No. 149 & O.S.150 and the Defendant in O.S. No. 165: Sudharsanan Thillainathan (Tan Cheng Leong, Dawn Wong Keng Jade and Ng Yee Lin with him) Messrs. Steven Thiru and Sudhar Partnership Advocates & Solicitors Unit A1-12-01 Arcoris Mont Kiara Jalan Kiara, Mont Kiara 50480 Kuala Lumpur For the Plaintiff in O.S. No. 165 and the Defendant/ Respondent in O.S. No. 149 & O.S. No. 150: Choon Hon Leng (Denise Cheong Lin Hwei and Andrew Chan Jia Her with him) Messrs. Raja, Darryl & Loh Advocates & Solicitors Level 26, Menara Hong Leong No. 6, Jalan Damanlela Bukit Damansara 50490 Kuala Lumpur Cases, legislation and other sources referred to in the submissions by learned counsels and in the Grounds of Judgment: Cases: ACFM Engineering & Construction Sdn Bhd v. Esstar Vision Sdn Bhd & Another Appeal [2016] 1 LNS 1522 ACFM Engineering & Construction Sdn Bhd v. Esstar Vision Sdn Bhd and another case [2015] 1 LNS 756 Amanggul bin Pirgul v Ruslan bin Alias & Ors [2021] MLJU 2277 Asia Commercial Finance (M) Bhd v Kawal Teliti Sdn Bhd [1995] 3 MLJ 189 ASM Development (KL) Sdn Bhd v. Econpile (M) Sdn Bhd [2021] 1 LNS 368 Bertam Development Sdn Bhd v. R&C Cergas Teguh Sdn Bhd [2017] 1 LNS 2228 Bina Puri Construction Sdn Bhd v. Hing Nyit Enterprise Sdn Bhd [2015] 8 CLJ 728 Bina Puri Construction Sdn Bhd v Syarikat Kapasi Sdn Bhd [2017] MLJU 785 BM City Realty & Construction Sdn Bhd v. Merger Insight (M) Sdn Bhd & another case [2016] 1 LNS 1096 Cantillon Ltd v. Urvasco Ltd [2008] EWHC 282 Carillion Construction Ltd v Devonport Royal Dockyard Ltd 104 ConLR 1 Cescon Engineers Sdn Bhd v. Pesat Bumi Sdn Bhd and another case [2021] MLJU 2248 Ceylon Builders Sdn Bhd v. Ultimate Pursuit Sdn Bhd & another case [2018] 1 LNS 2128 CJP Builders Ltd v. William Verry Ltd [2008] EWHC 2025 (TCC) CRCC Malaysia Bhd v. M101 Entity Sdn Bhd [2021] 1 LNS 1102 Dato' Sivananthan Shanmugam v. Artisan Fokus Sdn Bhd [2015] 2 CLJ 1062 Econpile (M) Sdn Bhd v ASM Development (KL) Sdn Bhd and another summons [2020] MLJU 1146 Econpile (M) Sdn Bhd v IRDK Ventures Sdn Bhd and another case [2017] 7 MLJ 732 (HC) Federal Commerce and Navigation Ltd v Molena Alpha Inc, The Nanfri, The Benfri, The Lorfri [1978] QB 927 Genbina Sdn Bhd v. Bina Puri Construction Sdn Bhd [2019] 1 LNS 1980; [2020] 2 MLRH 101 Genting Malaysia Berhad v. PLM Interiors Sdn Bhd [2020] 1 LNS 218 Gilbert-Ash (Northern) Ltd. Appellants and Modern Engineering (Bristol) Ltd. Respondents [On appeal from Modern Engineering (Bristol) Ltd. v. Gilbert-Ash (Norther) Ltd.] [1974] A.C. Globalcon Holding (M) Sdn Bhd v. DMC Builder Sdn Bhd [2020] MLRHU 1366 Goh Hooi Yin v Lim Teong Ghee & Ors [1990] 3 MLJ 23 Guangxi Dev & Cap Sdn Bhd v. Sycal Bhd & another appeal [2019] 1 CLJ 592 Gumi Asli Elektrikal Sdn Bhd v. Dazzling Electrical (M) Sdn Bhd & another case [2020] 1 LNS 189 Hiap Tian Soon Construction Pte Ltd and another v Hola Development Pte Ltd and another [2003] 1 SLR 667 Hiform (M) Sdn Bhd v. TSR Bina Sdn Bhd & Another Case [2020] MLRHU 588 Hong Leong Finance Bhd v Low Thiam Hoe and another appeal [2016] 1 MLJ 301 Inai Kiara Sdn Bhd v. Puteri Nusantara Sdn Bhd [2019] 2 CLJ 229 Integral Acres Sdn Bhd v BCEG International (M) Sdn Bhd and other cases [2021] MLJU 1889 IRDK Venture Sdn Bhd v Econpile (M) Sdn Bhd and another appeal [2020] MLJU 939; [2020] 1 LNS 1093 (CA) Ireka Engineering And Construction Sdn Bhd v. PWC Corporation Sdn Bhd & Another Appeal [2019] 1 LNS 51 Ismail Bin Ibrahim & Ors v Sum Poh Development Sdn Bhd & Anor [1988] 3 MLJ 348 JEKS Engineering Sdn Bhd v. PALI PTP Sdn Bhd [2021] 1 LNS 1406; [2022] 9 MLJ 541 Kining Exeton Sdn Bhd v. Majlis Perbandaran Kuantan [2017] 1 LNS 1905 Kining Exeton Sdn Bhd v. Majlis Perbandaran Kuantan & another case [2020] 1 LNS 1066 LB (Lian Bee) Confectionary Sdn Bhd v. QAF Ltd [2012] 4 MLJ 20 Leap Modulation Sdn Bhd v PCP Construction Sdn Bhd and another appeal [2019] 1 MLJ 334 Lee Guat Eng v Seet Tiam Hock [1974] 1 MLJ 178 Maju Holdings Sdn Bhd v. Spring Energy Sdn Bhd [2021] 1 LNS 367 Marathaei d/o Sangulullai (suing on behalf of the estate of Thangayah Aupulley) & Anor v. Syarikat JG Containers (M) Sdn Bhd & Anor [2003] 2 MLJ 337 Martego Sdn Bhd v Arkitek Meor & Chew Sdn Bhd and another appeal [2018] 4 MLJ 496 Martego Sdn Bhd v Arkitek Meor & Chew Sdn Bhd and another appeal [2020] 6 MLJ 224 Master Mulia Sdn Bhd v Sigur Rus Sdn Bhd [2020] 12 MLJ 198 Meridien AB Pty Ltd v Jackson [2014] 1 Qd R 142 Mid Pastel Resources Sdn Bhd v. Celcom Mobile Sdn Bhd [2017] 1 LNS 2153 MKP Builders Sdn Bhd v. PC Geotechnic Sdn Bhd & another case [2020] 1 LNS 1559 Naza Engineering & Construction Sdn Bhd v SSL Dev Sdn Bhd [2020] 9 MLJ 499 Ng Hee Thoong & Anor v Public Bank Bhd [1995] 1 MLJ 281 Niko Bioenergy Sdn Bhd v. RH Balingian Palm Oil Mill Sdn Bhd [2018] 1 LNS 1621 Office 2 Go (M) Sdn Bhd v Probina Projek Sdn Bhd and another case [2021] MLJU 2009 Pacific Forest Industries Sdn Bhd & Anor v Lin Wen-Chih & Anor [2009] 6 MLJ 293 Pasukhas Sdn Bhd v Empire Multiple Sdn Bhd [2019] 1 LNS 757 PCP Construction Sdn Bhd v. Leap Modulation Sdn Bhd & other appeals [2017] 1 LNS 944 Pembenaan Leow Tuck Chui & Sons Sdn Bhd v Dr Leela's Medical Centre Sdn Bhd [1995] 2 MLJ 57 Pentadbir Tanah Daerah Petaling v Swee Lin Sdn Bhd [1999] 3 MLJ 489 Perbadanan Perwira Harta Malaysia v. Kuntum Melor Sdn Bhd & Another Case [2021] MLRHU 1202 Permintex JSK Resources Sdn Bhd v. Follitile (M) Sdn Bhd & Another Case [2017] 6 CLJ 406 Permodalan Plantations Sdn Bhd v Rachuta Sdn Bhd [1985] 1 MLJ 157 PJ Midtown Development Sdn Bhd v. Pembinaan Mitrajaya Sdn Bhd [2020] 1 LNS 1254 Poh Chee Leng & Anor v. Cheah Siew Huen & Anor [2019] 1 LNS 1226 PWC Corporation Sdn Bhd v. Ireka Engineering & Construction Sdn Bhd & Other Case (No 2) [2018] 1 LNS 163 Ranhill E & C Sdn Bhd v. Tioxide (Malaysia) Sdn Bhd & Other Cases [2015] 1 LNS 1435 Ritma Hebat Sdn Bhd v Kayangan Kemas Sdn Bhd and another suit [2017] MLJU 2034 Samado Sdn Bhd v. Kerajaan Malaysia & Another Case [2020] 5 MLRH 165 Siemens Industry Software GmbH & Co KG (Germany) v. Jacob And Toralf Consulting Sdn Bhd & Ors [2020] 5 CLJ 143 Sime Darby Property (Bukit Raja) Sdn Bhd v. Alaf Pentawaris Sdn Bhd [2020] 1 LNS 1490 Sinlexon Construction & Decoration Sdn Bhd v. BCB Berhad [2020] 1 LNS 669 Skyworld Development Sdn Bhd v. Zalam Corporation Sdn Bhd & Other Cases [2019] 1 LNS 173 Societe Des Etains De Bayas Tudjuh v Woh Heng Mining Kongsi [1978] 2 MLJ 267 SQA Builders Sdn Bhd v Luxor YRM Sdn Bhd and another suit [2018] 10 MLJ 759 Subang Skypark Sdn Bhd v Arcradius Sdn Bhd [2015] 11 MLJ 818 Syarikat Bekalan Air Selangor Sdn Bhd v Kerajaan Negeri Selangor (Kerajaan Malaysia, third party) [2015] 7 MLJ 873 Syarikat Makmur Alat-alat Ganti Sdn Bhd v USF Hicom (M) Sdn Bhd [2008] 6 MLJ 813 Tecnicas Reunidas Malaysia Sdn Bhd v. Petrovietnam Engineering Consultancy JSC (PVE) & Other Cases [2021] MLRHU 2128 Terminal Perintis Sdn Bhd v. Tan Ngee Hong Construction Sdn Bhd & other case [2017] 1 LNS 177 Tidalmarine Engineering Sdn Bhd v. Conlay Construction Sdn Bhd & Another Case [2018] 2 CLJ 376 TYL Land and Development Sdn Bhd v. SIS Integrated Sdn Bhd & Another Case [2018] 1 LNS 145 U-Meng Holdings Sdn Bhd & Anor v. Tan Sri Datuk Ibrahim Mohamed; Ambank (M) Bhd (Third Party) [2010] 9 CLJ 411 Uzma Engineering Sdn Bhd v. Khan Co Ltd [2020] 1 LNS 1153 View Esteem Sdn Bhd v Bina Puri Holdings Bhd [2018] 2 MLJ 22 WRP Asia Pacific Sdn Bhd v. NS Bluescope Lysaght Malaysia Sdn Bhd & Other Case [2015] 1 LNS 1236 Yamaha Motor Co Ltd v Yamaha Malaysia Sdn Bhd & Ors [1983] 1 MLJ 213 Zana Bina Sdn Bhd v. Cosmic Master Development Sdn Bhd & other case [2017] 1 LNS 185 Legislation: Construction Industry Payment and Adjudication Act 2012, ss 4, 12, 15, 16, 25, 27, 28, 31 & 35 Companies Act 2016, s 258 Malaysian Anti-Corruption Commission Act 2009, s 16(b) Rules of Court 2012, O. 7, O. 20, rr. 5 and 7, O. 28, O. 69A, rr. 1, 2, 3 and 5 & O. 92, r. Other sources: Lam Wai Loon and Ivan YF Loo, Construction Adjudication In Malaysia, Third Edition, Sweet and Maxwell, 2022 Robert Clay Barrister and Nicholas Dennys QC, Hudson’s Building and Engineering Contracts, 14th Ed, Main work & 1st Supplement, Sweet & Maxwell, 2021