Mercu Harapan Sdn Bhd v Maju Healthcare Sdn Bhd (WA-24C-144-09/2024)

Originating Summons No. WA-24C-144-09/2024 (OS 144) is Mercu Harapan Sdn Bhd (“Mercu”) application to enforce the Adjudication Decision dated 18.76.2023 (“AD”) given in their favour pursuant to section 28 of the Construction Industry Payment and Adjudication Act 2012 (“CIPAA”) whilst Originating Summons No. WA-24C-192- 11/2024 (OS 192) is Maju Health Care Sdn Bhd (“MH”) application to 5 set aside the said AD in accordance with section 15(b), (c) and (d) of CIPAA.

In essence under OS 192 MH asserts that they were unaware and have no idea where and when the Adjudication Claim was allegedly served on them.

The Plaintiff is the owner of a project known as “Cadangan Permit Sementara untuk Mendirikan Bangunan Sementara yang Mengandungi: i. Satu (1) Unit Binaan Berstruktur Besi Berbumbung; ii. Satu (1) Unit Makmal PCR iii. Dua (2) Unit Pondok Pendaftaran iv. Satu (1) Unit Pondok Pengawal v. Satu (1) Unit Tempat Buang Sisa Bio Hazard vi. Empat belas (14) tempat letak kereta vii. Dua (2) Unit Tempat Letak Bas dan kemudahan berkaitan dengannya Di atas sebahagian kawasan tempat letak kereta berhadapan Mahsuri II International Exhibition Centre, Jalan 168, Langkawi, Kedah” (hereinafter referred to as “the said Project”)

The contract for the said Project is in accordance with the terms and conditions of the “PAM Contract 2018, With Quantities”. The Defendant later on had signed a Letter of Award with W5 Architect Sdn Bhd on 08.10.2021 (hereinafter referred to as “Letter of Award”).

In the adjudication proceedings, the Defendant had filed its Adjudication Claim dated 18.05.2023 against the Plaintiff for the sum of RM2,178,581.50 being the work done as alleged due from the Plaintiff.

It is stated that the Defendant had served the Adjudication Claim by hand to the Plaintiff’s registered address and by leaving the said document at the Plaintiff's business address. However, the Plaintiff alleges that it did not receive any documents from the Defendant as alleged, hence, the Plaintiff was not present during the adjudication proceedings.

The Plaintiff was allegedly not given an opportunity to be heard or allowed to file any documents in the Adjudication proceedings, wherein the Adjudicator proceeded to deliver his decision on 18.07.2023. This decision, made in the absence of the Plaintiff’s participation, became the subject of dispute before the High Court.

MH has also raised a preliminary objection (“PO”) to which they submit that Order 69A rule 5 of the Rules of Court 2012 has been breached as the Affidavit In Support (“AIS”) for the section 28 application under OS 144 was dated before the OS 144 itself and thus O28 makes the said AIS defective. On the said PO, I agree that the AIS was affirmed earlier but I find that the deponent of the AIS had later made a correction in her Affidavit In Reply.

To this PO I hold that Order 1A (Regard shall be had to justice) & Order 2 rule 1 (Non Compliance of the Rules To be Treated As An Irregularity only) of the Rules of Court 2012 to be applicable and I do hereby exercise my discretion to dismiss the PO with the primary 8 reason that no prejudice or injustice has been occasioned on MH as a result of the said breach.

I will now firstly deal with the allegations raised in OS 192 by MH. I note that MH was not represented by solicitors in the Adjudication proceedings itself and no Payment Response was filed in the said Adjudication which counsel for MH submits deems that MH had disputed the entire claim of Mercu and that the Adjudicator was still duty bound to assess Mercu’s claim fairly.

I have examined the picture which can be found in exhibit MHSB 1 which shows that the covering letter dated 18.5.2023 issued by the then solicitors of Mercu, Messrs Wayne Siang, Kai & Co., which had enclosed the Adjudication Claim was received by a company known as Maju Holdings Sdn Bhd who had affixed their rubber stamp on it although the address of MH is stated in the said covering letter is as per the address known as Level 21, Maju Tower, 1001 Jalan Sultan Ismail, Kuala Lumpur which according to the Suruhanjaya Syarikat Malaysia (“SSM”) official search in enclosure 3 of OS 144 at page 421 is in fact the registered address of MH.

I hold from the above facts that the Adjudication Claim was properly served on MH’s registered address despite the fact that the said covering letter dated 18.5.2023 accompanying the same was acknowledged by one Maju Holdings Sdn Bhd as well as the fact that the Adjudication Claim was served on MH’s business address on the same day.

For the record I also have noted that the business address on the said covering letter dated 18.5.2023 i.e Unit 43-5 Metro Centre, Jalan Bandar Tasik Selatan 8/146, 57000 Kuala Lumpur is correct, although I have observed from the evidence shown by Mercu, MH were no longer in operation in the business address.

I have also not been shown any evidence as proof that MH has changed any of their addresses which in my view further corroborates the fact that the said Adjudication Claim was properly served on MH. In this respect I have relied on Mammoth Empire Construction Sdn Bhd v Stam Engineering Sdn Bhd And Another Case [2019] 10 MLJ 58 where the Court has held that “ Section 38(b) of the CIPAA reads: Service of a notice or any other document under this Act shall be effected on the party to be served — …

By leaving the notice or document at the usual place of business of the party during normal business hours of that party; Hence, the wordings of s 38(b) of the CIPAA does not require the service of the payment claim to be done at the registered office. It would suffice if it is done [2019] 10 MLJ 58 at 66 at the respondent’s usual place of business.” [15] I would further add that on a balance of probabilities, the fact that the Adjudication Claim was served on the registered address of MH would result in MH being deemed as having notice of the Adjudication Claim and that the Adjudication proceedings have been commenced against them. It is then for MH to do the necessaries to defend their case, if any, in the Adjudication proceedings. [16] On this point I have also observed at exhibit RS – 4 in enclosure 6 of OS 192 that when the Payment Claim was served on MH, MH had appointed a lawyer, Messrs Jasbeer, Nur & Lee and through their letter dated 13.1.2023 had inter alia seeked for time to reply to the said Payment Claim but nothing further had come out of that. Once again ample opportunity was given to MH to defend their case, if any, in the Adjudication proceedings but they chose thereafter to remain silent and not taking any steps to appear at the Adjudication proceedings. This is also evidence that MH had obtained legal advice for the Adjudication proceedings but for reasons of their own did not participate in the Adjudication proceedings. [17] For the record, a perusal of the AD further shows that the Adjudicator had addressed the issue of the service of the Adjudication Claim on MH and held that it was properly served on MH. [18] As to the contention by MH that the unilateral decision by the Adjudicator is a breach of natural justice, I hold that this issue is entirely untenable and must be disallowed. It is MH who had decided not to participate in the Adjudication proceedings on their own accord due to the reasons I have given above and from a perusal of the AD in toto I do find that the Adjudicator was entirely correct to decide on the matter based on the available evidence and documents before him, which he did. See Gazzriz Sdn Bhd V Hasrat Gemilang Sdn Bhd [2016] MLJU 1054. [19] On the issue of any works which amongst others did not conform to the standard or is alleged to be defective and not fit for its purpose or that the Adjudicator did not consider the variation orders issued which MH had also alleged, I agree with counsel for Mercu and do hold that these are issues which should be brought in the Adjudication proceedings to which MH had ample opportunity to do so but had at their own peril chose not to do so. In any event these are issues of merits of the AD to which is not a ground under section 15 CIPAA to set aside the AD. [20] In the circumstances, I dismiss OS 192 with costs. [21] As there are no further impediments on the AD, I hereby allow prayers 1, 2 (a) to (d) and prayer 3 of enclosure 1 in OS 144. Dated: 21st day of March 2025 sgd. NADZARIN WOK NORDIN HIGH COURT JUDGE CONSTRUCTION COURT 1 COUNSEL FOR PLAINTIFF (OS144) / DEFENDANT (OS192): Wan Idi Amin bin Ibrahim (Messrs Idi Amin] COUNSEL FOR DEFENDANT (OS144) / PLANTIFF (OS192): Nakeeran Kumar s/o Kanthavel (Messrs Jasbeer, Nur & Lee]