Meridian Contracts Sdn Bhd v Bauer (Malaysia) Sdn Bhd (WA-24C-123-08/2023)

Meridian Contracts Sdn Bhd (‘Meridian’) pursuant to s 28 CIPAA in Originating Summons No. WA-24C-123-08/2023 (‘O.S. No. 123’) to enforce the third Adjudication Decision dated 17.7.2023 (‘3rd AD’) by the third learned Adjudicator, Mr. Winston Ng Peng Cheang (‘3rd Adjudicator’) (‘Enforcement Application’); and

Bauer (Malaysia) Sdn Bhd (‘Bauer’) pursuant to s 16 CIPAA in O.S. No. WA-24C-134-08/2023 (‘O.S. No. 134’) to stay the 3rd AD pending the final determination by way of arbitration (‘Stay Application’), without any application being made under s 15 CIPAA to set aside the 3rd AD. [2] On 15.11.2023, after giving due consideration of the affidavit evidence and the oral and written submissions of the parties, I had allowed the Enforcement Application and dismissed the Stay Application. [3] These are my full grounds of judgment for the decision. S/N /67zMpjrMEaeCzaLJ8tqEg The Cause Papers [4] The cause papers in both suits are as follows:

Meridian’s O.S. dated 3.8.2023 (encl. 1);

Meridian’s Affidavit In Support (‘AIS’) affirmed by its Senior Contract Manager, Ong Eng Theng on 3.8.2023 (encl. 2);

Bauer’s Affidavit In Reply (‘AIR’) affirmed by its Managing Director Commercial, Julian Benedict Lord on 24.8.2023 (encls. 5 and 6); and

Meridian’s Notice of Intention to Use Affidavit in O.S. No. 134 dated 15.9.2023 (encl. 7).

Bauer’s O.S. dated 25.8.2023 (encl. 1);

Bauer’s AIS affirmed by the same deponent on 24.8.2023 (encls. 2 and 3);

Meridian’s AIR affirmed by the same deponent on 14.9.2023 (encl. 4); and S/N /67zMpjrMEaeCzaLJ8tqEg

Bauer’s AIR affirmed by the same deponent on 27.9.2023 (encl. 6). Brief Salient Facts [5] The background facts to these suits can be found in my grounds of judgment –

dated 4.5.2020 in Meridian Contracts Sdn Bhd v Bauer (Malaysia) Sdn Bhd and another summon [2020] MLJU 1405; [2020] MLRHU 1138 where I had dismissed Bauer’s applications to set aside the Adjudication Decision by the learned Adjudicator, Mr. Rodney Colin Gomez (‘1st Adjudicator’) dated 31.10.2019 (‘1st AD’) pursuant to s 15 CIPAA and to stay the 1st AD pending the disposal of the arbitration proceedings between the parties pursuant to s 16 CIPAA, and had allowed Meridian’s application to enforce the 1st AD pursuant to s 28 CIPAA (Bauer’s appeal against my decision was dismissed by the Court of Appeal on 3.1.2022 and Bauer’s motion for leave to appeal was dismissed by the Federal Court on 27.4.2022); and

dated 17.2.2023 in Meridian Contracts Sdn Bhd v Bauer (Malaysia) Sdn Bhd [2023] MLJU 1047; [2023] 1 LNS 917 where I had allowed Meridian’s application for the Adjudication Decision by the learned Adjudicator, Ir. Shanmugaraj s/o Chelliah S/N /67zMpjrMEaeCzaLJ8tqEg Thamotherampillai (‘2nd Adjudicator’) dated 15.11.2021 (‘2nd AD’) to be set aside under s 15(d) CIPAA as the 2nd Adjudicator had acted in excess of his jurisdiction by deciding on the set-off claim (Bauer’s appeal against my decision was dismissed by the Court of Appeal on 23.10.2023). [6] For the present suits, it is sufficient to recap that –

Meridian commenced the first adjudication proceedings (‘1st Adjudication’) against Bauer by way of the Notice of Adjudication dated 17.6.2019 for the sum of RM7,494,014.17 which was due and payable for works done since 2017 pursuant to the CIPAA. At that time, the 2nd moiety of retention sum for RM1,088,420.35 was not contractually due to be released by Bauer to Meridian and was therefore not included in the 1st Adjudication. On 31.10.2019, the 1st Adjudicator delivered the 1st AD in favour of Meridian in the sum of RM5,311,360.51 together with interest and costs, after allowing Bauer’s set-off claims of RM142,238.60 out of the total set-off claims of RM 5,188,402.91. Bauer has since complied with the 1st AD;

On 13.12.2019, Bauer issued the notice to arbitrate to Meridian to refer the dispute between the parties to arbitration; and

Meridian submitted its Payment Claim to Bauer on 29.12.2020 claiming for the 2nd moiety of retention sum for RM1,088,420.35. The Notice of Adjudication dated 1.4.2021 was subsequently S/N /67zMpjrMEaeCzaLJ8tqEg served on Bauer (‘2nd Adjudication’). On 15.11.2021, the 2nd AD was delivered whereby Bauer’s set-off for the damages/ liquidated ascertained damages (‘LAD’) in the sum of RM3,913,000.00 out of RM 5,188,402.91 was allowed and Meridian’s claim for the 2nd moiety of retention sum was dismissed following the said set-off. [7] As the 2nd AD was set aside by this Court and the decision was affirmed by the Court of Appeal, Meridian then commenced another adjudication proceedings against Bauer to recover the same 2nd moiety of retention sum for RM1,088,420.35 (‘3rd Adjudication’). [8] Meridian served the Payment Claim dated 7.3.2023 on Bauer. Bauer did not serve any Payment Response on Meridian. [9] On 12.5.2023, Meridian served its Adjudication Claim whilst Bauer served its Adjudication Response on 26.5.2023. Meridian served its Adjudication Reply on 2.6.2023. [10] Meanwhile, on 22.5.2023, Bauer filed an application seeking for a stay of execution of the Order of this Court made on 17.2.2023 to set aside the 2nd AD and for a stay of the 3rd Adjudication pending the disposal of Bauer’s appeal against the said Order. Bauer’s application was dismissed on 7.7.2023. [11] On 17.7.2023, the 3rd Adjudicator had determined in para 143 of the 3rd AD that: S/N /67zMpjrMEaeCzaLJ8tqEg “… a. The Respondent shall pay to the Claimant the Adjudicated Sum of RM1,088,420.35 on or before 31-7-2023. b. The Respondent shall pay to the Claimant the total costs of the adjudication proceeding amounting to RM59,507.18 on or before 31-7-

c. The Respondent shall pay to the Claimant interest on the Adjudicated Sum of RM1,088,420.35 at the rate of 5% per annum calculated on a daily basis commencing from 21-6-2020 until the date of this Adjudication Decision on or before 31-7-2023. d. If the Adjudicated Sum of RM1,088,420.35, accrued interest pursuant to sub-paragraph (c) above and the total costs of the adjudication proceeding amounting to RM59,507.18 are not paid in full by the Respondent to the Claimant by 31-7-2023, the Respondent shall pay interest on all outstanding amounts at the rate of 5% per annum calculated on a daily basis commencing from 1-8-2023 until full and final settlement. S/N /67zMpjrMEaeCzaLJ8tqEg e. All payments that are required to be made by the Respondent to the Claimant shall be made by way of a Banker's Cheque or Cashier's Order issued by a local financial institution.”. I. THE ENFORCEMENT APPLICATION [12] Section 28 CIPAA provides as follows: “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.”. S/N /67zMpjrMEaeCzaLJ8tqEg [13] Mr. CK Oon submitted for Meridian that it had complied with all statutory requirements for an application pursuant to s 28 CIPAA to enforce the 3rd AD and this was not disputed by Bauer. [14] Bauer affirmed that the Enforcement Application should be dismissed as the 3rd AD should be stayed in the circumstances as averred in the AIS. In short, Bauer’s main defence in resisting the Enforcement Application was that, if the Stay Application is allowed, then the Enforcement Application ought to be dismissed. [15] The effect of an adjudication decision is clearly provided in s 13 CIPAA which reads: “13. The adjudication decision is binding unless –

it is set aside by the High Court on any of the grounds referred to in section 15;

the subject matter of the decision is settled by a written agreement between the parties; or

the dispute is finally decided by arbitration or the court.”. [16] As mentioned at the outset, Bauer did not file an application pursuant to s 15 CIPAA to set aside the 3rd AD. In addition, the subject matter of the 3rd AD has not been settled by a written agreement between Bauer S/N /67zMpjrMEaeCzaLJ8tqEg and Meridian and the dispute has also not been finally decided by arbitration or the court. [17] Section 28 CIPAA confers a discretion on the High Court which must be exercised judiciously, having regard to the underlying facts and the applicable principles under the CIPAA. This discretionary power does not extend to requiring the applicant to show that there are no grounds for setting aside the adjudication decision under s 15 CIPAA. All that the applicant needs to do is to satisfy the court that –

there is an adjudication decision that has been rendered in the applicant’s favor;

there has been non-payment of the adjudicated sum by the date specified in the adjudication decision; and

there is no prohibition to the grant of the order that is sought in that the adjudication decision has not been set aside or stayed; there is no written settlement of the subject matter between the parties, or there is no final decision rendered on the payment claim, whether made in arbitration or by a court of law [see Inai Kiara Sdn Bhd v. Puteri Nusantara Sdn Bhd [2019] 2 MLJ 362 (CA) at paragraphs 24 - 26, pp 370 and 371]. [18] Based on the foregoing, I would agree with Meridian’s contention that the 3rd AD should be enforced as of right. S/N /67zMpjrMEaeCzaLJ8tqEg [19] As Bauer has taken a position which is dependent on the outcome of the Stay Application, I now turn to consider the Stay Application. II. THE STAY APPLICATION [20] Section 16 CIPAA reads as follows: “Stay of adjudication decision

(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.”. [21] Bauer has indisputably fulfilled the requirements for a stay under paragraph 16(1)(b) CIPAA as the subject matter of the 3rd AD is S/N /67zMpjrMEaeCzaLJ8tqEg pending final determination by arbitration (see the decisions of this Court in Puncak Niaga Construction Sdn Bhd v Mersing Construction & Engineering Sdn Bhd (and 2 Other Originating Summonses) [2022] 1 AMR 249 at paragraph 69, pp 286 - 287 (affirmed by the Court of Appeal on 8.8.2022) and Samsung C&T Corporation UEM Construction JV Sdn Bhd v Eversendai Constructions (M) Sdn Bhd [2023] MLJU 2555 at paragraph 8, which are to be contrasted with Classic Series Sdn Bhd v Ng Lung Yang (Trading under the name and style of ‘NLY Coating’) [2023] MLJU 2324 at paragraphs 35 and 36). [22] In his submission for Bauer, Mr. Sanjay Mohan has fittingly submitted that the court may stay an adjudication decision where there are clear errors, or to meet the justice of the individual case and that the correct approach under s 16 of the CIPAA would be to evaluate each case on its merits where the financial capacity of the unpaid party to repay the adjudicated sum could be a factor but not the only factor (see View Esteem Sdn Bhd v Bina Puri Holdings Bhd [2018] 2 MLJ 22). [23] The learned counsel further submitted that the justice of the present case demands that the 3rd AD be stayed (see too, paragraph 26 in the AIS). [24] In Zeta Letrik Sdn Bhd v JAKS Sdn Bhd and other cases [2022] MLJU 2734, I said: “[64] Among the cases which have discussed how the tests of clear and unequivocal errors and justice of the case S/N /67zMpjrMEaeCzaLJ8tqEg are to be applied in the exercise of the discretion of the court whether to grant a stay or otherwise are EA Technique (M) Sdn Bhd v. Malaysia Marine And Heavy Engineering Sdn Bhd [2020] 1 LNS 1851, Maju Holdings Sdn Bhd v. Spring Energy Sdn Bhd [2020] 1 LNS 1194 and; [2021] 1 LNS 367, Pinnacle Supreme Sdn Bhd v. DSG Projects Malaysia Sdn Bhd [2021] 1 LNS 852, Sun Plaza Development Sdn Bhd v. Hejingkang Sdn Bhd [2021] 1 LNS 629 and CRCC Malaysia Bhd v M101 Entity Sdn Bhd and other cases [2021] MLJU 1305. [65] In CRCC Malaysia (supra), this Court said: “[56] … [57] As for the phrase “to meet the justice of the individual case”, this Court in Genbina Sdn Bhd v. Bina Puri Construction Sdn Bhd and another appeal [2020] 2 MLRH 101 at p 111 said that the determination as to what is right and fair must necessarily be dependent on the factual matrix and circumstances arising in each case whilst in EA Technique (M) Sdn Bhd v Malaysia Marine and Heavy Engineering Sdn Bhd [2021] 1 AMR 594 at p 603, Lim Chong Fong J expressed the following view: S/N /67zMpjrMEaeCzaLJ8tqEg “[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.” S/N /67zMpjrMEaeCzaLJ8tqEg …” (see too, RA Suria Sdn Bhd v Cedy Third Contracting and Trading (M) Sdn Bhd and other cases [2023] MLJU 247). [25] The grounds upon which Bauer claimed that the justice of the instant case warrants a stay of the 3rd AD are examined below. 1st Ground: There are merits in Bauer’s claims in the ongoing arbitral proceedings [26] In paragraphs 21 to 23 of the AIS, Bauer stated the respective contentions of the parties in the arbitration proceedings, namely –

Bauer’s claims against Meridian which include the sum of RM4,506,451.18 as loss and expense suffered by Bauer due to Meridian’s delay; RM681,951.73 as back charges; RM1,485,698.02 as loss and expense during the defects liability period; and RM432,767.67 being the sum which was overpaid to

Meridian’s counterclaim against Bauer for the sum of RM9,275,068.18 being the balance value of works done including the 2nd moiety of retention sum; and the entitlement to an extension of time (‘EoT’) until 25.11.2017 or alternatively, that S/N /67zMpjrMEaeCzaLJ8tqEg time for completion of the sub-contract works had been set at large, to emphasise that the arbitral tribunal will make a final determination on the issues relating to, among others, the value of works carried out by Meridian; whether Meridian is entitled to an EoT; whether Bauer is entitled to its loss and expense claim; whether Meridian failed to provide certain provisions as required under the sub-contract; whether Bauer is entitled to its back charges; and whether Meridian is entitled to the 2nd moiety of retention sum (the pleadings in the arbitration was shown in exhibit “A-11”). [27] Bauer further stated in paragraph 24 of the AIS that the arbitration proceedings have reached a mature stage wherein Bauer has closed its case on 21.7.2023 and the arbitration proceedings are fixed for continued hearing in the months of August 2023 and February and March 2024. [28] Bauer asserted that all disputes which were raised in the adjudication proceedings will be finally determined by the arbitral tribunal, including Meridian’s entitlement to the release of the 2nd moiety of the retention sum, and that based on Bauer’s position in respect of the total value of work carried out by Meridian and Bauer’s claims for loss and expenses and back charges, there is no sum due and payable to Meridian [29] As the Court of Appeal had dismissed Bauer’s appeal on 23.10.2023, when the Stay Application was heard on 9.11.2023, Bauer’s averment in the alternative in paragraph 29 of the AIS would apply, namely that S/N /67zMpjrMEaeCzaLJ8tqEg the Enforcement Application will naturally be allowed and once the 3rd AD is enforced, Bauer will be left with no recourse or remedy to set aside the 3rd AD. [30] Bauer firmly believes that it has merits in its claim for loss and expense in the arbitration, at least in the sum of RM3,913,000.00 because this Court had set aside the 2nd AD on the ground of excess of jurisdiction rather than on the merits. Hence, it cannot be said that the factual and evidentiary findings made by the 2nd Adjudicator in finding that there was delay by Meridian and in allowing Bauer’s loss and expense, are not reasoned or unsound. The claimed amount will extinguish Meridian’s claim for the 2nd moiety of retention sum. [31] I have considered Bauer’s 1st Ground to support the Stay Application and I was not persuaded that it is in the interest of justice for the Court to grant a stay of the 3rd AD. Sub-s 37(1) CIPAA provides that a dispute in respect of payment under a construction contract may be referred concurrently to adjudication, arbitration or the court. The fact that there is an ongoing arbitration is not, per se, a ground for granting a stay application under s 16 CIPAA (see Meridian Contracts (supra) at subparagraph 65(c)]. [32] Moreover, based on Bauer’s Statement of Claim, its claim against Meridian is for the total sum of RM7,106,866.60 as opposed to Meridian’s total counterclaim of RM9,275,068.18 against Bauer as shown in the Amended Statement of Defence and Statement of Counterclaim (see the AIS, encl. 3). S/N /67zMpjrMEaeCzaLJ8tqEg [33] Contrary to Bauer’s assertion that the arbitration proceedings have reached a mature stage, the precise timeline for the final determination of the disputes between the parties remained uncertain. Whilst the hearing before the arbitrator has been set until March 2024 and assuming that the hearing will be completed in that month, the arbitrator has yet to give directions on the dates for written submissions, and possibly clarification hearings to be held. The exact date when the final award will be published is also unknown. [34] To allow a stay of the 3rd AD in the circumstances of this case would be to defeat the primary objective of the CIPAA to alleviate cash flow issues by providing an effective and economical mechanism [see Martego Sdn Bhd v Arkitek Meor & Chew Sdn Bhd and another appeal [2020] 6 MLJ 224 (FC) at paragraphs 46 - 55, pp 242 - 246 and Inai Kiara (supra, at paragraph 28, p 371)]. [35] For the avoidance of doubt, I did not give any consideration to Bauer’s submission that the 3rd AD contained clear error as this ground was not raised in Bauer’s affidavit evidence. Moreover, Bauer has chosen not to file an application to set aside the 3rd AD under s 15 of the CIPAA. 2nd Ground: Whether Meridian is unable to repay the Adjudicated Sum if the arbitration proceedings concludes in Bauer’s favor [36] In paragraphs 31 to 33 of the AIS, Bauer affirmed that there is a risk that Meridian will not be able to repay the adjudicated amount in the S/N /67zMpjrMEaeCzaLJ8tqEg 3rd AD should Meridian be required to do so after the disposal of the arbitration proceedings. Bauer relied on –

the Summary Of Financial Information in the Companies Commission of Malaysia (‘CCM’) search conducted on Meridian on 15.8.2023 which shows for the financial year end 31.12.2022, Meridian suffered a loss after tax in the sum of RM915,089.00; had a net dividend of negative RM915,800.00; had two open charges that remain unsatisfied; and had four charges in the total sum of RM3,200,000.00 that remain unsatisfied; and

the CTOS Report on Meridian which shows –

there is a significant decrease in Meridian’s retained earnings as follows: • Financial year end 31.12.2018: RM4,416,179.00 • Financial year end 31.12.2021: RM2,300,061.00 • Financial year end 31.12.2022: RM469,127.00

(ii) Meridian has no revenue for the financial year end 31.12.2021 and 31.12.2022; and

(iii) there is a significant decrease in Meridian’s profit after tax: S/N /67zMpjrMEaeCzaLJ8tqEg • Financial year end 31.12.2018 in the sum of RM726,251.00 • Financial year end 31.12.2021 in the negative sum of RM6,319.00 • Financial year end 31.12.2022 in the negative sum of RM915,800.00 (see exhibit “A-12”, encl. 3). [37] Bauer’s counsel vehemently submitted that Meridian’s public financial information reveals that Meridian is in significant financial distress. For two consecutive years, Meridian had zero revenue and this signified severe strain in cash flow and a lack of ability to generate any revenue. This was worsened by the fact that Meridian’s suffered two straight years of negative growth and negative profit. As at 31.12.2022, Meridian suffered loss of profit (after tax) of RM915,089.00. [38] Further, based on Meridian’s balance sheet for the financial year end 31.12.2022, Meridian’s current net worth was only in the sum of RM2,879,172.00 and its net asset was after Bauer had complied with the 1st AD and paid the Adjudicated Sum with interests and costs of RM6,265,214.52. Meridian’s total assets include the non-current assets in the sum of RM1,804,884.00, which are not easily liquidated into cash. S/N /67zMpjrMEaeCzaLJ8tqEg [39] In addition, the unsatisfied charges are an indicator of high debt level and poor financial health. This exposes Meridian to the risks of losing its assets if the secured creditors decide to enforce the charges. With regards to the alleged cause of Meridian’s precarious state of finance, namely the COVID-19 pandemic, the fact remains that Meridian is currently in a precarious state of finance and might not be able to repay the Adjudicated Sum. [40] After having scrutinised the CCM search and CTOS Report and the parties’ averments and submissions, it is my considered view that Meridian’s financial health is not at such a perilous level that it would not be able to repay the adjudicated amount, if called to do so. This is because –

the adjudicated amount including costs, and excluding accruing interests, is only RM1,147,927.53;

as at financial year end 31.12.2022 –

Meridian’s current assets is RM2,330,408.00 and non-current assets is RM1,804,884.00 which gives a total of RM4,135,292.00. The total assets and the current assets exceed the adjudicated amount; and

(ii) Meridian’s total liabilities is RM1,256,120.00 and its losses after tax is RM915,089.00. Even with these figures, and considering the total assets and the net worth of S/N /67zMpjrMEaeCzaLJ8tqEg RM2,879,172.00, Meridian would still be able to repay the adjudicated amount, if required to do so in future;

the six unsatisfied charges involve two open charges and four charges which were created between 5.11.2004 and 18.7.2007 for the total amount of RM3,200,000.00. As submitted by Meridian, unsatisfied charges are not markers for its financial health and could be seen as reflecting the banks’ confidence in Meridian as a going concern; and

in PNL Capital Sdn Bhd & Ors v Loh Teck Wah & Ors [2022] 6 MLJ 304, the Court of Appeal said: “[88] The case of Datuk Mohd Sari bin Datuk Hj Nuar v Idris Hydraulic (M) Sdn Bhd [1997] 5 MLJ 377 was also cited where it was held that in determining the issue of inability to pay debt, the High Court considered the assets and liabilities of the company. Kamalanathan Ratnam JC (as he then was) held as follows: Section 218(2)(c) is very clear. To ascertain if a company is unable to pay its debt the court shall take into account the contingent and prospective liabilities of the company. In order to ascertain its liabilities, it is proper that its assets are also ascertained because only upon ensuring that there is insufficient assets to meet the debts can there be ascertained liabilities. Therefore, the S/N /67zMpjrMEaeCzaLJ8tqEg current assets must be taken stock of to see if after considering the total liabilities both contingent and prospective there is a surplus deficit. (Emphasis added.) [89] We have no quarrel nor quibble with what is unquestionably the settled test with respect to whether a company is ‘unable to pay its debts’.”. Applying the settled test as above quoted to the present case, with current assets of RM2,330,408.00 and total liabilities of RM1,256,120.00, Meridian is still capable of repaying the Adjudicated Sum, if required to do so. [41] As to the issue of whether a conditional stay should be granted in favor of Bauer, it was argued that a stay under s 16 CIPAA, even if conditional upon Bauer depositing the Adjudicated Sum into a stakeholder account, would best protect the competing interests of parties as –

Meridian’s rights will be protected by the fact that the adjudicated sum in the stakeholder account will be released to Meridian if the arbitration proceedings conclude in Meridian’s favour;

Bauer’s rights will be protected as a stay will alleviate its anxiety that it cannot recover the adjudicated sum if the arbitration proceedings conclude in Bauer’s favour; and S/N /67zMpjrMEaeCzaLJ8tqEg

both parties can focus on the arbitral proceedings without fear of further execution or winding-up proceedings arising from the 3rd AD. [42] Although I have, in cases such as Tecnicas Reunidas Malaysia Sdn Bhd v Petrovietnam Engineering Consultancy JSC (PVE) & Anor and other cases [2021] MLJU 2633 and Samsung C&T Corporation UEM Construction JV Sdn Bhd (supra) allowed a conditional stay, I was not convinced that this would be an appropriate order to make in the instant case in order to strike a balance between securing the recoverability of the Adjudicated Sum and preserving the essence of an adjudication proceeding under the CIPAA. [43] The Adjudicated Sum has been owing to Meridian since year 2020 and Meridian has not been able to recover the out-of-pocket expenses incurred in the 3rd Adjudication whereby it had paid both its and Bauer’s portions of the security deposit as Bauer had defaulted in making this payment. Conclusion [44] In view of the foregoing reasons, the Enforcement Application in O.S. No. 123 was allowed and the Stay Application in O.S. No. 134 was dismissed. S/N /67zMpjrMEaeCzaLJ8tqEg [45] Mr. Sanjay Mohan was agreeable to the costs as proposed by Mr. CK Oon and I concurred. Hence, costs of RM5,000.00 were ordered for the Enforcement Application and RM10,000.00 for the Stay Application, both subject to allocatur. Dated: 22 December 2023 (ALIZA SULAIMAN) Judge Construction Court 2 High Court Kuala Lumpur Counsels/ Solicitors: For the Plaintiff in O.S. No. 123 and the Defendant in O.S. No. 134: Oon Chee Kheng (Goh Jing Han with him) Messrs. C K Oon & Co. Advocates & Solicitors L3A-3A, Wisma BU8 No. 11, Lebuh Bandar Utama Bandar Utama Damansara 47800 Petaling Jaya Selangor S/N /67zMpjrMEaeCzaLJ8tqEg For the Plaintiff in O.S. No. 134 and the Defendant in O.S. No. 123: Sanjay Mohan (Wong Li-Wei and Tan Jia Shen with him) Messrs. Sanjay Mohan Advocates & Solicitors Unit 5.01 Level 5 WORK @ Clearwater Jalan Changkat Semantan 50490 Kuala Lumpur Cases, legislation and other sources referred to in the submissions by learned counsels and in the Grounds of Judgment: Cases: Ananda Kumar a/l Krishnan v Ng Chin Tai (t/a Lean Seh Fishery) & Anor (Tesco Stores (Malaysia) Sdb Bhd, intervener) [2016] MLJU 924 Classic Series Sdn Bhd v Ng Lung Yang (Trading under the name and style of ‘NLY Coating’) [2023] MLJU 2324 Inai Kiara Sdn Bhd v Puteri Nusantara Sdn Bhd [2019] 2 MLJ 362 Martego Sdn Bhd v Arkitek Meor & Chew Sdn Bhd and another appeal [2020] 6 MLJ 224 Mecomb Malaysia Sdn Bhd v VST M&E Sdn Bhd [2018] 8 CLJ 380 Meridian Contracts Sdn Bhd v Bauer (Malaysia) Sdn Bhd [2023] MLJU 1047; [2023] 1 LNS 917 S/N /67zMpjrMEaeCzaLJ8tqEg Meridian Contracts Sdn Bhd v Bauer (Malaysia) Sdn Bhd and another summon [2020] MLJU 1405; [2020] MLRHU 1138 Niko Bioenergy Sdn Bhd v RH Balingian Palm Oil Mill Sdn Bhd [2018] MLJU 1574 PNL Capital Sdn Bhd & Ors v Loh Teck Wah & Ors [2022] 6 MLJ 304 Puncak Niaga Construction Sdn Bhd v Mersing Construction & Engineering Sdn Bhd (and 2 Other Originating Summonses) [2022] 1 AMR 249 RA Suria Sdn Bhd v Cedy Third Contracting and Trading (M) Sdn Bhd and other cases [2023] MLJU 247 Renew Capital Sdn Bhd & Ors v ADM Ventures (M) Sdn Bhd & Anor and another appeal [2022] 6 MLJ 58 Samsung C&T Corporation UEM Construction JV Sdn Bhd v Eversendai Constructions (M) Sdn Bhd [2023] MLJU 2555 Subang Skypark Sdn Bhd v Arcradius Sdn Bhd [2015] 11 MLJ 818 Tecnicas Reunidas Malaysia Sdn Bhd v Petrovietnam Engineering Consultancy JSC (PVE) & Anor and other cases [2021] MLJU 2633 View Esteem Sdn Bhd v Bina Puri Holdings Bhd [2018] 2 MLJ 22 S/N /67zMpjrMEaeCzaLJ8tqEg Zeta Letrik Sdn Bhd v JAKS Sdn Bhd and other cases [2022] MLJU 2734 Legislation: Construction Industry Payment and Adjudication Act 2012, ss 13, 16, 28 & 31 Rules of Court 2012, O. 7, O. 28, O. 69A r. 4 & O. 92 r. S/N /67zMpjrMEaeCzaLJ8tqEg