Mori Park Sdn Bhd v Jack-In Pile (M) Sdn Bhd (BA-24C-55-10/2025)

There are three related Originating Summonses before this Court arising from an Adjudication Decision dated 22 September 2025 (“the AD”) delivered by Dato' Ir. Ashok Kumar Sharma.

The following Originating Summonses were before this Court :-

BA-24C-55-10/2025 (“OS 55”) is an application by Mori Park Sdn. Bhd. (“Mori Park”) under to S. 15(a), (b) and (d), CIPAA for an order to set aside the AD;

(ii) BA-24C-64-11/2025 (“OS 64”) an application by Mori Park to stay the AD pending the final determination of an arbitration proceeding;

(iii) BA-24C-62-10/2025 (“OS 62”) is an application by Jack-In Pile

(M) Sdn Bhd (“JIP”) under S.28, CIPAA for an order to enforce the AD as if it is a judgment or order of the High Court.

By agreement of parties, all three Originating Summonses were heard together as it involved the same AD.

Having considered the affidavits, written and oral submissions from both parties, I have on 24.4.2026 dismissed OS 55 and OS 64 and allowed OS 62.

Dissatisfied with all my three decisions, Mori Park filed the present appeal. These are the grounds for the said decisions.

Mori Park has premised its application to set aside the AD on S.

(a), (b) & (d) of CIPAA in that :-

the Adjudicator has acted in excess of his jurisdiction by :-

relying on clauses that was not specified in the Payment Claim issued by JIP;

relying on incorrect clauses specified by JIP to support its cause of action. [s. 15(d)]

(ii) the AD was improperly procured through fraud as there was concealment of evidence and fact; [s. 15(a)]

(iii) the Adjudicator has breached natural justice by :-

deciding based on a point not submitted by either party; and

wrongfully dismissing or disregarding Mori’s submission. [s. 15(b)] OS 64

This application is by Mori Park for a stay of the AD on the following grounds :-

the dispute has been referred to arbitration;

(ii) there are clear errors in the AD that warrants a stay;

(iii) justice of the case. [s.16(1)(b)] OS 62

OS 62 is an application by JIP to enforce the AD as if it is a judgment or order of the High Court. [s. 28] Background of facts

By a letter of award dated 13.12.2023 (“LoA”), Mori Park appointed JIP as the contractor for the foundation works (“Works”) for a commercial building in Shah Alam, Selangor (“the Project”), with parties agreeing vide Clause 2 of the LoA, that the conditions of contract are the Agreement and Conditions of PAM Contract 2006 (With Quantities) (“the PAM Contract”).

14.

RM1,864,206.97 being the total unpaid sum under Interim Payment Certificate (“IPC”) No. 5, IPC No. 6, IPC No. 8 and

(ii) RM536,815.65 being the total uncertified sum under Interim Progress Claim No.s 8 and 9;

(iii) RM255,000.00 being the first moiety of the retention sum.

In its Payment Response, Mori Park denied liability, asserting an entitlement to set off Liquidated Damages (“LD”) due to alleged delays in completion of the Works by JIP.

The chronology of the Adjudication Proceedings under CIPAA are as follows :-

JIP filed its Adjudication Claim dated 8.7.2025;

(ii) Mori Park filed its Adjudication Response dated 22.7.2025;

(iii) JIP submitted its Adjudication Reply dated 29.7.2025;

On 22.9.2025, the Adjudicator delivered the AD where the Adjudicator allowed the adjudication cost of RM53,401.51 and JIP’s claim to the extent of RM1,783,476.39, the calculation is as below :-

RM1,864,206.97 (the total unpaid sum under IPC No. 5, IPC No. 6, IPC No. 8 and IPC No. 9;

(ii) RM255,000.00 (the first moiety of the retention sum);

(iii) less RM335,730.58 (set-off for material costs paid by Mori Park)

The Plaintiff applied to set aside the Adjudication Decision under ss. 15(a), (b) and (d) of CIPAA.

The Construction Industry Payment and Adjudication Act 2012 (“CIPAA”) which came into force on 15th April 2014 was introduced to address payment disputes within the construction industry, its primary objective being to facilitate regular and timely payment for construction work.

Under this Act, the adjudication mechanism established under CIPAA is intended to provide a speedy and interim dispute resolution process.

Zulkefli Ahmad Makinudin PCA in View Esteem Sdn Bhd v Bina Puri Holdings Berhad (2018) 2 MLJ 22 held that : “[6] It is noted that CIPAA was enacted to introduce statutory adjudication to address lengthy payment times that affected the contractors in the Construction Industry. It is intended as an interim measure to ease the contractors’ cash flow.”

CIPAA under S. 15 provides very limited circumstances in which an adjudication decision may be set aside.

Section 15 of CIPAA provides as follows :-

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 not acted independently or impartially; or

The adjudicator has acted in excess of his jurisdiction.

When considering an application under this provision, the Court is not required to delve into the facts of the dispute and/ or look into or review the merits of the case. It follows that the Court must adopt a minimalist intervention and in the words of the Court of Appeal in the case of ACFM Engineering & Construction Sdn Bhd v Esstar Vision Sdn Bhd and another appeal [2016] MLJU 1776, the Court’s function is simply to look at the manner at which the Adjudicator conducted the hearing and whether the Adjudicator had committed an error of law during that process, such error relates to whether he had accorded procedural fairness to the parties.

Further, in the case of Enra Engineering and Fabrication Sdn Bhd v Gemula Sdn Bhd and another case [2020] 7 MLJ 482 where it was held that: “[61] In Bina Puri Construction Sdn Bhd v Hing Nyit Enterprise Sdn Bhd [2016] 7 MLJcon 119; [2015] MLJU 941, the High Court dismissed the applicant’s application to set aside the adjudication decision which was granted in favour of the claimant subcontractor in the adjudication proceedings. Ravinthran Paramaguru J observed as follows: [9] … It must be noted that under CIPAA, there is no right of appeal against the decision of the adjudicator which is interim in nature or of temporary finality only. Section 15 has provided limited grounds on which the decision of the adjudicator may be set aside. Since an application under s 15 is not an appeal, the decision of the adjudicator cannot be reviewed on merits … [12] … As I said earlier, s 15 does not envisage that the decision of the adjudication can be reviewed on its merits. Therefore, it is immaterial if the adjudicator had erred in his finding of facts. The decision of an adjudicator is only of temporary finality pending final settlement of accounts. In the premises, unless there is a clear cut breach of natural justice or excess of jurisdiction, the court should be slow to set aside the decision of the adjudicator.”

It bears emphasis that the grounds for setting aside an adjudication decision under s.15 of CIPAA are circumscribed. In this regard, it is instructive to consider the observations of Lee Swee Seng J in PCP Construction Sdn Bhd v Leap Modulation Sdn Bhd and other suits (2017) MLJU 905, where His Lordship elaborated on the governing principles applicable to applications to set aside an adjudication decision: “[22] There are very limited grounds for setting aside an Adjudication Decision under section 15 CIPAA, with the common grounds being that under section 15(b) in that there has been a breach of natural justice or under section 15(d) in that the Adjudicator has acted in excess of his jurisdiction. [27] I agree with the Claimant that an adjudication decision may only be set aside if:

the learned Adjudicator has failed to answer the question referred to her or she has answered a question which was not referred to her; or

the manner in which she has gone about her task is obviously unfair; which may then amount to one of the grounds under

This Court also found reference to the case of Terminal Perintis Sdn Bhd v Tan Ngee Hong Construction Sdn Bhd and another case [2017] MLJU 242 where again Lee Swee Seng J held that the Court would uphold the decision made by the adjudicator unless it can be proven that the said decision was made by the Adjudicator not in compliance within the prescribed law under CIPAA: “[48] I do not think the position under our CIPAA is materially different. Looking at the grounds for setting aside an Adjudication Decision, one can say that a Court of law would uphold the Decision unless it can be shown that it was procured through fraud or bribery, or that there was a breach of natural justice or that the Adjudicator was not independent or impartial or that the Adjudicator had acted in excess of jurisdiction or that the Decision was not in compliance with the provisions of CIPAA.”

The issues for determination here were:-

whether the AD was improperly procured by way of fraud by reason of the alleged concealment by JIP of the covering email sent on 17.12.2024 @ 6.37pm enclosing the Certificate of Non-Completion dated 5.12.2024;

(ii) whether there was a denial of natural justice in that:

the Adjudicator allegedly made a determination/ finding on a point not pleaded by parties; and

the Adjudicator allegedly dismissed or disregarded Mori Park’s submission wrongfully.

(iii) whether the Adjudicator acted in excess of jurisdiction when:

the Adjudicator allegedly made a determination based on clauses not specified by JIP in the Payment Claim; and

the Adjudicator allegedly relied on the old version of clauses specified by JIP in the Payment Claim which were the old version in the PAM Contract.

For convenience, I shall address the issues in the reverse order, as certain factual matters overlap and are relevant to both aspects of the analysis.

Whether the Adjudicator acted in excess of jurisdiction under S. 15(d)

the Adjudicator allegedly made a determination based on clauses not specified by JIP in the Payment Claim

Mori Park contended that in its Payment Claim JIP had identified its cause of action for the amount claimed by referencing Clauses 13.1 and 13.2 of the LoA and Clauses 30.1 and 30.6(c) of the PAM Contract.

LoA

(ii) PAM Contract

Clause 30.1 was amended to the extent stated in Document D :

It must be noted that at paragraph 4 of its Payment Response, Mori Park expressly asserted its entitlement to impose liquidated damages (“LD”) due to the delay(s) occasioned by JIP : “We state that there is no outstanding amount that are due nor payable to your client under the Project and the Letter of Award dated 13.12.2023 as we are entitled to impose liquidated damages due to your delay in the completion of the works for the Project.”

In the Adjudication Claim, JIP relied on 3 additional clauses in support of its claim, namely Clauses 22.1, 22.3, and 30.17 of the PAM Contract, which Mori Park took issues with as the Adjudicator had expressly applied Clauses 22.1. and 22.3 in his AD in deciding that Mori Park had failed to comply with the condition precedent under the PAM Contract to entitle Mori Park to impose LD. For completeness, Clause 22.1 of the PAM Contract was amended to the extent stated in Document D :

If I have correctly understood learned Counsel’s submission, Mori Park’s argument is that in its Adjudication Claim JIP has sought to recover a sum allegedly due to it by making reference to 2 contractual provisions that was expressly concerned with the imposition of liquidated damages; i.e Clauses 22.1 and 22.3 of the PAM Contract.

On a proper reading of the Payment Claim, JIP’s claim is, in substance and form, a claim for payment of certified sums and related entitlements which had fallen due under the LoA and the PAM Contract. In any event, I find that JIP had made express reference in the Payment Claim to the alleged wrongful deduction of LD which I accept to be an explanatory contention as to why the certified sums remained outstanding.

Further, the Adjudication Claim, when read as a whole, reveals that the references to Clauses 22.1 and 22.3 were made not as the basis of JIP’s claim, but rather to pre-empt and negate Mori Park’s asserted entitlement to impose LD upon JIP.

This Court rejects Mori Park’s attempt to re-characterise JIP’s cause of action as one founded on the alleged wrongful imposition of LD under Clause 22 of the PAM Contract as it is not the foundation and/or basis of the claim but a contention as to why the certified sums remained outstanding.

On the facts, Clause 22 operates as a response to Mori Park’s assertion of permitted imposition of LD. It is not the source of JIP’s entitlement to payment. JIP’s entitlement arose from the certification regime under Clause 13 of the LoA and Clause 30 of the PAM Contract, which were expressly identified in the Payment Claim. The Adjudicator’s reference to Clause 22 was therefore confined to determining whether Mori Park’s asserted deduction was contractually justified. This falls squarely within the jurisdiction of the Adjudicator.

The reliance placed on Anas Construction Sdn Bhd v JKP Sdn Bhd and another appeal (2024) 2 MLJ 543 by Mori Park is misplaced. The error identified in Anas Construction lies in an adjudicator determining a dispute on a contractual provision which was neither relied upon to found the claim nor arose from the parties’ pleaded positions.

In the present case, Clause 22 did not emerge as an independent or freestanding basis of liability introduced by the Adjudicator. Rather, it was inextricably engaged by Mori Park itself when it advanced LD as its primary defence in the Payment Response. The Adjudicator’s consideration of Clause 22 was therefore not a jurisdictional overreach, but was a necessary step in evaluating the validity of that defence.

Accordingly, this is not a case where the Adjudicator made a determination on an unpleaded contractual provision within the meaning of Anas Construction.

the Adjudicator allegedly relied on the clauses specified by JIP in the Payment Claim which were the unamended version in the

In essence, Mori Park alleged that JIP and the Adjudicator relied on the unamended PAM clauses (particularly Clause 30.1 and Clause 30.6(c)) instead of the amended contractual provisions, and that this misidentification of the contractual basis of the claim constituted a jurisdictional excess under s. 15(d) of CIPAA.

Clause 30.1 of the PAM Contract was, in fact, amended in Document D (which is reproduced at paragraph 30 above), where the effect of the amendment was to allow Mori Park to set off, deduct or back charge JIP’s entitlement to payment under an Interim Payment Certificate issued.

In the Payment Claim, in compliance with s. 5(2)(b) of CIPAA, JIP has listed the contractual clauses in the construction contract to which it was claiming for payment, inter alia : “Clause 30.1 of the PAM Contract spells out the certification period of our client’s claims as twenty one (21) days from the submission of the claim.”

The Court is unable to discern the basis upon which Mori Park contends that JIP failed to refer to the amended version of Clause 30.1, given that JIP had expressly relied on, albeit in a summarised form, the said clause in both its Payment Claim and Adjudication Claim.

Further, upon a careful reading of the AD, it is clear to me that the Adjudicator was aware of the amended version of Clause 30.1 which governed JIP’s claim for unpaid sum under IPC No. 5, IPC No. 6, IPC No. 8 and IPC No. 9. This is evidenced in the following :-

page 4 of the AD where the Adjudicator has meticulously set out the amended version of Clause 30.1;

(ii) page 25 of the AD where the Adjudicator has allowed the setting off and/or deduction of material costs of RM335,730.58 from his award to JIP. Clause 30.6 (c)

Whilst Clause 30.1 was amended as stated above, Clause 30.6(c) was not amended in any form or manner.

Clause 30.6(c) dealt with the release of the Retention Sum which was to be : “upon the issuance of the Certificate of Practical Completion, the Architect shall within fourteen (14) days issue a certificate for release of one half of the Retention Fund and the Contractor shall be entitled to payment thereafter within the Period of Honouring Certificates”

In the present case, Mori Park contends that Clause 30.6(c) must be read together with Clause 21, which was subject to an amplification at item R, Document D, with the result that the release of one-half of the Retention Sum becoming due only upon the issuance of the Certificate of Practical Completion for Overall Completion.

Mori Park sought to elevate the issue beyond one of mere contractual interpretation and contend that it gives rise to an excess of jurisdiction on the following grounds:–

Section 5(2)(b) CIPAA requires the contractual basis of the claim to be identified;

(ii) JIP identified the wrong clauses;

(iii) the Adjudicator accepted and relied upon those wrong clauses;

(iv) therefore, the Adjudicator decided a claim founded on an incorrect contractual basis.

In stark contrast to the position now advanced by Mori Park in the present proceedings, it remained entirely silent on the issue of the release of the first moiety of the Retention Sum in both its Payment Response and its Adjudication Response.

The Court must carefully distinguish between whether the Adjudicator has decided the dispute on a contractual basis not relied in the Payment Claim (which may amount to excess of jurisdiction, which then becomes a jurisdictional issue) or whether the Adjudicator merely interpreted or evaluated the contractual entitlement by reference to surrounding facts and conduct (which is within jurisdiction and is a merit issue).

The dispute referred to the Adjudicator concerned, inter alia, the release of one half of the Retention Sum which JIP said was already due.

The Adjudicator allowed JIP’s claim for the first moiety of the Retention Sum after evaluating parties position, which were as follows :-

JIP’s position : “upon issuance of the 2nd CPC-Section 2 which certifies overall completion of the Works on 6.12.2024. The Claimant asserted that the first moiety of retention sum amounting to RM255,000.00 should be certified by 20.12.2024 and to be paid to the Claimant by 19.01.2025” [page 23 & 13 of the AD]

(ii) Mori Park’s position : “The Respondent did not submit any rebuttals on this issue.”

Having evaluated parties’ position, the Adjudicator concluded at paragraph 76, page 23 of the AD, that JIP’s claim for the release of the first moiety of retention sum “was valid and in accordance with the relevant section of the contract (i.e Clause 30.6(c) of PAM 2006) the sum was due to be released. At the same time, I also acknowledged that the Respondent had in fact not raised any objections to the Claimant’s request for the release of the retention sum.”

Whether that conclusion is right or wrong on the merits is not the present concern. The critical point in that the dispute was whether such payment was due to be released which fell squarely within the Adjudicator’s jurisdiction to determine.

In the upshot, I find that the Adjudicator did not act in excess of jurisdiction.

(ii) whether there was a denial of natural justice

Mori Park’s contention that the Adjudicator has acted in breach of natural justice is two-fold :-

that the Adjudicator has allegedly made a determination/ finding on a point not pleaded by parties; and

(ii) that the Adjudicator has allegedly dismissed or disregarded Mori Park’s submission wrongfully.

In Guangxi Dev & Cap Sdn Bhd v Sycal Bhd & Anor (appeal)

1 CLJ 592, the Court of Appeal emphasised that a finding of breach of natural justice must relate to a material breach affecting the outcome. At paragraph 32, the Court of Appeal held as follows:- “This brings us to the final issue of whether the breach of natural justice was a material breach. It is accepted law that any breach of natural justice must not be peripheral but must be a material breach affecting the outcome of the resolution of the dispute (see Cantillon Ltd v. Urvasco Ltd [2008] EWHC 282 (TCC). However, in determining this question, it is not necessary to investigate all the facts to decide if the adjudicator would have arrived at a different conclusion if the matters included in the response were considered. All that needs to be considered is whether there was a real possibility of a different conclusion (see CJP Builders Ltd v. William Verry Ltd [2008] EWHC 2015 (TCC)).”

Mori Park’s complaint, in essence, is that the Adjudicator has dismissed Mori Park’s defence and/or set off of LD amounting to RM630,000.00 for Section 1 and RM1,610,000.00 for Section 2.

The issue of the LD imposed by Mori Park on JIP was very much a live issue before the Adjudicator. On the one hand, Mori Park asserted that it was entitled to impose LD, whilst on the other hand JIP questioned Mori Park’s entitlement to the LD and the basis upon which it was said to arise.

The following facts emerged from the adjudication proceedings :

Completion Date

15.6.2024 Section 2 (overall completion) :

15.10.2024

(ii) Revised Completion Date Section 1 :

16.8.2024 Section 2 :

12.11.2024

(iii) Practical Completion Section 1 :

26.8.2024 Section 2 :

6.12.2024

(iv) EOT granted for Section 1 No. 1 :

13.7.2024 No. 2 :

11.8.2024 Engineer’s letter dated 21.10.2024 : 16.8.2024

CNC issued for Section 1 :

15.8.2024

(vi) EOT granted for Section 2 Engineer’s letter dated 17.12.2024 : 12.11.2024

(vii) CNC issued for Section 2 :

5.12.2024 [EOT means Extension of Time and CNC means Certificate of

The Adjudicator dealt with the issue of LD at paragraphs 71 – 74 of the AD, which is reproduced below for convenience:

It was patently clear that at paragraph 72 of his AD, the Adjudicator has premised his decision that Mori Park was not entitled to impose LD for Section 1 and Section 2 on Mori Park’s failure to issue further CNC post 16.8.2024 for Section 1 (for LD to be imposed from 17.8.2024 – 25.8.2024, with practical completion on 26.8.2024) and post 12.11.2024 for Section 2 (for LD to be imposed from 13.11.2024 – 5.12.2024) “as mandated by Clause 22.3 of PAM

2006.”

From the records, Mori Park has in its Payment Response asserted its entitlement to impose LD on JIP. Whilst the Court accepts that Mori Park did not expressly invoke Clauses 22.1 and 22.3 in either its Payment Response and Adjudication Response, these are the contractual provisions in the construction contract that allows the imposition of LD subject to CNC being issued. JIP dealt with the same in the Adjudication Claim.

As such, the applicability of Clauses 22.1 and 22.3 was placed squarely before the Adjudicator.

The Adjudicator was then duty bound to scrutinise the clauses against the EOTs granted and the CNCs issued by Mori Park as the core question before the Adjudicator was whether Mori Park was contractually entitled to impose the LD and thereafter deduct and/or set off the same from payment(s) due to JIP.

In PJ Midtown Development Sdn Bhd v Pembinaan Mitrajaya Sdn Bhd (2020) MLRHU 2039, the Court there held that Liquidated Damages and Extension of Time are "the flip side of the same coin." If a party raises LAD as a set-off, the Adjudicator does not exceed jurisdiction by considering EOT issues, even if EOT was not specifically mentioned in the initial claim, because they are inextricably linked.

Evidently, this is not the case where the Adjudicator decided the dispute on a factual or legal basis that was never raised nor canvassed by parties.

This is an exercise of evaluation and interpretation, not procedural unfairness.

In any event, even assuming that further submissions should/ might have been made, Mori Park has not demonstrated how the outcome would realistically have differed. Materiality has not been established. No material prejudice has been demonstrated; there is no real possibility that further submission would have produced a different outcome. The threshold stated in Guangxi Dev & Cap has not been met by Mori Park.

In my judgment, this ground amounts to disagreement with the Adjudicator’s reasoning and it does not amount to a denial of natural justice.

Lest this Court be accused of overlooking Mori Park’s complaint that the Adjudicator had stated, at paragraph 73 of the AD, that Mori Park’s contentions concerning the EOT issue and the alleged non-completion works discovered after the issuance of the 1st CPC - Section 2 were “going off on a tangent”, I am satisfied that the Adjudicator did in fact consider those contentions but ultimately found them to be irrelevant to the dispute before him and therefore accorded them no weight, particularly in light of his findings and determination at paragraph 72 of the AD.

In any event, this complaint was not canvassed by Mori Park in its submissions before this Court. Accordingly, there is no basis for the Court to infer that the Adjudicator failed to consider the issue; at its highest, the complaint amounts to a disagreement with the Adjudicator’s assessment of relevance and weight. Such a complaint does not engage the principles of natural justice.

Thus, the complaints fell short of the threshold required under S. 15(b) of CIPAA. Consequently, the challenge under S.15 (b) of CIPAA failed.

(iii) Whether the AD was improperly procured by way of fraud

The threshold for fraud under Section 15(a) is high, requiring proof of actual dishonesty. In GUMI ASLI ELEKTRIKAL SDN BHD v. DAZZLING ELECTRICAL (M) SDN BHD [2020] 3 MLRH 276 held as follows : [15] I am not able to find any Malaysian case which has interpreted the scope of the courts power under s 15(a) CIPAA to set aside an AD which has been "improperly procured through fraud". I am of the following view:

a party (X) applying to set aside an AD on the ground that the AD has been improperly procured through fraud under s 15(a) CIPAA has to prove the following two matters cumulatively:

fraud has been committed. In this respect, the fraud in question need not be committed by the party in whose favour the AD is given (Y). Section 15(a) CIPAA does not require fraud to have been committed by the adjudicator. Nor is it required to be proven that Y or the adjudicator is complicit in the fraud; and

the AD has been "improperly procured" through fraud, either directly or indirectly. On the wording of s 15(a) CIPAA, even if X can prove the commission of fraud but if X cannot prove that an AD has improperly procured through fraud, the court should not exercise its discretion to set aside the AD. Having said that, if fraud has been committed, the court should not exercise its discretionary power to grant leave to Y to enforce the AD under s 28(2) CIPAA - please see paras 19 and 20 below; [Emphasis added]

Mori Park contends that the AD was improperly procured as there was a concealment of material evidence and facts by JIP in the adjudication proceedings.

As stated above, at paragraph 72 of the AD, the Adjudicator had found that :-

For Section 1 CNC dated 15.8.2024 was revoked by an EOT which revised the completion date to 16.8.2024. There was no further CNC issued to entitle Mori Park to impose LD from 17.8.2024 – 25.6.2024

(ii) For Section 2 The earlier CNC dated 7.11.2024 was revoked by an EOT which revised the completion date to 12.11.2024. Mori Park issued a CNC dated 5.12.2024, the CPC (Section 2) was issued on 6.12.2024. There was no CNC issued to entitle Mori Park to impose LD from 13.11.2024 – 5.12.2024

It is Mori Park’s contention that the Adjudicator was misled by JIP as JIP failed to disclose that the cover email enclosing the EOT revising the completion date to 12.11.2024 was sent out on 17.12.2024 @ 6.35pm, whilst the CNC dated 5.12.2024 was sent out on 17.12.2024 @ 6.37pm.

I am unable to grasp the basis upon which Mori Park advances this argument.

The wordings in Clauses 22.1 and 22.3 of the PAM Contract are clear and unambiguous : “…Upon issuance of the Certificate of Non-Completion, the Contractor shall pay or allow the Employer a sum calculated at the rate stated in Appendix as Liquidated Damages for the period from the Completion Date to the Date of Practical Completion…” “In the event the Architect issues a Certificate of Extension of Time…, such certificate shall have the effect of revoking the Certificate of Non-Completion earlier issued…If the Works is not completed by the Completion Date stated in such Certificate of Extension of Time, the Architect shall issue a further

The operative words used throughout both clauses are ‘’issued” and “issuance”, not “sent” or “received” (i.e when these CNC and/or EOT were sent or received by parties).

Further, the CNC dated 5.12.2024 recorded the following : “We are issuing a certificate of Non-Completion for your record as the handover of site possession to OSKC has not been completed by the set dead line of 5th December 2024.” The significance of this statement cannot be overlooked. The CPC for Section 2 was issued on the very next day, namely 6.12.2024. In those circumstances, the CNC dated 5.12.2024, even assuming it was transmitted on 17.12.2024 @ 6.37 p.m., could not, without more, operate to entitle Mori Park to impose liquidated damages. The CNC merely recorded that site possession had not been handed over by the stipulated deadline; it did not alter the fact that the CPC for Section 2 was subsequently issued on 6.12.2024. Accordingly, I am unable to see how the timing of the transmission of the CNC could materially advance Mori Park’s asserted entitlement to levy liquidated damages.

Even the Adjudicator commented in his AD, at paragraph 40(vi) page 12 that : “Note : …Secondly, the CNC dated 05.12.2024 was immediately followed by a CPC dated 06.12.2024, in this event, there was no LD triggered anyway…””

Thirdly, the records reveal that the CNC dated 5.12.2024 was transmitted to Mori Park under the same email dated 17.12.2024. Notwithstanding its alleged relevance, Mori Park did not see fit to exhibit the covering email in the adjudication proceedings. This omission is particularly notable given the position it now seeks to advance before this Court.

In the final analysis on this issue, Mori Park, other than asking the Court to make an inference, has not in any manner shown cogent evidence of an intention to deceive by JIP. Put it another way, Mori Park has not shown that JIP had intentionally withheld the document with a view to mislead the Adjudicator, nor has Mori Park shown that the alleged non-production of the document distorted the factual matrix placed before the Adjudicator.

Further, this Court finds that the primary and only reason given by the Adjudicator in his AD for rejecting Mori Park’s defence of LD at paragraph 72 was the absence of further CNCs being issued post 16.8.2024 for Section 1 and 12.11.2024 for Section 2, to trigger JIP’s liability to pay the LD.

The Adjudicator’s finding on the issue of LD was independent of, and did not turn upon, the timing of the transmission of the CNC. Whether the CNC was sent on one date or another was not determinative of the Adjudicator’s conclusion regarding Mori Park’s entitlement to impose LD. There is no causal nexus between the alleged action of concealment and the outcome of the adjudication. Clearly, the AD was not “improperly procured” by reason of that conduct.

As such, I am unpersuaded that Mori Park has discharged the burden of proving that JIP has committed actual fraud and that the AD was improperly procured by fraud as the Adjudicator has premised his decision on the lack of CNC being issued post 16.8.2024 for Section 1 and 12.11.2024 for Section 2; and that the CNC dated 5.12.2024 did not in any way trigger LD as CPC was issued on 6.12.2024.

When reviewed in its entirety, Mori Park’s case is an attempt to challenge the Adjudicator’s evaluation of evidence presented, dispute his interpretation of contractual provisions and to revisit factual findings.

Such matters lie outside the scope of S. 15 of CIPAA.

Having carefully considered the documents, affidavits and submissions, I am satisfied that :-

the Adjudicator had acted within the jurisdiction conferred by CIPAA;

(ii) Mori Park was accorded procedural fairness throughout the adjudication process; and

(iii) the AD was not procured through fraud

The complaints advanced are, in substance, attempts to reopen the merits of the AD.

Again, as enunciated by the various cases cited above, this Court will not interfere with an AD unless one of the limited statutory grounds under S. 15 is clearly made out. Unfortunately, that threshold has not been met in the present case.

Section 16 of CIPAA deals with the stay of Adjudication Decision: Stay of Adjudication Decision 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.

In View Esteem, the Federal Court held as follows: “[79] We are of the view that such a stringent test is not justified under CIPAA because s. 16 of CIPAA itself contains no such limiting requirement or intent. Section 16 of CIPAA should be treated as one of the safeguards to a likely wrongful adjudication decision and which empowers the court to find a suitable middle ground in cases where there has been clear and unequivocal errors.” [Emphasis added]

While it is not disputed that Mori Park has met the stay threshold requirement as set out in s.16(1)(b) in that Mori Park has initiated arbitration. As stated by Mary Lim J (as Her Ladyship was then) in Subang Skypark Sdn Bhd v Arcradius Sdn Bhd (2015) 11 MLJ 818 that : “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.”

Mori Park advanced the following further grounds to advance its case for a stay :-

there was clear errors in the AD;

(ii) that the justice of the case tilted in favour of Mori Park for a stay

Clear Errors in the AD

In Maju Holdings Sdn Bhd v Spring Energy Sdn Bhd [2021] 1 LNS 1194, Lim Chong Fong J (as he was then) held that “clear error” has not been defined and has accepted that the error must be so grave that it pricks the conscience if left unrectified.

Mori Park sought to refer to the grounds set forth in its application to set aside the AD in OS 55 to advance its argument that there was clear and unequivocal error in the AD (per View Esteem).

For the reasons set out in paragraphs [29] to [88] above, neither the jurisdictional challenge nor the complaints founded on an alleged breach of natural justice satisfied the threshold required under s.15 of CIPAA. Likewise, the allegation of fraud has not been made out on the evidence before the Court.

(ii) Justice of the case

Mori Park’s contended that JIP is in a precarious financial position which creates a real risk that if the adjudicated sum is paid to JIP, JIP it will not be able to repay Mori Park should Mori Park succeed in the Arbitration and thereby rendering the arbitration outcome nugatory.

In Subang Skypark, it was held that : “[30] It is this court’s view that in the exercise of discretion of whether to grant the stay or make an order for payment to the Director of KLRCA, the court must weigh into play in a fairly extensive way, the object of CIPAA; and that it is for a speedy disposal of a payment dispute. This is regardless of the fact that this is a payment dispute that arose in the final days of the construction contract, a point which the parties appear to have no issue with and there is no challenge in this respect anyway. Having gone through the hoops of adjudication, there is now decision in the defendant’s favour. [31] This court is of the view that the defendant should not be deprived of the very benefit of why it resorted to adjudication in the first place; save if satisfactory reasons are present for a stay of that adjudication decision. [32] It is my further view that stay should only be granted in exceptional circumstances; and such circumstances must necessarily refer to the financial status of the other party. The merits of the case before the arbitration or the court; or even the chances of success in setting aside the adjudication decision are not relevant considerations. The grant of any stay must always weigh in the primary object of the CIPAA 2012; that it is to ensure a speedy resolution of a payment dispute; that it is to inject much needed cashflow into the contractual arrangements between parties that saw progressive payments of claims as the recognised and accepted way of doing business in construction contracts. It would be futile to encourage parties to resort to adjudication and then deprive a successful claimant of its claim by staying the access to the cash simply because there is another proceeding of the nature described in sub-s 16(1) which is pending. The whole concept of temporary finality would be lost and the object of the Act defeated if such was the consideration.” [emphasis added]

Mori Park has produced JIP’s CCM searches for the years 2022-

For the year 2024, JIP’s financial position lodged with the CCM are as follows :-

Current assets : RM336,636,812.00

(ii) Current liabilities : RM266,172,151.00

(iii) Revenue : RM224,045,652.00

(iv) Profit (after tax) : RM1,606,204.00

The indisputable commercial solvency of JIP is clearly established and the position of JIP as an ongoing concern is undeniable.

I have no hesitation in rejecting Mori Park’s contention that JIP is in a precarious financial position which may render the outcome of the arbitration nugatory.

By evaluating the financial status of JIP, there is no evidence that JIP would be unable to repay the sum should Mori Park succeed in the arbitration.

Mori Park has not met the required threshold for a stay under s.16(1)(b) of CIPAA

Section 28(1) of CIPAA states as follows: Enforcement of adjudication decision as judgment “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.”

In Inai Kiara Sdn Bhd v Puteri Nusantara Sdn Bhd (2019) 2 CLJ 229, the Court of Appeal held that the court may exercise its discretion to grant leave under Sections 28(1) and (2) of CIPAA to enforce an adjudication decision if 3 conditions are met :-

the adjudication decision has been made in favour of the party applying for leave;

(ii) the party against whom an adjudication decision has been made, has failed to pay the adjudicated amount on the date specified in the adjudication decision; and

(iii) there is no prohibition on the court’s discretionary power to grant leave to enforce the adjudication decision.

As the Court has found no merits in the setting aside application, the AD remains valid and in force which has yet to be paid by Mori Park to JIP.

The threshold laid down by the Court of Appeal in Inai Kiara has accordingly been met by JIP for an enforcement order under S. of CIPAA.

Consequently, the following orders were made on 24.4.2026 :-

OS 55 dismissed with costs of RM10,000.00 to be paid by Mori Park to JIP, subject to allocator;

(ii) OS 64 dismissed with cost of RM5,000 to be paid by Mori Park to JIP, subject to allocator; and

(iii) OS 62 allowed with costs of RM5,000.00 to be paid by Mori Park to JIP, subject to allocator. Dated : 26th June 2026 t.t ………………………………………… Shahriza Zalina Binti Abdul Shukor Judicial Commissioner High Court of Malaya Shah Alam For Mori Park : Foo Joon Liang Tasha Lim Yi Chien Law Hui Yee (Gan Partnership) For Jack-In Pile : Chan Kheng Hoe Faten Nadia binti Azarudi (Messrs. Kheng Hoe & Lee Yuen)