MRCB Builders Sdn Bhd v Southern Builders (J) Sdn Bhd (J-02(NCVC)(A)-2136-10/2017)

(i) A finding that the Claimant’s Payment Claim of under-certification and/or non-payment for his PC 1 to 9 is baseless;

(v) A finding that the Respondent is entitled to effect the contractual set-off of a sum of RM4,511,340.64 against the Claimant, pursuant to express provisions of the Contract for back-charges and set-offs as set out in the Respondent’s IPC 1 to 11;

(i) The Claimant contended that there was no implied or express provision in the contract to determine the valuation done and quantum of payment due to the Claimant during the progress of the Works

(v) Despite the Claimant requesting for details to justify the Payment Certificate, the Claimant was not provided with them

(x) The Claimant deny there was overpayment as counterclaimed … [8] On 30.12.2016, the learned Adjudicator rendered his decision wherein a substantial part of the respondent’s claim was allowed. The appellant’s reliefs and remedies were denied. 8 At the High Court [9] The appellant invoked section 15(b), (c) and (d) of CIPAA 2012, to set aside the Adjudicator’s decision. The appellant’s application was filed at the High Court at Johor Bahru. Meanwhile, the respondent sought from the High Court at Kuala Lumpur, an order enforcing the same decision under section 28 of CIPAA 2012. [10] By order of Court dated 28.2.2017, the respondent’s case was transferred to and consolidated with the appellant’s. Both applications were heard together whereupon the learned Judge at the High Court dismissed the appellant’s application and allowed the respondent’s application. [11] In support of its application to set aside the learned Adjudicator’s decision at the High Court, the appellant alleged in the supporting affidavit filed, that the learned Adjudicator was in breach of the rules of natural justice and had exceeded his jurisdiction in several respects. Amongst the complaints were the learned Adjudicator’s failure to take into consideration the fact that the payment certificates were based on monthly joint valuations in the presence of KPK Quantity Surveyor, appointed by the Employer; that the appellant had a right under clause 9.1 of the letter of award to impose LAD on the respondent as well as a right to a set-off under clause 24(a) of the same letter of award. [12] At the hearing before the High Court, the appellant refocused its arguments, relying on clause 23.1 of the letter of award dealing with the 9 dispute resolution mechanism which obliges the respondent to refer any dispute or difference between the contracting parties to a panel comprising the Director or his nominee of the Main Contractor, the Managing Director of the respondent and one expert. This issue was not taken up in the adjudication proceedings. [13] Although this ground does not appear to have been specifically answered by the learned Judge, it would be reasonable to conclude that together with the other grounds relied on by the appellant, none of the grounds succeeded before the High Court. The learned Judicial Commissioner examined the decision “as a whole” and concluded that the learned Adjudicator had:

“…gone on with the task at hand and had arrived at his decision as to how the progress claims were to be addressed.

The Adjudicator had looked at the set-off and counterclaim, and found too many uncertainties thus best resolved at another time. His reasons had been given.

The decision to let set-off and counterclaim was on the basis there were not sufficient materials or conclusiveness, which would only come at the end of the project and that would be when the issue can be dealt with comprehensively.

It did not appear to be the case that the Learned Adjudicator, having decided that he had jurisdiction, did not exercise that jurisdiction correctly, or that he had decided that he did not have jurisdiction, when he did in fact have such jurisdiction.” 10 Our deliberations and decision [14] Before us, although all the above grounds were canvassed, the principal argument concerned the jurisdiction of the learned Adjudicator, that is, that the Adjudicator lacked jurisdiction because there no dispute given that the appellant had paid up all monies as certified in the payment certificates. [15] Learned counsel for the appellant submitted that in respect of all nine progress claims, the respondent is not an unpaid party within the meaning of section 4 of CIPAA 2012 since the respondent has been paid according to the payment certificates. The payment certificates were issued following joint valuations conducted in the presence of the quantity surveyor and the respondent. Any disputes on such certification or certified payments ought not to be disposed of summarily in an adjudication proceeding but referred to the specific dispute resolution mechanism found under clause 23.2 of the letter of award; that is, by arbitration under the auspices of the Kuala Lumpur Regional Centre for Arbitration which reads: Failure to resolve any disputes, contradictions and/or controversies arising out of or in connection with this Letter of Award shall be referred to arbitration proceedings in accordance with the rules and procedures of the Regional Centre for Arbitration Kuala Lumpur. The arbitration should be held in Kuala Lumpur at the Regional Centre for Arbitration. [16] It was the further contention of the appellant that CIPAA 2012 is not meant to cover construction disputes where the law applicable may be wider than the law of contract or where the question of under- 11 certification requires the evidence of witnesses to justify the amounts stated in the certificates – see dissenting judgment in Martego Sdn Bhd v Arkitek Meor & Chew Sdn Bhd [2017] MLJU 1382. [17] Yet another submission was that the learned Adjudicator is not entitled to rely on section 25(m) of CIPAA 2012 in order to review or revise the payment certificates since none were sought for by the respondent. That power of review or revision is said to be available only where the adjudication claim was for non-payment, and not, under-certification. In short, disputes concerning under-certification should go to arbitration, and not adjudication. [18] Learned counsel for the respondent in response, urged this Court to reject the submissions pertaining to the issue of non-compliance of clause 23 of the letter of award as it was never raised in the adjudication proceedings. It was raised for the first time in the written and oral submissions at the High Court. In any event, learned counsel responded that parties to construction contracts are actually subjected to compulsory statutory adjudication under CIPAA 2012. Parties cannot contract out of the Act; in fact, contracting out would be contrary to public policy. [19] As for the decision to deny the appellant’s claim of set-off on the basis that it was “best addressed in a separate forum”, the respondent submitted that this was explained by the learned Adjudicator and the explanation was accepted by the learned Judge in which case, it was urged upon us to uphold that decision. 12 [20] Dealing first with the issue of jurisdiction, the appellant argues that the adjudicator lacks jurisdiction because there is no issue of non-payment. CIPAA 2012 deals with complaints of non-payment. Since the appellant has paid up against the payment certificates, as required under the terms of the letter of award, the adjudication was really a non-starter. Consequently, the decision must be set aside. [21] Section 15 of CIPAA 2012 prescribes that an aggrieved party may apply to the High Court to set aside an adjudication decision on inter alia the ground that the adjudicator has acted in excess of his jurisdiction. Although the term “jurisdiction” is not defined, we would be cautious to subscribe entirely to the view given in Samsung C&T Corporation v Loots [2016] WASC 330, that categories of jurisdictional error may not be closed. That was a view expressed in the context of an application for judicial review of several adjudication determinations made under the Constructions Contracts Act of Western Australia, and not under specific setting aside mechanism that we see under our section 15 of CIPAA

[22] We are however, prepared to say that the learned Judge’s general remarks on jurisdictional error in that case are nevertheless, helpful: “In determining whether an error is of a kind which is within jurisdiction, or which exceeds jurisdiction, regard must be had to the statute as a whole. It is obvious from the scheme of the Act that it contemplates that adjudicators may make some errors without exceeding their jurisdiction. In that regard, relevant elements of the statutory scheme include the following: 13

(1) An unpaid party or a non-paying party may refer a dispute arising from a payment claim made under section 5 to adjudication.

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

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

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

(d) a statement that it is made under this Act. [33] In the present appeal, the letter of award falls within the ambit of what is defined as a “construction contract” in section 4. Further, either of the two disputing parties, be it the respondent as the “unpaid party” or the appellant as the “non-paying party” [see definition in section 4 of CIPAA 2012] may refer the dispute to adjudication. [34] In our view, so long as a payment claim meets the above mandatory terms set out in section 5(2), and the involved parties, namely the unpaid party and the non-paying party dispute or disagree over the claim, whether on the amount claimed, its due date or in any other respect, such a dispute would fall within the terms of section 7. The terms in subsection 5(2) are not circumscribed or qualified in any 19 manner save that the claim must always refer to the construction contract or rely on a particular provision in the construction contract to which the payment relates. [35] Where a contract provides for a payment certification process as a condition precedent for payment and the amount certified is not accepted, as is the case in the present appeal where the claim is for payment due to under-certification, the learned authors, Chow Kok Fong, Lim Chong Fong and Oon Chee Kheng of Adjudication of Construction Payment Disputes in Malaysia, Navigating the Construction Industry Payment and Adjudication Act [Lexis Nexis 2013, Chapter 2], opined that for the purpose of section 5(2)(b), the “cause of action in this situation may be formulated on the ground that the certification has not been properly carried out in accordance with the terms of the contract. On this cause of action, the claimant’s case would be for the recovery of the difference between the claimed amount and the certified amount” or; “…the extent to which the contractor maintains that he is entitled to a different sum from that certified sum.” [36] As expressed by the same authors [page 43], CIPAA 2012 is likely to be invoked in many cases “where the contractor disputes the certified amount stated in the payment certificates.” The dispute being that the amount claimed differs from the amount certified and that the payment is not for the full sum claimed. The payment claim is about non-payment of a sum which, in the mind of the claimant, is the correct valuation of its work or services rendered under the construction contract. This was, in effect, one of the complaints in Joinery Plus Ltd v Laing Ltd [supra]. 20 [37] We observed that the payment claim in the present appeal and subsequently, the adjudication claim made those claims: “The Unpaid Party had commenced work under the said Project in accordance to the said Contract and has been submitting his Progress Claims No. 1 to No. 9 together with their Variation Orders (VOs) supported with the breakdown, measurement, records and invoices as required. The Non-Paying Party since the 1st claim has been under-certifying the claims without giving any explanation or justifications despite the Unpaid Party requesting numerous times. Besides under-certification, the Non-Paying party did not make full payments as indicated in their Interim Payment Certificates.” [38] We, further, cannot agree with the appellant as sections 2 and 3 of CIPAA 2012 have already specifically provided for its application and non-application. We are mindful that it is not the function of the Court to legislate but to interpret legislation. In the presence of such clear provisions, we cannot accede to the arguments of the appellant. As per section 2, which terms are very wide, the respondent, as an unpaid party is indeed, entitled to bring a payment claim where its claim of non-payment is by reason of its disagreement or dispute over the amount certified. [39] For the sake of completeness, we understand that at the time of the hearing of the adjudication, Progress Claims No. 8 and 9 had yet to be certified and paid. Certification and payment only took place after the adjudication had been completed. There were also disputes on the VOs. Under such circumstances, the learned Adjudicator was indeed properly cloaked with jurisdiction to hear and determine the adjudication claim brought by the respondent. 21 [40] Closely related to this first argument is the appellant’s second ground concerning clause 23.2 of the letter of award, the dispute resolution clause. By clause 23.2, disputes on certification or certified payments ought not to be disposed of summarily in an adjudication proceeding but referred to arbitration. A minority view in Martego Sdn Bhd v Arkitek Meor & Chew Sdn Bhd [supra] is cited in support. [41] With respect to learned counsel for the appellant, the reliance on the minority view is misplaced. The decision in Martego Sdn Bhd v Arkitek Meor & Chew Sdn Bhd concerned the issue of whether CIPAA 2012 applied to final claims, an issue which does not arise in the present appeal. That is quite different and cannot be the basis for suggesting that the view of the dissenting judge was expressed in relation to under-certifications. Having scrutinised the dissenting judgment in that decision, we further found no reference to or discussions on under-certifications. In any event, given our earlier view that payment claims do frequently involve disputes over certified claims, and the extensive ambit of adjudication, this argument is without merit. [42] As for the submissions on clause 23.0 of the letter of award, we are of the view that the presence of this dispute resolution clause does not and in fact, cannot oust the jurisdiction and application of CIPAA

The reliance of the appellant on the Singapore Court of Appeal’s decision in Insigma Technology Co Ltd v Alstom Technology Ltd [2009] SGCA 24 is also with respect, misplaced. The view expressed there, that the Court should give effect to the intention of the parties as expressed in the underlying contract document decision, that parties must be directed to arbitration as contractually agreed instead of filing 22 their claims in Court, is a view equally subscribed to by our Courts even before the advent of section 10 of the Arbitration Act 2005. [43] But, that was a view expressed in entirely different circumstances, in relation to arbitration and not in the context of legislation dealing with adjudication. CIPAA 2012 is specific “social legislation” enacted to deal with payment disputes in construction contracts, and its statutory application is quite extensive - see UDA Holdings v Bisraya Construction Sdn Bhd & Another & Another Case [2015] 5 CLJ 527 and affirmed by the Court of Appeal; and Federal Court in View Esteem Sdn Bhd v Bina Puri Holdings Sdn Bhd [2017] CLJ 123. [44] On the argument of the primacy of the contractual obligation under clause 23 or the existence of a contingent jurisdiction clause, a similar argument taken in Ranhill E&C Sdn Bhd v Tioxide (Malaysia) Sdn Bhd [2015] 1 LNS 1435 and Foster Wheeler E & C (Malaysia) Sdn Bhd v Arkema Thiochemicals Sdn Bhd [2015] MLJU 1952 was rejected. The Court cited inter alia the presence of section 37 of CIPAA 2012 as indicative of how adjudication was to operate alongside arbitration and litigation, that the latter two mechanisms are intended to deal with disputes which are wider than payment disputes and to afford final determinations of such disputes: “CIPAA 2012 is clear in recognizing that parties wish to keep their contractual dispute resolution choices; that these choices may be maintained and utilized alongside adjudication. This is obvious from the existence of section 37 which provides for and recognizes the concurrent existence of these other remedies.” 23 [45] For the same reasons, we find this second ground without merit. The position in Western Australia as cited in Samsung C&T Corporation v Loots [supra] is distinguishable both in terms of the substantive law on adjudication wherein there is no comparable provision to our section 37; and the fact that the review of the Court is not under specific jurisdiction akin to our section 15 but pursuant to the Court’s supervisory powers by way of judicial review of an inferior tribunal’s decision, where different legal principles apply. [46] The English Court of Appeal’s decision in Smith v Martin [1925] 1 KB is equally distinguishable. That was a decision where one of the parties commenced arbitration before works were completed and where the issue was whether the arbitration was premature. The case did not concern statutory adjudication or the presence of similar provisions on concurrent remedies as we see under section 37 of CIPAA 2012. [47] Answering then the appellant’s challenge on threshold jurisdiction, we find the argument without merit. [48] Moving next to the review and revision of the payment certificates by the learned Adjudicator, the complaint is that the adjudicator is not entitled to reopen the payment certificates when that was not the intent of the adjudication claim. It was not part of the reliefs claimed nor was there a challenge on the accuracy or validity of the payment certificates. Having rejected the respondent’s claim for the sum of RM8,955,511.10, the appellant contended that it was not open to the adjudicator to come up with his own formula and award the sum of RM5,661,728.57 in favour 24 of the respondent. In the circumstances, the adjudicator had exceeded his jurisdiction. [49] The learned Judicial Commissioner disagreed, finding that even if no certificate had been issued, that it would be within the learned Adjudicator’s jurisdiction to decide, then the adjudicator had not acted outside jurisdiction. [50] This issue was raised by the appellant at the adjudication proceedings and it was specifically dealt with by the learned Adjudicator as one of the ‘Preliminary Issues’ at L.1.1 [see page 174 of the Record of Appeal]. In those proceedings, the Adjudicator disagreed with the appellant and concluded that it was within his jurisdiction to decide on the matter so long as he acted within his powers under section 25 of CIPAA 2012 – see L.3 at page 179 of the Record of Appeal. [51] However, due to the rivalling contentions of the parties, the respondent contending that it had submitted its claims as per the contract, and the appellant contending that it had made deductions by virtue of the contract and that it had acted reasonably, the Adjudicator took the approach that he needed to decide if the appellant had made a fair valuation for the works [see L.3 at page 179]. If the appellant “do [sic] not”, then he had to determine “what is a fair amount that the Claimant is entitled to?” He then proposed to resolve the matter by revisiting the claim “and determine, for each claim, what is the amount that should be rightfully due given the circumstances.” 25 [52] The Adjudicator proceeded to do just that, he made his findings and gave his reasons – see M.1 to M.2.3 at pages 180 to 185 of the Record of Appeal. [53] At paragraph M.2.4 of the decision, the learned Adjudicator addressed the issue once again, agreeing with the appellant that he had no jurisdiction to review the certificates when the certificate itself is not the subject matter of the claim. However, he was “still deciding on the claims Nos. 1 to 9 pleaded.” [54] It is our view that the adjudicator was entitled to review and revisit the payment certificates. Section 25 of CIPAA 2012 vests the adjudicator with fairly extensive powers. In particular, section 25(m) empowers the adjudicator to “review and revise any certificate issued or to be issued pursuant to a construction work contract, decision, instruction, opinion or valuation of the parties or contract administrator relevant to the dispute.” The review and revision of the payment certificates in the present appeal were of certificates issued pursuant to the letter of award, a construction work contract. These payment certificates are highly relevant and material to the determination of the adjudication claim of under-certification by the appellant, which allegation was disputed. [55] In the adjudication claim, this is how the respondent make its allegations on under-certification. At paragraph 17, the respondent alleged that-

Despite the works having been carried out and completed progressively as indicated in the Progress Claims, the Respondent 26 have breached the Contract, unlawfully deducted payments due to the Claimant without any justification, under-certified Progress Claims and/or failed, refused and/or neglected to make full payments to the Claimant pursuant to the Interim Payment Certificates No. 1 to Interim Payment Certificate No. 7. [56] At paragraph 20, the respondent further alleged that:

Accordingly based on the under certification of the Progress Claims No. 1 to Progress Claim No. 7 and non-payment of Payment Certificate No. 8 and Progress Claims No. 9, the outstanding sum due and owing by the Respondent to the Claimant is RM7,492,768,13 (excluding GST) and for the payment of the VOs is RM1,462,742,97 totaling to RM8,955,511.10 (excluding GST). [57] In the appellant’s Adjudication Response, it raised denials, claimed that the claims “have been adequately assessed at all times” [paragraph 5]; that it had “properly accounted for actual work done, reasonable quantity of materials on site, sanctioned variations, back-charges and/or set-offs expressly provided in the Contract, and LAD in the Respondent’s IPCs” [paragraph 6]; that the claims were “misconceived, misleading and therefore unsafe” [paragraph 8]; that the Payment Claim amount was “wholly unreliable” [paragraph 9]; that the respondent had “repeatedly inflated his claims without proper measurements and records in evidencing the same, despite numerous reminders from the Respondent to submit the same for valuation”. Further details of the response and stance taken by the appellant may be found from paragraph 28 onwards of the Adjudication Response. [58] In a claim of under-certification which is disputed, it is incumbent on the adjudicator to review the payment certificates. Whether the adjudicator feels compelled to revise the certificates is a matter for decision of the learned Adjudicator, based on claims, responses and 27 evidence presented. Similarly, the extent and manner of the review and revision. [59] We are of the view that the learned Adjudicator has not exceeded his jurisdiction in conducting the valuation in the manner that he did. In the instant adjudication, the learned Adjudicator chose to revisit only the claims which were the subject matter of the adjudication before him, using the general approach outlined in his decision. He was mindful not to be reviewing certificates that were not the subject matter of the adjudication. He categorically excluded “Adjudication Response pertaining to Certificates 10 onwards raised by the Respondent” – see paragraphs L.2 and M.2.4 at page 185. [60] On the last issue of the set-offs and the counterclaim which were rejected or denied by the Adjudicator. After claiming that it had made its intention expressly clear, the appellant set-off and back-charged for costs for facilities and accommodation provided together with overtime for supervisors. [61] The appellant claimed that it had incurred all these on behalf of the respondent. It further deducted for LAD and claim for work done by third parties owing to non-compliance of the specifications by the respondent. The upshot being that the respondent’s “obligation to pay in accordance with previously issued interim payment certificates would be superseded and abated by the issuance of a subsequent interim payment certificate to reflect the adjustments, see Mae Engineering Ltd v Dragages Singapore Pte Ltd [2002] 3 SLR 45.” 28 [62] The appellant had imposed LAD on the basis of numerous delays on the part of the respondent, “resulting in slow progress and as a result the Claimant failed to complete the TNB Sub-Station works on 24 January 2016, and eventually failed to complete the Works as a whole by 14 July 2016 per the requirements of the Contract.” The respondent is said to have been “regularly reminded of his delay and his obligations to perform the Works with due expedition but to no avail”; that a Certificate of Non-Completion [CNC] had been issued. [63] According to the appellant, the Adjudicator has the power and duty to adjudicate and determine the issues posed by the parties. When the adjudicator decided to exclude and/or refused to determine the issue of LAD on the ground that it was contentious, the appellant submitted that there was a breach of the rules of natural justice. [64] The learned Judicial Commissioner rejected the appellant’s submission that there was a breach of the rules of natural justice when the adjudicator failed to address the appellant’s set-off and counterclaim. After examining the decision of the Adjudicator, the learned Judicial Commissioner, at paragraphs 20 to 31 of the grounds of decision, concluded that –

The Adjudicator had looked at the set-off and counterclaim, and found too many uncertainties thus best resolved at another time. His reasons had been given.

The decision to let set-off and counterclaim was on the basis there were not sufficient materials or conclusiveness, which would only come 29 at the end of the project and that would be when the issue can be dealt with comprehensively.

It did not appear to be the case that the Adjudicator, having decided that he had jurisdiction, did not exercise that jurisdiction correctly, or that he had decided that he did not have jurisdiction, when he did in fact have such jurisdiction. [65] We agree with the learned Judicial Commissioner. [66] A careful reading of the whole decision shows that the Adjudicator had in fact considered the set-off and the counterclaim and had decided to deny the appellant of the reliefs sought. It was a reasoned decision for such denial, that the back-charges and counterclaim, be it set off or abatement were excluded – see paragraph L.2.1 at page 177. He reasoned that although he recognized that deductions may be made under various provisions in the letter of award, such as clauses 9.0, 22.0 and 25.4, he agreed with the respondent that the appellant was as equally obliged as the respondent to provide details and to “give a reasonable account of how he arrived at the payment as there is a reciprocal duty on the contractor to proceed regularly and diligently with the works, on which the claim depends.” [67] Drawing on his own knowledge and expertise, that “the accepted practice in the industry with regards to the process of interim payments, where bespoke contract conditions such as this one in my view leaves gaps that are well-filled by standard forms in the building industry”, the learned Adjudicator was the view that “the concept of claim must also be made equitably as details of payment that relate to any particular section 30 of the works would be inextricably linked to the planning by the contractor or sub-contractor in their cash flow.” [68] The learned Adjudicator was of the view that inasmuch as the respondent was obliged under clause 7.1 of the letter of award to enclose details of the claims- “…on the same account any deductions made during the interim payment should equitably be supported by the accounts of it so that the claimant may take cognizance and act accordingly to reduce his ‘deficit’ in the coming months in the same way he would work in increase the productivity to make up for any shortfall in his cash flow. Thus when deductions are made where issues are contentious more so unilaterally, such deductions are not equitable. This does not mean that I do not recognize the right of deduction; but in the absence of any reciprocal communication, the forum to deal with it can be in a separate recourse that the contract provides, in this case clause 23 LA and 30 CoSc.” [emphasis added] [69] The learned Adjudicator applied the same reasoning when dealing with the appellant’s claims for work done by third party and defective work – that the respondent “is left with no avenue to know his breach without accounts of how these were derived”. [70] As for the LAD, the learned Adjudicator noted that both the letter of award and the CoSC [Conditions of Sub-Contract] provided certain rates to be payable should work or any section thereof be not completed by certain datelines. However, he did not find the wordings in these documents to be “crystal clear in establishing the nexus” between them, 31 finding difficulty in reconciling the issuance of the CNC as it could not be found in either the letter of award or the CoSC. The learned Adjudicator further opined that it would “be hard placed to import the deduction from monies due or to become due in stated in the CNC into the main contract provisions”. He then found the “provision of LAD in the contract is contentious and would not be safe to rely on the representation made by the respondent.” [71] Consequently, the appellant’s counterclaim and set-off was denied by the learned Adjudicator – see pages 188 and 189 of the Record of Appeal. [72] We cannot fault such reasoning. The facts and circumstances in the instant appeal are unlike those presented in PC Harrington Contractors Limited v Tyroddy Construction Limited [2011] EWHC 813 (TCC) where Akenhead J decided that: “…by wrongly deciding that this was a matter outside his jurisdiction, he put himself in the position whereby he did not consider the final account evidence and argument in any detail or indeed really at all. He has, therefore, put himself in a comparably similar position to the adjudicators in the CJP v William Verry and the Humes Building Contractors cases in that, by ruling on his jurisdiction in such a way that he has denied himself the opportunity to consider the merits of the exercise which Harrington had asked him to determine, he has committed a breach of natural justice.” [73] From the decision, we find that the learned Adjudicator had considered the set-off and the LAD and had decided that these items would be excluded and ultimately denied in this adjudication claim. However, acknowledging and drawing from his own knowledge the 32 interim nature and effect of adjudication, the adjudicator opined that these matters which were further wanting in documentation and contentious due the non-clarity of the LAD provisions, “be best left to other recourse for dispute resolution in the contract.” [74] Care must be exercised when reading the decision in Joinery Plus Ltd v Laing Ltd [supra]. The Court was faced with the question of the extent to which regard may be had to the adjudicator’s reasons. This issue arose because “the adjudicator stated in his decision that: ‘Under the terms of the Works Contract, I am not required to give reasons and do so only to the limited extent necessary to outline the basis of my Decision.” The Court pointed out that: “Of course, the adjudicator was not proceeding under the works contract, which in cl 9A5.4 provided that the adjudicator was not obliged to give reasons for his decision, but was proceeding under the adjudication rules which required him to give reasons if these were asked for and under an adjudication reference which included a request from the referring party for reasons. However, the adjudicator was obviously seeking to play down the status of his reasons in a situation in which he erroneously thought that he was not obliged to give reasons.” [75] The facts and circumstances in the appeal before us are entirely distinguishable. Bearing in mind what and how CIPAA 2012 is to operate, some allowance ought to be given when reading the decision reached. In the present adjudication, we agree with the learned Judicial Commissioner that the learned Adjudicator addressed the adjudication claim and the adjudication responses before him. This last line of argument, too, is consequently, without merit. 33 Conclusion [76] We, therefore, do not find any appealable error on the part of the learned Judicial Commissioner and we have no reason to intervene. The appeal is therefore dismissed. Dated: 27 September 2018 (MARY LIM THIAM SUAN) Judge Court of Appeal, Putrajaya Malaysia Counsel/Solicitors For the appellant: Datuk Seri Gopal Sri Ram Amrit Pal Singh Phang Zheng Jack Damien Chan Khairul Anwar Messrs Amrit & Company No.32A, Jalan Telawi Bangsar Baru 59100 Kuala Lumpur For the respondent: Dato’ Dr Cyrus Das Samrith Kaur Messrs Samrith Sanjiv & Partners 14-2 Jalan Sri Hartamas 8 Taman Sri Hartamas 50480 Kuala Lumpur