PWC Corporation Sdn bhd v Ireka Engineering & Construction Sdn Bhd (WA-24C-107-06/2017 (No. 2))

Due to the failure of PWC to complete the Subcontract Work on time, Ireka had suffered loss and damage from the Employer’s deduction of main contract’s LAD in the sum of RM4,490,500.00 against Ireka as stated in the Statement of Final Account as certified by the Architect on 27.11.2013.

(ii) Therefore, Ireka claimed by way of set off/cross claim/counter claim for LAD amounting to RM3,723,000.00 for the delay in completion of the Subcontract Works and Additional Works against PWC for the period from 1.3.2011 to 11.5.2012 calculated at RM8,500.00 per day and that PWC had failed to apply for any extension of time pursuant to Clause 21 of the Subcontract Conditions.

(iii) Ireka also claimed by way of set off/cross claim/counter claim for overpayment amounting to RM17,790.45 for Certificate of Payment No. 16 dated 18.04.2016 against Certificate of Payment No. 17 dated 8 01.12.2016 from another Subcontract Reference no: IECSB/KL Sentral Pkg 3/140/3.1/022-HQ under Letter of Acceptance dated 24.08.2011 between Ireka and PWC.

(iv) Based on the re-measurement by Ireka, the original Subcontract Sum had been revised to RM3,732,588.55.

Ireka’s claim for set off and/or cross claim against the amount claimed by PWC in these adjudication proceedings clearly shows that Ireka’s claim for set off/cross claim exceeds PWC’s claim.

(vi) Based on the foregoing, there was no amount due and payable to PWC as it is extinguished by Ireka’s claim for set off, cross claim and/or counter claim as elaborated above. Conversely, PWC is owing Ireka the balance sum of RM3,309,562.60. [17] After the completion of the Subcontract Works and Additional Works on 05.10.2012, Ireka said it had carried out a re-measurement exercise on site and/or from the as-built drawings to measure the actual quantities of works executed by PWC. The original Subcontract Sum was thus revised to RM3,732,588.55 consisting of RM2,798,035.78 for the Subcontract Works and RM934,552.77 for the Additional Works after the re-measurement exercise. 9 [18] Ireka also had deducted a sum of RM47,000.00 from the Subcontract Sum as PWC had failed to rectify the defective works and failed to provide warranty from manufacturers and as-installed drawings as required in the Provisional Bills of Quantities. [19] On 03.04.2017, PWC had served its Adjudication Reply on Ireka. It contended that it had duly completed all the Subcontract Works and the Additional Works and that Ireka had not imposed LAD even in its last Payment Certificate No.16 dated 18.04.2016. It contended that the LAD is an afterthought and not in accordance with the Subcontract as the CNC had not been validly issued. [20] PWC further replied that Ireka had failed to prove any damages suffered due to the alleged delay and that merely relying on the statement of final account from the Employer is not proof in the absence of supporting documents to show the losses. PWC also stated that the CNC was backdated and was actually only received on 29.4.2016 and backdated to 1.3.2011 and that a police report had been lodged disputing the authenticity of the CNC. [21] In adjudicating the dispute between the parties, the Adjudicator via an Order for Directions No. 2 had directed the parties to affirm an affidavit to address the following issues: 10

Whether Ireka and PWC admit the sum of RM431,227.85 for work done?

(ii) Whether Ireka accepts that PWC has satisfactorily completed the works?

(iii) Whether Ireka has complied with the contractual requirements for issuance of the certificate of non-completion, request for set-off of LAD and overpayment, re-measurement and any other heads of set-off? [22] The rest of the pleadings and submissions were thereafter exchanged pursuant to the Order for Directions No. 2 and the Adjudicator’s letter dated 12.4.2017. [23] On 05.06.2017, the Adjudicator handed down his Adjudication Decision as follows at paragraph 91 thereof:

The Respondent do pay the Claimant the sum of RM889,229.01 within 14 days from the date of this decision;

(ii) The Respondent’s claim for set off of LAD in the sum of RM3,723,000.00 is disallowed;

(iii) The Respondent’s claim for set off of defective works and failure to provide guarantee in the sum of RM47,000.00 is disallowed; 11

(iv) The Respondent’s claim for set off of overpayment of RM17,790.45 is disallowed;

The Claimant’s claim for interest at Maybank base lending rate, which is currently 6.65% per annum, +1% per annum for a total of 7.65% per annum on the said sum of RM889,229.01 or any part thereof to be paid effective from the date of the Payment Claim on 21.11.2016 to the date of actual payment pursuant to section 25(o) of CIPAA allowed;

(vi) The Respondent to pay cost of appointment and registration of the adjudication of RM530.00;

(vii) The Respondent to pay the Claimant’s cost in the sum of RM60,000.00 pursuant to section 18(1) of CIPAA;

(viii) The Respondent to pay the KLRCA Administrative Fee of RM3,500.13, the amount deposited with KLRCA to be used for this purpose;

(ix) Respondent to pay RM8,750.34 being the Claimant’s share of the Adjudicator’s fees of RM17,500.67 which amount is deposited with KLRCA to be used for this purpose. 12 Prayers [24] By consent of the parties and for good measure both Applications in the 2 Originating Summonses were heard together as one is the flip side of the other. [25] The Setting Aside and Stay Application was heard first as if this Court were to allow the Setting Aside prayer then invariably the Enforcement Application would have to be dismissed. [26] If this Court should dismiss the Setting Aside prayer, it would then have to consider if there are merits for the Stay of the Adjudication Decision pending the Arbitration that Ireka has commenced. [27] In the event Stay is allowed the Enforcement Application would be academic and in the event the Stay is also dismissed after the dismissal of the Setting Aside prayer, this Court would then allow the Enforcement Application unless it can be shown that the Adjudication Decision rendered is void for non-compliance with the time frame for the Decision to be delivered (section 12(3) of the CIPAA) or that it suffered from other defects referred to in section 12(4) and (5) of the CIPAA or otherwise void for illegality. 13 [28] Our position is no different from the Singapore’s position as expressed by Sundaresh Menon CJ in the case of WY Steel Construction Pte Ltd v Osko Pte Ltd [2013] SGCA 32 at paragraph [56] as follows: “[56] Ordinarily, if an application to set aside an adjudication determination is refused, the adjudication determination will be enforced ...” [29] The above dictum from the learned Chief Justice of Singapore was cited in the judgment of Mary Lim J (now JCA) in Subang Skypark Sdn Bhd v Arcradius [2015] 11 MLJ 818, who at paragraph [23] went on to state: “[23] Another point to note is that although s. 16 refers to a stay of the adjudication decision, in effect it is a stay of the enforcement of the adjudication decision. Without such a stay, it would be open to the successful claimant to take the appropriate enforcement actions available as s. 28 clearly provides that an adjudication decision may be enforced as if it is a judgment or order of the High Court...” [30] The Setting Aside is grounded on breach of natural justice and excess of jurisdiction on the part of the Adjudicator under section 15(b) and

of the CIPAA. 14 [31] The parties shall be referred to as PWC and Ireka and sometimes as Claimant and Respondent respectively. Principles [32] Section 15 of the CIPAA provides for setting aside of an Adjudication Decision on the limited grounds set out 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” (emphasis added) Whether there was a breach of Natural Justice on the part of the Adjudicator when he accepted the Claimant’s Payment Claim for Work Done and Rejected the Respondent’s Re-measurement of the Work Done 15 [33] Learned counsel for Ireka submitted that the Malaysian Courts have consistently followed the guideline in relation to denial of natural justice in adjudication cases as enunciated in Cantillon Ltd v Urvasco Ltd [2008] EWHC 282 (TCC); paragraph [57], as follows: “[57] From this and other cases, I conclude as follows in relation to breaches of natural justice in adjudication cases:

It must first be established that the adjudicator failed to apply the rules of natural justice;

Any breach of the rules must be more than peripheral; they must be material breaches;

Breaches of the rules will be material in cases where the adjudicator has failed to bring to the attention of the parties a point or issue which they ought to be given the opportunity to comment upon if it is one which is either decisive or of considerable potential importance to the outcome of the resolution of the dispute and is not peripheral or irrelevant;

Whether the issue is decisive or of considerable potential importance or is peripheral or irrelevant obviously involves a question of degree; 16

It is only if the adjudicator goes off on a frolic of his own, that is wishing to decide a case upon a factual or legal basis which has not been argued or put forward by either side without giving the parties an opportunity to comment or, where relevant put in further evidence, that the type of breach of the rules of natural justice with which the case of Balfour Beatty Construction Company Ltd v The Camden Borough of Lambeth was concerned comes into play. It follows that, if either party has argued a particular point and the other party does not come back on the point, there is no breach of the rules of natural justice in relation thereto. (emphasis added) [34] It must be noted that natural justice consists of two rules: the first rule is that no person should be a judge in his or her own cause or being bias; the second rule is that an adjudicator must give a fair opportunity to both parties for a dispute to be heard (Gazzriz Sdn Bhd v Hasrat Gemilang Sdn Bhd [2016] 1 LNS 1280; paragraph [46] (High Court)) [35] Learned counsel for Ireka also referred to the dicta of Judge Toulmin CMG QC in AWG Construction Services Ltd v Rockingham Motor Speedway Ltd [2004] EWHC 888 (TCC); paragraph [141] as follows: 17 “[141] In my view, each case must depend on the circumstances and the context in which a referral is made. In some cases the issues referred are very specific. In other cases it is clear that the issues are more general and have been so treated by the parties, and that there is significantly more room for the case to be developed. The test in each case is first what dispute did the parties agree to refer to the adjudicator? And secondly, on what basis? If the basis which is argued in the adjudication is wholly different to that which a defendant has had an opportunity to respond in advance of the adjudication, this may constitute a different dispute not referred to the adjudicator or, put another way, in so far as adjudicator reaches a decision on the new issues, it is not responsive to the issues referred to him.” (emphasis added) [36] It was submitted that there has been a denial and/or breach of the rules of natural justice in the Adjudication Decision in that the Adjudicator erroneously accepted PWC’s claim for the Subcontract Work done despite an absence of supporting documents. The relevant paragraphs are paragraphs 54 to 59 of the Adjudication Decision. Learned counsel for the Respondent summarized her complaint as follows:

The Adjudicator failed to appreciate that although the Subcontract was a fixed price lump sum contract, which was based on the 18 Provisional Bill of Quantities, pursuant to the express qualification of Clause 3.2 of the Subcontract, the Final Subcontract Sum would still be calculated and adjusted based on the re-measurement of the actual works properly executed and completed by PWC on site.

(ii) In this regard, the Adjudicator allowed PWC’s claim in-toto despite knowing that the dispute can be resolved with the re-measurement clause provided in the Subcontract.

(iii) The Adjudicator failed or refused to consider the re-measurement provision when he wholly accepted PWC’s claim.

(iv) The Adjudicator blatantly accepted PWC’s vague evidence on their quantum claims without weighing against Ireka’s undisputed evidence, and yet the Adjudicator conversely used the term balance of probabilities.

Furthermore, weight should be given to the said re-measurement documents as PWC never disputed the re-measurement documents.

(vi) Despite acknowledging that the re-measurement documents were relevant, the Adjudicator did not consider Ireka’s re-measurement documents and calculations. 19

(vii) The Adjudicator’s acceptance of PWC’s claims was not in accordance with the express valuation process of the Subcontract, especially when the actual quantities can be conclusively or systematically determined from the re-measurement documents and re-measurement exercise.

(viii) The Adjudicator proceeded to give the Decision without giving any due consideration of the important and relevant documents which would finally or systematically determine the issue of actual quantities of the works. [37] Learned counsel for Ireka further argued that the Adjudicator delivered an apparently biased decision in favour of PWC and allowed the claim by PWC in its entirety without giving any due consideration to or ruling on each and every material matter raised by Ireka and thereby had caused a breach of natural justice. It was further urged upon this Court that the Adjudicator failed to exercise his powers reasonably under section 25(i) of CIPAA, when he failed to take initiative to ascertain the material and relevant facts and the law required for this Adjudication Decision. [38] It was also submitted that the Adjudicator’s failure to consider the re-measurement provision when he wholly accepted PWC’s claim was a material breach which is of considerable importance to the outcome of the 20 Adjudication Decision. Therefore, it was apparent that the Adjudicator failed to demonstrate his impartiality in the process of delivering his decision. [39] Learned counsel for the Respondent postulated that if the Adjudicator had given proper consideration to the re-measurement provision, he would have held that the quantities of the Subcontract Works and Additional Works will be valued and calculated based on the re-measurement exercise and PWC would not be entitled to the full adjudicated sum of RM889,229.01. [40] I must state at the outset that the issue of sufficiency of evidence and the weight to be attached to it are not matters that may be raised in a Setting Aside Application as this Application is not by way of an appeal. [41] In BM City Realty & Construction Sdn Bhd v Merger Insight (M) Sdn Bhd & Another case [2016] 1 LNS 1096 it was explained as follows: “[62] I agree ... even if there was a failure to take into account of payment made to the NSCs, it is merely an error of findings of facts/law. Such an error does not require the Adjudication Decision to be set aside. There will not be a denial of natural justice if the Adjudicator had addressed all the right issues even in the wrong way. The adjudicator’s decision will nevertheless be 21 temporary binding. It is only when the adjudicator has answered the wrong issues that his decision will be a nullity...” [42] As pointed out by learned counsel for the Claimant the Respondent’s averment that the learned Adjudicator “did not consider Ireka’s re-measurement documents and calculations” is incorrect. This can be seen in paragraphs 60 to 65 of the Adjudication Decision and paragraphs 83 & 84 of the Adjudication Decision. [43] Again, in relation to the weight to be given to documents that are in evidence, this remains the pure province of the Adjudicator’s discretion and discernment and with that, his decision. Suffice to say that Parliament in its wisdom had provided under section 12(9) of the CIPAA as follows: “The Evidence Act 1950 [Act 56] shall not apply to adjudication proceedings under this Act.” [44] The Adjudicator had asked himself the right question at paragraph 54 of the Adjudication Decision as follows: “54. The first issue is whether the Claimant’s claim for the balance of the work done in the sum of RM889,229.01 (RM4,159,783.08- RM3,262,457.07) is supported by the evidence.” [45] The Adjudicator then proceeded to analyze the evidence adduced at paragraphs 55, 58 and 59 of his Decision as follows: 22 “55. The Claimant’s final claim dated 15.10.2014 for work done of RM4,159,783.08 [refer page 60-62 of Adjudication Claim] was acknowledged receipt by the Respondent on 16.10.2014.

In answer to my 2nd question, both the Claimant and Respondent accept that the Claimant has completed all the Works including the variation works.

Therefore based on section 25(n) CIPAA, I FIND AND HOLD that the Claimant has completed all their works in the sum of RM4,158,783.08 even though no Certificate has been issued by the Respondent.” 23 [46] I cannot find any fault with the way the Adjudicator had considered and analyzed the evidence before him of the Subcontract Work done by the Claimant. Section 25(n) gives the Adjudicator the power to decide or declare on any matter notwithstanding no certificate has been issued in respect of the matter. [47] Ireka had submitted that the re-measurement provision has always been expressly spelt out in the Subcontract. The re-measurement can be exercised by Ireka at any time prior to the issuance of a final certificate. The re-measurement need not involve PWC because the Subcontract does not provide that the re-measurement must be jointly conducted. Ireka said that the quantum of Ireka’s re-measurement was comprehensively set out and proven in great detail in its Adjudication Response and its Bundle of Documents. [48] It was then for the Adjudicator to decide if the re-measurement conducted by Ireka can be relied upon with respect to reducing the Contract Sum in determining the actual Subcontract Work done. [49] The context is provided in paragraph 60 of the Adjudication Decision as follows: 24 “The 2nd issue is whether the Respondent’s re-measurement pursuant to Clause 3.2 of the said Subcontract in the sum of RM3,732,588.55 is supported by evidence.” [50] It is in this context that the Adjudicator highlighted at paragraphs 60 to 65 of the Adjudication Decision that the re-measurement documents was not verified by Ireka and not issued pursuant to Clause 3.2 of the Subcontract. [51] Clause 3.2 provides as follows: “The Final Subcontract sum shall be calculated based on the re-measurement of the actual works properly executed and completed on site.” [52] The questions raised by the Adjudicator in paragraphs 62, 64 and 65 of the Adjudication Decision, were relevant questions enroute to making his findings as to whether the re-measurement can be relied on. The Adjudicator reasoned as follows: “62. However, the Respondent’s re-measurement is stated in the “Status of Account” which did not state any date or that it was a re-measurement issued under clause 3.2 [refer page 563 of RBOD]. There was also no indication of who carried out the re-measurement and who verified the calculation. 25

I have examined the details of re-measurement and noted that the Respondent has exhibited the summary in tab 5, list of items of works in tab 6 to 15, V.O. with updates as of 01.12.2016 at tab 9 to 15 and quotations for the variation orders with drawings at tab 16 [refer pages 563-671 of RBOD]. I note that there is not a single signature in any of the supporting details for the re-measurement where some of which were updated on 01.12.2016. Surely someone must have verified and check the accuracy of the calculations, but who from the Respondent?

Pursuant to section 25(m) CIPAA, I FIND AND HOLD on a balance of probabilities that the re-measurement sum of RM3,732,588.55 is not supported by any credible evidence and is not issued in accordance with clause 3.2.” [53] Clearly the Adjudicator had considered the evidence of the re-measurement and had dismissed it as being unreliable. I cannot agree with the Respondent when it was submitted that the Adjudicator had gone on a frolic of his own by stating that “someone must have verified and checked the accuracy of the calculations, but who from the Respondent.” [54] The Adjudicator had issued his Directions No.2 on 10.4.2017 directing parties to affirm and serve their respective affidavits on the 26 following questions/issues which included whether the Claimant and the Respondent admit the sum of RM431,227.85 for work done. [55] The Claimant had responded by stating in affidavit that: “a) The sum of RM431,227.85 is calculated based on the re-measurement exercise conducted by the Respondent, b) At all material time the Claimant is not aware, involved and/or informed on the same. ..... d) I am advised by the Claimant’s solicitor and verily believe that the purported re-measurement is clearly an afterthought and the Respondent is estopped from raising the same here;” [56] The Adjudicator for the reasons given by him arrived at his finding of fact that the re-measurement of RM3,732,588.55 is not supported by any credible evidence and is not issued in accordance with clause 3.2 of the Subcontract. Even if his finding of fact and understanding of the law is faulty, this Court would still not intervene to set aside the finding as the Adjudicator had asked himself the right question which is whether the value of the re-measured work done is RM3,732,588.55 and had found that there is no credible evidence in support of that sum. 27 [57] As the Respondent had the same opportunity as the Claimant to respond to the Directions No.2 of the Adjudicator, I am not persuaded that the Respondent ought to be given more time to re-verify the re-measurement Documents. [58] Learned counsel for the Respondent referred to the dicta of Mary Lim J (now JCA) in WRP Asia Pacific Sdn Bhd v NS Bluescope Lysaght Malaysia Sdn Bhd [2015] MLJU 1125 at paragraphs [101] & [103]: “[101] The special features of adjudication “do not affect the basic rules that apply to judicial control in general and the application of the principles of natural justice in particular”. Those “special features” include the provisional binding nature of the decision which “may be undone by subsequent arbitration or court proceedings”. ... [103] Despite the existence of such powers, the Court was still inclined to say that: “…the principles of natural justice apply to an adjudicator in any particular case, I do not think that it affects the fundamental basis on which judicial control is exercised. Even in an inquisitorial system, elementary fairness requires that the parties be given an adequate opportunity to present their cases.” 28 [59] However I am not persuaded that the Adjudicator had not given the Respondent an adequate opportunity to present its case. It certainly cannot mean that when the Adjudicator had found the re-measurement amount not supported by credible evidence, to then allow time for the Respondent to improve on the evidence. This is not my understanding of the requirements of natural justice for then it would require of the Adjudicator to give the last bite to the party that he is going to decide against to improve on its case and to prove the Adjudicator wrong. [60] Learned counsel for the Respondent submitted that the Adjudicator ought to have requested additional time from parties to enable him to verify the re-measurement documents from Ireka, at the very least. Here again, whilst under section 25(i) of the CIPAA the Adjudicator shall have the powers to (i) Inquisitorially take the initiative to ascertain the facts and the law required for the decision; it does not mean that when the documents are inadequate and there is no credible evidence to support a claim or set off, the Adjudicator must then embark on his own inquisitorial initiative and investigation to doubly satisfy himself. [61] At the risk of belaboring the point further, the matters of sufficiency or credibility of the evidence is for the Adjudicator to decide and not for the Court to interfere in a section 15 Application to set aside the Adjudication Decision. 29 [62] Learned counsel for the Respondent also referred to the judgment of Humphrey Lloyd QC in Balfour Beatty Construction Ltd v Mayor & Burgess London Borough of Lambeth [2002] EWHC 597 (TCC); at paragraph [36]: “[36] … An adjudicator does not act impartially or fairly if he arrives at a decision without having given a party a reasonable opportunity of commenting upon the case that it has to meet (whether presented by the other party or thought to be important by the adjudicator) simply because there is not enough time available. An adjudicator, acting impartially and in accordance with the principles of natural justice, ought in such circumstances to inform the parties that a decision could not properly reasonably and fairly be arrived at within the time and invite the parties to agree further time. If the parties were not able to agree more time then an adjudicator ought not to make a decision at all and should resign.” [63] Again the present case is not one where the Adjudicator could have decided differently if he had been given more time to decide. It is also not a case where he needed more time to examine the evidence before him of the re-measurement. The Adjudicator was clear that there is no credible evidence of the reduced Subcontract Work and he accepted instead the 30 value of the Subcontract as certified before by the Respondent in the various Progress Certificates. [64] There is thus no breach of natural justice on the part of the Adjudicator in on the one hand accepting the evidence of the Claimant’s Claim for the Subcontract Work done and rejecting the reduced Subcontract Work done as claimed by the Respondent in their re-measurement. The Adjudicator had given his reasons for arriving at his Decision and this being not an appeal, this Court would not interfere with what is essentially a finding of fact by the Adjudicator. Whether the Adjudicator had acted In Excess of his Jurisdiction when he held that the Certificate of Non Completion (CNC) was not properly issued and hence the Respondent was not entitled to impose LAD and to set off the LAD from the Claimant’s Claim. [65] It is trite that the jurisdiction of the Adjudicator is limited by the matters contained in the Payment Claim and Payment Response. This can be seen from Section 27(1) of CIPAA: “27. Jurisdiction of adjudicator

Subject to subsection (2), the adjudicator's jurisdiction in relation to any dispute is limited to the matter referred to adjudication by the parties pursuant to sections 5 and 6.” 31 [66] However as explained by the Federal Court in View Esteem Sdn Bhd v Bina Puri Holdings Bhd [2017] MLJU 1852 an Adjudicator shall not disregard the defences raised for the first time in the Adjudication Response but must consider it for otherwise it would be a breach of natural justice. The Federal Court explained as follows: “45. It needs to be emphasized here that the Adjudication Response under section 10(1) of CIPAA requires the non-paying party to “answer the adjudication claim” meaning the “nature and description of the dispute and the remedy” as claimed by the claimant in its Adjudication Claim. It is also significant to note that it is at this stage of the proceedings that the unpaid party is termed by the CIPAA as “the claimant”, and the non-paying party as “the respondent”, by which terms they are thereafter respectively referred to. It comes about after the “initiation of adjudication” under section 8 of CIPAA where an adjudicator is appointed signifying the start of the adjudication process. The adjudication pleadings under section 9 to 11 of CIPAA comes after this and before the adjudication hearing begins under section 12 of CIPAA.” (emphasis added) [67] Later at paragraph 59 it was observed as follows: 32 “59. We are of the view that in the absence of a prohibitory clause similar to section 15(3) of the Singapore Act 2006 and a similar restriction as above mentioned the NSW legislation, there is no impediment for the Adjudicator to consider all the grounds of claim in an Adjudication Claim under section 9 of CIPAA, and all the grounds of defence in an Adjudication Response under section 10 of CIPAA.” (emphasis added) [68] It was submitted on behalf of the Respondent that the Adjudicator misdirected himself on the irrelevant issue which the Adjudicator himself had raised in the Adjudication Decision, i.e. whether the Certificate of Non-Completion was to be acknowledged by PWC and the consultant. At paragraphs 68, 69 and 72 of the Adjudication Decision, the Adjudicator ruled that: “[68] A strict interpretation of clause 16.1 would require the CNC to be issued to both the Claimant and the consultant. I note that the CNC dated 01.03.2011 bears no such acknowledgement of receipt by both the Claimant and the consultant. [69] In reply to question 3 of my said Order no. 2, the Claimant admits receipts of the CNC but only on 29.04.2016 as compared with the date stated on the letter of 01.03.2011. The Claimant disputes the validity of the same and has lodged a police report. 33 ...... [72] Therefore based on the contemporary record of events and pursuant to section 25(m) CIPAA, I FIND and HOLD on a balance of probabilities that the CNC is not issued in accordance with the said Subcontract.” (emphasis added) [69] In the adjudication proceedings, the Respondent had submitted that there is no provision in the Subcontract stipulating the time frame or any contractual limitation period for issuance of the CNC pursuant to Clause 16.1 of the Conditions of Subcontract. Therefore, it was argued that the Respondent had complied with the contractual requirements for the issuance of the CNC at any time. It was argued that the Respondent had in fact delivered the same to PWC in accordance with Clause 31.1 of the Conditions of Subcontract, namely, sent by ordinary mail. [70] Learned counsel for the Respondent contended that the Adjudicator ought to have accepted that the CNC was properly issued on 1.3.2011 in accordance with the Subcontract as section 12(9) CIPAA states that the Evidence Act 1950 shall not apply to Adjudication proceedings. [71] I am afraid learned counsel for the Respondent had missed the point again. The fact that the Evidence Act 1950 does not apply does not mean that the Adjudicator need not have to evaluate and weigh the evidence 34 before him. It merely means that if he had wrongly admitted or rejected evidence not in compliance with the Evidence Act 1950, that would not be a ground to set aside the Adjudication Decision. [72] The Adjudicator had en-route to making his finding as to whether the CNC received by the Claimant on 29.4.2016 had been backdated to 1.3.2011 had made the following astute observation at paragraph 52 B of his Decision as follows: “A) That there were no complaints raised on LAD by the Respondent regarding any of the 13 interim claims which were submitted after the contractual completion date on 28.02.2011. B) That the Certificate of Non-Completion (“CNC”) is dated 01.03.2011 but is post marked on 28.04.2016 and received on 29.04.2016 [refer pages 458 and 459 of Adjudication Reply]. There is no acknowledgment of receipt of the CNC by the Claimant [refer page 188 of the said Claim].” [73] I would say these are all relevant considerations taken into account by the Adjudicator to finally arrive at his conclusion as to whether the Respondent is entitled to its LAD Claim and to set off that LAD sum from the Claimant’s Payment Claim. 35 [74] Learned counsel for the Respondent continued with her contention that if the Adjudicator had given proper consideration to the CNC, he would have held that Ireka is entitled to the payment of the imposed Liquidated Damages on the delays occasioned by PWC in the sum of RM8,500.00 per day from the date of the CNC until the date of First Sectional Certificate of Practical Completion. The Adjudicator would have held that PWC is not entitled to the full adjudicated sum of RM889,229.01 and Ireka need not make any further payment as Ireka’s claim for LAD in these adjudication proceedings exceeds PWC’s claim. [75] Whilst I can see that the Respondent is understandably unhappy with the finding of the Adjudicator in holding that the CNC was not properly issued and hence the LAD could not be claimed, that is no justification for saying that the Adjudicator had exceeded his jurisdiction in finding that the CNC was not properly acknowledged by the Claimant. [76] Surely the Adjudicator was entitled to consider whether there is any basis for the Claimant’s contention that they only received the CNC on 29.4.2016 and both the fact that there were no complaints raised by the Respondent seeing that these were submitted after the contractual completion date of 28.2.2011 and the post mark of 29.4.2016 in the CNC dated 1.3.2011. The Claimant upon receipt of the CNC had proceeded to lodge a police report. 36 [77] Surely to take into consideration these matters raised by the Claimant in the Adjudication Reply cannot be justification for saying that the Adjudicator had strayed from considering the matters raised in the Payment Claim and Payment Response and thus had exceeded his jurisdiction. [78] As cautioned by the Federal Court in View Esteem Sdn Bhd (supra) the adjudication pleadings under section 9 to 11 of CIPAA comes after this and before the adjudication hearing begins under section 12 of CIPAA and ought to be taken into consideration by the Adjudicator in coming to his Decision. [79] It is generally accepted that if the CNC had not been properly issued in accordance with the Subcontract, then LAD would not be chargeable. [80] There was also evidence of Additional Works instructed by the Respondent during the period past the Completion Date. Based on the evidence before the Adjudicator and the fact that the Respondent must prove the loss it suffered is because of the Claimant’s culpable delay the Adjudicator concluded as follows at paragraphs 77-78 of his Decision as follows: “77. After reading the documents, I note that the Employer’s statement of final account issued on 27.11.2013, while the Respondent issued their payment certificate no. 16 on 26.09.2014 37 without any mention of LAD supports the Claimant’s position that the LAD was an afterthought.

I FIND and HOLD that the Respondent is not entitled to set off the LAD of RM3,723,000.00 against the Claimant’s claim of RM889,229.01.” [81] Even assuming for a moment the Adjudicator had made a wrong finding of fact on the CNC and hence the LAD, that is not a jurisdiction ground for setting aside the Decision. Further, the CNC being a certificate, it could be reviewed and revised by the Adjudicator pursuant to section 25(m) of the CIPAA 2012. I agree with learned counsel for the Claimant that the Adjudicator had done just that in the exercise of his powers and it is not an issue which concerns jurisdiction. Section 25(m) of the CIPAA provides that the Adjudicator shall have the powers to: “(m) 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; Whether the Adjudicator was In breach of Natural Justice when he held that he has No Jurisdiction to hear the Set Off from Another Subcontract 38 [82] Learned counsel cited the case of Pilon Limited v Breyer Group Plc [2010] EWHC 837 (TCC) where to wrongly decline jurisdiction in deciding for example on the set off, cross claim or counter claim raised could result in a breach of natural justice. At paragraph [17], Coulson J addressed the issue of jurisdiction of the set off as follows: “5. ISSUE 2; DID THE ADJUDICATOR TAKE AN ERRONEOUSLY RESTRICTIVE VIEW OF HIS OWN JURISDICTION AND, IF SO, WHAT ARE THE CONSEQUENCES?

5.1 The Law

An adjudicator can make an inadvertent mistake when answering the question put to him, and that mistake will not ordinarily affect the enforcement of his decision: see Bouygues (UK) Ltd v Dahl-Jensen (UK) Ltd [2000] BLR 49. If, on the other hand, he considers and purports to decide an issue which is outside his jurisdiction, then his decision will not be enforced: see the discussion in Sindall Ltd v Solland [2001] 3 TCLR 712. But there is a third category, which is where the adjudicator takes an erroneously restrictive view of his own jurisdiction, with the result that he decides not to consider an important element of the dispute that has been referred to him. This failure is usually categorised as a breach of natural justice. Cases in this category include: 39 17.1 Ballast Plc v The Burrell Company (Construction Management) Limited [2001] BLR 529, where the adjudicator failed to address the valuation dispute referred to him because the parties had departed from the terms of the written contract. Lord Reid concluded that the adjudicator’s decision - to the effect that, as a matter of jurisdiction, he could not take into consideration even the possibility that the parties might depart from the written terms of the contract - was wrong in law. The adjudicator had misconstrued his powers and failed to exercise his jurisdiction to determine the dispute. His decision was therefore ruled a nullity.

17.2 Broadwell v k3D [2006] ADJ CS 04/21, in which HHJ Raynor QC refused to enforce an adjudicator’s decision because he had failed to address the responding party’s counterclaim. This was on the erroneous basis that there had been no mention of the counterclaim in the notice of adjudication, leading the adjudicator to conclude that he did not have the jurisdiction to consider it. The judge held that this fundamental error meant that the adjudicator had failed to have regard to the responding party’s legitimate defence, and had therefore not conducted the adjudication in accordance with the rules of natural justice. 40 17.3 Thermal Energy Construction Limited v AE and E Lentjes Uk Limited [2009] EWHC 408 (TCC), where HHJ Stephen Davies refused to enforce an adjudicator’s decision in circumstances where the adjudicator had again wholly failed to address the set-off and counterclaim raised by the defending party ... [83] Justice Coulson J stated that when an adjudicator erroneously takes a restrictive view of his own jurisdiction, it is tantamount to a breach of natural justice. Justice Coulson J distilled the various situations in this regard as follows:

As a matter of principle, therefore, it seems to me that the law on this topic can be summarized as follows:

22.1 The adjudicator must attempt to answer the question referred to him. The question may consist of a number of separate sub-issues. If the adjudicator has endeavoured generally to address those issues in order to answer the question then, whether right or wrong, his decision is enforceable: see Carillion v Devonport .

22.2 If the adjudicator fails to address the question referred to him because he has taken an erroneously restrictive view of his jurisdiction (and has, for example, failed even to consider the defence to the claim or some fundamental element of it), then 41 that may make his decision unenforceable, either on grounds of jurisdiction or natural justice: see Ballast, Broadwell, and Thermal Energy.

22.3 However, for that result to obtain, the adjudicator’s failure must be deliberate. If there has simply been an inadvertent failure to consider one of a number of issues embraced by the single dispute that the adjudicator has to decide, then such a failure will not ordinarily render the Decision unenforceable: see Bouygues and Amec v TWUL .

22.4 It goes without saying that any such failure must also be material: see Cantillon v Urvasco and CJP Builders Limited v William Verry Limited [2008] EWHC 2025(TCC). In other words, the error must be shown to have had a potentially significant effect on the overall result of the adjudication: see Keir Regional Ltd v City and General (Holborn) Ltd [2006] EWHC 848 (TCC). (emphasis added) [84] Learned counsel for Ireka explained that Ireka had in its Payment Response claimed by way of set off/cross claim/counter claim for set off for overpayment from another Subcontract Reference no: IECSB/KL Sentral Pkg 3/140/3.1/022-HQ under Letter of Acceptance dated 24.8.2011 between the same parties. Ireka had submitted that the set off provision has been expressly stated in Clause 9 of the Subcontract and the same 42 clause provided Ireka with a contractual right to set-off any amount due to PWC against any sums due or liable to be paid by PWC to Ireka whether under this Subcontract or any other contract. [85] It must be immediately pointed out that the set off raised was with respect to a different contract between the same parties with respect to the KL Sentral Project. The Adjudicator was not in a position to address the matter as there were no documents to prove the amount of overpayment in the KL Sentral Project. At any rate learned counsel for Ireka admitted that this overpayment had been raised in the Adjudication involving the KL Sentral Project and Subcontract in another Adjudication. [86] I would say it is an abuse of the Adjudication process to raise in this Adjudication the same matters raised in another Adjudication for decision and which matter is more appropriately raised in the other Adjudication as the overpayment is said to have arisen in the KL Sentral Project under the KL Sentral Subcontract between the parties. [87] I therefore cannot agree that the Adjudicator came to a rather narrow and restrictive view of his jurisdiction resulting in him wrongfully declining jurisdiction over the set off when he held that “he has no jurisdiction to determine the merit of contracts other than the said Subcontract”. 43 [88] I would hold that under such a circumstance he ought not to determine the merit of other contract irrespective of the fact that there was a clear set off provision in the Subcontract. At paragraphs 85 and 86 of the Adjudication Decision, the Adjudicator had rightly resisted the temptation to venture into deciding on the issue of overpayment in another Subcontract which dispute is already before another Adjudicator in a separate Adjudication. The relevant part of the Decision reads as follows: “85. Even though the said Subcontract provides set-off from another Subcontract, I have no jurisdiction to determine the merits of contracts other than the said Subcontract. I cannot be certain whether the sum is an amount “which the sub-contractor is liable to pay the main contractor” as provided in clause 9.1.

Therefore I FIND and HOLD that the Respondent is not entitled to set off the claim for overpayment of RM17,790.45.” [89] I would say the Adjudicator had exercised his discretion correctly and had correctly confined himself to the dispute arising out of the present Subcontract which is that involving the Sandakan Project. [90] Under section 5(1) of the CIPAA, it is provided as follows: “5. Payment Claim 44

An unpaid party may serve a payment claim on a non-paying party for payment pursuant to a construction contract.” (emphasis added) [91] Moreover the Payment Claim served shall under section 5(2)(b) of the CIPAA shall be in writing and shall contain: “(b) Details to identify the cause of action including the provision in the construction contract to which the payment relates;” (emphasis added) [92] The singular is used with respect to “a construction contract” under section 5(1) of the CIPAA and “the construction contract” under section 5(2)(b) of the CIPAA. [93] The CIPAA envisages a Payment Claim for each construction contract and not various Payment Claims for multiple contracts or where the Payment Response served is with respect to overpayment or set off in another construction contract. This is even more necessary when the set off, cross claim or counter claim is with respect not just with a separate and different contract but that it is also the subject matter of another Adjudication. For the Adjudicator here to venture into deciding whether there is a set off and if so, for how much, would be to encroach into the 45 jurisdiction of another Adjudicator and with that, to have exceeded his jurisdiction though raised in the Payment Response. [94] The Claimant’s Claim with respect to the KL Sentral Project under a separate and different Subcontract is before another Adjudicator in a different Adjudication. The issue of over payment of RM17,790.45 by the Respondent in the KL Sentral Project has to be determined in the Adjudication involving the KL Sentral Project. [95] That Determination cannot be appropriately done in this Adjudication as the Claimant is not pursuing its Claim in the KL Sentral Project in this Adjudication. [96] The inference of one Payment Claim per contract and not multiple Payment Claims for different contracts can be had from section 14 of the CIPAA where the strict requirement for consolidation is concerned. Section 14 reads as follows: “14. Consolidation of Adjudication Proceedings If two or more adjudication proceedings in respect of the same subject matter are being adjudicated before the same adjudicator, the adjudicator may, with the consent of all the parties to the adjudication proceedings, consolidate and adjudicate the matters in the same proceedings.” 46 [97] The requirements of same subject matter, same Adjudicator, consent of the parties to the Adjudication must all be cumulatively met and even then the discretion is still with the Adjudicator as to whether to consolidate the 2 or more Adjudication proceedings. [98] It is not difficult to surmise why a discretion is still being retained by the common Adjudicator with respect to whether or not to consolidate 2 or more Adjudication proceedings as the deadline for delivery of the Adjudication Decision may be very much earlier for one Payment Claim and perhaps much later for the other Payment Claim and unless all parties have granted consent in writing to extend time for one or both Adjudications, the deadline to deliver the Decision might be too near to be of any advantage. There might be little savings in time and costs where parties have not consented to extend the time for the Adjudicator to decide in the 2 or more Adjudication proceedings that are being consolidated. [99] The only way to consider the set off raised by Ireka in this Adjudication with respect to the KL Sentral Project and Subcontract is to have the Adjudication of PWC’s Payment Claim in this Adjudication to be consolidated with PWC’s Payment Claim in the KL Sentral Project Adjudication. That is only possible if the Adjudicators in both Adjudications are one and the same person, which is not in this case. 47 [100] As pointed one, it is rather perplexing if not an abuse of the Adjudication process for Ireka to raise the set off arising from the KL Sentral Subcontract in this Adjudication as well as in the Sandakan Subcontract Adjudication. [101] There has thus been no breach of natural justice on the Adjudicator’s part and that he had rightly declined to adjudicate on this particular set off both on ground that he had no jurisdiction to decide on the merits of the claim in another Contract not before him. There were no documents before him for him to decide and he concluded at paragraph 85 of his Adjudication Decision as follows: “....I cannot be certain whether the sum is an Amount “which the subcontractor is liable to pay the main Contractor.” [102] It would in any event not be expedient for him to decide on the set off under a different Subcontract which was already the subject of a separate Adjudication. [103] I would echo the sentiments expressed in the Singapore High Court dealing with their provisions under their Building and Construction Industry Security of Payment Act (Cap 30B, 2006 Rev Ed) ("the SOP Act”) in the case of Hua Rong Engineering Pte Ltd v Civil Tech Pte Ltd [2017] SGHC 179. It was held as follows: 48 “80 In summary, it is common in the construction industry for the same parties to have several different contracts. If they were allowed to bring in any contracts they pleased in an adjudication under the SOP Act, this would open the floodgates to unchecked expansion of the scope of materials which must be dealt with in an adjudication. In the worst case scenario, this may give rise to unmanageable complexity, with numerous issues spanning several contracts with different terms and conditions. The SOP Act would then no longer be capable of providing a simple, low cost, efficient and quick resolution of payment claims. In short, CTP’s proposed interpretation of the law could potentially bring the industry back to the pre-SOP Act era of frequent delays or non-payments with little practical recourse. Sub-contractors could find themselves once again – to borrow the words of Menon CJ in W Y Steel ([22] supra) (at [20]) – "held up by counterclaims and claims for set-offs that may prove to be specious at the end of lengthy and expensive proceedings that have to be undertaken in order to disentangle the knot of disputed claims and cross-claims.” This cannot be the intention of Parliament. Instead, the simplest, quickest procedure as stipulated by the SOP Act is to confine the issues of payment claims to those arising in relation to a single construction contract. 49 81 This should not be thought to work an injustice. The adjudication determination is not the final determination of the parties’ rights. It provides only temporary finality. CTP is at liberty to take a separate action against HRE for the purported false and fraudulent claims in the C933 contract. It is also free to raise those claims as withholding reasons if HRE makes a subsequent payment claim in relation to the C933 contract. In fact, the issues relating to CTP’s claims in the C933 contract are diverse and distinct from HRE’s payment claims under the T211 contract. It is only right that CTP’s set-off claim should not be joined in the same action, as HRE’s payment claim is straightforward and not disputed by CTP. 82 I therefore dismiss CTP’s application to set aside the AD.” (emphasis added) Whether the Respondent should be granted a stay of the Adjudication Decision pending the Arbitration that has just commenced. [104] The main reason that Ireka is seeking a stay of the Adjudication Decision lies in the fact that Ireka has served an arbitration notice to PWC. The threshold condition for a stay under section 16(1)(b) of the CIPAA has thus been met. Section 16 reads as follows: “16. Stay of Adjudication Decision 50

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.” (emphasis added) [105] I agree with the Claimant that this per se is not sufficient for a stay of the Adjudication Decision. See the case of Subang Skypark Sdn Bhd v Arcradius [2015] 11 MLJ 818, particularly paragraphs [22] to [32]. [106] Section 13(3) of the CIPAA provides that the Adjudication Decision is binding unless the dispute is finally decided by arbitration or the court. [107] Section 31(1) of the CIPAA declares that: “Unless a stay is granted under section 16, a party who obtained an adjudication decision in his favour may exercise any or all of the remedies provided in this Act concurrently to enforce the adjudication decision.” 51 [108] The discretion is with the Court in deciding whether or not to grant the stay of the Adjudication Decision pending the outcome of the Arbitration. In exercising its discretion, the Court must have in the forefront of its consideration the purpose of the CIPAA which is to facilitate cash flow especially for the contractor who has done the work and is out of pocket whether as in this case, labor and materials are concerned. [109] The Federal Court in View Esteem Sdn Bhd (supra) would allow in cases “where there has been clear and unequivocal errors”; to use the expression at paragraph [79] of the Federal Court’s Decision, for the Court in hearing an application under section 16(1)(b) to grant a stay of an Adjudication Decision. [110] It still remains that “a stay of the [adjudication decision] ought not be given readily and caution must be exercised when doing so.” See paragraph [82] of the said Federal Court’s Decision. At paragraph [82] of the said judgment of the Federal Court it is stated that the “financial capacity of the contractor to repay” could be a factor but not the only factor to be considered. [111] Whilst the Respondent had fulfilled the threshold condition of obtaining a Stay in that a Notice to Arbitrate has been served on the Claimant and that the Arbitration would decide fully and finally all issues that have arisen in the dispute between the parties, that threshold is only a 52 mere trigger for the Court to consider exercising its discretion with respect to Stay. It is not the “be all and end all” of the consideration for Stay of the Decision for otherwise it would be a carte blanche for all who have an Adjudication Decision against them to effectively get a Stay of the Decision by serving a Notice of Arbitration or to file a Writ against the successful Claimant. That would be to denude the CIPAA of its designed purpose of facilitating cash flow in the construction industry and promoting prompt payment for work done for which the contractor is already out of pocket. The construction scene is strewn with sob stories of contractors who have fallen down the slippery slope of financial stress simply because payments for work done or services rendered were delayed. [112] The Respondent has not shown that this Adjudication Decision contains clear and unequivocal errors such that a stay would be justified when looking at the justice of the case. The Respondent is understandably unhappy with the Decision but this is where one must appreciate and affirm once again that rough and ready outcome of an Adjudication where there may well be some margin of error allowed so long as it does not materially affect the overall justice of the case bearing in mind the Interim finality of the Decision until the arbitration or litigation is concluded. [113] The Respondent admitted that PWC is not an “impecunious construction contractor”. The Respondent had not provided any evidence 53 that may point in the direction of a cause for concern where the financial status and standing is concerned. [114] It is further admitted that the Respondent must show special circumstances to justify a stay. The fact that should the Respondent succeed in the Arbitration its Claim would exceed the Payment Claim is not a special circumstance unless it can be shown that there is a real danger that the Claimant would not be able to pay the Respondent. Nothing coming close to that has been shown. [115] It was further argued that as the Project has been completed the Claimant would not suffer any prejudice as there is no longer any serious cash flow problem other than settling and sorting out the Final Accounts and since there is a dispute, this is best decided at Arbitration. [116] I do not think one can look at cash flow problem as a stand alone problem confining only to the Project in question because realistically and practically, the Contractor would need the cash from work done to be plowed in for other projects that it is working on and tendering for. The long title to the CIPAA is clear in that it is meant to address the problem of regular and timely payment in the construction industry as a whole. It reads as follows: 54 “An Act to facilitate regular and timely payment, to provide a mechanism for speedy dispute resolution through adjudication, to provide remedies for the recovery of payment in the construction industry and to provide for connected and incidental matters.” (emphasis added) [117] It was also submitted that Ireka had paid PWC substantial sums, i.e. RM3,254,360.70 to date. However that is besides the point for there is still a balance sum of RM889,229.01 and for a contract sum of RM4,159,783.08 that would eat substantially into its profits. Whilst the Claimant had done the Subcontract Work and had not been paid in full, the Respondent’s Claim for LAD is still subject to proof in the Arbitration. [118] To allow a Stay merely on ground of a pending arbitration in the absence of special circumstances would be to defeat the purpose of the CIPAA as all that the Respondent needs to do is to commence Arbitration with serving on the Claimant a Notice to Arbitrate. That would be to send the wrong message to the construction industry that a Stay of an Adjudication Decision is granted as of right the moment there is a pending Arbitration or Litigation. [119] That would undo all that the construction industry had sought to do including changing the culture and mindset of deliberate or designed delay in making payments to the Contractor the Work already done and to do so 55 with impunity. That would be to turn back the hands of the clock to pre-CIPAA regime and it would be a great disservice done to the CIPAA. [120] Learned counsel for the Respondent had relied for its Stay Application on the Singapore Court of Appeal case of S A Shee & Co (Pte) Ltd v Kaki Bukit Industrial Park Pte Ltd [2000] SGCA 7, [2000] 2 SLR 12 where the Court held in paragraph [36] that: “36 However, the position here was different. While cl 31(11) provided that summary judgment could be obtained on the basis of an interim certificate, it was subject to the exception 'in the absence of express provision'. Clause 32(8)(a) appeared to be one such 'express provision'. Furthermore, the rationale for giving temporary finality to an interim certificate could no longer hold good when the contract had come to an end. The contractor would not be carrying out any more work. So the need to minimize 'cash flow problems' for the project no longer existed.” [121] However that dicta of the Singapore Court of Appeal had been quoted out of context. It was not a matter under Statutory Adjudication under the Singapore equivalent of their Security of Payment Act (“SOPA”). It was a matter involving a dispute between the Contractor and Employer and the Contractor had sued for the interim payments duly certified and the employer had contended that the Contractor’s termination had been 56 unlawful. There was a stay of Court Proceedings because of the presence of an Arbitration Clause and this becomes obvious in paragraphs 38 of the Judgment below when the Court of Appeal dealt with section 7(2) of their then Arbitration Act (Cap 10):

“Whether stay should be granted Section 7(2) of the Act provides: The court or a judge thereof, if satisfied that there is not sufficient reason why the matter should not be referred in accordance with the arbitration agreement, and that the applicant was, at the time when the proceedings were commenced, and still remains, ready and willing to do all things necessary to the proper conduct of the arbitration, may make an order staying the proceedings.

It is settled law that once a dispute falls within an arbitration clause and is being referred to arbitration, the burden is on the party resisting a stay to show that there is a sufficient reason for not referring the matter in dispute to arbitration. In this instance, no reasons, other than those points discussed above and which we did not accept, had been advanced by the appellants to show why the parties' choice of forum should not be given effect to. Accordingly, we held that there ought to be a stay.” (emphasis added) 57 [122] Overall I find no special circumstances to warrant the exercise of my discretion to grant a Stay of the Adjudication Decision. Pronouncement [123] In the upshot I had dismissed both the Setting Aside Application and Stay Application with costs of RM5,000.00 and correspondingly I had allowed the Enforcement Application with costs of RM5,000.00. Dated: 29 January 2018. - Signed - YA LEE SWEE SENG Construction Court High Court Kuala Lumpur For the Plaintiff in : WA-24C-107-06/2017 : C.K Oon and Daniel Lau And for the Defendant in : (Messrs CK Oon & Co.) WA-24C-117-07/2017 : 58 For the Defendant in : WA-24C-107-06/2017 : S. Y Lim and Lai Wen Ching And for the Plaintiff in : (Messrs Azman Davidson & Co) WA-24C-117-07/2017 :