PWC Corporation Sdn Bhd v Ireka Engineering & Construction Sdn Bhd (WA-24C-98-06/2017 (No. 1))

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) 8 Whether the Adjudicator had acted in excess of his jurisdiction in proceeding with the Adjudication when Ireka as the Respondent in the Adjudication is not disputing the Payment Claim. [18] Learned counsel for Ireka contended that as Ireka was not disputing the Payment Claim, there is then no dispute in existence that would require the Adjudicator to proceed with the Adjudication and indeed the Adjudicator had exceeded his jurisdiction by so proceeding with the result that the Adjudication Decision has to be set aside. [19] It was further argued for Ireka that section 27(1) of the CIPAA provides that an Adjudicator’s jurisdiction over any dispute is limited to the matters raised in the Payment Claim and Payment Response. The position posited by Ireka was that the Adjudicator may only adjudicate on a dispute raised in the Payment Claim from the Claimant and the Payment Response from the Respondent and that where matters raised in a Payment Claim are not disputed, the Adjudicator therefore does not have any jurisdiction to adjudicate and cannot make an award or decision over non disputed matters. Learned counsel then sought to persuade this Court that any decision over undisputed claims are therefore in excess of jurisdiction and should be set aside pursuant to Section 15(d) of CIPAA. 9 [20] It was further highlighted that in the Payment Response, the Respondent had clearly and unmistakably indicated that it did not dispute the Claimant’s claim. [21] Learned counsel for Ireka also submitted that the definition of the word 'dispute' in the CIPAA should be given its plain and ordinary meaning. The Courts in England have had occasion to consider the definition of 'dispute' in its Adjudication legislation. In the English case of Beck Peppiatt Ltd v Norwest Holst Construction Ltd [2001] QBD 316 (TCC), it was held that 'dispute' is an ordinary English word which should be given its ordinary English meaning. I agree that this means that there will be many types of situations which could be said to amount to a dispute. Each case will have to be determined on its own facts. [22] Learned counsel for Ireka further explained that Ireka in its Adjudication Response did address issues regarding set-off/cross claim but it did so under protest and in full reservation of its rights in challenging the Adjudicator’s jurisdiction for the reasons that the Adjudicator had no jurisdiction since there was no dispute. [23] Ireka’s counsel addressed any apparent prejudice by advocating that recourse could always be had to the Courts as in commencing a civil suit but not to the Adjudicator, and cited the case of Halki Shipping 10 Corporation v Sopex Oils Ltd [1997] EWCA Civ 3062 in support of her proposition. [24] In brief, Ireka’s submission is that in the absence of any dispute arising from the Payment Claim and Payment Response, and Adjudicator has no jurisdiction to make any Adjudication Decision for any claim raised by the Claimant. Consequently the Adjudication Decision was made in excess of jurisdiction and is liable to be set aside pursuant to section 15(d) of the CIPAA. [25] However in the case of Halki Shipping Corporation v Sopex Oils Ltd [1997] EWCA Civ 3062, the Court of Appeal in UK in dealing with the meaning of dispute in relation to arbitration at page 56 paragraph e held as below: “In my judgement if a party has refused to pay a sum which is claimed or has denied that it is owing then in the ordinary use of the English language there is a dispute between the parties.” [26] I agree with learned counsel for the Claimant that in the present Adjudication proceeding, the Respondent had refused to pay the sum demanded by the Claimant but had instead raised the argument on set-off for matters which are totally unrelated to our current Adjudication proceedings to avoid their responsibilities to pay the Claimant. 11 [27] One must look at section 6(1) of the CIPAA as to what is meant by a “dispute”. It provides that in the event the non-paying party admits to the Payment Claim, he shall serve a Payment Response to the unpaid party together with the whole amount claimed or any amount as admitted by him. (emphasis added) [28] Section 6 of the CIPAA is reproduced in full below for an appreciation of the process and purpose of filing a Payment Response: “6. Payment Response

A non-paying party who admits to the payment claim served on him shall serve a payment response on the unpaid party together with the whole amount claimed or any amount as admitted by him.

A non-paying party who disputes the amount claimed in the payment claim, either wholly or partly, shall serve a payment response in writing on the unpaid party stating the amount disputed and the reason for the dispute.

A payment response issued under subsection (1) or (2) shall be served on the unpaid party within ten working days of the receipt of the payment claim. 12

A non-paying party who fails to respond to a payment claim in the manner provided under this section is deemed to have disputed the entire payment claim.” (emphasis added) [29] This has clearly not been done. As can be seen it is not just enough to serve a Payment Response admitting the Claim. There is the additional requirement of making payment of the amount admitted and in this case, the whole amount admitted. The Respondent has clearly used the ordinary meaning of a “dispute” to skirt and stop the Adjudication. [30] Absent the accompaniment of payment with the admission of the Payment Claim or any part of the sum claimed therein, the Non-paying Party is deemed to have disputed the Payment Claim as clearly provided for in section 6(4) of the CIPAA. [31] Parliament had already anticipated what some parties like the Respondent might want to argue to scuttle the Statutory Adjudication process by admitting to the Payment Claim and then saying that there is no dispute for the Adjudicator to decide on and to make an Adjudication Decision. [32] The statute has deemed a dispute has arisen for the purpose of Adjudication, the Non-paying Party cannot refuse to Pay and then still argue that there is no dispute under the scheme of Statutory Adjudication 13 under the CIPAA. There is no dispute only when there is an admission of the sum claimed in the Payment Claim accompanied by the Payment itself, otherwise the Non-paying Party is shut from cleverly contending that there is no dispute and hence no jurisdiction to Adjudicate for Parliament steps in to deem that there is a dispute and the matter must proceed to Adjudication. [33] The Adjudicator would thus have jurisdiction to hear and determine the dispute. Whether there is a breach of Natural Justice when the Adjudicator refused to consider the set-off raised in another contract in another Adjudication. [34] Learned counsel for Ireka also submitted that there has been a breach of natural justice when the Adjudicator refused to consider the set-off/cross claim raised in another contract in another Adjudication. [35] Ireka had proceeded to argue that it had a set-off/cross claim without prejudice to its challenge to the Adjudicator’s jurisdiction. In other words, the Respondent continued with the Adjudication under protest. [36] The Respondent submitted that where an 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 14 referred to him, that act is a breach of natural justice. See Pilon Ltd v Breyer Group Plc [2010] EWHC 837 (TCC). [37] It was argued on behalf of the Respondent that the Adjudicator had completely and deliberately chosen not to consider the merits of the Respondent’s set-off/cross claim. This can be seen at paragraphs 36 and 37 of the Adjudication Decision where the Adjudicator stated:

If I am to rule on whether the sums are due and payable by the Claimant to the Respondent in the other 2 projects, I have to look and decide on the merits of the parties claims and defences in the other 2 projects.

However, I am persuaded by the Claimant that under section 5 of CIPAA, I can only decide on a construction contract. I am not empowered to decide on multiple construction contracts. [38] The Respondent contended that the Adjudicator had limited his jurisdiction when he held, albeit wrongly, that he could only make a determination on one contract. In doing so he did not give regard to the disputes raised by the Respondent in its Payment Response. [39] It was further urged upon this Court that the Adjudicator ought to have made a determination on the sum claimed by the Respondent to be due to be paid by the Claimant because of Clause 13.1 of the Contract. 15 [40] The Contract at clause 13.1 provided for, inter alia, that Ireka had a right of set-off for any cross-claims it had against PWC. Clause 13.1 of the contract provides: “Notwithstanding any other provision in the Sub-Contract, the Main Contractor shall be entitled to deduct from or set-off any money due or becoming due to the Sub-Contractor (including any Retention Money) any sum or sums which the Sub-Contractor is liable pay the Main Contractor whether under this Sub-Contract of otherwise or any other contract between the parties.” (emphasis added) [41] Learned counsel for the Respondent said that given the provision of clause 13.1, in making an Adjudication Decision on the Contract, it is necessary for the Adjudicator to also have regard to claims under other contracts between the same parties. The operation of Clause 13.1 would require him to take into account that there was money that was due or becoming due under any other contract between parties. [42] However these 2 other contracts under which the Claimant here has a Claim also and the Respondent here said they have a cross claim are already the subject of 2 separate Adjudications before 2 separate Adjudicators. The Adjudicator there would be best tasked to decide on 16 whether the Defence of set-off is valid in the Payment Response raised in the 2 other Adjudications. [43] For the current Adjudicator to venture into deciding what is essentially a matter raised in the other 2 separate Adjudications would be inappropriate and outside the scope of the current Adjudication which is with respect to the Claimant’s Claim under the Mont Kiara Project. Whilst this Adjudication Decision was given on 18.5.2017, the Adjudication Decision in the Sandakan Project was given on 5.6.2017 with the Adjudicator there giving the Decision in favour of the Claimant and dismissing the Respondent’s set-off/counter claim for LAD of RM3,723,000.00. [44] Section 5(1) of the CIPAA provides that a payment claim may be served pursuant to a claim under a construction contract. The reference is to a construction contract. [45] It is not difficult to appreciate the rationale for confining a Payment Claim to a construction contract as to extend it to multiple contracts would naturally prolong the proceedings and the Adjudicator might not be able to deliver the Adjudication on the limited time line provided for under section 12 of the CIPAA. 17 [46] A Payment Claim under section 5(2)(b) of the CIPAA shall include the provision in the construction contract to which the payment relates. Section 5 reads as follows: “5. Payment Claim

An unpaid party may serve a payment claim on a non-paying party for payment pursuant to a construction contract.

The payment claim shall be in writing and shall include—

The amount claimed and due date for payment of the amount claimed;

Details to identify the cause of action including the provision in the construction contract to which the payment relates;

Description of the work or services to which the payment relates; and

A statement that it is made under this Act.” (emphasis added) [47] As there were 2 other Adjudication proceedings afoot in 2 other Contracts involving the same parties with respect to the KL Sentral Project and Sandakan Project but before 2 different Adjudicators, I see nothing wrong in the Adjudicator here declining to exercise jurisdiction over 18 disputes arising out of Contracts before 2 separate Adjudicators for which they would be deciding. [48] The Adjudicator had expressed his opinion as to why he should not embark on deciding on a set-off involving a separate contract distinct from the present contract. The Adjudicator opined as follows in the Adjudication Decision: “35. In fact, both parties have submitted on the merits of the 2 projects in determining whether the sums are due and payable by one party to the other.

If I am to rule on whether the sums are due and payable by the Claimant to the Respondent in the other 2 projects, I have to look and decide on the merits of the parties’ claims and defenses in the other 2 projects.

However, I am persuaded by the Claimant that under Section 5 of CIPAA, I can only decide on a construction contract. I am not empowered to decide on multiple construction contracts.

To fortify further, one of the projects is already the subject matter of another adjudication process. To decide on the merits herein would be to usurp the jurisdiction of the other Adjudication process.” (emphasis added) 19 [49] I could not agree more; thus the Adjudicator is not disregarding the terms of the construction contract but rather that it is completely inappropriate to adjudicate the dispute by deciding on the validity of the set-off and the amount of the set-off as these are matters already raised for another Adjudication and the Adjudicator there would be best positioned to decide the dispute arising as it is under a different construction contract. [50] The question and determination of what if any is the amount of set-off that could be proved would be a matter for the 2 different Adjudicators in the 2 separate Adjudications to decide based on the evidence adduced before the Adjudicators. [51] The Adjudicator here cannot afford to wait for the Adjudicators in the 2 other separate Adjudication proceedings to decide on the set-off in each of the KL Sentral Project and the Sandakan Projects for the time of delivery of the Adjudication Decision here would have expired. [52] At any rate the amount of the set-off in the other 2 Contracts is best determined in the Adjudication proceedings involving the other 2 Contracts. If the Adjudicator in the present Adjudication had proceeded to decide the amount of set-off that would not prevent the other Adjudicator in the other 2 Adjudicators to decide on the set-off raised relating to the Contracts before them and the Decision arrived at on the amount of set-off may well be different. That would be a highly undesirable state of affairs. 20 [53] I am fortified in the above stand when I consider section 14 of the CIPAA on “Consolidation of Adjudication Proceedings.” It reads: “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.” [54] Looking at the above requirements for consolidation, the Adjudicators in the separate Adjudication Proceedings must be the same and the subject matter must be the same and furthermore all the parties must have consented to the consolidation. [55] In the present case the subject matters are different as they were proceedings from 3 separate contracts between the same parties i.e. Mont Kiara Project, KL Sentral Project and the Sandakan Project. Moreover the Adjudicators are different and consolidation would not be possible. There is also a need for all the parties to consent to the consolidation and here there has not been any consent. Even if all 3 conditions are met, the Adjudicator would still have a discretion to decide whether or not to consolidate and regard must be heard to whether the consolidation would save time to adjudicate the dispute and to avoid duplicity of proceedings and whether the time frame for delivering the Decision would be unduly too short having 21 regard to the deadline to deliver the Decision unless the parties have agreed to extend time for the delivery of the Adjudication Decisions. [56] The fact that Parliament saw a need to have a Consolidation of Adjudication Proceedings would suggest that different proceedings are commenced for different claims under the same or different construction contracts involving the same parties and it is only when the Adjudicator is the same person that the requirements of section 14 are met and provided always that the parties have consented. [57] Here the parties could not agree on the same Adjudicator, much less agree to a consolidation of 2 or more Adjudication Proceedings. [58] I have no quarrel with the proposition laid down in Thermal Energy Construction Limited v AE and E Lentjes UK Limited [2009] EWHC 408 (TCC), where the English Court refused to enforce an Adjudicator’s Decision because the adjudicator had wholly failed to address the set-off and counterclaim raised by the defending party. Here it is not a refusal to address the set-off and counter claim raised in the same contract but rather raised in a different contract which Claim is in a different Adjudication before different Adjudicators. [59] Whilst it is a breach of natural justice when an Adjudicator has wrongfully diminished or restricted his own jurisdiction, here this is not the 22 case as the set-off raised would be considered in the respective Contracts which dispute is being adjudicated. [60] It was further submitted for the Respondent that this error by the Adjudicator was material as the Set-Off/Cross Claim by the Respondent was RM3,740,790.45 which is significantly more than the amount claimed. I can only say that it is yet to be proved what is the set-off/cross claim that would be allowed in the other 2 Adjudication proceedings. As explained by the Adjudicator in his Adjudication Decision the set-off raised by the Respondent had yet to be proved: “32. Nevertheless, the Respondent must satisfy me that the sums that the Respondent intends to set-off against the Claimant’s Claim herein must be due and payable from the other 2 projects....

I find the Respondent has failed to show that there are sums due and payable by the Claimant to the Respondent in the other 2 projects.....” [61] Since the sums due and payable in the set-off are the subject matter of 2 other Adjudications involving the KL Sentral Project and the Sandakan Project, the Adjudicator rightly restrained himself from venturing further to consider the Defence of set-off which would be considered in those 2 other Adjudications. 23 [62] As an Adjudication Decision is of interim finality, any adjustments and corrections can be done in the Arbitration that has already been commenced and which would yield a final result in that it would supersede the Adjudication Decisions in the 3 Adjudications. See section 13(c) of the CIPAA. [63] A similar issue was raised 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: “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 24 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. 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. 25 82 I therefore dismiss CTP’s application to set aside the AD.” (emphasis added) [64] Learned counsel for the Claimant had referred to a case summary in Arbitration in Econet Satellite Services Ltd v Vee Networks Ltd (formerly Econet Wireless Nigeria Ltd) [2006] EWHC 1664 (Comm), the Queen’s Bench Division (Commercial Court) at page 2, 2nd paragraph where it was held that: "An arbitral tribunal’s jurisdiction depended upon the scope of the arbitration agreement. Further, art 19(3) of the UNCITRAL rules was clear: a respondent might raise a set-off only if it was founded on a claim arising out of the same contract as that on which the claimant’s claim was based. The reference in art 1(2) of the rules to the 'law applicable to the arbitration from which the parties cannot derogate' refers to the procedural law of the forum, and not the substantive law chosen to govern the contract.' In the instant case, the purported set-off arose out of different contracts and therefore the arbitrators had been right to find no jurisdiction to deal with it. The applications would be dismissed."(emphasis added) [65] I agree with the Adjudicator that what we have here in Clause 13.1 of the Letter of Acceptance is a case of contractual set-off. It is not equitable set-off. As was observed by the Supreme Court in Pembenaan Leow Tuck 26 Chui & Sons Sdn Bhd v Dr Leela’s Medical Centre Sdn Bhd [1995] 2 CLJ 345: “The parties to building contracts are entitled to incorporate in their contract any clause they please. There is nothing to prevent them extinguishing, curtailing or enlarging the ordinary rights of set-off, provided they do so expressly or by clear implication. There is however no special rule of construction operating in the building contract cases...” [66] Therefore there is no necessity for the Respondent to show that the sum purportedly owed is closely connected with this contract unlike what was held in B Hargreaves Ltd v Action 2000 Ltd 36 ConLR 74 at page 80, where Judge James Fox-Andrews QC dismissed the set-off raised as "I do not find that these other sub-contracts arose out of the same transaction as the Irlam sub-contract or were so closely connected that monies due or which might be due from Hargreaves to Action can be the subject of set-off". [67] Further Judge James Fox-Andrews QC at pages 80-81 referred to the Court of Appeal case of Dole Dried Fruit & Nut Co Ltd v Trustin Kerwood [1990] 2 Lloyd’s Rep 309 where Beldam LJ agreed that "But for all ordinary purposes, the modern law of equitable set-off is to be taken as accurately stated by the Court of Appeal in Hanak v Green [1958] 2 All ER 27 14, [1958] 2 QB 9), Morris LJ's judgment in that case was described by Lord Diplock in Gilbert-Ash (Northern) Ltd v Modern Engineering (Bristol) Ltd [1973] 3 All ER 195 at 215, [1974] AC 689 at 717 as containing a masterly account of the subject. It is not enough that the counterclaim is "in some way related to the transaction which gives rise to the claim". It must be "so closely connected with the plaintiff’s demand that it would be manifestly unjust to allow him to enforce payment without taking into account the cross claim"." [68] An appeal was lodged against the decision given by Judge James Fox-Andrews QC and the Court of Appeal upheld his decision and dismissed the appeal. [69] The device of a contractual set-off cuts right through the tangled knot of equitable set-off. [70] I had therefore dismissed the application to set aside the Adjudication Decision having found that there was no excess of jurisdiction and no breach of natural justice on the part of the Adjudicator. Whether a Stay of Execution of the Enforcement Order should be allowed pending appeal to the Court of Appeal. [71] Subsequent to the above decision of this Court, there was a Notice of Application filed in Enclosure 13 in the Originating Summons WA-24C-98- 28 06/2017 to stay the execution of the order of enforcement made by this Court on 28.8.2017 pending the appeal filed by Ireka dated 26.9.2017 in an appeal to the Court of Appeal against the Decisions of this Court in dismissing the setting aside application and allowing the enforcement application. [72] Statutorily speaking an appeal from the High Court to the Court of Appeal does not act as a stay of the High Court’s judgment as provided for in section 73 of the Courts of Judicature Act 1964.

“Appeal not to operate as stay of execution An appeal shall not operate as a stay of execution or of proceedings under the decision appealed from unless the court below or the Court of Appeal so orders and no intermediate act or proceeding shall be invalidated except so far as the Court of Appeal may direct.” (emphasis added) [73] It was agreed that to qualify for a stay, the Respondent Ireka must show special circumstances to justify a stay of execution of the Enforcement Order for this is a Stay of an Adjudication Decision that had matured into a judgment of the Court and the stay is pending appeal to the Court of Appeal. 29 [74] The Federal Court has put to rest the controversy surrounding the test to be applied for a stay of execution of a judgment in Kosma Palm Oil Mill Sdn Bhd & Ors v Koperasi Serbausaha Makmur Bhd [2004] 1 MLJ 257, where the Federal Court explained the seeming confusion and conflict as follows: “18 ... It is therefore clear beyond doubt that there are many factors that may constitute special circumstances and the fact that an appeal would be rendered nugatory if stay was refused is the most common one. It is an example of special circumstances. In other words, special circumstances is the genus of which nugatoriness is a species. If it has been shown that an appeal would be rendered nugatory if stay was refused what it means is that a special circumstance has been established. Thus, they cannot be treated as separate heads and one cannot be an alternative to the other. Neither can one be accepted or rejected in favour of the other as they are inter-related. See Teow Guan & Ors v Kian Joo Holdings Sdn Bhd & Ors could have withstood scrutiny if it had merely referred to nugatoriness without rejecting special circumstances. As nugatoriness is a species of special circumstances, a mere reference to it is sufficient to convey the correct legal impression. Any attempt to restrict the grant of a stay to nugatoriness, quite apart from its 30 impropriety, will severely restrict the grounds on which an applicant may rely. Learned counsel for the applicants is therefore wrong in submitting that the nugatory approach is not a matter for consideration in this case as what is relevant is only the special circumstances. He would have been correct if he had said that he was not relying on nugatoriness but on some other species of special circumstances. 19 Having expressed my views on the law, I shall now consider the motion. Both parties delved into some length on the merits of their respective case in the affidavits filed and the submission made in court. The merits of a party's case in a stay application is not a relevant matter for consideration. In this regard Lord Denning MR said in TC Trustees Ltd v JS Darwen [1969] 2 QB 295 at p 302: In this very case the defendants, in their affidavit under RSC Ord 14 did raise a plea for equitable relief. But it was overruled, and judgment given against the defendants. It is not permissible to renew it again on an application for a stay of execution … It is true that the courts have an inherent jurisdiction to stay proceedings, but only on grounds which are relevant to a stay. It does not extend to grounds which are properly matters of 31 defence of law or relief in equity, for those must be raised in the action itself. Mr Lipfriend raised a further point. He said that under RSC Ord 47 r 1, there is power, in the case of a writ of fi fa, or elegit, to stay proceedings if there are special circumstances which render it inexpedient to enforce the judgment or in case the applicant is unable from any cause to pay the money. I think that is appropriate here. The circumstances there again are circumstances which go to the enforcement of the judgment: and not those which go to its validity or correctness.” (emphasis added) [75] What is “special” would of course take its colour from the context of the facts and circumstances of each case. This being a money judgment, it is difficult to see how if the Respondent were to succeed on appeal, the appeal would be nugatory unless the Claimant is insolvent or near insolvent or that there is serious doubt as to the capacity of the Claimant to repay back the judgment sum. [76] Nothing coming close to that had been averred or alluded to by the Respondent. It has been said that “special circumstances”, as the phrase implies, must be special under the circumstances as distinguished from the ordinary circumstances. It must be something exceptional in character, 32 something that exceeds or excels in some way that which is usual or common. [77] Learned counsel for the Respondent said that the Respondent is a subsidiary of a Public listed Company (“PLC”) and that they run the risk that their credit-worthiness would be affected by non-payment of the debt. [78] That I am afraid cannot amount to a special circumstance. This Court show not show any preference to a PLC where Payment of a judgment debt is concerned as they should be held to the same standard as other private companies and non-listed entireties. [79] Likewise the fact that the listed entity has to make an announcement with Bursa Kuala Lumpur, the exchange body, is not a special circumstance. It is for the parent company which is a listed entity to conduct its business in compliance with Bursa Kuala Lumpur rules. Payment should ordinarily follow a judgment debt obtained against any debtor and if payment is made, then there is no reason why they should fear making any announcements. I doubt the amount to be paid of RM134,869.25 is material enough for a public announcement to be made. Assuming an announcement has to be made, it would enhance their corporate credibility and image in making payments of judgment debt promptly as part of good corporate governance that Bursa Kuala Lumpur and the Securities Commission have been trying to promote. 33 [80] As I understand a Public Announcement, the whole material disclosure has to be made and that would include the fact that they are appealing to the Court of Appeal and that their set-off/cross claim far exceeds the sum adjudicated. [81] The dicta of the Court of Appeal in Ming Ann Holdings Sdn Bhd v Danaharta Urus Sdn Bhd [2002] 3 MLJ 49 resonates well with the recriminations of the Respondent at pages 70-71 as follows: “Next, the applicant talks about 'special circumstances' which, in fact, is an argument that if the stay is not granted, the appeal, if successful will be rendered nugatory, or that the applicant, if successful in the appeal, cannot be restored to its former position. It must be remembered that the judgment is a money judgment. There is not even an allegation, what more evidence, that the respondent is not in a financial position to repay the applicant if it need be. And bear in mind that the respondent is Danaharta Urus Sdn Bhd. The grounds relied on by the appellant are nothing more than 'fear of losing'; fear of losing business, fear of losing customers, fear of losing suppliers, fear of losing goodwill, fear of not being able to collect its debts from third parties, in case the appellant company is wound up. 34 All that the applicant has to do to avoid such 'fears' is to settle the judgment debt. The winding up petition is still pending. The applicant still has every opportunity to contest it. Whatever it is, those factors are not 'special circumstances' (if we want to use the term) nor do they show that the appeal, if successful, will be rendered nugatory (if we prefer that term). They are nothing unusual. Execution is a natural process after obtaining a judgment and winding up is one of them.” (emphasis added) [82] In Ming Ann Holdings case (supra) a winding up Petition had been filed. Here I seriously doubt if there is a need for the Claimant to do that because the Adjudicated Sum is not a substantial amount as to apply the pressure en-route to winding up. [83] Work had been done by the Claimant and for which the Respondent had admitted but the Respondent was not prepared to pay on account of what it claimed in that it had a contractual set-off from another project in KL Sentral and Sandakan. That is already the subject of 2 separate Adjudications and those proceedings and the application therefore to this Court must be allowed to run its course. 35 [84] The Respondent argued, somewhat audaciously, that there is no prejudice suffered by the Claimant if stay is granted for what is lost is mere interest on the judgment sum. I must say here that to be kept out of the judgment sum is prejudice enough for the Claimant who has done the work and borne the brunt of the sweat and toil. Its workers have to be paid and so are the materials. Even if these have been paid from other sources of funds the Claimant as Judgment Creditor now is being deprived of the financial Resources that otherwise be at its disposal to be channeled to other projects or put to other use. [85] The whole purpose of CIPAA is to promote cash flow especially for the contractors who have done their work and are out of pocket. Its long title reads: “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.” [86] This being a judgment that has proceeded from a CIPAA Adjudication, this Court is perfectly entitled to ensure that the purpose of CIPAA is not skirted by Stay applications especially when the Respondent here has admitted to the debt. 36 [87] The Notice of Application in Enclosure 13 for Stay of the Enforcement Order in the OS for enforcement of the Adjudication Decision would have to be dismissed. [88] What is more perplexing is that, it has now transpired, that in the other 2 Adjudications the Respondent is using the same Defence of set-off and cross claim in this Project and Contract as Defence in those 2 Adjudications. [89] That being the case, there is all the more reason why the separate Adjudications should be proceeded with in the Adjudicators taking into consideration the set-off and cross claim raised in the contract which dispute is being adjudicated. Otherwise one would have a case of the fox chasing its tail and never getting round to resolving the whole problem because the whole big picture is not presented. Pronouncement [90] For the reasons given above, I had dismissed the application to set aside the Adjudication Decision with costs of RM3,000.00 to the Claimant and consequently and correspondingly I had allowed the Claimant’s application to enforce the Adjudication Decision with costs of RM3,000.00 to the Claimant. 37 [91] The Notice of Application in Enclosure 13 for Stay of the Enforcement Order in the OS for Enforcement was also dismissed with costs of RM5,000.00. Dated: 26.1.2018. - Signed - YA LEE SWEE SENG Construction Court High Court Kuala Lumpur For the Plaintiff in : RK Sharma together with Amrit Pal WA-24C-98-06/2017 : Singh and Phang Zheng Jack And for the Defendant in : (Messrs Amrit & Company) WA-24C-124-07/2017 : For the Defendant in : WA-24C-98-06/2017 : Michael Koh and SY Lim And for the Plaintiff in : (Messrs Azman Davidson & Co) WA-24C-124-07/2017 :