SETIA UTAMA LRT 3 SDN BHD (Sebelum ini dikenali sebagai MRCB George Kent Sdn Bhd) v 1. ) SIEMENS MOBILITY SDN BHD (WA-24C-22-01/2025)

SIEMENS MOBILITY SDN BHD (Company No.: 201801003565 / 1265579-W)

SIEMENS MOBILITY GMBH (Company No.: HRB 237219)

RASMA CORPORATION SDN BHD (Company No.: 198201000174 / 79918-W) …DEFENDANTS Heard Together With S/N cy1789h8qkG4YhGduuQ4tw IN THE HIGH COURT OF MALAYA AT KUALA LUMPUR IN THE FEDERAL TERRITORY, MALAYSIA ORIGINATING SUMMONS NO.WA-24C-28-02/2025 In the matter of an Adjudication with reference no.: AIAC/D/ADJ-5504- 2024 pursuant to the Construction Industry Payment and Adjudication Act 2012 between Siemens Mobility Sdn Bhd, Siemens Mobility GmbH and Rasma Corporation Sdn Bhd Consortium as Claimant and Setia Utama LRT 3 Sdn Bhd as Respondent And In the matter of an Adjudication Decision dated 6.1.2025 issued by the learned Adjudicator Janet Chai Pei Ying And In the matter of Section 28 of the Construction Industry Payment and Adjudication Act 2012 And S/N cy1789h8qkG4YhGduuQ4tw In the matter of Order 7, Order 28 and Order 69A of the Rules of Court 2012 and subrules therein

SIEMENS MOBILITY SDN BHD (Company No.: 201801003565 / 1265579-W)

SIEMENS MOBILITY GMBH (Company No.: HRB 237219)

RASMA CORPORATION SDN BHD (Company No.: 198201000174 / 79918-W) …PLAINTIFFS AND SETIA UTAMA LRT3 SDN BHD (Formerly known as MRCB George Kent Sdn Bhd) (Company No. 201501033880 / 11592000-W) …DEFENDANT GROUNDS OF JUDGMENT (Enclosure 1) [1] In Originating Summons No. WA-24C-22-01/2025 (OS 22), Setia Utama LRT3 Sdn Bhd (“SULSB”) had applied to this Court under enclosure 1 (Enclosure 1) to set aside the Adjudication Decision dated 6.1.2025 (“AD”) given in favour of Siemens Mobility Sdn Bhd (“SMSB”), Siemens Mobility GMBH (“SGMBH”) and Rasma S/N cy1789h8qkG4YhGduuQ4tw Corporation Sdn Bhd (“RC”) who are collectively an unincorporated association (Consortium) pursuant to sections 15 (b) and (d) of the Construction Industry Payment an Adjudication Act 2012 (CIPAA 2012). SULSB has also applied under this OS 22 in Enclosure 27 for a stay application (Enclosure 27) pending Enclosure 1 being disposed. [2] On the other hand, Originating Summons No. WA-24C-28-02/2025 (OS 28) is in turn an application for the enforcement of the AD by the Consortium in accordance with section 28 CIPAA. [3] Enclosure 1 in OS 22 is supported by inter alia the following grounds:-

3.1 the AD is liable to be set aside as 3.1.1 the AD was given in excess of the Adjudicator’s jurisdiction 3.1.2 the Adjudicator has not acted independently or impartially 3.1.3 the Adjudicator has acted in breach of natural justice

3.2 there has been a denial of natural justice occasioned to SULSB, if judicial intervention is not allowed, the AD will cause severe miscarriage of justice and serious prejudice to SULSB [4] Whereas Enclosure 27 in OS 22 is based on inter alia the following grounds

4.1 The Adjudicator has delivered the AD on 6.1.2025 in favour of the Consortium S/N cy1789h8qkG4YhGduuQ4tw 6 4.2 The Consortium is pursuant to sec 28 CIPAA making this application to enforce and give effect to the AD

4.3 All the statutory requirements under sec 28 CIPAA has been complied with by the Consortium Brief Background Facts [5] By Articles of Agreement dated 21st February 2020 (“AA”), the Plaintiff (as the main contractor) appointed the 1st, 2nd, and 3rd Defendants (who collectively formed the Consortium), as a works package contractor (“WPC”) to carry out and complete works for a project known as “Construction and Completion of Light Rail Transit Line 3 (LRT3) from Bandar Utama to Johan Setia” (“Project”). [6] The works included, amongst others, the design, manufacture, supply, delivery, installation, testing and commissioning of the following (“Works”):

Signalling and Train Control System (“S&TCS”); and

(ii)

(ii) Intrusion Preventive System (“IPS”) for the Project where the route is a double track system comprising of 37km above ground and 2km of tunnel sections with 20 elevated stations at the main line from GS01 to GS10 (“Main Line”). The depot is located at the end of the route line near Station 26: Johan Setia (“Depot”). [7] The contract documents consisted of the following (“Contract”):

AA;

(ii) Conditions of Contract (including the appendices) (“COC”); S/N cy1789h8qkG4YhGduuQ4tw

(iii) Specifications;

(iv) Pricing Document; and

any other documents incorporated by reference in any of the foregoing documents. [8] Pursuant to the Contract, the Defendants were to commence and complete the Works by 30th November 2023. [9] However, the Defendants by their own action are alleged to have caused delay to the Works, including but not limited to the following:

The Defendants’ late procurement or readiness of the copper and fibre optic cable for the Main Line, and the late development of the project software for the Works;

(ii) The Defendants’ self-inflicted delays, specifically: access dates.

The late software design by the Defendants.

(iii) These delays were concurrent and/or superseded any alleged delays to the TRIP access; S/N cy1789h8qkG4YhGduuQ4tw

(iv) The Defendants were neither ready for the TRIP actualised dates nor the Key Dates specified under Appendix D, Particular Specifications of the COC. Since the actualisation of method statements, material procurements and other preparations will always precede site access, the Defendants’ deficiencies to this end ought to be included in any delay analysis to demonstrate the real driving factors behind the delay;

The Defendants’ actual progress was substantially below the scheduled rate of progress due to their self-inflicted delays, and they were placed on notice of this at the material time. [10] By a letter dated 29th August 2022, the Defendants submitted to the Plaintiff a notification of delay for an extension of time (“EOT”) and a notice of claim for direct loss and expense (“NOC 3”). The Defendants alleged that the delay for the Main Line Works was caused by the late handover of the TRIP access by the Plaintiff and/or the Plaintiff’s WPC in charge of the Trackwork. [11] By a letter dated 6th September 2022 to the Defendants, the Plaintiff rejected NOC 3 on the basis that the Defendants delayed the Depot Works which disentitled them for an EOT. Further, the Plaintiff stated, among others, that substantial work remains in the Depot area before Works can proceed at the Main Line, and that these outstanding works are contributing to the slow progress in both areas. S/N cy1789h8qkG4YhGduuQ4tw [12] Numerous discussions then took place between the Defendants and the Plaintiff on the purported delay. The Defendants continued to submit notices to claim for EOT and NOC 3. These notices were repeatedly rejected by the Plaintiff, who maintained that the delays to the Works were caused by the Defendants’ own actions. [13] By a letter dated 4th August 2023, the Plaintiff informed the Defendants of the following:

At all material times, the Plaintiff had informed the Defendants that their request for an EOT failed to comply with the condition precedent provisions under the Contract;

(ii) The purported delay events cited by the Defendants were not the driving or dominant delays to the Works;

(iii) Alternatively, even if NOC 3 complied with the condition precedent provisions under the Contract, the issues raised by the Defendants could only be claimed, viewed and assessed as a mere potential concurrent delay;

(iv) However, in the interest of ensuring a successful project delivery, the Plaintiff decided only on this occasion to waive the enforcement of the condition precedent provisions under the Contract, which applied solely in respect of the EOT application, but not in respect to any additional payment under the Contract and/or law; S/N cy1789h8qkG4YhGduuQ4tw

This waiver should not be construed as establishing any precedent for waiver and/or estoppel;

(vi) Strictly on a goodwill basis and not pursuant to the provisions of the Contract, the Plaintiff granted the Defendants an EOT until 31st July 2024;

(vii) Based on the foregoing, the Plaintiff issued the certificate for EOT on 7th August 2023. [14] Thus the Plaintiff’s claim that the granting of the EOT does not fall within the purview of Clause 44 of the Contract nor does it give rise to any entitlement to loss and expense. [15] The Plaintiff further contends that even if the delay for the Works were caused by the late handover of the TRIP access by the Plaintiff and/or the Plaintiff’s WPC, this alleged delay would in any event amount to an excusable event under Clause 44.3(d) of COC which states as follows: “If in the opinion of the Contractor [the Plaintiff] the Completion of the Works is likely to be delayed, or in the event that the Works have been delayed beyond the Key Dates and/or Date for Completion (as applicable) due to any or more of the following events: … (d) by reason of delay in access or possession or part or parts of the Site resulting from any delay or failure by the Contractor [the Plaintiff] to give access or possession of those part or parts of the Site in accordance with Clause 38.0 and such delay affects the Key Dates and/or Date for Completion (as application) … Then the Contractor may determine and grant a fair and reasonable extension of time for completion of the Works by the Key Dates and/or Date for Completion (as applicable) by issuing a “Certificate of Extension of Time”.” S/N cy1789h8qkG4YhGduuQ4tw [16] It is also contended by the Plaintiff that if Clause 44.3(d) applies, the EOT granted by the Defendant fully compensates the Consortium for any alleged losses and absolves the Defendant from any claims pursuant to Clause 44.9, which states as follows: “If at any time during Execution of Works, the Works or any part thereof has been materially affected: days from the date of the progress of the Works or any part thereof is materially affected by the said delay as notified by the Works Package Contractor to the Contractor, and the Works Package Contractor has incurred direct loss and/or expense and for which the Works Package Contractor would not be reimbursed by a payment made under any other provision in the Contract, then the Works Package Contractor shall give notice in writing to the Contractor of its intention to make a claim for costs which shall be submitted in accordance with Clause 47.0. Such entitlement to costs and expenses shall be deemed to be in full compensation and satisfaction for any claim, damage, loss and/or expense sustained or sustainable by the Works Package Contractor in respect of any matter or thing in connection with which such extension shall have been granted.” [17] The Plaintiff further alleges that pursuant to Clause 44.11 of the COC, a delay under Clause 44.3(d) is non-compensable: “Save as provided in the Contract, any extension of time granted shall be deemed to be in full compensation and satisfaction of any loss sustained or sustainable by the Works Package Contractor [the Consortium] in respect of any matter or thing in connection with which such extension shall have been granted and every extension shall exonerate the Contractor [the Plaintiff] from any claim or demand on the part of the Work Package Contractor S/N cy1789h8qkG4YhGduuQ4tw [the Consortium] for the delay during the period of such extension but not for any delay continued beyond such period.”(emphasis added) Findings & Analysis Status of Consortium [18] After reading the parties written submissions and hearing the parties respective counsels submit orally before this court, the following are my grounds in coming to my decision. [19] Setia Utama LRT3 Sdn Bhd (“SULSB”) has contended that Siemens Mobility Sdn Bhd (SMSB), Siemens Mobility GMBH (“SGMBH”) and Rasma Corporation Sdn Bhd (“RC”) who are collectively an unicorporated association (Consortium) is not a valid ‘unpaid party’ and/or ‘claimant’ under CIPAA as it is an unincorporated group of legal entities and thus lacks the capacity or locus standi to initiate the adjudication under CIPAA and thus the AD should be set aside as the Adjudicator had acted in excess of her jurisdiction. [20] In reply SMSB, SGMBH and RC has amongst others raised the fact that the individual members of the Consortium are expressly named as the unpaid party and/or Claimants in the Payment Claim and Notice of Adjudication. [21] I note after analysing the evidence before me that the Consortium was formed by SMSB, SGMBH and RC but that the Consortium per se is not a legal entity which has been incorporated under the Companies Act 2016 or under the law of partnership but instead S/N cy1789h8qkG4YhGduuQ4tw consists of the said 3 parties i.e SMSB, SGMBH and RC as separate independent legal entities. [22] It is also observed by this Court that the said SMSB, SGMBH and RC had entered into the Contractual Arrangements with SULSB as separate and distinct parties / legal entities as they had all signed the said Contract individually in their own personal capacities. [23] A perusal of the AA (Articles of Agreement) in particular and the Contract in general has shown prima facie amongst others that

23.1 each of SMSB, SGMBH and RC respectively had distinct and clearly delineated scope of works and duties

23.2 SMSB, SGMBH and RC have to submit separate invoices for their respective works [24] The law is trite that an unregistered Consortium, as in the case before me, is not a legal entity and that it lacks the legal capacity to initiate legal proceedings which in my view will include adjudication proceedings under the CIPAA regime. I rely on MMC Oil & Gas Engineering v Tan Bock Kwee [2016] 2 MLJ 428 where it was held by the Court of Appeal after perusing the evidence before it that “ …the consortium is not a legal entity that could enter into a contract with the plaintiff. Neither is it a partnership”. S/N cy1789h8qkG4YhGduuQ4tw [25] I further rely and apply the case of KLIA Associates Sdn Bhd & Anor v Mudajaya Corporation Berhad and another summons [2020 ] MLJU 1433 where Lim Chong Fong J (as he then was) held “.. [27] With regard to the Consortium’s first ground of challenge in OS1, it is common ground that KLIAA-KLIACS Consortium is not a legal entity. It is neither an incorporated company under the Companies Act 2016 nor registered with the Companies Commission of Malaysia. It is also not a partnership registered under the Registration of Businesses Act 1956. [28] KLIAA-KLIACS Consortium is merely a name used for convenience by KLIA Associates Sdn Bhd and KLIA Consultancy Services Sdn Bhd operating together in consortium. [29] It is trite law as seen from the cases of Haji Abdul Rahman v Government of Malaysia & Anor [1966] 2 MLJ 174, Bencon Development Sdn Bhd v Majlis Perbandaran Pulau Pinang & Ors [1999] 2 MLJ 385, Vestime Corporation Sdn Bhd v YBLE Resources Sdn Bhd & Ors [2006] 3 MLJ 554, Selvaraju a/l Ponniah v Suruhanjaya Perkhidmatan Awam Malaysia & Anor [2007] 7 MLJ 1 and Tiffany Chau v Jabatan Imigresen Malaysia & Anor [2020] 8 MLJ 503 that an action could not be taken against a body that has no legal status. This is in my view applicable to all legal proceedings including arbitration proceedings as well as statutory adjudication under the CIPAA. [30] It therefore follows that the correct and proper parties must be brought in and named in all legal proceedings. Only cases commenced in court proceedings involving a partnership may use the S/N cy1789h8qkG4YhGduuQ4tw name of the partnership as an alternative to the names of the partners; see Order 77 Rule 1 of the Rules of Court 2012.” [26] In the case of China Metallurgical Construction (M) Sdn Bhd v Galaxy Plumbing Construction & Anor case [20234] CLJU 95, this Court had in a matter involving a slightly different context i.e a party who was a sole proprietorship, held “[8] Thus, it is settled law, as can be seen apart from the above case of Tan Thoo Yow and the plethora of cases which have inter alia been referred to in Global Built Sdn Bhd (supra), that the sole proprietor of GPC must sue in his own name i.e in his own name and thereafter in brackets the name of his firm of which he is a sole proprietor as he is the correct and proper party to initiate all legal proceedings including arbitration proceedings as well as statutory adjudications under the CIPAA. There should be no exceptions on this point with regards matters under CIPAA.” [27] Applying a similar analogy from China Metallurgical Construction (M) Sdn Bhd (supra) to the matter before me, I hold that the correct and proper party to initiate all legal proceedings including arbitration proceedings as well as statutory adjudications under CIPAA must be a legal entity recognised by the law. There should be no exceptions on this point with regards matters under CIPAA. [28] In CIPAA, it is provided that S/N cy1789h8qkG4YhGduuQ4tw a. under sec 4 the definition of a ‘claimant’ is “… an aggrieved party in a construction contract who initiates adjudication proceedings”

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.

The parties to adjudication may at any time by agreement in writing extend the jurisdiction of the adjudicator to decide on any other matter not referred to the adjudicator pursuant to sections 5 and 6. [31] In other words, section 27 limits the Adjudicator’s jurisdiction to a matter referred to adjudication by the parties pursuant to sections 5 and 6 of CIPAA i.e an ‘unpaid party’ and a ‘non paying party’. Thus there must exist an ‘unpaid party’ who is, and I quote the Court of Appeal in MMC Oil & Gas Engineering Sdn Bhd V Tan Bock Kwee & Sons Sdn Bhd [2016] 2 MLJ 428 and “…not an entity known in law in that it is not capable of suing or being sued, it cannot therefore comprise a party to the action”. [32] An examination of the Notice of Adjudication, Adjudication Claim and the Payment Claim as reflected in the documents before me shows that the ‘Claimant’ and ‘unpaid party’ respectively was stated or reflected expressly to be in the following manner “Siemens Mobility Sdn Bhd (“SMSB”), Siemens Mobility GMBH (“SGMBH”) And Rasma Corporation Sdn Bhd (RC) Consortium” respectively. I thus hold that the names of the respective parties in the name of the Consortium S/N cy1789h8qkG4YhGduuQ4tw would in my view mean that the ‘Consortium’ was the sole ‘unpaid party’ or ‘Claimant’ and that accordingly it does not mean that each of the Defendants were individually named in the Adjudication proceedings. [33] In the circumstances, it is this Court’s decision that the adjudication proceedings were not properly initiated by the proper party and thus the same renders the CIPAA proceedings as being null and void ab initio. I therefore hold that the Adjudicator had acted in excess of his jurisdiction when he accepted the Consortium aa being a proper party under CIPAA. [34] To support my above findings, I also rely on and respectfully quote the authority of Terminal Perintis Sdn Bhd v Tang Ngee Hong Construction Snd Bhd [2017] 1 LNS 177 where Lee Swee Seng J (as he then was) had held “[73] If it is a question of the competence of the Adjudicator as in he has not been properly appointed in that what purported to be a Payment Claim, is not on the face of it a Payment Claim or that the Payment Claim was not served or that it was not expressly stated as a claim made under CIPAA, then this Court would be at liberty to set aside the Adjudication Decision on ground of excess of jurisdiction. This is not only because the Adjudicator cannot decide on his own competence or capacity to adjudicate when the very validity of his appointment is questioned but also that it is part of the legislative intent that if there is non-compliance with a basic and essential requirement of CIPAA with respect to a Payment Claim under section 5, then the S/N cy1789h8qkG4YhGduuQ4tw Adjudication Proceedings and the Decision made would be a nullity. Alleged Lack of Proper Authorisation [35] SULSB had further submitted that there is a lack of proper authorisation from RC at the time of the Payment Claim and the Notice of Adjudication and that the legal firm of Messrs Azman Davidson (ADC) had also lacked authorisation from RC to act on behalf of the Consortium resulting in all the cause papers in the adjudication proceedings being invalid. As a result of the same it was argued that the Adjudicator had wrongly assumed jurisdiction and that each member of the Consortium could then file a claim against SULSB for the amount awarded to the Consortium. [36] With respect based on my decision that the Consortium herein lacks the capacity to sue or be sued, I hold that the contentions in the preceding paragraph are now academic. Be that as it may I will address them for the sake of completeness and more so should I be wrong in my decision on the legal capacity of or lack of it, of the Consortium. [37] I have found that the Adjudicator when deciding on the preliminary objection raised by SULSB on the issue of the lack of authorisation from RC for the Consortium to act in the Adjudication, had decided that the Consortium had the authorisation from its members to initiate the Adjudication, “…albeit not from the start for all embers, and in any case given that they have now confirmed the authorisation, they have S/N cy1789h8qkG4YhGduuQ4tw ben so properly named as the ‘unpaid party’ under sec 4 CIPAA and as the ‘Claimant’ under sec 8 CIPAA” [38] From the chronology of events before this Court, I find that SULSB had written on 20.9.2024 to RC asking if they had authorised the initiation of the Adjudication proceedings by the Consortium to which SULSB received a reply on 25.9.2024 stating that they had not authorised the same as per the Consortium Agreement and that only on 8.11.2024 was there a belated authorisation for the Adjudication from RC after SMSB had ‘seeked clarification’ from RC sometime on 1.121.2024 asking RC whether it wished to continue or withdraw from the Adjudication. [39] A careful analysis of the above said correspondences would, with respect, be evidence that at the time of the Notice of Adjudication , RC had not been authorised for the initiation of the said Adjudication as required under the Consortium Agreement. Thus, there is in my decision a complete lack of locus standi by the Consortium for the initiation of the said Adjudication at the material time. [40] I also find, with respect, that the Adjudicator had made an error when he had agreed that the retrospective ratification of the authorisation by the members of the Consortium was valid as I hold that a belated authorisation by RC cannot validate such actions retrospectively or clothe the Consortium with legal authority to file the Adjudication and I have not been shown any authority by the lawyers for the Consortium to support such actions as being valid and recognised by the law. In fact, the Court of Appeal in Bumiputera Commerce Bank bhd v Augusto Pompeo Romei & Anor [2014] 3 MLJ 672 which had S/N cy1789h8qkG4YhGduuQ4tw quoted with approval an earlier Court of Appeal case in Luggage Distributors (M) Sdn Bhd v Tan Hor Teng & Anor [1995] 1 MLJ 719; [1995] 3 CLJ 520 had held that “…neither consent nor waiver may confer jurisdiction where none exists: and it is not in the interests of justice that a judgment of a court lacking jurisdiction should be permitted to stand.” [41] I therefore find that the Adjudicator had made a ‘clear error’ and acted in excess of jurisdiction on this issue of the lack of proper authorisation from RC for the Consortium to act in the Adjudication. Lack of Authorisation by Consortium’s lawyer [42] With regards the contention that there is a lack of authorisation by the Consortium’s lawyer, Messrs Azman Davidson & Co (ADC), I hold that from the particular set of facts before me, that ADC did not have the authority to act for the Consortium. To this I agree with counsel for SULSB that the authority to initiate legal proceedings can only come from a properly constituted and recognised body, see Malairaju A/L Ramasamy Velar v Malayan Saiva Sidthanta Sangam & Anor [2017] MLJU 1452. [43] Thus, as I have already decided that the Consortium is in the matter before me not a properly constituted and recognised body, ADC has no authority to act for the same. S/N cy1789h8qkG4YhGduuQ4tw No Cause of Action in CIPAA [44] From my aforesaid findings above, I therefore hold that there is no cause of action under CIPAA for the Consortium’s loss and expense claim as it does not come, and I reiterate, under sections 4 and/or 5 of CIPAA. [45] It is further my view that the learned Adjudicator was fundamentally wrong in awarding the Consortium one monetary award a. without stating expressly, the apportionment to each of its members thereto which effect would be that each of the Defendants respectively herein would be entitled to enforce and claim the entire Adjudicated Sum against SULSB jointly and severally and would be contrary to the Contract; b. when I note from the IPA’s no 24 to 27 and the invoices nos. and 27, that each of the Consortium members were claiming different amounts; and c. consequently, the AD as it stands would be prejudicial to SULSB [46] On the above grounds, I therefore hold that the Adjudicator had acted in excess of her jurisdiction has been occasioned. Decision [47] In the circumstances, it is my decision that Enclosure 1 under OS 22 is to be allowed and I will grant Order In Terms for prayer 1 with costs S/N cy1789h8qkG4YhGduuQ4tw as per prayer 2. Enclosure 27 is therefore academic and no costs will be awarded for the same. [48] I will therefore have to dismiss enclosure 1 of OS 28 with nominal costs. Dated: 25th day of August 2025 sgd. NADZARIN WOK NORDIN HIGH COURT JUDGE CONSTRUCTION COURT 1 COUNSEL FOR THE PLAINTIFF: Dhinesh Bhaskaran, Alexius Simon Lee Kim Soon, Serena Isabelle Azizuddin, Michelle Lim Wan Foong, Wong Jia Jing and Eg Sze Pei (Messrs Shearn Delamore & Co.) COUNSEL FOR THE DEFENDANT: Rajendra Navaratnam, Allen Cheng Peng Han, Georgina Lim Ern Ling and Joel Low Seong Lin (Messrs Azman Davidson) S/N cy1789h8qkG4YhGduuQ4tw