shall be presumed to have been effected at the time when the letter would have been delivered in the ordinary course of the post.” [79] By analogy the email is presumed to have been received when it would have arrived at the server of the recipient and that was confirmed at 7.26 pm on 21.5.2018 by the Adjudicator though emailed at 7.11 pm on 21.5.2018. There is no evidence or suggestion even that the Respondent Skyworld had received it not on the same day 21.5.2018, as the Adjudication Reply was emailed in one email at the same time to the Respondent as well as to the Adjudicator. [80] If there was indeed any genuine agreement between the parties for the effect of document service after the business hours, the parties would have, consistent with that agreement, incorporated such a term in written words as part of the Adjudicator’s direction and/or order in Form 6. [81] It is now clear that the Claimant Zalam is relying on the boilerplate text on Form 6 to make their case along the way. Form 6 was printed on the Adjudicator’s legal firm’s letterhead. The letterhead consisted of the Adjudicator’s firm standard boilerplate working hours. There was a printed text on the top left-hand corner of the 1st page which stated that the firm’s working hours are “MONDAYS – FRIDAYS 9.00 am to 6.00 pm”. [82] Following that, Zalam argued that the Adjudication Reply served by email on 21.5.2018 at 7.11 pm, was only deemed to be served on 22.5.2018. The reason given was that the Adjudication Reply was served at 7.11 pm after the working hours. Therefore, the statutory prescribed 45 working days after the service of the Adjudication Reply (start counting from the next day i.e. 23.5.2018 after the alleged date of service on 22.5.2018) would be on 26.7.2018. Premised on this, Zalam contended that the Adjudication Decision delivered on 26.7.2018 was made within time. In 23 fact this was the argument of Zalam through their solicitors Messrs Baskaran in a letter dated 31.7.2018, which is after the delivery of the Adjudication Decision. See: Exhibit LTH -18, pages 336 to 337, Skyworld’s Affidavit for the Setting Aside Application. [83] The Adjudicator, post the Adjudication Decision, also argued that the Adjudication Reply was served after the office hours, 7.11 pm. Therefore, it was deemed to have been served on the next day. See: Exhibit LTH-18, pages 345 to 347, Skyworld’s Affidavit for the Setting Aside Application. [84] As both the justifications of Zalam and the Adjudicator were written on letters dated 31.7.2018 and 2.8.2018 respectively, which is post the delivery of the Adjudication Decision, this Court would proceed cautiously as apparently they were written with the benefit of hindsight; the Adjudication Decision being delivered on 26.7.2018. The Adjudicator did not state by his letter of 2.8.2018 to Skypark that he was relying on the agreement of the parties that service by email after 6.00 pm is considered served the next day or that he had brought this pre-printed working hours in his firm’s letterhead to the attention of the parties. [85] It would be apposite to state here that the objection taken by the Respondent Skyworld had been in response to the attempt by the Adjudicator to correct what he considered to be a computational or typographical error in his Decision under section 12(7) of the CIPAA. In any event if an Adjudication Decision is void by virtue of section 12(3) of the CIPAA, such an objection may be raised at any time by way of a declaration sought to that effect as a prayer in the Setting Aside Application. [86] There is merit in the submission of learned counsel for Skyworld derived as it is from the classic statement of Lord Ellenborough CJ in Robertson v French [1803] 4 East 130 where his Lordship favoured the 24 written words of the parties over the printed text in a document as follows at paragraph 136: “……if there should be any reasonable doubt upon the sense and meaning of the whole, to have a greater effect attributed to them than to the printed words, inasmuch as the written words are the immediate language and terms selected by the parties themselves for the expression of their meaning, and the printed words are a general formality adapted equally to their case and that of all other contracting parties upon similar occasions and subjects……” (emphasis added) [87] More recently this rule was cited with approval in the English House of Lords case of Homburg Houtimport BV v Agrosin Ltd (“The Starsin”) [2003] 2 All ER 785 where it was held that type written language takes precedence over printed material in a document. Lord Bingham of Cornhill speaking for the bench observed at paragraph 11 of his judgment as follows: “……it is common sense that greater weight should attach to terms which the particular contracting parties have chosen to include in the contract than to pre-printed terms probably devised to cover very many situations to which the particular contracting parties have never addressed their minds. It is unnecessary to quote the classical statement of this rule by Lord Ellenborough in Robertson v French (1803) 4 East 130, 136, cited with approval by Lord Halsbury in Glynn v Margetson [1893] AC 351, 358 and by Scrutton LJ in In re an Arbitration between L Sutro & Co and Heilbut, Symons & Co [1917] 2 KB 348, 361-362……” (emphasis added) [88] Assuming for a moment that the intention of the Adjudicator when issuing his directions for the Adjudication proceedings in Form 6 was to incorporate the working hours of 9.00 am to 6.00 pm as the hours within 25 which the Adjudication documents are to be served and that service after 6pm is deemed served on the next day, then the Adjudication must bring the pre-printed working hours on the letterhead to the attention of the parties. [89] Learned counsel for Skyworld relied on Chitty on Contracts (29th Edition, Thomson Sweet & Maxwell)(2004) where the learned author at paragraph 12.017, page 715 opined that: “… Printed notices. Where printed notices are exhibited, it may be sufficient if the party to be bound has, before or at the time of making the contract, had his attention drawn to the notices, or received a printed document which refers him to the notices, in circumstances which make it clear to him that the contract is subject to the conditions contained in the notices.” (emphasis added) [90] The learned author went on to elaborate in the same paragraph and referred to Denning L.J (as he then was) in Harling v Eddy [1951] 2 K.B. 739 as follows: “…It has, however, been stated by Denning L.J. that: “The party who is liable at law cannot escape liability by simply putting up a printed notice, or issuing a printed catalogue, containing exempting conditions. He must go further and show affirmatively that it is a contractual document and accepted as such by the party affected.” In many situations it will be sufficient to display a prominent public notice which can be plainly seen at the time of making the contract. But the issue of catalogue or brochure which states that the contract to be concluded will be subject to exempting conditions may not be sufficient to make the conditions terms of the contract if further steps to incorporate the conditions are not taken at the time the contract is concluded…” 26 [91] It must not be forgotten that when an Adjudicator is appointed, he is appointed in his personal capacity as an Adjudicator by the AIAC as the appointing authority and not by virtue of the fact that he is or is not an advocate and solicitor. It is common knowledge that Adjudicators can be drawn from other professionals like engineers, architects and surveyors. The use of the letterhead of the firm is not encouraged as the appointment has nothing to do with the legal firm in which the Adjudicator may be practising. Otherwise when he ceases to practice law then his appointment would have been revoked which is not the case. [92] There is also a need to preserve confidentiality in the Adjudication proceedings as enjoined under section 20 of the CIPAA with respect to non-disclosure of any statement, admission or document made or produced for the purposes of adjudication to another person, safe for the permitted exceptions. [93] This is further underscored by paragraph 5 of Schedule II of the Standard Terms of Appointment of an Adjudicator under the AIAC Adjudication Rules and Procedure which reads: “The adjudicator shall not assign, delegate or obtain legal or technical assistance related to his work under the Act and Regulations without the approval of the parties.” [94] The UK Courts had held that the jurisdiction of the Adjudicator expired on the expiry of the statutory time limit for making his Decision. As the Decision was made out of time, the Adjudicator had acted out of his jurisdiction or exceeded his jurisdiction granted to him under the CIPAA wherein he was required to deliver his Decision within the strict timeframe as provided under section 12(2) of the CIPAA. The Decision delivered one day late was therefore void and unenforceable under section 12(3). See: Ritchie Brothers (PWC) Ltd v David Philp (Commercials) Ltd [2005] 27 BLR 384 at paragraph 46 and Epping Electrical Co Ltd v Briggs & Forrester (Plumbing Services) Ltd [2007] BLR 126. Pronouncement [95] The Adjudication Decision delivered a day late on 26.7.2018 was void under section 12(3) of the CIPAA, I had thus granted the declaration prayed for by Skyworld. Correspondingly the Adjudication Decision was set aside as the Adjudicator had acted in excess of his jurisdiction which expired on midnight of 25.7.2018. With that the Enforcement Application had to be and was dismissed. [96] Learned counsel for Skyworld, appreciating that the Stay Application had become academic, withdrew the said Stay Application and so the Court struck it out. [97] As for costs of the Setting Aside Application I had allowed the Respondent Skyworld costs of RM10,000 and I made no order as to costs for the enforcement. [98] Pursuant to section 19(6) of the CIPAA, I had further ordered that all the fees and expenses paid to the Adjudicator be refunded to AIAC forthwith for AIAC to refund to the parties. Postscript [99] For completeness I wish to state that if I had not granted the declaration sought and had not set aside the Adjudication Decision, I would nevertheless have granted an unconditional Stay of the Adjudication Decision. [100] The threshold condition for stay under section 16(1)(b) of the CIPAA had been fulfilled in that Skyworld had referred the dispute to Arbitration as provided for in the PAM 2006 Contract (With Quantities). 28 [101] The Federal Court in View Esteem Sdn Bhd v Bina Puri Holdings Berhad [2018] 2 MLJ 22 has held at paragraph 79 as follows: “.....Section 16 of the CIPAA should be treated as one of the safeguards to a likely wrongful adjudication decision and which empowers the court to find a suitable middle ground in cases where there has been clear and unequivocal errors…”. [102] Here is a case where the Adjudicator had found as a matter of fact that Skyworld’s termination of Zalam was lawful and valid as Zalam had failed to comply with the Architect’s Instructions. See: paragraph 55 item xxii) to xxiv) of the Adjudication Decision. [103] The Adjudicator had held that Zalam had persistently failed to abide by the Architect’s Instruction (A.I) No. 129, 152 and 154. It would appear that Zalam had repudiated the contract by their refusal to comply with the Architect’s Instruction. [104] The learned author in Hudsons Building and Engineering Contracts (13th Edition, Sweet and Maxwell) (2015) at page 867, paragraph 7-038 opined as follows: “(14) Failure to Complete Where a contract has been discontinued or terminated as the result of an accepted repudiatory breach by the Contractor, then subject to any express limitations, the Employer will be able to recover consequential loss in the shape of liabilities incurred to third parties, or loss of business or rentals, on the same principles as those already set out above in relation to defective work and delay in completion. In addition, of course, the Employer will on normal principles be entitled to whatever other damages result directly from the failure to complete, including most obviously the additional cost of completing by another Contractor……” 29 [105] As a natural consequence Skyworld had suffered loss and damage (“consequential loss”). The consequential loss suffered by Skyworld are broadly these: