Ssangyong Engineering & Construction Co. Ltd. v Oxley Rising Sdn Bhd (WA-24C-97-04/2022)

(a) Ssangyong Engineering & Construction Co. Ltd. [ SSY ; in Originating Summons No. WA-24C-97- O.S. No. 97 ] under s 28 of the Construction Industry Payment and Adjudication Act 2012 [Act 746] CIPAA and/ or the existing jurisdiction of the Court in accordance with Orders 69A and 92 of RC 2012 AD the learned Adjudicator, Mr. Mohanadass Kanagasabai Adjudicator judgment or order of the High Court Enforcement Application ;

(b) Oxley Rising Sdn. Bhd. [ Oxley ; in O.S. No. WA-24C-98- O.S. No. 98 ] pursuant to s 15(b), (c) and (d) of the CIPAA and O. 69A, rr. 2, 3 and 4 of the RC 2012 and/ or the inherent jurisdiction of the Court for an order that the AD be set aside with costs of the proceedings to be borne by SSY Setting Aside Application ; and

(c) Oxley (in encl. 2 of O.S. No. 98) pursuant to s 16(1)(a) and (b) of the CIPAA, O. 69A, r. 4 of the RC 2012 and/ or the inherent jurisdiction of the Court for an order that the AD be stayed pending the disposal of the Setting Aside Application or alternatively, pending final determination of the dispute between the parties by way of arbitration Stay Application [2] Prayer 3 in the Stay Application for an order for an Ad Interim Stay to be granted to stay the AD pending the disposal of the Stay Application was allowed by Lim Chong Fong J (as His Lordship then was) on 5.5.2022. [3] As for the Setting Aside Application and the Enforcement Application, the Court had considered the cause papers and the written and oral submissions by the parties and had, on 16.11.2022, allowed the Setting Aside Application with costs of RM15,000.00 and dismissed the Enforcement Application with costs of RM5,000.00. Both orders as to costs are subject to the standard allocatur fees. [4] Following the abovesaid pronouncements by the Court, Mr. Austen Pereira who appeared for Oxley, had withdrawn the Stay Application and prayed for no order be made as to cost. As this was agreed to by Mr. Ivan Loo Yew Fook, representing SSY, the Court accordingly ordered that the Stay Application be struck out with no order as to cost. [5] Naturally, SSY is aggrieved with the decision of this Court in respect of the Setting Aside Application and the Enforcement Application and has appealed against the same. The Cause Papers [6] The cause papers for each application are as follows: The Enforcement Application

(a) SSY

(b) AIS affirmed by its Senior Engineering Manager, Kim Hyun Kyung on 26.4.2022 (encl. 2);

(c) AIR its Director, Lim Chee Chong on 20.5.2022 (encl. 3);

(d) affirmed by its Cost Manager, Hwang Taeju on 3.6.2022 (encl. 4);

(e) 4 and 195 in O.S. No. 98) dated 9.6.2022 (encl. 5);

(f) tice of Intention to Use Affidavit (encls. 194, 197 and 200 in O.S. No. 98) dated 12.8.2022 (encl. 6); and

(g)

(a)

(b) dated 28.4.2022 (encl. 2);

(c) its Director, Lim Chee Chong on 28.4.2022 (encls. 4 - 189);

(d) its Senior Engineering Manager, Kim Hyun Kyung on 26.5.2022 (encl. 194);

(e)

7.6.2022 (encl. 195);

(f) No. 97) dated 9.6.2022 (encl. 196);

(g) AIR No. 2 affirmed by the same deponent on 23.6.2022 (encl. 197);

(h)

5.7.2022 (encl. 198);

(i) (encl. 200);

(j) deponent on 27.7.2022 (encl. 204);

(k) its Malaysian Branch Manager, Seo Jeong-Ho on 4.8.2022 (encl. 206);

(l) and 4 in O.S. No. 97) dated 12.8.2022 (encl. 219); and

(m) Oxley Notice of Intention to Use Affidavit (encl. 3 in O.S. No. 97) dated 15.8.2022 (encl. 221). Background Facts [7] The salient facts were narrated by this Court in Ssangyong Engineering & Construction Co Ltd v Oxley Rising Sdn Bhd [2022] MLJU 888 when SSY applied for an injunction against the call on the Bank Guarantee made by Oxley. [8] To recapitulate, SSY is a foreign company that was registered under sub-s 332(1) of the Companies Act 1965 [Act 125] since 7.2.1987 and has its business address at Suite 18.05, 18th Floor, Kenanga International, Jalan Sultan Ismail, 50250 Kuala Lumpur. Its nature of business is in construction. [9] Oxley is a private limited company which was also incorporated under Act 125 on 8.7.2013 and has its registered address at Upper Penthouse, Wisma RKT, No. 2 Jalan Raja Abdullah, Off Jalan Sultan Ismail, 50300 Kuala Lumpur. Its business address is at Unit 1-26, Level 26, Naza Tower Platinum Park, Persiaran KLCC, 50088 Kuala Lumpur. The nature of the s business is in property development. [10] Oxley is the landowner cum employer of a mixed development project known as Cadangan Pembangunan 3 Blok Menara Perdagangan Bercampur 29, 49 Dan 78 Tingkat Yang Mengandungi: I Blok Menara 1 71 Tingkat Yang Terdiri: 15 Tingkat Bilik-Bilik Hotel (Di Aras 7 Hingga Aras 21) Aras 45, 47-76) 2 Tingkat Kemudahan Penduduk (Di Aras 46 Dan Aras 77) Ii Blok Menara 2 42 Tingkat Yang Terdiri: 32) 16 Tingkat Hotel Mewah (Di Aras 33 Hingga Aras 48) 1 Tingkat Kemudahan Penduduk (Di Aras 7) Iii Blok Menara 3 1 Blok Pejabat 22 Tingkat (274 Unit) Di Aras 6 Hingga Aras 28 Di Atas Blok Podium 8 Tingkat (Di Aras Bawah Hingga Aras 7) Yang Terdiri: 2 Tingkat Kemudahan Penduduk Dan Hotel (Di Aras 6 Hingga Aras 7) 2 Tingkat Ruang Perniagaan (21 Unit) Di Aras Bawah Dan Aras 1 4 Tingkat Podium Tempat Letak Kereta (Di Aras 2 Hingga Aras 5) Dengan 5 Tingkat Besmen Tempat Letak Kereta (Di Aras B1 Hingga B5) Di Atas Lot 99, Jalan Ampang, Seksyen 58, Kuala Lumpur untuk Tetuan Oxley Rising Sdn. Bhd. Project [11] LoA Oxley had awarded the contract to SSY for the execution and completion of the Main Building and External Works for the Project for the Contract Sum of RM1,293,222,521.65, which was derived from, and based on, the rationalised Bills of Quantities as shown in Attachment B to the LoA. [12] The contract documents for the Contract are the LoA and all of its Attachments as well as the original Tender Documents. The parties have agreed to apply the Agreement and Conditions of PAM Contract 2006 (With Quantities) Including Amendments and Amplifications consisting of the Articles of Agreement and Conditions of Contract CoC [13] Item 2.1 in the LoA provides for Sectional Completion Periods depending on the Date of Commencement for the respective Sections. The overall completion period is 41 months. [14] The conflict between the parties arose when Oxley claimed that there was overwhelming delay in the works and that SSY had persistently failed to carry out the works regularly and diligently and to adhere to On the other hand, SSY alleged that Oxley did not make payments for works done and had assessed only nine out of 11 applications for extension of time EoT . SSY denied that there was excessive delay and gave the often-used reason of the Covid-19 pandemic to justify the interruption to the progress of works. [15] A notice pursuant to Clause 25.2 of the CoC to remedy the breaches as stipulated therein within the given timeline was issued by Oxley to SSY on 14.9.2021. [16] On 1.10.2021, Oxley terminated the contract and called on the Bank Guarantee. [17] SSY and Oxley issued the Notice of Arbitration and Response To The Notice of Arbitration on 8.10.2021 and 5.11.2021, respectively. [18] Meanwhile, SSY submitted its Payment Claim pursuant to s 5 CIPAA on 11.10.2021 seeking payment for the sum of RM93,687,154.46 comprising

(a) certified sums of RM63,312,895.58 under Interim Payment Certificate Nos. 28 to 34 dated between 2.4.2021 to 24.9.2021;

(b) certified retention sum of RM28,561,345.95;

(c) unlawfully deducted certified sums of RM1,812,912.93;

(d) interest and/ or financing costs to be determined; and

(e) costs of the adjudication proceedings. [19] Oxley reacted by submitting its Payment Response pursuant to s 6 CIPAA on 25.10.2021 and countered that SSY has miscalculated the claim against SSY was attached as Appendix 1 to the Payment Response. [20] The Notice of Adjudication, Adjudication Claim, Adjudication Response and Adjudication Reply were submitted on 27.10.2021, 22.12.2021,

17.1.2022 and 28.1.2022, respectively. [21] Subsequent to the decision of this Court in Ssangyong Engineering (supra), Oxley revised its cross claim as elaborated in para 31 of the Adjudication Response. In para 29 of the Adjudication Reply, SSY has tabulated the cross claim as follows: No. Amount (RM)

(a) LAD by purchasers of Tower

32,989,423.51 Paragraph 31(a) of Adjudication Response / Item 3 of Appendix B.

(b) Additional fees and claims incurred for termination of SSY, appointment of BUCG and purported extended duration of the Project up to 6.12.2024. Paragraph 31(b) of Adjudication Response / Items 2 and 3 of Appendix 15,111,774.12

(c) Additional insurance costs incurred for extended duration of the Project. Paragraph 31(d) of Adjudication Response / Item 9 of Appendix B. 1,591,197.99

(d) over Site and commencing works (from September/October to December 2021) Paragraph 31(e) of Adjudication Response / Items 5-8 of Appendix B. 409,619.00

(e) Additional costs to complete the works BUCG 139,136,079.62 Paragraph 31(a) of Adjudication Response / Item 1 of Appendix B. Total 189,238,094.24 [22] In para 155 of the AD, the Adjudicator determined 1) that Oxley pay SSY within ten (10) working days the sum of RM93,687,154.46; 2) that Oxley pay SSY within ten (10) working days the sum of RM1,034,630.83; 3) that Oxley pay interest at the rate of 5% per annum on the sum of RM93,687,154.46 for the period between 31.10.2021 until full and final settlement; and 4) that Oxley pay SSY costs in respect of this adjudication in the sum RM564,016.00. I. The Setting Aside Application [23] Section 13 of the CIPAA provides Effect of adjudication decision The adjudication decision is binding unless

(a) it is set aside by the High Court on any of the grounds referred to in section 15;

(b) the subject matter of the decision is settled by a written agreement between the parties; or

(c) the dispute is finally decided by arbitration or the court. [24] Oxley

(b), (c) and (d) of s 15 of the CIPAA which read 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:

(b) there has been a denial of natural justice;

(c) the adjudicator has not acted independently or impartially; or

(d) the adjudicator has acted in excess of his jurisdiction. [25] Based on the written submissions of the parties, the issues which were posed to this Court for determination may be summarised as follows: The Setting Aside Application

(a) Whether there is denial of natural justice by the Adjudicator when he

(i) relied on the Oxley Towers, Adjudication Report on Delay, Expert Report of William Kerr Expert Report

21.1.2022 reserving its right to seek leave to file a further response to the Adjudication Reply;

(b) Whether the Adjudicator was bias or lacked impartiality; and

(c) Whether the Adjudicator had acted in excess of jurisdiction when he decided on

(i) the validity of the termination of the contract; and/ or

(a) Whether the Stay Application is defective for non-compliance with O. 69A, r. 4(2) RC 2012;

(b) repay the Adjudication Sum if Oxley should succeed in the arbitration;

(c) Whether there is duplicity of claims;

(d) ; and

(e) Whether the fact that there is no reciprocity of enforcement of judgments with South Korea is a relevant factor. [26] However, after having deliberated the grounds upon which Oxley sought to set aside the AD, the Court is of the view that Oxley has established its ground to set aside the AD under limb (b) of s 15 CIPAA as there is a denial of natural justice when the Adjudicator relied on the Expert Report without giving the opportunity to Oxley to make any submission on the Expert Report. In the premises, there is no necessity ounds under limbs (b), (c) and

(d) of s 15 CIPAA and the Stay Application. Whether there is denial of natural justice by the Adjudicator when he relied on the Expert Report without giving any opportunity to Oxley to make any submission on the same [27] Adjudicator between 8.12.2021 and 13.12 2021, the timelines of the proceedings were varied following the joint request, and the agreement reached by, the parties (see too, paras 33 to 35 of the AD). [28] On 19.1.2022, SSY wrote to the Adjudicator requesting for an EoT of 3 days to submit the Adjudication Reply i.e. until 28.1.2022 on the ground that the Adjudication Response is voluminous with seven bundle of documents BoD totalling 2028 pages, two bundle of authorities and two witness statements, the scanning of the documents was only completed on the morning of 19.1.2022 and time was then needed [29] responded on 20.1.2022 to record its objection to extremely prejudiced as it had to work within the timelines that were fixed and SSY would have a longer time than statutorily provided to submit the Adjudication Reply when it already had the benefit of longer time for the Adjudication Claim. [30] Another letter from 20.1.2022 to justify that, under the circumstances, the additional 3 working days requested is a short, reasonable and proportionate period. It was emphasised that four of the BoD contain documents that are completely new and there are two witness/ expert statements. The witness statements are in APPENDIX C to the Adjudication Response, namely:

(a) Witness Statement No. 1 From The Respondent (AR Alif Arif Iskandar Abd Wahab Of Veritas Architects) consisting of six pages of 11 questions and answers

(b) Witness Statement No. 2 From The Respondent (Lim Chee Chong Of Oxley Rising Sdn Bhd) consisting of two pages of five questions and answers ). [31] others, that:

From the clarification within the said Letter, we are now fully aware that the basis for the Claimant to request for an extension of time is due to the length and volume of the Adjudication Response filed. In this regard: a. The Claimant ought to be aware that the Respondent is entitled to ventilate its case full and properly in the Adjudication Response, especially since that is the only document that the Respondent can file in the proceedings herein. If parties are entitled to seek for extensions of time simply because of the volume and/or length of the prudent for the Respondent, at this juncture, to Adjudicator to file a further response to the would be long and voluminous. (subpara 2(a) as above quoted shall hereinafter be referred to . [32] Para 3 i states that for extension of time due to voluminous new documents somehow entitles it to seek leave to respond to the Adjudication Reply. This is completely incorrect, irrelevant and warrants no response or consideration. . [33] The Adjudicator, vide the letter dated 24.1.2022, decided that:

I consider it reasonable to grant Claimant a short extension of time.

In the circumstances, I hereby exercise my powers under s. 25(p) of the Construction Industry Payment and submission of the Adjudication Reply until 28.1.2022. . [34] Sub-s 11(1) CIPAA allows a claimant to serve a written reply to the adjudication response together with any supporting document on the respondent. In this case, one of the supporting documents produced by SSY in the Adjudication Reply is the Expert Report. [35] It was contended by Oxley in this Court that a breach of the second pillar of the rules of natural justice, audi alteram partem or the right to be heard, has occurred when the Adjudicator did not give Oxley an opportunity to provide a response to the Expert Report, especially since he heavily relied on the same when delivering the AD. In the Adjudicator's mind, the contents of the Expert Report were material to the AD. [36] SSY retorted that

(a) Adjudication Response and all that SSY did by way of the E and Appendix A aim while the Expert Report is to address the issue of time or purported delays by SSY in the performance of the works;

(b) the parties had fully ventilated their respective positions through the submissions and documents produced in the adjudication proceedings;

(c) the Adjudicator had duly considered the said submissions and documents and he is under no duty to request for further submissions, especially when he has made it clear that he is able to decide the dispute based on existing documents without further clarification or an oral hearing. To support this argument, SSY referred to para 37 in the judgment of Teguh Wiramas Sdn Bhd v Thien Seng Chan Sdn Bhd and another application [2017] MLJU 633, paras 34 - 37 in Maju Holdings Sdn Bhd v Spring Energy Sdn Bhd [2020] MLJU 1165, para 81 in AMT Engineering Services v Ah Design Communication Sdn Bhd and another appeal [2018] MLJU 1860 and para 41 in Ann Joo Integrated Steel Sdn Bhd v Lim Chuan Hock & Sons Sdn Bhd [2017] MLJU 1552;

(d) the cases cited by Oxley, namely RSL (South West) Limited v Stansell Limited [2003] EWHC 1390 (TCC), Volker Stevin Ltd v Holystone Contracts Ltd [2010] EWHC 2344 (TCC) and Samsung C & T Corporation v. Bauer (Malaysia) Sdn Bhd [2019] 1 LNS 2104 can be distinguished; and

(e) of mala fide by SSY, that by including the Expert Report in the Adjudication Reply, SSY knew that Oxley would not have an opportunity to respond to the same, is unsubstantiated. The Expert Report was submitted to meet [37] I have given careful consideration to the cause papers and submissions and clarifications by the parties and hereinbelow is my analysis of the issue at hand and my findings. [38] In para 3 of the AIS, the deponent affirmed that the AD should be set aside on six grounds. For present purposes, the first three grounds are relevant, and they are: PARTICULARS i. The Adjudication Reply contained extensive material upon which the Plaintiff had no or no reasonable opportunity to respond. It was incumbent on the Adjudicator to give the Plaintiff an opportunity to provide a response. ii. Given the voluminous material, and in particular the contents of the Expert Witness Report, it was fair and reasonable that a witness hearing should have been held. The reason given by the Adjudicator for denying a witness hearing is that cross-examination will not be beneficial in the light of the contemporary records which are very clear. Clearly that is a misstatement. What was overlooked by the Adjudicator was the lack of opportunity on the part of the Plaintiff to challenge the Expert Witness Report upon which he relied heavily to come to his conclusions. The refusal of a witness hearing in these circumstances constitutes a denial of natural justice. iii. The Adjudicator's decision when viewed as a whole and in all the circumstances of the case constitutes an ex parte decision upon the payment claim without affording the Plaintiff a reasonable opportunity to meet the case presented against it by the Defendant. In particular, the Adjudicator took into account and relied upon the Defendant's Expert Witness Report to which the Plaintiff had no opportunity to make a response. Accordingly, the Plaintiff was denied natural justice and the Adjudicator had acted in excess of his jurisdiction. [39] In para 2 of the Executive Summary in the Expert Report, the Expert I have been requested by Ssangyong Engineering & Construction Co. Ltd. to provide my expert opinion in relation to delays during the Project. A summary of my instruction is to:

(a) Assess the criticality and extent of delay for the events contained within EOT 6, EOT 8, EOT 9 and EOT 10, including the Architect s reasoning for granting these EOT's:

(b) Assess the Contractor's entitlement to claim for an contained in the Contractor's EOTs; and

(c) Assess whether the Contractor was acting regularly and diligently in the 3 months period leading up to termination. [40] Under the Introduction section, the Expert states:

2.2 Brief

I, William Kerr, a Director of TBH, have been retained by Ssangyong Engineering & Wong, and Partners, to provide an initial Expert opinion for the purposes of CIPAA adjudication. My instructions are to:

(a) Assess the criticality and extent of delay for each of the delay events contained within EOT 6 ,8, 9 and 10;

(b) extension(s) of time and/or the reasonable time for completion because of the delay events within EOT 6, 8, 9 and 10. This would encompass Assessing the of extension(s) of time and reasoning;

(c) Assess the impact of Movement Control -19 and the ;

(d) Assess whether SSY was acting regularly and diligently in the 3 months period leading up to the termination; and

(e) Assess whether SSY is entitled to further time (whether or not contained in the extension of time applications).

Details of all instructions provided to me have been included in Appendix A. Appendix A Instructions in the Expert Report is re-produced below: The Expert is instructed to:

Assess the criticality and extent of delay for each of the delay events contained within EOT 6, 8, 9 and 10;

entitlement, if any, to any extension(s) of time and/or the reasonable time for completion as a result of the delay events within EOT 6, 8, 9 and 10. This would encompass time and reasoning;

Assess the impact of Movement Control Orders -19 and the resulting

Assess whether SSY was acting regularly and diligently in the 3 months period leading up to termination; and 5. Assessing whether SSY is entitled to further time (whether or not contained in the extension of time applications). Thank you. Michael Tong Dispute Legal Assistant Wong & Partners Level 21, The Gardens South Tower Mid Valley City Lingkaran Syed Putra 59200 Kuala Lumpur Malaysia Tel: +603 2298 7888 Direct: +603 2298 7690 Fax: +603 2282 2669 Mobile: +6012 326 8585 michael.tong@wongpartners.com [41] Notably, the date when SSY instructed the Expert to provide his opinion is not stated anywhere in the Expert Report or in any of the affidavits affirmed by SSY. [42] SSY steadfastly maintains that the contents of the Adjudication Reply whereby the Expert Report is to address the specific issue of time or purported delays by SSY in the performance of the works for the Project. [43] If this is true, it means that the Expert had 10 days between the date of the Adjudication Response (17.1.2022) and the Adjudication Reply (28.1.2022) to prepare the Expert Report. [44] However, from a scrutiny of the Expert Report, it is evident that it is extensive and voluminous. The Expert Report has 107 pages containing, inter alia, the Delay Analysis Methodology; Delay Analysis for Section 2A (Tower 1), Section 3 (Tower 1), Section 2C (Tower 2), Section 2B (Tower 2) and Section 2D (Tower 3); and the Assessment five Appendices to the Expert Report on the Instructions, Curriculum Vitae of Mr. William Kerr, Documents Examined, Chronology of Façade Issues and Bundle of Documents Referred to. [45] The issue of delay by SSY in completing the works for the project was undeniably first raised in the Payment Response. Basically, the Expert Report addresses the issue of delay whether the delay is on the critical path of each Sectional Completion Dates and whether SSY was responsible for the delay, as well as whether SSY was acting regularly and diligently in the three months leading up to termination (see paras 370 - 399 of the Expert Report). Based on my assessment of the contents of the Expert Report, it would be a stretch of the imagination to think that it could be prepared within 10 days from the date of the Adjudication Response. [46] allegations in the Adjudication Response, it is odd that no reference is made to the WS at all. In WS, the witness had given his professional opinion on, among others, the following:

(a) whether SSY could have completed the Project on time even after taking into account the EoTs already granted to SYY;

(b) whether there was a pattern of delay committed by SSY;

(c) whether the delay was caused by the Movement Control Order MCO lockdown restrictions induced by Covid-19; and

(d) whether sufficient EoTs have been issued to SSY. Instead in para 39 of the Expert Report as above quoted, the Expert purposes of CIPAA adjudication This can be contrasted with the Witness Statement of Kim Hyun Kyung for in answer to Question 3, the witness specifically said that his testimony elaborated under Parts B and C [47] Although Oxley is discontent with the A my view, is well within the s 25(p) CIPAA to extend any time limit imposed on the parties as reasonably required and he had exercised his discretion on this matter correspondence, nevertheless, the fact remains that the Expert Report is dated 26.1.2022. This is merely two days after the first revised deadline for the submission of the Adjudication Reply on 24.2.2022 and two days before the deadline of 28.1.2022. In other words, Oxley is not wrong in submitting that, if the Adjudicator did not application for EoT to submit the Adjudication Reply, SSY would not have been able to include the Expert Report in the Adjudication Reply. [48] In JKP Sdn Bhd v Anas Construction Sdn Bhd and another appeal [2022] MLJU 2124, the Court of Appeal had referred to the decision of the Federal Court in View Esteem Sdn Bhd v Bina Puri Holdings Bhd [2018] 2 MLJ 22 in the following passage: [36] The Federal Court in View Esteem emphasised the importance for the adjudicator to comply with the principles of natural justice and held that the adjudicator's refusal to consider all the defences raised in the adjudication response amounted to a breach of natural justice. The relevant part of the judgment reads: lt follows that the duty and obligation of the shall comply with the principles of natural justice would oblige him to consider all the defences raised by the appellant in its adjudication response as a matter of fairness and impartiality. [65] We are of the view that an adjudicator who wrongly rules out considering a defence presented to him would be in breach of natural justice. This point arose in Pilon Ltd v Breyer Group Pic [2010] All ER (D) 197 (Apr); [2010] EWHC 837 (TCC) [49] Applying the legal principle as aforementioned to the instant case, it is obligatory on the Adjudicator to consider all defences raised by Oxley in the Adjudication Response. In fairness to SSY, the Adjudicator by way of the Adjudication Reply, including the comprehensive Expert Report, which this Court has ruled, was produced not only to rebut the Adjudication Response, but for purposes of the entire adjudication. [50] In these circumstances, is the Court to find and conclude that, in view of and the fact that it did not exercise that right to seek leave from the Adjudicator to file a further response to the Adjudication Reply, which it had already foreseen would be long and voluminous, a case of denial of natural justice has not been established? As argued by , a mere reservation of right is not the same as actually making an application. [51] After much deliberation, I am inclined to lean towards the view that this is one those cases where, regrettably, the Adjudicator failed to comply with the principles of natural justice, contrary to the written declaration as given pursuant to s 24(c) CIPAA, for the following reasons:

(a) In analysing the issue as to whether Oxley is entitled to any of the counterclaim or cross claim, which flowed from the termination that Oxley claims is lawful, the Adjudicator had relied on the Expert Report, especially with regards to the MCO and EoT. Having considered the evidence and submissions of the parties, the Adjudicator found that there is delay to the progress of works and that, as at the date of termination, SSY was not in a position to complete the works before the revised completion date. The Adjudicator then goes on to say (with my added emphasis):

However, this is not to say that SSY is responsible for the situation it found itself in. As the party relying on the fact of termination to justify its counterclaims, it is incumbent upon Oxley to identify the events causing delay to the progress of the Works and to demonstrate that SSY was responsible for the same.

In so far as the events alleged by Oxley is concerned, I find none of them to be supported by sufficient evidence.

In relation to the suggestion that SSY suspended works, Oxley did not even explain why or what caused SSY to suspend works. In relation to the suggestion that there is little to no works during months of May to August 2021, I am satisfied that Oxley did not provide any evidence to show that SSY was able to proceed with works despite the MCO. On the contrary, evidence show that SSY had at all times operated within the parameters and standard operating procedures imposed by Ministry of International Trade and Industry.

In relation to the suggestion that SSY could have proceeded with work during the MCO if they had the CLQ, I find this to be without merit because the provision of CLQ is meaningless unless SSY achieved registered workers achieved 40% vaccinate rate which only happen in mid-August 2021. In any event, I am satisfied that the provision of CLQ was never contemplated at the inception of the Contract and to request that SSY provide the same in the middle of the Works requires a great deal of coordination and any alleged delay arising from that cannot be attributed to SSY. inter alia, the issue of whether the delay was caused by the MCO. In the answer to Question 4, AR Alif said: No. As highlighted above, the delay has started since before the first MCO in 18 March 2020, when we raised our concerns in the Site Meeting no 55 dated 17 October 2019. refusal to operate a Centralised Labour Quarters (CLQ) as required by the Government caused MITI to reject operate during MCO 3.0. About by providing the CLQ. In our professional opinion, we deemed it to be a valid cause of delay as the CLQ requirement is known since MCO 1.0. The Claimant only obtained the MITI permit to operate was only obtained on 30 August 2021. Furthermore, as summarized in our letter no 82 dated 14 September 2021, the Claimant committed to commence works at site on 26 August 2021 however this is only achieved in mid September which shows that the Claimant has failed again to commence works as per their own deadline. . the provision of CLQ is meaningless unless SSY achieved registered workers achieved 40% vaccinate rate which only happen in mid-August 2021 is clearly lifted from subpara 385(g) of the Expert Report (with my added emphasis) which is quoted below: During this period, the Project was subject to the government-imposed Covid 19 resource limitations achieve at least 40% Covid-19 vaccination rate to be allowed to reopen the site at a capacity of 60% workforce. provided to me, the 40% vaccination rate was achieved on 17 August 2021. On 18 August 2021 Contractor informed the Architect that it will commence mobilisation from 26 August 2021. I consider the 8 days the Contractor took to remobilise to be reasonable considering the to be agreed with the Architect statement which is even remotely similar to the specificity in which the Adjudicator had decided on the MCO issue. Furthermore, the number of times in which references were made to the MCO in the Expert Report (see paras 16, 21, 25, 29, 33, 373, 385, 396(b) and 398) cannot be ignored since the Adjudicator categorically stated, as highlighted in bold, that:

If SSY was indeed the reason for the delay to the progress of the Works, SSY would not have been given the EOTs. Any suggestion that SSY was already given sufficient EOTs for the aforesaid delay is without merit. I am satisfied that SSY was not given the full extent of EOTs which it deserves. My view is based on the acceptance of the findings provided in the Expert Report of TBH which I find to be sound, supported and reasonable. According to the TBH Report, SSY is entitled to at least 169 days of further EOT in addition to the EOT granted by the Architect. This is notwithstanding other delay events which may give rise to further potential EOT entitlements. The Adjudicator had unequivocally accepted the findings in the sound, supported and reasonable without giving any opportunity to Oxley and/ or its witness to explain the references which were made to the MCO in the Expert Report and in particular, in respect of the statement that 40% vaccinate rate which only happen in mid-August 2021. on the Centralised Labour Quarters as futile.

(b) In so far as the issue of EoT is concerned, the Adjudicator once again relied on, and clearly accepted, the Expert Report in SSY is entitled to at least 169 days of further EOT in addition to the EOT granted by the Architect answer to Question 8 as follows: Yes. I believe in our professional opinion all Extensions of Time (EOT) has been granted fairly based on our assessment and evaluation as per Clause 23.4 and are based on the available records provided by SSY. e EOT evaluations were unreasonable or unfair. For EOT 1 and EOT 2 (based on EOT applications 1, 2, 3 and 7) has been granted without dispute by the Claimant. In fact, EOT 2 (for MCO 1.0) were granted with more days than the Claimant applied for. This has shown that we have been fair, reasonable and impartial in assessing EOTs. EOT 3 (based on EOT applications 4, 5 & 6) has been granted fairly in our professional and impartial opinion based on all documents available to us including the apparent concurrent delays by the Claimant which is the standard practice for evaluating EOTs in Malaysia. We have not deviated in our assessment method. We also refute that EOTs 8 and 9 have been unfairly assessed. Based on the documents submitted by the Claimant we have rejected the applications as the Claimant failed to justify and prove that the events caused by the delay in the Critical path of the Project. in managing the Facade Works which is wholly under alleged late nomination of Non-Critical NSCs and NSs does not directly impact the progress of the Projects since there is a Concurrent Delay by the Claimant as the Façade Works have been severely delayed due to the - Contractor. We also refute that there are no replies for EOT 10 as based on the correspondences there are several documents/clarifications required by us which we have requested the Claimant to provide. Based on the Contract, we are not bound to reply to EOT 10 application until all the particulars are in our opinion is sufficient. As per Clause 23.4, we can only assess the EOT when the Claimant has submitted sufficient particulars for our consideration. Records will show that the last date that the Claimant submitted any particulars are on 16 August 2021, therefore as per the Contract we are only bound to give our assessment by 15 October 2021. Since the Contract has been determined by the Employer on 1 Oct 2021, we are no longer bound to evaluate the EOT 10 application. Furthermore, the Claimant has also failed to understand the Contract which the Claimant has signed by misinterpreting the EOT clauses in the Contract when the Claimant was asking for details and assessment calculations for all our EOTs. PAM 2006 has no clause for this and it is not standard practice for Architects in Malaysia to provide this information to the Contractors By way of the written clarifications to the question posed by the Court (see encl. 249) regarding 169 days of further EOT :

(i) Oxley explained that: A) The calculation of 169 days of EOT is based on the Expert taking the date of 28.04.2023 as the extended completion date for the last section of days after the EOT 3 date for Section 3 (ie.

11.11.2022). This ECD is stated in the updated work programme as of 15.03.2021 submitted by B) As the Expert progressed with his analysis of the programme update submitted by SSY on 20.09.2021, the Expert stated that the extended completion date ought to be 11.09.2023 or 13.08.2023 ... C) Since there are conflicting completion dates (which are later than 24.04.2023) in the EWR for Section of EOT was based on the March Mitigation Plans, and accordingly, the Adjudicator was not able to give a firm figure for the same. , and

(A) Expert EOT Assessment

(B) EOT that should have been granted (B-A) Location Expert Report (paras) 1 EOT 6 (Rev 1) 14 Design Change Events that affected RC works on levels 2 to 9 93 121 28 194-196 2(1)/171) 2 EOT 7 Suspension of the Site due to a Movement Control Order (MCO) 84 84 0 234 2(1)/182) 3 EOT 10 Event 1 Design Changes for 0 55 55 237-256 2(1)/183) Corbel Wall at level 30 to level 32 4 Suspension of site works due to Phase 1 of the Full Movement Control Order 0 14 14 338 2(1)/209) 5 Suspension of site works due to Phase 2 of the Full Movement Control Order 0 14 14 338 2(1)/209) 6 Suspension of site works due to Phase 3 of the Full Movement Control Order 0 59 59 338 2(1)/209) 177 347 169 days excluding the start date per common practice What is clear from the foregoing is different explanations were of EoT was derived by the Expert. To the Adjudicator, he had sound, supported and reasonable relied on a substantial part of the Expert Report in arriving at his decision that SSY was not given sufficient EoT and is entitled to a further 169 days of additional EoT. has a material impact on the AD as it led the Adjudicator to unlawful, and naught.

(c) Oxley claimed that in the Adjudication Reply, SSY had, for the first time brought up the issue that the delays surrounding the facade works finalising the re-appointment of Euro Façade Tech Export Sdn. Bhd. ( EFT-contractor NSC . By denying Oxley the opportunity to address the contents of the Expert Report, Oxley contends that the Adjudicator did not have

(i) sub-contractor for 851 days whereas Oxley took 101 days to confirm EFT as the NSC; and