Schedule
Schedule 3. SGI contended that the Adjudicator failed to consider the Independent Expert Report. [78] The analysis in respect of each of the ten defences and the Independent Expert Report are outlined in the following section of this judgment. [79] It should be made clear at the outset that, in respect of the 1st Defence to the 8th Defence, Dato’ Lim Chee Wee submitted in general for SGI that, instead of addressing the defences raised by SGI, the Adjudicator had instead opined that the defences raised do not affect the payment terms of the contract. The Adjudicator simply divorced TGI’s obligations under the contract from the payment terms. A reading of the AD shows that the Adjudicator had applied the payment terms without considering the other provisions of the contract. This demonstrates a complete failure and refusal by the Adjudicator to consider all of the defences raised by SGI in the Payment Response and Adjudication Response. [80] In contrast, TGH’s overall submission in relation to the 1st Defence to the 10th Defence is that the Adjudicator had not only considered each defence raised by SGI, but he also provided cogent and reasoned particulars as to his findings. Mr. Aniz Ahmad fervently submitted that there is no breach of natural justice on the part of the Adjudicator in arriving at the AD, regardless of such decision being right or wrong. SGI was not prevented by the Adjudicator from advancing its defences and arguments at any given time. [81] The learned counsel urged the Court to apply the legal principles as enunciated in Dekinjaya Builder Sdn Bhd v Chong Lek Engineering Works Sdn Bhd and Another Case [2020] 1 AMEJ 1857, and as adopted in China Construction Yangtze River (M) v Gold Mart Sdn Bhd [2022] MLJU 1789 that a decision-maker is deemed to have considered all arguments advanced before him unless otherwise expressly stated in the adjudication decision. In this respect, SGI has failed to demonstrate any instance in which the Adjudicator had expressly stated that he would not consider any of the defences raised by SGI. [82] Moreover, SGI has raised the same contentions that have been canvassed at the adjudication proceedings and considered by the Adjudicator. Hence, the Setting Aside Application is a disguise for appealing against the findings of the Adjudicator or an attempt to relitigate the same. 1st Defence [83] In paragraphs 33 - 41 of the Adjudication Response, SGI took the position that TGH is in default of its obligations under the LoA and CoC, in particular Clause 17 LoA and hence, TGH cannot benefit from its own wrong in seeking to enforce the contractual payment terms. Even if TGH is entitled to payment for any works done, the sum should be calculated by reference to paragraph 36(2)(b) CIPAA i.e. a fair and reasonable rate and not based on the rate as set out in the LoA. [84] The relevant provision in s 36 CIPAA reads as follows: “Default provisions in the absence of terms of payment 36. (1) Unless otherwise agreed by the parties, a party who has agreed to carry out construction work or provide construction consultancy services under a construction contract has the right to progress payment at a value calculated by reference to – (a) the contract price for the construction work or construction consultancy services; (b) any other rate specified in the construction contract; (c) any variation agreed to by the parties to the construction contract by which the contract price or any other rate specified in the construction contract is to be adjusted; and (d) the estimated reasonable cost of rectifying any defect or correcting any non-conformance or the diminution in the value of the construction work or construction consultancy services performed, whichever is more reasonable. (2) In the absence of any of the matters referred to in paragraphs (1)(a) to (d), reference shall be made to – … (b) if there are no prescribed fees referred to in paragraph (a), the fair and reasonable prices or rates prevailing in the construction industry at the time of the carrying out of the construction work or the construction consultancy services. …”. [85] Based on sub-s 36(2) CIPAA, paragraph (b) would only apply if any of the matters referred to in paragraphs 36(1)(a) - (d) CIPAA is absent. TGH contended that paragraph 36(1)(b) CIPAA applies to its claim as the rate specified in the construction contract had been agreed in the presence of the QS following which TGH had issued the letter dated 17.12.2021 (see paragraph 22 of the Adjudication Reply). [86] Returning to the 1st Defence, I have scrutinised the AD and I find that 2. SFI’s defence was considered by the Adjudicator (see paragraphs 2.5, 10, 2.13 - 2.33 and especially 4.1(a), 8.3, 10.2.1(a), 10.2.3 and 10.2.4). The Adjudicator had discussed the issue of “The applicable payment term” and reasoned that: “10.2.6 From these submissions, it was clear that up until 30 March 2022, the parties were still discussing and finalising the contract price and rates for the Project works. The Claimant had made several revisions to the final costing submissions, at the request of the Respondent. Based on the evidence before me, I am of the view that the delay in having the final contract price and rates mutually agreed between the parties could not be solely attributable to the Claimant. 10.2.7 Pursuant to Clause 1 of the Letter of Award, it is provided that “... The rates provided in the said commercial proposal, including for consultants fees, are subject to further detailed construction design including material specifications ...”. Even as at the 6th submission of the final cost, the submission was based only on 95% detailed design. 10.2.8 Therefore, the allegation about the non-validation of the final costing by a Quantity Surveyors (the allegation of which was denied by the Claimant), could not be the main factor which prevented the finalisation and mutual agreement of the final contract price and rates from being achieved by 8 October 2021. 10.2.9 In the meantime, while the finalisation of the project costing was in progress, the Claimant was required to commence and proceed with the works on site (see Clauses 3 and 4 of the Letter of Award), and by virtue of that, the Claimant would have had to incur cost in executing and progressing with the Project works. 10.2.10 There is no provision in the Letter of Award, or the PAM Agreement, providing that the Claimant would not be entitled to further payments under payment terms in the Agreement until and unless the final contract price and rates have been mutually agreed upon, and validated by a Quantity Surveyor. 10.2.11 The Respondent also alluded to the other alleged breaches / defaults committed by the Claimant as set out in the Notice of Default and Notice of Termination. However, I am not persuaded by the Respondent's submission that such breaches / defaults (even if true) would have the effect of rendering the payment terms in the Agreement inapplicable, or that the principle that “a litigant ought not to benefit from its own wrong” should apply. Importantly, there is no provision in the Agreement which supports the Respondent's proposition that such alleged breaches / defaults would render payment terms in the Agreement inapplicable. Further, having considered the alleged breaches / defaults and the provisions in the Letter of Award and the PAM Agreement, I am of the view that obligations or provisions which the Respondent said that the Claimant had breached, were in respect of the obligations and responsibilities independent from the Respondent’s obligation to pay under the Agreement. Based on this reason, I am also not inclined to agree with the Respondent's submission that the payment provisions in the Agreement were inapplicable or, that “a litigant ought not to benefit from its own wrong” principle should apply in this case. 10.2.12 In the premises, I find and determine that the payment terms of the Agreement, and in particular Clause 10 of the Letter of Award, are applicable for the determination of the Claimant's entitlement to its claim submitted in this adjudication. I also agree with the Claimant's submission that Clause 36(2) of CIPAA was not applicable when there were existing payment provisions included in the Agreement.”. [87] Therefore, SGI’s argument that the Adjudicator had failed to consider the 1st Defence is unmeritorious. 2nd Defence [88] SGI relied on the same paragraphs 33 - 41 of the Adjudication Response in submitting that the Adjudicator did not consider its defence that the contract price in the LoA was merely an “indicative contract sum” and as such, could not form a basis of payment to be made to TGH (see too, paragraphs 7, 8 and 10(a) of the Payment Claim). [89] TGH retorted in the Adjudication Reply that the Notice of Default dated 3.8.2022 which was issued by SGI to TGH is an afterthought by reference to the chronology of events as tabulated in paragraph 2 of the Adjudication Reply. TGH had engaged a QS and the rates were validated. This was explained in the letters dated 26.4.2022 and 5.7.2022 issued by TGH’s solicitors to SGI’s solicitors (see paragraphs 2, 7, 8, 12, 18 and 22). [90] It is obvious from the same paragraphs in the AD as cited under the 1st Defence that the Adjudicator had considered the 2nd Defence. SGI’s contention that it was not accorded procedural fairness is misconceived. 3rd Defence [91] In paragraphs 33 - 37 of the Adjudication Response and specifically paragraph 34, SGI alleged that TGH had not provided the PB as mandated under Clause 17 LoA and accordingly, TGH was in breach of the LoA from the outset. [92] TGH responded, among others, in paragraph 19 of the Adjudication Reply that SGI’s claim for PB is not relevant for the CIPAA claim as it is not claim for work done under s 4 CIPAA. [93] Again, it is my finding that the Adjudicator had taken into account the submissions of the parties before he made a finding in favour of TGH (see especially, paragraphs 2.30(d), 8.3 and 10.2.11 of the AD). The Adjudicator had considered SGI’s 3rd Defence and rejected it. 4th Defence [94] The 4th Defence which SGI claimed the Adjudicator failed to appreciate is an expansion of the 1st Defence to the 3rd Defence as addressed earlier. The Adjudicator is said not to have taken into consideration the fact that TGH was in breach or in default of the LoA and CoC and consequently should not to be allowed to benefit from its own wrong. [95] Basically, the same paragraphs in the Adjudication Response, Adjudication Reply and AD as cited previously are applicable, in particular paragraph 2.30 of the AD where the Adjudicator has explicitly referred to SGI’s Notice of Default and all of SGI’s contentions in relation to TGH’s purported breach of contract. 5th Defence [96] SGI averred that the Adjudicator refused to appreciate that the payment terms of the contract cannot be read in isolation from the other terms and conditions of the contract. Similarly, the same paragraphs in the Adjudication Response, Adjudication Reply and AD as referred to earlier are applicable. I find that there is no merit in SGI’s submission as to the 5th Defence. 6th Defence [97] SGI posited that the LoA must be read with the CoC. However, the Adjudicator failed to appreciate that, in addition to the LoA, the terms of the CoC are important in interpreting the agreement between the parties (see paragraphs 3 - 8 of the Adjudication Response). [98] In paragraphs 3 - 6 of the Adjudication Reply, TGH contended that Clause 25.4(d) CoC amounts to a conditional payment which is prohibited under s 35 CIPAA. It was further argued, with reference to Econpile (M) Sdn Bhd v IRDK Ventures Sdn Bhd & Another case [2016] 5 CLJ 882 that Clause 25.4(d) does not prohibit the application of the CIPAA and TGH is entitled to claim for the work done under the CIPAA. [99] Clause 25.4(d) CoC reads as follows: “25.4 In the event that the employment of the Contractor is determined under Clause 25.1 or 25.3, the following shall be the respective rights and duties of the Employer and Contractor: … 25.4(d) the Contractor shall allow or pay to the Employer all cost incurred to complete the Works including all loss and/or expense suffered by the Employer. Until after the completion of the Works under Clause 25.4(a), the Employer shall not be bound by any provision in the Contract to make any further payment to the Contractor, including payments which have been certified but not yet paid when the employment was determined. Upon completion of the Works, an account taking into consideration of the value of the works carried out by the Contractor and all cost incurred by the Employer to complete the Works including loss and/or expense suffered by the Employer shall be incorporated in a final account in accordance with Clause 25.6.”. [100] After having read the entire AD, I find that SGI’s contention that the Adjudicator did not consider the terms of the LoA and CoC is flawed. In paragraph 10.2.14 AD, the Adjudicator said: “10.2.14 Based on my above decision, and having considered the terms and conditions set out in the Letter of Award, and the PAM Agreement, I am of the view that Clause 10 of the Letter of Award shall be the governing payment term under the Agreement. While Clause 2(a) of the Letter of Award generally requires the Claimant to comply with the terms and conditions in the PAM Agreement, there is no explanation as to how the provisions in PAM Agreement, in particular relating to payment, shall be applied together with payment provision in Clause 10 of the Letter of Award. In Clause 30.1 of the PAM Agreement, it required the Claimant as the Contractor to submit a payment application to the Architect and the Quantity Surveyor at an Interim Claim Interval (which shall be one month, if the interval period was not agreed), whereas in Clause 10 of the Letter of Award, it required the Claimant to submit its invoice for payment according to the format as set down in Clause 10.1(a) to Clause 10.1(f) thereof to the Respondent, and according to site progress (Clause 10.2). Having regard to the specific payment terms as set out in Clause 10 of the Letter of Award, and also Clauses 8, 9 and 11 thereof, I therefore find and determine that Clause 10 of the Letter of Award shall be the applicable and governing term for payment in this case. Further, from the evidence produced in this adjudication, it was clear that the Claimant has relied upon and followed the payment terms in Clause 10 of the Letter of Award throughout the course of the works until the Agreement was terminated by the Respondent. The first 10% downpayment was issued by the Claimant pursuant to the Invoice No. INV00520 dated 02.09.2021 in the amount and within the time period as set out in Clause 10.1(a) of the Letter of Award, and paid by the Respondent. This further reinforced the fact that the parties had agreed that Clause 10 of the Letter of Award shall be the governing payment terms.”. 7th Defence [101] SGI accused the Adjudicator of failing to appreciate the application of Clause 25.4(d) CoC. The same paragraphs in the Adjudication Response and Adjudication Reply as referred to in respect of the 6th Defence are repeated. [102] The Adjudicator dealt with SGI’s submission that no sum was due and owing to TGH in the following part of the AD: “10.2.19 The Respondent contended that the Letter of Award has been validly terminated pursuant to Clause 25.4(d) of the PAM Agreement, and that the Respondent is not bound by any provision in the Contract to make any further payment to the Claimant until after the completion of the Works under Clause 25.4(a) of PAM Agreement. Clause 25.4(d) provides: “25.4(d) the Contractor shall allow or pay to the Employer all cost incurred to complete the Works including all loss and/or expense suffered by the Employer. Until after the completion of the Works under Clause 25.4(a), the Employer shall not be bound by any provision in the Contract to make any further payment to the Contractor, including payments which have been certified but not yet paid when the employment was determined. Upon completion of the Works, an account taking into consideration of the value of the works carried out by the Contractor and all cost incurred by the Employer to complete the Works including loss and/or expense suffered by the Employer shall be incorporated in a final account in accordance with Clause 25.6.” 10.2.20 Having considered the submissions from both parties, I am not inclined to agree with the Respondent’s contention for the following reasons:- (a) Clause 25.4(d) of the PAM Agreement which provided that the Respondent was not obliged to make any further payments due to the contractor for the works done upon the determination of the Claimant's employment under the Agreement, was void as being a conditional payment provision pursuant to Section 35 of CIPAA: IRDK Ventures Sdn Bhd v Econpile (M) Sdn Bhd and Another Case [2016] 5 CL 882; (b) Further and in any event, I am of the view that words “... further payment to the Contractor, including payments which have been certified but not yet paid when the employment was determined” should be interpreted to refer to only those invoiced claims where the 30 days payment period has not expired at the time of determination, and should not cover those invoiced amounts whereby the 30 days payment period had expired and already due for payment before the determination took place. This is because, if the Respondent had followed the contractual payment procedure strictly, those invoiced amounts should have already been paid to the Claimant before the determination. The exercise of the right to determine under Clause 25 of the PAM Agreement could not, and should not alter the status of those payments which were already due and payable, and which ought to have already been paid (had the Claimant complied with Clause 10 of the Letter of Award), before the determination took place.”. [103] The Adjudicator was of the view that Clause 25.4(d) CoC is void and that is could not alter the payments which were already due and payable under the Said Invoices. [104] I am not persuaded by SGI’s submission with regards to the 7th Defence. 8th Defence [105] SGI argued that the Adjudicator failed to appreciate that it was incumbent upon TGH to substantiate its claim with the relevant supporting documentary evidence. In paragraph 45(a) of the Adjudication Response, SGI submitted that, from a reading of the Independent Expert’s assessment, it is apparent that TGH’s claim is not substantiated or only partially substantiated. [106] TGH counter-argued in the Adjudication Reply that it has issued Progress Claims Nos. 1, 2, 3 and 4 to SGI and SGI never challenged the correctness of the Progress Claims at any time before the adjudication proceedings. Furthermore, pursuant to Clause 10.4 LoA, SGI could have appointed an independent third-party engineering checker to verify the accuracy of the claim but SGI failed to do so. [107] A perusal of the AD does not show a failure on the part of the Adjudicator to understand the basic rule that it is for a claimant to prove its claim as per the Payment Claim and to provide the supporting documents in the Adjudication Claim and Adjudication Reply. SGI’s unhappiness is essentially with the Adjudicator’s decision not to attach any weight at all to the findings in the Independent Expert Report. [108] There is simply no merit in SGI’s submission as regards the 8th Defence. 9th Defence [109] In paragraph 44(d) of the Adjudication Response, SGI referred to the assessment by the Independent Expert in respect of TGH’s claim for “Structural Works – Factory” and stated that: “(i) While the Claimant claims to have completed 50% of the works, the Independent Expert has not been able to assess the Claimant’s work. (ii) In this regard, it is pertinent to note that the Claimant has not provided any cogent documentary evidence in support of this head of claim. The only evidence in support provided by the Claimant is photographs of the fabrication of steel structure in progress off-site. The Respondent wishes to state that the Letter of Award does not provide for off-site payments. Additionally, the PAM Conditions of Contract similarly, does not provide for off-site payments. In this regard, the Claimant’s claim under this head of claim should be dismissed in its entirety.”. [110] TGH’s response to the Independent Expert Report can be found in paragraphs 23 and 24 of the Adjudication Reply, the gist of it is that the Report should not be considered because, among others, it was produced five months after TGH’s Payment Claim was served on 25.7.2022 and six months after TGH issued the Letter of Demand on 4.6.2022. TGH also highlighted the cost incurred in appointing the Expert which is RM200,000.00 and hence, the Report is biased and without basis. [111] In paragraph 10.2.16 of the AD, the Adjudicator began to address the Independent Expert Report by saying: “10.2.16 The Respondent contended, in the Adjudication Response, that the Claimant has overclaimed based on actual progress at site. In this regard, the Respondent relied on the Respondent’s Quantum Report, wherein the Respondent’s Expert assessed that the maximum amount claimant under the Agreement based on the evidence on the site progress achieved was RM14,469,239.10, and the minimum was RM10,865,251.34, but stated his preferred combination assessment to be RM13,202,091.46. After taking into account the first 10% down payment of RM 15,844,925.85 already paid to the Claimant, the Respondent submitted that (subject to the Respondent’s argument on Clause 25.4(d) of the PAM Agreement), there was no amount currently due and payable to the Respondent.”. [112] This was followed by the Adjudicator’s reasonings in paragraphs 10.2.17 and 10.2.18 of the AD as quoted previously. [113] SGI submitted that the Adjudicator dismissed this defence as it was only raised purportedly for the first time in the Independent Expert’s Report. On the issue of payment for off-site materials, the Adjudicator failed to appreciate that TGH itself, in the Adjudication Reply, had produced two adjudication decisions where the claim for off-site materials, which is the same claim allowed by the Adjudicator, was refused as KIDE International Sdn Bhd (‘KIDE’), one of TGH’s sub-contractors, was in the process of scrapping the said materials. The relevant excerpt from the Adjudication Reply is re-produced below: “11. The Claimant further states one of it sub-contractors namely KIDE had filed two (2) separate adjudication claims against the Claimant as follows: The 1st Claim by KIDE for Piling works. a. KIDE commenced their piling work on 14.10.2021 and completed its scope of works on or around 24.01.2022. b. Following this KIDE had issued payment notices to the Claimant. c. One of the defences mounted by the Claimant was that it could not pay KIDE as the Claimant had not been paid by the Respondent. d. Having heard the parties, the Adjudicator then gave an award in favour of KIDE in the sum of RM7,760,126.37. The 2nd Claim by KIDE for civil, structural, and architectural work. a. KIDE commenced an adjudication claim against the Claimant for work done, materials procured and loss and expenses. b. KIDE had commenced excavation for pile cap and was paid an advance payment of RM8.0 million. c. The claim by KIDE against the Claimant was for the outstanding sum of RM29,005,479.97. d. KIDE submitted their progress claims to the Claimant. e. One of the defences mounted by the Claimant was that it could not pay KIDE as the Claimant had not been paid by the Respondent. f. Having heard the parties, the Adjudicator then gave an award in favour of Kide in the sum of RM29,005,479.97.”. [114] In my considered view, it is suffice to say that the Adjudicator is not bound by the decision of the adjudicators in the two earlier adjudication claims and any erroneous assessment of the evidence presented to the Adjudicator, failure to attach weight to relevant evidence or plain error as to a finding of fact and/ or of law by the Adjudicator do not amount to a denial of natural justice and are not valid reasons to set aside the AD. 10th Defence [115] SGI asserted that the Adjudicator failed to appreciate the fact that the 30 days payment period had passed in respect of the Said Invoices does not, in itself, entitle TGH to payment of the same. [116] SGI submitted that natural justice dictates that both parties have an equal and fair opportunity to present their case and respond to arguments put forth by the other side. By failing to engage with this defence, the Adjudicator effectively deprived SGI of the opportunity to fully advance its position that the payment issue is not as straightforward as TGI contends and that a deeper analysis is necessary. [117] TGH did not address the 10th Defence as it was contended that it was not raised in the Adjudication Response. [118] I did not find any paragraph where SGI made this specific averment in the Adjudication Response. In any event, the Adjudicator’s reasoning and justification in paragraphs 10.2.17 - 10.2.20 are testament of the fact that he had considered the various facets of the parties’ contentions, and not merely the fact that the 30 days payment period had passed in respect of the Said Invoices and thus, TGH is entitled to payment, before arriving at the decision as he did. [119] The Adjudicator was of the view that the Said Invoices are progressive billings based on the site progress pursuant to Clause 10.1(c) LoA and are due for payment as they are not caught under Clause 25.4(d) CoC. The Independent Expert Report [120] The parties submitted extensively on this matter and for purposes of this judgment, references are made in the main to SGI’s Supplementary Table 2 (encl. 43) and TGI’s Response to the same (encl. 45). [121] The purpose of the Report is to provide an independent expert opinion and assessment of the quantum of the work done due under the contract. The Report was produced solely for the purpose of the adjudication proceedings. [122] The fact that SGI relied on the Report, without prejudice to SGI’s position that TGH is only entitled to a fair and reasonable sum, is set out in paragraphs 31 and 42 - 45 of the Adjudication Response. [123] Under a maximum scenario assessment methodology, the expert found that TGH has completed about RM14.5 million of work while under a minimum scenario assessment methodology, about RM10.9 million of work. [124] The Expert’s preferred scenario basis is that TGH has completed about RM13.2 million of work as follows: (a) Piling: 77% of the work, or around RM5.8 million in value terms; (b) Factory Substructure: 25% of the work, or about RM1.9 million; (c) Factory Superstructure: None; (d) Factory Electrical Works: 0.4% of the work, or about RM23,000.00; (e) LNG Farm; C&S works: None; (f) Design: around RM1.9 million of the work; (g) QS: 37.5% or RM436,000.00 of earned value; (h) Contingency/ Other Construction Works: about RM801,000.00; and (i) Preliminaries: 24% of the work and a value of about RM2.3 million. [125] Overall, the Expert concluded that – (a) the bulk of TGH’s claims amount to either completely unsupported, or only partially supported declarations of percentage achieved of the elements of the work, multiplied by the reciprocal contract sum for that element; (b) there is insufficient information contained in the Adjudication Claim to properly assess the value of the executed work for Piling, Factory Substructure, Superstructure and Electrical Works and LNG Farm Civil/ Structural Works. Additional documents have been sourced, generated by TGH to assess the value of works in respect of Piling, Factory Substructure and Electrical Works; (c) based on the site visit on 7.12.2022, there is no superstructure commenced, or even sufficient substructure work completed to allow it to commence. There was no evidence of any civil/ structural work on the LNG Farm; and (d) there is a clear overclaim of value in respect of Preliminaries, Design, QS and contingency. [126] In the Adjudication Response, SGI contended that the Independent Expert’s assessment reveals that – (a) TGH’s claim was not substantiated or only partially substantiated; (b) TGH has not provided sufficient evidence in its Adjudication Claim in order for an objective assessment to be reached in respect of the work done to date; (c) there is an element of overclaim by TGH; (d) while TGH claims a sum of RM57,926,957.87 in respect of the work done, the Independent Expert has assessed TGH’s entitlement at either RM10,862,700.75, RM14,469,239.10 or RM13,202,091.45; and (e) TGH has been paid the sum of RM15,844,925.85 and therefore, the necessary deduction should be made. [127] TGJ’s submission in the Adjudication Reply is that the Report should be rejected for the following reasons: (a) the Expert Report was only produced five months after the Payment Claim was served on SGI and 6 months after TGH issued the Letter of Demand; (b) in the event SGI wanted to dispute the work done by TGH, this should have been done prior to the approval of the progress payment; (c) SGI should have, at that stage, proposed that an independent expert be appointed jointly to inspect the work carried out. Reference was also made to Clause 10.4 LoA; (d) SGI is claiming the costs incurred in appointing the Expert for the sum of RM200,000.00. A party who is paid this amount of money cannot be said to be an independent expert; (e) the Report is biased and without basis as the Expert did not communicate with TGH to seek an interview or for any documents pertaining to the work that had been carried out; and (f) there is no basis for the Expert to use RM7.5 million as the base because this only amounts to 30% of the design work. The base should be RM14.36 million for Piling as this is a remeasurement item. [128] The Adjudicator considered the submissions by the parties and decided to attach no weight to the findings made in the Report (see paragraph 10.2.17 of the AD). [129] In this Court, SGI submitted that the Adjudicator had considered irrelevant matters, namely that – (a) the Report was essentially prepared for the adjudication proceedings. On the other hand, TGH argued that this is a relevant consideration, especially in the light of SGI’s failure to object to the Said Invoices at the material time; (b) it is not clear as to the exact nature of the documents perused by the Expert. However, I agree with TGH’s submission that this is a finding of fact by the Adjudicator, who is entitled to make a determination on this issue. Moreover, the Report was produced within a short frame of time and without clarifying on the extent and specificity of the documents relied on. The Expert was assisted by four members of his team in view of the “truncated timetable for the production” of the Report; (c) the Report was prepared without TGH’s prior knowledge and that there is no evidence of the Expert having made any inquiries with TGH. However, in Era Kemuncak Jaya (M) Sdn Bhd v Tenaga Switchgear Sdn Bhd [2021] MLJU 1855, this was identified as a relevant consideration. Further, in the report, the Expert alleged that he has “sighted few photographs, that appear to be fabrication of some structure, somewhere in the world, for some project, at some time” and made remarks on there being insufficient documents. However, he never once made any enquiries on the same despite his “independent” role; and (d) based on contemporary documents by TGH, no weight is to be attached to the findings in the Report. Again, I find myself in agreement with TGH that this is a finding of fact which the Adjudicator was well entitled to make. [130] Having given careful consideration to the 10 defences raised by SGI as well as the issue relating to the Independent Expert Report, it is my finding that SGI has not established that the Adjudicator had breached the rules of natural justice in the sense that it was not accorded procedural fairness. SGI was given full opportunity to ventilate its case and the 4th Issue (b) is nothing more than an attempt by an unhappy party who lost in the adjudication proceedings to challenge the merits of the AD. III. The Enforcement Application [131] TGH applied to enforce the AD pursuant to s 28 of the CIPAA which reads as follows: “Enforcement of adjudication decision as judgment 28. (1) A party may enforce an adjudication decision by applying to the High Court for an order to enforce the adjudication decision as if it is a judgment or order of the High Court. (2) The High Court may make an order in respect of the adjudication decision either wholly or partly and may make an order in respect of interest on the adjudicated amount payable. (3) The order made under subsection (2) may be executed in accordance with the rules on execution of the orders or judgment of the High Court.”. [132] The test for an application to successfully invoke s 28 CIPAA was elucidated in Inai Kiara (supra). [133] As I have decided to dismiss the Setting Aside Application and the Stay Application, TGH has fulfilled the criteria as set out in Inai Kiara and followed in many cases thereafter and affirmed by the appellate courts, namely that – (a) the AD has been rendered in favour of TGH; (b) there has been non-payment of the Adjudicated Sum by SGI to date; and (c) there is no prohibition to the grant of the order that is sought in that the AD has not been set aside or stayed, there is no written settlement of the subject matter between the parties or there is no final decision rendered on the Payment Claim whether made in arbitration or by a court of law. Thus, it naturally follows that the Enforcement Application must be allowed. Conclusion [134] Premised on all the abovesaid considerations, the Setting Aside Application was dismissed with costs of RM12,000.00 and the Enforcement Application was allowed with costs of RM3,000.00, both subject to allocator. Dated: 20 January 2025 (ALIZA SULAIMAN) Judge High Court in Malaya Kuala Lumpur Counsels/ Solicitors: For the Plaintiff in O.S. No. 52 and the Defendant in O.S. No. 83: Dato’ Lim Chee Wee, (Kwan Will Sen, Syukran Syafiq and Wong Sze Some with him) Messrs. Lim Chee Wee Partnership Advocates & Solicitors 12-1, Lorong Dungun Damansara Heights 50490 Kuala Lumpur For the Plaintiff in O.S. No. 83 and the Defendant in O.S. No. 52: Aniz Ahmad Amirudin (Shabana Farhaana Amirudin Mohd Irwan Ismail and Polwin Sua Shiang-Nian with him) Messrs. Cecil Abraham & Partners Advocates & Solicitors Suite 12.01, Level 12, Menara 1MK 1, Jalan Kiara Mont’ Kiara 50480 Kuala Lumpur Cases, legislation and other sources referred to in the submissions by learned counsels and in the Grounds of Judgment: Cases: ACFM Engineering & Construction Sdn Bhd v Esstar Vision Sdn Bhd & Another Case [2015] 1 LNS 756 Asal Construction Sdn Bhd v Insan Makmur Sdn Bhd [2018] MLJU 1509 ASM Development (KL) Sdn Bhd v Econpile (M) Sdn Bhd and Anor [2022] 6 MLJ 392 Atsa Architects Sdn Bhd v Teguh Majuria Sdn Bhd and another case [2022] MLJU 3329; [2022] 1 LNS 3037 Balfour Beatty Engineering Services (HY) Ltd v Shepard Construction Ltd [2009] EWHC 2218 BM City Realty & Construction Sdn Bhd v Merger Insight (M) Sdn Bhd & Another case [2016] 1 LNS 1096 Cantillon Ltd v Urvasco Ltd [2008] EWHC 282 (TCC) Carillion Construction Ltd v Devonport Royal Dockyard [2005] EWCA Civ 1358 Cescon Engineers Sdn Bhd v Pesat Bumi Sdn Bhd & Another Case [2021] MLJU 2248 Ceylon Builders Sdn Bhd v Ultimate Pursuit Sdn Bhd and another appeal [2018] MLJU 1918 Chee Pok Choy & Ors v Scotch Leasing Sdn Bhd [2001] 4 MLJ 346 China Construction Yangtze River (M) v Gold Mart Sdn Bhd [2022] MLJU 1789 Dekinjaya Builder Sdn Bhd v Chong Lek Engineering Works Sdn Bhd and Another Case [2020] 1 AMEJ 1857 EA Technique (M) Sdn Bhd v Malaysia Marine and Heavy Engineering Sdn Bhd [2020] MLJU 2058 Econpile (M) Sdn Bhd v. IRDK Ventures Sdn Bhd & Another Case [2016] 5 CLJ 882 Eontat Sdn Bhd v Budget Kitchen Sdn Bhd [2021] 1 LNS 503; [2021] MLJU 561 Gan Kee Earthwork Sdn Bhd v Lim Ee Kheng [2019] MLJU 1663 Gazzriz Sdn Bhd v Hasrat Gemilang Sdn Bhd [2016] MLJU 1054 Glaziers Engineering Pte Ltd v WCS Engineering Construction Pte Ltd [2018] SGCA 66 Henderson v Henderson [1843] 67 ALL ER 313 Hiform (M) Sdn Bhd v TSR Bina Sdn Bhd [2020] 1 LNS 753 Hiform (M) Sdn Bhd v. Pembinaan Bukit Timah Sdn Bhd [2020] 1 LNS 2172 Highmark (M) Sdn Bhd v Pacto Malaysia Sdn Bhd [1987] 2 MLJ 85 Hu Yu Kamg v Majlis Perbandaran Seberang Perai [2013] 10 MLJ 899 Inai Kiara Sdn Bhd v Puteri Nusantara Sdn Bhd [2019] 2 MLJ 362 JKP Sdn Bhd v Anas Construction Sdn Bhd & Another Appeal [2022] 10 CLJ 528; [2022] 6 MLJ 503 Kebabangan Petroleum Operating Company Sdn Bhd v Malaysia Marine and Heavy Engineering Sdn Bhd & Another Case [2023] MLRHU 1502 Liputan Simfoni Sdn Bhd v Pembangunan Orkid Desa Sdn Bhd [2019] 4 MLJ 141 Maju Holdings Sdn Bhd v Spring Energy Sdn Bhd [2020] MLJU 1162 Mayland Valiant Sdn Bhd v Majlis Perbandaran Subang Jaya [2018] 4 MLJ 685 Mecomb Malaysia Sdn Bhd v VST M&E Sdn Bhd [2018] 8 CLJ 380 Ministry of Sound (Ireland) Ltd v World Online Ltd [2003] EWHC 217 (Ch) MRCB Builders Sdn Bhd v SMM Resources Sdn Bhd and another case [2021] MLJU 1455 Naza Engineering & Construction Sdn Bhd v SSL Dev Sdn Bhd [2020] 9 MLJ 499 Panglima Bidang Sdn Bhd v Pembinaan Bina Bumi Sdn Bhd and another case [2022] MLJU 3440 Pasukhas Sdn Bhd v Empire Multiple Sdn Bhd and another appeal [2019] MLJU 1393 Patel v Mirza [2017] 1 All ER 191 PB Securities Sdn Bhd v Autoways Holding Bhd [2000] 4 CLJ 881 Pembenaan Leow Tuck Chui & Sons Sdn Bhd v Dr Leela’s Medical Centre Sdn Bhd [1995] 2 MLJ 57 Pembinaan Melima (M) Sdn Bhd v ATM Development Sdn Bhd [2021] 1 LNS 1645 PWC Corp Sdn Bhd v Ireka Engineering & Construction Sdn Bhd and another appeal [2018] MLJU 152 South Bucks District Council v Secretary of State for Transport, Local Government and the Regions [2004] 4 All ER 775 Ssangyong Engineering & Construction Co Ltd v Oxley Rising Sdn Bhd and another case [2023] MLJU 404 Subang Skypark Sdn Bhd v Arcradius Sdn Bhd [2015] 10 CLJ 801; [2015] 11 MLJ 818 Sumita Development (M) Sdn Bhd v Majlis Perbandaran Pulau Pinang & Anor [2014] MLJU 1909 View Esteem Sdn Bhd v Bina Puri Holdings Berhad [2018] 2 MLJ 22 Visage Continental Sdn Bhd v Smooth Track Sdn Bhd [2007] 6 CLJ 570 Vision Development Concept Sdn Bhd v Low Sheh Ling and another case [2021] 12 MLJ 193 VVO Construction Sdn Bhd v Bina MYK Sdn Bhd [2017] MLJU 79 Warisan Pinang Sdn Bhd v Lembaga Rayuan Negeri Pulau Pinang & Ors [2022] 10 MLJ 956 WRP Asia Pacific Sdn Bhd v NS Bluescope Lysaght Malaysia Sdn Bhd [2015] MLJU 1125 Yow Man Kong @ Senthil Kumar v Ghandirajan Arjunan & Anor [2022] 1 LNS 3224 ZAQ Construction Sdn Bhd & Anor v Putrajaya Holdings Bhd [2014] 10 MLJ 633 Legislation: Construction Industry Payment and Adjudication Act 2012, ss 5, 6, 13, 15, 16, 25, 27, 28, 35 & 36 Contracts Act 1950, s 24 Town and Country Planning Act 1976, ss 19, 21, 23, 26, & 27 Rules of Court 2012, O. 7, O. 28, O. 69A, rr. 2 and 5 & O. 92, r.