Tenaga Nasional Berhad v Malaysian Resources Corporation Berhad (WA-24C-161-08/2022)

In Originating Summons No. WA-24C-160-08/2022 (OS 160), TNB had applied to set aside the Adjudication Decision under Adjudication Reference No. AIAC/D/ADJ-4188-2022 also dated 4.8.2022 (OS 160 AD) delivered by the learned Adjudicator, Michael Teo Seng Siong (“En. Michael”), which was obtained by MRCB for the sum of RM1,255,527.70 together with interest and costs pursuant to section 15 (b) and/or (d) of the Construction Industry Payment and Adjudication Act 2012 (“CIPAA”).

The grounds in support of OS 160 were that the Adjudicator in the matter herein had amongst others: i. the Adjudicator did not have the absolute jurisdiction to hear the matters in the Payment Claim dated 20.1.2022 (“Payment Claim”); ii. alternatively, the Adjudicator has exceeded his jurisdiction under section 15 (d) CIPAA; iii. the Adjudicator has breached natural justice and thereby breached section 15 (b) CIPAA. 7 [3] MRCB had applied under Originating Summons No. WA-24C- 162-08/2022 (OS 162) to amongst others to enforce the AD as though it was a judgment of the Court in accordance with section 28 CIPAA.

The grounds in support of OS 162 are amongst others as follows:- a. MRCB has demanded from TNB the Adjudicated Sum under the AD; b. the AD has yet to be paid by TNB; c. MRCB has complied with the procedure under Order 69A rule 5 of the Rules of Court 2012.

In Originating Summons No. WA-24C-161-08/2022 (OS 161), TNB had once again applied to inter alia stay the said AD pending the outcome of OS 160 and/or the final disposal of the Arbitration Proceedings reference no. AIAC/D/ADM-1084-2022 between the parties and of which amongst others are based on the grounds as follows:- i. TNB has simultaneously with OS 161 filed the application in OS 160; ii. the subject matter of the Adjudication is still pending the final disposal of the Arbitration Proceedings initiated by MRCB against TNB in AIAC/D/ADM-1084-2022; iii. the Arbitration Proceedings had been commenced 4 months before the Payment Claim dated 20.1.2022 in the Adjudication; 8 iv. the Arbitrator will determine the entire dispute between the parties herein including that in the Adjudication proceedings v. the Arbitration Proceedings have begun smoothly; vi. the AD has various clear and substantial errors therein which gives support for a Stay of the AD; vii. the Stay of the AD ought to be given to achieve justice between the parties.

The Adjudicator allowed the claims of MRCB in the Category 1 (c) and Category 2 claims and thus MRCB claims it was partly successful in the said Adjudication.

The Category 1 (c) referred to above concerned the under certification of Variation Order no.1 on Additional Works for Building Information Modeling (BIM) whilst the Category 2 claims were for erroneous set off amounts which consist of: a. Rectification works on granite tiles; b. Rectification works on ceiling; and c. Rectification works for BIM model.

For the record, TNB had attempted to make further submissions vide a letter dated 9.8.2023 after I had heard the parties orally submit before this Court on 2.6.2023 and 26.10.2023 which was objected to by MRCB’s counsel. As the submissions had only been given to this Court at such a late stage, I have decided not to allow any further submissions to be made to this Court 9 Brief Background Facts

TNB and MRCB are parties to a construction contract for phase 1 of TNB HQ Campus Development which includes the construction of Balai Islam and Staff Quarters (“Contract”).

Work relating to the Contract was completed on 31.7.2019.

Final Account in relation to the Contract was issued on 26.3.2021.

MRCB disputed the Final Account on 30.4.2021.

MRCB initiated Arbitration on 29.9.2021.

Subsequent to initiation of the Arbitration, MRCB initiated five (5) proceedings under the CIPAA. The 3rd of such proceedings was initiated under the Payment Claim (Form 1)6. This Payment Claim is accompanied by a covering letter.

In the Payment Claim, MRCB identified two (2) broad claims: 1) Category 1: Under-certification and/or Non-Certification of Interim Payment Claim No. 41 which consist of: a) Non-certification of Variation Order No. 1 on Concrete Imprint: Instructions given during the site walk; b) Non-certification of Variation Order No. 2 on the Consultant/PMC Office; c) Under-certification of Variation Order No. 3 on Additional Works for Building Information Modelling (“BIM”). 10 2) Category 2: Erroneous set-off amount which consist of: a) Rectification works on Granite Tiles; b) Rectification works on Ceiling; c) Rectification works for BIM Model. Submissions, Analysis & Court’s Findings

TNB is submitting, amongst others, that the learned Adjudicator, En. Michael (“Adjudicator”) had lacked absolute jurisdiction when the Adjudicator had wrongly continued with the Adjudication when the dispute was already brought to Arbitration i.e Arbitration had commenced before the Adjudication. It was contended that section 37 did not permit commencement of proceedings under CIPAA after the commencement of an Arbitration.

Section 37 CIPAA provides:

A dispute in respect of payment under a construction contract may be referred concurrently to adjudication, arbitration or the court.

(2) Subject to subsection (3), a reference to arbitration or the court in respect of a dispute which is being adjudicated shall not bring the adjudication proceedings to an end nor affect the adjudication proceedings. [18] MRCB in reply stated that section 37 CIPAA does not mean the Adjudication and Arbitration proceedings must be simultaneous and that this issue was raised before the Adjudicator. [19] I have been shown that the Adjudicator when considering the jurisdictional challenge had decided as stated in the AD, and as seen in the AD in exhibit TNB 1 of enclosure 3 of OS 160, that that he agreed that the “…initiation of Arbitration Proceedings …does not bar the Claimant from commencing this Adjudication Proceedings” [20] I have also read the various cases cited to me by learned counsel for MRCB being: a) LP Capital Construction Sdn Bhd v TKJ Builders Sdn Bhd [2021] 7 MLJ 753 where the Court held “[19] It is not disputed that the said section above does confer power on the Courts as a final arbitrator to the dispute but the principles in the case of Martego Sdn Bhd v Arkitek Meor & Chew Sdn Bhd [2016] MLJU 1051; [2017] 1 MLRH 440 (HC); Martego Sdn Bhd v Arkitek Meor & Chew Sdn Bhd and another appeal [2018] 4 MLJ 496; [2018] 6 MLRA 210 (CA); Martego Sdn Bhd v Arkitek Meor & Chew Sdn Bhd and another appeal [2020] 6 MLJ 224; [2019] 5 MLRA 584 (FC) shows that the second CIPAA proceedings and the suit in High Court 2 does not amount to an abuse process due to multiplicity of proceedings. They can exist concurrently and they do not flow on the same track with the first having only a temporary binding effect that serves the Parliament’s intention when enacting the same ie the adjudication that is offered through CIPAA is a simple, fast and cheap mechanism for resolving payment problems or payment disputes faced by construction industry as opposed to the existing resolution through arbitration or the courts. As arbitration and courts are time consuming and costly, adjudication is an additional option that may be concurrently invoked. CIPAA only deals with payment and how to secure the payment.” b) Martego Sdn Bhd v Arkitek Meor & Chew Sdn Bhd [2020] 6 MLJ 224 where the Federal Court held: “[76] We are not persuaded. We are fully in agreement with the learned High Court judge that there is nothing to stop the CIPAA 2012 from applying to the case at hand and there is no need to see adjudication and arbitration to be mutually exclusive to each other. At pp 615–616, R/R (Jld 6) of his ground of judgment, the learned High Court judge stated: [76] I agree that the dispute resolution mechanism under CIPAA is by way of Adjudication and the statutory requirement for dispute resolution under the Architects Act is by way of Arbitration. I must also state that there is nothing strange in this difference as statutory Adjudication came into being only with the coming into force of CIPAA on 10 April 2014 and that there is no need to see Adjudication and Arbitration to be mutually exclusive of each other as Adjudication would only yield a decision of temporary finality and it is only with Arbitration or Litigation that one gets a final and binding decision. The whole scheme of statutory Adjudication was never intended to be set in opposition to Arbitration or Litigation. Adjudication operates independently on a separate track and indeed a fast track and it will not run into collision with Arbitration or Litigation simply because its track is different. Before there was Adjudication, there were already Arbitration and Litigation. After the introduction of Adjudication, both Arbitration and Litigation will still continue except that now there is an additional dispute resolution mechanism of temporary finality that can be embarked upon before or concurrently with Arbitration or Litigation as the case may be. Thus one need not have to choose in an ‘either or’ approach between Adjudication and Arbitration but one can proceed in a ‘both and’ approach in resolving a dispute on an architect’s claim against his client for his professional fees. Adjudication under CIPAA was never designed to be in conflict with Arbitration and Litigation and so its process may be activated at any time where there is a valid payment claim under a construction contract. Premised on that proper perspective, the question of which would prevail over the other does not arise at all. …….. [78] Further, s 37 of the CIPAA 2012 provides that an adjudication proceeding, arbitration and court litigation may proceed concurrently and in parallel. It is also apparent that adjudication is a mandatory procedure under the CIPAA 2012 and the right to statutory adjudication should not be circumvented by any contract where parties have agreed to arbitrate.” [21] In support of the opposition on this point raised by TNB, this Court was once again referred to in Martego (supra) to show that CIPAA is limited to adjudication proceedings initiated before or concurrent to reference to arbitration. [22] In interpreting a statute, the Federal Court had in Krishnadas Achutan Nair & Ors v. Manivam Samykano [1997] 1 CLJ 636; [1997] 1 MLJ 94, with regards the interpretation of a statute held that: "The function of a Court when construing an Act of Parliament is to interpret the statute in order to ascertain legislative intent primarily by reference to the words appearing in the particular enactment. Prima facie, every word appearing in an Act must bear some meaning. For Parliament does not legislate in vain by the use of meaningless words and phrases. A judicial interpreter is therefore not entitled to disregard words used in a statute or subsidiary legislation or to treat them as superfluous or insignificant. It must be borne in mind that: As a general rule a Court will adopt that construction of a statute which will give some effect to all of the words which it contains. Per Gibbs Jin Beckwith v. R. [1976] 12 ALR 333, at p. 337." [23] I further rely on the case of Metramac Corp Sdn Bhd v. Fawziah Holdings Sdn Bhd [2006] 3 CLJ 177 where Augustine Paul FCJ said at p. 200: "Thus when the language used in a statute is clear effect must be given to it. As Higgins J said in Amalgamated Society of Engineers v. Adelaide Steamship Co Ltd [1920] 28 CLR 129 at pp 161-162: The fundamental rule of interpretation, to which all others are subordinate, is that a statute is to be expounded according to the intent of the Parliament that made it, and that intention has to be found by an examination of the language used in the statute as a whole. The question is, what does the language mean; and when we find what the language means in its ordinary and natural sense it is our duty to obey that meaning even if we think the result to be inconvenient, impolite or improbable. The primary duty of the court is to give effect to the intention of the Legislature as expressed in the words used by it and no outside consideration can be called in aid to find another intention (see Nathu Prasad v. Singhai Kepurchand [1976] Jab LJ 340). Thus the duty of the court , and its only duty, is to expound the language of a statute in accordance with the settled rules of construction and has nothing to do with the policy of any statute which it may be called upon to interpret (see Vacher & Sons Ltd v. London Society of Compositors [1913] AC 117; NKM Holdings Sdn Bhd v. Pan Malaysia Wood Bhd [1986] 1 LNS 79; [1987] 1 MLJ 39)." (emphasis added). [24] Thus, from my reading of the entire section 37 CIPAA , together with the ratios in LP Capital Construction Sdn Bhd (supra) and in particular the ratio in Martego Sdn Bhd (supra), I hold that the words in its plain and unambiguous referring to a “dispute in respect of payment under a construction contract may be referred concurrently to adjudication, arbitration or the court” does not restrict any such disputes with regards payment under a construction contract, as defined in CIPAA, to only where either the Adjudication proceedings, or the Arbitration Proceedings or the proceedings in Court to be limited to the word ‘concurrently’ as the Federal Court in Martego (supra) has indicated that the “process may be activated at any time where there is a valid payment claim under a construction contract” and that “…one need not have to choose in an ‘either or’ approach between Adjudication and Arbitration but one can proceed in a ‘both and’ approach in resolving a dispute..” [25] The word ‘may’ as oppose to the word ‘shall’ used and referred to in the said section denotes that all or any of the Adjudication proceedings, Arbitration Proceedings or Court proceedings can be commenced at any one time without the Adjudication proceedings having to be commenced prior to either the Arbitration Proceedings or Court proceedings for CIPAA to take effect. There is therefore, with respect, to borrow the words of the High Court and Federal Court judges in Martego Sdn Bhd (supra), no need to see adjudication and arbitration to be mutually exclusive to each other. [26] I therefore do not hold that the said section 37 CIPAA restricts that the Adjudication must be commenced prior to an arbitration and to give such a restrictive approach to it would go against the spirit and purpose of CIPAA which is to alleviate cash flow issues by providing an effective and economical mechanism as per Martego Sdn Bhd v Arkitek Meor & Chew Sdn Bhd and Anor appeal [2020] 6 MLJ 224 where it was held by the Federal Court amongst others that “…the interpretation expounded by the majority of the Court of Appeal in that case was consistent with the purpose and structure of the adjudication process outlined in the CIPAA 2012. It was clear from the Preamble, the Explanatory Notes to the Bill and the speech of the Deputy Minister when tabling the CIPAA Bill that the primary objective of the CIPAA 2012 was to alleviate cash flow issues by providing an effective and economical mechanism” [27] It would further in my findings go against the very words of section 37 CIPAA if this court were to add or read words into the said section when no such words exists and which in my view is against Parliament’s intention as expounded above. For an authority in this point, see Martego Sdn Bhd (supra) where the Federal Court also held: “[57] It is well-established principle of interpretation that the court cannot rewrite, recast or reframe the legislation because it has no power to do so. The court cannot add words to a statute or read words which are not there (emphasis mine). It is also well settled canon of construction that words in a statute cannot be read in isolation, their colour and content derived from their context and every words in a statute is to be examined in its context. The word context has to be taken in the widest sense where the court must take into consideration not only the enacting provisions of the same statute, but its preamble, the existing state of law, other statutes in pari materia, and the mischief which the statute is intended to remedy. In Reserve Bank of India v Peerless General Finance and Investment CoLtd 1987 SCR (2) 1, Chinnappa Reddy J said: Interpretation must depend on the text and the context. They are the bases of interpretation. One may well say if the text is the texture, context is what gives the colour. Neither can be ignored. Both are important. That interpretation is best which makes the textual interpretation match the contextual. A statute is best interpreted when the object and purpose of its enactment is known. With this knowledge, the statute must be read, first as a whole and then section by section, clause by clause, phrase by phrase and word by word. If a statute is looked at, in the context of its enactment, with the glasses of the statute maker, provided by such context its scheme, the sections, clauses, phrases and words may take colour and appear different than when the statute is looked at without the glasses provided by the context. With these glasses we must look at the Act as a whole and discover what each section, each clause, each phrase and each word is meant and designed to say as to fit into the scheme of the entire Act. No part of a statute and no word of a statute can be construed in isolation. Statutes have to be construed so that every word has a place and everything is in its place.” [28] I find that my above decision is fortified by the words in section 37

CIPAA which reiterates that ‘a reference to arbitration or the court in respect of a dispute which is being adjudicated shall not bring the adjudication proceedings to an end nor affect the adjudication proceedings’ which clearly denotes that any Adjudication Proceedings is not brought to an end when there is reference to either an Arbitration or the Courts. Conversely this, when read with the authorities herein before mentioned, can only mean that the Adjudication Proceedings can also be brought at any time even if Arbitration has been earlier commenced. Adjudicators Alleged Excess of Jurisdiction [29] In terms of the Adjudicator’s alleged excess of jurisdiction, TNB had argued that the Payment Claim issued by MRCB for OS 160 was not in compliance or within the parameters of section 5(2) CIPAA and that one of the category of claims advanced by MRCB did not fall within the definition of ‘payment’ under CIPAA as there is: a) in OS 160 in respect of Category 1 Claims, MRCB had failed and/or neglected to accurately reflect description of works or services to which payment relates and that the categorization of VO’S 1,2 and 3 under the Contract refers to works which are different from or that there is a mischaracterization of the works claimed under the said Adjudication Proceedings. [30] MRCB in return submits that the issues raised on the excess of jurisdiction issue as one which goes to the merits of the AD and does not fall within section 15 of CIPAA which reads: “An aggrieved party may apply to the High Court to set aside an adjudication decision on one or more of the following grounds:

the adjudication decision was improperly procured through fraud or bribery;

there has been a denial of natural justice;

the adjudicator has not acted independently or impartially; or

the adjudicator has acted in excess of his jurisdiction.” [31] This court has now had the opportunity to examine the Payment Claim in exhibit TNB 6 of OS 160, which is the subject matter under OS 160, and finds that there is MRCB’s covering letter dated 201.2022 for the aforesaid OS’s and the respective Payment Claim attached thereto. [32] In coming to the decision on this issue, this court has read the cases relied on by learned counsel for TNB and hold as follows:

JKP Sdn Bhd v Anas Construction Sdn Bhd and another appeal [2022] 6 MLJ 503 concerned a case where the Court of Appeal held that clause 36.6 of the contract relied on therein was not stated in the Payment Claim, and thus it was clear that the requirements under s 5(2) of the CIPAA were not complied with and that the failure to state that the respondent was relying on cl 36.6 of the contract in the PC was a clear manifestation of statutory non-compliance.

the High Court’s decision in SKS Pavillion Sdn Bhd v Tasoon Injection Pile Sdn Bhd [2019 ] 9 MLJ 396 where it was inter alia held that the Adjudicator did not have jurisdiction as the Payment Claim did not state the due date for payment of amount claimed and that the due date for payment was essential for a cause of action, as it was only if this date had passed that the defendant had an accrued cause of action. Therefore, the payment claim must state the cause of action that the defendant relied on, as the adjudication’s jurisdiction was limited to the cause of action stated in the payment claim.

Giatreka Sdn Bhd v SGW Engineering Construction Sdn Bhd and another appeal [2019] MLJU 1477 which was another High Court case where Lim Chong Fong J (as he then was) held: “[36] In my opinion, albeit the CIPAA is permissive on the right of party representation whether by advocates and solicitors, claims consultants or even the disputant party itself, the prescribed requirements of the statute, particularly those pursuant to ss. 5(2), 6(2), 9(1), 10(1) and 11(1) of the CIPAA, must however be strictly met. There should be no relaxation based on the quality of the representation. I have also noticed that the Asian International Arbitration Centre, being the Adjudication Authority under the CIPAA has, towards this end, published A Practical Guide to Statutory Adjudication in Malaysia which contains specimen forms especially to assist lay self-represented disputants in the conduct of CIPAA adjudication proceedings. If the lay disputant is not competent to handle these prescribed requirements, then it is best to seek professional representation. The non compliance of the prescribed requirements cannot be excused for laxity on the part of the disputant party” [33] With respect, I do not find that any of the above cases aforementioned has the same factual matrix as the one before this Court and that the said Courts had, in thise cases, only emphasised the need for compliance with section 5 CIPAA without stating that the Payment claim must be in any exact prescribed form. [34] I have also taken into account the words of Section 5 (2) CIPAA which states: “(2) The payment claim shall be in writing and shall include:-

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

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

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

a statement that it is made under this Act” [35] On my part, I hold that the said Payment Claim and the letter is to be read together and that it is in compliant with the requirements as per section 5 (2) CIPAA, as the aforesaid documents shows that:

the issues and cause of action are clearly ascertainable and in accordance with section 5 (2) CIPAA i.e (a) for OS 160 the reference to the relevant documents, the Revised completion Date, the Certificate of Practical completion issued, the final Account, the Interim Payment Application no 41, the non certification of the various Variation Orders no. 1, 2 and 3, as well as the dispute on the Set Off amounts;

(ii) the claim is in writing;

(iii) the due dates of payment has been expressly referred to in the Payment Claim under the column headed ‘Due Dates for Payment’;

(iv) the description of the work or services vis a vis the Variation Works under the Project;

the statement that the Payment Claim was pursuant to section 5 CIPAA; and

(vi) there are references to the applicable clauses in the Contract. [36] I am reminded and am in total agreement with learned counsel to MRCB that an adjudication proceeding requires a degree of informality, see paragraph 50 of the Federal Court’s grounds in Martego Sdn Bhd (supra). Thus, the limiting of the details and/or the claims to purely the Payment Claim as per its form is in my view merely unnecessarily constricting and/or restricting the adjudication proceedings. [37] I do find that TNB had raised the challenges aforesaid in its Adjudication Response, and where I find that MRCB had in its Adjudication Reply stated/explained inter alia that the Claim contains sufficient, and enforceable causes of action. [38] I will now deal with the issue of VO’s no 1, 2 and 3, raised in OS 160 as being a different subject matter from that of the Concrete Imprint, issue of the Consultant/PMC Office as well as the additional works for BIM and that there were not the same subject matter as the VO’s under the contract, MRCB had explained that the classification was based on the number of claims under the Adjudication Proceedings and that it was a mere formatting matter. [39] In relation to this I have also observed that in relation to VO’s no 1, 2 and 3 where En Michael the Adjudicator in OS 160 had found that such challenge cannot be sustained and that he had proceeded to hear the claims and that TNB was free to set aside or oppose The AD under either section 15 or 28 CIPAA. I find that this was his prerogative to do so under section 27(3) CIPAA which provides that: “(3) Notwithstanding a jurisdictional challenge, the adjudicator may in his discretion proceed and complete the adjudication proceedings without prejudice to the rights of any party to apply to set aside the adjudication decision under section 15 or to oppose the application to enforce the adjudication decision under subsection 28(1).” Category 2 Claims [40] For the Category 2 Claims, TNB had contended a lack of description, insufficient particulars of the claims and the cause of action as required under section 5(2) CIPAA in the Payment Claim. [41] For the same reasons I have given above vis a vis my findings on the compliance with the requirements as per section 5 (2) CIPAA, I do hold that there were sufficient details, information and particulars provided in the Payment Claim with regards the Category 2 Claims. I further find that TNB had in the Adjudication Claim raised the issue of the CMGD, the Schedule of Defect List and the release of the 2.5% retention sum at paragraphs 67 to 73 therein. [42] To surmise it is my decision that the Payment claim does specify MRCB’s claims for non certification and under certification of VO’s as well as the alleged erroneous set off and that MRCB has thus complied with the requirements under section 5 CIPAA. Alleged Erroneous Set Off [43] TNB had also alleged that the set off was not a payment or work done or services rendered under the express term of the Contract. I find that the alleged set off in the Adjudication Claim related to the rectification works on granite tiles, ceiling works and rectification works for BIM Model were the set off which TNB had itself relied on to impose the set off which MRCB had claimed was unjust and unreasonable. [44] I also find that the Adjudicator had dealt with the same and that this can be found in the AD at paragraphs 73 to 88 and that his findings were made after a comprehensive evaluation and examination of the documentary evidence before him. [45] With respect, I had viewed the Federal court case of Martego Sdn Bhd (supra) which was relied on by learned counsel for TNB to say that ‘set off’ does not fall within the ambit of the definition of ‘payment’ under CIPAA but I do not find that the Federal Court had held as such. What is clear in the decision of the Apex Court therein is: “[38] With respect, we are unable to agree with the minority and we are in full agreement with analysis of the majority that as long as they are payment claims relating to a construction contract as defined in s 4 of the CIPAA 2012 would applied. In our view, it is difficult to fathom any basis for concluding that Parliament intended a bifurcated approach depending on the type of claim. We could see no conceivable basis and/or logical reason that the Parliament would have intended a different approach between the interim payment and final [2020] 6 MLJ 224 at 240payment. If the Parliament had intended to exclude final claims from the adjudicatory ambit of the CIPAA 2012, it could have clearly included a proviso or provisions to that effect. Further, if the Parliament had intended a different approach for interim and final claims, the Parliament would have deliberately utilised a different language evincing such an intention.” [46] I accordingly reject the argument of TNB that that ‘set off’ does not fall within the ambit of the definition of ‘payment’ under CIPAA as being untenable. [47] Thus, as stated in the heading section of the aforementioned case “As long as they were payment claims relating to a construction contract defined in s 4 of the CIPAA 2012, the CIPAA 2012 would apply. There was no conceivable basis and/or logical reason that the Parliament would have intended a different approach between interim and final payments.” [48] I find and hold that the Adjudicator’s decision on the issue of the set off was made on the basis of the Conditions of Contract which was referred to and that it was under the Adjudicators jurisdiction to do so pursuant to the definition of ‘construction contract’ under section 4 CIPAA which reads: “construction contract" means a construction work contractor consultancy contract; "construction work" means the construction, extension, installation, repair, maintenance, renewal, removal, renovation, alteration, dismantling, or demolition of:-

any building, erection, edifice, structure, wall, fence or chimney, whether constructed wholly or partly above or below ground level;

any road, harbour works, railway, cableway, canal or aerodrome;

any drainage, irrigation or river control work;

any electrical, mechanical, water, gas, oil, petrochemical or telecommunication work; or

any bridge, viaduct, dam, reservoir, earthworks, pipeline, sewer, aqueduct, culvert, drive, shaft, tunnel or reclamation work, and includes:-

(A) any work which forms an integral part of, or are preparatory to or temporary for the works described in paragraphs (a) to (e), including site clearance, soil investigation and improvement, earth-moving, excavation, laying of foundation, site restoration and landscaping; and

(B) procurement of construction materials, equipment or workers, as necessarily required for any works described in paragraphs (a) to (e); "construction work contract" means a contract to carry out construction work;” Alleged Findings In Contradiction Of MRCB’s Own Case And Contemporaneous Documentation [49] I must now address TNB’s submission that the Adjudicator had arrived at certain findings in contradiction of MRCB’s own case and contemporaneous documentation. To this, it was argued by TNB that the Adjudicator had gone on a frolic of his own by deciding a case upon factual or legal basis which has not been argued or put forward by the parties in respect of the under certification of Variation Order No. 3. [50] MRCB had in return contended that the sum claimed by MRCB under certification of Variation Order No. 3 was for Additional Works for the BIM, and that the quotation from MES Asia Sdn Bhd on the overtime was far larger than that which the Adjudicator awarded. [51] From a reading of the AD, this under certification of Variation Order No. 3. was granted by the Adjudicator after having considered the parties arguments, contentions and submissions, the Adjudication Claim, the Adjudication Response and Adjudication Reply and MRCB’s letter dated 15.6.2020 as well as all relevant documents on the same, found that there was no dispute between the parties as to whether there was Additional Works for the BIM done by MRCB but only allowed the sum of RM563,800 after taking into account MES Asia Sdn Bhd’s quotation less the sum of RM107,727 already paid by TNB to MRCB. [52] I therefore hold that in the circumstances, the Adjudicator did consider TNB’s defences and this issue on not considering TNB’s defence is thus not proven and is completely untenable. [53] I find that TNB’s submission that the Adjudicator had arrived at certain findings in contradiction of MRCB’s own case and contemporaneous document is in fact going into the merits of the Adjudicator’s decision and which does not come within the scope of section 15 of CIPAA, see AFCM Engineering & Construction Sdn Bhd v Esstar Vision Sdn Bhd and anor appeal [2016] 1 LNS

[54] There was a further point of the Category 2 claims being an erroneous set off due to rectification works on granite tiles, and ceiling works being in contradiction of MRCB’s own case and contemporaneous documentation. On this point I find that the Adjudication Claim had made reference to the said claims as particularized in paragraphs 90 to111 thereto. [55] I further find from the AD that the Adjudicator did refer to a meeting held on 5.4.2021 where it was duly agreed that the deduction for the affected granite should be in accordance with the Contract rate and the costs of repair for the ceiling at lower ground was RM15,000 and found on a balance of probability that the same was in fact agreed upon and that any alleged discrepancy between the letter of 5.4.2021 and the letter of 15.4.2021 maybe that the ‘appropriate deduction’ was agreed but the amount had to be subsequently finalised between the parties. [56] The Adjudicator did also make reference to the PMC, Turner International Malaysia Sdn Bhd, to write back to TNB to deny and dispute that there was such an agreement but this was not done, after which the Adjudicator allowed MRCB’s claim for erroneous erroneous set off due to rectification works on granite tiles amounting to RM636,191.70, and for ceiling works RM34,780 after deducting and allowing a set off, back charge, or contra for the amount of RM158,183.30 in respect of the defects in the ceiling works and RM15,000. [57] I therefore hold that the said contentions raised by TNB with regards the various erroneous set off as mentioned above is once again a challenge on the merits of the AD which this Court cannot review. Thus, there is no breach of natural justice occurring on these issues. Decision on OS 160 [58] An Adjudication Proceedings, in my view, do not require the same standard as that in a court litigation in so far as the strict rules of pleadings. [59] In conclusion, this Court does find that the Adjudicator had considered the issues raised and had in depth look at the arguments, submissions and contentions thereto before coming to his findings and decision in the AD. [60] In the circumstances, I hold that there are no irregularities in the respective Payment Claims nor any breach of natural justice occurring in the AD before me based on my written grounds herein and I hereby dismiss enclosure 1 of OS 160 with costs. OS 162: Enforcement of Adjudication Decision [61] As I have held that OS 160 is to be dismissed with costs, there is nothing before this Court which will now prevent an enforcement of the AD since the AD has been served on TNB and TNB has to-date failed, refused an/or neglected to pay the Adjudicated Sum. [62] I hereby grant Order in Terms for the prayers in enclosure 1 of OS

OS 161: Stay of the Adjudication Decision [63] This Court has gone through the grounds for the Stay which has been stated in paragraph 5 of my decision herein. However, this Court does not find any basis for special circumstances shown in support of the OS 161. Even if there is, in light of the recent Federal Court’s decision in Rayuan Sivil No. 02(f)-2-01/2023 in Econpile (M) Sdn Bhd v ASM Development (KL) Sdn Bhd this Court is now bound to dismiss OS 171 when the AD has since been ordered by this Court to be enforced under section 28 of CIPAA. Dated: 11th day of December 2023 sgd. NADZARIN WOK NORDIN HIGH COURT JUDGE CONSTRUCTION COURT 1 COUNSEL FOR THE PLAINTIFF (in OS 160 & 161)/DEFENDANT (in OS 162): Mohanadass Kanagasabai, Kalashini Sandrasegaran and Thomas Shaun Mathews [Messrs Mohanadass Partnership] COUNSEL FOR THE DEFENDANT (in OS 160 & 161)/APPLICANT (in OS 162): Selva Mookiah and Sajitha Suresh (Messrs Selva Mookiah & Associates]