for PMIs which are not agreed or form part of the Settled Claims, MRCB is not entitled to the sum claimed because TNB disputes, among others, the entitlement to the scope of work performed, rates applied by MRCB and the quantum. MRCB bears the burden to demonstrate its entitlement to each claimed amount pursuant to the terms of the contract as to liability and quantum, but it failed to discharge this burden (‘2nd Defence’; see Section 11 in the Adjudication Response on “Quantum Not Established”). [37] It was further submitted that the 1st Defence was accepted by the Adjudicator as evident from the fact that he dismissed claims for payment in respect of 21 PMI on, among others, the basis that “The Claimant is not entitled to resile from its agreed position and the Claimant is estopped from disputing the agreed amount …” (see paragraphs 104, 180 and 212 of the AD). However, the 2nd Defence was completely ignored and not considered by the Adjudicator in respect of PMI 077, PMI 107 and PMI 129 albeit there was no prior agreement between the parties on the scope of work, quantities and rates. [38] Ultimately, TNB asserted that the Adjudicator did not ascertain the case as framed by MRCB and as responded by TNB i.e. whether there is under-certification and applying the decisions in JKP Sdn Bhd v Anas Construction Sdn Bhd and another appeal [2022] 6 MLJ 503 (CA) and Cantillon Ltd v Urvasco Ltd [2008] EWHC 282, the Adjudicator had breached the rules of natural justice by deciding the case upon a factual or legal basis which has not been put forward by the parties. [39] I have given due consideration to the parties’ arguments and I find that, whilst it is true that, in the adjudication, MRCB took the position that it is entitled to the higher amounts of RM231,584.00 in relation to PMI 077, RM102,318.75 in relation to PMI 107 and RM20,022.80 in relation to PMI 129 as derived from specific rates and quantities and circumstances as put forth by MRCB in its costs proposals, the Adjudicator had considered the parties’ submissions and documentary evidence before he decided to rely on the Recommended Valuation instead of the Final Account in arriving at the adjudicated amount. [40] Among MRCB’s submissions on PMI 077, PMI 107 and PMI 129 in the Adjudication Claim is that “… the PMC, Architect and QS have a contractual and/or legal obligation to act fairly and independently in assessing all claims and Variation claims submitted by the Claimant. However, the Respondent and its Consultants simply refused, neglected and/or failed to properly evaluate and certify the Claimant’s claims even though supporting documents and evidence to substantiate all claims were provided to the Respondent and its Consultant”. On TNB’s part, references were made in the Adjudication Response to, among others, the Final Account to justify TNB’s valuation of MRCB’s claims. [41] The Adjudicator’s analysis of MRCB’s claim in respect of PMI 077 included the facts regarding the Recommended Valuation which was submitted by the QS on 15.10.2020 and MRCB’s disagreement to the same; and the absence of any further correspondence after MRCB conveyed its disagreement on 11.1.2021 and before the issuance of the Final Account on 26.3.2021, and of any reason by TNB for resiling from the Recommended Valuation. [42] The Adjudicator examined the Recommended Valuation and presented his findings as tabulated at p 50 of the AD. Based on the Adjudicator’s review, the Recommended Valuation was maintained in relation to all items except for “… the adoption of the rate of RM130/m2 for the … Sunway Paving Uni-Grass interlocking concrete paver inclusive of the grass inserts …”. The Adjudicator exercised his power under s 25(m) of the CIPAA to “review and revise any certificate issued … pursuant to a construction work contract, decision, instruction, opinion or valuation of the parties or contract administrator relevant to the dispute” in revising the amount for PMI 077 from RM70,416.00 to RM95,328.00 in CP 37. [43] Similar analysis and exercise of power under s 25(m) of the CIPAA was carried out by the Adjudicator for MRCB’s claims in relation to PMI 107 and PMI 129 whereby for the latter, the Adjudicator had provided his comments in the spreadsheet prepared by MRCB showing the differences between MRCB’s proposed price and the Recommended Valuation at p 107 of the AD. [44] MRCB’s original and revised cost proposals, the Recommended Valuation and the Final Account are all part of the documentary evidence which was submitted to the Adjudicator. The Adjudicator found that there is no reason as to why TNB, through its QS, resiled from the Recommended Valuation and opted for a lower sum in the Final Account. To the Adjudicator, the Recommended Valuation forms a good basis for his decision. Hence, this shows that there was under-certification of MRCB’s claim and this led to the Adjudicator awarding MRCB the difference between the amount in the Recommended Valuation and the Final Account. [45] TNB’s criticism is to the Adjudicator’s method in arriving at his findings and conclusion which, in my opinion, is not tantamount to a denial of the right to be heard or to procedural fairness. The parties were given sufficient opportunity to present their respective arguments and out of 26 claims for variation works pursuant to the PMI, only five claims were allowed, that too not in full. [46] As for TNB’s contention that it should have been invited to comment on the Adjudicator’s inclination to rely on the Recommended Valuation before rendering his decision so that TNB could explain the differences in position between the Recommended Valuation and CP 37 and why the valuation in the latter ought to be preferred over the former, the parties were already allowed to submit a Rejoinder and Surrejoinder. An adjudicator has a strict timeline within which he or she must deliver the decision, failing which the adjudication decision is void (see sub-ss 12(2) and (3) of the CIPAA). Moreover, as submitted by Ms. Sajitha, no prejudice has been caused to TNB because the sums in the Recommended Valuation are part of TNB’s own evaluation and was initially recommended by it via its QS. [47] Even if the Adjudicator adopted a wrong approach by not, among others, assessing whether MRCB’s proposed rates and justifications are reasonable, this does not warrant a setting aside of the AD under s 15(b) of the CIPAA (see paragraph 14 in Naza Engineering & Construction Sdn Bhd v. SSL Dev Sdn Bhd [2020] 2 MLRH 436 at pp 442 - 445). [48] In conclusion, the 1st Issue is answered in the negative in that TNB has failed to establish that the Adjudicator went on a frolic of his own and acted in breach of the rules of natural justice in in deciding MRCB’s claims in respect of PMI 077, PMI 107 and PMI 129. - 2nd Issue: As an alternative to the submission in respect of the 1st Issue, whether the Adjudicator failed to provide any reason/ justification in seeking to hold TNB to the Recommended Valuation for PMI 077, PMI 107 and PMI 129 [49] TNB submitted, as an alternative argument to the 1st issue and with reference to the Adjudicator’s duty to provide reasons for the decision in sub-s 12(4) of the CIPAA, that the Adjudicator acted in breach of the rules of natural justice when he failed to provide any justification in seeking to hold TNB to the Recommended Valuation for PMI 077, PMI 107 and PMI 129. [50] In my view, there is no merit in this ground to set aside the AD. The Adjudicator had referred to, among others, the provisions in the CoC; the PMIs; MRCB’s Notices to Claim, spreadsheet and original and revised cost proposals; Minutes of Meetings; correspondence; the Recommended Valuation and the Final Account in assessing the parties’ respective positions and arriving at his decision (see the paragraphs in the AD as set out in [34] above). As stated previously, the Recommended Valuation forms part of TNB’s valuation of MRCB’s variation claims which justifies the Adjudicator’s reference to the same. [51] Overall, I am satisfied that there is adequate reasoning to show the Adjudicator’s thought process when he finally awarded MRCB’s claims for PMI 077, PMI 107 and PMI 129 as summarised in paragraph 509 of the AD. [52] The 2nd Issue is similarly answered in the negative. - 3rd Issue: Whether the Adjudicator proceeded on a frolic of his own in deciding on certain matters relating to PMI 092 in MRCB’s favour without providing TNB an opportunity to comment [53] MRCB averred that the Variation Order for polyurethane coating for Staff Quarters and ST4/ST5 rooftop had been completed pursuant to PMI 092 (see paragraphs 109 - 111 of the Adjudication Claim). Thus, it claimed the sum of RM62,038.0 being the difference between the amount claimed of RM101,200.00 and the certified sum in CP 37. [54] TNB’s contention in respect of PMI 092 is similar to the 1st Issue namely, that the Adjudicator did not decide on the issue whether hacking and cement screeding works were additional works or rectification works based on the submissions of the parties and instead, he went on a frolic of his own to decide as per paragraphs 265 - 268 of the AD. On this basis, the Adjudicator found the value of PMI 092 to be RM89,264.00 and awarded MRCB the sum of RM50,102.00. Further, no opportunity was given to TNB to address the Adjudicator on this specific aspect. [55] In the Adjudication Response (see paragraphs 207 - 218), TNB stated, among others, that the main dispute revolves around whether there was hacking and the need to reconstruct screeding works before paint was applied and whether these activities can be categorised as rectification works as opposed to additional works. [56] The Adjudicator recognised that the dispute is whether the hacking and cement screeding works is part of the additional work as contended by MRCB or rectification works as alleged by TNB (see paragraph 264 of the AD). [57] The Adjudicator referred to the Minutes of Meeting wherein MRCB’s position was recorded as “… the original contract was only requested for cement render without the painting. This PMI was issued to add on the white color polyurethane paint by Nippon. Therefore, MRCB had to chip the surface until it becomes even and then screeding had to be laid on top of the roughen surfaces caused by the chipping process. All these processes are required prior to the application of polyurethane paint by Nippon in order to get their warranty. …”. The meeting concluded with the parties’ agreement to reduce the amount to RM95,000.00 subject to confirmation on the quantity and total area (see paragraph 261 of the AD). [58] The Adjudicator observed in paragraphs 262 and 263 of the AD that at the time of the 2020 VO Meetings and when MRCB provided its justification for the claim, TNB never raised the issue that the screeding did not meet the contract specifications and thus required rectification. However, on 7.12.2020, the QS wrote to MRCB contending that the hacking and re-construct of the topping screed was rectification work to the completed topping screed. [59] The Adjudicator ruled in MRCB’s favour because no Non-Conformance Report (‘NCR’) or other document such as a site memo was produced by TNB to show that it had notified MRCB of non-compliance of screeding works at the location in question and neither was there any written instructions by the Architect to rectify the screed works as required under Clause 6.5 of the CoC on “Work not in accordance with the Contract” (see paragraphs 265 - 267 of the AD). [60] TNB insisted that MRCB’s case at the adjudication was not on the basis of the absence of a NCR and TNB was not given the chance to address the Adjudicator on this aspect whereby TNB could then explain the circumstances which would warrant the issuance of a NCR or instruction pursuant to Clause 6.5 CoC and why the non-issuance of the same in this case is irrelevant to the issue as to whether the screeding works were defective. [61] However, I agree with MRCB’s submission that s 25 CIPAA grants wide powers to an adjudicator, one of which in paragraph (d) is to draw on his own knowledge and expertise of the construction industry. The issuance of a NCR or any form of documentation for works that do not meet the specifications is a trite practice in the construction industry. It is well within the Adjudicator’s powers to consider this practice and he should not be faulted as having acted on a frolic of his own (see Syarikat Bina Darul Aman Bhd & Anor v. Government Of Malaysia [2018] 4 CLJ 248 at p 259 and Terminal Perintis Sdn Bhd v Tan Ngee Hong Construction Sdn Bhd and another case [2017] MLJU 242 as referred to in Sime Darby Property (Bukit Raja) Sdn Bhd v Alaf Pentawaris Sdn Bhd [2020] MLJU 1554 at paragraphs 20 and 21). [62] The parties were given ample opportunities to make submissions and to produce the supporting documents. In the final analysis, the Adjudicator was satisfied that the hacking and cement screeding works is part of the additional work as contended by MRCB. Therefore, there is no breach of natural justice by the Adjudicator as contended by TNB. - 4th Issue: Whether the Adjudicator failed to consider evidence/ arguments raised by TNB in relation to PMI 113 [63] MRCB claimed that it had completed the Variation Order for works in respect of the additional staircase ST12 Riser Gap Cover pursuant to PMI 113. The original design by the Consultants for the staircase was without any riser, however, TNB’s senior management was purportedly concerned about the privacy of female visitors who used the staircase (see paragraphs 202 and 203 of the Adjudication Claim). [64] In defence of the claim, TNB asserted that, as part of, and following, the 2020 VO Meetings, an agreement was reached in respect of PMI 113 in the sum of RM28,000.00. PMI 113 was thus categorised as agreed between the parties without any reservations or caveat valued at RM28,000.00. Subsequently, on 7.12.2021, the Consultants referred to two invoices and conveyed to MRCB that the assessment is revised downwards to RM10,000.00 (‘Consultant’s Notification’; see paragraphs 341 and 342 of the Adjudication Response). [65] In paragraph 401 of the AD, the Adjudicator was of the view that since the parties had agreed to an amount of RM28,000.00, they should not resile from the negotiated position until fresh evidence is adduced. The Adjudicator considered one aspect of TNB’s argument regarding an unrelated invoice for the sum of RM14,000.00 which was adduced by MRCB in support of its claim (‘Unrelated Invoice’), and he found that the impact of the Unrelated Invoice is RM14,000.00 + 15% = RM16,100.00. Therefore, the agreed amount was rationalised/ reduced from RM28,000.00 to RM11,900.00. [66] However, TNB’s grouse is that the Adjudicator did not consider the Consultant’s Notification which would have a material impact to the findings in the AD as the value of PMI 113 will be further reduced to RM10,000.00 as per the amount in CP 37. [67] What TNB failed to highlight to this Court is that the Adjudicator had perused the documents and he explicitly said so in paragraph 399 of the AD as follows: “Based upon the documents before me, I am unable to find any further exchange of communication and/or documents between the Parties beyond 07.12.2020 and up to the issuance of the Final Account by the Respondent (PMC) on 26.03.2021. Hence, I deem that the Claimant did not object to the assertion by the Respondent.”. The Adjudicator’s finding on non-objection by MRCB is in relation to the Unrelated Invoice. [68] Judging by the Chronology of Events as tabulated in paragraph 57 of the AD, “2020 VO Meeting” refers to a high-level meeting which took place on 7.7.2020 and this was followed by several VO meetings from 9.7.2020 to 3.11.2020 before the Final Account was issued on 26.3.2021. [69] MRCB submitted that TNB was shifting its position because, on one hand it admits that there was an agreed sum of RM28,000.00 without reservation or caveat and on the other hand, TNB reduced the sum to RM10,000.00 at a much later date. [70] In my view, the critical part in the AD is as quoted above because it shows that, to the Adjudicator, any communication or documents between the parties concerning the Unrelated Invoice should be conveyed before the issuance of the Final Account. It can thus be deduced that the Adjudicator did not consider the Consultant’s Notification as it was issued well after the date of the Final Account. [71] In the context of an application under s 15(b) CIPAA, the Court cannot set aside the AD merely because relevant evidence has been excluded wrongly by the Adjudicator or he has failed to attach weight to relevant documentary evidence (see Naza Engineering (supra), Globalcon Holding (M) Sdn Bhd v DMC Builder Sdn Bhd [2020] MLJU 1644 at paragraph 37 and Zeta Letrik Sdn Bhd v JAKS Sdn Bhd and other cases [2022] MLJU 2734 at paragraphs 46 and 47). II. O.S. No. 184: The Stay Application [72] TNB’s broad grounds to support the Stay Application, after having fulfilled the threshold requirements of having filed an application to set aside the AD under s 15 CIPAA and the subject matter of the AD is pending final determination by arbitration, are essentially the same as in O.S. No. 166, namely that –