Tid Design (M) Sdn Bhd v Akrivis Tegas Engineering (WA-24C-42-03/2024)

TID Design (M) Sdn Bhd (“TID”) has applied to this Court in the Originating Summons No. WA-24C-42-03/2024 (OS 42) to enforce the Adjudication Decision dated 26.2.2024 (“AD”) that it obtained against Akrivis Tegas Engineering (“Akrivis”) pursuant to section 28 of the Construction Industry Payment and Adjudication Act 2012 (“CIPAA”). S/N uHwtgBhqU0GgbIIJ2tgbQg **Note : Serial number will be used to verify the originality of this document via eFILING portal 3 [2] In the submissions before me, learned counsel for Akrivis that the same is a sole proprietorship owned by one Looi Sing Yew and is not an incorporated company.

For the record, Akrivis had in turn filed an Originating Summons No. WA-24C-62-04/2024 (OS 62) to set aside the AD in accordance with section 15 of CIPAA and this Court had heard both OS 62 and OS 42 together on 26.8.2024 and had decided on 4.10.2024 that both OS 62 and OS 42 should be dismissed.

Looi Sing Yew is a sole proprietor trading under the name and style of “Akrivis Tegas Engineering” with its principal place of business at S-12A-6, Jalan SS 19, SS19, 40150 Subang Jaya, Selangor Darul Ehsan. At all material times, Akrivis goes under the trade name of Akrivis Tegas Engineering and is not an incorporated company and is owned by one Looi Sing Yew as a sole proprietorship.

Looi Sing Yew engaged TID Design via the letter of award dated 4.7.2022 (“Letter of Award”) as its subcontractor to carry out the “Electrical and ELV System Works” (“Sub-Contract Works”) for the Project for a contract sum of RM2,200,000.00 (“Contract Sum”)(“Sub-Contract”).

Thereafter, disputes arose between parties where TID Design commenced adjudication proceedings against Akrivis (without naming Looi Sing Yew) for a sum of RM856,627.37 purportedly due S/N uHwtgBhqU0GgbIIJ2tgbQg **Note : Serial number will be used to verify the originality of this document via eFILING portal 4 under Progress Claim No. 5 pursuant to Construction Industry Payment and Adjudication Act 2012 (“CIPAA”) vide the notice of adjudication dated 23.10.2023 (“Notice of Adjudication”).

Subsequently, Mr. David Yek Tak Wai was appointed as the adjudicator.

During the Adjudication, Looi Sing Yew made a request for the Adjudicator to exercise its power under Section 25(g) of CIPAA to conduct an evidential hearing so that evidence can be given through witnesses (“Request for Hearing”), but the Request for Hearing was rejected by the Adjudicator.

the Adjudicator eventually delivered the Adjudication Decision in favour of TID Design as granted the sum of RM856,627.37 to TID Design with cost and interest. It is worth noting that the Adjudicator has identified Akrivis as an incorporated company and as the Respondent.

After going through the documents before this Court and in particular exhibit LSY-1 in enclosure 4 of OS 42, I had made a finding that Akrivis Tegas Engineering (“Akrivis”) is not a legal entity and is in reality a sole proprietorship business owned by one Looi Sing Yew.

The law on whether a sole proprietorship can be sued or sue in its business name is settled in that a sole proprietorship cannot sue or S/N uHwtgBhqU0GgbIIJ2tgbQg **Note : Serial number will be used to verify the originality of this document via eFILING portal 5 be sued, see OSK Construction Sdn Bhd v Anuradhaa Jayasingam [2022] 1 LNS 3011, KLIA Associates Sdn Bhd & anor v Mudajaya Corporation Sdn bhd [2020] 1 LNS 1253, Global Built v LKL Ceiling Enterprise & anor [2022] 1 LNS 1507 & China metallurgical Construction (M) Sdn Bhd v Galaxy Plumbing & Construction [2023] 1 LNS 95.

In KLIA Associates Sdn Bhd & anor (supra) Lim Chong Fong J (as he then was) had held “[29] It is trite law as seen from the cases of Haji Abdul Rahman v. Government of Malaysia & Anor [1966] CLJU 215; [1966] 1 LNS 215; [1966] 2 MLJ 174, Bencon Development Sdn Bhd v. Majlis Perbandaran Pulau Pinang & Ors [1999] 8 CLJ 37; [1999] 2 MLJ 385, Vestime Corporation Sdn Bhd v. YBLE Resources Sdn Bhd & Ors [2006] 2 CLJ 196; [2006] 3 MLJ 554, Selvaraju a/l Ponniah v. Suruhanjaya Perkhidmatan Awam Malaysia & Anor [2007] 7 MLJ 1 and Tiffany Chau v. Jabatan Imigresen Malaysia & Anor [2020] 2 CLJ 715; [2020] 8 MLJ 503 that an action could not be taken against a body that has no legal status. This is in my view applicable to all legal proceedings including arbitration proceedings as well as statutory adjudication under the CIPAA.”

Since the Adjudication proceedings and the Adjudication Decision (“AD”) was brought against and made only against Akrivis, it is my considered view that the Adjudication and the AD is in my decision invalid in law as Akrivis does not possess any legal personality as a business and therefore is not a legal personality per se. S/N uHwtgBhqU0GgbIIJ2tgbQg **Note : Serial number will be used to verify the originality of this document via eFILING portal 6 [14] I rely on and humbly quote the authority of the Supreme Court in Wong Yoon Yar v Lin Yin Thai [1987] 2 MLJ 714 to support my decision where it was held “We would like to make one observation on the legal status of a firm or “chop” tenant as loosely described by many in the country. There is still a popular misconception prevalent amongst illiterate tradesmen in the country that a firm or “chop” is an entity. That is not so. Unlike a company registered under the Companies Act which is itself a legal entity, a firm or “chop” although it may be registered under other legislation is nothing more than a convenient name or label for a number of persons carrying on a business in a partnership or for that matter for a sole proprietor carrying on a business. Those persons could use their own individual names if they wished followed by some such words as “trading under the style of” whenever they transacted any business. But this might well be inconvenient, especially if there were numerous partners. The obvious solution is to select one short name to include all partners. That is the “chop” name. The same situation applies to a sole proprietor. He may not wish to carry on business in his own name but prefer to choose something more colourful or meaningful to bring luck and prosperity to his business. So, he chooses a “chop” name and trades under that. But he does not by so doing create an entity separate from himself ….”

Based on my grounds above, I hold that the Plaintiff in Originating Summons No. WA-WA-24C-42-03/2024 (OS 42) cannot enforce the AD against Akrivis Tegas Engineering as it not a legal personality recognized by the law. S/N uHwtgBhqU0GgbIIJ2tgbQg **Note : Serial number will be used to verify the originality of this document via eFILING portal 7 [16] Following from that and on the same grounds, I hold that enclosure 1 of OS 42 is dismissed with costs. Dated: 4th day of October 2024 sgd. NADZARIN WOK NORDIN HIGH COURT JUDGE CONSTRUCTION COURT 1 COUNSEL FOR THE PLAINTIFF: Dinesh Nandrajog (Messrs Nandrajog] COUNSEL FOR THE DEFENDANT: Tan Zhang Wei and Edward Yii (Messrs Sia Boon Chee & Co.] S/N uHwtgBhqU0GgbIIJ2tgbQg **Note : Serial number will be used to verify the originality of this document via eFILING portal