All works in respect of the project shall now carried out in accordance with the conditions of the PAM Contract 2006 (Without Quantities) (“PAM 2006”). As such, your subcontract works in partial or as a whole would be treated as completed upon issuance 8 of certificate of partial or practical completion by the architect as per PAM 2006. [11] After reading the above said paragraph 3 of the SA, I do agree with EK that the literal words as referred to therein is clear that the Works in the Project was to be carried out in accordance with the PAM Contract. [12] It has also been brought to the notice of this Court that this was the position taken by EK in its Adjudication Claim and that UM had in their Adjudication Response admitted to this fact. After perusing the said Adjudication Claim and the Adjudication Response, and in particular to paragraph 8 of the Adjudication Response, I hold that this is indeed the case. [13] In the circumstances, I do hold that UM’s contention herein that the Adjudicator had mis interpreted paragraph 3 of the SA when the Adjudicator had stated that the terms of the PAM Contract is clearly untenable and is an attempt to challenge the merits of the said findings, which is in my view and the law is trite on this, not provided for in section 15 of CIPAA. I therefore totally reject the notion that there is any breach of natural justice on this point. [14] As to the contention that the Adjudicator failed to appreciate the fact that the Final Account is not the Final account as envisaged under Clause 30.10 of the PAM Contract, this Court has found that the Adjudication Response at paragraphs 16 and 28 had admitted that the said Final Account prepared by Tres IQS Consultancy Sdn Bhd is the Final Account under Clause 30.10 of the PAM Contract. This 9 would of course estop UM from contending otherwise before this Court and I must add that UM cannot approbate and reprobate their position as and when they see fit. [15] The Adjudicator had in the AD disagreed with UM on this issue of Final Account prepared by Tres IQS Consultancy Sdn Bhd is the Final Account under Clause 30.10 of the PAM Contract after going through the submissions of the parties, the PAM Contract, the evidence before the Adjudicator, the pleadings before the Adjudicator, the without prejudice letters and also held that she had the power to review and revise any certificates under section 25(m) and (n) CIPAA. [16] After reviewing all of the above, I again find no breach of natural justice on the issue mentioned in the above paragraph as this appears to me to be another attempt to appeal against the decision of the Adjudicator for which the Adjudicator had clearly considered and decided after careful consideration. [17] I have read the Adjudicator’s decision with regards UM’s allegation that the Adjudicator had acted contrary to natural justice when she rejected EK’s letter of 27.2.2023 due to the words ‘without prejudice’ appearing at the top of the letter and find that the Adjudicator had in the AD on this point held that the said letter “...cannot be evidence to show acceptance of the purported Final Account”. [18] I agree with learned counsel for EK that these are determination of facts pertaining to the said ‘without prejudice’ letter and this finding of fact should not be disturbed by this Court so long as the Adjudicator had asked herself the right question. The fact that she may have 10 arrived at a wrong conclusion by failing to make a distinction that there was an ongoing negotiation between the parties is, with respect, not a ground for UM to challenge the same as this amounts to an appeal against the said finding which is not permitted under section 15 CIPAA. [19] I will now deal with UM’s contention that the Adjudicator acted contrary to natural justice when she decided that EK was entitled to the Variation Works based on clause 11 of PAM even though EK had purportedly failed to meet the necessary conditions for VO Works claim under clauses 4 and 37 of the LA. [20] From the AD, I find that the Adjudicator had decided on this issue that the LA was still subject to clause 11 of the PAM Contract with regards variation orders and held that “…. and as such, the value of these additional works (or omission) ought still to be assessed in accordance to the Contract” and after having gone through the documents submitted by both parties and considered the rate and quantities in respect of the 19 disputed VO Claims as well as the evidence submitted, the Adjudicator had in my view detailed her reasons for allowing each and every VO Works in the AD itself. [21] I have after reading the AD, make a similar finding with regards the contention of UM that the Adjudicator had allegedly acted in excess of her power when deciding and allowing the VO claims for Ming Seng Tiling Sdn Bhd and rejecting the back charges as well as in awarding late payment interest. 11 [22] I therefore find that the Adjudicator had made a finding of fact on all of these issues and had not acted contrary to natural justice. Again, I hold that the decision on these issues cannot be challenged as this would be akin to an appeal on the merits of the claim and the decision of the Adjudicator which is not permissible under section 15 CIPAA. [23] In conclusion I do not find any manifest error by the Adjudicator on any of the issues raised by UM in the matter before me and therefore I hold that the Adjudicator had not acted in excess of the Adjudicator’s power and jurisdiction as the Adjudicator had, at the risk of repetition, given both parties the right to be heard and had considered all relevant material, submissions and pleadings of both sides before making the Adjudicator’s decision as per the AD. [24] The contention that the Adjudicator had not exercised her powers under the various sub sections in section 25 CIPAA is clearly an attempt to find fault with the AD and has not been proven on a balance of probabilities to this Court’s satisfaction. I will go so far as to say that no evidence was put before this Court on the alleged lack of exercise of the Adjudicator’s powers but that UM had merely made bare averments of the same without any supporting evidence. Decision On OS 214 [25] To surmise, I find that the fact of UM raising the issues before this Court is merely due to UM being unhappy with the merits of the Adjudicator’s decision in the AD. In the circumstances I am dismissing enclosure 1 of OS 214 with costs. 12 OS 186/Enforcement of the AD [26] Accordingly, as there are no legal impediments with regards the AD and the Adjudicated Sum is still due and owing, I am granting Order In Terms for prayers 1, 2 a–f and prayer 3 of OS 186. Dated: 20th day of May 2024 sgd. NADZARIN WOK NORDIN HIGH COURT JUDGE CONSTRUCTION COURT 1 COUNSEL FOR THE PLAINTIFF(SUIT 186) / DEFENDANT(suit 214): Yeoh Leng Yang (for EK Build) (Messrs YY Chin & Co.] COUNSEL FOR THE DEFENDANT(SUIT 186) / PLAINTIFF(suit 214): Cecilia Tan Shee Shia and Fatin Izyan binti Muhamad Fadzil (for UM Land) (Messrs Soh Hayati & Co.]