Allegations of lack of impartiality in adjudication decisions must be supported by clear evidence, and distinct jurisdictional grounds must be clearly articulated.

Azlan Sulaiman J

Introduction

[1] Connecting these two Originating Summons that I had directed to be heard together is an Adjudication Decision dated 26 November 2024 in Adjudication Proceedings Ref: AIAC/D/ADJ-5432-2024 ("AD 5432") that Greencon Resources Sdn Bhd ("Greencon") had obtained against Exyte Malaysia Sdn Bhd ("Exyte") under the Construction Industry Payment and Adjudication Act, 2012 ("Act").

[2] By Originating Summons No: WA-24C-198-12/2024 ("OS 198"), Exyte is seeking to set AD 5432 aside under ss 15(b), 15(c), 15(d) of the Act.

[3] By Originating Summons No: WA-24C-201-12/2024 ("OS 201"), Greencon is in turn invoking s 28 of the Act to enforce AD 5432 against Exyte.

[4] On 18 April 2024, Exyte and Greencon had amicably agreed to a stay of AD 5432 pending the disposal of OS 198. Thus, there is no issue of any stay of AD 5432 under s 16(1)(a) of the Act to be resolved.

[5] I had directed both Originating Summonses to be heard together as a matter of practicality given that they are in respect of the same AD 5432, albeit on opposite sides of the proverbial coin. This Judgment is thus on both.

[6] Further as a matter of prudence, I will consider and decide OS 198 first and then only OS 201 not just because of the order in which they were filed, but for the simple reason that, if AD 5432 is set aside, then there will be nothing left to enforce. The converse is true, in that if Exyte fails to set it aside, then AD 5432 ought to be allowed to be enforced. That is, in fact, how Exyte and Greencon had set up their respective stalls.

Salient Background Facts

[7] By a Letter of Award dated 1 November 2021, Exyte had appointed Greencon to carry out certain works relating to the design, execution and completion of excavation, formwork, reinforced concrete works and backfilling of C04A - Substructure Works for Building F1 for the Intel Pelican Project ("Project").

[8] On 19 June 2024, Greencon issued a Payment Claim under the Act to Exyte, which was specifically in respect of payment of the sum of RM1,524,087.81 under Certificate of Payment No. C04A-026 dated 27 October 2023 in the sum ("COP 26").

[9] In the resulting AD 5432, Exyte is to pay to Greencon:

(i) RM1,524,087.81 with interest at the rate of 5% per annum from 26 December 2023 until full payment; and

(ii) Costs of RM55,670.00 with interest at the rate of 5% per annum from 10 December 2024 until full payment.

[10] In AD 5432, the Adjudicator had also rejected Exyte's defences, including for back charges / deductions.

[11] Exyte filed OS 198 on 10 December 2024, and Greencon filed OS 201 three days later.

[12] Exyte has not paid to Greencon any of the sums payable under the AD 5432.

OS 198

[13] Section 15 of the Act is demarcated specifically for setting an adjudication decision aside. This s 15 also confines the Court's powers for setting an adjudication decision aside to one or more of the four instances set out in limbs (a), (b), (c) and (d) thereof. Section 15 of the Act provides:

"15. Improperly procured AD 5432

An aggrieved party may apply to the High Court to set aside an adjudication decision on one or more of the following grounds:

(a) the adjudication decision was improperly procured through fraud or bribery;

(b) there has been a denial of natural justice;

(c) the adjudicator has not acted independently or impartially; or

(d) the adjudicator has acted in excess of his jurisdiction. "

[14] As I had said earlier, Exyte is seeking to set AD 5432 aside under limbs (b), (c) and (d). However, before going into a deep dive on Exyte's grounds for invoking those limbs, there are a few observations that I would like to make.

[15] Firstly, though a party's grounds for setting an adjudication decision aside may involve more than one of those limbs, each limb is distinct and separate, and each have their own characteristics and requirements. Suffice to say that none of them are synonymous or interchangeable. But often enough I do find that litigants do mention more than one of them