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2025 MarsdenLR 3835
HIGH COURT MALAYA KUALA LUMPUR
DAMAI CITY SDN BHD – Appellant
Versus
GRAND DYNAMIC BUILDERS SDN BHD & ANOTHER CASE (ENCLS 1 & 11) – Respondent
[Originating Summons Nos: WA-24C-139-09/2024 & WA-24C-143-09/2024]
The court upheld the validity of a delayed adjudication decision due to intervening judicial management and restraining orders, holding that these circumstances justified the delays despite claims of exceeding jurisdiction.
Headnote:(A) Construction Industry Payment and Adjudication Act 2012 - Sections 15(b), 15(d), 16(1)(b), and 28 - Delay in delivering adjudication decision - Adjudicator determined that the Adjudication Decision delivered after extensive delays triggered by restraining orders and judicial management was valid, despite claims of excess jurisdiction by the applicant - Court refrained from interfering with the Adjudicator's decision on res judicata, ruling on contractual performance, or overall findings. (Paras 33-35, 41, 67)
(B) Natural Justice - Adjudicator has the discretion to limit submissions, and the request for a rejoinder was rejected appropriately without breaching principles of fair process. (Paras 58-59)
(C) Legal Proceedings - The term 'proceedings' includes adjudicative requests, and statutory moratoriums under Companies Act restrict ongoing legal actions against the company. (Paras 36-40)
Facts of the case:
In Originating Summons, DCSB challenged a delayed Adjudication Decision, asserting excess jurisdiction and procedural errors, while GDB sought enforcement of payments. The proceedings were prolonged by multiple restraining orders and judicial management applications initiated by DCSB.
Findings of Court:
The Adjudicator's decision was valid, ruling against claims of wrongful jurisdiction and reaffirming the necessity of timely payments.
Issues: The main issues addressed included the validity of the Adjudication Decision regarding delays, whether the Adjudicator was correct in rejecting the request for a rejoinder, and application of res judicata in context to the Covid-19 Act.
Ratio Decidendi: The court held that delays in adjudication were acceptable due to company restructuring issues and that DCSB cannot benefit from its own delays while asserting that the Adjudicator exceeded jurisdiction.
Result: Applications dismissed.
| Table of Content |
|---|
| 1. jurisdictional basis for applications related to adjudication. (Para 1 , 2 , 3) |
| 2. claims and defenses raised regarding payment issues. (Para 4 , 14) |
| 3. contractual obligations and events leading to disputes. (Para 5 , 6 , 7 , 8 , 18) |
| 4. adjudicator's adherence to statutory timelines. (Para 33 , 34 , 39) |
| 5. proper adjudication procedures and considerations for judicial review. (Para 50 , 56 , 61) |
| 6. final judgments on requests made to the court. (Para 66 , 69) |
(Enclosure 1 & 11)
Introduction
[1] In Originating Summons No WA-24C-139-09/2024 (OS 139), Damai City Sdn Bhd ("DCSB") had applied under encl 1 (encl 1) to this Court to Inter Alia under O 69A rr 2, 3, 7 and/or O 92 r 4 of the rules of 2012 and/or s 15(b) and (d) of the Construction Industry Payment And Adjudication Act 2012 ("CIPAA") for:
a. a declaration that the Adjudication Decision dated 20 August 2024 (AD) is illegal and void;
b. an order to set aside the said AD; and
c. an Order for costs.
[2] There is also in OS 139 an application under encl 11 for a stay of the AD pursuant to s 16 (1)(b) CIPAA (encl 11) pending the disposal of the stay application or the disposal of the Arbitration Proceedings under in encl 1.
[3] On the other hand, Originating Summons No. WA-24C-143-09/2024 (OS 143) is Grand Dynamic Builders Sdn Bhd ("GDB") application to enforce the AD in accordance with s 28 CIPAA.
[4] In support of OS 139, DCSB alleges amongst others that:
4.1 the Adjudicator failed to deliver the AD within the time prescribed under CIPAA which tantamounts to him being in excess of jurisdiction;
4.2 the Adjudicator failed to give grounds or reasons with regards cl 25.4(d) of the PAM Contract being the entitlement to the Employer not to make payments including certified sum;
4.3 the Adjudicator had failed to allow DCSB to file a Rejoinder Application;
4.4 the issue of Interim Certificate No 24 which DCSB claims had not matured and were therefore not due;
4.5 issues of Res Judicata.
Brief Background Facts
[5] By way of a letter of award dated 9 November 2020, DCSB appointed GDB as the main contractor to carry out building works for a project known as the 8 Conlay Project located at Lot 20000 (Lot Lama 111 & 112) s 63, Bandar Kuala Lumpur, Jalan Conlay, Wilayah Persekutuan Kuala Lumpur ("8 Conlay Project") with the total award sum being RM 1,249,000,000.00.
[6] The following, read together, constitute the Contract between parties for the 8 Conlay Project:
(a) Letter of Award dated 9 November 2020 with the correspondences between the parties appended which was to form part of the Letter of Award;
i. Contractor's letter ref.: GDBSB/HQ/MGT/DCSB/2112 dated 28 October 2020
ii. Contractor's Revised Alternative Tender Submissions - Tender Addendum No 5(R) via the Contractor's letter ref.: GDBSB/HQ/MGT/DCSB/211 dated 21 October 2020
iii. Contractor's Revised Alternative Tender Submissions - Tender Addendum No 5(R) via the Contractor's letter ref.: GDBSB/HQ/MGT/DCSB/2093 dated 15 October 2020
iv. Contractor's Alternative Tender Submissions - Tender Addendum No 5 (R) via the Contractor's letter ref.: GDBSB/HQ/MGT/DCSB/2090 dated 12 October 2020
v. Contractor's Alternative Tender Submissions via the Contractor's letter ref.: GDBSB/HQ/MGT/DCSB/2056 dated 25 September 2020
(b) The "Agreement and Conditions of PAM Contract 2006 (With Quantities)", issued under the sanction of the Pertubuhan Arkitek Malaysia ("PAM"), together with the supplementary clauses, amplification notes, amendments, and modifications thereto as set out in Document G - Annexure to the Conditions of Contract ("PAM Contract");
(c) The Contract Drawings;
(d) The Contract Bills; and
(e) Other documents incorporated in the Contract Documents, unless expressly stated to be excluded therefrom.
[7] Subsequent to the Contract, the parties had also:
(a) by way of Letters of Amendments dated 15 December 2020 and 22 March 2022 agreed to amend the terms and conditions of the Contract; and
(b) entered a Supplementary Agreemen
