An Employer cannot rely on a Dispute Resolution Agreement to oppose a Sub-Contractor's Section 30 Application under CIPAA.

A. Introduction

[1] This judgment concerns the following three originating summonses (3 OS):

(1) OS No BA-24C-29-04/2022 (1st OS) has been filed by the plaintiff company (plaintiff) against Desaru Convention Centre Sdn Bhd [defendant (1st OS)];

(2) the plaintiff has instituted OS No BA-24C-30-04/2022 (2nd OS) against Desaru Estate Sdn Bhd [defendant (2nd OS)]; and

(3) OS No BA-24C-29-04/2022 (3rd OS) has been commenced by the plaintiff against Desaru Corniche Hotel Sdn Bhd [Defendant (3rd OS)].

B. Background

B(1). 1st OS

[2] The defendant (1st OS) had appointed Malaysian Resources Corporation Bhd (MRCB) as the main contractor for the construction of "Desaru Convention Centre" [Project (1st OS)].

[3] By way of a "Letter of Acceptance" (LA) dated 26 October 2015, MRCB appointed the plaintiff to perform certain construction work in the Project (1st OS) [Works (1st OS)].

[4] The plaintiff had performed the Works (1st OS) but had not been paid by MRCB for the Works (1st OS) [Unpaid Works (1st OS)]. Hence, the plaintiff claimed from MRCB for the Unpaid Works (1st OS) under the Construction Industry Payment and Adjudication Act 2012 (CIPAA). I shall refer to the adjudication proceedings commenced by the plaintiff against MRCB regarding the Unpaid Works (1st OS) as "Adjudication Proceedings (1st OS)".

[5] In The Adjudication Proceedings (1st OS):

(1) on 14 December 2021, the adjudicator, Mr Wong Kee Them [Adjudicator (1st OS)], had adjudicated [Adjudication Decision (1st OS)] that, among others, MRCB shall pay to the plaintiff a sum of RM334,998.21 [Adjudicated Amount (1st OS)] with interest and costs as stipulated in the Adjudication Decision (1st OS); and

(2) upon an application by the plaintiff's solicitors, due to a typographical error by the Adjudicator (1st OS), on 11 April 2022, the Adjudicated Amount (1st OS) was amended by the Adjudicator (1st OS) to RM334,988.21 [Amended Adjudicated Amount (1st OS)].

[6] The plaintiff's solicitors had sent a demand dated 21 December 2021 [Plaintiff's Demand-MRCB (1st OS, 21 December 2021)] to MRCB's representative in the Adjudication Proceedings (1st OS), Contract Solutions-I (CS), for MRCB to pay the Adjudicated Amount (1st OS) with interest and costs as stated in the Adjudication Decision (1st OS).

[7] MRCB's solicitors, Messrs Selva Mookiah Associates, replied to the Plaintiff's Demand-MRCB (1st OS, 21 December 2021) in a letter dated 19 January 2022 [MRCB's Letter (1st OS, 19 January 2022)]. According to MRCB's Letter (1st OS, 19 January 2022), among others:

(1) the Defendant (1st OS) owed money to MRCB under the main contract between the Defendant (1st OS) and MRCB with regard to the Project (1st OS) {Main Contract [Defendant (1st OS)-MRCB]}; and

(2) MRCB could not pay the Adjudicated Amount (1st OS) to the Plaintiff because MRCB had not received payment from the Defendant (1st OS) pursuant to the Main Contract [Defendant (1st OS)-MRCB].

Attached to MRCB's Letter (1st OS, 19 January 2022) was MRCB's letter dated 8 April 2021 to the Defendant (1st OS) which enclosed MRCB's "Final Account" for the Project (1st OS) [MRCB's Final Account (1st Project)]. MRCB's Final Account (1st Project) stated that there was an amount of RM33,799,638.10 due from the Defendant (1st OS) to MRCB for works performed by MRCB under the Main Contract [Defendant (1st OS)-MRCB].

[8] By way of a letter dated 24 January 2022, the Plaintiff's solicitors demanded for the Defendant (1st OS) [as MRCB's "principal" for the Project (1st OS) as understood in s 4 CIPAA] to pay to the Plaintiff the Adjudicated Amount (1st OS) with interest and costs as stipulated in the Adjudication Decision (1st OS) {Plaintiff's Demand [Defendant (1st OS), 24 January 2022]}. The Plaintiff's Demand [Defendant (1st OS), 24 January 2022] was made pursuant to s 30 CIPAA.

[9] The solicitors for the Defendant (1st OS) replied to the Plaintiff's De