The court upheld that adjudication decisions under CIPAA are final unless statutory grounds to set them aside exist.

[1] This is an application to set aside an adjudication decision that was made under Construction Industry Payment Adjudication Act 2012 (CIPAA). The Adjudicator ordered the plaintiff to pay the defendant the sum of RM1,615,000.00. The defendant has objected to the application on the ground that it does not fall within the confines of s 15 of CIPAA.

Brief Background Facts

[2] The plaintiff was appointed by ABB Malaysia Sdn Bhd on 9th March 2011 to carry out sub-contract works in respect of a project known as Sabah Forest - ABB Mill Expansion Project. The sub-contract works is known as Electrical and Erection Works. The plaintiff sub-contracted the entire Electrical and Erection Works to the defendant. The plaintiff issued Purchase Order No 009/03/11 dated 18th February 2011 to the defendant. The sub-contract agreement between the plaintiff and defendant incorporated the terms and conditions of the agreement between the plaintiff and main contractor, ie ABB Malaysia Sdn Bhd. The sub-contract sum was stated as RM2,600,000.00. The defendant claimed a further RM1,750,000.00 for additional works which increased the sub-contract price to RM4,350,000.00. Two further purchase orders (IEM/0073/08/2011 dated 24th August 2011 for the sum of RM1,160,000.00 and IEM/003/01/2012 dated 18th January 2012 for the sum of RM590,000.00) were issued by the plaintiff for the additional works. After taking into account the payment of RM2,735,000.00, the defendant claimed that a sum of RM1,615,000.00 was outstanding. This sum was stated in the Payment Claim/Work Done Certificate No 1 for the period ending on 31st May 2012 issued by the plaintiff. Upon refusal of the plaintiff to pay this sum, the defendant issued the Payment Claim pursuant to s 5 of CIPAA on 23rd June 2015. The plaintiff did not issue a Payment Response under s 6 of CIPAA. Thus a dispute had been deemed come into existence under s 6(4) of CIPAA. As the parties failed to agree on the appointment of an Adjudicator, the KLRCA appointed an Adjudicator who is a quantity surveyor by profession. On 27th August 2015, she gave directions to the parties. She ordered the defendant to file the Adjudication Claim on or before 9th September 2015. The plaintiff was ordered to file the Adjudication Response on or before 25th September 2015. As for the Adjudication Reply, the defendant was ordered to file on or before 2nd September 2015. The defendant filed the Adjudication Claim on 9th September 2015 by email and the hardcopy documents were received by the Adjudicator on 11th September 2015 via courier. The Adjudicator stated in her Decision that the plaintiff did not serve the Adjudication Response within ten days of receipt of the Adjudication Claim as stipulated in s 10(1) of CIPAA. She should have received the Adjudication Response by 25th September 2015. However, she received it by fax only on 28th September 2015. In the premises, she ruled that she will not consider the Adjudication Response. The Adjudicator exercised her power to direct parties to produce documents by way of clarification. She also directed parties to submit interrogatories. The deadline she set was 20th November 2015 for submission via email and 24th November 2015 for submission via hard copy. On 19th November 2015, the defendant applied for extension of time for submission of the documents and the interrogatories. It was granted by the Adjudicator.

Decision Of Adjudicator

[3] The Adjudicator addressed two mains issues. The first issue was whether there existed a written contract. The first Purchase Order No 009/3/11 is dated 18th February 2011 whereas the main contract is dated 9th March 2011. She held that there was a concluded contract for the following reasons. She said there was certainty of parties, certainty of price and certainty of works. She also said that the completion of works was confirmed by the Certificate