Adjudication decisions under the CIPAA are enforceable unless material breaches are proven; factual complaints do not justify setting aside the adjudicator's decision.

JUDGMENT

Lim Chong Fong J:

Introduction

[1] These are cross applications to set aside and enforce an adjudication decision made under the Construction Industry Payment and Adjudication Act 2012 ("CIPAA").

[2] The Plaintiff in Originating Summons No WA-24C-253-11/2019 ("OS 1") and the Defendant in Originating Summons No WA-24C-200-10/2019 ("OS 2") is a private limited company involved in property development business.

[3] The Defendant in OS 1 and the Plaintiff in OS 2 is also a private limited company involved in bored piling and foundation work business.

[4] For easy of reference, the parties will hereinafter be addressed as ASM and EP respectively.

Background And Preliminary

[5] By a letter of award dated 26 September 2019 ("Contract"), ASM appointed EP as the contractor to carry out the Work Package 1: Diaphragm Wall, Contiguous Bored Pile, Earthworks, Piling Works and Basement Structure Works (Basement 2 to LG 1) for the project known as "Cadangan Pembangunan Bercampur 69 Tingkat Yang Mengandungi 7 Blok Pangsapuri Servis (4214 unit) Di Atas Lot 36190, Mukim Petaling, Kuala Lumpur" ("Works")

[6] The Contract incorporated the PAM Conditions of Contract 2006 Edition (With Quantities) ("PAM Conditions") as amended by ASM. The superintending officer ("SO") responsible for the administration of the Contract is the executive director of ASM.

[7] The date of commencement and completion date of the Works stipulated in the Contract are 8 October 2016 and 7 January 2018 respectively.

[8] Since commencement of the carrying out of the Works, EP encountered difficulties and the completion date was extended to 7 April 2018.

[9] However, the Works were not completed by the extended completion date. The parties therefore negotiated on the further revision of the completion date of the Works which included having revised completion dates on stage or sectional basis for parts of the Works. There seem to be no mutually acceptable agreement achieved between the parties.

[10] As a result, ASM's architect in early 2019 retrospectively issued a certificate of non-completion dated 7 April 2018 which entitled ASM to deduct or recover liquidated and ascertained damages ("LAD") for late completion from EP.

[11] Since the commencement of the Works, EP submitted 27 progress payment claims Notwithstanding that interim payment certificates have to be issued monthly under the Contract, the SO only issued 15 interim payment certificates. The certification of the rest of the progress payment claims was withheld.

[12] EP consequently issued to ASM its notice of default dated 25 February 2019 pursuant to cl 26 of the PAM Conditions and EP thereafter by letter dated 13 March 2019 determined its employment under the Contract accordingly.

[13] By a letter dated 21 March 2019, ASM disputed EP's determination of its employment under the Contract.

[14] In consequence, EP separately commenced adjudication proceedings against ASM for its progress payment claims no 16 to 24 and progress payment claims no 25 and 26.

[15] The subject matter of OS 1 and OS 2 here relate to EP's adjudication of progress payment claims no 25 and 26 ("Adjudication").

[16] At the request of EP, the director of the Asian International Arbitration Centre appointed Ar. Menaha Ramanath as the adjudicator to conduct the Adjudication ("Adjudicator").

[17] After having considered the adjudication claim, adjudication response and adjudication reply submitted by the parties, the Adjudicator on 17 September 2019 issued her adjudication decision ("Decision"). In her Decision, she awarded the sum of RM6,039,324.99 together with interest and costs to EP.

[18] Since ASM did not honour the Decision as awarded, EP instituted OS 2 on 9 October 2019.

[19] ASM is dissatisfied with the Decision and therefore instituted OS 1 on 27 November 2019.

[20] The affidavits which were filed for purposes of OS 1 are as follows:

(i) ASM's affidavit in support affirmed by Mohd Farid bin Dato Hj. Nawawi dated 27 November 2019;

(ii) EP's affidavit