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2020 MarsdenLR 2259
HIGH COURT MALAYA KUALA LUMPUR
LIEW PIANG VOON – Appellant
Versus
WLT PROJECT MANAGEMENT SDN BHD – Respondent
[Originating Summons No: WA-24C-138-06-2020]
Statutory interpretation of 'occupation' in CIPAA requires personal management for jurisdiction; Plaintiff's application dismissed.
Headnote:(A) Construction Industry Payment and Adjudication Act 2012 – Section 3 – Applicability of CIPAA to construction disputes – Plaintiff sought declaration that CIPAA does not apply as the premises are less than four storeys high and for personal occupation – Court held that despite the premises being used for a kindergarten, section 3 applies if the individual occupies it – Plaintiff did not satisfy the requirement of personal occupation as management lies with his daughter, hence, the application was dismissed. (Paras 18-33)
Facts of the case: Dispute arose between the Plaintiff and Defendant regarding unsatisfactory renovation works, leading to disputes over applicability of CIPAA. (Paras 1-19)
Findings of Court: Court confirms that disputes are adjudicable under CIPAA as Plaintiff does not manage the premises. (Paras 30-33)
Issues: Whether Plaintiff's premises fall under the jurisdiction of CIPAA, particularly relating to personal occupation requirements. (Paras 23-32)
Ratio Decidendi: Statutory interpretation dictates the word 'occupation' in CIPAA should be understood in its broadest sense, however, full requirements of section 3 were not met by the Plaintiff. (Paras 29-31)
Result: Plaintiff's application dismissed with costs.
Introduction
[1] This is an application for an order to declare that the Construction Industry Payment and Adjudication Act 2012 ("CIPAA") does not apply to the construction disputes between the parties.
[2] The Plaintiff is an individual and co registered proprietor with both his sons of a double storey house located at No. 2, Jalan Desa 8/4, Bandar Country Homes, 48000 Rawang, Selangor ("Premises").
[3] The Defendant is private limited company and involve in building renovation business.
Background And Preliminaries
[4] By a letter of award dated 20 June 2019 ("Contract"), the Plaintiff appointed the Defendant to carry out renovation works to the Premises ("Works").
[5] In the course of the Defendant carrying out of the Works, the Plaintiff alleged that the progress of the Works was unsatisfactory as well as that the Works were fraught with defects. Consequently, the Plaintiff refused to pay the Defendant for work done under the Contract which resulted in the Defendant suspending the further carrying out of the Works.
[6] The parties met but were unable to compromise and settle their disputes and differences.
[7] As a result, the Defendant through its solicitors, Messrs PT Siew & Associates by letter dated 22 May 2020 demanded for payment for work done under the Contract in the sum of RM52,856.83 from the Plaintiff.
[8] The Plaintiff through his solicitors, Messrs. Derek Chong replied by letter dated 28 May 2020 denied the Defendant's claim and stated that the disputes and differences should be referred to arbitration as provided in the Contract.
[9] However, the Defendant through its solicitors, Messrs PT Siew & Associates by letter replied that the Defendant intended to refer the disputes and differences to statutory adjudication under the CIPAA.
[10] The Plaintiff took the position that statutory adjudication is inapplicable in respect of their disputes and differences by virtue of s 3 of the CIPAA. Accordingly, the Plaintiff filed this application praying for the following:
"1. satu pengisytiharan/deklarasi bahawa apa-apa pertikaian-pertikaian yang berbangkit antara Defendan dan Plaintif berkenaan dengan projek yang diperihalkan sebagai "Proposed Renovation Work on No. 2, Jalan Desa 8/4, Bandar Country Homes, 48000 Rawang, Selangor for Liew Piang Voon (LPV)" ("Projek Tersebut") tidak dirangkumi atau termasuk dalam bidangkuasa ("Does not fall within the ambit and jurisdiction") CIPAA;
2. satu perintah injunksi yang menghalang Defendan sama ada dirinya sendiri, pekerja-pekerja dan/atau ejen-ejennya, atau sebagaimanapun daripada memulakan prosiding adjudikasi terhadap Plaintif berkenaan dengan apa-apa pertikaian yang berbangkit antara Defendan dan plaintif berkenaan dengan Projek Tersebut;
3. kos dibayar oleh Defendan kepada Plaintif; dan
4. relif-relif lain dan/atau selanjutnya sebagaimana Mahkamah Yang Mulia ini anggap sesuai, patut dan adil."
[11] The affidavits that were filed for purposes of this application are as follows:
(i) Plaintiff's affidavit in support affirmed by Liew Piang Voon dated 24 June 2020; and
(ii) Defendant's affidavit in reply affirmed by Lee Hon Kit dated 7 July 2020.
[12] The application was fixed for hearing before me on 13 July 2020 and 6 August 2020. After having read the written submissions filed by the parties and oral argument of counsel, I deferred my decision to deliberate on the arguments put forth by them.
[13] That notwithstanding, the Plaintiff on 10 August 2020 filed a further supporting affidavit no. 2 affirmed by Liew Piang Voon dated 10 August 2020. The Defendant objected to the admissibility of the affidavit which was filed without leave of the Court.
[14] The filing of affidavits is governed by O 28 r 3C of the Rules of 2012. In particular, it is provided in rule 3C(1) as follows:
"(1) Unless otherwise provided in any written law, where the plaintiff intends to adduce evidence in support of an originating summons, he shall do so by affidavit and shall file the affidavit or aff
