Only advocates registered under the Advocates Ordinance (Sabah Cap 2) may represent clients in adjudication proceedings, as any other representation is unlawful and lacks jurisdiction.

JUDGMENT

Wong Siong Tung JC:

Introduction

[1] The Plaintiff is a company having its registered and business in Kota Kinabalu, Sabah and whereas, the Defendant is a company having its registered office in Kuala Lumpur.

[2] Sometime in June 2019, the Plaintiff and the Defendant entered into a contract contained in various documents in writing whereby the Plaintiff appointed and engaged the Defendant to carry out the construction of a project works known as "the proposed development of 27 units of Resort Villas (Phase 1 A) on part of CL. 045329048 at Pantai Dalit, Tuaran, Sabah" (hereinafter referred to as "the said Project Works") for the sum of RM51,189,353.37.

[3] Towards the end of 2019, disputes arose between the parties relating to the progress claims made by the Defendant under the contract.

[4] After the Defendant through the firm of Messrs. Gananathan Loh served payment claim for RM3,634,824.14 and failing any payment response served by the Plaintiff, the Defendant initiated adjudication proceedings under the Construction Industry Payment And Adjudication Act, 2012 (CIPAA) by a notice of adjudication issued by Messrs Gananathan Loh.

[5] In due course, the Director of Asian International Arbitration Centre (AIAC) [formerly known as Kuala Lumpur Regional Centre For Arbitration (KLRCA)] appointed Ms Catherine Chau Siew Ping of Messrs. Catherine Chau & Associates in Kota Kinabalu, Sabah as the adjudicator under reference No AIAC/D/ADJ-3479-2020.

[6] The said Adjudicator gave her notice dated 17 December 2020 of her acceptance of the appointment to act as the adjudicator in the matter and also gave her Direction No 1 pertaining to the time for service of the Defendant's Adjudication Claim, of the Plaintiff's Adjudication Response and of the Defendant's Adjudication Reply on the other party.

[7] Pursuant to the said directions as given, the Defendant by Messrs. Gananathan Loh served on the Plaintiff an Adjudication Claim dated 5 January 2021.

The Application Of The Applicant

[8] On 8 January 2021, the Applicant/Plaintiff took out the Originating Summons herein (which was amended as ordered by the court on 13 January 2021 [ie, encl 9]) to stay the said adjudication proceedings under reference No AIAC/D/ADJ-3479-2020.

[9] The grounds of the application are that the adjudication proceeding is a Sabah proceeding for which the solicitors/representatives, Messrs. Gananathan Loh appointed by the Defendant to act therein are not authorised persons under s 15 of the Advocates Ordinance (Sabah Cap 2), are non-members of the Sabah bar and that it is illegal and an offence for Messrs. Gananathan Loh to represent the Defendant in the adjudication proceedings.

Submission And Contentions Of The Applicant/Plaintiff

[10] The Plaintiff's counsel submitted that under s 25 and/or s 35 of the Courts of Judicature Act 2012, the court has a discretion to grant or refuse a stay of the adjudication proceedings initiated by the Defendant under CIPAA.

[11] He submitted that the adjudication proceedings so initiated by the Defendant is a Sabah proceeding.

[12] He contended that Sabah advocates have exclusive right to their legal practice in cases arising in Sabah "in and outside" courts and that this is the constitutional right of Sabah Advocates.

[13] The Plaintiff's counsel submitted that Messrs. Gananathan Loh are unauthorised persons under s 15 of the Advocates Ordinance (Sabah Cap 2) ("said Ordinance") as none of the advocates in the said firm appointed to represent the Defendant in the adjudication proceedings is on the roll of Sabah Advocates and has a valid certificate to practice.

[14] He submitted it is not only unconstitutional but also illegal for Messrs. Gananathan Loh to commence an adjudication proceeding having regards to s 16 (1) (a) and (d) of the said Ordinance.

[15] He submitted that the court should not allow an unconstitutional and illegal act. He contended that these are the special circumstances for the court to order a stay of the adjudication pr