A stay of an adjudication decision requires clear justification, and a party's inconsistent positions may undermine their claims for such relief.

(Enclosure 5)

Introduction

[1] The Plaintiff had by way of encl 5 (Encl 5) and pursuant to s 16 of the Construction Industry Payment and Adjudication Act 2012 ("CIPAA") and/or O 69A r 4 of the Rules of court 2012 applied to stay the Adjudication Decision dated 9 February 2023 ("AD") granted in favour of the Defendant pending the final disposal of the arbitration proceedings between the Plaintiff and the Defendant commenced by way of Notice of Arbitration dated 28 April 2023.

[2] The grounds in support of encl 5 were inter alia as follows:

2.1 Pursuant to a Letter of Award dated 14 May 2014 ("LOA") and subsequently Articles of Agreement dated 13 April 2015 incorporating the Conditions of Building Contract (Private Edition Without Quantities - PAM Revised 2006) ("Contract") for the Construction and Completion of Basement and Ground Floor Slab for the Proposed Erection of a Mixed Development Comprising 1 Block Commercial/Soho (723 Units) 56 Storey Tower & 4 Storey Basement (Phase 1 and 2) on Lot 3370 s 41, Jalan Dewan Sultan Sulaiman, Mukim Kuala Lumpur for the Plaintiff known as "The Luxe @ Infinitum" ("Project"), the Defendant was appointed as the Contractor by the Plaintiff to carry out construction works;

2.2 The Defendant failed, neglected and/or refused to complete the work within the Extended Date of Completion. Therefore, a Liquidated and Ascertained Damages ("LAD") of RM7,410,000.00 was imposed against the Defendant on 27 April 2017 due to its delay in completion of works;

2.3 The Defendant commenced the adjudication proceeding against the Plaintiff;

2.4 The proceeding culminated in the Adjudication Decision which is now the subject matter of the Defendant's Kuala Lumpur High court Originating Summons No WA-24C-30-02/2023 to enforce the Adjudication Decision ("OS 30") and the Plaintiff's Kuala Lumpur High court Originating Summons No WA-24C- 47-03/2023 to set aside the Adjudication Decision ("OS 47");

2.5 On 28 April 2023, the Plaintiff issued a Notice of Arbitration against the Defendant to commence arbitration in seeking declarations and orders in relation to the Plaintiff's LAD claim and claim for rectification costs by third parties against the Defendant;

2.6 The Adjudication Decision was sought to be stayed on the following grounds:

a. There are clear errors in the Adjudication Decision, especially the ways the Adjudicator dealt with the Plaintiff's jurisdictional objection, acted in excess of his jurisdiction and the breach of natural justice;

b. The Defendant is currently dormant and impecunious based on the following circumstances:

i. The Defendant's business premises are shut and appears not to be in operation;

ii. The Defendant's financial statement reflected losses as at the financial year ending 31 January 2018. There are no records of filing of the subsequent financial statements with the Companies Commission of Malaysia for five (5) consecutive years;

c. Therefore, there is risk that the Plaintiff will not be able to recover the sum paid arising from the Adjudication Decision to the Defendant if the arbitration is decided in the Plaintiff's favour; and

d. There is no urgency for the enforcement of the Adjudication Decision, as it took almost six (6) years after the issuance of the Certificate of Practical Completion for the Defendant to initiate the Adjudication.

[3] After hearing the respective learned counsels submitting orally before this court on 6 June 2023 and reading their written submissions filed earlier, this court had dismissed with costs in the cause encl 5 but ordered in accordance with prayer 3 thereto a stay pending the decision of the setting asi