An adjudication decision, although enforceable, remains disputable, and winding-up petitions based on such decisions can be restrained if genuine disputes exist.

Darryl Goon Siew Chye J:

[1] This was an application by the Plaintiff for an injunction to restrain the Defendant from presenting a winding up petition against it based on an adjudication decision.

Background

[2] The Plaintiff is a building contractor. By a Letter of Award dated 26 September 2016, but signed on 4 October 2016, the Defendant was appointed by the Plaintiff as the main contractor for a construction project described as:

"Cadangan Pembangunan Bercampur 69 Tingkat Yang Mengandungi 7 Blok Pangsapuri Servis (4214 Unit), iaitu Blok A-58 Tingkat (678 Unit), Blok B-58 Tingkat (618 Unit), Blok C-58 Tingkat (560 Unit), Blok D-58 Tingkat (678 Unit), Blok E-58 Tingkat (618 Unit), Blok G-58 Tingkat (502 Unit). 8 Tingkat Podium Tempat Letak Kereta, 7 Tingkat Ruang Perniagaan (Aras 1-7), 1 Tingkat Aras Kemudahan (Aras 9), 4 Tingkat Tempat Letak Kereta (Aras Kemudahan (Aras 9), 4 Tingkat Tempat Letak Kereta (Aras LG1, Basement 2 & Basement 1) di atas Lot 36190, Mukim Petaling Kuala Lumpur"

[3] hereinafter referred to as the "Project".

[4] Based on the Letter of Award, the contract between the parties would consist of several documents including the Agreement and Conditions of PAM Contract 2016, all of which shall collectively be referred to as the "Construction Contract" for ease of reference.

[5] Disputes arose between the parties and a payment claim dated 15 January 2019 was made by the Defendant on the Plaintiff under the Construction Industry Payment and Adjudication Act 2012 ("CIPAA"). In reply thereto, the Plaintiff issued its Payment Response on 30 January 2019.

[6] The Defendants payment claim was for a total sum of RM74,887,164.34 allegedly due from the Plaintiff in respect of the Project. This sum claimed was made up of unpaid progress claims, some of which were uncertified by the Plaintiff, and the undervaluation of works done in respect of a Certificate of Payment no 15.

[7] The Plaintiff, in response, denied that there was any undervaluation as alleged. It also contended that it had counterclaims and set-offs against the Defendant in excess of the amounts claimed by the Defendant.

[8] On 18 March 2019, in parallel with the adjudication claim that was made and afoot, the Defendant issued a notice of arbitration on the Plaintiff to refer "disputes and/or differences" that were said to have arisen between the parties. Arbitration was the form of dispute resolution agreed to between the parties under the Construction Contract. This notice of arbitration issued by the Defendant was in respect of its claims and damages based on alleged breaches of the Construction Contract by the Plaintiff. Significantly, these claims encompassed the payment claims the Defendant had earlier made under the CIPAA.

[9] On 17 May 2019, another notice of arbitration was issued, this time by the Plaintiff on the Defendant. This notice of arbitration was also premised upon disputes in respect of the Construction Contract and included a declaration of its wrongful termination and claims for loss and damage incurred. As there were now two separate arbitrations initiated by the parties, a proposal that both the disputes be consolidated and heard before a single arbitrator was included in the notice of arbitration.

[10] On 21 June 2019, in the adjudication proceedings, the learned Adjudicator gave his decision in favour of the Defendant. It was decided that the Plaintiff was to pay the Defendant (i) RM67,767,269.32 being the adjudicated sum, (ii) RM150,000.00 being legal costs; and (iii) RM203,924.40 being costs of the adjudication.

[11] On 25 June 2019, just four days later, the Defendants solicitors served on the Plaintiff a statutory demand for payment of the sums owed to the Defendant totalling RM67,985,244.12, under s 466(1)(a) of the Companies Act 2016 .

[12] By this statutory demand the Plaintiff was also informed that if it neglected, failed and/or refused to pay the sum demanded within twenty one days or to secure or compound for it to the re