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HIGH COURT MALAYA KUALA LUMPUR
WRP ASIA PACIFIC SDN BHD – Appellant
Versus
NS BLUESCOPE LYSAGHT MALAYSIA SDN BHD – Respondent
Key Points: - The adjudication decision can be set aside for denial of natural justice, excess of jurisdiction, improper procurement through fraud or bribery, or lack of independence/impartiality. (!) (!) (!) (!) - The court found that the adjudicator breached natural justice by engaging in unilateral/ex parte communications with one party without informing the other, and the adjudication decision was set aside for this reason. (!) (!) (!) (!) - The adjudicator’s competency was challenged under CIPAA 2012 and CIPAA Regulations 2014; the court reviewed the regulatory standards requiring at least seven years of working experience in the building/construction industry (in Malaysia or recognized fields) and other criteria (certificate in adjudication, not being undischarged bankrupt, no criminal convictions). The court ultimately accepted that the adjudicator met the competency standards as recognized by KLRCA, despite arguments to the contrary. (!) (!) (!) (!) (!) (!) (!) (!) - The court held that because of the bilateral nature of the adjudication process and the severity of procedural breaches, the decision could not be saved despite the adjudicator’s competency finding, and the decision was set aside for natural justice breaches. (!) (!) (!)
| Table of Content |
|---|
| 1. case background and parties' involvement (Para 1 , 2 , 5 , 6) |
| 2. grounds for setting aside adjudication decision (Para 15 , 19 , 24 , 50) |
| 3. importance of natural justice in adjudication (Para 21 , 22 , 102 , 118 , 122) |
| 4. competency criteria for adjudicators (Para 41 , 42 , 43 , 58 , 70) |
| 5. court's decision on the enforcement application (Para 120 , 123) |
A. Introduction
[1] These two cases which are heard together, relate to the same adjudication decision issued on 9 March 2015. NS Bluescope Lysaght Malaysia Sdn Bhd and Bluescope Lysaght (Malaysia) Sdn Bhd [Bluescope] were the Claimants in the adjudication claim while WRP Asia Pacific Sdn Bhd [WRP] was the Respondent. The adjudication decision was in Bluescopes favour. In Originating Summons No 24C-8-04/2015, Bluescope seeks to enforce the adjudication decision under s 28 of the Construction Industry Payment and Adjudication Act 2012 [CIPAA] whereas WRP seeks to set aside that same decision under s 15(a) and (d) of CIPAA under Originating Summons No 24C-17-05/2015.
[2] The parties have agreed that the enforcement of the adjudication decision will depend on the outcome of the application to set a
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