The court affirmed that a breach of natural justice must be material to impact an adjudication decision, and the Adjudicator's decision was not solely based on one piece of evidence but on a holistic assessment of the arguments presented.

DECISION

Alexander Siew How Wai JC:

[1] In KCH-24C(ARB)-1-2-2020(HC1), the Plaintiff Jumsar (Sarawak) Sdn Bhd ("Jumsar") had applied by way of Originating Summons (encl 1) to set aside an Adjudication Decision against it and in favour of the Defendant Robin Dockyard & Engineering Sdn Bhd ("Robin Dockyard").

[2] In addition, Jumsar had applied for a stay (Enclosure 3).

[3] In KCH-24NCvC-2/1-2020 (HC2), Robin Dockyard in turn had applied by way of Originating Summons (encl 1) for enforcement of the Adjudication Decision under s 28 of the CIPA Act 2012 .

[4] The various applications referred to above were heard together.

[5] On August 12, 2020 this Court dismissed Jumsar's application to set aside the Adjudication Decision and application for a stay and allowed Robin Dockyard's application to enforce the Adjudication Decision.

Background

[6] Jumsar was the sub-contractor for the Kuching Waterfront Darul Hana Musical Fountain Project (the "Project").

[7] Robin Dockyard was a sub-contractor of Jumsar, sub-contracted to supply and install a floating pontoon (the "Floating Pontoon").

Primary Dispute

[8] The primary dispute between the parties which led to the adjudication proceedings and the instant litigation can be summarized as follows:

8.1. According to Jumsar, it was part of the contract between the parties that Robin Dockyard was to supply and install a protection screen for the Floating Pontoon.

8.2. According to Robin Dockyard, in respect of the protection screen, Robin Dockyard was only contracted to install the protection screen and it was for Jumsar to supply the protection screen for Robin Dockyard to install.

Secondary Dispute

[9] In addition to the primary dispute, Jumsar also alleged that the Floating Pontoon had various defects at the time of delivery, which allegations Robin Dockyard denied.

[10] The Adjudicator ruled in favour of Robin Dockyard on both issues and ordered Jumsar to pay Robin Dockyard the sum claimed by Robin Dockyard.

Jumsar's Grounds For The Setting Aside

[11] In its Originating Summons (Enclosure 1) and supporting affidavit (Enclosure 2), Jumsar claimed the Adjudicator had acted in breach of natural justice and in excess of jurisdiction.

[12] The relevant part of Jumsar's Originating Summons is set forth below:

"The grounds for this application are, inter alia, as follows:

(a) The Adjudicator had made a serious mistake in his findings of fact. The Adjudicator erred when he found that the "15m protection screen" was not part of the Floating Pontoon by failing to take into account the Plaintiff's preliminary drawings and the Defendant's revised quotation dated 4 June 2018 which clearly provides for the same;

(b) The Adjudicator had failed to observe natural justice by going off on a frolic of his own to allow the Defendant's claim upon a basis which has not been argued or put forward in their pleadings, namely; the Adjudication Claim; Adjudication Response and Adjudication Reply by either party, ie the Certificate of Practical Completion which the Adjudicator obtained from Malaysia Audit General's report via public domain- under Laporan Ketua Audit Negara- Pengurusan Aktiviti dan Pengurusan Syarikat Kerajaan Negeri - Sarawak - Tahun 2018 Siri 2 p 43 (chapter 2-5). The Plaintiff was not given the opportunity to comment on the Certificate of Practical Completion of the project (untested evidence) before the Adjudicator issued his decision;

(c) The Adjudicator had acted in excess of his jurisdiction by relying on the material found in the internet which was not raised by both the Plaintiff and the Defendant in their said pleadings when the Adjudicator knows or ought to have known that the untested evidence is decisive or of considerable potential importance to the outcome of the adjudication matter. The untested evidence obtained by the Adjudicator from the internet resulted in the wholesale dismissal of the issues raised by the Plaintiff in their Adjudication Response;

(d) The Adjudicator had failed to consider the issues ra