Breach of natural justice occurs when an adjudicator fails to allow parties to comment on material evidence, impacting the fairness of proceedings.

Introduction

[1] As is the usual practice, the Court heard three applications together, with the agreement of the parties, Pesat Bumi Sdn Bhd ('PB') and Cescon Engineers Sdn Bhd ('Cescon'). These applications are set out below:

(a) the application by Cescon pursuant to s 28 of the Construction Industry Payment and Adjudication Act 2012 [Act 746] ('CIPAA'); O 69A, rr 2 and 5 of the Rules of 2012 ('RoC 2012'); and/ or the inherent jurisdiction of the Court in Originating Summons ('OS') No. WA-24C-163-07/2020 (encl 1; 'Enforcement Application') to enforce the Adjudication Decision dated 19 June 2020 ('AD') by the learned Adjudicator, Mr Harjeet Singh a/l Sardara Singh ('Adjudicator');

(b) the application by PB pursuant to s 15 CIPAA and/ or the inherent jurisdiction of the Court in OS No WA-24C-176-08/2020 (encl 1; 'Setting Aside Application') to set aside the AD; and

(c) the application by PB pursuant to s 16 CIPAA and/ or the inherent jurisdiction of the Court in OS No WA-24C-177-08/2020 (encl 1; 'Stay Application') to stay the AD.

[2] After having considered the cause papers and written submissions filed, and upon hearing the oral submissions by learned counsels who represented the parties, the Court had allowed PB's Setting Aside Application with costs of RM7,500.00, subject to allocator; dismissed Cescon's Enforcement Application with costs of RM3,000.00, subject to allocator; and dismissed PB's Stay Application with no order as to cost.

[3] PB is dissatisfied with the decisions in respect of the Setting Aside Application and Enforcement Application and is now pursuing its right of appeal.

[4] My full grounds of judgment for the Setting Aside Application and Enforcement Application are explicated in the ensuing paras.

Background Facts

[5] PB is a company incorporated in Malaysia and has its registered address at 40 - 1, Jalan Metro Pudu 2, Fraser Business Park, 55200 Kuala Lumpur. The nature of PB's business is as a general contractor and property developer.

[6] Cescon is a company incorporated in Malaysia and has its registered address at Lot 4. 100, Level 4, Wisma Central, Jalan Ampang, 50450 Kuala Lumpur. Its business is in engineering and project management, consultants including the provision of maintenance and other related services.

[7] PB is the employer of a project known as "Cadangan Pembinaan Pangsapuri Perkhidmatan Yang Mengandungi:- (A) 1 Blok Pangsapuri Perkhidmatan 38 Tingkat (507 unit) di Aras 7 Hingga Aras 44 dan 1 Tingkat Kemudahan Di Aras 7 Di Atas 8 Tingkat Podium Yang Mengandungi 6 Tingkat Tempat Letak Kereta Di Aras "Upper Ground" hingga Aras 5, 1 Tingkat Lobi dan "Drop Off' di Aras Bawah Dan 1 Tingkat Kemudahan M & E di Aras "Lower Ground"; Dan (B) 1 Blok Pangsapuri Perkhidmatan 6 Tingkat (72 unit) Di Atas Lot PT 21079 Seluas 3.8 Ekar, Genting Permai, Mukim Bentong, Daerah Bentong, Pahang Darul Makmur ('Project').

[8] PB had appointed Geo Hill Construction Sdn Bhd ('Geo Hill') as the contractor for the Project.

[9] PB and Geo Hill entered into two sets of agreements, both being the Agreement And Conditions Of PAM Contract 2006 (With Quantities) ('PAM Contract') read together with the Amplifications And Supplementary Clauses to the PAM Contract, for the following works in the Project:

(a) Stage 1 Works known as "Earthworks, Retaining Walls, Bored Piling, Contiguous Bored Piling (CBP) and Foundation Works" for the contract sum of RM29,500,000.00 ('Stage 1 Works'); and

(b) Stage 2 Works known as "Main Building Works" for the contract sum of RM198,500,000.00 ('Stage 2 Works').

The total value of works for Stage 1 Works and Stage 2 Works is RM228,000,000.0