Adjudication decisions under the Construction Industry Payment and Adjudication Act must adhere to principles of natural justice, ensuring both parties have the opportunity to address all decisive issues.

Lim Chong Fong J:

Introduction

[1] There are cross applications to set aside and enforce an adjudication decision made pursuant to the Construction Industry Payment and Adjudication Act 2012 ("CIPAA").

[2] The Plaintiff in Originating Summons No: WA-24C-204-10/2019 ("OS 1") and the Defendant in Originating Summons No: WA-24C-182-09/2019 ("OS 2") is a public limited company involved in integrated resort business in Genting Highlands.

[3] The Defendant in OS1 and the Plaintiff in OS2 is a private limited company involved in interior fit-out business.

[4] For purposes of this decision, the parties are referred to as Genting and PLMI respectively for ease of reference.

Background Facts

[5] By letter of award dated 21 October 2016 which incorporated the PAM Conditions of Building Contract (2006 ed) ("Contract"), Genting appointed PLMI as the contractor to design, fabricate, supply, deliver, install, test, commission and maintain the Fox Plaza Themed Façade and Common Area Works ("Works") for the proposed Twentieth Century Fox World at Resorts World Genting project ("Project").

[6] During the course of the construction of the Project, PLMI did not complete the Works within the extended time granted pursuant to the Contract.

[7] As a result, the superintending officer of the Project on 10 September 2018 issued a notice of default to PLMI for failure to proceed regularly and diligently with the Works. Subsequently, Genting on 1 October 2018 issued a notice to determine the employment of PLMI under the Contract.

[8] In consequence, Genting on 7 May 2019 appointed Worldbuilt Sdn Bhd as the contractor to complete the remaining uncompleted Works.

[9] PLMI disputed the determination of its employment and initiated adjudication proceedings under the CIPAA against Genting on 20 April 2019.

[10] At the conclusion of the adjudication proceedings, the adjudicator gave his decision in favour of PLMI ordering Genting to pay PLMI the sum of RM8,158,579.55 together with interest, adjudication fees and expenses and costs.

[11] Consequently, PLMI on 24 September 2019 commenced OS 2 to enforce the adjudication decision and Genting subsequently on 11 October 2019 commenced OS 1 to set aside the adjudication decision.

[12] The affidavits that were filed for purposes of OS 1 are as follows:

(i) Plaintiff's affidavit in support affirmed by Izwan bin Abdullah @ Loke Kong Sing dated 11 October 2019; and

(ii) Defendant's affidavit in reply affirmed by Megat A'rmand Yazid bin Jeffery Adzman dated 4 November 2019; and

(iii) Plaintiff's notice of intention to use affidavit dated 7 January 2020.

[13] The affidavits that were filed for purposes of OS 2 are as follows:

(i) Plaintiff's affidavit in support affirmed by Megat A'rmand Yazid bin Jeffery Adzman dated 24 September 2019;

(ii) Defendant's affidavit in reply affirmed by Izwan bin Abdullah @ Loke Kong Sing dated 14 October 2019; and

(iii) Plaintiff's affidavit in reply affirmed by Megat A'rmand Yazid bin Jeffery Adzman dated 4 November 2019.

[14] Both OS 1 and OS 2 came before me for hearing on 21 January 2020. After having read the written submissions filed by the parties and heard oral clarifications of counsel, I deferred my decision to deliberate on the arguments advanced by them.

[15] Now having done so, I now furnish my decision below together with the supporting grounds.

Contentions And Findings

[16] Mr Ivan Loo of counsel for Genting principally contended that the adjudication decision ought to be set aside because the adjudicator acted in excess of jurisdiction and/or breached natural justice when he found that Genting's determination of the employment of PLMI was unlawful and invalid based on reasons not argued or put forth by the parties.

[17] According to him, PLMI in the adjudication proceedings contended that the determination of its employment under the Contract was unlawful because PLMI's application for extension of time no 4 was not considered by the superintending officer prior to his issuance of the noti