The court affirmed that adjudicators under CIPAA 2012 have jurisdiction over both interim and final claims, and upheld the principle of natural justice in adjudication proceedings.

JUDGMENT

(2 Originating Summonses)

Sumathi Murugiah JC:

A. Introduction

[1] Due to non-payment, Bauer (Malaysia) Sdn Bhd (Bauer) being the unpaid party had commenced an Adjudication Proceeding pursuant to the Construction Industry Payment and Adjudication Act 2012 (the CIPAA 2012) against Pasukhas Sdn Bhd (Pasukhas) being the non-paying party to claim for the sum of RM2,459,735.97 At the Adjudication Proceedings, the Adjudicator, Ir. Ang Kok Keng (the Adjudicator) decided in favour of Bauer.

[2] Arising from the Adjudication Decision dated 8 December 2023 (AD), the followings Originating Summons were filed by both Bauer and Pasukhas at this court:

(i). OS No BA-24C-2-01/2024 (Enforcement OS) was filed by Bauer against Pasukhas to enforce the AD pursuant to s 28 of the CIPAA 2012; and

(ii). OS No BA-24C-98-12/2023 (Setting Aside OS) was filed by Pasukhas to set aside the AD pursuant to s 15 of the CIPAA 2012. Pasukhas had also filed a Notice of Application for Stay of Execution of the AD via encl 8 in the same OS.

[3] Since there are 2 Originating Summons and a Notice of Application filed in relation to this AD, the parties agreed to having both these suits and the application heard together and for the decision to be delivered together. Since this is a cross suit between the parties, for ease of reference the parties will be referred to henceforth with the acronym of Bauer and Pasukhas wherever applicable.

[4] This court had delivered its decision on 27 September 2024, Pasukhas being dissatisfied with the said decision has applied for an appeal against the said decision. This Grounds of Judgment is written for the purpose of the appeal.

B. Brief Background

[5] By a Letter of Award dated 20 October 2014 which includes a Bill of Quantity (BQ), Pasukhas appointed Bauer as the sub-contractor to carry out the piling works for a contract sum of RM18,805,063.65 for the "sub-structure and part external works" for the project known as "Cadangan Mendirikan Skim Pembangunan Bersepadu Pelancongan dan Wellness Centre (Medical Tourism) yang Mengandungi:

A) Di atas Lot 841

1) 1 Blok 'Hotel' 9 Tingkat (102 Bilik) dengan 1 Tingkat Tempat Letak Kereta Aras Separa Bawah Tanah

2) 1 Blok 'Servis Apartment 1' 16 Tingkat (83 unit) dengan 1 Tempat Letak Kereta Awas Bawah Tanah

B) Di atas Lot 842

1) 1 Blok 'Wellness Centre' 5 Tingkat dan Ruang Perniagaan 4 Tingkat dengan 1 Tingkat Tempat Letak Kereta Aras Separa Bawah Tanah

2) 1 Blok 'Servis Apartment 2' 26 Tingkat (87 unit dengan Tingkat Podium dan dengan I Tingkat Tempat Letak Kereta Separa Bawah Tanah

3) Sewer Treatment Plant (STP) di Aras Besmen

C) Cadangan Jejembat yang Menghubung Lot 841 dan Lot 842

at Lot 841 and Lot 842, Jalan Teluk Bahang, Mukim 2, Teluk Bahang, DBD, Pulau Pinang (the Project).

[6] The contract sum of RM18,805,063.65 was reduced to RM9,030,716.63 when Pasukhas formally removed/omitted approximately half of Bauer's scope of works in the contract on 23 February 2015.

[7] Bauer's payment claim issued to Pasukhas was for the sum of RM2,459,735.97 being the outstanding amount payable excluding 6% Goods and Services Tax (GST).

[8] Pasukhas did not respond to the Bauer's payment claim and as such, Bauer commenced Adjudication Proceedings against Pasukhas pursuant to s 7(2) of the CIPAA 2012 and had served the Notice of Adjudication dated 4 July 2012 to Pasukhas.

C. Adjudication Proceedings

[9] Both Bauer and Pasukhas had agreed to include email and courier service as valid and agreeable mode of service for notices and documents under s 38 of the CIPAA 2012. As such, the Adjudication Claim was served to Pasukhas by Bauer via email on 13 September 2023 and an Amended Adjudication Claim was served on 19 September 2023 to Pasukhas via email.

[10] Pasukhas had served an Adjudication Response on 73 October 2023 and the same was replied by Bauer on 10 October 2023.

[11] The Adjudicator had in considering the issues raised before him in this Adjudication Proceedings had opined that the issue on Liquidated Ascertain