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2022 MarsdenLR 301
HIGH COURT MALAYA SHAH ALAM
MUDAJAYA CORPORATION BHD – Appellant
Versus
KWSL BUILDERS SDN BHD & OTHER CASES – Respondent
[Originating Summons No: BA-24C-9-01/2022 BA-24C-13-02/2022 BA-24C-20-03/2022 & BA-24C-23-04/2022]
Concurrent adjudication and litigation are permissible under the CIPAA, and principles of issue estoppel prevent re-litigation of previously adjudicated matters.
Headnote:(A) Construction Industry Payment and Adjudication Act 2012 – Sections 5, 6, 8, 9, 15, 16, 28 – Adjudication decisions – Setting aside applications and enforcement – MCB sought to set aside adjudication decisions affecting ongoing construction contracts – Court held concurrent adjudication and litigation permissible – Applications dismissed and enforcement granted. (Paras 1-57)
(B)
Adjudication Proceedings – An adjudication proceeding can occur simultaneously with litigation, and grounds for setting aside must follow the statutory provisions of CIPAA. (Paras 30-35)
(C)
Issue Estoppel – MCB barred from re-litigating claims rejected in prior adjudication settings, solidifying finality in dispute resolutions. (Paras 49-52)
Facts of the case:
MCB and KWSL involved in multiple construction contracts, leading to discrepancies requiring adjudication decisions on claims and counterclaims.
Issues
: Whether previous adjudications were contrary to CIPAA, and the questions surrounding the validity of claims made.
Findings of Court:
The court reaffirmed the statutory framework allowing concurrent adjudication and legal proceedings, addressing MCB's claims and the principles of issue estoppel.
Ratio Decidendi:
The adjudicator's error in re-evaluating previously settled matters of adjudication must be in compliance with specific statutory sections and does not equate to abuse of process.
Result:
All applications dismissed with enforcement ordered.
JUDGMENT
(4 Originating Summonses)
A. Introduction
[1] This judgment concerns the following four originating summonses (4 OS):
(1) Mudajaya Corporation Sdn Bhd (MCB) has filed OS No BA-24C-9-01/2022 (OS No 9) against KWSL Builders Sdn Bhd (KSWL) for the following orders:
(a) an order to set aside an adjudication decision made on 19 January 2022 [Adjudication Decision (OS No 9)] by an adjudicator, Dr Wendy Ooi Su Ghee [Adjudicator (OS No 9)], in favour of KWSL against MCB [Setting Aside Application (OS No 9)]; and
(b) if the Setting Aside Application (OS No 9) is dismissed, an order to stay the enforcement of the Adjudication Decision (OS No 9) [Stay Application (OS No 9)] pending the disposal of a suit filed by MCB against KWSL (MCB's Suit). On 11 September 2020, MCB's Suit was initially filed in Kuala Lumpur High Court (KL HC) Civil Suit no: WA-22C-88-09/2020. By an order of KL HC, MCB's Suit had been transferred from KL HC to the Ipoh High Court (Civil Suit no: AA-22C-1-09/2021);
(2) OS No BA-24C-13-02/2022 (Enforcement OS No 13) has been filed by KWSL against MCB for leave of Court to enforce the Adjudication Decision (OS No 9);
(3) MCB has filed against KWSL OS No BA-24C-20-03/2022 (OS No 20) for the following orders:
(a) an order to set aside an adjudication decision made on 2 March 2022 [Adjudication Decision (OS No 20)] by Mr Raja Kumar Raja Kandan [Adjudicator (OS No 20)], in favour of KWSL against MCB [Setting Aside Application (OS No 20)]; and
(b) if the Court dismisses the Setting Aside Application (OS No 20), an order to stay the enforcement of the Adjudication Decision (OS No 20) [Stay Application (OS No 20)] pending the outcome of MCB's Suit; and
(4) OS No BA-24C-23-04/2022 (Enforcement OS No 23) has been filed by KWSL against MCB for leave of Court to enforce the Adjudication Decision (OS No 20).
[2] By consent of parties, OS No 20 had been heard together with Enforcement OS No 23. On 31 May 2022, I have decided as follows:
(1) OS No 20 was dismissed;
(2) Enforcement OS No 23 was allowed; and
(3) one set of costs for OS No 20 and Enforcement OS No 23 shall be paid by MCB to KWSL
[Court's Decision (OS Nos 20 and 23)].
[3] OS No 9 was heard together with Enforcement OS No 13 (with the parties' consent). This Court delivers the following decision in these two OS on 21 June 2022:
(1) OS No 9 was refused;
(2) I allowed Enforcement OS No 13; and
(3) MCB was ordered to pay to KWSL one set of costs for OS No 9 and Enforcement OS No 13
[Court's Decision (OS Nos 9 and 13)].
[4] I have decided to deliver a single judgment for Court's Decision (OS Nos 20 and 23) and Court's Decision (OS Nos 9 and 13) due to the following reasons:
(1) the 4 OS concerned sub-contract works for a project known as "Refinery and Petrochemical Integrated Development Project" in Pengerang, Johore (Project);
(2) MCB's learned counsel had raised issues in the Setting Aside Application (OS No 20) which had also been advanced by the same learned counsel for MCB in the Setting Aside Application (OS No 9). Such a course of action attracts the application of the second limb of res judicata doctrine, the issue estoppel principle; and
(3) the Stay Application (OS No 9) and Stay Application (OS No 20) had applied to stay the enforcement of the Adjudication Decision (OS No 9) and enforcement of the Adjudication Decision (OS No 20) respectively pending the disposal of MCB's Suit.
B. Background
[5] With regard to the Project, MCB had appointed KWSL to do sub-contract works as follows:
(1) in "Letter of Award" (LA) dated 20 July 2016 [LA (Acoustic Elements Works)], MCB had appointed KWSL to supply and install "acoustic elements" in the Project (Acoustic Elements Works);
(2) by way of LA dated 30 August 2016 [LA (Infrastructural Works)], MCB had appointed KWSL to supply and install reinforced concrete "U-Drain Capping Beam and Step-In Staircase" in Phases 2 and 3 of the Workers' Village (Infrastructural Works);
(3) KWSL was appointed by MCB in LA dated 18 October 2016 [LA
