CIPAA applies to all construction contracts and related payment disputes regardless of their date, intended to facilitate timely cash flow and provide an efficient adjudication mechanism.

[1] The Construction Industry Payment and Adjudication Act 2012 (Act 746) (CIPAA) is a much awaited piece of legislation. For years, the idea of establishing such a regime was bandied around both in the construction industry and the legal profession that serves that industry. It would be fair to say that until the Arbitration Act of 2005 [Act 646] was ensconced in the legal landscape, and that piece of legislation was itself long in making its appearance, the idea of introducing and adopting the English practice of adjudication was seen with much scepticism. So, when CIPAA was finally enacted by Parliament in 2012, it was welcomed with much fanfare. Numerous courses, seminars, lectures, conferences were organised to introduce and familiarise all who were either affected by or simply interested or curious to know about CIPAA. Many assumed training as adjudicators, anticipating to play some role when the Act was enforced.

[2] Little did anyone know that CIPAA was not to come into force for another two years. It was not until 15 April 2014 that at the simultaneous launch of the Construction Court at Kuala Lumpur and Shah Alam, the Minister in charge announced that CIPAA would come into force on that same day. "Business" under CIPAA then started.

[3] The present two Originating Summonses relate to two adjudication claims which are amongst the firsts to be conducted under CIPAA. The adjudicators are appointed by the Kuala Lumpur Regional Centre for Arbitration [KLRCA], the body cloaked with authority to administer matters related to adjudication under CIPAA.

[4] Both Originating Summonses were filed around the same time. Initially, the two cases were heard separately. This Court had already reserved the first case [ORIGINATING SUMMONS NO: 24C-06-09/2014] for decision when the second case [ORIGINATING SUMMONS NO: 24C-05-09/2014] was heard. Upon hearing submissions in the second case, the Court was of the view that the two cases ought to be heard together given that there were many common issues, and because both cases have raised similar issues of law which are being considered for the first time under CIPAA. The Court then directed the submissions in both cases to be made available to the parties in the other case so that all can and will benefit from fuller and comprehensive arguments in order that those issues can be properly considered. All parties were agreeable.

[5] When the two cases were called, the Court invited the parties to submit on the application, if at all, of the Federal Courts decision in Westcourt Corporation v. Tribunal Tuntutan Pembeli Rumah , [2006] 1 MLJ 339; and several other aspects which were not considered at all by the parties in their earlier submissions. Subsequently, all parties made further submissions; and this is the Courts decision in both cases.

[6] "CIPAA" or "the Act" shall be referred to interchangeably here. One of the central issues in both cases concerns the operation of the Act, whether it applies to payment disputes and construction contracts that were made prior to the coming into force of the Act. There are other is