A claimant whose payment claim is dismissed is considered an 'aggrieved party' under CIPAA and may seek judicial review.

[1] The plaintiff here is the claimant in the Adjudication under the Construction Industry Payment and Adjudication Act 2012 ("CIPAA"). The plaintiff here had commenced adjudication against the defendant who was the respondent in the adjudication.

Project

[2] The parties had entered into a contract in writing dated 23 January 2006, wherein the defendant appointed the plaintiff as the Contractor for the construction and completion of Trans Eastern Kedah Interland Highway, from Durian Burung to Kupang Kedah (Package A) ("the Project") in Kedah for a contract sum of RM287,000,000.00 which was subsequently varied bringing the total contract sum to RM347,070,267.53.

[3] The plaintiff subsequently awarded the construction of the whole Works under the Contract to Bayu Melati Sdn Bhd ("Bayu Melati") who in turn subcontracted the Works to Ho Hup Construction Co Berhad ("Ho Hup"). The plaintiff stated that at all material times, the defendant was aware of the subcontract arrangement between the plaintiff, Bayu Melati and Ho Hup. Nothing really turns in this subcontracting though it might explain the nature of some of the documents produced by the claimant to substantiate its loss and expense claim in its payment claim.

[4] The form of contract between the parties is the PWD 203A Standard Form of Contract (Rev 10/83) which further incorporates six addenda and a "Special Provisions of the Conditions of Contract" which itself incorporates the variation of price ("VOP") provision ("the Contract").

[5] Pursuant the Contract, the plaintiff had proceeded to perform the Works commencing in August 2005. The plaintiff was granted five extensions of time for reasons beyond its control, extending the Contract commencement date of 20 August 2005 to 28 October 2010.

Problem

[6] Upon completion of the Works and vide a letter dated 26 January 2011, the plaintiff submitted its claim pursuant to cl 48(a) of the Contract to the defendant claiming the amount of RM22,188,726.00.

[7] The defendant and PJS Consultants Sdn Bhd ("PJS"), the defendants engineering consultant, requested the plaintiff to supply the defendant with the supporting documents to substantiate its claim pursuant to cl 48(a) of the Contract.

[8] There was a long waiting period after that and it was only by a letter dated 5 January 2014 that the defendant informed the plaintiff that they had made a Decision that only RM137,512.95 was due and owing to the plaintiff. The plaintiff was unhappy with the amount claimed and the paltry amount approved by the defendant and so it asked vide its letter of 13 January 2014 to provide details of the amount approved and the reasons and supporting evidence as to why the amount it claimed was not approved. The defendant replied by its letter of 30 January 2014 stating that they were unable to provide details regarding the defendants decision as it was confidential.

[9] The plaintiff as the claimant proceeded with adjudication. The plaintiffs payment claim was for the sum of RM24,061,739.29 due to it under a final claim. The Superintending Officer SO only certified by way of a final account the sum of RM137,512.95 which certified sum had been duly paid to the claimant before the commencement of the adjudication.

[10] The respondents defence as set out in the Payment Response was that the payments were not due under the terms of the Contract and that the said claims were not in accordance with the terms of the Contract and as such the respondent stated that the claimant was not entitled to each of the claims in the payment claim.

Prayers

[11] The parties shall be referred to as claimant and respondent as they appeared in the adjudication.

[12]