Statutory adjudication under CIPAA cannot be contracted out, and jurisdictional challenges do not prevent the adjudicator from proceeding with adjudication.

Lee Swee Seng JCA (Majority):

[1] Statutory adjudication was not known until the coming into force of the Construction Industry Payment and Adjudication Act 2012 ("CIPAA") on 15 April 2014. Before that the closest to statutory adjudication was contractual adjudication as may be found in the provisions of some industrial-based standard form construction contracts such as the FIDIC Construction Contract 2017 and the PAM Contract 2018.

[2] The appellant argued that the Court must uphold the freedom of contract especially in commercial matters such that if the parties had previously agreed to exhaust the pre-adjudication dispute resolution process before commencing arbitration, then they must be held to their bargain. After all any attempt to resolve a dispute amicably is to be encouraged and no serious prejudice would be caused to the party who wanted to commence statutory adjudication.

[3] The respondent who was the unpaid party in the construction contract argued that there should be no provision restricting, circumscribing or limiting statutory adjudication other than those that are prescribed under the CIPAA. The respondent further argued that to allow an injunction to stay the adjudication proceedings would be to allow the non-paying party to bypass and skirt statutory adjudication and thus to allow a contracting out of the CIPAA. That would be to defeat the purpose of the CIPAA altogether and to denude it of its efficacy.

[4] The appellant had taken the argument in the High Court below that the adjudicator lacked jurisdiction as the parties had in the FIDIC Construction Contract 2017 ("FIDIC Contract") agreed to refer the dispute to the Dispute Avoidance Adjudication Board ("DAAB") provided for under cl 21 of the FIDIC Contract.

[5] The respondent in reply contended that when a jurisdictional objection is taken, the adjudicator may proceed as if he has jurisdiction and the aggrieved party should then raise it at the stage of setting aside the adjudication decision. See s 27 of the CIPAA.

[6] Thus, when the respondent served on the appellant a Payment Claim and the Asian International Arbitration Centre ("AIAC") proceeded to register the adjudication application on 12 April 2022, the appellant forthwith on 20 April 2022 filed an Originating Summons before the High Court seeking the following reliefs:

"(i) A declaration that the reference by the Respondent of the alleged payment dispute between the parties to adjudication pursuant to CIPAA 2012 is null and void;

(ii) A declaration that the reference by the Respondent of the alleged payment dispute between the parties to adjudication pursuant to CIPAA 2012 is contrary and/or in breach of the terms and conditions of contract entered into between the parties and is therefore null and void;

(iii) A declaration that the alleged payment dispute between the parties be referred to the DAAB pursuant to the terms and conditions of the contract entered into between the parties;

(iv) An order of specific performance that the alleged payment dispute between the parties be referred to the DAAB pursuant to the terms and conditions of the contract entered into between the parties;

(v) An interim injunction restraining the Respondent from taking any step and/or proceeding in Adjudication No.: AIAC/D/ADJ-4202-2022 until the full and final determination of the Originating Summons."

Before The High Court

[7] The appellant proceeded to file on 25 April 2022 an application for an injunction against the respondent to restrain the respondent from taking any further step in the adjudication proceedings in Adjudication No.: AIAC/D/ ADJ-4202-2022 until the hearing and disposal of the appellant's application for injunction.

[8] The High Court granted the ad-interim injunction application on 9 May 2022 and the respondent duly applied to strike out both the Originating Summons and the injunction appli cation under O 18 r 19 and/or O 92 r 4 of the Rules of 2012 ("ROC 2012.").

[9] The High Court agreed with th