An adjudication decision made beyond prescribed timelines is void under CIPAA, as parties must explicitly agree to any extension.

JUDGMENT

Wong Kian Kheong J:

A. Three Novel Issues

[1] This originating summons (OS) is a case of first impression regarding the following three questions:

(1) does an adjudicator have power under s 12(1) read with s 25(p) of the Construction Industry Payment and Adjudication Act 2012 (CIPAA) to extend the "45 working days" time period prescribed in s 12(2)(a) of the CIPAA (Prescribed Time Period [s 12(2)(a)]) for the adjudicator to "make" the adjudication decision?; and

(2) if the answer to the above issue is "no":

(a) whether the doctrine of equitable estoppel bars a party against whom an adjudication decision is made (X) from applying to Court to set aside the adjudication decision on the ground that the adjudication decision is void under s 12(3) of the CIPAA because the adjudication decision has been "made" beyond the Prescribed Time Period [s 12(2)(a)] (Breach [s 12(2)]); and

(b) can X acquiesce to the Breach [s 12(2)]?

B. Background

[2] By way of a construction contract dated 15 December 2018 (Contract), the plaintiff company (plaintiff) had appointed the defendant company (defendant) to build a three-storey car service workshop and office in Selangor Darul Ehsan (Works).

[3] The defendant had commenced adjudication proceedings under the CIPAA against the plaintiff (AP). In the AP:

(1) the defendant had claimed for a sum of RM2,013,509.65 from the plaintiff for Works which had been performed by the defendant but had not been paid by the plaintiff to the defendant under the Contract (defendant's Claim);

(2) the Director of Asian International Arbitration Centre (AIAC) had appointed Encik Masoud Moinfar (Adjudicator) to adjudicate the defendant's Claim;

(3) the plaintiff was represented by Messrs Darryl, Edward & Co [plaintiff's Solicitors (AP)]. Messrs Raja, Darryl and Loh now represent the plaintiff in this OS. Messrs PY Hoh & Tai acted on behalf of the defendant [defendant's Solicitors (AP)];

(4) at 10.02 am, 8 October 2021, the Adjudicator sent an email to the plaintiff's Solicitors (AP) and defendant's Solicitors (AP) [Adjudicator's Email (8 October 2021)] which stated as follows, among others:

"To the [defendant]

Thank you for presenting your Adjudication Reply via email and delivery to my office.

I wish to request that you or the [plaintiff], provide me with proof/acknowledgement of physical delivery of the same to the [plaintiff's] representative please.

Once this is confirmed, service of the Adjudication Reply marks the end of the submission stage in the adjudication process ..."

[Emphasis Added];

(5) the defendant's Solicitors (AP) replied to the Adjudicator's Email (8 October 2021) at 10.20 am, 8 October 2021 in an email which stated that the defendant's Solicitors (AP) had served the hard copy of the Adjudication Reply (AR) on the plaintiff's Solicitors (AP) on 7 October 2021 [defendant's Email (8 October 2021);

(6) at 11.19 am, 3 December 2021, Mr Alvin Tan Chi Sian [from the defendant's Solicitors (AP)] sent an email to the Adjudicator [defendant's Email (3 December 2021)] which, among others, sought the Adjudicator's confirmation regarding the date for the delivery of the adjudication decision (AD). Mr Alvin Tan is the defendant's learned Counsel in this OS;

(7) the Adjudicator sent an email at 1.05 pm, 3 December 2021 in reply to the defendant's Email (3 December 2021) [Adjudicator's Email (3 December 2021)]. According to the Adjudicator's Email (3 December 2021), among others:

"To the [defendant]

...

As for the date for the delivery of the decision, the latest date that the decision can be issued is 15 December 2021."

[Emphasis Added]

There was no reply to the Adjudicator's Email (3 December 2021) by both plaintiff's Solicitors (AP) and defendant's Solicitors (AP); and

(8) the AD was "delivered" to the plaintiff and defendant on 14 December 2021. According to the AD, among others:

(a) the plaintiff shall pay a sum of RM1,659,949.76 to the defendant for the Works (Adjudicated Amount);

(b) various costs and fees as stated in the AD sh