The court ruled that the adjudication decision was void due to late issuance beyond statutory timelines, confirming that CIPAA applies only to agreements executed post-enactment.

Introduction

[1] There are 2 Appeals filed herein, both by the Appellant, Encorp Iskandar Development Sdn Bhd The Respondent in both the appeals is Konsortium Ipmines Merz Sdn Bhd Both the appeals are against the decision of the Shah Alam High Court dated 29 July 2020. The High Court decision emanated from the Adjudication Decision (AD) of Mr Foo Joon Liang (the Adjudicator) dated 26 September 2019. The AD was issued under the Construction Industry Payment and Adjudication Act, 2012 (CIPAA) pursuant to an adjudication commenced by the Respondent against the Appellant for payment for work done. As to the outcome of the adjudication, in a nutshell, the Adjudicator allowed the Respondent's claim against the Appellant.

[2] Flowing from the abovesaid AD, the Appellant applied to the Shah Alam High Court vide Saman Pemula No: BA-24C-103-10/2019 (OS: 103), to set aside the AD and to stay the enforcement of the same, pending arbitration between the parties, pursuant to ss 15 and 16 of CIPAA. This was followed by the Respondent applying to enforce the same AD under s 28 of the same Act vide Saman Pemula No: BA-24C-121-12/2019 (OS: 121). The learned High Court Judge (HCJ) heard both the OS at one go.

[3] On 29 July 2020 the learned HCJ dismissed the Appellant's application (OS: 103) and at the same instance, allowed the Respondent's application (OS: 121).

[4] Aggrieved, the Appellant appealed to the Court of Appeal against both the decisions abovementioned. Hence, the Appeals before us herein. For both the appeals, the learned HCJ had prepared one common grounds of judgment.

Our Decision

[5] We heard both the Appeals together and after having appraised the Records of Appeal for both the Appeals including the grounds of judgment (GOJ) of the learned HCJ and having considered the submissions by both learned counsels, we unanimously found that there are merits in the Appellant's appeals. Thus, we allowed the appeals and consequently set aside the decisions and the orders of the learned HCJ dated 29 July 2020. Effectively, the AD dated 26 September 2019 is also accordingly set aside.

[6] We allowed the Appeals abovesaid on the following grounds.

Factual Background And Chronology Of Events

[7] The relevant undisputed facts and chronology of events are:

The Adjudication:

(i) The Appellant is the owner of a mixed development project in Johor Bahru, Johor Darul Takzim known as "Cadangan Pembangunan Pangsapuri Servis (571 unit) Dan Ruang Niaga..." (the project).

(ii) 6 August 2013 - Vide a Letter of Award dated 6 August 2013 (the Main Agreement) the Appellant appointed its associate company Encorp Construct Sdn Bhd (ECSB) as its main constructor for the project. (see: "Appeal Record, Vol 2B" pp 289 - 294).

(iii) 24 October 2014 - ECSB then engaged the Respondent as its subcontractor for the project vide a Sub-Contract Agreement dated 24 October 2014 (Sub-Contract).

(iv) 30 June 2015 - Thereafter, the Respondent, ECSB and the Defendant entered into a Novation