Dissatisfaction with an adjudicator's decision does not constitute grounds for setting aside, as adjudication decisions under CIPAA 2012 require preservation of natural justice principles without re-evaluating merits.

JUDGMENT

George Varughese JC:

Introduction

[1] Two Originating Summonses were heard together, as follows:

(i) Originating Summons No: PA-24C-1-03-2020 ("OS 1"); and

(ii) Originating Summons No: PA-24C-3-05-2020 ("OS 3")

[2] OS 1 is an application by Seal Properties (KL) Sdn Bhd ("Seal Properties"), inter alia, to set aside the Adjudication Decision dated 24 February 2020 ("CIPAA Award") pursuant to s 15(b) and/or s 15(d) Construction Industry Payment and Adjudication Act 2012 ("CIPAA 2012").

[3] OS 3 is an application by Wabina Constructions & Engineering Sdn Bhd ("Wabina"), amongst others, to recognise and enforce the CIPAA Award as a judgment of the Court under s 28 CIPAA 2012.

[4] Since OS 1 and OS 3 were heard together, this is an omnibus grounds in respect of both the applications.

Brief Background Facts

[5] The contextual facts stated herein are gleaned from the cause papers and the submissions of the parties.

[6] Dwitasik Sdn Bhd ("Dwitasik") is the developer of a proposed mixed commercial and residential development located on a piece of land measuring in area approximately 216 acres in Bandar Sri Permaisuri, Wilayah Persekutuan Kuala Lumpur ("the said Land"). Datuk Bandar Kuala Lumpur owns the said Land.

[7] By way of Agreement dated 19 February 2013 between Dwitasik and Seal Properties, Dwitasik agreed to develop a portion of the said Land, identified as "Parcel Q" into a mixed development area comprising service apartments, office suites, retail, commercial and/or office units together with the relevant infrastructure and amenities.

[8] By Letter of Award dated 1 December 2015 ("the Letter of Award"), Wabina was appointed by Seal Properties as the main contractor to undertake the main building works ("the Works").

[9] The main agreements entered between Seal Properties and Wabina are, as follows:

(i) The Letter of Award;

(ii) Agreement and Conditions of PAM Contract 2006 (With Quantities) comprising Articles of Agreement and Conditions of Contract dated 29 January 2016 with supplementary modification as detailed in Amendments and Amplification Notes to Agreement and Conditions of Contract;

(iii) Supplemental Contract dated 30 May 2016; and

(iv) Other contractual documents referred to specifically in items (i) , (ii) and (iii) above to be incorporated as part of the contract between Seal Properties and Wabina.

[10] The parties, inter alia, agreed to the following terms of the Contract:

(i) the final (extended) deadline to complete the Works is 30 November 2018 ("the extended Completion Date"); and

(ii) in the event Wabina fails and/or neglects to complete the whole Works by the extended Completion Date, Wabina shall pay Seal Properties liquidated damages at the rate of RM92,000.00 per day, without the need for Seal Properties to prove actual loss ("Liquidated Damages").

[11] Arkitek Akiprima Sdn Bhd, the appointed Architect for the project ("Architect") had issued a Certificate of Non-Completion on 1 December 2018, wherein it was certified that in their opinion, the whole Works ought to have been reasonably and satisfactorily completed on or before 30 November 2018 and that Wabina shall pay to Seal Properties, RM92,000.00 per day as Liquidated Damages for the uncompleted period.

Adjudication Proceedings

[12] Through Payment Claim dated 30 August 2019, Wabina as the Unpaid Party, demanded the sum of RM7,025,008.30 from Seal Properties, as the Non-Paying Party.

[13] Wabina alleged that the sum of RM7,025,008.30 is due pursuant to five Payment Certificates namely Payment Certificates Nos 32, 33, 34, 35 and 36.

[14] Seal Properties responded on 12 September 2019 by way of a Payment Response and disputed the demand of RM7,025,008.30, amongst others, on the following grounds:

i. since Seal Properties is entitled to Liquidated Damages for the sum of RM22,816,000.00, Seal Properties is not required to pay Wabina in accordance to the Payment Certificates;

ii. in light of the pending debt of the Liquidated Damages, Seal Properties is not indebted to W