The adjudicator's jurisdiction under CIPAA is strictly limited to matters referred to him, and reliance on unpleaded clauses constitutes a breach of jurisdiction, while natural justice violations must be material to the outcome.

Nordin Hassan FCJ (majority):

[1] Anas Construction Sdn Bhd ("the appellant") filed two appeals before this Court against the decisions of the Court of Appeal. Civil Appeal No 02(f)- 3-01-2023(P) is against the decision of the Court of Appeal to set aside the decision of the High Court to allow the enforcement of the Adjudication Decision dated 12 September 2019 under the Construction Industry Payment and Adjudication Act 2012 ("CIPAA"). Civil Appeal No 02(f)-4-01-2023(P) is against the decision of the Court of Appeal in setting aside the decision of the High Court in dismissing the respondent's application to set aside the said Adjudication Decision.

[2] This Court on 3 January 2023 had granted the appellant's leave to appeal on the following questions of law, namely:

(i) Do the strict rules of pleadings, as applicable in civil claims before the Malaysian Courts, apply in adjudicating proceedings under the Construction Industry Payment and Adjudication Act 2012 ?

(ii) Whether the dicta in View Esteem Sdn Bhd v. Bina Puri Holdings Bhd ; [2018] 2 MLJ 22; [2017] 8 AMR 167 prohibits an adjudicator from referring to a specific clause in a construction contract when allowing the claim when the said clause was not specifically stated in the Payment Claim and Adjudicating Claim by the claiming party?

(iii) In a CIPAA Award, does the adjudicator's consideration of a specific clause in the construction contract, not specifically stated in the Payment Claim or Adjudication Claim, without inviting parties to further submit on the said clause, amount to a breach of natural justice or an act excess in the jurisdiction, such that the said Award ought to be set aside?

The Background Facts

[3] JKP Sdn Bhd ("the respondent") appointed the appellant as the main contractor for the construction and completion of a project, for a sum of RM67,994,500 under a Construction Contract dated 9 April 2015 ("the Contract"). The project was known as "Cadangan Membina dan Menyiapkan Satu (1) Blok Pangsapuri 24 Tingkat Rumah Pangsa Kos Sederhana (392) Unit di atas Tanah Tebusguna Kerajaan, Kampung Pisang Awak, Seksyen 4, Bandar Jelutong, Daerah Timur Laut, Pulau Pinang" ("the Project").

[4] In carrying out the Project, the appellant had engaged independent professional consultants, Perunding Kejuruteraan MSY and Perunding ZNA to provide a report in regards to cracked beams and a safety report. The consultants' fees incurred by the appellant were RM855,074.21 (inclusive of GST 6%). However, the respondent allegedly had failed, neglected, or refused to pay the said amount resulting the matter being brought to the Adjudicator for adjudication under CIPAA.

[5] The Payment Claim dated 6 March 2019 was served on the respondent by the appellant under s 5 of CIPAA for the sum of RM855,074.21, the amount claimed under the Payment Claim.

[6] In the Payment Claim, the appellant pleaded cls 28, 55 and 56 of the Contract to establish its cause of action against the respondent. Paragraphs 32 and 33 of the Payment Claim states as follows:

"32. The Amount Claim under this Payment Claim is due and payable to the Unpaid Party since 9 July 2017 read together with clauses 55, 56, 28 of the PWD Contract and pursuant to s 36(3) and (4) of the CIPA Act 2012. In the absence of a contractual provision of time of payment, the amount claimed can be deemed due and payable within thirty [30] days from the date of submission of the Unpaid Party's revised Final Claim."

33. TAKE NOTICE that you, being the Non-Paying Party are required to remit to the Unpaid Party the sum of RM855,074.21 being the amount claimed under this Payment Claim and this Payment Claim is made pursuant to s 5 of CIPA Act 2012."

[Emphasis Added]

[7] The respondent in its Payment Response dated 22 March 2019, which was made under s 6 of CIPAA and served on the appellant's solicitor, disputed the appellant's claim on the basis that the appellant's claim does not fall within the meaning of "construction contr