Judicial Analysis Court Copy Headnote Facts Arguments Court observation

FEDERAL COURT PUTRAJAYA
ANAS CONSTRUCTION SDN BHD – Appellant
Versus
JKP SDN BHD & ANOTHER APPEAL – Respondent

Petitioner Advocates:Ong Yu Shin,Lee Hooi Ying,Lim Wooi Ying ,Respondent Advocate: Mahinder Singh Dulku,Abdul Fareed Abdul Gafoor,Farah Nabilah Shaharuddin

Judgement Key Points

Key Points: - The adjudicator's jurisdiction is limited to matters referred under s5 and s6 of CIPAA; extending beyond requires written party consent under s27(2). (!) (!) (!) - Reliance on unpleaded clauses can constitute excess in jurisdiction and may breach natural justice if material to the outcome; however, the court emphasizes materiality and adherence to pleadings. (!) (!) (!) - The decision upholds that CIPAA payment claims and adjudication claims are distinct from court pleadings; strict civil-pleading rules do not apply, but identification of the relevant contract provision supporting the cause of action remains essential. (!) (!) (!)

How to determine the adjudicator's jurisdiction under CIPAA 2012 in relation to matters referred to the adjudicator under sections 5 and 6?

How to assess whether reliance on an unpleaded clause or a clause not raised in the Payment Claim constitutes a breach of natural justice or excess in jurisdiction?

How to evaluate whether the adjudicator's consideration of clauses beyond those pleaded affects enforceability of the CIPAA award?

JUDGMENT

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 wh

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FEDERAL COURT PUTRAJAYAANAS CONSTRUCTION SDN BHD – AppellantVersusJKP SDN BHD & ANOTHER APPEAL – Respondent

How to determine the adjudicator's jurisdiction under CIPAA 2012 in relation to matters referred to the adjudicator under sections 5 and 6?

How to assess whether reliance on an unpleaded clause or a clause not raised in the Payment Claim constitutes a breach of natural justice or excess in jurisdiction?

How to evaluate whether the adjudicator's consideration of clauses beyond those pleaded affects enforceability of the CIPAA award?

Cases Referred (3)

FEDERAL COURT PUTRAJAYA
ANAS CONSTRUCTION SDN BHD – Appellant
Versus
JKP SDN BHD & ANOTHER APPEAL – Respondent