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COURT OF APPEAL PUTRAJAYA
JDI BUILTECH (M) SDN BHD – Appellant
Versus
DANGA JED DEVELOPMENT MALAYSIA SDN BHD – Respondent
Key Points: - (!) The question of when s 30 CIPAA applies is determined by s 30(5): money must be due or payable by the principal to the main contractor at the time of receipt of the request. - (!) The subcontractor bears the legal and evidential burden to prove that there is money due or payable from the principal to the main contractor; initial burden on the subcontractor, with potential shift to the principal for the third condition. - (!) s 30(5) is the overarching pre-condition for invoking any subsections of s 30; without money due or payable, direct payment cannot be ordered. - (!) Section 31 allows concurrent enforcement of remedies; remedies under ss 28-30 may be exercised concurrently or in combination. - (!) The Court dismissed the direct payment application because the subcontractor failed to discharge the burden of proving money due or payable by the principal to the main contractor at the material time.
JUDGMENT
[1] This Judgment will explore once again the operation of s 30 of the Construction Industry Payment and Adjudication Act 2012 ("CIPAA") with respect to direct payment from a principal employer to a subcontractor that had obtained an adjudication decision in its favour vis-a-vis its main contractor against whom an adjudication decision had been made. In particular we shall explore the relationship between s 30(5) and s 30(2) and (3) CIPAA and the overall legal and evidential burden of proof on the part of the principal employer and the subcontractor.
[2] Essentially s 30 may be activated by a successful party in an adjudication decision to call upon the principal of the losing party in the adjudication decision to make direct payment from the principal to the successful party in the adjudication decision. For ease of reference we shall refer to the plaintiff as the subcontractor and the defendant here in the s 30 CIPAA application as the principal and the losing party in the adjudication decision as the main contractor.
Before The High Court
[3] In brief the subcontractor in its Originating Summons for Direct Payment under s 30 CIPAA, had deposed in its aff
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