A stay of an adjudication decision under the Construction Industry Payment and Adjudication Act requires clear errors or special circumstances, with mere pending arbitration not sufficient to grant such a stay.

Introduction

[1] This is an appeal against the decision of the learned Judge at the High Court ("HC") who had dismissed the application by the appellant for a stay of the adjudication decision by the adjudicator pending arbitration pursuant to the Construction Industry Payment and Adjudication Act 2012 ("CIPAA").

Backgrounds Facts

[2] The appellant appointed the respondent as a contractor for some construction works. The date of commencement and completion of the works are on 8 October 2016 and 7 January 2018 respectively. The completion date was extended to 7 April 2018. However, the works were not completed by the extended completion date. The parties negotiated but were still not able to achieve an agreement on a further completion date.

[3] As a result, the appellant's architect retrospectively issued a certificate of non-completion dated 7 April 2018 entitling the appellant to deduct or recover liquidated and ascertained damages ("LAD") for late completion of the works from the respondent.

[4] Since the commencement of the works, the respondent submitted 27 progress payment claims However, the appellant's superintending officer ("SO") only issued 15 interim payment certificates. The certification of the rest of the progress payment claims was withheld.

[5] Consequently, the respondent issued its notice of default dated 25 February 2019 pursuant to cl 26 of the PAM Conditions and thereafter by letter dated 13 March 2019, the respondent determined the contract. This was disputed by the appellant in its letter dated 21 March 2019.

[6] The respondent then separately commenced adjudication proceedings against the appellant for its progress payment claims no 16 to 24 and progress payment claims no 25 and 26. On 17 September 2019, the adjudicator issued her adjudication decision in favour of the respondent.

[7] Since the appellant did not honour the adjudication decision, the respondent instituted the originating summons ("OS"1) to enforce the adjudication decision on 9 October 2019. On the other hand, the appellant, dissatisfied with the adjudication decision, instituted the originating summons ("OS 2") to set aside the adjudication 27 November 2019. The appellant also files another originating summons ("OS 252") to stay the adjudication decision pending arbitration.

[8] All three OSs were heard before the same learned Judge. The parties agreed that if OS 2 is refused, OS 1 would automatically be allowed and vice versa. The parties also agreed to defer the hearing of OS 252 until after the disposal of OS 1 and OS 2.

[9] The learned Judge finally granted OS 1 for the enforcement of the adjudicating decision and disallowed OS 2 against the appellant for setting aside of the adjudication decision. The learned Judge then refused OS 252 for the stay of the adjudicating decision against the appellant.

[10] The present appeal before us is only in respect of OS 252, the learned Judge's decision not to allow the stay of the adjudication decision pending arbitration applied by the appellant.

At The HC

[11] The learned Judge decided that even when the dispute had been referred for arbitration, this would not mean that a stay would automatically be granted.

[12] Based on several reported decisions, the learned Judge found that generally there is a high threshold before a stay would be allowed.

[13] There were no clear errors in the a