The Construction Industry Payment and Adjudication Act 2012 does not apply retrospectively to construction contracts executed before its enactment, unless expressly stated.

[1] The present appeals have been brought by the appellant in light of the Court of Appeal's decision given on 22 February 2018 in which the respondent's appeals were allowed. In the appeal proceedings before the Court of Appeal, both the appellant and the respondent herein were the respondent and the appellant respectively. We heard these two appeals together given the commonality of issues in the questions of law raised herein for our determination. In simple terms, the common issue raised herein begs the question of whether the Construction Industry Payment and Adjudication Act 2012 ("the CIPAA" for short) which came into force on 15 April 2014 is to be construed as having retrospective or prospective operation. We propose to give reasons for our decision in these appeals at the same time in one judgment.

[2] One noteworthy feature of these appeals which deserve early mention is that the instant appeals were heard back-to-back with three other separate appeals involving parties who were not the parties herein. These three appeals concern the same issue as highlighted above raising in consequence arguments which are similar in almost every detail by both learned counsel for the respective parties. The appeals in question are Ireka Engineering & Construction Sdn Bhd v. PWC Corporation Sdn Bhd:

(i) Civil Appeal No: 02(f)-124-12-2018(W);

(ii) Civil Appeal No: 02(f)-125-12-2018(W); and

(iii) Civil Appeal No: 02(f)-126-12-2018(W).

We shall refer to these cases in this judgment where necessary.

[3] Before proceeding further, it is appropriate to emphasise at this stage that this judgment is delivered pursuant to s 78 of the Courts of Judicature Act 1964 due to the retirement of Richard Malanjum, CJ (as His Lordship then was). This is therefore a decision of the remaining members of the panel which is reached unanimously.

Questions Of Law For Determination

[4] The leave to appeal was granted by this Court upon two questions of law. These questions are identical in both appeals. The first question of law for determination in respect of both appeals as allowed by this Court is couched in the following terms:

"(i) Whether Construction Industry Payment and Adjudication Act 2012 (CIPAA 2012) applies to construction contracts entered into before the coming into operation of this Act, ie 15 April 2014."

The second question of law, a corollary to the first question reads as follows:

"(ii) If the answer to question (i) above is answered in the affirmative, does it follow that s 35 of CIPAA 2012 should also apply to construction contracts entered into before the coming into operation of this Act, ie 15 April 2014."

We lay down below in summary the facts relevant to these two appeals.

Summary Of The Material Facts

[5] The appellant in both appeals is a contractor appointed by the respondent by a Letter of Award dated 16 March 2011 as its subcontractor for a project known as "Cadangan Membina 3 Blok 39 Tingkat 689 Unit Rumah Pangsa Kos Tinggi dan 23 Unit Kedai 2 Tingkat yang mengandungi Kemudahan Tadika, Dewan Serbaguna, Surau Serta 4 Tingkat Podium Tempat Letak Kereta & Rekreasi dengan 1 Tingkat Basement di atas Lot P.T.39011, HS(D) 61423, Jalan Aman Fasa 111 (Kg Berembang), Mukim Ulu Klang, Daerah Gombak, Selangor Darul Ehsan-Sub-Contract for the Supply & Installation of Spun Piles" for a contract sum of RM1,850,000.00 (the agreement). Under clause 11.1 of the agreement, all payments to the appellant s