The court upheld the legality and enforceability of the Adjudication Decision despite DCSB's claims of procedural unfairness, finding delays attributable to DCSB's own legal actions and emphasizing the importance of timely payments under construction contracts.

(Enclosure 1 & 11)

Introduction

[1] In Originating Summons No WA-24C-139-09/2024 (OS 139), Damai City Sdn Bhd ("DCSB") had applied under encl 1 (encl 1) to this Court to Inter Alia under O 69A rr 2, 3, 7 and/or O 92 r 4 of the rules of Court 2012 and/or s 15(b) and (d) of the Construction Industry Payment And Adjudication Act 2012 ("CIPAA") for:

a. a declaration that the Adjudication Decision dated 20 August 2024 (AD) is illegal and void;

b. an order to set aside the said AD; and

c. an Order for costs.

[2] There is also in OS 139 an application under encl 11 for a stay of the AD pursuant to s 16 (1)(b) CIPAA (encl 11) pending the disposal of the stay application or the disposal of the Arbitration Proceedings under in encl 1.

[3] On the other hand, Originating Summons No. WA-24C-143-09/2024 (OS 143) is Grand Dynamic Builders Sdn Bhd ("GDB") application to enforce the AD in accordance with s 28 CIPAA.

[4] In support of OS 139, DCSB alleges amongst others that:

4.1 the Adjudicator failed to deliver the AD within the time prescribed under CIPAA which tantamounts to him being in excess of jurisdiction;

4.2 the Adjudicator failed to give grounds or reasons with regards cl 25.4(d) of the PAM Contract being the entitlement to the Employer not to make payments including certified sum;

4.3 the Adjudicator had failed to allow DCSB to file a Rejoinder Application;

4.4 the issue of Interim Certificate No 24 which DCSB claims had not matured and were therefore not due;

4.5 issues of Res Judicata.

Brief Background Facts

[5] By way of a letter of award dated 9 November 2020, DCSB appointed GDB as the main contractor to carry out building works for a project known as the 8 Conlay Project located at Lot 20000 (Lot Lama 111 & 112) s 63, Bandar Kuala Lumpur, Jalan Conlay, Wilayah Persekutuan Kuala Lumpur ("8 Conlay Project") with the total award sum being RM 1,249,000,000.00.

[6] The following, read together, constitute the Contract between parties for the 8 Conlay Project:

(a) Letter of Award dated 9 November 2020 with the correspondences between the parties appended which was to form part of the Letter of Award;

i. Contractor's letter ref.: GDBSB/HQ/MGT/DCSB/2112 dated 28 October 2020

ii. Contractor's Revised Alternative Tender Submissions - Tender Addendum No 5(R) via the Contractor's letter ref.: GDBSB/HQ/MGT/DCSB/211 dated 21 October 2020

iii. Contractor's Revised Alternative Tender Submissions - Tender Addendum No 5(R) via the Contractor's letter ref.: GDBSB/HQ/MGT/DCSB/2093 dated 15 October 2020

iv. Contractor's Alternative Tender Submissions - Tender Addendum No 5 (R) via the Contractor's letter ref.: GDBSB/HQ/MGT/DCSB/2090 dated 12 October 2020

v. Contractor's Alternative Tender Submissions via the Contractor's letter ref.: GDBSB/HQ/MGT/DCSB/2056 dated 25 September 2020

(b) The "Agreement and Conditions of PAM Contract 2006 (With Quantities)", issued under the sanction of the Pertubuhan Arkitek Malaysia ("PAM"), together with the supplementary clauses, amplification notes, amendments, and modifications thereto as set out in Document G - Annexure to the Conditions of Contract ("PAM Contract");

(c) The Contract Drawings;

(d) The Contract Bills; and

(e) Other documents incorporated in the Contract Documents, unless expressly stated to be excluded therefrom.

[7] Subsequent to the Contract, the parties had also:

(a) by way of Letters of Amendments dated 15 December 2020 and 22 March 2022 agreed to amend the terms and conditions of the Contract; and

(b) entered a Supplementary Agreement dated 20 May 2022 which is to be read together with the Contract, to temporarily put on hold and sl