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2025 MarsdenLR 5770
HIGH COURT MALAYA KUALA LUMPUR
SUE LYE CONSTRUCTION SDN BHD – Appellant
Versus
BRILLIANT LTP CONSTRUCTION SDN BHD & ANOTHER CASE – Respondent
[Originating Summons No: WA-24C-163-10/2024 & WA-24C-166-10/2024]
Important Points
Subject
Construction Law - Adjudication
Headnote
(B) Adjudicator's discretion - The adjudicator has jurisdiction to determine payment claims based on contract provisions applicable to the parties, and dismissal of objections that could have been raised during proceedings is deemed waived (Paras 61-64).
(C) Natural justice principles - The court confirmed procedural fairness was accorded as both parties had the opportunity to present arguments related to the sole payment provision in the contract (Paras 56-60).
Facts of the case:
SLC issued a payment claim not responded to by BLTP, which led to adjudication where payment claim was supported by works order; BLTP contested validity, alleging jurisdictional and procedural issues (Paras 6-9).
Findings of Court:
The adjudicator's findings upheld as valid; SLC awarded RM534,004.05 with interest based on the works order requirements. (Paras 22, 66-67)
Issues: Whether the adjudicator exceeded jurisdiction, and if the natural justice was denied in the adjudication process (Paras 25, 71).
Ratio Decidendi: The non-specificity of payment issuance timeline does not equate to conditional payments; jurisdictional objections not raised during adjudication cannot be claimed later. The adjudicator's discretion and decision-making adhered to statutory guidelines (Paras 26-36, 49-50, 58).
Result: OS 163 allowed; OS 166 dismissed.
| Table of Content |
|---|
| 1. procedural background of the case. (Para 1 , 2 , 3 , 4) |
| 2. details of payment claim process. (Para 5 , 6 , 7 , 8 , 9 , 10 , 11 , 12) |
| 3. disputes raised by parties in adjudication. (Para 13 , 14 , 15 , 16 , 17) |
| 4. adjudicator's findings on legal arguments. (Para 18 , 19) |
| 5. summarization of adjudication decision outcomes. (Para 20 , 21 , 22) |
| 6. bltp's grounds for setting aside decision. (Para 25 , 27 , 28) |
| 7. comparison with anas construction case. (Para 30 , 31) |
| 8. legal reasoning and decision differentiation. (Para 34 , 39 , 42) |
| 9. identified errors and impact on adjudication. (Para 61 , 62 , 64) |
| 10. court's rationale for enforcement of decision. (Para 66 , 68 , 70) |
| 11. concluding orders and judgments. (Para 73 , 74) |
Introduction
[1] By Originating Summons No: WA-24C-163-10/2024 ("OS 163"),Sue Lye Construction Sdn Bhd ("SLC") is applying under s 28 of the Construction Industry Payment And Adjudication Act 2012 ("Act") to enforce an Adjudication Decision dated 15 September 2024 made in Adjudication Reference No: AIAC/D/ADJ-5363-2024 ("Adjudication Decision") which it obtained against Brilliant LTP Builders Sdn Bhd ("BLTP").
[2] By Originating Summons No: WA-24C-166-10/2024 ("OS 166"), BLTP is applying under ss 15(b) and (d) of the Act to set the Adjudication Decision aside.
[3] As a matter of prudence, I heard both Originating Summonses together. This Judgment is thus on both.
[4] Further as a matter of prudence, I will decide OS 166 first and then only OS 163, for the simple reason that, if the Adjudication Decision is set aside, then there will be nothing to enforce.
[5] An interesting facet of this case is that BLTP attempts to draw parallels with the decision of the Federal Court in Anas Construction Sdn Bhd v. JKP Sdn Bhd & another appeal ; [2024] 2 MLJ 543 ; [2024] 2 CLJ 665 ("Anas Construction") and match them with the facts of this case, contending that this Court should come to a similar finding and decision. Obviously, that will also be considered.
Salient Facts Of This Case
[6] By a Works Order dated 15 November 2022 ("Works Order"), BLTP appointed SLC to carry out site clearing, earthworks, and surveyor works (collectively "Works") on a construction project in Sembrong, Johor ("Project") on which it had been appointed as Main Contractor. Clause 2 of the Works Order is the sole provision in the Works Order pertaining to payment for the Works, and provides as follows:
"2) VALUA TION AND PA YMENT
a) Monthly progress workdone on site which certified and accepted by Main Contractor.
b) Cut-off Date of Monthly Workdone Value: 25th of the Month
c) Date of Progress Claim Submission: On or before 30th of the Month (Not entitle for any late Submission)
d) Period of honouring Payment Certificate = 30 days"
[7] On or around 7 May 2024, SLC issued to BLTP a Payment Claim dated 7 May 2024 ("Payment Claim") under s 5 of the Act in which the "Claimed Amount" was RM534,004.05 ("Claimed Amount"), being for Progress Claim No 7 dated 31 December 2023 ("Progress Claim No 7") which BLTP had yet to certify. The Payment Claim stated that the due date for payment was 30 January 2024. Linder the column entitled "Relevant contract provision / Default Provision of the Cl PA Act 2012", SLC stated:
"Payment due date is within 30 days pursuant s 36(4) of the CIPA Act 2012"
[8] Attached to the Payment Claim were 13 Schedules of documents, consisting of various documents supporting the Claimed Amount in the Payment Claim, including the Works Order, the Interim Payment Certificates for the first six Progress Claims, Progress Claim No 7, instructions issued by BLTP to SLC and some correspondences exchanged between them.
[9] When BLTP did not respond to the Payment Claim, then by s 6(4) of the Act, it was "deemed to dispute the entire Payment Claim." Moving forward, by a Notice of Adjudication dated 23 May 2024 ("Notice of Adjudication"), SLC initiated adjudication proceedings under s 8 of the Act, following which an Adjudicator was appoi
