JUDGMENT

Lee Swee Seng JCA

[1] This is an appeal from a decision of the High Court that had dismissed a s 30 of the Construction Industry Payment and Adjudication Act 2012 ("CIPAA") application by the successful claimant (subcontractor) in an adjudication decision for an order to compel the principal (employer) to make direct payment to it on account of money "due or payable" by the principal to the unsuccessful respondent in the adjudication who is the main contractor.

[2] The issues raised in this appeal were whether retention sum retained by the principal from certified amounts due to the main contractor was money "due or payable" to the main contractor from the principal and whether on the balance of probabilities the subcontractor had proved that there was money "due or payable" from the principal to the main contractor when the request for payment was served on the principal under s 30(1) of the CIPAA.

[3] It was also argued by the principal who is the Government of Malaysia ("GOM") and more particularly Jabatan Kerja Raya ("JKR") that since it did not recognise nor consent to the main contractor appointing the subcontractor, it was not bound to make any payments under s 30 of the CIPAA.

In the High Court Below

[4] The subcontractor KSB was the plaintiff in the High Court below and the appellant here. The GOM/JKR was the defendant below and the respondent here.

[5] The High Court held that the liability of the principal to pay if there is a debt due or payable from it to the main contractor is irrespective of whether the subcontractor is recognised or approved by the principal, as this is not a requirement under s 30 of the CIPAA.

[6] The High Court was satisfied that there was no money "due or payable" from the principal to the main contractor, the losing party in the adjudication as the last Interim Payment Certificate ("IPC") in IPC No 84 showed a negative sum of RM1,788,581.24 as the recommended amount for payment by the GOM to NSB, the main contractor.

[7] The High Court had further held that there was an issue as to whether there was a debt due or payable from the principal to the main contractor in that there was a dispute as to whether the percentage of works completed at the point of termination of the contract by the principal of the main contractor was physical or financial completion. The High Court held that such a dispute was essentially to be resolved between JKR and its main contractor, NSB.

[8] The High Court had thus dismissed the plaintiff's/subcontractor's application under s 30 of the CIPAA. The plaintiff had appealed to the Court of Appeal.

Before The Court Of Appeal

[9] The plaintiff appealed to the Court of Appeal on the ground that the plaintiff had proved on the balance of probabilities that there was money "due or payable" from JKR to the main contractor NSB which money was more than enough to satisfy the adjudicated amount that the plaintiff had obtained and enforced against the main contractor.

[10] The plaintiff argued that the High Court had erred when it failed to consider that the Performance Guarantee sum carved out from the IPCs due from JKR to its main contractor, to the sum of 5% of contract sum of the Project was money "payable" within the meaning of s 30(5) CIPAA.

[11] The plaintiff further contended that the difference between the progress of the works under the last IPC which was IPC No 84 dated 24 June 2022 and that stated as 99.86% in the Notice of Termination dated 14 July 2022, represented money due or payable from JKR to the main contractor and that this was not a matter that could only be resolved in a dispute between JKR and NSB but rather it was to be resolved based on the evidence adduced under a s 30 CIPAA application on the balance of probabilities.

Whether The Principal May Refuse Payment Under A s 30 CIPAA Application On Ground That It Had Not Given Its Written Consent To The Main Contractor Appointing The Subcontractor

[12] The principal had referred to the f