JUDGMENT

Sumathi Murugiah JC:

(2 Originating Summonses)

A. Introduction

[1] Due to non-payment, ES Structure Sdn Bhd (ES Structure) being the unpaid party had commenced an Adjudication Proceedings pursuant to the Construction Industry Payment and Adjudication Act 2012 (the CIPAA 2012) against Swaja Facade Sdn Bhd (Swaja) being the non-paying party. Since this is a cross suit between the parties, for ease of reference the parties will be referred to henceforth as Swaja and ES Structure wherever applicable.

[2] Consequential to the Adjudication Decision dated 29 April 2024 (AD), the following Originating Summonses were filed by both ES Structure and Swaja at this court:

(i). OS No BA-24C-31-07/2024 (Enforcement OS) was filed by ES Structure against Swaja to enforce the AD pursuant to s 28 of the CIPAA 2012; and

(ii). OS No BA-24C-45-10/2024 (Setting Aside OS) was filed by Swaja to set aside the AD pursuant to s 15(a), (b), (c) and (d) of the CIPAA 2012 and/or to stay the execution of the AD pursuant to s 16 of the CIPAA 2012.

[3] Since there are 2 Originating Summonses filed in relation to the AD, the parties via a consent order dated 17 October 2024 agreed for both these Originating Summons to be heard and decided together.

B. Brief Background

[4] ES Structure and Swaja had entered into a construction contract by a Letter of Award dated 13 December 2021 (LOA) where Swaja had appointed ES Structure to supply, fabricate, deliver and to install steel works to Level 2 Canopies (Sub-Contract Works) to a project known as "Parcel B-Pembangunan pangsapuri 3 Blok (734 Unit), (i) Blok A38 Tingkat, (ii) Blok B 33 Tingkat (iii) Blok C 33 Tingkat, Termasuk 8 Tingkat Ruang Perniagaan (6 Unit) Dan 2 Tingkat Besmen Tempat Letak Kereta di atas PT 68, PT 69, PT 70, PT 75 (Lot Lama Di sebahagian Lot 240 dan 241), s 98, Bandar Kuala Lumpur serta PT 8617 (Lot Lama Lot 4441), Mukim Kuala Lumpur, Bandaraya Kuala Lumpur Untuk Tetuan MRCB Seputeh" (the Project) for an original sub-contract amount of RM931,985.48.

[5] Apart from the LOA, the applicable contractual provisions are the Condition of Contract for Design and Built Contract PWD Form DB (Rev. 1/2010) (COC) and the Special Condition of Contract (SCOC). The COC as well as SCOC are collectively referred to as the JKR Contract.

[6] Clause 23.1 of the said LOA provides that the terms contained in the LOA are not exhaustive and the full terms of the Sub-Contract are from the JKR Contract.

[7] ES Structure had carried out variation works on Swaja's instruction where quotation for the same was accepted. All works under the sub-contract together with the variation works were completed and Certificate of Completion and Compliance (CCC) was issued. ES Structure then submitted its Interim Claims Nos 1-5 with a total sum due of RM752,742.83. ES Structure had also issued the final claim which had included the first moiety claim of RM31,459.12, making the sum unpaid to ES Structure by Swaja as RM784,210.95.

[8] Due to the non-payment, ES Structure issued a payment claim dated 12 December 2023 to Swaja claiming for the unpaid sum of RM784,201.95, for which Swaja did not issue any Payment Response.

[9] ES Structure then served a Notice of Adjudication dated 8 January 2024 to Swaja followed by an Adjudication Claim dated 27 February 2024 upon the appointment of the Adjudicator, Ir. Ts. Hazrin Bin Hamdan. Swaja filed its Adjudication Response dated 14 March 2024. The Adjudicator then delivered his decision via the AD in favour of ES Structure:

"N: DETERMINATION

[200] Swaja Facade Sdn Bhd is to pay the following sums to ES Structure Sdn Bhd:

1. The sum of RM784,201.95 of the unpaid sum at a 5.0% interest rate per annum from 4 December 2023 until full payment is made;

2. The sum of RM49,633.79 for Adjudication Proceedings by the Claimant at the rate of 5.0% per annum from 14 June 2024 until full payment is made; and (sic)"

C. The CIPAA 2012

[10] The CIPAA 2012 is a legislation intended to facilitate speedy and regular payments in the c