JUDGMENT

Wendy Ooi Su Ghee J:

Introduction

[1] By an originating summons, the Plaintiff prayed for the following reliefs in encl 1:

(a) a declaration that the adjudication proceedings initiated by the defendant against the plaintiff is null and void;

(b) a declaration that the Defendant is bound by cl 34.1 of the PAM Contract 2006 ("Clause 34.1 PAM") to refer its alleged dispute against the plaintiff to arbitration;

(c) an order for specific performance by the Defendant of cl 34.1 PAM to refer its alleged dispute against the plaintiff to arbitration;

(d) an interlocutory injunction to restrain the defendant by itself, its agents or servants or otherwise howsoever from initiating any adjudication proceedings against the plaintiff pending the hearing and disposal of these proceedings;

(e) costs of these proceedings be borne and paid by the defendant to the plaintiff; and

(f) such further and other orders and/or reliefs as this Honourable court deems fit and appropriate.

Background Facts

[2] By a Letter of Award dated 6 June 2018 ("said LOA"), the plaintiff awarded the defendant main contract works ("said works") for the proposed construction of one (1) block of 29 Storey Building (Strata) On Lots 1248, 1249, 1250 & 1251, Jalan Sungai Pinang, s 9W, Bandar George Town, D.T.L., Penang for Aspen Vision Builders Sdn Bhd ("said project"). The contract sum for the said project was for RM71,551,493.35.

[3] In accordance with the said LOA, the plaintiff and defendant also subsequently executed the PAM Standard Contract 2006 (Without Quantities).

[4] Owing to the delay of the overall site progress performance of the said works by the defendant, the completion date for the said project was extended six (6) times totalling 272 days, thus the final completion date was on 30 April 2021.

[5] However, the defendant still failed to complete the said works by 30 April 2021.

[6] Hence, by a letter dated 3 August 2021, the architect issued a Certificate of Non-Completion ("CNC") dated 1 May 2021 and a Certificate of Practical Completion ("CPC") dated 19 July 2021 issued to the defendant.

[7] In the said letter, the architect also informed the defendant that the CPC was issued with the acceptance of the written undertaking submitted by the defendant to execute, make good and to complete works and defects of a minor nature. The Defendant was to also supply and ensure that the Nominated Subcontractor supplies the As Built Drawings and/or Operation and Maintenance Manuals and Letter of Warranty as specified under the contract to the architect.

[8] Under the CPC, the architect certified that, subject to the defendant making good any outstanding items, or of any apparent defects, shrinkages and other faults which appear during the defect liability period, the said works were practically completed to his satisfaction in accordance with the Conditions of Contract and taken into possession on 18 May 2021. Further, the defect liability period shall end on 17 August 2023.

[9] By way of letters dated 2 November 2020 and 15 March 2022 respectively, the Chartered Quantity Surveyors, Kuantibina Sdn Bhd wrote to the architect computing liquidated damages payable by the defendant to the plaintiff under cl 22 and A13 of the PAM Contract 2006 totalling RM732,000.00 only.

[10] By way of Site Memos dated 27 January 2022 and 14 July 2023, the defendant was requested to rectify the defects relating to poor workmanship by 28 July 2023 and that the delay by the defendant in rectifying the defects would affect the release of the Certificate Making Good Defects ("CMGD").

[11] However, as at 7 February 2025, the defendant has defaulted, failed and/or refused to rectify the said defects.

[12] On or about 6 September 2022, the defendant commenced arbitration proceedings against the plaintiff by issuing a notice of arbitration which inter alia, stated as follows:

(i) that the referral of the alleged dispute to arbitration is made pursuant to cl 34.1 of the PAM Contract 2006 as the alleged dispute is