Che Mohd Ruzima Ghazali JCA:

JUDGMENTIntroduction

[1]By consent of the parties, the High Court heard two separate applications together. First, the application by TUV SUD (Malaysia) Sdn Bhd (TUV) pursuant to s 28Construction Industry Payment and Adjudication Act 2012 (CIPAA)(b), (c) and/or (d) CIPAA via O.S. No. WA-24C- 146-07/2022 (OS 146) to set aside the AD (Setting Aside Application).

[2]After having considered the cause papers and written submissions by the parties, the learned High Court Judge (LHCJ) dismissed Intisari’s Setting Aside Application via OS 146 with cost of RM6,000.00 and allowed TUV’s Enforcement Application via OS 129 with cost of RM4,000.00. Aggrieved by the aforesaid decisions, Intisari appealed. Appeal against OS 129 decision for Enforcement Application is registered as Appeal Case No.: W-02(C)(A)538-04/2023 (Appeal 538) and Appeal against OS 146 decision for Setting Aside Application is registered as Appeal Case No.: W-02(C)(A)539-04/2023 (Appeal 539).

[3]Before us, both Appeal 538 dan Appeal 539 were heard together and decided together.

Brief Background Facts

[4]The background facts for TUV’s Enforcement Application and Intisari’s Setting Aside Application as narrated by the LHCJ in her Grounds of Judgment (GOJ) are as follows:

[7] Aker Solutions Malaysia Sdn Bhd (‘Main Contractor 1’) had appointed TUV for the “Supply of manpower, equipment & consumables for NDT Inspection Services for Aker Solutions (M) Sdn Bhd at PFKZ Port Klang, Selangor” (‘Project 1’). Intisari then appointed TUV as its sub-contractor for the works in respect of Project 1.

[8] Apart from that, Air Products Malaysia Sdn Bhd (‘Main Contractor 2’) had also appointed TUV for the “Supply of manpower & equipment UTTG & MPI for Air Products Malaysia Sdn Bhd” (‘Project 2). Similarly, Intisari subsequently appointed TUV as its sub-contractor for the works for Project 2.

[9] The contracts between TUV and Intisari were claimed to be founded on Purchase Orders dated 22.5.2018 for Project 1 and Purchase Orders dated 21.7.2020 and 7.3.2020 for Project 2, respectively.

[10] According to TUV, the parties had agreed that Intisari would send invoices to Main Contractor 1 and Main Contractor 2 for the works done by TUV. Upon receipt of the payments for work done, Intisari would remit 95% out of the same to TUV and retain 5% as its commission.

[11] TUV claimed that it has completed the works for Main Contractor 2 whilst for Main Contractor 1, works commenced in September 2018 and was completed on a stage-by-stage basis, both in accordance with the instructions of Intisari and the Main Contractors, respectively, from time to time.

[12] TUV sent several invoices to Intisari for payment of 95% of the total value of works done, however, it did not receive any payment from Intisari.

[13] This led TUV to issue a Payment Claim on 4.10.2021 claiming the total sum outstanding as at that date i.e. RM1,703,148.97. The Payment Claim was served on Intisari at its registered address on 7.10.2021 (see para 2 in the Notice of Adjudication and para 15 in the Adjudication Claim) but it chose not to submit a Payment Response.

[14] On 1.11.2021, TUV issued a Notice of Adjudication and this was followed with several correspondences between TUV’s solicitors and the Asian International Arbitration Centre (‘AIAC’) as to the existence of a “construction contact made in writing relating to construction work” within the meaning of s 2CIPAA

[15] For present purposes, suffice to say that, on 17.2.2022, Mr. Sivabalan Sankaran accepted the appointment as the Adjudicator.

[16] TUV then issued the Adjudication Claim on 7.3.2022. Intisari did not submit an Adjudication response as it took the position that, as no agreement in writing was concluded, s 2CIPAA

[17] On 10.6.2022, the Adjudicator released his decision dated 27.5.2022 to the parties whereby he determined that:

“59. …

A.IMESB, the Respondent shall pay TUVSSB, the Claimant the sum of RM1,703,148.97 on or before 10 June 2022;

B.IMESB, the Respon