Abu Bakar Jais JCA:

GROUNDS OF JUDGMENT

Introduction

[1]This is an appeal against the decision of the learned judge at the High Court (“HC”) who had dismissed the application by the appellant for a stay of the adjudication decision by the adjudicator pending arbitration pursuant to the Construction Industry Payment and Adjudication Act 2021 (“CIPAA”).

Backgrounds Facts

[2]The appellant appointed the respondent as a contractor for some construction works. The date of commencement and completion of the works are on 8.10.2016 and 7.1.2018 respectively. The completion date was extended to 7.4.2018. However, the works were not completed by the extended completion date. The parties negotiated but were still not able to achieve an agreement on a further completion date.

[3]As a result, the appellant’s architect retrospectively issued a certificate of non-completion dated 7.4.2018 entitling the appellant to deduct or recover liquidated and ascertained damages (“LAD”) for late completion of the works from the respondent.

[4]Since the commencement of the works, the respondent submitted 27 progress payment claims. However, the appellant’s superintending officer (“SO”) only issued 15 interim payment certificates. The certification of the rest of the progress payment claims was withheld.

[5]Consequently, the respondent issued its notice of default dated 25.2.2019 pursuant to clause 26 of the PAM Conditions and thereafter by letter dated 13.3.2019, the respondent determined the contract. This was disputed by the appellant in its letter dated 21.3.2019.

[6]The respondent then separately commenced adjudication proceedings against the appellant for its progress payment claims no. 16 to 24 and progress payment claims no. 25 and 26. On 17.9.2019, the adjudicator issued her adjudication decision in favour of the respondent.

[7]Since the appellant did not honour the adjudication decision, the respondent instituted the originating summons (“OS” 1) to enforce the adjudication decision on 9.10.2019. On the other hand, the appellant, dissatisfied with the adjudication decision, instituted the originating summons (“OS 2”) to set aside the adjudication 27.11. 2019. The appellant also files another originating summons (“OS 252”) to stay the adjudication decision pending arbitration.

[8]All three OSs were heard before the same learned judge. The parties agreed that if OS 2 is refused, OS 1 would automatically be allowed and vice versa. The parties also agreed to defer the hearing of OS 252 until after the disposal of OS 1 and OS 2.

[9]The learned judge finally granted OS 1 for the enforcement of the adjudicating decision and disallowed OS 2 against the appellant for setting aside of the adjudication decision. The learned judge then refused OS 252 for the stay of the adjudicating decision against the appellant.

[10]The present appeal before us is only in respect of OS 252, the learned judge’s decision not to allow the stay of the adjudication decision pending arbitration applied by the appellant.

At the HC

[11]The learned judge decided that even when the dispute had been referred for arbitration, this would not mean that a stay would automatically be granted.

[12]Based on several reported decisions, the learned judge found that generally there is a high threshold before a stay would be allowed.

[13]There were no clear errors in the adjudication decision that would warrant a stay. This is because there was no evidence of denial of natural justice by the adjudicator nor the adjudicator had acted in excess of jurisdiction.

[14]Although the merits of the adjudication decision could be revisited, in this case, there were no instances of wrong interpretation of the statute or misreading of case authorities that resulted in the decision being plainly erroneous.

[15]There are no clear errors that would prick the conscience of the learned judge that would justify the stay to be granted.

[16]The learned judge also did not accept that the justice of the case would mean the stay ought to