The court held that an adjudicator's excess jurisdiction regarding the Performance Bond does not invalidate the entire adjudication decision, allowing for severance to uphold valid claims.

Anand Ponnudurai J:

JUDGMENT

Introduction

[1]There was an Adjudication Decision dated 22^nd February 2022 by an Adjudicator, Ir Yong Hee Leong (hereinafter referred to as “the said AD”). These present cases involve the cross applications made in relation to the said AD i.e. vide Originating Summons No. PA-24C-10-03/2022 (“OS 10”) to set aside the AD pursuant to section 15Construction industry Payment and Adjudication Act 2012Originating Summons No. PA-24C-14-03/2022 (“OS 14”) to enforce the same pursuant to section 28Construction Industry Payment and Adjudication Act 2012CIPAA 2012).

[2]Both applications were heard together. However, parties had predominantly submitted in relation to the application to set aside in OS 10 with the understanding that the outcome of OS 14 to enforce would depend on the outcome of OS 10.

[3]As the said AD related to various heads of claims which were allowed by the Learned Adjudicator, this judgment will also discuss the issue of whether the High Court when faced with an application to set aside under Section 15CIPAA 2012entire AD or is able to set aside only part of the same in the event it concludes that only part of the said AD (or a particular head of claim) was made in excess of jurisdiction.

[4]For ease of reference, parties will be referred to as Setia Fontaines and Pro Tech respectively.

BACKGROUND FACTS

[5]The parties had filed numerous affidavits in relation to both applications and annexed to them, were all the relevant documents. From them, the facts appeared to be largely undisputed and can be summarised as follows;

5.1 - Setia Fontaines is a private limited company and its principal nature of business is as a property developer;

5.2 Pro Tech is a private limited company and its principal nature of business is general contracting for construction projects;

5.3 pursuant to the Letter of Award dated 7^th June 2019 (hereinafter referred to as “LOA”), Pro Tech was appointed as the main contractor for the proposed construction and completion of 2-storey office building on Lots No. 2457, 1826, 1829, 2466 and 1557, Mukim 6, Daerah Seberang Perai Utara, Penang (hereinafter referred to as “the Project”);

5.4 on 24^th September 2019, i.e. more than three (3) months after the issuance of the LOA, the Project Architect (hereinafter referred to as “the Consultant”) prepared the PAM Contract 2006 together with the Amendments to the PAM Contract 2006 for parties to sign and which was signed;

5.5 the chronology of events and the crucial and relevant dates/information are set out as follows:

Dates:

a)7^th June 2019: Signing and issuance of the LOA;

b)24^th September 2019: Signing of PAM Contract 2006 together with the Amendments to the PAM Contract 2006;

c)14^th March 2020: Initial Completion Date;

d)21^st August 2020: Certificate of Non-Completion (“the CNC”) but this was revoked by the issuance of Extension of Time No. 4; .

e)31^st August 2020: Revised Completion Date after issuance of Extension of Time No. 4 (“EOT No. 4”) by the Consultant via his letter dated 22^nd July 2021; and

f)11^th September 2020: Certificate of Practical Completion (“the CPC”).

Payment Certificates issued by the Project Architect (“the Consultant”):

a)15^th October 2020: Payment Certificate No. 13 with a certified sum of RM38.355.03;

b)14^th January 2021: Payment Certificate No. 14 with a certified sum of RM55,849.86;

c)10^th March 2021: Payment Certificate No. 15 with a certified sum of RM14,248.77;

d)15^th November 2021: Payment Certificate No. 16 with a certified sum of RM563.983.10; and

e)RM476.256.21 was retained, 2.5% upon certification of Practical Completion

Progress Claim No. 16R (Rev 01):

a)11^th March 2021: submitted by Pro Tech for the amount of RM1,