Adjudication decisions made beyond the statutory time limit are void under Section 12(3) of the Act, emphasizing the necessity for strict compliance with prescribed timelines.

Wong Kian Kheong J:

JUDGMENT

(Originating summons)

A. Three novel issues

[1]This originating summons (OS) is a case of first impression regarding the following three questions:

(1)does an adjudicator have power under s 12(1)s 25(p) Construction Industry Payment and Adjudication Act 2012 (CIPAA)45 working days” time period prescribed in s 12(2)(a)CIPAAPrescribed Time Period [ Section 12 (2)(a)make” the adjudication decision?; and

(2)if the answer to the above issue is “no” -

(a)whether the doctrine of equitable estoppel bars a party against whom an adjudication decision is made (X) from applying to court to set aside the adjudication decision on the ground that the adjudication decision is void under s 12(3)CIPAAmade” beyond the Prescribed Time Period [ Section 12 (2)(a)Breach [ Section 12 (2)

(b)can X acquiesce to the Breach [ Section 12 (2)

B. Background

[2]By way of a construction contract dated 15.12.2018 (Contract), the plaintiff company (Plaintiff) had appointed the defendant company (Defendant) to build a three-storey car service workshop and office in Selangor Darul Ehsan (Works).

[3]The Defendant had commenced adjudication proceedings under CIPAA against the Plaintiff (AP). In the AP -

(1)the Defendant had claimed for a sum of RM2,013,509.65 from the Plaintiff for Works which had been performed by the Defendant but had not been paid by the Plaintiff to the Defendant under the Contract (Defendant’s Claim);

(2)the Director of Asian International Arbitration Centre (AIAC) had appointed Encik Masoud Moinfar (Adjudicator) to adjudicate the Defendant’s Claim;

(3)the Plaintiff was represented by Messrs Darryl, Edward & Co. [Plaintiff’s Solicitors (AP)]. Messrs Raja, Darryl and Loh now represent the Plaintiff in this OS. Messrs PY Hoh & Tai acted on behalf of the Defendant [Defendant’s Solicitors (AP)];

(4)at 10.02 am, 8.10.2021, the Adjudicator sent an email to the Plaintiff’s Solicitors (AP) and Defendant’s Solicitors (AP) [Adjudicator’s Email (8.10.2021)] which stated as follows, among others -

“To the [Defendant]

Thank you for presenting your Adjudication Reply via email and delivery to my office.

I wish to request that you or the [Plaintiff], provide me with proof/acknowledgement of physical delivery of the same to the [Plaintiff’s] representative please.

Once this is confirmed, service of the Adjudication Reply marks the end of the submission stage in the adjudication process. …”

(emphasis added);

(5)the Defendant’s Solicitors (AP) replied to the Adjudicator’s Email (8.10.2021) at 10.20 am, 8.10.2021 in an email which stated that the Defendant’s Solicitors (AP) had served the hard copy of the Adjudication Reply (AR) on the Plaintiff’s Solicitors (AP) on 7.10.2021 [Defendant’s Email (8.10.2021)];

(6)at 11.19 am, 3.12.2021, Mr. Alvin Tan Chi Sian [from the Defendant’s Solicitors (AP)] sent an email to the Adjudicator [Defendant’s Email (3.12.2021)] which, among others, sought the Adjudicator’s confirmation regarding the date for the delivery of the adjudication decision (AD). Mr. Alvin Tan is the Defendant’s learned counsel in this OS;

(7)the Adjudicator sent an email at 1.05 pm, 3.12.2021 in reply to the Defendant’s Email (3.12.2021) [Adjudicator’s Email (3.12.2021)]. According to the Adjudicator’s Email (3.12.2021), among others -

“To the [Defendant]

…

As for the date for the delivery of the decision, the latest date that the decision can be issued is 15 December 2021.”

(emphasis added).

There was no reply to the Adjudicator’s Email (3.12.2021) by both Plaintiff’s Solicitors (AP) and Defendant’s Solicitors (AP); and

(8)the AD was “delivered” to the Plaintiff and Defendant on 14.12.2021. According to the AD, among others -

(a)the Plaintiff shall pay a sum of RM1,659,949.76 to the Defendant for the Works (Adjudicated Amount);

(b)various costs and fees as stated in the AD shall be paid by the Defendant to the Plaintiff; and

(c)the Plaintiff shall pay to the Defendant interest on the Adjudicated Amount as stipulated in the AD.

C. This OS

[4]The Plaintiff