Wong Kian Kheong J:

JUDGMENT

(2 Originating Summonses)

A. Introduction

[1]These two originating summonses (OS) concern the same plaintiff company (Plaintiff) and defendant company (Defendant).

[2]The 2 OS are heard together and raise the following two novel questions regarding s 30Construction Industry Payment and Adjudication Act 2012CIPAA):

(1)does the Defendant have the evidential burden to prove that no debt is “due” or “payable” by the Defendant to Dekinjaya Builder Sdn. Bhd. (DB) under s 30CIPAAAD’s) obtained by the Plaintiff against DB?; and

(2)whether should the court exercise its discretion to lift the corporate veil of the Defendant and DB to reveal that both companies are controlled by one family and hence, the Defendant has a self-serving motive not to pay the Plaintiff under s 30CIPAA

B. Background

[3]The Defendant was an employer of a construction project (Project).

[4]DB had been appointed by the Defendant as the main contractor for the Project.

[5]DB had appointed the Plaintiff as a nominated sub-contractor for the supply, delivery and installation of steel structure and reinforced concrete works in the Project (Works).

[6]DB did not pay the Plaintiff for the Works. Hence, the Plaintiff commenced two adjudication proceedings against DB under CIPAA (Adjudication Proceedings). The outcome of the 2 Adjudication Proceedings was as follows:

(1)on 5.2.2020, Sr. Isacc Sunder Rajan Packianathan has adjudicated that, among others, DB shall pay a sum of RM1,412,123.65 (1^st Adjudicated Amount) to the Plaintiff (1^st AD). OS no. BA-24C-42-05/2020 concerns the 1^st AD; and

(2)Mr. Harbans Singh A/L Amar Singh has delivered an adjudication decision on 9.1.2020 in favour of the Plaintiff against DB wherein DB is adjudicated to pay, among others, a sum of RM118,848.30 (2^nd Adjudicated Amount) to the Plaintiff (2^nd AD). The 2^nd AD forms the subject matter of OS no. BA-24C-43-05/2020.

[7]DB has failed to pay to the Plaintiff the total amounts [Total Due (2 AD’s)] due from DB to the Plaintiff under the 2 AD’s within the time periods stipulated in the 2 AD’s.

[8]The Plaintiff applied for and obtained leave of the High Court under s 28CIPAA

[9]On 6.3.2020, the Plaintiff’s solicitors sent two demands (one each for the 2 AD’s) to the Defendant to pay to the Plaintiff the Total Due (2 AD’s) under s 30CIPAAPlaintiff’s 2 Demands (6.3.2020)]. The Plaintiff’s 2 Demands (6.3.2020) had been made on the basis that the Defendant was DB’s “principal” within the meaning of s 4CIPAA

[10]In response to the Plaintiff’s 2 Demands (6.3.2020), the Defendant replied in two letters dated 16.3.2020 [Defendant’s 2 Replies (16.3.2020)] as follows:

“…

Kindly be informed that at the time of the receipt by us of your letter, there is no money due or payable by us to [DB].”

(emphasis added).

[11]The Plaintiff’s solicitors then sent two letters dated 2.4.2020 to the Defendant [Plaintiff’s 2 Letters (2.4.2020)] which stated as follows, among others:

“…

[2]Your statement that no monies are due and payable to [DB] is a bare statement.

[3]Should you have documents to support your statement, including following documents, please forward them to us within five (5) working days:-

(a)All payment applications made by [DB] to [Defendant];

(b)All interim valuations issued by the Quantity Surveyor to [Defendant];

(c)All interim certificates issued by the Architect to [Defendant] with corresponding proof of payments by [Defendant] to [DB]; and

(d)Certificate of Practical Completion.”

(emphasis added).

[12]By way of two letters dated 8.5.2020 [Defendant’s 2 Replies (8.5.2020)], the Defendant replied to the 2 Plaintiff’s Letters (2.4.2020) as follows:

“…

[2]As mentioned in [2 Defendant’s Replies (16.3.2020)], at that time of the receipt by us of [2 Plaintiff’s Demands (6.3.2020)], there is no money due or payable by us to [DB].

[3]Furthermore, we are not obligated to comply with your request made in Paragraph 3 of [2 Plaintiff’s Letters (2.4.2020)].”

(emphasis added).

C. 2 OS

[13]In these 2 OS, the Plaintiff has p