A sole proprietor must sue in their own name to satisfy legal personality requirements for adjudication proceedings under the Construction Industry Payment and Adjudication Act.

Nadzarin Wok Nordin J:

JUDGMENT

(Enclosure 1)

Introduction

[1]In the Originating Summons No. WA-24C-148-07/2022 dated 26.7.2020 (OS 148) in enclosure 1, China 1^st Metallurgical Construction (M) Sdn Bhd (“CMC”) the Plaintiff therein had sought for inter alia various declarations against Galaxy Plumbing Construction (“GPC”), the Defendant relating to an Adjudication Decision dated 6.7.2022 (Decision) whereas in Originating Summons No. WA-24C- 155-08/2022 dated 10.8.2022 (OS 155), GPC had sought to enforce the Decision pursuant to section 28 Construction Industry Payment and Adjudication Act 2012 CIPAA”).

[2]The background chronology pertaining to the matters are in summary as follows:-

2.1 Following or pursuant to an Adjudication Notice dated 28.12.2021 as well as the Defendant’s request to the Director of AIAC to appoint an adjudicator, the Director of AIAC has on 20.01.2022 appointed Mr. Chan Szu Fu (hereinafter referred to as the “First Adjudicator”) as the adjudicator and the said First Adjudicator had on 26.01.2022 received appointment as Adjudicator. On 18.02.2022 the Defendant submitted to the Plaintiff an Adjudication Claim dated 18.02.2022 pursuant to Section 7CIPPA 2012

2.2 However, the Defendant did not withdraw the adjudication and did not issue a new Adjudication Notice as required under the provisions of CIPAA 2012.

2.3 Although the Defendant did not withdraw the ongoing adjudication proceedings and did not issue a new Adjudication Notice, the Defendant continued on 17.03.2022 to ask the AIAC Director to appoint a new adjudicator. According to the Defendant’s request, the director of AIAC had appointed Ir. Lai Sze Ching (“Second Adjudicator”) but due to the Plaintiff’s objection based on ‘conflict of interest’ and the Defendant’s request, the Second Adjudicator had on 25.03.2022 rejected the appointment as an adjudicator. After that, on 28.03.2022 the Defendant again asked the Director of AIAC to appoint a new adjudicator and the Director of AIAC had on 01.04.2022 appointed Miss Yoong Li Chin as the new adjudicator.

[3]Both OS matters were heard together as they were inter related and the main opposition by CMC to OS 155 and in support of their OS 148 was that:-

(i)GPC does not have the locus standi to commence the Adjudication as it is a sole proprietor and not a company or partnership. This point was allegedly also raised in CMC’s Adjudication Response

(ii)there is no construction contract in writing thus the Adjudication cannot come under CIPAA; and

(iii)the appointment of the Adjudicator who delivered the Decision was null and void as GPS had prior to the appointment of the Adjudicator commenced a 1^st Adjudication Proceedings, in which an adjudicator had been appointed which had reached the Adjudication Response stage and for which GPS had not issued a written withdrawal for the said 1^st Adjudication Proceedings nor had GPS issued a fresh notice of adjudication for the appointment of the current Adjudicator

Submissions & Court’s Findings

[4]This Court was referred to Global Built Sdn Bhd v LKL Ceiling Enterprise & Anor and another case

“[20] In respect of locus standi, GB contended that the adjudication proceedings were commenced not by Wong Yen Feng but by LKL Ceiling Enterprise that is not a legal personality or entity with capacity notwithstanding that LKL Ceiling Enterprise might have been named in the Sub-Contract. As the result, the adjudicator did not have the jurisdiction to decide the dispute and the Decision must accordingly be set aside.

[20] I have held as follows in KLIA Associates Sdn Bhd v Mudajaya Corporation Bhd [2020] 1 LNS 1253 with emphasis added:

“[28] KLIAA-KLIACS Consortium is merely a name used for convenience by KLIA Associates Sdn Bhd and KLIA Consultancy Services Sdn Bhd operating together in consortium.

[29] It is trite law as seen from the cases of Haji Abdul Rahman v Government of Malaysia & Anor [1966] 1 LNS 215; Bencon Development Sdn Bhd v Majlis Perbandaran Pulau Pinang & Ors Vestime Corpo