Anselm Charles Fernandis J:

JUDGEMENT

Introduction

[1]This judgment is in respect of 2 Originating Summonses. They are:

(a)MA-24C-1-02/2023 is Costwin Constructions Sdn Bhd’s (“Costwin”) application to set aside the adjudication decision dated 25.1.2023 (“the AD”) which was held in favour of CJV Trading Enterprise (“CJV”). This application is made pursuant to section 15(b)section 15(d)Construction Industry Payment and Adjudication Act 2012

(b)MA-24C-3-04/2023 which is CJV’s enforcement application to enforce the AD pursuant to section 28CIPAA 2012

[2]Costwin’s setting aside application and CJV’s enforcement application will collectively be referred to as “the applications”. Parties agreed that the applications be heard together.

[3]After hearing submissions by both parties I decided to dismiss Costwin’s setting aside application and allow CJV’s enforcement application. Costwin has appealed to the Court of Appeal against both decisions.

Brief Background

[4]Sometime in May 2019 CJV had been requested by Costwin to supply temporary sheet piles for an ongoing project called “Design and Construction, Supply, Installation, Completion, Testing, Commissioning & Maintenance of Electrified Double tracking from Gemas to Johore Bahru-Section 4.20” (“the project”). CJV also carried out other work for Costwin in Section 4.1 but this work was not connected to the applications.

[5]The was no formal written contract drawn out in respect of the project. There were however correspondences, exchanges of WhatsApp messages and other documents as to the supply of sheet piles by CJV to Costwin in respect of the project. The following documents was adduced by CJV:

[6]At all material time it was claimed by CJV that they had completed the work they were required to do in the project and demanded the balance payment. Costwin however denied the claim by CJV and refused payment.

[7]Thereafter CJV commenced legal action against Costwin on the amount due at the Sessions Court Melaka in Civil Suit No.MA-B52-4-09/2020. This suit was struck out by the Sessions Court because CJV was a sole proprietorship and did not have the capacity to sue under its business name. CJV appealed against the decision of the Sessions Court to the High Court. The appeal was however withdrawn.

[8]Subsequently CJV commenced an adjudication proceeding against Costwin pursuant to a Notice of Adjudication dated 3.8.2022. CJV claimed a total of RM625.362.80 from Costwin. CJV’s payment claim was dated 27.6.2022. Costwin’s Payment response was dated 12.7.2022.

[9]The breakdown of CJV’s claim is as follows:

Opposition by Costwin

[10]Costwin opposed the adjudication proceeding on the following grounds:

(a)The was no written contract between Costwin and CJV. The dispute fell outside the ambit of section 2CIPAA 2012

(b)The subject matter of the Adjudication Claim was struck out by the Melaka Sessions Court in Civil Suit No.MA-B52-4-09/20. The appeal against the decision was withdrawn without liberty to file afresh. The doctrine of Res Judicata applied as well as Estoppel.

(c)The documentation submitted for the Progressive Payments were unsupported, self-prepared and self-serving

(d)Costwin has made payment of RM 426,395.59 to CJV for the project 4.2 and this stated in the affidavit of CJV in Interrogatories at the Melaka Sessions Court.

[11]On 25.1.2023 the adjudicator deli