Azlan Sulaiman J:

JUDGMENT

Introduction

[1]The connection between these three Originating Summons is an Adjudication Decision dated 15.8.2025 in Adjudication Reference No: AIAC/D/ADJ-5876-2025 (“Adjudication Decision”) that Bauer (M) Sdn Bhd (“Bauer”) obtained against MRCB Builders Sdn Bhd (“MRCBB”) under the Construction Industry Payment and Adjudication Act, 2012 (“Act”).

[2]By Originating Summons No: WA-24C-143-08/2025 (“OS 143”), MRCBB is applying under sections 15(b)15(d)

[3]By Enclosure 30 filed in OS 143, MRCBB is applying under section 16(1)(a)

[4]By Originating Summons No: WA-24C-144-08/2025 (“OS 144”), MRCBB is applying under section 16(1)(b)

[5]By Originating Summons No: WA-24C-147-09/2025 (“OS 147”), Bauer is applying under section 28

[6]As a matter of prudence, I decided to hear all three Originating Summonses together. I will decide OS 143 first, then OS 147 and then OS 144. If the Adjudication Decision is set aside, then there will be nothing left to enforce. In contrast, if I dismiss OS 143 and allow OS 147, it is only then that I should decide whether to stay that enforcement.

Salient facts

[7]By to a letter of award dated 27.11.2017 (“LOA”), Special Condition of Contract for PWD Form 203A (Rev 1/2010) - Appendix 1 (“SCOC”), PWD Standard Form Contract (PWD Form 203A (Rev. 1/2020) - Appendix 2 (“COC”) and other documents which collectively made up the contract between the parties (“collectively, Contract”), MRCBB had appointed Bauer as a sub-contractor to carry out bored pile works (“Works”) for a project known as “Projek Penswastaan Lebuhraya Bertingkat Damansara - Shah Alam Package CB2 - Construction and Completion of Mainline and Other Associated Works from CH.12453.00 to CH.14342.372” (“Project”).

[8]By a Payment Claim dated 17.1.2025 (“Payment Claim”), claimed Bauer claimed for the sum of RM12,884,976.66 (“Claimed Sum”) as under-certification / non-certification of its Payment Application 19 -Final dated 25.10.2022 (“IPA 19”). In the Payment Claim, that sum of RM 12,884,976.66 consisted of:

[9]In its Payment Response dated 3.2.2025 (“Payment Response”), MRCBB disputed all of those claims and further contended that it was entitled to offset the following from any sums payable to Bauer:

(i)RM137,863.93 as backcharges;

(ii)RM27.000.00 as penalties;

(iii)RM140,713.05 for materials purchased on Bauer’s behalf; and

(iv)RM2,070,000.00 as LAD.

[10]After the Adjudicator was appointed, the parties then submitted the Adjudication Claim, the Adjudication Response, and the Adjudication Reply to him.

[11]In the Adjudication Decision, the Adjudicator decided that MRCBB is to pay to Bauer on or before 29.8.2025 (“Due Date”):

(i)the sum of RM8.011,388.73, as the Adjudicated Sum;

(ii)interest at the rate of 5% per annum, from the Due Date until full payment of the Adjudicated Sum; and

(iii)costs of the adjudication proceedings of RM91,100.00.

[12]Just days before the Adjudication Decision, on 12.8.2025, MRCBB commenced arbitration proceedings against Bauer by issuing to it a Request For Arbitration (“Request For Arbitration”).

[13]MRCBB filed OS 143 and OS 144 on 28.8.2025, and Bauer filed OS 147 on 2.9.2025.

[14]MRCBB has not paid any of the sums under the Adjudication Decision to Bauer.

OS 143

[15]Section 15 of the Act is the provision under the Act for setting an adjudication decision aside. This section 15Section 15

“15. Improperly procured adjudication decision

An aggrieved party may apply to the High Court to set aside an adjudication decision on one or more of the following grounds:

(a)the adjudication decision was improperly procured through fraud or bribery;

(b)there has been a denial of natural justice;

(c)the adjudicator has not acted independently or impartially; or

(d)the adjudicator has acted in excess of his j