JUDGMENT

Zulkefli Ahmad Makinudin PCA:

Background Facts

[1] This is an appeal by the appellant against the decision of the Court of Appeal affirming the decision of the High Court in relation to three applications filed by the appellant and the respondent at the High Court on issues pertaining to the relevant provisions of the Construction Industry Payment And Adjudication Act 2012 ("CIPAA").

[2] The three applications by way of Originating Summons relate to the same adjudication claim and had been consolidated and heard together.

[3] The three applications are as follows:

(i) The first application was made by the appellant to challenge the jurisdiction of the adjudicator under the provision of s 41 of CIPAA. The said s 41 reads as follows:

"Savings

41. Nothing in this Act shall affect any proceedings relating to any payment dispute under a construction contract which had been commenced in any Court or arbitration before the coming into operation of this Act."

(ii) The second application was made by the respondent seeking the registration and enforcement of the adjudication decision as a judgment of the Court pursuant to s 28 of CIPAA. The said s 28 reads as follows:

"28. Enforcement of adjudication decision as judgment

(1) A party may enforce an adjudication decision by applying to the High Court for an order to enforce the adjudication decision as if it is a judgment or order of the High Court.

(2) The High Court may make an order in respect of the adjudication decision either wholly or partly and may make an order in respect of interest on the adjudicated amount payable.

(3) The order made under subsection (2) may be executed in accordance with the rules on execution of the orders or judgment of the High Court."

(iii) The third application was made by the appellant to set aside and/ or stay the award of the adjudication pursuant to ss 15 and 16 of CIPAA. The said ss 15 and 16 read as follows:

"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 jurisdiction.

16. Stay of Adjudication Decision

(1) A party may apply to the High Court for a stay of an adjudication decision in the following circumstances:

a. an application to set aside the adjudication decision under s 15 has been made; or

b. the subject matter of the adjudication decision is pending final determination by arbitration or the Court.

(2) The High Court may grant a stay of the adjudication decision or order the adjudicated amount or part of it to be deposited with the Director of the KLRCA or make any other order as it thinks fit."

[4] The learned judge of the High Court dismissed both of the appellants applications and allowed the respondents application to enforce the adjudication decision. The Court of Appeal affirmed all the three decisions of the High Court.

[5] The following are the questions of law approved by the Federal Court in this appeal:

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(1) Whether a jurisdictional challenge as to the application of the Construction Industry Payment and Adjudication Act 2012 ("CIPAA") can be made any time by way of application or whether such an application can only be made upon the application to set aside an Adjudication Award under s 15 of the CIPAA;

(2) Whether s 41 of the CIPAA operates to exclude any proceedings from the operation of the CIPAA if the whole or any part of such a claim has been brought to Court or Arbitration prior to the coming into force of the CIPAA;

(3) Whether s 6(4) of the CIPAA allows a responding party to raise matters not raised in Payment Response under s 6(2) of the CIPAA during the filing of the Adjudication Response under s 10(1) of the CIPAA;

(4) If the answer to