The admissibility of new evidence in setting aside applications for adjudication decisions is constrained by the need for prior submission in adjudication unless justified.

JUDGMENT

(2 Originating Summonses)

Wong Kian Kheong J:

A. Introduction

[1] This judgment concerns a joint hearing of the following two originating summonses (OS):

(1) Bluedream City Development Sdn. Bhd. (BCD) has filed OS No BA-24C-27-03/2020 (BCD's OS) against Pembinaan Bina Bumi Sdn. Bhd. (PBB) for an order that an adjudication decision made on 4 February 2020 (AD) by an adjudicator, Mr. Chua Seow Kwang (Adjudicator), in favour of PBB against BCD be set aside (BCD's Setting Aside Application); and

(2) PBB has filed OS No BA-24C-76-08/2020 for leave of court to enforce the AD against BCD (PBB's Enforcement Application).

B. Background

[2] By way of a "Letter of Award" dated 3 September 2014 (LA), BCD appointed PBB to carry out "main building and infrastructure works" (Works) in a condominium project (Project).

[3] PBB completed the Works and claimed payment for the Works.

[4] BCD and PBB entered into a "Settlement Agreement" on 30 October 2018 (SA). Regarding the SA:

(1) PBB claimed that the SA did not include an "Interim Certificate No 4R" (IC No 4R) issued by BCD to PBB for a sum of RM5,510,197.91 [Sum (ICR No 4R)] to be paid by BCD to PBB (PBB's Claim); and

(2) BCD alleged that the SA included, among others, the Sum (ICR No 4R).

[5] PBB commenced adjudication proceedings against BCD based on PBB's Claim (Adjudication). BCD was represented in the Adjudication by the same firm of solicitors who appeared for BCD in these 2 OS. At the Adjudication, the Adjudicator adjudicated, delivered the AD as follows, among others:

(1) BCD shall pay the Sum (ICR No 4R) to PBB;

(2) interest on the Sum (ICR No 4R) shall be paid by BCD to PBB as stipulated in the AD; and

(3) BCD shall pay to PBB costs of the Adjudication, costs of the Adjudicator and all other fees as specified in the AD.

C. Legal Proceedings

[6] In BCD's OS -

(1) BCD filed a notice of application (NA) in court enclosure No 17 (encl 17) under s 16(1)(b) of the Construction Industry Payment and Adjudication Act 2012 (CIPAA) to stay the enforcement of the AD pending the disposal of an arbitration between BCD and PBB (Arbitration). PBB had resisted encl 17;

(2) in BCD's second affidavit in support of BCD's Setting Aside Application affirmed by Ms. Lim See Tow, BCD's Chief Operating Officer (Ms. Lim) on 25 August 2020 (BCD's 2nd Affidavit), BCD had relied on documents exhibited in Exhibits A-1 to A-6 (BCD's Evidence). BCD's Evidence:

(a) had not been adduced in the Adjudication; and

(b) included a letter dated 25 March 2015 (Exhibit A-5) from BCD to Messrs "YF Lee Quantity Surveyors" (QS). According to Exhibit A-5, among others:

(i) there was a meeting between BCD's Datin Dian Lee (BCD's Managing Director), Ms. Lim and Mr. Stanley on the one part with Dato' Darren Kwan (Dato' Kwan), Mr. Desmond and Mr. Yee from PBB on the other part; and

(ii) as BCD had accepted PBB's proposal, BCD requested the QS to revise QS's "Valuation Report No 4 with an additional amount at the range of RM5 million as a Variation Order to facilitate [PBB's] proposal" and the "over certification in the revised valuation shall be adjusted accordingly in the later stage to reflect the over certification";

(3) PBB had objected strenuously to the admissibility of BCD's Evidence in these 2 OS. In fact, Dato' Kwan, PBB's director, had made a police report on 1 October 2020 (Dato' Kwan's Police Report) which stated as follows -

(a) Dato' Kwan did not receive Exhibit A-5; and

(b) the first time Dato' Kwan had sight of Exhibit A-5 was when he read BCD's 2nd Affidavit;

(4) before I delivered my oral grounds for the 2 OS, I drew the attention of BCD's learned lead counsel, Mr. Sanjay A/L Mohanasundaram, to the fact that a stay application pursuant to s 16(1)(b) CIPAA should not be made in a NA (such as Enclosure 17) because generally, the court should not make an order in a NA (filed in an OS) which has not been applied for in the OS - please refer to MRCB Builders Sdn Bhd v. Wazam Ventures Sdn Bhd , at [36];

(5) Mr. Sanjay had the candour to