The principal must pay the adjudicated amount directly to the claimant under Section 30 of CIPAA when the necessary conditions are fulfilled.

[1] This application raises some interesting questions with respect to the statutory right given to a successful Claimant in an Adjudication under the Construction Industry Payment and Adjudication Act 2012 ("CIPAA") to enforce that right against a principal of the Respondent in the Adjudication under s 30 of the CIPAA.

[2] It was argued that the principal under s 30 of the CIPAA is not legally obliged to pay for it is not mandatory for them to pay the Claimant even after all the conditions prescribed have been fulfilled and more importantly there is no remedy for enforcement as the CIPAA itself makes no reference to an application to Court to enforce the remedy which is in the nature of a self-help remedy very much like that of going slow or suspending the works that the Claimant may avail itself under s 29 of the CIPAA.

[3] At any rate the Main Contract between Jabatan Kerja Raya Malaysia ("JKR") and the Main Contractor prohibits subcontracting without JKR's consent and that the JKR was unaware of the Claimant and does not recognize the subcontracting which is void.

[4] It was further argued that before the provision of s 30 of the CIPAA may be invoked, there must first be an enforcement order obtained from the High Court under s 28 of the CIPAA. The other argument is that the Respondent in the Adjudication must be made a party to this application so as to avoid double enforcement and double payment out.

[5] The Plaintiff is the successful Claimant in the Adjudication against Empayar Megah Engineering Sdn Bhd ("EMESB") the Respondent in the Adjudication. The Defendants in this application are JKR, the Kementerian Kerja Raya Malaysia and the Kerajaan Malaysia as the First, Second and Third Defendant respectively (collectively referred to as "the Defendant").

Project

[6] On and about October 2015, the Plaintiff had entered into a construction contract through a sub-contract agreement with the Main contractor, EMBSB whereby the Plaintiff was engaged by EMESB as a sub-contractor for the project known as the "Propose Cure & Care Rehabilitation Centre (CCRC) and Cure & Care 1 Malaysia Clinic in Kuching, Sarawak" ("Project") for a contract sum of RM29,044,000.00.

Proceedings In Adjudication

[7] The Plaintiff as Claimant made a claim in the Adjudication against EMESB for an amount outstanding for work done in the amount of RM1,806,868.99.

[8] The Adjudicator delivered his Adjudication Decision on 17 January 2018 as follows:

"171. Accordingly, I hereby find and determine:

(1) that the Claimant's claims are partially allowed, in that:

- the sum RM1,033,617.32 which is due under the Payment Certificate No 20 dated 13 June 2017 is allowed; whereas

- the release of the retention sum amounting to RM773,252.67 is dismissed.

(2) That the Respondent shall pay to the Claimant the sum of RM1,033,617.32 (Ringgit Malaysia: One Million Thirty-Three Thousand Six Hundred Seventeen and Cents Thirty-Two only). This is hereby recorded as the Adjudicated Sum;

(3) That the Respondent's defence is dismissed in its entirety;

(4) That simple interest at 5% per annum on yearly rest shall apply on the Adjudicated Sum, whereby the Respondent shall pay the Claimant the following interest:

5% per annum on RM1,033,617.32 from 14 July 2017 until the payment is fully settled by the Respondent

(5) That the Respondent shall bear the Adjudication Costs, which I determined as RM125,076.55. These costs shall be paid to the Claimant on or before the Due Date for Payment;