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DALAM MAHKAMAH TINGGI MALAYA DI SHAH ALAM
DALAM NEGERI SELANGOR DARUL EHSAN, MALAYSIA
SAMAN PEMULA NO: BA-24C-31-06/2017
ANTARA 5
Dalam Perkara Perjanjian Pembinaan (Letter of Award) di antara PWC Bina Sdn Bhd Dan Ideal City Development Sdn Bhd Bertarikh 20.3.2014 10 Dan Dalam Perkara Keputusan Adjudikasi bertarikh 22.5.2017yang diberikan oleh Puan Chui Yee Kwan Rujukan Adjudikasi No. KLRCA/D/AND-15 0619-2016 Dan Dalam Perkara Seksyen 28(1), (2) dan (3) Akta 20 Pembayaran dan Adjudikasi Industri Pembinaan 2012 Dan 25 Dalam Perkara Aturan 92 Kaedah 4 Kaedah-Kaedah Mahkamah 2012
ANTARA 30
PWC BINA SDN BHD
(No. Syarikat : 491422-U …PLAINTIF
DAN 35
IDEAL CITY DEVELOPMENT (M) SDN BHD
(No. Syarikat : 335622-W) …DEFENDAN
40
DIDENGAR BERSAMA DENGAN
SAMAN PEMULA NO. BA-24C-32-06/2017
2
Dalam Perkara Adjudikasi KLRCA No. KLRCA/D/ADJ-0721-2017 dimulakan oleh PWC Bina Sdn Bhd terhadap Ideal City Development Sdn Bhd. 5 Dan Dalam Perkara Keputusan bertarikh 22.5.2017 oleh Chui Yee Kwan, Adjudikator 10 Dan Dalam Perkara Satu Permohonan di bawah Seksyen 15 Akta Pembayaran dan Adjudikasi Industri Pembinaan 2012 15 Dan Dalam Perkara Aturan 7 dan Aturan 28 Kaedah Mahkamah 2012 20
ANTARA
IDEAL CITY DEVELOPMENT (M) SDN BHD
(No. Syarikat : 335622-W) … PLAINTIF 25
DAN
PWC BINA SDN BHD
(No. Syarikat : 491422-U …DEFENDAN
30
GROUNDS OF JUDGMENT
Introduction
1. By BA-24C-31-06/2017 (OS 31) PWC Bina Sdn Bhd (PWC) filed an
application to enforce an adjudication decision (enforcement application)
dated 22-5-2017 (adjudication decision). In enclosure 5 Ideal City 35
Development Sdn Bhd (ICD) filed an application to stay the adjudication
3
decision pending final determination by arbitration (stay application). By
BA-22C-32-06/2017 (OS 32) ICD filed an application to set aside the
adjudication decision (setting aside application).
2. Both applications along with the stay application were heard together, 5
with the Court proceeding first on the setting aside application.
3. In OS 32 ICD filed enclosure 16 to amend the OS to add 1 more
ground to set aside the adjudication decision. The additional ground
relates to the absolute assignment of PWC’s right, benefit and interest in 10
the contract sum or any other payment in favour of United Overseas Bank
(UOB) resulting in PWC having no locus standi to initiate the adjudication
proceeding or enforce the adjudication decision. This amendment was
allowed as it did not add any new remedy or damages prayed for.
15
4. ICD also filed an application in enclosure 18 to use a supplementary
affidavit affirmed on 29-8-2017 to adduce the deed of assignment. This
too was allowed. A similar application in enclosure 22 was filed for OS 31
which was allowed.
20
Background facts on the project and Payment Claim
5. By letter of award dated 10-3-2014 (exhibit “SCK-3”) and PAM
Contract 2006 ICD appointed PWC as the contractor to carry out and
complete superstructure work on a project (work). Akipanel Architects Sdn
Bhd was the Architect (Architect). The contract sum was RM329.085 25
million, construction period was 19 months with date of completion at
31-10-2015.
4
6. According to PWC, the Architect issued progress certificate dated
23-12-2016 (exhibit “SCK-4) which showed the value of work done by PWC
and nominated sub contractors to be RM31,847,202.49. The Architect had
earlier issued progress certificate dated 25-10-2016 (exhibit “SCK-5”)
certifying an amount RM1,743,471.44 as being due to PWC. This amount 5
was not paid to PWC whereby clause 4.1 of LA stated the period of
honoring interim certificate is 30 working days from the date of Payment
Certificate. PWC then filed its claim under the Construction Industry and
Payment Adjudication Act 2012 (CIPAA) and the result was for IDC to pay
an amount of RM1,743,471.44 (adjudicated amount). The adjudication 10
decision can be found in exhibit “SCK-6” [paragraphs 9-12 of PWC’s
affidavit in support for enforcement application].
A. Setting aside application
7. In paragraph 37 of affidavit in support ICD stated its grounds for 15
setting aside were premised on appointment of adjudicator being null and
void, excess of jurisdiction and denial of natural justice. OS 32 was
subsequently amended to allow a further ground of absolute assignment of
PWC’s rights to UOB.
20
(a) Absolute assignment
8. In PWC’s Notice of Assignment to ICD, it was stated as follows –
“2. We hereby give you notice that by a Deed of Assignment of
Contract Proceeds dated the 20th day of March, 2013 (“the Assignment”)
made between us and UNITED OVERSEAS BANK (MALAYSIA) BHD. 25
(Company No. 271809-K) of Kuala Lumpur Main Branch, Level 2, Menara
UOB, Jalan Raja Laut, 50350 Kuala Lumpur (“the Lender”), we assigned
absolutely unto the Lender the full and entire of our present or future
benefits rights title and interest in and to and under and all contract sums,
5
advance payments, fees, charges and any other proceeds and/or other
payments (collectively “the Contract Proceeds”) which may at any time
and from time to time be receivable by or payable to us from you under or
in connection with the Contract, whether on account of any claims, awards
and judgments made or given under or in connection with the Contract or 5
otherwise howsoever as security for certain banking facilities granted by
the Lender to us.”.
9. It was submitted by ICD that the words “assigned absolutely” was 10
clear evidence of PWC’s intention to an absolute assignment of rights and
benefits; the absolute assignment was still in force and the scope covered
the amount claimed by PWC which is the subject matter of both
applications. With the absolute assignment in place, whatever interests in
and benefit to the amount claimed by PWC had been assigned to UOB. 15
PWC thus had no locus standi or legal capacity to commence or maintain
the adjudication proceedings and the adjudication proceedings were null
and void and should be set aside.
10. ICD referred to the Federal Court case of Nouvau Mont Dor (M) Sdn 20
Bhd v Faber Development Sdn Bhd ]1987] CLJ (Rep) 231. In that case
the assignment was signed on 18-2-1978, appellant commenced legal
proceedings on 17-11-1982, and assignment revoked on 21-4-1983 with
the repayment and settlement of the fixed loan by appellant to Public Bank.
It was held by the Federal Court at page 235h “that the appellant was not 25
competent to maintain this action at the time when the originating summons
was filed on 17 November 1982”.
6
11. It was further submitted Nouvau Mont (supra) laid down the following
principles –
(i) In deciding whether an assignor is competent to maintain an action
or proceeding, the material time to be considered is the time of the filing or
commencement of the action or proceeding; 5
(ii) if the assignor was not competent to maintain the action or
proceeding as at the time of its filing or commencement, the action or
proceeding would be struck out, for it was null and void; and
(iii) Even if the assignment was revoked or cancelled subsequent to the
filling or commencement of the action or proceeding, it would not make any 10
difference in the eyes of law, and the invalid or incompetent action or
proceeding would still be struck out. This shows that any revocation of the
assignment does not have any retrospective effect.
12. In arriving at its decision the assignment was absolute the Federal 15
Court stated at page 235a –
“… whether or not an assignment is an absolute one (not purporting to be by way of charge only) within the meaning of s.4 (3) of the Civil Law Act 1956 is to be gathered only from the four corners of the instrument itself.”.
20
13. Further in page 235f it was stated –
“Looking at the whole document of 18 February 1978 and bearing in mind
the provision of s.6 of the Act, in our opinion, the document was an
absolute assignment and not purporting is to be by way of charge only
within the meaning of s. 4(3) of the Civil Law Act 1956. The assignment 25
was in terms absolute in the sense that the assignor (appellant) intended
to pass and transfer to the assignee (Public Bank) absolutely the
7
beneficial interest as well as all the rights title and interest in the Sale
Agreement dated 1 April 1977 and the remedies of enforcing them. The
instrument clearly purported and was intended in point of form, to be an
absolute assignment because of the use of the word “absolutely” in
Clause 1 thereof…”. 5
14. This meant the Federal Court only considered the four corners of the
assignment and the fact that the word “absolutely” was used.
15. However in Berjaya Times Squares Sdn Bhd v M Concept Sdn 10
Bhd [2010] 1 MLJ 597 the Federal Court in looking at the passage referred
to in page 235a stated at page 622A that the view expressed in Nouvau
Mont (supra) “is not good law and should not be followed”.
16. The Federal Court in page 620 laid down how a contract is to be 15
interpreted –
“Hence it is important to bear in mind that a contract is to be interpreted in
accordance with the following guidelines. First, a court interpreting a
private contract is not confined to the four corners of the document. It is
entitled to look at the factual matrix forming the background to the 20
transaction. Second, the factual matrix which forms the background to the
transaction includes all material that was reasonably available to the
parties. Third, the interpreting court must disregard any part of the
background that is declaratory of subjective intent only. Lastly, the court
should adopt an objective approach when interpreting a private 25
contract…”.
17. In this regard the factual matrix of the transaction is to secure the due
repayment of the loan where UOB is not concerned with the alleged delay 30
of the project. This is because whatever may happen PWC is still bound to
repay UOB. This is evident from clause 3(ii) where PWC remains liable to
8
perform all its obligations under the contract with UOB and UOB is under
no liability in the event of PWC’s failure to perform its obligations.
18. In Max-Benefit Sdn Bhd v Phuah Thean An & Anor [2001] 2 CLJ
70, it was stated at page 73 – 5
“Although the assignment is stated to be absolute in effect it is not. The
assignment was purely for the purpose of securing the loan. What I have
adverted to show is that there was a loan which the assignors-purchasers
had taken from the bank and that the loan had to be repaid over a period
of time and that the rights and interest over the property were assigned as 10
surety to ensure that the loan will be repaid. The loan or any balance or
part of it was given “upon the security of the same property”.
19. The same too is evident from clause 2 which was as security for 15
certain banking facilities and where despite the word “absolutely” what was
assigned was the Contract Proceeds as defined and not the right to sue.
20. This would be in consonance with the view expressed by Chow Kok
Fong in Security of Payments and Construction Adjudication Second 20
Edition where at page 174 it was stated –
“It is arguable that these provisions do not extend the statutory entitlement
to progress payment to an assignee of the benefit of the progress
payment. Such a construction would be consistent with the policy
objective of the Act since the regime was introduced to protect the cash 25
flow of the parties who actually carried out the work or services or supplied
goods for construction work. Thus, where a contractor assigns the
right to progress payments to a third party such as a bank, the bank
may assert its rights to unpaid progress payments under the terms
of the contract but it cannot make a payment claim under the Act.”. 30
(emphasis added)
9
“These provisions” refer to the entitlement to progress payment to any
person who has carried out construction work.
21. The view expressed by the learned author found judicial recognition
in Thiang Sung Construction Pte Ltd v International Elements Pte Ltd 5
[2016] 1 SLR 1314. There the argument was that the right to avail to the
equivalent of CIPAA was a personal one that was incapable of assignment,
an argument which found favour with the court which referred to the
passage as quoted earlier.
10
22. It thus follows that despite the word “absolutely” the assignment by
PWC to UOB was not absolute as it was for the purpose of securing the
banking facilities granted whereby only the Contract Proceeds were
transferred.
15
23. In any event UOB’s letter of consent dated 18-9-2017 to PWC (exhibit
“SCK-9”) has made it clear PWC can proceed with its claim under CIPAA.
Paragraph 2 of the letter stated –
“2. At your request and solely out of the abundance of caution, we do
hereby agree and consent to you to commence and/or proceed with your 20
claims against ICD in relation to any breach of the Award in the form of
claims under the Construction Industry Payment and Adjudication Act
2012, litigation and/or arbitration provided always …”.
25
24. Such consent has been recognized where in Malayan Banking Bhd
v Worthy Builders Sdn Bhd [2015] 3 MLJ 791 the Court of Appeal stated
at page 809 –
“It must be emphasized that the deed of assignment which is intended as
a security document, does not prohibit the assignor from obtaining the 30
10
consent from the assignee to sue the debtor and it has been accepted
practice and have accepted judicial recognition…”.
B. Merits of setting aside application
25. ICD’s application is premised on section 15 of CIPAA as follows – 5
“15. An aggrieved party may apply to the High Court to set aside an
adjudication decision on one or more of the following grounds:
(a) …;
(b) there has been a denial of natural justice;
(c) … or 10
(d) the adjudicator has acted in excess of his jurisdiction.”.
i. Excess of jurisdiction
(a) Invalid and/or null and void appointment of adjudicator 15
26. It was ICD’s contention the appointment of adjudicator was invalid
and/or null and void as the appointing authority is PAM and not KLRCA. It
is not disputed in this instance KLRCA had appointed the adjudicator.
27. Clause 34.2 and 34.3 of PAM Contract 2006 provides as follows – 20
“34.2 Where a party requires a dispute or difference under Clause 34.1 to
be referred to adjudication, such disputes or differences shall be referred
to an adjudicator to be agreed between the parties. If after the expiration
of twenty-one (21) Days from the date of the written notice to concur on
the appointment of the adjudicator, there is a failure to agree on the 25
appointment, the party initiating the adjudication shall apply to the
President of Pertubuhan Akitek Malaysia to appoint an adjudicator, and
such adjudicator so appointed shall be deemed to be appointed with the
agreement and consent of the parties to the Contract.”.
30
“34.3 Upon appointment, the adjudicator shall initiate the adjudication in
accordance with the current edition of the PAM Adjudication Rules or any
modification or revision to such rules.”.
11
28. Section 21 of CIPAA provides as follows –
“21. An adjudicator may be appointed in the following manner:
(a) by agreement of the parties in dispute within ten working days
from the service of the notice of adjudication by the claimant; or
(b) by the Director of the KLRCA – 5
(i) upon the request of either party in dispute if there is no
agreement of the parties under paragraph (a); or
(ii) upon the request of the parties in dispute.”.
10
29. The sequence of section 21 of CIPAA provides firstly for the
agreement of parties within 10 working days from the service of notice of
adjudication by the claimant and if there is no agreement, by KLRCA upon
the request of either party. According to ICD, clause 34.2 of PAM Contract
2006 is the agreement of parties within the meaning of section 21 of 15
CIPAA. However that cannot be so as section 21(a) requires the
agreement to be within 10 working days from the service of notice of
adjudication of which there was none. It cannot be presumed that clause
34.2 of PAM Contract 2006 is the agreement of parties. At best clause
34.2 is a contractual adjudication as opposed to section 21(b) which is a 20
statutory provision such that section 21(b) prevails. The appointment of the
adjudicator by KLRCAA Director pursuant to section 21(b) was therefore
valid.
(b) Premature commencement 25
30. In paragraph 40(4) of ICD’s affidavit in support it was stated that the
adjudicator had exceeded her jurisdiction and/or committed a jurisdictional
error when she adjudicated on a claim which commenced before the date
of accrual of the cause of action. This was because the adjudicator found
12
on the facts the due date for payment was 6-12-2016 and the Payment
Claim was made and served on ICD on 29-11-2016.
31. The case of Doo Ree Engineering & Trading Pte Ltd v Taisei Corp
[2009] SGHC 218 was referred to. There a payment claim was submitted 5
by Doo Ree on 29-11-2008 and on 19-12-2008 before a payment response
was submitted by Taisei, the November 2011 claim was submitted for
adjudication. A preliminary issue whether the application for adjudication
was prematurely lodged was decided by the adjudicator to be so.
Lembaga Kumpulan Wang Simpanan Pekerja v Ong Lian Chee [2010] 10
5 CLJ 23 was also referred to by ICD. It was decided the cause of action
would only accrue when the EPF Board refused to grant the authority for
the withdrawal of an addition amount and not the death of the member. At
page 31 it was then said –
“In other words, the death per se could not have given rise to a cause of 15
action in favour of the dependant at that stage. As at 12 October 1998, it
was premature for the dependent to commence the originating summons
against the EPF Board. At best, it was an incomplete cause of action, and
the filling of an originating summons based on a premature cause of
action is bound to be dismissed in limine…”. 20
32. Lembaga KWSP (supra) can be distinguished where this instant
case has to be looked at in the context of adjudication within CIPAA. In this
regard the case of Terminal Perintis Sdn Bhd v Tan Ngee Hong 25
Construction Sdn Bhd and another case [2017] MLJU 242 is more
relevant where at page 11 it was stated as follows –
“[59] No doubt the expression of a “cause of action: is used in section
5(2)(b) CIPAA but that is nothing more than saying that the Claimant must
set out the basis of their claim in contract.”. 30
13
33. Construction Adjudication in Malaysia by Ivan Loo and Lam Wai
Loon at page 74 was next referred to as follows –
“the amount claimed and due date for payment of the amount claimed”
“4.26 The unpaid party is required to state in his payment claim the 5
amount claimed and the due date for payment of the amount claimed.
These requirements necessarily imply that every construction contract
should provide an adequate mechanism for determining what, when and
how payments are due under the construction contract. In the absence of
such terms, or if the contract does not provide an adequate mechanism for 10
determining what, when and how payments are due under the
construction contract, the default provisions on the terms of payment
provided by section 36(1) of the CIPAA Act 2012 would be imported into
the construction contract.
15
4.27 The unpaid party is only required to state in the payment claim the
amount claimed to be due. It does not matter whether the amount claimed
may not in law be due. The right of an unpaid party to serve a valid
payment claim is predicated on an amount being claimed, and not on
there being an actual entitlement to the amount so claimed.”. 20
34. Viewed in the light of Terminal Perintis (supra) the issue of the
cause of action being premature and/or having not accrued is immaterial
and does not affect the validity of the payment claim. 25
(c) Parties had contractually elected for arbitration
35. It was submitted by ICD that there was an excess of jurisdiction
where parties by contract as per clause 25.6(c) provided any dispute on 30
imposition of liquidated and ascertained damages (LAD) shall be referred
to arbitration. In this regard section 37(1) and (2) of CIPAA is relevant. It
provides as follows –
14
“’37.(1) A dispute in respect of payment under a construction contract may
be referred concurrently to adjudication, arbitration or the court.
(2) Subject to subsection (3), reference to arbitration or the court in
respect of a dispute which is being adjudicated shall not bring the 5
adjudication proceedings to an end nor affect the adjudication
proceedings.”.
The net effect of section 37 is that there can be concurrent reference to 10
adjudication and arbitration and any reference to arbitration shall not bring
the adjudication proceedings to an end nor affect the adjudication
proceedings. There was thus no excess of jurisdiction.
(d) “Pay First Argue Later” 15
36. It was next submitted by ICD the adjudicator held there was a “CIPAA
principle of Pay First Argue Later” which swayed her decision or
interpretation of the contract terms. The short answer to this is that as
pointed out by PWC counsel this principle has been used extensively in
foreign jurisdictions and has also been recognized here too. In Esstar 20
Vision Sdn Bhd v ACFM Engineering & Contruction Sdn Bhd [2015] 1
LNS 756 it was stated –
“…CIPAA is intended to provide an intervening provisional decision or “a
temporary balance… in appropriate circumstances…in favour of those
who claim payment, at the temporary expense of those who pay”. These 25
adjudication decisions, ‘being quick and dirty’, also “provide a quick
enforceable interim decision under the rubric of ‘pay now, argue later’”, are
necessary so as to give “life” back to the enterprise or underlying contract
which had reached an impasse or stalemate. It is in the very nature of the
scheme or mechanism that the substantive issues relating to the payment 30
can still be argued at a later point; or taken concurrently at separate
proceedings initiated in Court or at arbitration.”.
15
ii. Denial of natural justice
37. It is trite law that the rule against bias and the right to be heard is
encompassed in the principle of natural justice. The right to be heard
includes the right to know the case against a person and the right of fair
opportunity to correct or contradict any point or contention against such 5
person.
38. In Cantillion Ltd v Urvaso Ltd [2008] EWHC 282 the court stated at
page 20 –
“[57] From this and other cases, I conclude as follows in relation to 10
breaches of natural justice in adjudication cases; (a) It must be
established that the Adjudicator failed to apply the rules of justice; (b) Any
breach of the rules must be more than peripheral; they must be material
breaches; (c) Breaches of the rules will be material in cases where the
adjudicator has failed to bring to the attention of the parties a point or 15
issue which they ought to be given the opportunity to comment upon if it is
one which is either decisive or of considerable potential importance to the
outcome of the resolution of the dispute and is not peripheral or irrelevant;
(d) Whether the issue is decisive or of considerable potential importance
or it peripheral or irrelevant obviously involves a question of degree which 20
must be assessed by any judge in a case such as this…”.
39. The first denial of natural justice complained of was the manner in
which the adjudicator handled the issue on the date of accrual of cause of 25
action. Here it was stated that when a post submission query was raised
by the adjudicator ICD had asked to respond or submit further but the
adjudicator directed it was not necessary unless there was a need. It was
the Court’s finding this was well within the powers of the adjudicator as per
section 25(i) and (j) of CIPAA where the adjudicator shall have the powers 30
16
to inquisitorially take the decision to ascertain the facts and issue any
direction as may be necessary or expedient.
40. On the 2nd denial of natural justice in the adjudicator not considering
ICD’s defence of set off relating to LAD, this is not a denial of natural justice 5
as section 27(1) of CIPAA provides that the adjudicator’s jurisdiction in
relation to any dispute is limited to the matter referred to adjudication by the
parties pursuant to section 5 and 6.
41. The denial of natural justice in the application of the principle “Pay 10
First Argue Later” had been dealt with under excess of jurisdiction.
42. It was also contended there was denial of natural justice in the award
of costs on solicitor and client basis where there was no opportunity for ICD
to rebut or address the adjudicator. As stated in BM City Realty 15
Construction Sdn Bhd v Merger Insight (M) Sdn Bhd [2016] 1 LNS 1096
an adjudicator has the jurisdiction to determine the quantum of costs on
such basis as he thinks fit and is something within the discretion of the
adjudicator unless it can be shown that he has acted on wrong principles.
Therefore there is no ground for this Court to interfere where costs is within 20
the discretion of the adjudicator and there has been no evidence of the
adjudicator acting on wrong principles.
iii. Court’s finding on setting aside application
43. In the premises there had been no excess of jurisdiction or denial of 25
justice and the setting aside application was dismissed.
17
C. Stay application
44. Section 16(1) of CIPAA provides as follows –
“16. (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 5
section 15 has been made; or
(b) the subject matter of the adjudication decision is pending final
determination by arbitration or the court.”.
10
45. It is clear that both section 16(1)(a) and (b) of CIPAA are the
preconditions for a stay and that the use of the word “or” indicates it is
sufficient if either precondition is met. PWC has acknowledged the
precondition in section 16(1)(b) as been met as ICD has referred the
dispute to arbitration. 15
46. In Subang Skypark Sdn Bhd v Arcradius Sdn Bhd [2015] 11 MLJ
818 it was stated at page 830 –
“[27] Since the defendant has itself issued a notice of arbitration in which it
has raised the very same matters that it had raised in the adjudication, 20
sub-s. 16(12) operates. That is not to say that simply because the dispute
or subject matter of the adjudication decision is now in the arbitration
mode regime, the grant of stay is automatic. It is not, let alone as of right
or as a matter of course. Being in arbitration merely puts the plaintiff’s
case as one within s.16 for consideration; or one which has crossed the 25
threshold. The existence of concurrent proceedings merely prequalifies
the plaintiff for this application.”.
47. Further at page 831 the Court went on to state – 30
“[32] It is my further view that stay should only be granted in exceptional
circumstances; and such circumstances must necessarily refer to the
financial status of the other party. The merits of the case before the
arbitration or the court; or even the chances of success in setting aside the
18
adjudication decision are not relevant considerations. The grant of any
stay must always weigh in the primary object of CIPAA 2012; that it is to
ensure a speedy resolution of a payment dispute; that it is to inject much
needed cash flow into the contractual arrangements between parties that
saw progressive payments of claims as the recognized and accepted way 5
of doing business in construction contract. It would be futile to encourage
parties to adjudication and then deprive a successful claimant of its claim
by staying the access to the cash simply because there is another
proceeding of the nature described in sub-s. 16(1) which is pending. The
whole concept of temporary finality would be lost and the object of the Act 10
defeated if such was the consideration.”.
48. Arising from Subang Skypark (supra) a stay should only be granted
in exceptional circumstances which must relate to the financial status of the 15
other party. It was the Court’s considered view the grounds raised by ICD
such as preserving cash flow of ICD so that the project can be completed
and LAD paid to innocent purchasers and unjust for PWC as the default
party to be paid the adjudicated amount and for it to cash out summarily
were not exceptional circumstances warranting a stay. On PWC not being 20
able to repay the adjudicated amount if the arbitration’s decision is in ICD’s
favour, PWC has shown this to be not the case with reference to exhibits
“SCK-1” and ”SCK-2”.
25
49. Accordingly the stay application was dismissed.
D. Enforcement application
50. Section 28(1) of CIPAA provides as follows –
“28. (1) A party may enforce an adjudication decision by applying to the 30
High Court for an order to enforce the adjudication decision as if it is a
judgment or order of the High Court.”.
19
51. In WY Steel Construction Pte Ltd v Osko Pte Ltd [2013] SGCA 32
it was stated in paragraph 56 at page 12/16 –
“Ordinarily, if an application to set aside an adjudication determination is
refused, the adjudication determination will be enforced…”.
5
Here as the setting aside application was dismissed, it follows the
enforcement application was allowed.
Conclusion
52. For the above reasons, the setting aside application and stay 10
application were dismissed and the enforcement application allowed.
Dated : 26 December 2017
15
See Mee Chun Hakim Mahkamah Pembinaan Shah Alam 20
Solicitors for Plaintiff in OS 31 and Defendant in OS 32
Mr CK Oon and Mr Daniel Lau 25
Tetuan CK Oon & Co, Petaling Jaya
Solicitors for Defendant in OS 31 and Plaintiff in OS 32
Mr GH Tee and Ms Siew Kai Lee
Tetuan GH Tee & Co, Petaling Jaya 30