ADJUDICATION WITH THE SPANNER IN THE GEARBOX
CIPAA Adjudication is no longer a dispensation of ‘rough-justice’ in a ‘fast-and-furious’ way. The true intention of CIPAA to expedite dispute-resolution as to enable contractor’s its life-source, which is payment, is off-tangent, into a ‘mini-trial’ or ‘mini-arbitration’, where counsels can actually test its evidence and arguments before going for a ‘final-resolution’, without giving ample ‘arsenals’ for the adjudicator to work on its own ‘competenze-competenze’; for a fee, far below of that of arbitration or the counsel’s own retainer, especially when ‘hearing’ is accorded.
CIPAA was once known to be of 88%-success rate for the Claimant, usually contractor, not until the first ‘spanner was thrown into the gearbox’, that Respondent has the right to raise defence at any point in time during the progress of CIPAA. Claimant has 5-days to put in its Reply, taking advantage of this, the tactical- maneuvering of an ambush with documents in the Response, during prolonged ‘holiday-seasons’, left very little time for Claimant to Reply. Does the matter stop at Reply? The answer is ‘no’… for most adjudicator may find that the entire Response is dedicated to a ‘single-objective’, to ‘remove’ the adjudicator for the lack of jurisdiction to preside over the adjudication. Thus, request for further submission i.e. rejoinder, sur-rejoinder, rebuttal and sur-rebuttal are requested. Will a rational adjudicator obliged to allow such, fearing ‘lack of natural justice’ disposition? Usually the adjudicator will give-in, eating into his 45-days to serve its Decision.
The story doesn’t ends there yet. There were attempt by counsel, usually Respondent, to seek for Hearing and Written-Submission. Such call was turned down by the HC, keeping faithfully to the spirit of CIPAA, which is dispensation of ‘rough-justice’ in a ‘fast-and-furious’ way. Having said that, some Respondent will put in ‘Expert-Report’ as evidence, some by the cartons of A4-boxes, mirrored such as in arbitration or litigation, holding faithfully to View-Esteem’s ruling, in Response, Rejoinder and maybe Rebuttal. Should the adjudicator allowed for hearing to review these ‘Expert-Report’ evidence? That is like walking tip-toe at the tight-rope, requiring a fine-balancing act, fearing a breach of natural-justice.
Alas, the Appeal-Court has then, opens a flood-gate, rendering breach of natural-justice if the adjudicator does not allow Hearing and Written-Submission, on the basis of insufficient time. The second spanner was thrown into the gearbox, swinging the pendulum to the Respondent, as with Hearing and Written-Submission, the chances voiding the entire CIPAA processes are very high. There is yet, procedural aspect of Hearing and Written-Submission in a conduct of adjudication available in the adjudicator’s tool-boxes, especially so when the notion of competenze-competenze is absent. The stroke of genius on tactical-maneuvering for a ‘weak-case’ is vested upon the conduct of Hearing and Written-Submission, to prolong the processes and along the way, to nail the adjudicator for prejudice.
Will the story ends here? Not likely. By this time, after serving the Claim, the adjudicator will more likely to call for a preliminary meeting, set the agenda for exchange of documents, fixing hearing dates and those procedural-rules that is common in arbitration, in place for adjudication which is a lacuna for a moment, for AIAC to pluck out the spanner from the gearbox. Wonder, is there additional adjudicator fee for hearing and such?
 View Esteem Sdn Bhd v Bina Puri Holdings Bhd  1 LNS 1378:
 MRCB Builders Sdn Bhd v. Wazam Ventures Sdn Bhd & Another Case  1 LNS 145
 GuangXi Dev & Cap Sdn Bhd vSycal Bhd  MLJU 1542
THE SETTLE OF THE ‘UNSETTLED-LAW’ IN CIPAA AS AT 2020
CIPAA apply prospectively with “conditional-payment” enforceable for contract prior 15th April 2014; not to be “contracted-out”; rarely granted “stay of adjudication” unless for specific “narrow-reasons” i.e. res-judicata or pre-qualify for stay requires commencement of arbitration/proceeding; zerorising Respondent’s claim; “non-certified” claims allowed; exempting government as disputing-party but exclude item not of “national-security”; consultancy-contract can be adjudicated including final-account; setting-aside under s.15 includes in-existence of an arbitration-award/judgement; allow new defences post payment-response; must accorded “hearing”, failing which “breach of natural-justice”; no-appeal on “ground of law”, even there is an “error of law”; exclude shipping and mining contract, but a platform-anchored into the land, is adjudicate-able; estoppel of party participated fully to raise any-objection on adjudicator’s-appointment; constitutionality of CIPAA upheld; rights to limit extension-of-time for submission, including adjudicating-EOT as “contingent jurisdiction”, and L&E; allowing claims of “pre-award” interest, only if such is claimed; non-mandatory for decision to be registered prior serving ‘winding-up’, but cautionary apply to company on “disputed-debts” owing to its “temporary-finality”; non-interference of court to “vary adjudication-decision”, awarding-costs nor “supplanting” adjudicator’s-order; and mandatory for principal to pay.
 Jack-In Pile (M) Sdn Bhd v Bauer (Malaysia) Sdn Bhd  1 CLJ 299
 Jack-In Pile 
 Ranhill E&C Sdn Bhd v Tioxide  1 LNS 1435
 Subang Skypark Sdn Bhd v Arcradius Sdn Bhd  11 MLJ 818
 Samsung C & T Corporation & Anor v Bauer (Malaysia) Sdn Bhd  MLJU 1690
 Foster Wheeler E & C (Malaysia) Sdn Bhd v Arkema Thiochemicals Sdn Bhd Anor  1 LNS 632; Punj Lloyd Sdn Bhd v Ramo Industries Sdn Bhd & Anor and another case  11 MLJ 574
 Tenaga Poly Sdn Bhd vs Crest Builder Sdn Bhd (unreported)
 Bina Puri Construction Sdn Bhd v Hing Nyit Enterprise Sdn Bhd  8 CLJ 728
 Mudajaya Corporation Bhd v Leighton Contractors (M) Sdn Bhd  5 CLJ 848
 ENRA Engineering and Fabrication Sdn Bhd v Gemula Sdn Bhd & Another Case  10 CLJ 333
 Martego Sdn Bhd v Arkitek Meor & Chew Sdn Bhd & Another Case [ 2017] 1 CLJ 101
 Martego [ 2017]
 Wong Huat Construction Co v Ireka Engineering & Construction  1 CLJ 536
 Prestij Mega Construction Sdn Bhd v Keller (M) Sdn Bhd & Other Cases  1 LNS 1612
 View Esteem Sdn Bhd v Bina Puri Holdings Bhd  8 AMR 167
 Guangxi Dev & Cap Sdn Bhd v Sycal Bhd & Anor Appeal  1 CLJ 592
 VVO Construction Sdn Bhd v Bina MYK Sdn Bhd Anor  2 AMR 502
 SKS Pavillion Sdn Bhd v Tasoon Injection Pile Sdn Bhd  MLJU 1051
 MIR Valve Sdn Bhd v TH Heavy Engineering Berhad & Other Cases  8 CLJ 208
 YTK Engineering Services Sdn Bhd v Towards Green Sdn Bhd  5. AMR 76
 E.A Technique v Malaysia Marine and Heavy Engineering  WA-24C-96-06/2019
 Zana Bina Sdn Bhd v Cosmic Master Development Sdn Bhd  MLJU 146
 Amerin Residence Sdn Bhd v Asian International Arbitration Centre ( 1 LNS 904; Mega Sasa Sdn Bhd v Kinta Bakti Sdn Bhd & Ors  MLJU 1043;  1 LNS 1366
 Binastra Ablebuild Sdn Bhd v JPS Holdings Sdn Bhd and another case  MLJU 1260
 SKS Pavillion Sdn Bhd v Tasoon Injection Pile Sdn Bhd  2 CLJ 704
 Syarikat Bina Darul Aman Bhd & Anor v Government of Malaysia  MLJU 2381
 Milsonland Development Sdn Bhd v Macro Resources Sdn Bhd  MLJU 169
 Naza Engineering & Construction v SSL Dev 
 Bina Puri Sdn Bhd v Likas Bay Precinct Sdn Bhd  MLJU 864
 Maju Holdings Sdn Bhd v Spring Energy Sdn Bhd  MLJU 1196
 ASM Development v Econpile  WA-24NCC-363-07/2019
 Naza Engineering & Construction v SSL Dev 
 TRT Engineering (M) Sdn Bhd v Hansol KNM Greentech Sdn. Bhd  1 LNS 8
 Multazam Development Sdn Bhd v Felda Global Ventures Plantations (M) Sdn Bhd  11 MLJU 606
 CT Indah Construction Sdn Bhd v BHL Gemilang Sdn Bhd  1 CLJ 75
Following the birth of a statutory adjudication scheme in the UK under the Housing Grants, Construction and Regeneration Act 1996[i] (the “1996 UK Act”), on 1 June 2015, many countries within the commonwealth had taken the similar bold steps to enact the similar Security of Payment Legislation SOPL within their own legislation. Fundamentally SOPL, as its name suggested, is a piece of legislation to ensure that payment to the contractors are secured as payment is a fundamental ‘life-line’ to any business of construction, without it the entire machinery of construction will collapse and such will create detrimental ripple effects to both the downstream and upstream of the economy. In a nutshell, the theory behind SOPL is to ‘pay first, argue later’ based on ‘rough justice’ with legally binding decision that has no ‘finality’ thus providing only temporal relief.
Prior to the eventful year of 2012, the Pertubuhan Arkitek Malaysia (PAM) has taken the initial steps to initiate a version of the SOPL for the Malaysian construction industry owing to the fact that via its collaborations with various stakeholders, especially with the Construction Industry Development Board (CIDB), various issues pertaining to non-payments to the contractors had been raised. A joint working committee has been deployed to draft the framework for this SOPL. As the matter at hand, was largely attributed to the issues faced by contractors, it was naturally befitting CIDB to take the lead[ii]. This effort has since, taken a setback when the Kuala Lumpur Regional Centre for Arbitration (KLRCA) as it was known then before it was rebranded as the Asian International Arbitration Centre (AIAC), has taken the ‘idea’ and forged ahead to be passed and enacted in the Parliament as the Construction Industry Payment and Adjudication Act 2012 (CIPAA 2012), enforced in 2014, adopting the New Zealand’s Security of Payment Legislation model (NZ Act)[iii] with modification to suit ‘document only’, ‘fast track’ and ‘chess time’ procedural. Unlike other commonwealth jurisdictions, the CIPAA 2012 has the term ‘Adjudication’ included as the only statutory means to dispense ‘rough justice’ in recouping any unpaid claims in the construction industry, virtually monopolize by the AIAC as the sole appointing body[iv].
In the beginning, any claims put forth by the claimant, in CIPAA, will stand an 80% chances of winning due to its ‘rough justice stance’ with no ‘finality’. ‘I will CIPAA you’, became the common phrase in town. The ‘fast and furious’ approach in dispensing rough justice via CIPAA has received various challenges in the Courts of law, notably with regards to the following issues: -
1) PROSPECTIVE OR RETROSPECTIVE?
Question, can CIPAA applies retrospectively or prospectively? Came 2015, as in UDA Holdings Bhd vs Bisraya Construction Sdn Bhd, CIPAA applies retrospectively[v] and take precedents over any contractual provisions that state otherwise nullified any substantive rights under the pre-existing contract agreements. However, this High Court’s decisions were later in 2018, overturned by the Court of Appeal as in the Bauer (Malaysia) Sdn Bhd vs Jack-In Pile (M) Sdn Bhd that held, the CIPAA applies prospectively and not retrospectively[vi]. What this judgment meant was, any applicable construction contracts that were entered into prior to 15th April 2014 would not be subjected to the operation of CIPAA. This matter has yet to be challenged in the Federal Court.
[Updated]: In 2019 the Federal Court, as per the ‘Jack-In Pile’ appeal, had ruled that CIPAA could only apply prospectively, i.e. it applies only to construction contracts executed after 15th April 2014, based on the following reasoning that unless expressly stated otherwise, the absence of an express provision, which can only be enacted by Parliament, CIPAA cannot operate to a construction contract entered into before such date. As a result the AIAC will no longer register payment disputes arising from construction contracts executed before 15th April 2014.
2) CONTRACTING OUT OF CIPAA?
Question, can parties contracting out (opt-out) of CIPAA based on the doctrine of ‘free-to contract’? In Ranhill E&C Sdn Bhd vs Tioxide (Malaysia) Sdn Bhd  and it was held that the terms of CIPAA as a legislation prohibits the parties from contracting out of its application, notwithstanding that there is no express-term within the Act. Any forms of contractual arrangement for dispute resolution would not exclude the application of CIPAA.
3) STAY OF ADJUDICATION DECISION?
Question, can parties apply for the stay of an adjudication decision? In Subang Skypark Sdn Bhd vs Arcradius Sdn Bhd , it was held that a party seeking to stay a CIPAA decision under section 16 must show credible evidence that the financial impecuniosity on the part of the other party, being the sole “exceptional circumstances” that the probable inability of repayment of the adjudicated sum that may follow from concurrent court or arbitration proceedings. The merits of the case before the arbitration or the court and the chances of success in setting aside the adjudication decision are not relevant considerations. The Court retains the discretion as to whether or not to grant a stay.
4) PRE-QUALIFICATION FOR STAY
Question, can parties pre-qualify for the stay of an adjudication decision? In Foster Wheeler E & C (Malaysia) Sdn Bhd vs Arkema Thiochemicals Sdn Bhd & Another Case , the Claimant sought to enforce the CIPAA decision while the Respondent wanted to apply for a stay but cannot fulfil the condition for a stay of an adjudication decision due to the elaborate multi-tiered dispute resolutions. It was held that the expression of ‘pending final determination by arbitration or the court’, which is a condition for a stay of an adjudication decision under section 16(1)(b) of CIPAA, requires the parties to have commenced arbitration or court proceedings. For such, arbitration cases in PAM has been increased by leaps and folds, to pre-qualify for the stay of an adjudication decision.
5) CONDITIONAL PAYMENT
Question, can a party imposed a payment condition to another party as a reason of non-payment? A very common pay when paid, pay if paid or any form of back to back payment, probably known as conditional payment clause that is found in most construction contract, notably with regard to clause 25.4(d) of the PAM 2006 Form. Section 35(1) of CIPAA prohibits conditional payment terms and provides that a conditional payment provision in a construction contract is void. In BM City Realty & Construction Sdn Bhd vs Merger Insight (M) Sdn Bhd , the plaintiff in its application to set aside an adjudication decision, argued that it was not bound to make any further payment to the defendant until a final account is determined as the contract had been determined. Relying on Econpile (M) Sdn Bhd v IRDK Ventures Sdn Bhd , it was held that Section 35(1) of CIPAA prohibits conditional payment terms and construed such to be void. However, the BM City appeal is presently pending in the Court of Appeal. The High Court decision in Jack-In Pile has recently been overturned in 2018 by the Court of Appeal which held that a conditional payment clause prior to the commencement of CIPAA remains valid and is not affected by section 35. It is believed that an application is being made to the Federal Court for leave to appeal against the Court of Appeal’s decision.
[Updated]: Having held by the Federal Court, as per the ‘Jack-In Pile’ appeal in 2019, CIPAA could only apply prospectively thus a ‘conditional payment clause’ could effectively be enforceable for any construction contract came before 15th April 2014.
6) ZERORISING A PARTY’S CLAIM
Question, can the adjudicator awards the winning party Liquidated Damages LD? In Tenaga Poly Sdn Bhd vs Crest Builder Sdn Bhd (unreported), it was held that LD is not a ‘payment claim’ within the meaning of sections 4 and 5 of CIPAA, therefore party cannot initiate adjudication proceedings under CIPAA to recover LD. Any successful defence based on LD by a non-paying party will ‘zero-rise’ an unpaid party’s claim and no payment is to be made to the non-paying party.
7) NON CERTIFIED CLAIM
Question, can a party claim for payment based on progress of work that is not certified? In Bina Puri Construction Sdn Bhd v Hing Nyit Enterprise Sdn Bhd , the applicant sought to set aside the adjudication decision based on the argument that the payment claim was premature as the interim claims by the respondent were not certified. It was held that the adjudicator’s jurisdiction under sections 25 of CIPAA entitled him to decide or declare on any matter notwithstanding no certificate has been issued and to review and revise any certificate issued or to be issued. In the absence of certification, the non-paying party cannot deprive the unpaid party from availing the adjudication process.
8) EXEMPTION ORDER
Question, whether the expression encompasses construction contracts entered by statutory bodies and government-linked companies or is it to be limited to contracts entered into by the ‘Government’? In Mudajaya Corporation Bhd v Leighton Contractors (M) Sdn Bhd , it was held that for it to fall within the meaning of a ‘Government construction contract’, it must be one where the government, be it the Federal or State, is a party to it.
9) CONSULTANCY CONTRACT
Question, can a consultancy contract be claimed under CIPAA? In Martego Sdn Bhd vs Arkitek Meor & Chew Sdn Bhd [ 2017], it was held that architect rendering architectural services may claim his outstanding fees under CIPAA, notwithstanding the provision in the Architect’s Act. CIPAA applies to consultancy contracts which provide purely consultancy services. This judgement was re-affirmed by the Federal Court on 1st August 2019.
10) INTERIM OR FINAL?
Question, can the adjudicator determine on Final Account Claims in view of the ‘rough justice’ nature of CIPAA without ‘finality’? In Martego Sdn Bhd vs Arkitek Meor & Chew Sdn Bhd [ 2017], it was held that CIPAA is applicable to disputes pertaining to interim claims and to disputes relating to final claims[vii]. The Federal Court, on 1st August 2019, referred to several Singapore Court decisions where the term of progress payment was wide enough to include the final payment. As long as there are payment claims relating to a construction contract, CIPAA would apply.
11) SETTING ASIDE
Question, under what grounds could the CIPAA decision be set aside? Section 15 of CIPAA provides limited grounds on which an adjudication decision may be set aside, namely:
(a) The adjudication decision was improperly procured through fraud or bribery;
(b) There has been a denial of natural justice[viii];
(c) The adjudicator has not acted independently or impartially; or
(d) The adjudicator has acted in excess of his jurisdiction[ix].
The effect of setting aside as in Wong Huat Construction Co v Ireka Engineering & Construction Sdn Bhd , it was held that the setting aside of an adjudication decision will restore all parties to their original positions and parties are free to adjudicate.
12) JURISDICTIONAL LIMIT
Adjudicator’s jurisdictions are limited to matters referred to in the payment claim and payment response, as prescribed in section 27(1) of CIPAA. However, the Court of Appeal in View Esteem Sdn Bhd vs Bina Puri Holdings Sdn Bhd  held that the adjudicator must now, also consider matters referred in an adjudication response even if such defences were not included in the payment response. In other words, respondent can raise new claims or defences post the payment response, allowing a possible ambush in view that the claimant has only 5 days to reply. Adjudicator who fails to consider the defences raised in the adjudication response could have acted in breach of natural justice and risked decision being set aside under section 15 of CIPAA.
13) DOCUMENT ONLY ADJUDICATION?
Question, can either party request for hearing? In Permintex JSK Resources Sdn Bhd vs Follitile (M) Sdn Bhd , respondent applied to set aside the adjudicator’s decision on ground that there had been a breach of natural justice as the adjudicator had failed to conduct a hearing. The court held that it is within the jurisdiction of the adjudicator to conduct a documents-only adjudication.
14) APPEAL ON ADJUDICATION DECISION ALLOWED?
Question, can party appeal on the adjudication decision on the ground of law? VVO Construction Sdn Bhd v Bina MYK Sdn Bhd , respondent appealed against the adjudication decision under Order 55A rule 1 of the Rules of Court 2012 and it was held that under CIPAA, there is no provision for appeal. If parties are allowed to appeal, it will contravene the purpose of CIPAA in disposing rough justice. In other word, you cannot adjudicate the same matter twice.
15) SHIPPING AND MINING CONTRACT
In MIR Valve Sdn Bhd v TH Heavy Engineering Berhad , it is held that ‘ship building’ contract is excluded from CIPAA within the meaning of “construction work”. The similar judgment is held for YTK Engineering Services Sdn Bhd v Towards Green Sdn Bhd , where a shipping contract or a mining contract does not fall within the meaning of “construction work” under section 4.
16) OBJECTION OF ADJUDICATOR APPOINTMENT
In Zana Bina Sdn Bhd v Cosmic Master Development Sdn Bhd , it was held that party who participated fully in an adjudication proceeding without raising any objection as to the validity of the adjudicator’s appointment during the proceeding was estopped from raising the objection subsequently in its setting aside application. However, in a recent case of 2019, Mega Sasa Sdn Bhd vs Kinta Bakti Sdn Bhd and Others , the plaintiff seek to set aside the adjudication decision on ground that the adjudicator’s appointment was not valid for the reason that the appointing director of the AIAC has no locus standi in view that his position as the Director of AIAC is not legitimate in accordance to the Asian African Legal Consultative Organisation AALCO Host Country Agreement. The court has yet to make a judgement on this.
[Updated]: The High Court held that CIPAA does not violate Article 8(1) Federal Constitution. It also rejected the challenge, that CIPAA is a ‘usurpation of the judicial power of the court’ in violation of Article 121 Federal Constitution, reason being CIPAA is a judicial function and not a replacement of the courts' judicial power. It further affirmed that the acting director had the power and duty to appoint the adjudicator, regardless if his position as the ‘director’ has yet to be finalized.
17) EXTENSION OF TIME FOR RESPONSE/REPLY
Question, whether there was a breach of natural justice when an adjudicator refused to allow the respondent’s application for extension of time to submit a payment response? In Binastra Ablebuild Sdn Bhd v JPS Holdings Sdn Bhd , it was held that it is not a breach of natural justice merely because an adjudicator, after hearing both sides, refused to allow the respondent’s application for extension of time. However, an adjudicator has the power under section 25(p) of CIPAA to extend any time limit.
18) CONSIDERING EXTENSION OF TIME (EOT) CLAIM BY ADJUDICATOR
Question, can the adjudicator jurisdiction extended to adjudicate extension of time EOT? Such matter arises when there is a jurisdictional challenge, as to what is the jurisdiction of the adjudicator under CIPAA?
19) LOSS AND EXPENSE CLAIMS (Read in Tandem with ZERORISING A PARTY’S CLAIM)
In Syarikat Bina Darul Aman Berhad & Anor vs Government of Malaysia , it was held that an adjudicator who decided that he had no jurisdiction to decide on loss and expense claims was in breach of natural justice as such claims came within the ambit of CIPAA as these claims were due to the delay in completion of works and therefore payable as part of the amount claimable for the additional costs incurred for work. Not all loss and expense claims are within the purview of CIPAA, ie. Claim for special damages.
The test is:
20) PRE-AWARD INTEREST
In Milsonland Development Sdn Bhd v Macro Resources Sdn Bhd , it was held that an adjudicator has the power to grant pre-award interest pursuant to section 25(o) of CIPAA.
[Updated]: In Naza Engineering & Construction v SSL Dev , the High Court held that the adjudicator has exceeded his jurisdiction under s.27(1) read with s.5(1)CIPAA by awarding the 4th Pre-Award Interest Sum, of which it was not claimed in the Adjudication Claim. Also read Court’s Power to vary the Adjudication Decision.
21) WINDING UP BEFORE REGISTERING ADJUDICATION DECISION
In Likas Bay Precinct Sdn Bhd v Bina Puri Sdn Bhd  , it was held by the Court of Appeal, that a successful claimant in adjudication need not have the adjudication decision registered before issuing a statutory notice of ‘winding up’ under section 465 of CA 2016[x].
[Updated]: In ASM Development v Econpile , the High Court granted an injunction restraining ‘winding up’ and held that the adjudication decision, which formed the basis of the ‘statutory demand’, had been disputed in an arbitration proceeding with cross-claims exceeding the amount in the adjudication decision on grounds that:
22) [UPADTED]: COURT’S POWER TO VARY THE ADJUDICATION DECISION
In Naza Engineering & Construction v SSL Dev , the High Court contemplated whether it has the jurisdiction to vary the adjudication decision to only allow enforcement of the ‘enforceable portion’ of the decision or to set aside the adjudication decision entirely. Justice Wong KK in his judgement relied on:
As to date, CIPAA has been plagued with crippling complexities with more and more cases brought up in court for a finality in judgement that appears to be inconsistent and unpredictable in many areas beyond the true intention of CIPAA that is in dispensing justice based on the notion of to ‘pay first, argue later’ dispensing ‘rough justice’ with legally binding decision that has no ‘finality’ thus providing only temporal relief. The initial pro-claimant outcomes had thus swing to the other side of being pro-respondent post 2017.
As more cases move up to the court, as in Leap Modulation Sdn Bhd v PCP Construction Sdn Bhd , the court has gone as far as to interject the manner and efficacy of CIPAA in dispensing ‘rough justice’ and to the nature of AIAC being a ‘foreign entity’ with very little or no ‘check and balance’ self-regulation, had a monopoly grip on the dispensation of justice in Malaysia, no matter how ‘rough’ it is[xi]. The AIAC has since taken the same matter to the Federal Court to have this portion of the judgement expunged[xii].
The fate of CIPAA, while having put ‘off tangent’ from its initial purposes with more and more inconsistent and unpredictable judgements from the court, was plagued by alleged corruptions resulted in the former Director of the AIAC being replaced, based on the detailed insider content of just a ‘poison-penned’ letter[xiii]. However, in a recent case of 2019, Mega Sasa Sdn Bhd vs Kinta Bakti Sdn Bhd and Others , the plaintiff seek to set aside the adjudication decision on ground that the adjudicator’s appointment was not valid for the reason that the appointing director of the AIAC has no locus standi in view that his position as the Director of AIAC is not legitimate in accordance to the Asian African Legal Consultative Organisation AALCO Host Country Agreement. The court has yet to make a judgement on this.
CIPAA in itself is a two-tier processes. Winning the first-tier as in obtaining a favorable adjudication decision is not going anywhere with regards to recouping your unpaid payment claim. Subsequent enforcement of the decision as in the second-tier, is where the challenges begin as in setting aside and stay by the court. That is going to complicate matters, while many in the legal fraternity has been advocating, forget CIPAA, let’s see you in court!
[i] Craig J Enderbury, “Changes to the Construction Act: Payment certainty…uncertain terms”, Chartered Institute of Building CIOB (UK), reference from https://www.ciob.org/sites/default/files/Hill%20Intl%20CIOB%20slides.pdf
[ii] A survey was conducted to coincide with the Construction Industry Development Board’s plan to incorporate the survey’s outcomes in the Cabinet Paper which includes the Construction Industry Payment and Adjudication Bill 2006 which is targeted for submission to the Ministry of Works of Malaysia in March 2006, see M.S. Mohd Danuri , M.E. Che Munaaim , H. Abdul Rahman , M.Hanid, “LATE AND NON-PAYMENT ISSUES IN THE MALAYSIAN CONSTRUCTION INDUSTRY – CONTRACTORS’ PERSPECTIVE”, Center for Project and Facilities Management, Faculty of the Built Environment, University of Malaya. Reference from https://www.irbnet.de/daten/iconda/CIB4392.pdf
[iii] Philip Davenport, “SECURITY OF PAYMENT IN NEWZEALAND” reference from http://www.austlii.edu.au/au/journals/AUConstrLawNlr/2002/79.pdf
[iv] The seed of discontent has been raise as to the nature of the AIAC as the sole appointing body for adjudication under CIPAA is well reflected in the judgment of Leap Modulation Sdn Bhd vs PCP Construction Sdn Bhd, see “AIAC: Judge Hamid Sultan diverged from case facts in judgment”, Malaysiakini reference from https://www.malaysiakini.com/news/465089
[v] In attempts to challenge the jurisdiction of the adjudicator appointed by KLRCA under CIPAA 2012, the respondents in at least two adjudications have taken issue with the retrospective application of CIPAA 2012 to construction contracts entered into before 15 April 2014. UDA Holdings Berhad v Bisraya Construction Sdn Bhd & MRCB Engineering Sdn Bhd (Originating Summons No: 24C-6-09/2014) (“UDA v Bisraya”) was heard together with Capital Avenue Development Sdn Bhd v Bauer (Malaysia) Sdn Bhd (Originating Summons No: 24C-5-09/2014) (“CAD v Bauer”). The applications were heard in the Construction Court of the Kuala Lumpur High Court and were decided by Mary Lim J on 31 October 2014. The grounds of judgment is reported as UDA Holdings Berhad v Bisraya Construction Sdn Bhd & MRCB Engineering Sdn Bhd & Another Case  1 LNS 1584., “Construction Adjudication: Prospective, Retrospective or Somewhere in-between?” reference from https://mahwengkwai.com/construction-adjudication-prospective-retrospective-or-somewhere-in-between/
[vi] Read “Bauer (Malaysia) Sdn Bhd v Jack-In Pile (M) Sdn Bhd – CIPAA 2012 applies prospectively not retrospectively”, reference from https://www.zicolaw.com/resources/alerts/bauer-malaysia-sdn-bhd-v-jack-in-pile-m-sdn-bhd-cipaa-2012-applies-prospectively-not-retrospectively/”
[vii] The Federal Court in its grounds of judgment dated 1 August 2019 in Martego Sdn Bhd v Arkitek Meor & Chew Sdn Bhd decided on important points of law on adjudication and final payments under a construction contract. https://themalaysianlawyer.com/2019/08/13/case-update-federal-court-decides-on-final-payments-adjudication/
[viii] See WRP Asia Pacific Sdn Bhd v NS Bluescope Lysaght Malaysia Sdn Bhd , the unilateral communication of the adjudicator was found to be a material breach of natural justice.
[ix] See Skyworld Development Sdn Bhd v Zalam Corporation Sdn Bhd, the Adjudicator had issued his Adjudication Decision one day out of time and this rendered the decision void.
[x] Reference from https://www.zainmegatmurad.com/2019/02/20/cipaa-adjudication-466-statutory-notice-winding-up/
[xi] Reference from http://judgments.my/ca/leap-modulation-sdn-bhd-v-pcp-construction-sdn-bhd-and-another-appeal/10309 and https://www.malaysiakini.com/news/465089
[xii] Read “AIAC: Judge Hamid Sultan diverged from case facts in judgment”, Malaysiakini, reference from https://www.malaysiakini.com/news/465089
[xiii] Read “AIAC director resigns over MACC investigation”, Edge Markets, reference from https://www.theedgemarkets.com/article/aiac-director-resigns-over-macc-investigation
Many professionals, especially from the legal fraternity, had written about this matter but more importantly, what is the sentiment of an architect with regards to this matter? As mentioned, it is call the ‘battle[i]’ of the standard forms of building contract[ii] and as to why it is indeed, a battle, has a long stories date back to the late sixties.
As a former colonized country of the colonial British Empire, we had adopted many of the common law jurisdictions and our construction law is built upon such as its core foundation. In UK, “under the sanction of the RIBA and in agreement with the Institute of Builders and the National Federation of Building Trades Employers of Great Britain and Northern Ireland”, in the 1903 the standard form of building contract was produced[iii]. In the late 60s, the Pertubuhan Arkitek Malaysia (PAM) came together with the Institution of Surveyor (ISM) formalized the first standard forms of building contract, called PAM-ISM Form 69 closely modeled on the UK Joint Contract Tribunal (JCT) Form 63 edition. It has its fair share of backlash from the industries due to its ‘farrago of obscurities’ legal draftsmanship[iv], tested in court and throughout the years for the next 30 years withstand the storms and set many precedents in the construction law of the country. It was so widely used in the private construction sectors[v], almost everyone knows this ‘devil’, practically inside out. As being an architect, administering this ‘devil’ has been our daily jobs and without fail, one must admit, this ‘devil’ has given the architect enormous power via its archaic ‘farrago of obscurities’ terminologies, one being the personal favorite, ‘to the satisfaction of the architect’. Honestly, nobody appreciate this phrase better than the architect and if you were to rephrase it, ‘how to satisfy the architect?’ such question opens a floodgate of legal entanglements that the current legal maxim such as ejusdem-generis could not well explained such!
While the government or the public sector adopted the Public Work Department (PWD) or commonly also known as the Jabatan Kerja Raya (JKR) 203A Form. Architects who has worked in the public sector projects would have known well the intricacies of this JKR 203A Form. The construction of this form was largely contributed from the RIBA form of Building Contract 1931 Edition. By the same token, the Institution of Engineers (IEM) standard forms of contract called the IEM Form are mainly used for engineering matters. In all purpose, most of the IEM standard forms modified from the International Federation of Consulting Engineers (FIDIC) contract[vi]. At this time, various forms were tailor suit for their purposes and failure to adopt or to advise the correct use of these standard forms will ultimately result in costly, if not ‘painful’ legal disputes.
Bombarded with the onslaughts of mounting pressures from the contractors, developers, the legal fraternities, end users and notably the government, PAM for the very first time, after 30 years, decided to make revision to its PAM 69 Form just to make it ‘relevant’ in view of its popularity among the industry players. In hope that the ‘devil’ becomes much of a lesser ‘evil’, the PAM council at that time, commissioned[vii] its own sole council member at his own personal capacity, to redraft the PAM Form. As a result, the PAM 98 Form was born. In substance, the PAM 98 Form was an improvement to the PAM 69 Form with less ‘farrago of obscurities’ in legal draftsmanship, however, it was view as a unilateral revision (drafted by one person) without participation from the stakeholders of the construction industries and to a larger degree, ‘pro-employers’[viii]. In forms, the first issuance of the PAM 98 Form was ‘technically challenged’ and a re-launch was made in 1998. The PAM 98 Form being a relatively new form, was yet to be tested in court, but like the saying goes, is better to be with ‘the devil you know than the devil you don’t know[ix]’, through time the industry took it stock load and barrel.
The Construction Industry Development Board (CIDB) took the opportunity to make its presence felt. Collaborated with the other stakeholders (for all-inclusive policy, it was a strange sight to notice that PAM was not represented in the drafting committee) in the industry and through their newly minted Procurement Policy Committee, they came out with their very own version of standard forms called CIDB 2000 Form[x]. Differ from PAM 98 Form, any of the allied professionals such as engineers or quantity surveyors could be the named contract administrator or commonly known as the Superintendent Officer (SO). The most peculiar point of this form is the risk allocation that has been shifted to the employer, meaning, it is ‘extremely pro-contractors’. CIDB 2000 Form, conceived as the ‘knight in shiny armors’ was rarely employed in the private sector. To many of the allied professionals, especially the architects, it has since faded into oblivion[xi].
The PAM 98 Form has since continued to be the ‘preferred choice’ among the industrial players. As approaching 2006, the PAM 98 Form has since been tested in court, deliberated at length and constructively criticized by the stakeholders of the construction industries. It has come to a point that PAM needs to re-look into the PAM form again, to make it ‘watertight’. Instead of a sole member’s commissioned work, a committee was set up to undertake the revision. The new PAM 2006 Form was born with a more ‘regimented’ approach where ‘time is of the essence’ is given to almost every specific performance, failing to comply may amount to a breach. Gone were the days of archaic ‘farrago of obscurities’, such as ‘to the satisfaction of the architect’. More documentation work and liabilities were placed onto the shoulders of the architect as contract administrator. Legal implication with regards to ‘conditions precedents’ and ‘specific performance’ were introduced, almost making the architect’s ‘freedom to administer’, almost non-existence. The so called ‘devil’ was beyond recognition, making contract administration a ‘full time and painful job’ fit for a ‘keyboard administrator’ architect. Very pitiful with regards to its remuneration against the quantum of liabilities vested upon it[xii]. Strangely, recognizing the fact that failure to adopt or to advise the correct use of these standard forms will ultimately result in costly, if not ‘painful’ legal disputes, the act of omission was now, transferred to someone else probably liked the ‘poor’ architect as there was an exclusion clause finely printed in the PAM 2006 Form that read, ‘all parties must rely upon their own skill and judgement … when using this document and PAM assumes no liability to any user … in connection with such use’[xiii], classic indeed.
Came 2012, the year of reckoning with the Construction Industry Payment and Adjudication Act 2012 (CIPAA), spearheaded by the Asian International Arbitration Centre (AIAC), the construction industries were thrown to its tipping point, welcomed by the contractors, sub-contractors and to a far degree, consultants too[xiv] and shunned by some employers notably developers, any claims put forth by the claimant, in CIPAA, will stand an 80% chances of winning due to its ‘rough justice stance’ with no ‘finality’. ‘I will CIPAA you[xv]’, became the common phrase in town. No doubt that the pendulum of wining, has since shifted to the respondents post the ‘View Esteem Case[xvi]’, adjudication decisions had been making rounds in the court of law without consistent and predictable outcomes. In the matter of the PAM 2006 Form, the ‘commercial agreement to any conditional payment’ has been made void as in the ‘Econpile Case[xvii]’. Now, the newly minted, PAM 2006 Form, with regard to its clause 25.4(d) on conditional payment upon determination, has been made completely unenforceable.
In 2018, the PAM Committee that has since went into overdrive while waiting for the Federal Court’s decision on ‘Econpile Case’ did not see any light at the end of the tunnel, proceeded to account for such a decision, came with a minor revision, with complicated rewording of its clause 25.4(d) and called it the PAM 2018 Form. The content of the PAM 2006 Form, no doubt, were intact and fortified with numeral annotation rearrangement, however, more documentation work and liabilities were placed onto the shoulders of the architect as contract administrator such as having the architect to certify such breach so to allow the employer to cash the performance bond as in clause 39.5 and having the architect spelt out what were the outstanding works while issuing its CNC, almost suggesting to the contractor that ‘they don’t even know what is their work, and has to be reminded by the architect’. As the architect, one feels it is liken to use a ‘sledgehammer to nail a nail’.
The story didn’t quite end here. In the same year 2018, the Asian International Arbitration Centre (AIAC) took the PAM 2006 Form, almost word by word and adopted the same as their AIAC 2018 Form of building contract. Needless to say ‘dispute’ arise on matter of copyright and subsequently a revise AIAC 2019 Form[xviii] of building contract with a total revamp has been introduced. In this AIAC 2019 Form anyone can be the contract administrator including anyone from the legal fraternity. Without prejudice, what would you think when anyone from the legal fraternity without technically trained, administer the contract? Often one may asked, how would anyone from the legal fraternity acquire his 7 years’ experience in the construction industry? Doing litigation works on behalf of the contractors or employers accounts for such including reading up construction case laws?
When someone[xix] pointed that in 2016, as published by the AIAC (there was no such breakdown analysis anymore), there were 363 CIPAA adjudicators and out of these, 177 were lawyers, 59 were Engineers while QS made up 51 and others accounted for 65. Architects, only 11! Does it means to say that architects were so incompetent to even pass the adjudication examination let alone competent enough to administer a construction contract? I overheard someone is telling that majority of the arbitration awards that were thrown out of court were written by ‘non-legal trained’ arbitrators. Frankly, as an architect, one cannot, not ask, as to these 177 lawyers seating as CIPAA adjudicators, where do they obtain their 7 years’ experiences in the construction industries as a fundamental prerequisite to be a CIPAA adjudicator? As an architect, one may view that having the AIAC 2019 Form, it is an avenue for the legal fraternity to acquire their 7 years’ experience in the construction industries as a fundamental prerequisite to be a CIPAA adjudicator. Not long thereafter, there could also be many from the legal fraternity, claiming to be expert in architecture, construction, engineering and so forth.
In 2017, other forms of contract such as the New Engineering Contract (NEC-4)[xx] were also making its round in the market, just a ‘keyboard button’ away that may set you back RM4,000.00[xxi] poorer. In essence NEC-4 fundamental principles of risk and costs collaborations[xxii] between the contractor and the employer was only popular in HongKong Government’s Public Funded Projects.
While penning this personal reflection of an architect’s sentiment on the forms of the building contract (now, they fashionably called it suite) the construction industries are in disarray with regards to the less predictability of the Court’s decision on CIPAA, damages such as LD and the multitudes of pitfalls contractors and employers come to face maneuvering the intricate nexus of the conditions of contract that may not necessarily reflects the parties true intentions. Contract administrators such as the architects now having to perform multiple roles that they themselves were not familiar with including the ‘devil’s advocate’ just to make sure that the building is built according to his design and intention. Why so difficult?
[i] ‘Battles of the Forms’ is a legal term for the common situation in which one business firm makes an offer in the form of a pre-printed form contract and the offeree responds with its own form contract, see www.fenwickelliott.com/research-insight/annual-review/2011/battle-forms. At common law, any discrepancy between the forms would prevent the offeree's response from operating as an acceptance. However, for the purpose of this article, it takes the literal meaning of the standard forms of building contract one ‘outdoing’ one another to garner a larger acceptance in the building industry.
[ii] Standard Form Contracts are agreements that employ standardised, non-negotiated provisions, usually in pre-printed forms; retrieved from www.designingbuildings.co.uk/wiki/Standard_form_of_contract
[iii] History of the JCT, retrieve from www.corporate.jctltd.co.uk/about-us/our-history
[iv] Powell-Smith, Vincent, “The Malaysian standard form of building contract (PAM/ ISM 69)”, Malayan Law Journal, (1990).
[v] It is estimated that 90 per cent of the building contracts in the private sector are based on the PAM form (Sundra, 2010), Zarabizan bin Zakaria, Syuhaida binti Ismail and Aminah binti Md Yusof ; “An Overview of Comparison between Construction Contracts in Malaysia: The Roles and Responsibilities of Contract Administrator in Achieving Final Account Closing Success”, Proceedings of the 2013 International Conference on Education and Educational Technologies (2013), retrieved from http://www.inase.org/library/2013/rhodes/bypaper/EET/EET-02.pdf
[vi] Oon CheeKeng, “Standard Construction Contracts in Malaysia Issues and Challenges”, retrieve from www.academia.edu/5722671/STANDARD_CONSTRUCTION_CONTRACTS_IN_MALAYSIA_Issues_and_Challenges_CK_OON_and_CO._Advocates_and_Solicitors_STANDARD_CONSTRUCTION_CONTRACTS_IN_MALAYSIA_Issues_and_Challenges_BY
[vii] P Kasi reported that Sundra Rajoo has offered his services in his personal capacity to complete the task of revising the PAM Formof Contract from where the late KC Cheang had left off… Council accepted Sundra Rajoo’s offer to complete the revision … for a fee of RM 30,000.00; disclosed by Ezumi, PAM Council Minute of Meeting.
[viii] … aspiration to produce a fair and balanced form of contract that would satisfy the role and to respond positively to the feedback from the industries…extract from the Background, “PAM Contract Drafting Committee, Handbook for PAM Contract 2006”, Pertubuhan Arkitek Malaysia, KL (2010).
[ix] used to say that it is better to deal with a difficult person or situation one knows than with a new person or situation that could be worse, retrieved from www.merriam-webster.com/dictionary/better%20the%20devil%20you%20know%20than%20the%20devil%20you%20don't
[x] Ong SeeLian and team; “Guide on the CIDB Standard Form of Contract for Building Work”, CIDB (2000). Retrieved from cidb.gov.my/images/content/pdf/p2p/guide-on-cidb-standard-form-of-contract-for-building-work.pdf
[xi] Although it appears that CIDB’s intention is to make the use of their forms commonplace, the question as to whether these CIDB Standard Forms will ultimately replace the existing JKR Standard Forms for the moment at least begets no precise answer, Sundra Rajoo, “Standard Forms of Contract – The Malaysian Position”, IBA Tokyo (2014). Retrieved from www.aiac.world/news/82/IBA-Tokyo-:-Standard-Forms-of-Contract-–-The-Malaysian-Position-by-Datuk-Professor-Sundra-Rajoo
[xii] The fees do not commensurate with the work done, response taken from an interview between the Edgeprop and Zulhamlee (former PAM President), “Why Malaysian architecture doesn't have to suffer from the Gucci syndrome”, EdgeProperty Lifestyle Edition (2015), retrieved from www.edgeprop.my/content/why-malaysian-architecture-doesnt-have-suffer-gucci-syndrome
[xiii] Sundra Rajoo, WSW Davidson and Harban Singh, “The PAM 2006 Standard Form of Building Contract”, Lexis Nexis Malaysia Sdn Bhd (2010).
[xiv] Consultants can claim for unpaid fees via CIPAA with reference to the judgement in Martego Sdn Bhd v Arkitek Meor & Chew Sdn Bhd  MLJU 1827
[xv] Sounded liked ‘I will slap you’ in the Malay language – ‘sepak’ means slap.
[xvi] View Esteem Sdn Bhd v Bina Puri Holdings Berhad, read www.lh-ag.com/wp-content/uploads/2017/11/DR-e-Alert-LHAG-update-20171113.pdf
[xvii] Econpile (M) Sdn Bhd v IRDK Ventures Sdn Bhd and anor  7 MLJ 732, also read christopherleeong.com/media/3011/clo_201804_cipaa.pdf
[xviii] Read www.lexology.com/library/detail.aspx?g=98bd7c4b-8587-406b-8506-20ad2207a981
[xix] As pointed out by David Cheah in the Joint IEM MIArb RISM and PAM’s ADR course for Practitioners held in IEM on 1st Aug 2019.
[xx] See www.designingbuildings.co.uk/wiki/NEC4#Confidentiality
[xxi] Exchange rate to Ringgit Malaysia from Pound Stirling of 812.00 see https://www.neccontract.com/NEC4-Products/NEC4-Contracts/NEC4-June-2017-Edition-including-Alliance-Contract
[xxii] Read www.fenwickelliott.com/research-insight/newsletters/insight/75
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