SERVING OF NOTICE AND DOCUMENTS IN CIPAA ADJUDICATION – WHERE IS THE NORM NOW?

​SERVING OF NOTICE AND DOCUMENTS IN CIPAA ADJUDICATION – WHERE IS THE NORM NOW?

UPDATE: On 4 Apr 2022, the AIAC has issued circular 11, prescribing manner of serving notices, adopted for CIPAA 2012. Apparently, s.38(a)-(d),CIPAA 2012, wasn’t that definitive when comes to the recent findings of the courts as in Skyworld Development Sdn Bhd v Zalam Corp Sdn Bhd[1], where delivery of AR-Registered is presumably delivered unless rebutted. Here, the definition of ‘delivery at its ordinary course’ does not imply the ‘date of posting’. Such, sender has to provide ‘sufficient period of time’ for delivery, as in regard to s.38(c), CIPAA 2012: Service by Registered Post. Applying such to serving of Payment Claim, Notice of Adjudication and other Notices including the Decision, the ‘actual receipt’ of such notices is indicated. It is manifested that the AIAC attempted to provide clarity, but it dropped short of specifying what does it mean by ‘sufficient period of time’? Compounded by the absent of clarity as to what it meant by ‘indicate’ and ‘acceptance’ in the Interpretations Act 1948, the burden now, rests squarely on the shoulders of the Adjudicator.    

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[1] [2019] MLJU 162

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Assuming that Claimant had filed a Request to Appoint an Adjudicator and the Adjudicator had proposed his terms of appointment, with only the acceptance by the Claimant agreeing that communication is via email. Respondent has not responded at all. The Adjudicator then emailed and couriered his Notice of Acceptance via Form-6 on the last working day i.e. day-10. The parties would not have possibly receive the physical Form-6 by then.
 
The questions were whether failure of the parties receiving the physical Form 6 within the 10 working days constitute a breach of s.23(2) CIPAA? If so, what constitute the manner of serving of notices?
 
The law holds:
 
S.23(2) CIPAA states, “The adjudicator shall propose and negotiate his terms […] within ten working days from the date he was notified of his appointment, […]”
 
S.38 CIPAA states, “Service of a notice or any other document under this Act shall be […] a) By delivering the notice or document personally […] b) By leaving the notice or document […] during the normal business hours of that party; c) By sending the notice or document […] by registered post; or d) By any other means as agreed in writing […]”
 
The evidence shows:
 
One, there is no mutual acceptance by the parties of the Adjudicator’s terms and communication via email. Thus, method of serving notice or document as prescribed under S.38 CIPAA prevailed.
 
Two, parties would not have possibly received the physical Form 6 within then. So, whether such failure to receive the physical Form 6 constitute a breach of s.23(2) CIPAA? To answer this, can courier services be construed as hand delivery? If so, what constitute hand delivery? Ordinary meaning of courier, is a person or company that takes messages, letters or parcels from one person or place to another.[1]  Whereas, hand delivery is to take something to someone yourself or send it by courier.[2] Therefore, a courier service can be construed as by hand. Thus some insisted that an affidavit be taken by the courier serviceman to affirm that the documents had been served. Implying such, it must be a recorded delivery.
 
Three, parties may have received the document past the ‘normal business hours’. This condition is not warranted with regard to s.38(a). We are not clear who would have been there to receive it past the ‘normal business hours’? S.38(b) holds that document is deemed served ‘by leaving it at the usual place of business’, ‘during normal business hours’. This provision is in contrasts to the HC decision that a ‘day’ as in a ‘working day’ covers 24-hours.[3] Thus, if the documents were couriered within the same working day, duly recorded by statutory affirmation or recorded delivery, it is deemed to have been delivered.
 
Concluding:

Whether failure of the parties to receive the physical Form 6 within the 10 working days period constitute a breach of s.23(2) CIPAA, the short answer is depends on the merits. It is in breach, if the courier is of an unrecorded delivery or with no statutory affirmation, delivered outside the last ‘working day’. It is not a breach if the conditions and merits would had unfold otherwise. What constitute the manner of serving of notices? It is as prescribed by S.38 CIPAA either by hand delivery; leaving at the office during ‘business hour’; or via registered post; or by any other means agreed.
 
Having considered that, assuming the Adjudicator sent the notice by registered post instead of courier, would the ‘postal rule’ applied? What is in the postal rule? The ‘postal rule’[4] and communication via email[5] are commonly applied in contractual transaction. In postal rule, communication deemed to have occurred once the letter has been posted (registered). However, email is not governed by this postal rule.[6] Malaysia has similarly adopted this postal rule via application of the s.4(2)(b) Contract Law 1950.[7] However, can this postal rule also applied in Adjudication?
 
Two contrasting approaches, with regards to ‘postal rule’. As applied observed in the serving of writ of summons via AR-Registered Post, on one hand, there is no provision of law that Plaintiff must prove that the named person had received the writ of summons and statement of claim, being sent by AR-Registered Post, unless rebutted by Defendant.[8] On the other, affidavit of service must prove ‘due service’ of writ of summons and that the lacuna of the Rules of Court 2012 (“ROC”)[9] must be interpreted in favour of the Defendant.[10] This unsettled law was revisited by the courts recently, contemplating whether the acknowledgement of AR-Registered Post receipt card is conclusive proof? The HC and Court of Appeal hold that it was conclusive prove. The FC disagree and went on to say, AR-Registered Post receipt card is not conclusive if the affidavit does not exhibit the receipt card  does not contain an endorsement of receipt by the Defendant or nominee.[11]
 
Adjudication mirrors the conduct of the court. Can the Adjudicator simply drop the notice off at the post office and call it a day? In reflection of Goh Teng Whoo case[12] the short answer is ‘No’. Service by way of AR-Registered Post does not conclusively mean that the recipient has received the same as the AR-Registered Post, continues to be interpreted as ‘service and time’ of service are ‘presumed’ and ‘until the contrary is proven’.[13] We have yet to see this judgement be applied to an Adjudication case.

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[1] Cambridge Dictionary <https://dictionary.cambridge.org/dictionary/english/courier> accessed 3 Nov 2021
[2] Cambridge Dictionary <https://dictionary.cambridge.org/dictionary/english/hand-deliver> accessed 3 Nov 2021
[3] Skyworld Development Sdn Bhd v. Zalam Corporation Sdn Bhd & Other Cases. [2019] 1 LNS 173
[4] Adams v Lindsell [1818] 1B&Ald.681
[5] S.7.Electronic Communications Act 2000; Neocleous v Rees[2019]EWHC2462(Ch)
[6] Thomas v BPE Solicitors [2010] EWHC306(Ch); Greenclose v National Westminster Bank [2014] EWHC1156(Ch)
[7] Ignatius v Bell (1913) 2 FMSLR 115
[8] Yap Ke Huat & Ors v Pembangunan Warisan Murni Sejahtera Sdn Bhd & Anor [2008] 4 CLJ 175
[9] Order 10 Rule 1(1) ROC
[10] Chung Wai Meng v Perbadanan Nasional Berhad [2017] 1 LNS 892
[11] Goh Teng Whoo & Anor v Ample Objectives Sdn Bhd (Civil Appeal No: 02(i)-35-04/2019(W)
[12] [2021] MLJU 300
[13] S.12 of the Interpretation Acts 1948 and 1967