Whilst an adjudicator has wide discretionary powers under the Construction Industry Payment and Adjudication Act 2012, can such discretionary power disregard or bypass the restrictions provided in the Prevention and Control of Infectious Diseases (Measures Within Infected Local Areas) Regulations 2020 [P.U. (A) 91/2020] more commonly known as the ‘Movement Control Order’?
The High Court upon scrutinising the adjudicator’s conduct in Itramas Technology Sdn Bhd v Savelite Engineering Sdn Bhd and other cases held that there was actual bias by the Adjudicator for amongst others, failing to give effect to the MCO.
Where a party has obtained an adjudication decision in its favour, that party may seek to bring a winding up petition premised on that adjudication decision. Darryl Goon J (as he then was) in ASM Development (KL) Sdn Bhd v Econpile (M) Sdn Bhd previously decided that an injunction may nevertheless be issued to restrain the presentation of such a petition. This has been discussed in an earlier article .
That article looked at two decisions of the High Court made subsequent to ASM, namely, Maju Holdings Sdn Bhd v Spring Energy Sdn Bhd and, RZH Setia Jaya Sdn Bhd v Sime Darby Energy Solutions Sdn Bhd. In the latter decision, the High Court adopted and agreed with the dictum of Darryl Goon J (as His Lordship then was) in ASM.
RZH Setia recently came up for appeal before the Court of Appeal, where the Court of Appeal considered the central question of whether the High Court had properly exercised its discretion in granting the Fortuna injunction sought by RZH Setia.
Once a successful party obtains an adjudication decision under the Construction Industry Payment and Adjudication Act (CIPAA) 2012, the next course of action is usually to enforce the adjudication decision pursuant to section 28 of the CIPAA (enforcement order). Meanwhile, the losing party will often attempt to set aside or stay the adjudication decision under sections 15 or 16 of the CIPAA.
However, what if an application to stay is made after an enforcement order is granted against the adjudication decision and the application to set aside the adjudication decision is dismissed? The court was faced with this scenario in the recent case of MKP Builders Sdn Bhd v PC Geotechnic Sdn Bhd [(2021) MLJU 1061].
The rule against hearsay evidence prevents the admission of evidence of information from a third party. The evidence from a third party will generally be regarded as hearsay evidence and thus inadmissible, unless the third party him/herself testifies on the said evidence. This rule has been applied to witnesses of fact and opinion.
However, to what extent should this rule be relaxed when experts seek to rely on hearsay evidence in their reports, and in what circumstances should such evidence be admissible? This was the question that arose, amongst many others, for the determination of the Singapore International Commercial Court (‘SICC’) in Kiri Industries Ltd v Senda International Capital Ltd and another.
Section 25 of the Construction Industry Payment and Adjudication Act (CIPAA) 2012 lists adjudicators’ extensive powers in adjudication proceedings, including the power to award financing costs and interest. The recent high court decision in First Commerce Sdn Bhd v Titan Vista Sdn Bhd and another case(1) examined the extent of an adjudicator’s powers to determine remedies and interest in unique circumstances where a payment clause was void and the default statutory implied payment provision in the CIPAA was pleaded.
“The Construction Industry Payment and Adjudication Act 2012 (CIPAA) has been legislated to facilitate cash flow in the construction industry.” – a sentiment readily resonated nationally amongst judges and legal practitioners in the construction industry alike, amongst others.
The recent Federal Court decision in Catajaya Sdn Bhd v Shoppoint Sdn Bhd has breathed new life into the interpretation of termination clauses in contracts. Indeed, it sounded a cautionary note to the business community at large when the Federal Court held that termination clauses must be interpreted strictly.