Tag Archives: Tasha Lim

Adjudicator is Bias for Unreasonable Deadlines & Failure to Account for MCO Restrictions

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.

CIPAA: clash of stay applications and enforcement orders

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].

CIPAA: Only Qualified Advocates for Adjudications in East Malaysia?

It is a well-known fact in Malaysia that the governing law of legal profession for Peninsular and East Malaysia differ from one another. Should one wish to commence a court action in the East Malaysia, an advocate qualified under the Sabah or Sarawak Advocates Ordinance would have to be appointed. However, what about adjudication proceedings under the Construction Industry Payment and Adjudication Act 2012 (“CIPAA”) which allows parties to “be represented by any representative appointed by the party”. The High Court case of Tekun Cemerlang Sdn Bhd v Vinci Construction Grands Projets Sdn Bhd had recently shed light on this matter.

Wishing our Muslim friends a blessed and prosperous Eid al-Fitr! Selamat Hari Raya, Maaf Zahir dan Batin