Ingenieur Vol.72 ingenieur October 2017-FA3 | Page 78
INGENIEUR
certificate has been issued” and to “review and
revise any certificate issued or to be issued”
respectively simply means that even if the
contractual agreement between the parties
provides for issuance of a certified interim or
progress claim, the absence of certification
cannot deprive the unpaid party from availing the
adjudication process. unilateral communication of the adjudicator was
found to be a material breach of natural justice.
It is important that any communication must be
made known to the parties to the adjudication so
as to allow the parties a chance to respond. The
adjudicator’s duty to make known to the parties
his communication to the other party is perhaps
to ensure impartiality of the adjudicator by giving
parties a fair opportunity to present their cases.
SETTING ASIDE OF ADJUDICATION
DECISION The refusal to conduct oral hearing however does
not necessarily amount to a breach of natural
justice. It was held in Martego that an adjudicator
is entitled to decide on the mode of hearing even if
this is by way of documents and submissions only
without the need to call witness.
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;
(c) T he adju di c ato r h a s no t ac te d
independently or impartially; or
(d) The adjudicator has acted in excess of his
jurisdiction.
The adjudication decision in Bina Puri was
challenged on grounds of breach of natural justice
and excess of jurisdiction. The Court held that
the criticism of the adjudication decision by the
applicant must “clearly point to a breach of natural
justice or a jurisdictional error in the adjudication
process.”
In ACFM Engineering & Construction Sdn
Bhd v Esstar Vision Sdn Bhd & Another Case
[2015] 1 LNS 756, the Court found support and
assistance in the principles set out in Balfour
Beatty Engineering Services (HY) Ltd v Shepherd
Construction Ltd [2009] EWHC 2218. Essentially,
not any breach will allow for a setting aside of the
adjudication decision. The breach must be “either
decisive or of considerable potential importance
to the outcome and not peripheral or irrelevant”;
it must be a material breach which significantly
affects the decision.
In WRP Asia Pacific Sdn Bhd v NS Bluescope
Lysaght Malaysia Sdn Bhd [2016] 1 AMR 379, the
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STAY OF ADJUDICATION DECISION
The principles for an application for the stay of
an adjudication decision were considered in
detail in Subang Skypark Sdn Bhd v Arcradius
Sdn Bhd [2015] 11 MLJ 818 (“Subang Skypark”).
After considering a number of cases from other
jurisdictions, it was held that the test for a stay
to be granted under section 16 of CIPAA is
whether there are “exceptional circumstances”
and such circumstances must necessarily refer to
the financial status of the other party. Cogent or
credible evidence must be presented to show the
probable inability of repayment of the adjudicated
sum that may follow from concurrent court or
arbitration proceedings. According to the learned
Judge, 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 in Subang Skypark emphasised that the
grant of any stay must also be weighed against
the primary object of CIPAA, which is to ensure
speedy resolution of payment disputes and to
inject much needed cashflow into the contractual
arrangements between the parties. At all times,
the Court retains the discretion as to whether or
not to grant a stay.