CLJ20198433maralib1 martego v meor
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433[2019] 8 CLJABCDEFGHIMartego Sdn Bhd v. Arkitek Meor &Chew Sdn Bhd & Another AppealMARTEGO SDN BHD v. ARKITEK MEOR & CHEW SDN BHD& ANOTHER APPEALFEDERAL COURT, PUTRAJAYAAHMAD MAAROP CJ (MALAYA)ZAINUN ALI FCJRAMLY ALI FCJBALIA YUSOF WAHI FCJMOHD ZAWAWI SALLEH FCJ[CIVIL APPEALS NO: 02(f)-2-01-2018(W)& 02(f)-3-01-2018(W)]1 AUGUST 2019CONSTRUCTION LAW:Adjudication – Appeal – Claim for professionalarchitectural fees – Termination of contract – Adjudicator awarded award afterconstruction contract had been terminated and termination accepted by parties –Whether adjudicator acted in excess of jurisdiction – Whether ConstructionIndustry Payment and Adjudication Act 2012 (‘CIPAA’) applied to claims in respectof architectural fees – Whether interim claim or final claim – Whether CIPAA onlyapplies to interim payments and not final claimsThe respondent was a firm of architects engaged by the appellant as theproject architect for a proposed development. Works had been performed bythe respondent when a dispute arose as to the amount of fees which therespondent was entitled to. The respondent took refuge under theConstruction Industry Payment and Adjudication Act 2012 (‘CIPAA’) torecover its fees. The claim made before the adjudicator was in the sum ofRM599,500 being the professional fees. The adjudicator awarded the sum ofRM258,550 being the balance amount of the total entitlement of RM631,228less the amount paid of RM372,678. Dissatisfied with the decision of theadjudicator, the appellant applied to the High Court to set aside the same,premised on s. 15 of the CIPAA on the grounds, inter alia, that theadjudicator (i) acted in excess of jurisdiction in delivering the adjudicationdecision; and (ii) failed to hold a hearing despite numerous requests from theappellant, occasioning a denial of natural justice. The respondent, on theother hand, applied to the High Court to enforce the adjudicator’s decision.The High Court dismissed the appellant’s application and allowed therespondent’s application. The appellant filed appeals to the Court of Appeal,against the High Court’s decisions but the appeals were dismissed and theCourt of Appeal, in a majority judgment, affirmed the decision of the HighCourt. Hence, the present appeal. The questions that arose for determinationwere (i) whether an adjudicator acts within his jurisdiction in deciding on amatter referred to him, under the CIPAA, when, at the time of service of thepayment claim, pursuant to s. 5(1) of the CIPAA, the construction contracthad been terminated and the termination was accepted by both parties andthe claim was for the determination of sums finally due to the unpaid party;(ii) whether the CIPAA applies to final payments when the mischief, which
434[2019] 8 CLJABCDEFGHICurrent Law Journalthe CIPAA intends to cure, based on its Explanatory Statement andPreamble, was the timely payment for work related to progress payments andnot final accounts; (iii) whether the rule laid down in Akitek Tenggara Sdn Bhdv. Mid Valley City Sdn Bhdthat disputes between an architect and his clientis to be resolved by the specific provision enacted for such purpose ie,whether r. 28 of the Fourth Schedule to the Architect Rules 1973 is still goodlaw; and (iv) if question (iii) was answered in the affirmative, whether theobject of the CIPAA, to ‘pay first and argue later’, applies to disputesbetween architects and clients.Held (dismissing appeal)Per Mohd Zawawi Salleh FCJ delivering the judgment of the court:(1)The construction contract had been lawfully terminated. Clause 6 of theconstruction contract (i) expressly contemplated payment being madeafter the contract had been terminated, as it set out the mechanism forthe parties to value works done up to the date of determination; and(ii) equated the rights and liabilities of the parties to the general law ofcontract situation where the parties’ past rights and obligations, prior tothe termination, were not affected by the termination and, therefore, theappellant was not relieved from its obligation to pay the respondent. Theright to payment, under cl. 6, survived the termination. The respondenthad carried out works prior to the termination and the past rights andobligations of the appellant were not discharged due to termination. Therespondent was entitled to the payment for works done as per theschedule stated in cl. 3 of the construction contract. (paras 15-18)(2)The majority and dissenting judgments of the Court of Appeal referredto the case of Gantley Pty Ltd v. Phoenix International Group(‘Gantley’).Gantleyhad no application to the case at hand as (i) the factual matrixin Gantleywas different from that in the present appeal. The claimGantleywas about the damages arising from a repudiation while theclaim by the respondent, in the present case, was for works done. Theissue of whether the termination was due to a repudiation was neverraised and decided in Gantley; the termination letter was not exhibited;and (ii) the court in Gantleydiscussed the validity of the progress claimmade pursuant to a final claim arising out of a termination. The progressclaim, issued pursuant to the old Victorian Act, did not cover the finalclaim disputes. This was not the case under the CIPAA. (paras 20 & 23)(3)As long as they were payment claims relating to a construction contract,defined in s. 4, the CIPAA would apply. There was no conceivable basisand/or logical reason that Parliament would have intended a differentapproach between interim and final payments. The interpretation,expounded by the majority of the Court of Appeal, was consistent withthe purpose and structure of the adjudication process outlined in theCIPAA. Based on the Preamble, Explanatory Notes to the Bill and thespeech of the Deputy Minister when tabling the CIPAA, it was clear that
435[2019] 8 CLJABCDEFGHIMartego Sdn Bhd v. Arkitek Meor &Chew Sdn Bhd & Another Appealthe primary objective of the CIPAA was to alleviate cash flow issues byproviding an effective and economical mechanism. The mischief, whichthe CIPAA intends to cure, is none other the cash flow in theconstruction industry through effective and economical mechanism; fordeciding otherwise would run counter to the Legislative purpose ofcreating an expedited adjudication process. There was no rhyme orreason to confine the applicability of the CIPAA to ‘interim claim’ only.The CIPAA does not mention the words ‘interim claim’ or ‘final claim’.‘Payment’ is defined, under s. 4 of the CIPAA, to mean a payment forwork done or service rendered under the express terms of a constructioncontract. The court could not re-write, re-cast or re-frame the legislationbecause it has not power to do so. (paras 34, 38, 39 & 55-57)(4)The appellant relied on s. 36 of the CIPAA in contending that theintention of Parliament in enacting the CIPAA was to adjudicate interimclaim only. Section 36 is a fall-back section when there is no agreedcontractual provision as to payment or when payment terms areinadequate or unworkable. Relying on s. 36 of the CIPAA alone, ininterpreting the intention of the CIPAA, would amount to a narrowinterpretation and had no legal basis. (paras 68 & 71)(5)There was nothing to stop the CIPAA from applying to the case at handand there was no need to see adjudication and arbitration to be mutuallyexclusive to each other. In any event, an adjudication award is only ofa ‘temporary finality’ in nature against the main contractors and owners.The CIPAA allows parties to take their grievances to the High Courtprior to the adjudication process, concurrent with the adjudicationapplication and, even after the adjudication process, notwithstanding theadjudication decision to determine the very construction dispute beforethe adjudicator. Reference to an arbitration tribunal is also available tothe parties and the factual findings of the adjudicator are not binding oneither the High Court or the arbitration tribunal. This was specificallyprovided for in s. 37 of the CIPAA. Further, s. 37 of the CIPAAprovides that an adjudication proceeding, arbitration and court litigationmay proceed concurrently and in parallel. It is also apparent that amandatory procedure under the CIPAA and the right to a statutoryadjudication should not be circumvented by any contract where partieshave agreed to arbitrate. (paras 76-81)(6)Questions (i) and (ii) were answered in the affirmative and since question(iii) was answered in the negative, there was no necessity to answerquestion (iv). The decisions of the High Court and the Court of Appealwere affirmed. (paras 79 & 80)Bahasa MalaysiaHeadnotes
436[2019] 8 CLJABCDEFGHICurrent Law JournalResponden sebuah firma arkitek yang dilantik oleh perayu sebagai arkitekprojek pembangunan yang dicadangkan. Kerja-kerja telah dijalankan olehresponden apabila timbul pertikaian tentang yuran yang responden berhakterima. Responden berlindung bawah Akta Pembayaran dan AdjudikasiIndustri Pembinaan 2012 (‘APAIP’) untuk memperoleh yurannya. Tuntutanyang dibuat di hadapan adjudikator berjumlah RM599,500, iaitu yuranprofesional. Adjudikator mengawardkan RM258,550, iaitu baki jumlahkeseluruhan yang layak sebanyak RM631,228, kurang daripada jumlah yangdibayar sebanyak RM372,679. Tidak berpuas hati dengan keputusanadjudikator, perayu memohon agar Mahkamah Tinggi mengetepikannya,bersandar pada s. 15 APAIP atas alasan, antara lain, adjudikator (i) bertindakmelampaui bidang kuasanya dalam menyampaikan keputusan adjudikasi; dan(ii) gagal mengadakan perbicaraan walaupun sudah berulang kali dimintaoleh perayu, menyebabkan penafian keadilan semula jadi. Responden,sebaliknya, memohon agar Mahkamah Tinggi menguatkuasakan keputusanadjudikator. Mahkamah Tinggi menolak permohonan perayu danmembenarkan permohonan responden. Perayu memfailkan rayuan-rayuan diMahkamah Rayuan, terhadap keputusan Mahkamah Tinggi, tetapi rayuan-rayuan ini ditolak dan Mahkamah Rayuan, dalam penghakiman majoriti,mengesahkan keputusan Mahkamah Tinggi. Maka timbul rayuan ini. Soalan-soalan yang timbul untuk diputuskan adalah (i) sama ada seorang adjudikatorbertindak dalam bidang kuasa beliau, dalam memutuskan tentang hal perkarayang dirujuk pada beliau, bawah APAIP, sedangkan, semasa tuntutanbayaran, bawah s. 5(1) APAIP, kontrak pembangunan telah ditamatkan danpenamatan diterima oleh kedua-dua pihak dan tuntutan adalah untukpenentuan jumlah akhir yang terhutang pada pihak yang tidak dibayar;(ii) sama ada APAIP terpakai pada bayaran-bayaran akhir apabila kejejasan,yang APAIP berniat meremedi, berdasarkan Huraian Rang Undang-undangdan Mukadimah, adalah bayaran tepat masa untuk kerja-kerja berkaitanbayaran berperingkat dan bukan akaun akhir; (iii) sama ada peraturan yangditetapkan dalam Akitek Tenggara Sdn Bhd v. Mid Valley City Sdn Bhd, bahawapertikaian-pertikaian seorang arkitek dan kliennya harus diselesaikan denganperuntukan khusus untuk tujuan demikian iaitu sama ada k. 21, JadualKeempat, Kaedah-kaedah Arkitek 1973 masih berkuat kuasa; dan (iv) jikasoalan (iii) dijawab secara afirmatif, sama ada objektif APAIP, iaitu ‘bayardahulu dan pertikai kemudian’, terpakai pada pertikaian-pertikaian antaraarkitek-arkitek dan klien-klien.Diputuskan (menolak rayuan)Oleh Mohd Zawawi Salleh HMP menyampaikan penghakiman
437[2019] 8 CLJABCDEFGHIMartego Sdn Bhd v. Arkitek Meor &Chew Sdn Bhd & Another Appealmahkamah:(1)Kontrak pembangunan ditamatkan secara sah. Klausa 6 kontrakpembangunan (i) secara nyata mempertimbangkan bayaran dibuatselepas kontrak telah ditamatkan kerana ini memperuntukkanmekanisme buat pihak-pihak menilai kerja-kerja yang disempurnakanhingga tarikh penentuan; dan (ii) menyamakan hak-hak dan tanggungan-tanggungan pihak-pihak dengan situasi undang-undang kontrak amapabila hak-hak dan kewajipan-kewajipan terdahulu pihak-pihak,sebelum penamatan, tidak terjejas dengan penamatan dan, susulan itu,perayu tidak terlepas daripada kewajipan membayar responden. Hakbayaran, bawah kl. 6, kekal selepas penamatan. Responden sudahmenjalankan kerja-kerja sebelum penamatan dan hak-hak dan kewajipan-kewajipan terdahulu perayu tidak terlepas akibat penamatan. Respondenberhak menerima bayaran untuk kerja-kerja yang disempurnakanberdasarkan jadual yang dinyatakan dalam kl. 3 kontrak pembangunan.(2)Penghakiman majoriti dan menentang Mahkamah Rayuan merujuk kesGantley Pty Ltd v. Phoenix International Group(‘Gantley’). Gantleytidakterpakai pada kes ini kerana (i) rentetan fakta dalam Gantleyberbezadengan fakta dalam rayuan ini. Tuntutan dalam Gantleyadalah tentangkerugian yang timbul susulan penolakan manakala tuntutan responden,dalam kes ini, adalah untuk kerja-kerja yang disempurnakan. Isu samaada penamatan adalah akibat penolakan tidak pernah dibangkitkan dandiputuskan dalam Gantley; surat penamatan tidak diekshibitkan; dan(ii) mahkamah dalam Gantleymembincangkan kesahan tuntutanberperingkat yang dibuat bawah tuntutan akhir yang timbul daripadapenamatan tersebut. Tuntutan berperingkat yang dibuat bawah VictorianAct yang lama tidak meliputi pertikaian tuntutan akhir. Ini bukankesnya bawah APAIP.(3)Selagi tuntutan bayaran berkaitan kontrak pembangunan, seperti yangditafsir dalam s. 4, APAIP akan terpakai. Tiada asas dan/atau alasanlogik yang boleh difikirkan bahawa Parlimen meniatkan pendekatanberbeza antara bayaran akhir dan sementara. Tafsiran yang dijelaskanoleh majoriti Mahkamah Rayuan selari dengan objektif dan strukturproses adjudikasi yang digariskan dalam APAIP. BerdasarkanMukadimah, Huraian Rang Undang-undang dan ucapan TimbalanMenteri ketika mengemukakan APAIP, jelas bahawa objektif utamaAPAIP adalah mengurangkan isu-isu aliran wang dengan memperuntukkanmekanisme yang berkesan dan jimat. Kejejasan ini, yang APAIP berniatmeremedi, tidak lain aliran tunai dalam industri perusahaan melaluimekanisme berkesan dan menjimatkan; memutuskan sebaliknyabertentangan dengan tujuan Badan Perundangan membentuk satu prosesadjudikasi yang mempercepatkan. Tiada alasan atau penjelasan logikuntuk membataskan pemakaian APAIP pada ‘tuntutan sementara’sahaja. APAIP tidak menyebut perkataan-perkataan ‘tuntutan
438[2019] 8 CLJABCDEFGHICurrent Law Journalsementara’ atau ‘tuntutan akhir’. ‘Bayaran’ ditakrifkan, bawah s. 4APAIP, sebagai bayaran untuk kerja yang dijalankan atau perkhidmatanyang diberi bawah terma-terma nyata kontrak pembangunan.Mahkamah tidak boleh menulis, menyusun atau merangka semulaperundangan kerana tidak berkuasa berbuat sedemikian.(4)Perayu bersandar pada s. 36 APAIP dalam menghujahkan niat Parlimenmenggubal APAIP ialah untuk mengadjudikasi tuntutan sementarasahaja. Seksyen 36 ialah seksyen yang menjadi pergantungan jika tiadaperuntukan kontraktual yang disetujui berkenaan bayaran atau terma-terma bayaran tidak cukup atau tidak boleh dikuatkuasakan. Sandaranpada s. 36 sahaja, dalam mentafsir niat APAIP, akan terjumlah sebagaitafsiran sempit dan tiada asas undang-undang.(5)Tiada apa-apa yang melarang keterpakaian APAIP dalam kes ini dantiada keperluan melihat adjudikasi dan timbang tara sebagai salingeksklusif terhadap satu sama lain. Dalam apa-apa jua keadaan, awardadjudikasi hanya bersifat ‘akhir sementara’ terhadap kontraktor-kontraktor dan pemilik-pemilik. APAIP membenarkan pihak-pihakmengutarakan kilanan mereka di Mahkamah Tinggi sebelum prosesadjudikasi, serentak dengan permohonan adjudikasi bahkan selepasproses adjudikasi, tanpa mengira keputusan adjudikasi, untukmenentukan pertikaian sebenar pembangunan di hadapan adjudikator.Rujukan pada tribunal timbang tara juga wujud buat pihak-pihak dandapatan fakta oleh adjudikator tidak mengikat sama ada MahkamahTinggi atau tribunal timbang tara. Ini khusus diperuntukkan dalam s. 37APAIP. Selanjutnya, s. 37 APAIP memperuntukkan satu prosidingadjudikasi, timbang tara dan litigasi mahkamah boleh berjalan serentakdan selari. Jelas juga bahawa tatacara wajib bawah APAIP dan hakmendapat adjudikasi statutori tidak sepatutnya dipintas oleh mana-manakontrak apabila pihak-pihak telah bersetuju untuk timbang tara.(6)Soalan (i) dan (ii) dijawab secara afirmatif dan, oleh kerana soalan (iii)dijawab secara negatif, tiada keperluan menjawab soalan (iv). KeputusanMahkamah Tinggi dan Mahkamah Rayuan disahkan.Case(s) referred to:Akitek Tenggara Sdn Bhd v. Mid Valley City Sdn Bhd [2007] 6 CLJ 93 FC (refd)All Malayan Estates Staff Union v. Rajasegaran & Ors [2006] 4 CLJ 195 FC (refd)Attorney-General v. Ting Choon Meng and Another Appeal [2017] 1 SLR 373 (refd)Berjaya Times Square Sdn Bhd v. M-Concept Sdn Bhd [2010] 1 CLJ 309 CA (refd)Gantley Pty Ltd v. Phoenix International Group [2010] VSC 106 (dist)Lee Wee Lick Terence (alias Li Weili Terence) v. Chua Say Eng (formerly trading as WengFatt Construction Engineering) and Another Appeal [2013] 1 SLR 401 (refd)Libra Building Construction Pte Ltd v. Emergent Engineering Pte Ltd [2016] 1 SLR 481(refd)Pentadbir Tanah Daerah Seberang Perai Tengah & Anor v. Bagan Serai Housing EstateSdn Bhd [2016] 8 CLJ 846 CA (refd)
439[2019] 8 CLJABCDEFGHIMartego Sdn Bhd v. Arkitek Meor &Chew Sdn Bhd & Another AppealPepper v. Hart [1993] AC 593 (refd)PWC Corporation Sdn Bhd v. Ireka Engineering & Construction Sdn Bhd & Other Case(No. 2) [2018] 1 LNS 163 HC (refd)Ramli Shahdan & Anor v. Motor Insurer’s Bureau of West Malaysia & Anor [2006] 1CLJ 224 CA (refd)Re Rizzo & Rizzo Shoes Ltd [1998] 1 SCR 27 (refd)Reserve Bank of India v. Peerless General Finance and Investment Co Ltd, 1987 SCR (2)1 (refd)Tiong Seng Contractors (PTE) Ltd v. Chuan Lim Construction Pte Ltd [2007] 4 SLR 364(refd)Tunku Yaacob Holdings Sdn Bhd v. Pentadbir Tanah Kedah & Ors [2015] 3 CLJ 1017FC (refd)Uda Holdings v. Bisraya Construction Sdn Bhd & Anor and Another Case [2015] 5 CLJ527 (refd)Legislation referred to:Construction Industry Payment and Adjudication Act 2012, ss. 4, 5(1), 15, 16, 36Contracts Act 1950, s. 63Interpretation Acts 1948 and 1967, s. 17AArchitects Rules 1973, Fourth ScheduleBuilding and Construction Industry Security of Payment Act 2002 [Vic], s. 9For the appellant - M Nagarajah & Tanya Lopez; M/s Shook Lin & BokFor the respondent - Sivabalan Sankaran, Tharmini Paramasivan & Shaun Tan ChengHong; M/s Tan Swee Im, Siva & Partners[Editor’s note: For the Court of Appeal judgment, please see Martego Sdn Bhd v. ArkitekMeor & Chew Sdn Bhd & Another Appeal [2018] 2 CLJ 163 (affirmed).For the High Court judgment, please see [2017] 1 CLJ 101 (affirmed).]Reported by Najib TambyJUDGMENTMohd Zawawi Salleh FCJ:Introduction[1]This appeal concerns the interpretation of the Construction IndustryPayment and Adjudication Act 2012 (“CIPAA 2012”). On 2 January 2018,this court granted leave to appeal on four questions as follows:(i) Whether an adjudicator acts within his jurisdiction in deciding on amatter referred to him under CIPAA 2012 when, at the time of serviceof the payment claim pursuant to s. 5(1) of CIPAA, the constructioncontract had been terminated and the termination was accepted by bothparties and the claim was for determination of sums finally due to theunpaid party?;(ii)Whether CIPAA applies to final payments when the mischief whichCIPAA intends to cure, based on its Explanatory Statement and
440[2019] 8 CLJABCDEFGHICurrent Law JournalPreamble, was the timely payment for work related to progresspayments and not final accounts?;(iii)Whether the rule laid down by this Honourable Court in Akitek TenggaraSdn Bhd v. Mid Valley City Sdn Bhd[2007] 6 CLJ 93; [2007] 5 MLJ 697that disputes between an architect and his client is to be resolved by thespecific provision enacted for such purpose ie, r. 28 of the FourthSchedule to the Architects Rules 1973 (as amended in 1986) is still goodlaw?;(iv) If question (iii) is answered in the affirmative, whether the object ofCIPAA to ‘pay first and argue later’ applies to disputes betweenarchitects and clients, since adjudication under CIPAA in this regard:(a) dispenses with the rules of evidence, discovery and the trial process;(b) is contrary to natural justice where it concerns final payments;(c) may impinge adversely on the public purse as Federal and Stateentities may be affected as employers of construction contract;(d) elevates the adjudicator nominated by the KLRCA as a supremedecision maker, without the possibility of supervision by the courts; and(e) on the basis of the common law principle “interest rei publicae ut sitfinis litium” (in the interest of society as a whole, there must be an endto litigation)?[2]The parties agreed to summarise the above questions as follows:(a) Whether CIPAA 2012 is applicable to disputes pertaining to interimclaims only or is it also applicable to disputes relating to final claims?;and(b)Whether CIPAA 2012 should prevail over Architects Act 1973.The Factual Background And The Antecedent Proceedings[3]The factual background and the antecedent proceedings which arerelevant and germane for disposal of this instant appeal may be shortly statedas follows:(i)Martego (“the appellant”) is a private limited company carrying onbusiness in property investment, while Architect Meor & Chew SdnBhd (“the respondent”) is a private limited company providingarchitectural consultancy services.(ii)The appellant engaged the respondent as a project architect for a multi-storey development project in the centre of Kuala Lumpur known as“Cecil Central Residence”, consisting of three towers of 43-storeydeluxe residential units and one tower of 19-storey deluxe residentialunits videa letter of appointment dated 22 August 2014 (“constructioncontract”). The respondent’s scope of services was for “contractadministration” and it included, but was not limited to,recommending the list of contractors and sub-contractors for tender
441[2019] 8 CLJABCDEFGHIMartego Sdn Bhd v. Arkitek Meor &Chew Sdn Bhd & Another Appealand issuing progress claim certificates to the contractors uponconsultation with the appellant.(iii)On 7 August 2015, the appellant terminated the respondent’s serviceunder the construction contract and the respondent accepted thetermination. A dispute arose as to the amount of the professional feesfor works done under the construction contract.(iv)The respondent took refuge under CIPAA 2012 to recover its fees.(v)In the payment and the adjudication claims, the respondent claimedfor a sum of RM599,500 being the professional fees until the date oftermination of the construction contract.(vi)On 14 April 2015, the adjudicator awarded to the respondent thepayment in the sum of RM258,550 being the balance amount of thetotal entitlement of RM631,228 less the amount paid of RM372,678.(vii)Being dissatisfied with the adjudicator’s determination, the appellantappealed to the High Court to set aside the same premised on s. 15 ofCIPAA 2012. The grounds relied upon by the appellant in hisapplication to set aside the decision were twofold – the adjudicator hadacted in excess of his jurisdiction in delivering the adjudicationdecision and there had been a denial of natural justice in theadjudicator’s failure to hold a hearing despite numerous request fromthe appellant. The respondent, on the other hand, applied to the HighCourt to enforce the adjudicator’s determination. Hence, there wereapplications before the High Court, namely, the appellant’sapplication to set aside the adjudicator’s determination dated 14 April2016 and the respondent’s application to enforce the adjudicator’sdetermination.(viii)The learned High Court Judge dismissed the appellant’s applicationand allowed the respondent’s application.(ix)Aggrieved with the learned High Court Judge’s decision, the appellantfiled appeals to the Court of Appeal against the decision dismissing thesetting aside application and allowing the enforcement application.(x)The Court of Appeal had, by a majority judgment (David Wong DakWah JCA delivered the judgment of the court, Umi Kalthum AbdulMajid JCA concurring (“majority”)), dismissed the appellant’s appealand affirmed the High Court’s decision. Hamid Sultan Abu BackerJCA dissented (“minority”).(xi)Dissatisfied with the majority judgment of the Court of Appeal, theappellant applied for leave to appeal to the Federal Court. Leave was
442[2019] 8 CLJABCDEFGHICurrent Law Journalgranted by this court on 2 January 2018.Parties’ Competing Submissions[4]Learned counsel for the appellant mounted a root and branch attackon the majority. Stripped to its essentials, the nub of the appellant’ssubmission in assailing the majority may be summarised as follows:(a) The majority erred in fact and in law in failing to hold that therespondent could not have made a valid claim under CIPAA 2012 whenthe payment claim was served after the construction contract dated22 August 2014 between the appellant and respondent had beenterminated and the respondent accepted the termination of the saidcontract on 7 August 2015 (“jurisdiction issue”);(b) The majority erred in fact and in law in holding that CIPAA 2012applied to both “interim and final claims”; and(c)The majority erred in fact and in law in failing to hold that where astatute created a right, in plain language, which gave a specific remedyor appointing a specific tribunal for its enforcement, a party seeking toenforce the right must resort to that remedy or that tribunal and not toothers.[5]As regard ground (a), learned counsel for the appellant submitted thatas a general rule, there was a requirement under CIPAA 2012 for aconstruction contract to be in existence. Since the construction contractentered between the appellant and the respondent had been terminated andaccepted by the respondent, then there was no longer a “constructioncontract” for the purpose of CIPAA 2012. According to learned counsel, a“construction contract” was one in which a party undertake to carry out“construction work”, and after the determination of the contract, there wasno such undertaking. Further, pursuant to cl. 6 of the construction contract,the appellant’s obligation to make payment to the respondent was based onthe schedule/mode of payment under the said construction contract whichwas expressed as “up to the point of termination only”. Under the legalmaxim, “eodem modo quo oritur, eodem modo disselvitur”, an agreement createdby parties may be extinguished by them by a subsequent agreement. Section63 of the Contracts Act 1950 (Act 136) provides that if the parties to acontract agree to substitute a new contract for it, or to rescind or alter it, theoriginal contract need not be performed (see Ramli Shahdan & Anor v. MotorInsurer’s Bureau of West Malaysia & Anor[2006] 1 CLJ 224; [2006] 2 MLJ 116).[6]The appellant also referred us to the decision of the Supreme Court ofVictoria inGantley Pty Ltd v. Phoenix International Group[2010] VSC 106(“Gantley”) where the court considered the effect of termination of a contractat common law and said:144. It is well accepted that when a contract is terminated at common lawby the acceptance of a repudiation, both parties are discharged from thefurther performance of the contract, but rights which have directly been
443[2019] 8 CLJABCDEFGHIMartego Sdn Bhd v. Arkitek Meor &Chew Sdn Bhd & Another Appealunconditionally acquired are not divested or discharged unless thecontract provides to the contrary.[7]Relying on Gantley, learned counsel further submitted that the onlyexception to the general rule for the requirement of a construction contractto be in existence was where an unpaid party had accrued rights under theexpress terms of a construction contract prior to the termination.[8]According to learned counsel, the facts of this instant appeal revealedthat the respondent’s claims were not rights which were “unconditionallyacquired” prior to termination of the said contract which would havesurvived such termination. The adjudicator had determined that therespondent did not complete the contract documentation phase Tower 1, nordid the respondent complete the contract documentation for Towers 2 and3. Therefore, it was the contention of learned counsel for the appellant thatthe respondent’s claim was not a claim under the said contract. Pursuant tocl. 4 of the construction contract, the respondent was only entitled to makea claim under the contract (ie, to claim its first milestone/progress paymentof 35%) upon completion of the contract documentation phase.[9]In other words, learned counsel for the appellant posited that therespondent would only have accrued rights under the construction contractwhich would have been “divested and discharge” upon termination if theyhad completed the contract documentation phase prior to the termination.[10]Learned counsel expanded on his submission by contending that theadjudicator also did not have the jurisdiction to make a determination on aclaim which was based on quantum meruitbecause the adjudicator was acreature of CIPAA 2012 and derived his powers from CIPAA 2012.Therefore, his power could not extend to adjudicating disputes beyond theterms of a construction contract.[11]In reply, learned counsel for the respondent submitted that CIPAA2012, particularly s. 5, did not restrict an unpaid party from issuing apayment claim upon termination of a construction contract. It should benoted that the respondent’s claim under the payment claim was for the workdone before termination of the construction contract and therefore thepayment claim fell within the ambit of CIPAA 2012.[12]According to learned counsel, the parties’ past rights and obligationsprior to the termination were not affected by the termination and thereforethe appellant was not relieved from its obligation to pay the respondent.Clause 6 of the construction contract merely sets out the valuation methodto be adopted by parties in valuing the works done prior to the termination.The case of Gantleywas not applicable to the case at hand.Our Findings On Ground (a)[13]This issue concerns the adjudicator’s jurisdiction and turns on the
444[2019] 8 CLJABCDEFGHICurrent Law Journalproper interpretation of the construction contract in the context of CIPAA2012.[14]Jurisdiction is everything and without it, a court or an adjudicator hasno power to take one more step. A court of law or an adjudicator downs itsor his tools in respect of the matter before it the moment it holds the opinionthat it is without jurisdiction. (See Pentadbir Tanah Daerah Seberang PeraiTengah & Anor v. Bagan Serai Housing Estate Sdn Bhd[2016] 8 CLJ 846 (CA)).The critical issue here is whether the adjudicator had jurisdiction toadjudicate when the payment claim was served after the construction contracthas been terminated.[15]Both parties before the adjudicator accepted that the constructioncontract had been lawfully terminated. Clause 6 of the construction contractprovides as follows:6. Abandonment and terminationBy mutual consent, either party may terminate this appointment byserving to the other party a sixty (60) day’s notice of termination.In theevent of such termination or the Client aborts or abandons the Project, the Client shallpay the Architect in accordance with the Schedule/Mode of Payment, as outlinedunder item (3) above up to the point of termination. Such fees may beapportioned, if necessary, in accordance with the services rendered undera particular stage of service at the point of termination. (emphasis added).[16]In our view, cl. 6 of the construction contract expressly contemplatespayment being made after the said contract has been terminated as it sets outthe mechanism for the parties to value works done up to the date ofdetermination. We do not regard the absence of an express provision that aparty is entitled to make a payment claim after the construction contract hasbeen terminated as warranting a different conclusion. That cl. 6 equates therights and liabilities of the parties to the general law of contract situationwhere the parties’ past rights and obligations prior to the termination are notaffected by the termination and therefore the appellant is not relieved fromits obligation to pay the respondent.[17]We entertain no doubt that the right to payment under cl. 6 of theconstruction contract survives the termination. The respondent had carriedout works prior to the termination and the past rights and obligations of theappellant are not discharged due to termination (see Berjaya Times Square SdnBhd v. M-Concept Sdn Bhd[2010] 1 CLJ 309 (CA)).[18]In our view, the respondent is entitled to the payment for work doneas per the schedule stated in cl. 3 of the construction contract:3. Scope of Services
445[2019] 8 CLJABCDEFGHIMartego Sdn Bhd v. Arkitek Meor &Chew Sdn Bhd & Another AppealThe fees proposed shall embrace architectural services for detailed design,tender and construction drawings submission, and contract managementand shall include submission of amendments as may be required by theOwner, Authorities or for other reasons therefrom:(a) Detailed Design Developmenti.Upon obtaining statutory approvals, to prepare and submit plansfor obtaining the building plans approval or work permit for earlywork commencement whichever earlier;ii. Liaising with authorities;iii. Proposing amendments for improvement of building designincluding façade treatment and planning in liaison with ChiefDesign Architect, Cecil Chao & Associate of Hong Kong;iv. To coordinate with the Consultant, and to hold regularly, theTechnical and the Client-Consultant Meetings;v. To inform the Client on a regular basis on the Status of theProject and other technical and financial issues;vi. To seek Client’s approval on all matters involving costimplications and selection of building products.(b) Contract Administrationi.Work in collaboration with all the Consultant in preparing theTender documentation, detail drawings, and working drawingsfor construction;ii.To recommend the list of Contractors and Sub-Contractors forTenders;iii. To award the Contract on the Client’s behalf;iv. To coordinate and to conduct regular site meeting;v. To report on the Status of the Project;vi. To issue the Progress Claim Certificates to the Contractors(s)upon consultation to the Client;vii. To issue the Progress certificates certifying the StageCompletion upon request by the Client;viii. Upon satisfactory completion of the Project, apply to theauthority for the Certificate of Completion and Compliance(“CCC”).(c) Othersi. Any other matters deemed necessary.[19]In his endeavour to persuade us, learned counsel for the appellanturged us to affirm the views of the learned dissenting judge who endorsed the
446[2019] 8 CLJABCDEFGHICurrent Law Journalviews of the Supreme Court of Victoria in Gantley (supra)which held that theold Victorian Act provides for payment claims to be served after terminationunder two limited circumstances only:(i)where the construction contract expressly or impliedly provides for apayment claim to be served following termination; and(ii)where, immediately prior to termination, the claimant is entitled to aprogress payment for work done prior to termination where the relevantreference date has arisen prior to the termination.(See paras. 174-175 of Gantleyjudgment)[20]We observe that the case of Gantley(supra) was referred to in both themajority and dissenting judgments of the Court of Appeal. It is, therefore,apposite for us to discuss the case. The facts of the case may be summarisedthus: Phoenix International Group Pty Ltd. (Phoenix) (defendant) wasengaged by Gantley Pty Ltd (Gantley) (plaintiff) to construct variousdwellings. In May and July 2009, Phoenix served payment claims onGantley for each project, and in response Gantley in each case served “nil”payment schedules under the Victoria Act. The matter went for adjudication.Gantley argued that the payment claims were contrary to the Victoria Actand invalid as they did not properly identify the construction work to whichthe claims related. The adjudicator determined, however, that the sumsclaimed by Phoenix were valid and were due to it. Gantley issuedproceedings in the Supreme Court to review the adjudicator’s decision.[21]Vickey J decided that a payment claim that did not reasonably specifythe work done, which was the subject of the payment claim, would be invalidbecause one of the basic and essential requirements of the Victoria Act hadnot been met. Any adjudication founded on an invalid payment claim woulditself be invalid, at least to that extent.[22]His Honour found that the disputed payment claims were invalid andordered the adjudication determinations to be void. In determining thedegree of specificity, it was necessary to identify the work sufficiently for therespondent to a payment claim to understand the basis of the claim andprovide a considered response. The standard is that of a reasonable personwho is in the position (and has the knowledge) of the recipient. His Honourheld that severance of part of a payment claim, which is non-compliant withthe Victoria Act, is possible. His Honour also held that service of a progressclaim under the Victoria Act after termination of the contract is valid where:(a)the contract expressly or impliedly allows this, or(b)there is an accrued right to a progress payment before termination forwork done prior to termination,and the fact that the amended Victoria Act now provides for a “final progress
447[2019] 8 CLJABCDEFGHIMartego Sdn Bhd v. Arkitek Meor &Chew Sdn Bhd & Another Appealpayment” demonstrates that the intention of the previous version of theVictoria Act was to allow for a final progress claim.[23]The majority rejected the application of the case of Gantleyand statedthat it had no application to the case at hand. We are fully in agreement withthe majority for the following reasons:(a)the factual matrix of Gantleyis different from that in the present appeal.The claim in Gantleywas about the damages arising from a repudiationwhile the claim by the respondent in this instant case is for work done.The issue of whether the termination was due to a repudiation was neverraised and decided in Gantley; the termination letter was not exhibited.The facts in Gantleyare poles apart from the facts of the case before us;and(b)the court inGantleydiscussed the validity of the progress claim madepursuant to a final claim arising out of a termination. The progress claimissued pursuant to the old Victorian Act did not cover the final claimdisputes. This is not the case under CIPAA 2012. Plainly, the issuebefore Gantleyis not germane to the issue before us.[24]On the issue of deriving assistance from foreign case law ininterpreting our legislations; we say it must be exercised withcircumspection. This is because the resort to case law of foreign jurisdictionsby persons not fully acquainted with the practice in these jurisdictions orwith the concept and techniques of foreign system entails a real risk thatforeign legal position would be misinterpreted.[25]Concerning ground (b), learned counsel for the appellant vehementlyargued that CIPAA 2012 did not cover claims for final accounts or sumsfinally due to unpaid party unless the contractual mechanism for the paymentof the final accounts (if provided under the contract) had been engaged.[26]In support of his submission, learned counsel advanced, inter alia, thefollowing reasons:(a)The phrase “final account” is notably absent in the CIPAA 2012. Theglaring omission of this phrase from CIPAA 2012 is an indication of thedraftsmen’s intention to exclude final account;(b) Existence of s. 36 of CIPAA 2012 (a default provision that can beapplied in the absence of payment terms in the construction contract)and reading of CIPAA 2012 in its entirety will indicate that CIPAA2012 was intended to apply to interim claims only;(c) The main purpose of CIPAA 2012 was to assist the parties of the
448[2019] 8 CLJABCDEFGHICurrent Law Journalconstruction contract to receive prompt payments for work donepursuant to their construction contract and the adjudication proceedingswas set out to advance the said purpose. The CIPAA 2012 was intendedto be applied to interim claim which involved payments on account.Hence, any dispute as to the amount that is finally due is to be resolvedthrough other dispute resolution forum such as court or arbitration;(d) The construction contract had provided the time period to make aninterim and final claim. In the present appeal, the invoice was not madepursuant to the time and therefore it was neither a progress claim nora final claim;(e)The majority fell into serious error in holding that Australia State ofVictoria’s Building and Construction Industry Security of Payment Act2002 (Victoria No. 15 of 2002) (“old Victorian Act”)’s interpretation of“rights to progress claim” has no significance on the basis that thecontext in which the phrase was interpreted in the old Victorian Act isdifferent from CIPAA 2012. In actual fact, CIPAA 2012 and the oldVictorian Act are glaringly similar as both Acts require the existence ofconstruction contract for a payment claim to be made specifically refersto “progress payment” and do not expressly exclude the application ofthe Act to final claims; and(f)Singapore Building and Construction Industry Security of Payments Act2004 (“SOPA”) does not resemble CIPAA 2012 due to the absence ofthe phrase “right to progress payment” and existence of definition to the“progress payment”.[27]In response, learned counsel for the respondent submitted that thereis no limitation to CIPAA 2012 in relation to final and interim claims.CIPAA 2012’s primary objective is to alleviate the cash flow and this is doneby eliminating payment issues quickly. It is the contention of learned counselthat limiting CIPAA 2012 to interim claims will prejudice the claimant’sright to payment and such limitation will defeat the very purpose of CIPAA2012 which was to alleviate cash flow in the construction industry throughan effective adjudication mechanism.[28]Learned counsel for the respondent urged this court to adopt apurposive approach in interpreting CIPAA 2012 as mandated by s. 17A ofthe Interpretation Acts 1948 and 1967.[29]Learned counsel contended that the distinction on whether a claim isfinal or interim is unnecessary in providing a right for payment which isintended to alleviate the cash flow issue in the industry and will affect thestakeholders in the construction chain who are financially weaker than theappellant as in the present case. Further, drawing the distinction between
449[2019] 8 CLJABCDEFGHIMartego Sdn Bhd v. Arkitek Meor &Chew Sdn Bhd & Another Appealfinal or interim will only destroy the robust change that the industry hasstarted to experience.Our Findings On Ground (b)[30]We are of the opinion that the majority was on firm ground when itheld that Australian State of Victoria’s Building and Constructions IndustrySecurity of Payment Act 2002’s interpretation of a “right to progress claim”is not relevant to the interpretation of CIPAA 2012.[31]CIPAA 2012 is not modelled after the old Victorian Act. The purposeof the old Victorian Act is more to safeguarding the interest of individualscompared to CIPAA 2012 which was intended for the construction industryas a whole. The purpose of Singapore Building and Construction IndustrySecurity of Payment Act (Cap 30B, 2006 Rev Ed) (“SOPA”) is similar toCIPAA 2012. Hence, in our view, referring to SOPA rather than the oldVictorian Act in interpreting “final claim” will be more appropriate.[32]At the outset, it is pertinent to note that the issue of applicability ofCIPAA 2012 to a final or interim claim was not raised by the parties beforethe Court of Appeal. In the course of argument before the court, thefollowing questions were posed by the court to the parties:(a)whether the subject matter of the adjudication was based on interimpayment claim or a final claim.(b) whether statutory adjudication in other jurisdiction makes adistinction between final bills and interim bill.[33]Despite of objection raised by learned counsel for the respondent, theCourt of Appeal proceeded to deliberate on the issues on the ground that theissues were relevant to the adjudicator’s jurisdiction. The court held thatjurisdictional challenge had always been allowed by the courts at any stageof proceedings.[34]On question (a), the majority held that as long as the claims arepayment claims relating to a construction contract as defined in s. 4 of theCIPAA 2012, the Act comes into play. That being the case, it does not matterwhether the payment claims were interim or final claims made afterunilateral or mutual termination.[35]On question (b), the majority reasoned that the old Victorian Actrelied by the appellant, as interpreted by the Victoria Supreme Court on thephrase “right to progress payment” in s. 9 was housed in Part 2 the Act –“Right to Progress Payment”, was of no significance as the context in whichit was interpreted was totally different from the case at hand. In CIPAA 2012there are specific provisions which allow a claimant to make a claim inrespect of all payment for works and services done under a constructioncontract. Hence, the decision inGantley (supra)cannot be used to support the
450[2019] 8 CLJABCDEFGHICurrent Law Journalproposition of the appellant (see para. 45 of the majority judgment of theCourt of Appeal).[36]The minority came to a different conclusion. The minority was of theopinion that if there had been no determination, their claims would havebeen for interim payment and the matter could be referred to CIPAA 2012.If the contract had been terminated and accepted as in the instant case, thenthe claim of the respondent would relate to final account or final paymentand in consequence CIPAA 2012 would not be applicable. Since the claimby the respondent in this instant appeal was not related to CIPAA 2012, theadjudicator would not have the jurisdiction to hear the dispute (see paras [78]and [81] of the minority judgment).[37]The minority further held that if CIPAA 2012 was made applicableto final account or final payment in relation to construction disputes asopposed to construction contract for interim payment, it may lead to anabuse of process. According to the minority, it was wrong to construeCIPAA 2012 to include claims for final payment when the mischief itintended to cure was the timely payment for work related to progresspayments and not the final account. It was principally wrong to read into theAct the phrase “final payment” when Parliament has not expressly stated soand the holistic reading of the Act would learn towards interim payment only(see para [75] of the minority judgment).[38]With respect, we are unable to agree with the minority and we are infull agreement with analysis of the majority that as long as they are paymentclaims relating to a construction contract as defined in s. 4, CIPAA 2012would applied. In our view, it is difficult to fathom any basis for concludingthat Parliament intended a bifurcated approach depending on the type ofclaim. We could see no conceivable basis and/or logical reason that theParliament would have intended a different approach between the interimpayment and final payment. If the Parliament had intended to exclude finalclaims from the adjudicatory ambit of CIPAA 2012, it could have clearlyincluded a proviso or provisions to that effect. Further, if the Parliament hadintended a different approach for interim and final claims, the Parliamentwould have deliberately utilised a different language evincing such anintention.[39]In our view, the interpretation expounded by the majority is consistentwith the purpose and structure of the adjudication process outlined in CIPAA2012. The modern approach to interpretation of statute mandates that aconstruction of a statute which promotes the purpose or object of an Act isto be preferred to a construction which does not. For this purpose, allextrinsic materials may be consulted. For example, courts are prepared toconsider the Hansard debates, the Preamble, the Explanatory Notes to the
451[2019] 8 CLJABCDEFGHIMartego Sdn Bhd v. Arkitek Meor &Chew Sdn Bhd & Another AppealBill and Law Commission Report. However, that does not mean thatordinary meaning or clear language may be discarded, for construction and/or interpretation is not divination and courts must respect separation ofpowers when construing the Acts of Parliament.[40]The leading case in which a purposive approach was accepted by theHouse of Lords was Pepper v. Hart[1993] AC 593. The case established theprinciple that when primary legislation is ambiguous and certain criteria aresatisfied, courts may refer to statements made in the House of Commons orthe House of Lords in an attempt to interpret the meaning of the legislation.The House of Lords held that courts could now take a purposive approachto interpreting legislation when the traditional methods of statutoryconstruction are in doubt or result in an absurdity. To find what theParliament intended, all sources including Hansard may be consulted. LordGriffiths said:My Lords, I have long thought that the time had come to change the self-imposed judicial rule that forbade any reference to the legislative historyof an enactment as an aid to its interpretation. The ever increasing volumeof legislation must inevitably result in ambiguities of statutory languagewhich are not perceived at the time the legislation is enacted. The objectof the court in interpreting legislation is to give effect so far as thelanguage permits to the intention of the legislature. If the language provesto be ambiguous I can see no sound reason not to consult Hansard tosee if there is a clear statement of the meaning that the words wereintended to carry. The days have long passed when the courts adopteda strict constructionist view of interpretation which required them to adoptthe literal meaning of the language. The courts now adopt a purposiveapproach which seeks to give effect to the true purpose of legislation andare prepared to look at much extraneous material that bears upon thebackground against which the legislation was enacted. Why then cutourselves off from the one source in which may be found an authoritativestatement of the intention with which the legislation is placed beforeParliament?.[41]In a similar vein, in Re Rizzo & Rizzo Shoes Ltd[1998] 1 SCR 27 JusticeLacobucci of the Canada Court, speaking for whole court, wrote thefollowing:Elmer Driedger in Construction of Statutes(2nd ed. 1983) best encapsulatesthe approach upon which I prefer to rely. He recognises that statutoryinterpretation cannot be founded on the wording of the legislation alone.At p. 87 he states: “Today there is only one principle or approach, namely,the words of an Act are to be read in their entire context and in theirgrammatical and ordinary sense harmoniously with the scheme of the Act,the object of the Act, and the intention of Parliament.[42]In Attorney-General v. Ting Choon Meng and Another Appeal [2017] 1
452[2019] 8 CLJABCDEFGHICurrent Law JournalSLR 373, Sundaresh Menon CJ of Singapore Court described the approachtowards the purposive interpretation of statutory as follows:59. … [T]he court’s task when undertaking a purposive interpretation ofa legislative text should begin with three steps:(a) First, ascertaining the possible interpretations of the text,as it hasbeen enacted. This however should never be done by examining theprovision in question in isolation. Rather, it should be undertakenhaving due regard to the context of that text within the written lawas a whole.(b) Second, ascertaining the legislative purpose or object of thestatute. This may be discerned from the language used in theenactment; … it can also be discerned by resorting to extraneousmaterial in certain circumstances. In this regard, the court shouldprincipally consider the general legislative purpose of the enactmentby reference to any mischief that Parliament was seeking to addressby it. In addition, the court should be mindful of the possibility thatthe specific provision that is being interpreted may have beenenacted by reason of some specific mischief or object that may bedistinct from, but not inconsistent with, the general legislativepurpose underlying the written law as a whole. …(c) Third, comparing the possible interpretations of the text againstthe purposes or objects of the statute. Where the purpose of theprovision in question as discerned from the language used in theenactment clearly supports one interpretation, reference toextraneous materials may be had for a limited function – to confirmbut not to alter the ordinary meaning of the provision as purposivelyascertained …(emphasis added)[43]In Malaysia, the requirement to have regard to purpose of an Act iscontained in s. 17A of the Interpretation Acts 1948 and 1967 which are inthe following terms:Regard to be had to the purpose of Act17A. In the interpretation of a provision of an Act, a construction thatwould promote the purpose or object underlying the Act (whether thatpurpose or object is expressly stated in the Act or not) shall be preferredto a construction that would not promote that purpose or object.[44]On proper application of the provision of the s. 17A of theInterpretation Acts 1948 and 1967, we refer to the case of All Malayan EstatesStaff Union v. Rajasegaran & Ors[2006] 4 CLJ 195; [2006] 6 MLJ 97 whereinthe Federal Court had laid down the principle, inter alia, as follows:In summarising the principles governing the application of the purposive
453[2019] 8 CLJABCDEFGHIMartego Sdn Bhd v. Arkitek Meor &Chew Sdn Bhd & Another Appealapproach to interpretation, Craies on Legislation(8th Ed), says at p 566:(1) Legislation is always to be understood first in accordance with its plainmeaning.(2)Where the plain meaning is in doubt the courts will start the process ofconstruction by attempting to discover, from the provisions enacted, the broadpurpose of the legislation.(3)Where a particular reading would advance the purpose identified, and woulddo no violence to the plain meaning of the provisions enacted, the courts willbe prepared to adopt that reading.(4) Where a particular reading would advance the purpose identifiedbut would strain the plain meaning of the provisions enacted, theresult will depend on the context and, in particular, on a balance ofthe clarity of the purpose identified and the degree of strain on thelanguage.(5) Where the courts conclude that the underlying purpose of thelegislation is insufficiently plain, or cannot be advanced without anyunacceptable degree of violence to the language used, they will beobliged, however regretfully in the circumstances of a particular case,to leave to the legislature the task of extending or modifying thelegislation. (emphasis added).[45]In Tunku Yaacob Holdings Sdn Bhd v. Pentadbir Tanah Kedah & Ors[2015] 3 CLJ 1017; [2016] 1 MLJ 200 at 218, the Federal Court consideredthe “settled general rule” that “when a statute is susceptible of two or moreinterpretations, normally that interpretation should be accepted as reflectingthe will of the legislation which is presumed to operate most equitably, justlyand reasonably as judged by the ordinary and normal conceptions of what isright and what is wrong and of what is just and what is unjust”.[46]At the risk of repetition, we say that the raison d’êtreof CIPAA 2012regime lie in facilitating and providing remedies for the recovery of paymentin the construction industry. CIPAA 2012, brings three major changes to theconstruction industry in Malaysia:(a)a “right to progress payment”, unless otherwise agreed to by the parties;(b) a speedy resolution through adjudication for construction disputesrelating to payment for works carried out under the constructioncontract; and(c)a determination which has temporary finality. A party, which executesconstruction work and which is unpaid in whole or in part, under theconstruction contract may serve a payment claim on non-paying partyto the construction contract.[47]From the Preamble, it is clear that CIPAA 2012 is “An Act to
454[2019] 8 CLJABCDEFGHICurrent Law Journalfacilitate regular and timely payment, to provide a mechanism for speedydispute resolution through adjudication, to provide remedies for the recoveryof payment in the construction industry and to provide for connected andincidental matters”.[48]The Explanatory Statement to CIPAA Bill 2011 states as follows:… EXPLANATORY STATEMENTThe Construction Industry Payment Adjudication Act 2011 (“theproposed Act”) seeks to facilitate regular and timely payment in respectof construction contracts and to provide for speedy dispute resolutionthrough adjudication. The purposeof the proposed Act is to alleviatepayment problems that presently prevails pervasively and which stiflescash flow in the construction industry. The proposed Act furtherprovides default payment terms in the absence of provisions to that effectand prohibits conditional payment terms that inhibit cash flow. The actalso seeks to provide remedies for the recovery of payment upon theconclusion of adjudication. (emphasis added)(See: Explanatory Statement of CIPAA Bill 2011)[49]The speech by the Deputy Minister during the second reading of theBill to introduce CIPAA 2012 in Dewan Rakyat on 2 April 2012 revealedthat the raison d’êtreof CIPAA 2012 is to resolve the payment problem andfacilitate regular and timely payment, provide for speedy dispute resolutionthrough adjudication:12. Tuan Yang di-Pertua, industri pembinaan mempunyai potensi yangtinggi untuk terus berkembang. Antara cabaran yang perlu ditangani bagimencapai aspirasi ini ialah isu pembayaran yang melibatkanpihak-pihakdalam rantaian pembinaan termasuk kontraktor utama, subkontraktor,sub-subkontraktor, para perunding dan pembekal-pembekal bahan-bahan.Sekiranya masalah pembayaran ini tidak ditangani dengan berkesan, ia bolehmenjejaskan aliran tunai dan seterusnya menyebabkan kelewatan menyiapkanprojek, kemerosotan kualiti kerja, peningkatan kos dan dalam kes-kes kritikal,kontrak akan ditamatkan…Pendek kata, tempoh masa yang lama dan kos prosiding yang tinggi adalahmerupakan antara faktor utama yang mengekang pihak-pihak terlibat untukmerujuk pertikaian kepada mahkamah atau timbangtara. Justeru itu, kerajaanamat prihatian dengan isu pembayaran dalam industri pembinaandan telahmenggubal Rang Undang-undang Pembayaran dan Adjudikasi IndustriPembinaan 2011 bagi membantu pihak-pihak yang terlibat untukmenyelesaikan pertikaian pembayaran dengan mudah, murah dan cepat.Rang undang-undang ini diwujudkan selepas diadakan beberapa siriperbincangan dan dialog bersama agensi kerajaan, penggiat industri,pihak-pihak yang berkepentingan atau stake holders dan badanprofesional yang berkaitan.…
455[2019] 8 CLJABCDEFGHIMartego Sdn Bhd v. Arkitek Meor &Chew Sdn Bhd & Another AppealPertikaian yang boleh dirujuk kepada adjudikasi adalah berkaitan denganpembayaran bagi kerja siap atau perkhidmatan yang dibekalkan, yangsepatutnya dibayar di bawah terma-terma nyata kontrak dalam kontrakpembinaan. Ia termasuklah bayaran interim mengikut kemajuan kerja.Prosiding adjudikasi boleh dimulakan sebaik sahaja timbul pertikaianpembayaran sama ada semasa projek pembinaan sedang dijalankan atauselepas projek disiapkan …(emphasis added)(See the Deputy Minister’s Policy Speech in Dewan Rakyat and thesummary of the speech by Mary Lim J (as she then was) in Uda Holdings v.Bisraya Construction Sdn Bhd & Anor and Another Case[2015] 5 CLJ 527).[50]It can be clearly discerned from the Deputy Minister’s speech thatCIPAA 2012 is enacted by the Parliament to provide an easily accessible,faster and cheaper resolution forum ie, the adjudication. The followingcharacteristics of CIPAA 2012 is in tandem with the said intent:(a)it involves tight time constraints. The deadline for each step is fixed andthe timeline for each stage is relatively short to ensure that the disputesare resolved rapidly and quickly;(b)it involves a significant degree of informality;(c)it gives adjudicator’s determination a degree of conclusiveness;(d)it involves rights which are interim only. The rights and liabilities underthe Act do not affect other entitlement a person may have under aconstruction contract or any other remedy a person may have forrecovering such entitlement;(e)the standard adjudicator’s fee is introduced and the charges are cheaperthan arbitration. Low-cost decision making is a core object of thescheme in the Act; and(f) the grounds on which the court can rely upon to set aside theadjudicator’s determination are limited. The court primary duty must beto uphold the adjudicator’s determination and not to revisit the factualor legal matters canvassed before the adjudicator.[51]It is clear, therefore, that the issue of cash flow is the primary objectiveof CIPAA 2012 as it is deemed to be the life-blood of the constructionindustry. This position has been recognised by our courts.[52]In the case of PWC Corporation Sdn Bhd v. Ireka Engineering &Construction Sdn Bhd & Other Case (No. 2)[2018] 1 LNS 163, Lee Swee SengJ in refusing a stay application pursuant to s. 16 of CIPAA 2012, observedthe purpose of CIPAA 2012 as follows:[111] Whilst the Respondent had fulfilled the threshold condition of
456[2019] 8 CLJABCDEFGHICurrent Law Journalobtaining a Stay in that a Notice to Arbitrate has been served on theClaimant and that the Arbitration would decide fully and finally all issuesthat have arisen in the dispute between the parties, that threshold is onlya mere trigger for the Court to consider exercising its discretion withrespect to Stay. It is not the “be all and end all” of the consideration forStay of the Decision for otherwise it would be acarte blanchefor all whohave an Adjudication Decision against them to effectively get a Stay ofthe Decision by serving a Notice of Arbitration or to file a Writ againstthe successful Claimant. That would be to denude the CIPAA of its designedpurpose of facilitating cash flow in the construction industry and promoting promptpayment for work done for which the contractor is already out of pocket. Theconstruction scene is strewn with sob stories of contractors who have fallen down theslippery slope of financial stress simply because payments for work done or servicesrendered were delayed.(emphasis added).[53]When the High Court decided on both the enforcement and settingaside applications, the learned judge made the following observations:[93] In all this debate we must not forget Parliament’s intention inenacting CIPAA is to provide a mechanism for speedy dispute resolutionthrough adjudication, to provide remedies for the recovery of payment inthe construction industry and to provide for connected and incidentalmatters. The objective and purpose for CIPAA are to provide a solutionto payment problems that stifles cash flow in the construction industry …[54]The majority shared the same view on the CIPAA:38. … Here of course there is no specific provision in CIPAA 2012 whichstates that it only applies to “interim payment claims” or that it appliesto both “interim and final claims”.39. In the case of CIPAA 2012, this is what was stated the ExplanatoryStatement to the Bill which was presented to Parliament:The Construction Industry Payment Adjudication Act 2011 (“theproposed Act”) seeks to facilitate regular and timely payment in respectof construction contracts and to provide for speedy dispute resolutionthrough adjudication. The purpose of the proposed Act is to alleviatepayment problems that presently prevail pervasively and which stifle cashflow in the construction industry. The proposed Act further providesdefault payment terms in the absence of provisions to that effect andprohibits to that effect and prohibits conditional payment terms thatinhibit cash flow. The Act also seeks to provide remedies for the recoveryof payment upon conclusion of adjudication.41. Nowhere in the Explanatory Statement does it state that CIPAA 2012applies only to interim payments claims. Its primary objective is succinctlyclear and that is to provide an effective and economical mechanism toalleviate the cash flow issues prevailing in the construction industry.[55]We have also perused and scrutinised the Preamble, the Explanatory
457[2019] 8 CLJABCDEFGHIMartego Sdn Bhd v. Arkitek Meor &Chew Sdn Bhd & Another AppealNotes to the Bill and the speech of the Deputy Minister when tabling CIPAABill. We have no hesitation in agreeing and endorsing the interpretationexpounded by the High Court and the majority. It is clear from the materialsmentioned above that the primary objective of CIPAA 2012 is to alleviatecash flow issues by providing an effective and economical mechanism. Thecourts are consistent on the finding that CIPAA 2012 is intended to alleviatecash flow issue. Therefore, the mischief that CIPAA 2012 intends to cure isnone other the cash flow in the construction industry through effective andeconomical mechanism; for deciding otherwise would run counter to thelegislative purpose of creating an expedited adjudication process.[56]We are in agreement with the submission of learned counsel for therespondent that there is no rhyme or reason for this court to confine theapplicability of CIPAA 2012 to “interim claim” only. CIPAA 2012 does notmention the words “interim claim” or “final claim”. “Payment” is definedunder s. 4 of CIPAA 2012 to mean a payment for work done or servicerendered under the express terms of a construction contract.[57]It is well-established principle of interpretation that the court cannotrewrite, recast or reframe the legislation because it has no power to do so.The court cannot add words to a statute or read words which are not there.It is also well settled canon of construction that words in a statute cannot beread in isolation, their colour and content derived from their context andevery words in a statute is to be examined in its context. The word contexthas to be taken in the widest sense where the court must take intoconsideration not only the enacting provisions of the same statute, but itspreamble, the existing state of law, other statutes in pari materia, and themischief which the statute is intended to remedy.In Reserve Bank of India v. Peerless General Finance and Investment Co. Ltd, 1987SCR (2) 1 Chinnappa Reddy J said:Interpretation must depend on the text and the context. They are thebases of interpretation. One may well say if the text is the texture, contextis what gives the colour. Neither can be ignored. Both are important. Thatinterpretation is best which makes the textual interpretation match thecontextual. A statute is best interpreted when the object and purpose ofits enactment is known. With this knowledge, the statute must be read,first as a whole and then section by section, clause by clause, phrase byphrase and word by word. If a statute is looked at, in the context of itsenactment, with the glasses of the statute maker, provided by suchcontext its scheme, the sections, clauses, phrases and words may takecolour and appear different than when the statute is looked at withoutthe glasses provided by the context. With these glasses we must look atthe Act as a whole and discover what each section, each clause, eachphrase and each word is meant and designed to say as to fit into thescheme of the entire Act. No part of a statute and no word of a statute
458[2019] 8 CLJABCDEFGHICurrent Law Journalcan be construed in isolation. Statutes have to be construed so that everyword has a place and everything is in its place.[58]Section 4 of CIPAA 2012 defines certain keywords as follows:“construction contract” means a construction work contract orconstruction consultancy contract;“non-paying party” means a party against whom a payment claim is madepursuant to a construction contract;“payment” means a payment for work done or services rendered underthe express terms of a construction contract;“unpaid party” means a party who claims payment of a sum which hasnot been paid in whole or in part under a construction contract.[59]Section 5 provides:Payment claim5(1) An unpaid party may serve a payment claim on a non-paying partyfor payment pursuant to the construction contract.(2) The payment claim shall be in writing and shall include:(a) the amount claimed and due date for payment of the amountclaimed;(b)details to identify the cause of action including the provision inthe construction contract to which the payment relates;(c)description of the work or services to which the payment relates;and(d) a statement that it is made under this Act.[60]Sections 4 and 5 stipulate who, when and how one can initiateproceedings under CIPAA 2012:(a)Who can claim – an unpaid party who is being owed payments for workdone (either part of payment or full payment) under an express provisionof a construction contract;(b)When can claim-once work is done and the payment is due under theexpress provisions of the construction contract; and(c) How to initiate proceedings under CIPAA 2012 – issue a paymentclaim.[61]There can be no doubt that so long as there is a sum payable undera construction contract for work done and as long as the party remainsunpaid, the claim can still be brought against the other party through CIPAA2012 as it is payment dispute under the construction contract. The sectiondoes not suggest that the payment claim should be confined to interim claimsonly.[62]We also agree with the High Court and the majority that referring to
459[2019] 8 CLJABCDEFGHIMartego Sdn Bhd v. Arkitek Meor &Chew Sdn Bhd & Another AppealSOPA over old Victorian Act in interpreting “final claim” will be moreappropriate. SOPA applies to payments for construction works done orgoods or service rendered for the construction industries.[63]Similar to the position in Malaysia, the SOPA is silent to the word“final claim”. The word “progress payment” in SOPA does not mentionanything regarding a final account. The Singapore Court had attempted todefine progress payment in the case of Tiong Seng Contractors (PTE) Ltd v.Chuan Lim Construction Pte Ltd[2007] 4 SLR 364 where Justice Lai Siu Chiustated as follows:[24] Adopting a literal perspective, such an interpretation is justified by theunambiguous wording of the Act, which defines “progress payments” as“a payment to which a person is entitled for the carrying out ofconstruction work or the supply of goods or services, under a contract”(“the main limb”). Such a definition expressly includes a “single or one-off payment” or a payment “based on an event or date” (“thesupplementary limb”).[25] The plaintiff had submitted that the Act does not cover final claimson the basis that they are not expressly provided for.I have severalcomments to make on this submission. First, the word “includes” alludesto the non-exhaustive nature of the sub-provisions that follow. From thisperspective, the operative definition of “progress payment” should becentred on the main limb rather than the supplementary limb.[26] The plaintiff appeared to have adopted the tack that “final payments”should not be included simply because they were not specifically identifiedin the supplementary limb as included within the main limb. Thisapproach, with respect, neglects the structure of the provision, whichunambiguously defines “progress payments”, at the outset, as paymentsto which a person is entitled for the carrying out of construction workunder a contract.[27] Looking at the structure and wording of the provision, it appears that anexclusion of “final payments” from the ambit of the Act can only be justified byexpress wording to that effect. It would not suffice to infer a legislative intention toexclude simply on the basis that “final payments” were not included in a non-exhaustive supplementary definition, ostensibly provided for clarification. If theLegislature had intended to exclude final claims from the adjudicatory ambit of theAct, it could have clearly included a proviso or provision to that effect. In the absenceof such express exclusion, the primary broad-ranging definition in the main limb mustbe determinative.[28]In addition, a plain reading of “a payment that is based on an event or a date”or a “single or one-off payment” clearly encompasses final payments. Such aconclusion is vindicated by the fact that the Act at no time makes any distinctionbetween “final claims” and “non-final claims”. Implying such a distinction from thesupplementary limb would severely impair the protection afforded by the Act, as itwould create a carte blanche for contractors to renege on the final stages of payment,
460[2019] 8 CLJABCDEFGHICurrent Law Journalwhich would have an equally deleterious effect on cash flow affecting other ongoingconstruction projects.(emphasis added).[64]In the case of Libra Building Construction Pte Ltd v. EmergentEngineering Pte Ltd[2016] 1 SLR 481, the Singapore High Court comparedSOPA with New South Wales Building and Construction Industry Securityof Payment Act 1999. On the issue of final account, the court stated asfollows:46. First, “progress payment” is defined in very similar language in bothstatutes save that the NSWA has an expanded definition to make clearthat a final payment under a construction contract is also a “progresspayment”. This is not a material difference as it was decided by this courtin Tiong Seng Contractors (Pte) Ltd v. Chuan Lim Construction Ltd [2007] 4SLR(R) 364 (“Tiong Seng Contractors”) (at [27]) (approved in Chua Say Eng(at [95])) that a final payment would be regarded as a “progress payment”under the Act.[65]In the case of Lee Wee Lick Terence (alias Li Weili Terence) v. Chua SayEng (formerly trading as Weng Fatt Construction Engineering) and Another Appeal[2013] 1 SLR 401, the Singapore Court of Appeal had stated as follows:95. The other point to note in this case is that PC6 was a final claim forpayment and not a progress payment. The Act is expressed to apply toprogress payments (s. 5). The expression “progress payment” is definedin s. 2 as follows:“progress payment” means a payment to which a person is entitledfor the carrying out of construction work, or the supply of goodsor services, under a contract, and includes:(a) a single or one-off payment; or(b) a payment that is based on an event or a date ...Even though no argument has been made to us on whether a final payment is aprogress payment as defined, it seems to us that the definition is wide enough toinclude a final payment as it is a payment, albeit final, to which a person is entitledfor the carrying out of construction works.(emphasis added).[66]The Singapore Courts are of the opinion that the definition of progresspayment is wide enough to include the final payment as the payment underfinal account is also for work done or services rendered. So too CIPAA 2012.[67]A broader view in understanding s. 5 of CIPAA 2012 is supported byDatuk Professor Sundra Rajoo in “A Practical Guide to Statutory Adjudicationin Malaysia”, which was published by KLRCA, wherein the learned authorsaid:Payment: Under CIPAA, the unpaid party is only allowed to refer a
461[2019] 8 CLJABCDEFGHIMartego Sdn Bhd v. Arkitek Meor &Chew Sdn Bhd & Another Appeal‘payment’ dispute to adjudication. Section 4 defines payment to mean“payment for work done or services rendered under the express terms ofa construction contract”. As such, the definition excludes reference ofextra – contractual claims, such as tortious claims or general damagesarising from breaches of contract. Unlike the statutory adjudication regimein the United Kingdom which allows all disputes arose under aconstruction contract to be adjudicated upon, the scope of application ofCIPAA is restrictive to payment disputes under a construction contract.However, the parties may expand the scope of reference of theadjudication to matters other than ‘payment’ disputes.‘Payment’ in this context refers to payment for “construction work” doneand “consultancy services” rendered arising “under the express terms” ofthe construction contract.Falling under this category are progress payments, whatever their formand frequency of disbursement (i.e. monthly, stage payment, advancepayment,etc.), final payment, etc. It should also cover items of paymentsuch as for varied work or changes, diminution in value, prime cost sums,preliminaries, cost adjustments, provisional sums, contingent sums,retention sums etc. so long as these are expressly provided for under theconstruction contract in question.(emphasis added).[68]That, however, is not the end of the matter. Learned counsel for theappellant relied on s. 36 of CIPAA 2012 in contending that the intention ofParliament in enacting CIPAA 2012 is to adjudicate interim claim only.[69]Section 36 of CIPAA 2012 is in the following terms:Section 36 of CIPAA(1) Unless otherwise agreed by the parties, a party who has agreed to carryout construction work or provide construction consultancy services undera construction contract has the right to progress payment at a valuecalculated by reference to:(a) the contract price for the construction work or constructionconsultancy services;(b) any other rate specified in the construction contract;(c)any variation agreed to by the parties to the construction contractby which the contract price or any other rate specified in theconstruction contract is to be adjusted; and(d) the estimated reasonable cost of rectifying any defect or correctingany non-conformance or the diminution in the value of theconstruction work or construction consultancy services performed,whichever is more reasonable.(2) In the absence of any of the matters referred to in paragraphs (1)(a)
462[2019] 8 CLJABCDEFGHICurrent Law Journalto (d), reference shall be made to:(a) the fees prescribed by the relevant regulatory board under anywritten law; or(b)if there are no prescribed fees referred to in paragraph (a), the fairand reasonable prices or rates prevailing in the construction industryat the time of the carrying out of the construction work or theconstruction consultancy services.(3) The frequency of progress payment is:(a) monthly, for construction work and construction consultancyservices; and(b)upon the delivery of supply, for the supply of construction materials,equipment or workers in connection with a construction contract.(4) The due date for payment under subsection (3) is thirty calendar daysfrom the receipt of the invoice.(emphasis added).[70]In addressing the issue of the appellant’s reliance on s. 36 of CIPAA2012, the majority disagreed with the appellant’s contention and reasoned asfollows:[45] The reliance on the words ‘right to progress payment’ appearing insection 36 of CIPAA 2012, with respect, is misconceived and our reasonswere these. Section 36 is actually housed in Part VI of the Act which istitled ‘General” inferring expressly that the provisions are of a generalnature as opposed to a specific one. Further, section 36 is titled and relatesto ‘Default Provisions in the absence of Terms of Payment’. That sectionprimarily talks of what regime of payment mode is applicable when thereare no provisions in the construction contract. Hence, it can be said thatthe appearance of the phrase ‘right of progress payment’ in section 36 isof no significance in determining what kind of payment claims CIPAA2012 applies to which are specifically provided for in the form of sections2, 4 and 5. To impute that CIPAA 2012 applies only to interim paymentwould be breaking a golden rule of construction of statute in not lookingat the specific provisions in the context of the whole Act and referring toother provisions contained therein.[71]We agree with what was stated by the majority. In our view, s. 36 ofCIPAA 2012 is a fall-back section when there is no agreed contractualprovision as to payment or payment terms are inadequate or unworkable.With respect, relying on s. 36 of CIPAA 2012 alone in interpreting theintention of CIPAA 2012 will amount to a narrow interpretation and has nolegal basis.[72]In light of the above discussion, the appellant’s challenge on thejurisdiction of the adjudicator to adjudicate the matter is bereft of merit and,therefore, must fail.
463[2019] 8 CLJABCDEFGHIMartego Sdn Bhd v. Arkitek Meor &Chew Sdn Bhd & Another Appeal[73]On ground (c), the main plank of the learned counsel for theappellant’s submission is that the Architects Act 1967 (“AA”) and theArchitects Rules 1996 (“the Rules”) provide for a specific dispute resolutionmechanism vis-à-vis architect’s fees; the dispute is one which ought to havebeen arbitrated instead of adjudicated under CIPAA 2012.[74]Learned counsel for the appellant argued that the Rules make itmandatory for the professional architect and client to appoint an arbitratorwithin 124 days of receipt of a notice in writing informing the other partyof the matter in dispute, failing which the President of the Board of ArchitectMalaysia (BAM) shall appoint an arbitrator.[75]Learned counsel for the appellant further submitted that this courtought to have followed the decision of the Federal Court in Akitek TenggaraSdn Bhd (supra).According to him, the case is still good law.[76]We are not persuaded. We are fully in agreement with the learnedHigh Court Judge that there is nothing to stop CIPAA 2012 from applyingto the case at hand and there is no need to see adjudication and arbitrationto be mutually exclusive to each other. At pp. 615-616, R/R (vol. 6) of hisgrounds of judgment, the learned High Court Judge stated:[76] I agree that the dispute resolution mechanism under CIPAA is by wayof Adjudication and the statutory requirement for dispute resolutionunder the Architects Act is by way of Arbitration. I must also state thatthere is nothing strange in this difference as statutory Adjudication cameinto being only with the coming into force of CIPAA on 10 April 2014 andthat there is no need to see Adjudication and Arbitration to be mutuallyexclusive of each other as Adjudication would only yield a decision oftemporary finality and it is only with Arbitration or Litigation that onegets a final and binding decision. The whole scheme of statutoryAdjudication was never intended to be set in opposition to Arbitration orLitigation. Adjudication operates independently on a separate track andindeed a fast track and it will not run into collision with Arbitration orLitigation simply because its track is different. Before there wasAdjudication, there were already Arbitration and Litigation. After theintroduction of Adjudication, both Arbitration and Litigation will stillcontinue except that now there is an additional dispute resolutionmechanism of temporary finality that can be embarked upon before orconcurrently with Arbitration or Litigation as the case may be. Thus oneneed not have to choose in an “either or” approach between Adjudicationand Arbitration but one can proceed in a “both and” approach in resolvinga dispute on an architect’s claim against his client for his professional fees.Adjudication under CIPAA was never designed to be in conflict withArbitration and Litigation and so its process may be activated at any timewhere there is a valid payment claim under a construction contract.Premised on that proper perspective, the question of which would prevailover the other does not arise at all.
464[2019] 8 CLJABCDEFGHICurrent Law Journal[77]The High Court’s view was endorsed by the majority. The majoritystated:[48] In any event, an adjudication award is only of a ‘temporary finality’in nature against the main contractors and owners. CIPAA 2012 allowsparties to take their grievances to the High Court prior to the adjudicationprocess, concurrent with the adjudication application and even after theadjudication process notwithstanding the adjudication decision todetermine the very construction dispute before the adjudicator. Referenceto an arbitration tribunal is also available to the parties and the factualfindings of the adjudicator are not binding on either the High court orthe arbitration tribunal. This is specifically provided for in section 37 ofCIPAA 2012.[78]Further, s. 37 of CIPAA 2012 provides that an adjudicationproceeding, arbitration and court litigation may proceed concurrently and inparallel. It is also apparent that adjudication is a mandatory procedure underCIPAA 2012 and the right to statutory adjudication should not becircumvented by any contract where parties have agreed to arbitrate.Answer To Leave Questions[79]In light of what we have said thus far, our answers to the leavequestions posed are as follows:(i)the first question – In the affirmative;(ii)the second question – In the affirmative;(iii)the third question – In the negative; and(iv)the fourth question – Since our answer to question (iii) is in the negative,there is no necessity to answer this question.Conclusion[80]We have given anxious consideration to the submission advanced onbehalf of the appellant. We are, however, not persuaded that the High Courtand the majority had committed appealable error warranting appellateinterference. Accordingly, the appeals are dismissed with costs of RM25,000for each appeal to the respondent. Costs are subject to the payment ofallocator fees. The deposits to be refunded.[81]In the result, the decision of the High Court and the majority areaffirmed.[82]This judgment is prepared pursuant to s. 78(1) of the Courts ofJudicature Act 1964, as Justice Zainun Ali and Justice Balia Yusof HajiWahi had since retired.