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Zul Rafique & Partners succeeds at the Court of Appeal in reversing a High Court decision and setting aside an Adjudication decision for excess of jurisdiction arising from a premature Notice of Adjudication

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9 September 2021

Please click HERE for the Mandarin version of the case update.

T Kuhendran, Daniel Lau and Jasmeet Kaur from Zul Rafique & Partners’ Construction Dispute Resolution Practice Group, representing Sime Darby Property (Bukit Raja) Sdn Bhd (“Appellant”), succeeded in the Court of Appeal in appealing against and reversing the decision of the High Court in Sime Darby Property (Bukit Raja) Sdn Bhd v. Alaf Pentawaris Sdn Bhd [2020] MLJU 1554.

Alaf Pentawaris (“Respondent”) had initiated adjudication proceedings pursuant to the Construction Industry Payment and Adjudication Act 2012 (“CIPAA 2012”) by way of a notice of adjudication that was served on the 9th working day from the date of service of its payment claim and prior to the expiry of 10 working days for a payment response to be served as required under section 7(2) of CIPAA 2012.

The Appellant challenged the jurisdiction of the adjudicator in the adjudication proceedings as well as the High Court, in addition to contending breach of natural justice in the adjudication decision rendering the same liable to be set aside under section 15 of CIPAA 2012 in the High Court. The High Court had dismissed Sime Darby’s application to set aside the adjudication decision by finding that the filing of the notice of adjudication was within time and there was no breach of natural justice.

At the Court of Appeal, the High Court’s calculation of time was found to be in error and the notice of adjudication was served prematurely. Key to this finding was section 54(1)(a) of the Interpretation Acts 1948 and 1967 which provides that in “computing time for the purpose of any written law, a period of days from the happening of an event or the doing of any act or thing shall be deemed to be exclusive of the day on which the event happens or the act or thing is done.” The Court of Appeal found that in reckoning the 10 working days’ period to file the notice of adjudication, the date on which the payment claim is served is to be excluded.

In deciding in this manner, the Court of Appeal effectively affirms the criticality of time in adjudication proceedings pursuant to CIPAA 2012, any non-compliance and failure to act in accord with the time periods could be fatal to an adjudication decision, as seen earlier in the case of Ideal City Development Sdn Bhd v. PWC Bina Sdn Bhd and other appeals [2019] 2 CLJ 615 which dealt with a premature payment claim.

For more insight into this area of law, please contact our Partners in the Construction Dispute Resolution Practice Group:
Kuhendran Thanapalasingam
Susan Tan Shu Shuen

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