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Ignorance is Not Bliss: A case on enforcement and setting aside of an Adjudication Decision

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Lawyers involved from ZRP: T. Kuhendran, Suhanthi Sivanesan & Kevin Nathan

This case involved 2 Originating Summons (‘OS’), namely an enforcement and setting aside applications of an adjudication decision dated 24.8.2018 (‘Adjudication Decision’). The learned adjudicator determined in the Adjudication Decision that, inter alia, TTDI KL Metropolis Sdn Bhd (‘TTDI’) was to pay Daewoo Engineering & Construction Co Ltd the sum of RM46,411,391.81. We represented TTDI in the said enforcement and setting aside applications.

The main brunt of TTDI’s complaint in the setting aside application was that the learned adjudicator had wrongly ignored and completely disregarded the defence of set-off raised by TTDI in both the payment response and the adjudication response.

TTDI took the position in the setting aside application that the learned adjudicator had proceeded on the erroneous premise that the learned adjudicator has no jurisdiction to hear the set-off on the matters raised in the payment response and the adjudication response.

The High Court decided, inter alia, that the learned adjudicator’s premise was completely erroneous and it is an error that goes to jurisdiction and was a flagrant violation of the rules of natural justice that is material enough to set aside the Adjudication Decision.

Hence, TTDI’s application to set aside the Adjudication Decision was allowed with costs of RM5,000.00. The enforcement application by Daewoo was dismissed.