Adjudication award – Winding-up petition – Registration of adjudication decision before filing of winding-up petition –Whether winding-up notice premature – Construction Industry Payment and Adjudication Act 2012, section 28 and 31 – Companies Act 2016, section 465

Likas Bay Precint Sdn Bhd v Bina Puri Sdn Bhd
Civil Appeal No S-02(NCVC) (A)-1361-07/2017, Court of Appeal
see the grounds of judgment here

Facts The respondent, Bina Puri Sdn Bhd obtained an Adjudication Award against the Appellant, Likas Bay Sdn Bhd in the matter of an adjudication conducted in pursuant to the then Kuala Lumpur Regional Centre for Arbitrations Rules[1] (‘KLRCA Rules’) and Construction Industry Payment and Adjudication Act 2012 (‘CIPAA 2012’). The respondent served a Statutory Notice of Demand to the appellant for failure to satisfy the said Adjudication Sum. Consequently, the respondent presented a winding up petition to the appellant on the ground that the appellant was unable to pay its debt and that it was just and equitable that the appellant be wound up. The High Court granted the winding up order as applied by the respondent. Hence, this appeal.

Issue Whether the winding-up notice by the respondent had been premature in that the adjudication decision had not been registered with the High Court which would convert it to a High Court order pursuant to section 28
[2] of CIPAA.

Held The Court of Appeal dismissed the appeal and stated that there was no doubt that the respondent was a creditor to whom the appellant had been adjudicated to have owed monies to and that there was no application by the appellant to set aside the said adjudication decision. Therefore it was held that the winding-up petition was not premature as there was no requirement for a successful litigant in an adjudication proceeding to register the adjudication decision under section 28 of CIPAA for the purpose of filing a notice to wind up under section 465
[3] of the Companies Act 2016.

[1] Now the AIAC Arbitration Rules 2018
[2] Enforcement of adjudication decision as judgment
[3] Circumstances in which company may be wound up by Court