Informational Circular: Judgment of the Federal Court in the case of View Esteem Sdn Bhd v. Bina Puri Holdings Bhd. (Civil Appeal No.: 02(f) – 11 – 02/2017(W)).
13 Nov 2017
The KLRCA would like to bring to the attention of parties, adjudicators and stakeholders that the Hon’ble Federal Court of Malaysia has delivered a decision in the case of of View Esteem Sdn. Bhd. v. Bina Puri Holdings Bhd. (Civil Appeal No.: 02(f) – 11 – 02/2017(W)).
Adjudicators, parties and stakeholders are advised to be updated on the findings of the Federal Court and be guided accordingly in the adjudication proceedings.
Of pertinence are the following parts of the decision handed down by the Hon’ble Federal Court which are pertinent to the practice of adjudication:
- The failure of the non-paying party to file a payment response does not prevent him from submitting any defence available to him by way of an Adjudication Response. Similarly, the non-paying party is not restricted to the defences raised in his Payment Response filed pursuant to Section 6(2) of CIPAA. Failure by the Adjudicator in taking into account and considering all the defences available to the non-paying party which have been raised in the Adjudication Response would amount to a breach of the rules of natural justice, and be liable to be set aside.
- On the ambit of the Saving Provision under Section 41 of CIPAA, the Federal Court held that it would be sufficient to establish a right of exclusion under Section 41 of CIPAA if the paying party can demonstrate that the subject payment dispute had arisen prior to the Act coming into force and a claim in respect thereof had previously been commenced in court or arbitration. A payment dispute will be excluded from CIPAA under Section 41 if it forms part of a claim, or is cumulative of an earlier claim which had been referred to arbitration or court prior to the Act coming into force.
We attach herewith a copy of the decision of the Hon’ble Federal Court for your perusal: https://www.klrca.org/uploads/imguploadckc6fab8763e7adc2ba48efaca59a4411a.VE.
All stakeholders are advised to read the said decision and be guided in future proceedings accordingly.