Ingenieur Vol.72 ingenieur October 2017-FA3 | Page 75

By Jocelyn Lim Yean Tse, Partner, SKRINE Jocelyn Lim examines some significant local cases since the inception of statutory adjudication in Malaysia Her Ladyship’s decision, which was subsequently upheld by the Court of Appeal (unreported), gave retrospective effect to CIPAA. The Construction Industr y Payment and Adjudication Act 2012 (“CIPAA”) came into operation on April 15, 2014. Since then, the Malaysian courts have had the opportunity to consider various aspects of CIPAA on a number of occasions. This article examines some of the significant decisions that have been handed down by the courts in the past two and a half years and provides a ‘snippet’ on the legal principles laid down in these cases. This means that all payment disputes under any construction contract, other than those which fell within the statutory exceptions in sections 3, 40 and 41 of CIPAA, can be referred for adjudication under the Act regardless of when the construction contract was executed or when the payment disputes arose. CIPAA APPLIES RETROSPECTIVELY Government Construction Contract Similarly, there was much discussion as to what constitutes a “Government construction contract”, a term used but not defined in the Construction Industry Payment & Adjudication (Exemption) Order 2014 (“2014 Exemption Order”). Questions arose as to whether the expression encompasses construction contracts entered by statutory bodies and Government-linked companies; or is it to be limited to contracts entered into by the “Government”, as defined in section 4 of CIPAA. Prior to the coming into force of CIPAA, there was much discussion within the construction industry on the scope of its application. Questions as to whether CIPAA applies to construction contracts signed before its date of coming into force and whether payment disputes arising before the said date fall within the scope of CIPAA were foremost in the minds of industry players. On October 31, 2014, Malaysia’s first judicial pronouncement on matters involving CIPAA was made in UDA Holdings Berhad v Bisraya Construction Sdn Bhd & Anor & another case [2015] 11 MLJ 499. The High Court Judge Dato’ Mary Lim (as she then was) had the opportunity to deal with the above questions which centred on the issue of the retrospective application of CIPAA. EXPANSIVE vs RESTRICTIVE INTERPRETATION This question was dealt with in Mudajaya Corporation Bhd v Leighton Contractors (M) Sdn Bhd [2015] 5 CLJ 848, where the court held that for a construction contract to fall within the meaning of a “Government construction contract”, it must be one where the Government, be it the Federal or a State Government, is a party to it. 73 DEVELOPMENT OF STATUTORY ADJUDICATION IN MALAYSIA