Ingenieur Vol.72 ingenieur October 2017-FA3 | Page 78

INGENIEUR certificate has been issued” and to “review and revise any certificate issued or to be issued” respectively simply means that even if the contractual agreement between the parties provides for issuance of a certified interim or progress claim, the absence of certification cannot deprive the unpaid party from availing the adjudication process. unilateral communication of the adjudicator was found to be a material breach of natural justice. It is important that any communication must be made known to the parties to the adjudication so as to allow the parties a chance to respond. The adjudicator’s duty to make known to the parties his communication to the other party is perhaps to ensure impartiality of the adjudicator by giving parties a fair opportunity to present their cases. SETTING ASIDE OF ADJUDICATION DECISION The refusal to conduct oral hearing however does not necessarily amount to a breach of natural justice. It was held in Martego that an adjudicator is entitled to decide on the mode of hearing even if this is by way of documents and submissions only without the need to call witness. Section 15 of CIPAA provides limited grounds on which an adjudication decision may be set aside, namely: (a) The adjudication decision was improperly procured through fraud or bribery; (b) There has been a denial of natural justice; (c) T he adju di c ato r h a s no t ac te d independently or impartially; or (d) The adjudicator has acted in excess of his jurisdiction. The adjudication decision in Bina Puri was challenged on grounds of breach of natural justice and excess of jurisdiction. The Court held that the criticism of the adjudication decision by the applicant must “clearly point to a breach of natural justice or a jurisdictional error in the adjudication process.” In ACFM Engineering & Construction Sdn Bhd v Esstar Vision Sdn Bhd & Another Case [2015] 1 LNS 756, the Court found support and assistance in the principles set out in Balfour Beatty Engineering Services (HY) Ltd v Shepherd Construction Ltd [2009] EWHC 2218. Essentially, not any breach will allow for a setting aside of the adjudication decision. The breach must be “either decisive or of considerable potential importance to the outcome and not peripheral or irrelevant”; it must be a material breach which significantly affects the decision. In WRP Asia Pacific Sdn Bhd v NS Bluescope Lysaght Malaysia Sdn Bhd [2016] 1 AMR 379, the 6 76 VOL - SEPTEMBER 2017 VOL 71 55 JULY JUNE 2013 STAY OF ADJUDICATION DECISION The principles for an application for the stay of an adjudication decision were considered in detail in Subang Skypark Sdn Bhd v Arcradius Sdn Bhd [2015] 11 MLJ 818 (“Subang Skypark”). After considering a number of cases from other jurisdictions, it was held that the test for a stay to be granted under section 16 of CIPAA is whether there are “exceptional circumstances” and such circumstances must necessarily refer to the financial status of the other party. Cogent or credible evidence must be presented to show the probable inability of repayment of the adjudicated sum that may follow from concurrent court or arbitration proceedings. According to the learned Judge, the merits of the case before the arbitration or the court and the chances of success in setting aside the adjudication decision are not relevant considerations. The Court in Subang Skypark emphasised that the grant of any stay must also be weighed against the primary object of CIPAA, which is to ensure speedy resolution of payment disputes and to inject much needed cashflow into the contractual arrangements between the parties. At all times, the Court retains the discretion as to whether or not to grant a stay.