Author: alternarlegal@gmail.com

It is widely thought that a ‘loss and expense’ claim arises out of the employer’s delay is not claimable under CIPAA as a “loss and expense” claim is often regarded as special damages and not a payment for work done or services rendered claimable under CIPAA. In this case, the Kuala Lumpur High Court of Malaya clarified that an Unpaid Party / Claimant may claim for loss and expense arising from delays beyond its control in a CIPAA Adjudication Proceeding.   Syarikat Bina Darul Aman Berhad & Anor vs Government of Malaysia [2017] MLJU 2381 | [2017] MLJU 673 | [2017] 1

A CIPAA Adjudication Decision is binding on the parties unless it is set aside pursuant to Section 13 of Construction Industry Payment and Adjudication Act 2012 (CIPAA), Under Section 15 of CIPAA, a CIPAA Adjudication Decision can be set aside if: (a) the adjudication decision was improperly procured through fraud or bribery; (b) there has been a denial of natural justice; (c) the adjudicator has not acted independently or impartially; or (d) the adjudicator has acted in excess of his jurisdiction. In this case, the Court held that not all allegation of breach / denial of natural natural justice can

Following the enforcement of Construction Industry Payment and Industry Act 2012 (CIPAA) on 15 April 2014, the Asian International Arbitration Centre (AIAC) had recorded that there 89.28% of success rate where the CIPAA Adjudication Decision is awarded in the Claimant’s favour. Understandably, given the high success rate of CIPAA proceeding against the Employer, the Employer would be wary of CIPAA claim against them and the following questions arise: Can the Employer expressly exclude the operation of CIPAA 2012 in a construction contract? Would a contractual provision which expressly rules out the applicability of CIPAA 2012 is enforceable? In this case,

Bina Puri Construction Sdn Bhd v Hing Nyit Enterprise Sdn Bhd [2015] 8 CLJ 728 It is a common scene in the construction industry that the contract provides that the contractor’s rights to payment is subjected to the issuance of interim payment certificate and/or valuation of progress claim / interim payment claim. Such provision can also be found in the standard building contract such as PAM Contract, PWD Contract and CIDB Contract. As such, when Construction Industry Payment and Adjudication Act 2012 (CIPAA 2012) first came into effect in 2014, one of the defence frequently raised by the Non-Payment Party