HOCK SENG TRADING & CONSTRUCTION v HONGLER ENTERPRISE SDN BHD

Case Significance

Illustrates that a CIPAA adjudication conducted against a body with no legal status is void ab initio, that the jurisdictional defect may be raised at any stage in enforcement or setting-aside proceedings, and that consent or waiver cannot cure it.

This Court of Appeal decision concerns the validity of an adjudication under the Construction Industry Payment and Adjudication Act 2012 (CIPAA) where the respondent to the adjudication was not a legal entity, and was heard together with a related appeal arising from the same adjudication. One party had commenced High Court proceedings to enforce the adjudication decision under section 28 of CIPAA, while the other sought to set it aside under section 15, and the appeals raised whether the respondent — a business carried on by a sole proprietor — had been properly named in the adjudication and the court proceedings, whether an action could be maintained against a body with no legal status, and whether the adjudicator was clothed with jurisdiction so that the adjudication was valid. The Court held that a defect going to jurisdiction is a live issue that can be raised at any stage, including at the High Court, whether to enforce or to set aside an adjudication decision, and that the parties' participation in the adjudication could not confer on the adjudicator a jurisdiction he did not otherwise possess — consent or waiver cannot cure an absence of jurisdiction. Because the adjudication had proceeded against a body without legal status, the Court considered it void ab initio, and held that even if the pleading defects in the originating summonses could have been corrected, that would not regularise an adjudication that was a nullity from the outset. Finding no merit in either appeal, the Court dismissed both and affirmed the decisions of the High Court, ordering each party to bear its own costs. The judgment illustrates that a jurisdictional defect in naming a non-legal entity as respondent renders a CIPAA adjudication void, and that such a defect may be raised at any stage and cannot be cured by consent.