1. ) PUNG TIONG GEE 2. ) PUNG TIONG CHENG v FORTUNE FACADE TREATMENT SDN BHD

Case Significance

Illustrates the dependence of section 28 enforcement on the validity of the adjudication decision under CIPAA: while enforcement ordinarily follows an unimpeached decision almost automatically, a decision set aside for a breach of natural justice cannot be enforced, so a successful section 15 challenge defeats the parallel enforcement application.

This High Court decision, sitting in the Construction Division at Kuala Lumpur, concerns an application to enforce an adjudication decision under the Construction Industry Payment and Adjudication Act 2012 (CIPAA) that failed because the underlying decision was set aside. The applicants — a partnership trading in aluminium works who had succeeded in a statutory adjudication — applied under section 28 of CIPAA to enforce the adjudication decision as if it were a judgment of the High Court. Their enforcement summons was heard together with the paying party's application under section 15 to set the same decision aside. Section 28 provides a summary means of turning an adjudication decision into an enforceable order, but it presupposes a valid, subsisting decision; enforcement cannot proceed where the decision it depends on has been set aside. In the companion proceedings the court found that the adjudication had been conducted in breach of natural justice — the paying party had not been allowed to refile its adjudication response and the adjudicator had not considered its defence of res judicata — and set the adjudication decision aside. With the foundation for enforcement removed, the court dismissed the applicants' enforcement summons with costs. Delivered by Nadzarin Wok Nordin J, the judgment is a useful illustration of the dependence of section 28 enforcement on the validity of the adjudication decision: while enforcement ordinarily follows an unimpeached decision almost as a matter of course, a claimant cannot enforce a decision that has been set aside for a breach of natural justice, so that the success of a section 15 challenge necessarily defeats the parallel enforcement application. The decision shows the two CIPAA mechanisms operating as complementary halves of a single question — whether a valid, enforceable decision exists — and it illustrates that a claimant who has obtained an adjudication decision tainted by a breach of natural justice gains nothing from a section 28 application, because the very defect that voids the decision also removes the basis for enforcing it, leaving the claimant to pursue its underlying payment claim by other means.