1. ) Siemens Mobility Sdn Bhd 2. ) Siemens Mobility GmbH 3. ) Rasma Corporation Sdn Bhd v Setia Utama LRT 3 Sdn Bhd

Case Significance

Illustrates the dependent relationship between enforcement of an adjudication decision under section 28 of the Construction Industry Payment and Adjudication Act 2012 and a challenge under section 15: where the decision is set aside for excess of jurisdiction, the enforcement application must fail with it.

This decision of the Construction Court within the High Court in Kuala Lumpur concerns an application to enforce an adjudication decision as a judgment of the court under section 28 of the Construction Industry Payment and Adjudication Act 2012, heard together with the paying party's application to set the same decision aside. The adjudication decision, made under the Act's statutory adjudication regime, had been given in favour of a consortium of contractors against the paying party under a construction contract. The consortium, having obtained the decision, applied to enforce it so that it could be executed as if it were a judgment — the ordinary route by which a successful claimant gives an adjudication decision practical effect. Enforcement under section 28, however, presupposes a valid and subsisting adjudication decision. The court dealt first with the paying party's application to set the decision aside under section 15 of the Act, and concluded that the adjudicator had acted in excess of her jurisdiction, so that the decision fell to be set aside. Once the adjudication decision had been set aside, there was nothing left to enforce: the very foundation of the enforcement application had been removed. The court accordingly dismissed the enforcement application, with nominal costs, awarding no more than a nominal sum because the application had effectively been overtaken by the setting-aside of the underlying decision rather than by any fault in the way it was brought. The judgment illustrates the dependent relationship between an application to enforce an adjudication decision under section 28 and a challenge to that decision under section 15: enforcement gives effect to a subsisting decision, so that where the decision is set aside for excess of jurisdiction, the enforcement application must fail with it, and the enforcing party cannot obtain by way of section 28 what section 15 has taken away.