TANDEX CHEMICALS Sdn Bhd

On the court record

A company deploying Quia Timet and Fortuna injunctions and a section 16 CIPAA stay to resist an adjudication award and the associated winding-up demand, testing the limits of each.

Tandex Chemicals Sdn Bhd appears in the corpus in construction-payment litigation in which the recurring question is how a party against whom an adjudication award has been made can hold off enforcement and the winding-up pressure that follows it. It appears as defendant, respondent and applicant in the High Court.

The matters revolve around a single adjudication award and the injunctions and stays deployed around it. Having had an earlier application for a Quia Timet injunction dismissed, the company was involved in a Fortuna injunction concerning a statutory notice issued on the strength of the adjudication award, which raised whether the fresh application was an abuse of process barred by res judicata. The Quia Timet application had been directed at an enforcement order obtained under the Construction Industry Payment and Adjudication Act 2012 and at a statutory notice under section 466(1)(a) of the Companies Act 2016 — the winding-up demand that an unpaid adjudication creditor can deploy.

The company also engaged the statutory stay. In an application for a stay of the adjudication decision under section 16 of CIPAA, the court's approach was that the stay is discretionary, that the existence of parallel court proceedings is a threshold but not a determinative factor, and that an applicant must generally demonstrate a "clear and unequivocal error" to disturb the adjudicator's decision. Taken together, these matters trace the defensive repertoire available to a party resisting an adjudication award — the Quia Timet and Fortuna injunctions to head off a winding-up demand, and the section 16 stay to suspend enforcement — and the limits the courts place on each. The company's footprint is a compact illustration of the pressure that CIPAA's swift-payment regime brings to bear, and of the narrow grounds on which a paying party can resist before the merits are finally resolved.