TTDI KL METROPOLIS Sdn Bhd

On the court record

A developer litigating CIPAA adjudication and Fortuna-injunction insolvency questions, an unconscionability challenge to a performance-bond call under section 11 of the Arbitration Act 2005, and the scope of COVID-19 statutory relief over its sale and purchase agreements.

TTDI KL Metropolis Sdn Bhd is a developer, and it appears in the corpus in construction-payment, insolvency and performance-bond litigation, together with a question about the reach of the COVID-19 relief legislation over its sale and purchase agreements. It appears as respondent and applicant in the High Court.

Construction-payment adjudication is central. In one matter concerning applications under sections 15, 16 and 28 of the Construction Industry Payment and Adjudication Act 2012 to set aside, stay and enforce an adjudication decision, the key issue was whether the adjudicator had exceeded his jurisdiction under section 15(d) by deciding the dispute on the basis of the Letter of Award rather than an alleged superseding agreement. The insolvency dimension appeared in a company-law matter on a Fortuna injunction, raising whether an adjudicated debt under CIPAA remains disputable, and whether a Fortuna injunction may be granted after the presentation and advertisement of a winding-up petition, where the adjudication decision was itself pending setting aside and there were cross-claims in arbitration.

The performance-bond and COVID-19 strands complete the picture. In one matter the court considered whether an employer's call on a performance bond was unconscionable conduct under section 11 of the Arbitration Act 2005, whether strong prima facie evidence of unconscionability had been established, and whether contractual disputes equated to unconscionability. In another, the court held that section 38C of the COVID-19 Act did not apply to a sale and purchase agreement dated in November 2021 by virtue of section 38C(4), and that a ministry approval, to the extent it purported to grant relief to agreements executed after a specified 2021 date, was ultra vires. The company's footprint maps the pressures on a developer whose project generates adjudicated claims, winding-up demands, bond calls and disputes about the scope of pandemic-era statutory relief. The recurring posture is that of a developer whose stalled or disputed project is attacked simultaneously through adjudicated payment claims, insolvency pressure and calls on security, each of which it must resist on its own statutory footing.