Sunway PMI-Pile Construction Sdn. Bhd. v. Tee Boon Kee [1998] 1 LNS 254, High Court (Kuala Lumpur).
Matters involving:
CIVIL PROCEDURE – application to set aside default judgment
Facts:
Enclosure 5 filed November 6, 1997, is an application by the defendant, Tee Boon Kee, trading as Pembinaan Pasti Makmur,
1. to set aside a judgment in default obtained on October 15, 1997, by the plaintiff, Sunway PMI-Pile Construction Sdn Bhd,
2. for leave to file a defence within 14 days from the date of this order,
3. and for costs to be in the cause.
The Defendant’s case.
The reasons given for the application in enclosure 5 are as follows:
1. That the writ of summons and the statement of claim was not served upon the defendant in accordance with the rules.
2. That the defendant has a defence on merits.
3. That the plaintiff’s action is premature since the value of works done has not been agreed upon and confirmed.
The Plaintiff’s reply.
On behalf of the plaintiff, one Er Tian Gin, the manager in charge of credit control with the plaintiff, said in his affidavit affirmed on November 20, 1997:
A. Service of Writ
1. That the first address is the address of the defendant registered with the Pejabat Pendaftaran Perniagaan (Exhibit ETG-1).
2. That service need not be made at the registered address only but may be served personally on the defendant.
3. The writ had been served on the defendant personally at the plaintiff’s office at Level 9, Menara Sungei Way, Jalan Lagun Timur, Bandar Sunway, 46150 Petaling Jaya, Selangor Darul Ehsan on October 3, 1997, at about 3.30 p.m.
4. That an application would be made to cross-examine the deponent of the supporting affidavit for the defendant to confirm that his testimony is not true and is without foundation.
5. That apart from receiving the covering letter (Exhibit TBK-1), the plaintiff has no knowledge of the filing of appearance.
6. That judgment in default was in fact obtained.
B. Defence on merits and that the plaintiff’s action is premature.
1. The plaintiff’s offer (Exhibit TBK-3), that progress payments, to be paid within 30 days and are subject to final measurement is not denied.
2. The plaintiff agreed that dealing with the main contractor was necessary.
3. However, the plaintiff had completed the supply and installation of piling and had invoiced the defendant by way of claims for progress payments No. 1, 2 and 3 (Exhibit TBK-2).
4. With regard to the issue of requirement for verification and certification before payment, the plaintiff asserts that there is, under the agreement, no requirement or condition that payment depends upon verification and certification by the defendant and/or the consultant architect as alleged by the defendant.
5. That non receipt of the first claim for progress payment does not affect the plaintiff’s claim since the amount is included in the subsequent claims for which the defendant had conceded he received.
6. Denying the argument that certification and verification were necessary, the plaintiff argues that by way of the letters exhibited at Exhibit ETG-3, the defendant had admitted its debt to the plaintiff.
7. As to retention, the plaintiff asserted that it is provided in clause 2.2 of the agreement.
8. The plaintiff maintained the defendant failed to pay on a debt of $299,500.60.
9. While pursuant to the letter dated March 19, 1997, the plaintiff could obtain payment directly from the main contractor, it did not absolve the defendant from its own obligations.
10. The plaintiff denied that the defendant has a defence on the merits.
The Cross-examination of the Defendant.
Pursuant to an application by summons in chambers in enclosure 8, the plaintiff applied to cross-examine the defendant on his affidavit dated November 4, 1997, in support of his application above in enclosure 5. He was cross-examined on March 16, 1998.
Findings: the question of service.
The real issue as to service however is whether the writ of summons was served on the defendant personally at the plaintiff’s office at Level 9, Menara Sungei Way, Jalan Lagun Timur, Bandar Sunway, 46150 Petaling Jaya, Selangor Darul Ehsan on October 3, 1997, at about 3.30 p.m. This was asserted by the general manager of the plaintiff company. The plaintiff’s assertion is corroborated by the evidence of the process server. The process server is not an employee of the plaintiff company but of a legal firm. The assertion of the defendant, on the other hand, is not corroborated. There is no affidavit by Randy Lam to support the defendant’s contention. Furthermore, the defendant’s version of service is also difficult to accept. Considering then the evidence as a whole, I would accept the plaintiff’s version, that the defendant had in fact been served with the writ of summons and statement of claim on October 3, 1997, at about 3.30 p.m. at the plaintiff’s office at Level 9, Menara Sungei Way, Jalan Lagun Timur, Bandar Sunway, 46150 Petaling Jaya, Selangor Darul Ehsan.
Held:
Having considered all of the evidence before me, I find that the plaintiff’s claim is plain and obvious and I see no reason to set aside the summary order previously obtained. In the circumstances, I hereby dismiss the application by the defendant with costs.
KUALA LUMPUR REGIONAL CENTRE FOR ARBITRATION
IN THE MATTER OF AN ADJUDICATION
FITNET SOLUTIONS SDN BHD v. STRENGTH ELECTRICAL (M) SDN BHD
Adjudication Decision on 19.10.2016
Jurisdictional Challenges:
3.1 The Claimant had raised a jurisdictional challenge in this proceedings. I had informed the parties that I shall deal with the jurisdictional challenge after I had completed the Hearing in order that the dispute can be resolved without any delay in line with the scheme of the CIP AA.
3.2 The Claimant pointed out that the Respondent in the Adjudication Response had raised its Defence and Counterclaim (see Part G paragraph 9.1 to 9.6 of the AR). This was not made in a payment response and accordingly, the Claimant states that the Respondent’s failure to raise the said Defence and Counterclaim in the same goes to the issue of jurisdiction.
3.3 The Claimant’s position was that the Adjudicator’s jurisdiction in relation to any dispute is limited to the matter referred to adjudication by the parties pursuant to the Payment Claim and the Payment Response and the fact that the Respondent did not issue a Payment Response to assert the said Defence and Counterclaim would effectively preclude the Adjudicator from considering the said Defence and Counterclaim in the Adjudication proceedings.
3.4 The Respondent had submitted that the Claimant’s contention against the jurisdiction of the Honourable Adjudicator to consider the matters raised in the Respondent’s Adjudication Response was misconceived and erroneous.
3.5 The Respondent submitted inter alia that based on various sections of CIPAA and various authorities that it was clear that the jurisdiction of the adjudicator in an adjudication is to hear and decide on the matters raised in the payment claim and the payment response. The Respondent pointed out that pursuant to Section 6(4) of the CIPAA, the non-service of a payment response results in the entire payment claim being disputed and that this meant that each and every allegation contained in the payment claim is disputed and would have to be specifically proven by the Claimant.
3.6 The Claimant in reply to the Respondent’s Submission on section 6(4) submitted inter alia that Section 6(4) of the CIPAA allows the Claimant to proceed on the basis that a dispute has crystallised and entitles him to refer the matter to adjudication. The Claimant stated that this was an important provision of the CIPAA because in the absence of a dispute there was no basis for commencing the adjudication proceedings. The Claimant further stated that the position laid down in section 6(4) of the CIPAA ensured that the Respondent may not frustrate the adjudication process by simply refusing to acknowledge or to respond to a payment claim.
3.7 I had now considered the submissions and the authorities given to me by the Parties at this point and had come to the conclusion the fact that the Respondent did not issue a Payment Response to assert its Counterclaim would effectively preclude me as the Adjudicator to consider the Respondent’s Counterclaim in this Adjudication proceedings.
3.8 I hold that the Claimant’s jurisdictional challenge is valid insofar as the Counterclaim was concerned and accordingly shall not be considering the Respondent’s Counterclaim in this Adjudication.
Determination
I have carefully considered the evidence and arguments submitted to me in this Adjudication proceeding. Based on the evidence and arguments, this is my adjudication decision.
I determine that:
a. The Respondent shall pay to the Claimant the sum of RM331,522-00. This is hereby recorded as the adjudicated sum.
b. The adjudicated sum shall be paid on or before 2/1112016 and shall henceforth be called as the Due Date for payment of the adjudicated sum.
c. The Respondent shall pay to the Claimant the sum of RM26,190-24 as adjudication costs for this Adjudication on or before the Due Date.
d. Pursuant to Subsection 25(0) of CIP AA, the Respondent shall pay to the Claimant interest on the adjudicated sum and the adjudication costs calculated at the rate of 5% per annum based on simple interest from the Due Date until full payment.
This decision is made on the 19th of October 2016 under the Construction Industry Payment Adjudication Act 2012.
Enclosure 5 filed November 6, 1997, is an application by the defendant, Tee Boon Kee, trading as Pembinaan Pasti Makmur,
1. to set aside a judgment in default obtained on October 15, 1997, by the plaintiff, Sunway PMI-Pile Construction Sdn Bhd,
2. for leave to file a defence within 14 days from the date of this order,
3. and for costs to be in the cause.
The Defendant’s case.
The reasons given for the application in enclosure 5 are as follows:
1. That the writ of summons and the statement of claim was not served upon the defendant in accordance with the rules.
2. That the defendant has a defence on merits.
3. That the plaintiff’s action is premature since the value of works done has not been agreed upon and confirmed.
The Plaintiff’s reply.
On behalf of the plaintiff, one Er Tian Gin, the manager in charge of credit control with the plaintiff, said in his affidavit affirmed on November 20, 1997:
A. Service of Writ
1. That the first address is the address of the defendant registered with the Pejabat Pendaftaran Perniagaan (Exhibit ETG-1).
2. That service need not be made at the registered address only but may be served personally on the defendant.
3. The writ had been served on the defendant personally at the plaintiff’s office at Level 9, Menara Sungei Way, Jalan Lagun Timur, Bandar Sunway, 46150 Petaling Jaya, Selangor Darul Ehsan on October 3, 1997, at about 3.30 p.m.
4. That an application would be made to cross-examine the deponent of the supporting affidavit for the defendant to confirm that his testimony is not true and is without foundation.
5. That apart from receiving the covering letter (Exhibit TBK-1), the plaintiff has no knowledge of the filing of appearance.
6. That judgment in default was in fact obtained.
B. Defence on merits and that the plaintiff’s action is premature.
1. The plaintiff’s offer (Exhibit TBK-3), that progress payments, to be paid within 30 days and are subject to final measurement is not denied.
2. The plaintiff agreed that dealing with the main contractor was necessary.
3. However, the plaintiff had completed the supply and installation of piling and had invoiced the defendant by way of claims for progress payments No. 1, 2 and 3 (Exhibit TBK-2).
4. With regard to the issue of requirement for verification and certification before payment, the plaintiff asserts that there is, under the agreement, no requirement or condition that payment depends upon verification and certification by the defendant and/or the consultant architect as alleged by the defendant.
5. That non receipt of the first claim for progress payment does not affect the plaintiff’s claim since the amount is included in the subsequent claims for which the defendant had conceded he received.
6. Denying the argument that certification and verification were necessary, the plaintiff argues that by way of the letters exhibited at Exhibit ETG-3, the defendant had admitted its debt to the plaintiff.
7. As to retention, the plaintiff asserted that it is provided in clause 2.2 of the agreement.
8. The plaintiff maintained the defendant failed to pay on a debt of $299,500.60.
9. While pursuant to the letter dated March 19, 1997, the plaintiff could obtain payment directly from the main contractor, it did not absolve the defendant from its own obligations.
10. The plaintiff denied that the defendant has a defence on the merits.
The Cross-examination of the Defendant.
Pursuant to an application by summons in chambers in enclosure 8, the plaintiff applied to cross-examine the defendant on his affidavit dated November 4, 1997, in support of his application above in enclosure 5. He was cross-examined on March 16, 1998.
Findings: the question of service.
The real issue as to service however is whether the writ of summons was served on the defendant personally at the plaintiff’s office at Level 9, Menara Sungei Way, Jalan Lagun Timur, Bandar Sunway, 46150 Petaling Jaya, Selangor Darul Ehsan on October 3, 1997, at about 3.30 p.m. This was asserted by the general manager of the plaintiff company. The plaintiff’s assertion is corroborated by the evidence of the process server. The process server is not an employee of the plaintiff company but of a legal firm. The assertion of the defendant, on the other hand, is not corroborated. There is no affidavit by Randy Lam to support the defendant’s contention. Furthermore, the defendant’s version of service is also difficult to accept. Considering then the evidence as a whole, I would accept the plaintiff’s version, that the defendant had in fact been served with the writ of summons and statement of claim on October 3, 1997, at about 3.30 p.m. at the plaintiff’s office at Level 9, Menara Sungei Way, Jalan Lagun Timur, Bandar Sunway, 46150 Petaling Jaya, Selangor Darul Ehsan.
Held:
Having considered all of the evidence before me, I find that the plaintiff’s claim is plain and obvious and I see no reason to set aside the summary order previously obtained. In the circumstances, I hereby dismiss the application by the defendant with costs.
KUALA LUMPUR REGIONAL CENTRE FOR ARBITRATION
IN THE MATTER OF AN ADJUDICATION
FITNET SOLUTIONS SDN BHD v. STRENGTH ELECTRICAL (M) SDN BHD
Adjudication Decision on 19.10.2016
Jurisdictional Challenges:
3.1 The Claimant had raised a jurisdictional challenge in this proceedings. I had informed the parties that I shall deal with the jurisdictional challenge after I had completed the Hearing in order that the dispute can be resolved without any delay in line with the scheme of the CIP AA.
3.2 The Claimant pointed out that the Respondent in the Adjudication Response had raised its Defence and Counterclaim (see Part G paragraph 9.1 to 9.6 of the AR). This was not made in a payment response and accordingly, the Claimant states that the Respondent’s failure to raise the said Defence and Counterclaim in the same goes to the issue of jurisdiction.
3.3 The Claimant’s position was that the Adjudicator’s jurisdiction in relation to any dispute is limited to the matter referred to adjudication by the parties pursuant to the Payment Claim and the Payment Response and the fact that the Respondent did not issue a Payment Response to assert the said Defence and Counterclaim would effectively preclude the Adjudicator from considering the said Defence and Counterclaim in the Adjudication proceedings.
3.4 The Respondent had submitted that the Claimant’s contention against the jurisdiction of the Honourable Adjudicator to consider the matters raised in the Respondent’s Adjudication Response was misconceived and erroneous.
3.5 The Respondent submitted inter alia that based on various sections of CIPAA and various authorities that it was clear that the jurisdiction of the adjudicator in an adjudication is to hear and decide on the matters raised in the payment claim and the payment response. The Respondent pointed out that pursuant to Section 6(4) of the CIPAA, the non-service of a payment response results in the entire payment claim being disputed and that this meant that each and every allegation contained in the payment claim is disputed and would have to be specifically proven by the Claimant.
3.6 The Claimant in reply to the Respondent’s Submission on section 6(4) submitted inter alia that Section 6(4) of the CIPAA allows the Claimant to proceed on the basis that a dispute has crystallised and entitles him to refer the matter to adjudication. The Claimant stated that this was an important provision of the CIPAA because in the absence of a dispute there was no basis for commencing the adjudication proceedings. The Claimant further stated that the position laid down in section 6(4) of the CIPAA ensured that the Respondent may not frustrate the adjudication process by simply refusing to acknowledge or to respond to a payment claim.
3.7 I had now considered the submissions and the authorities given to me by the Parties at this point and had come to the conclusion the fact that the Respondent did not issue a Payment Response to assert its Counterclaim would effectively preclude me as the Adjudicator to consider the Respondent’s Counterclaim in this Adjudication proceedings.
3.8 I hold that the Claimant’s jurisdictional challenge is valid insofar as the Counterclaim was concerned and accordingly shall not be considering the Respondent’s Counterclaim in this Adjudication.
Determination
I have carefully considered the evidence and arguments submitted to me in this Adjudication proceeding. Based on the evidence and arguments, this is my adjudication decision.
I determine that:
a. The Respondent shall pay to the Claimant the sum of RM331,522-00. This is hereby recorded as the adjudicated sum.
b. The adjudicated sum shall be paid on or before 2/1112016 and shall henceforth be called as the Due Date for payment of the adjudicated sum.
c. The Respondent shall pay to the Claimant the sum of RM26,190-24 as adjudication costs for this Adjudication on or before the Due Date.
d. Pursuant to Subsection 25(0) of CIP AA, the Respondent shall pay to the Claimant interest on the adjudicated sum and the adjudication costs calculated at the rate of 5% per annum based on simple interest from the Due Date until full payment.
This decision is made on the 19th of October 2016 under the Construction Industry Payment Adjudication Act 2012.