CASE UPDATE: “Loss and Expense” Claim is Allowed Under CIPAA

Syarikat Bina Darul Aman Berhad & Anor vs Government of Malaysia [2017] MLJU 2381

Previously, it is often thought that a ‘loss and expense’ claim arises out of the employer’s delay is not claimable under CIPAA as it is regarded as special damages.

In this case, the High Court clarified that an Unpaid Party / Claimant may claim for loss and expense arising from delays beyond its control in a CIPAA Adjudication Proceeding.  

Background Facts

In this case, the Contractor of a highway project commenced a CIPAA Claim against the Government.

Unordinarily, the Adjudicator dismissed the Contractor’s claim in toto.

In the Adjudication Decision, the Adjudicator dismissed the Contractor’s claim on “loss and expense” on the basis that a claim for “loss and expense” is outside the purview of CIPAA and he has no jurisdiction to adjudicate on the matter.

High Court Decision

The High Court set aside the Adjudication Decision on ‘loss and expense’ on the basis that the Adjudicator had wrongly refused to assume jurisdiction and there has been a breach of natural justice in not hearing the Claimant’s loss and expense claim.

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