CASE UPDATE: No Certificate? No Problem – CIPAA can Adjudicate Uncertified Progress / Interim Payment Claim

Bina Puri Construction Sdn Bhd v Hing Nyit Enterprise Sdn Bhd [2015] 8 CLJ 728

The High Court confirms that a CIPAA Claim can be based on uncertified progress / interim payment claim.

This is so even if the contract provides that payment is subjected to the certification of progress claim / interim payment claim.

Background Facts

In this case, the Subcontractor brought a CIPAA claim against the Main Contractor of the Project for the outstanding interim payment claim. The Adjudicator found in favour of the Subcontractor.

In response, the Main Contractor sought to set aside the CIPAA Adjudication Decision under Section 15 of CIPAA.

One of the grounds the Main Contractor raised was that the Conditions of Contract provides for a process of certification of interim payment claim. As the Subcontractor’s claim of outstanding interim payment claim is uncertified, the CIPAA Payment claim issued is premature.

Decision of High Court

The High Court confirmed that lack of certification of any progress/interim claim is NOT a bar to CIPAA Adjudication Proceeding.

The High Court reasoned that Section 25(m) of CIPAA empowers the Adjudicator to review and revise any certificate issued or to be issued. As such, even if the contract stipulates that payment is subject to the issuance of certified interim or progress claim, the absence of such certification will not preclude the Unpaid Party/Claimant from the CIPAA proceeding.

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