Tag: Unpaid Party

Construction Industry Payment and Adjudication Act 2012
("CIPAA")

Tag: Unpaid Party

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Received a CIPAA Payment Claim? What should you do?

What should you really do if you receive a CIPAA Payment Claim, alleging that there is outstanding payment being due and payable? What should you do under the circumstance if you wish to challenge the claim?

This article explores the steps ought to be taken by a Non-Paying Party upon the receipt of a CIPAA Payment Claim (Form 5).

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CIPAA 101 | Construction Industry Payment and Adjudication Act 2012

Defending Against a CIPAA Claim

Given the high success rate of a CIPAA claim against the non-paying parties / Respondent, it naturally places enormous pressure and stress on the Respondent upon the receipt of a CIPAA claim.

In this article, we set out to explain the defences a Respondent may put up to defeat a CIPAA claim.

There are 3 types of defences a Respondent may raise: 1. Substantive Challenge 2. Technical Objection 3. Counterclaim / Set-Off

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CIPAA Consulting News & Update Background

CASE UPDATE: Recommencement of CIPAA Proceeding if the Adjudication Decision is Set Aside

Wong Huat Construction Co v Ireka Engineering & Construction Sdn Bhd [2018] 7 MLJ 659

If an Adjudication Decision is successfully set aside pursuant to Section 15 of CIPAA, all parties will be restored to their original positions as though the earlier Adjudication did not take place.

As a result, the Unpaid Party / Claimant is entitled to re-commence a fresh CIPAA Proceeding instead of arbitrating / litigating the matter.

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CIPAA Consulting News & Update Background

CASE UPDATE: An Aggrieved Claimant in CIPAA Proceeding may Set Aside an Adjudication Decision

Syarikat Bina Darul Aman Bhd & Anor v Government of Malaysia [2017] MLJU 2381

It is previously thought that when the Claimant’s claim is dismissed by the Adjudicator, the Claimant can only proceed to commence arbitration / court litigation to recover the payment, which often time could be more expensive and time-consuming.

In this case, the High Court held that in a case where the Claimant is successful only in part of its claim or the whole claim is dismissed, the Claimant may apply to set aside the Adjudication Decision under Section 15 of CIPAA.

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CIPAA Consulting News & Update Background

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.  

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CIPAA Consulting News & Update Background

CASE UPDATE: Non-Paying Party can only ‘zerorize’ claim and will not have a positive claim against Unpaid Party

Tenaga Poly Sdn Bhd v Crest Builder Sdn Bhd  Originating Summons No. WA-24C-44-06/2016
Any set-off, deduction or counterclaim introduced by the Non-Paying Party (such as LAD, rectification costs advance payment) can only operate to ‘zerorise’ the Unpaid Party’s claim.

The Unpaid Party would NOT be made to pay the Non-Paying Party in the CIPAA Proceeding even if the set-off, deduction or counterclaim is greater than the CIPAA Payment Claim amount.

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