Masterplan Consulting SDN BHD v. Motorola SoAlutions Malaysia SDN BHD (2020) 1 LNS 219

[2020] 1 LNS 219 Legal Network Series
IN THE HIGH COURT OF MALAYA

AT KUALA LUMPUR
[ORIGINATING SUMMONS NO. WA-24C-150-09/2019]
BETWEEN
MASTERPLAN CONSULTING SDN BHD
… PLAINTIFF
AND
MOTOROLA SOLUTIONS MALAYSIA SDN BHD
… DEFENDANT
(HEARD TOGETHER WITH)

AT KUALA LUMPUR
ORIGINATING SUMMONS NO. WA-24C-187-09/2019
BETWEEN

… PLAINTIFF
AND
MASTERPLAN CONSULTING SDN BHD … DEFENDANT

AT KUALA LUMPUR
BETWEEN
MASTERPLAN CONSULTING SDN BHD … PLAINTIFF
1
AND

… DEFENDANT

AT KUALA LUMPUR
BETWEEN

… PLAINTIFF
AND

AT KUALA LUMPUR
BETWEEN
AND

… DEFENDANT
AT KUALA LUMPUR
2
BETWEEN

… PLAINTIFF
AND

AT KUALA LUMPUR
BETWEEN
AND

… DEFENDANT

AT KUALA LUMPUR
BETWEEN

… PLAINTIFF
AND
3

AT KUALA LUMPUR
BETWEEN
AND

… DEFENDANT
GROUNDS OF DECISION
Introduction
[1] These are cross applications to set aside adjudication decisions

as well as to enforce adjudication decisions made under the
Construction Industry Payment and Adjudication Act 2012
(“CIPAA”).
[2] The Plaintiff, Masterplan Consulting Sdn Bhd (“MC”) in

Originating Summons nos. WA-24C-150-09/2019, WA-24C-151-
09/2019, WA-24C-152-09/2019, WA-24C-153-09/2019 and WA-24C-
202-10/2019 (collectively “Setting Aside Originating Summons”) is a
private limited company involved in the telecommunication business.
[3] The Plaintiff, Motorola Solutions Malaysia Sdn Bhd (“MSM”) in

Originating Summons no. WA-24C-187-09/2019, WA-24C-183-
09/2019, WA-24C-185-09/2019 and WA-24C-184-09/2019
(collectively “Enforcement Originating Summons”) is a private
limited company also involved in the telecommunication business.
4
[4] Accordingly, MSM is the Defendant in the Setting Aside

Originating Summons and MC is the Defendant in the Enforcement
Originating Summons.
Background Facts
[5] MC has appointed MSM to provide comprehensive maintenance

services for various telecommunication works in East and West
Malaysia. There were separate written agreements (“Contracts”)
entered between them for 5 distinct telecommunication works
described as the CMSA Sarawak 2018, CMSA Peninsular 2018,
CMSA Sabah 2018, C4i 2018 and CMSA Sarawak 2019.
[6] MSM has pursuant to these Contracts provided services and

deliverables to MC. Disputes and differences subsequently arose
between them as the result of MC’s failure to pay MSM on its
invoices.
[7] As a result, MSM commenced five separate adjudication

proceedings against MC under the CIPAA.
[8] The adjudicator appointed by the Asian International Arbitration

Centre in each of these adjudication proceedings eventually gave
his/her adjudication decision in favour of MSM.
[9] Consequently, MC applied to the High Court to set aside the

adjudication decisions. MSM simultaneously also applied to the High
Court to enforce the adjudication decisions. These Setting Aside
Originating Summons as well as the Enforcement Originating
Summons are grouped as follows:
(i) CMSA Sarawak 2018 Works

Originating Summons no. WA-24C-150-09/2019 and Originating
Summons no. WA-24C-187-09/2019;
5
(ii) CMSA Peninsular 2018 Works

Originating Summons no. WA-24C-151-09/2019 only;
(iii) CMSA Sabah 2018 Works

Summons no. WA-24C-183-09/2019;
(iv) C4i Works

Summons no. WA-24C-185-09/2019; and
(v) CMSA Sarawak 2019 Works

Summons no. WA-24C-184-09/2019.
[10] The hearing of the Setting Aside Originating Summons and

Enforcement Originating Summons were all heard together by me on 3
February 2020. After having read the cause papers and hearing oral
argument of counsel. I thereafter dismissed all the Setting Aside
Originating Summons with costs of RM4,000.00 subject to 4%
allocator for each of them except for Originating Summons no. WA-
24C-151-09/2019 with costs of RM8,000.00 subject to 4 % allocator.
In addition, I allowed all the Enforcement Originating Summons with
costs of RM4,000.00 subject to 4% allocator for each of them.
[11] I now furnish below the grounds of my decision.
Contentions and Findings
[12] At the outset, both parties consented that if the Setting Aside
Originating Summons are dismissed, the Enforcement Originating
Summons would be allowed as a matter of course here.
6
[13] In the Setting Aside Originating Summons, Mr. Yap Chean

Hong of counsel for MC advanced a common submission that the
adjudicator had no jurisdiction because there is an arbitration
agreement in each every of the Contracts. Additionally, it is his
submission in all the Setting Aside Originating Summons save for
Originating Summons no. WA-24C-202-10/2019 that the adjudicator
had no jurisdiction also because there was no supporting document
appended to MSM’s adjudication notice served pursuant to s. 8(1) of
the CIPAA as well as that MSM failed to nominate an adjudicator for
pursuant to ss. 8(2) and 21 of the CIPAA read together.
[14] Mr Darshendev Singh of counsel of MSM principally retorted

that the submissions of MC are unsustainable on the interpretation of
the CIPAA besides also unsupported by case authority.
[15] The provision on setting aside an adjudication decision is set out

in s. 15 of the CIPAA as follows:
“15. Improperly procured adjudication decision
An aggrieved party may apply to the High Court to set aside an

adjudication decision on one or more of the following grounds:
(a) the adjudication decision was improperly procured

through fraud or bribery;
(b) there has been a denial of natural justice;
(c) the adjudicator has not acted independently or

impartially; or
(d) the adjudicator has acted in excess of his

jurisdiction.”
[16] According to MC, there is plainly an arbitration agreement in

the Contracts which reads as follows:
7
“Any dispute which cannot be settled amicably shall be

submitted to arbitration in accordance with the rules of
conciliation and arbitration of the Kuala Lumpur Regional
Centre of Arbitration/ Arbitration shall be commenced by either
Party serving upon the other Party a demand for arbitration.
The arbitration shall be held in Kuala Lumpur, Malaysia.”
Hence, MC contended following the Court of Appeal case Syarikat

Binaan Utara Jaya (a firm) v. Koperasi Serbaguna Sungai Glugor
Bhd [2009] 2 MLJ 546 that the court would not override the declared
intention of the parties that are unequivocally expressed and must
give effect to the plain meaning of the words no matter how
distasteful the result may be.
[17] I have read the aforementioned case carefully but do not find it
related to the issue of competing forum of dispute resolution either
between litigation and arbitration or between statutory adjudication
and arbitration.
[18] It is instead provided in s. 37 of the CIPAA as follows:
“37. Relationship between adjudication and other dispute

resolution process
(1) A dispute in respect of payment under a construction

contract may be referred concurrently to adjudication,
arbitration or the court.
(2) Subject to subsection (3), a reference to arbitration or the

court in respect of a dispute which is being adjudicated shall
not bring the adjudication proceedings to an end nor affect the
adjudication proceedings.
8
(3) An adjudication proceeding is terminated if the dispute

being adjudicated is settled by agreement in writing between the
parties or decided by arbitration or the court.”
This has already been made clear by Mohd Zawawi Salleh FCJ in the
Federal Court case of Martego Sdn Bhd v. Arkitek Meor & Chew Sdn
Bhd and Another Appeal [2019] 8 CLJ 433 as follows with emphasis
added by me:
“[76] We are not persuaded. We are fully in agreement with the

learned High Court Judge that there is nothing to stop CIPAA
2012 from applying to the case at hand and there is no need to
see adjudication and arbitration to be mutually exclusive to
each other. At pp. 615-616, R/R (vol. 6) of his grounds of
judgment, the learned High Court Judge stated:
[76] I agree that the dispute resolution mechanism under

CIPAA is by way of Adjudication and the statutory requirement
for dispute resolution under the Architects Act is by way of
Arbitration. I must also state that there is nothing strange in
this difference as statutory Adjudication came into being only
with the coming into force of CIPAA on 10 April 2014 and that
there is no need to see Adjudication and Arbitration to be
mutually exclusive of each other as Adjudication would only
yield a decision of temporary finality and it is only with
Arbitration or Litigation that one gets a final and binding
decision. The whole scheme of statutory Adjudication was never
intended to be set in opposition to Arbitration or Litigation.
Adjudication operates independently on a separate track and
indeed a fast track and it will not run into collision with
Arbitration or Litigation simply because its track is different.
Before there was Adjudication, there were already Arbitration
and Litigation. After the introduction of Adjudication, both
9
Arbitration and Litigation will still continue except that now

there is an additional dispute resolution mechanism of
temporary finality that can be embarked upon before or
concurrently with Arbitration or Litigation as the case may be.
Thus one need not have to choose in an “either or” approach
between Adjudication and Arbitration but one can proceed in a
“both and” approach in resolving a dispute on an architect’s
claim against his client for his professional fees. Adjudication
under CIPAA was never designed to be in conflict with
Arbitration and Litigation and so its process may be activated
at any time where there is a valid payment claim under a
construction contract. Premised on that proper perspective, the
question of which would prevail over the other does not arise
at all.
[77] The High Court’s view was endorsed by the majority. The
majority stated:
[48] In any event, an adjudication award is only of a

‘temporary finality’ in nature against the main contractors
and owners. CIPAA 2012 allows parties to take their
grievances to the High Court prior to the adjudication
process, concurrent with the adjudication application and
even after the adjudication process notwithstanding the
adjudication decision to determine the very construction
dispute before the adjudicator. Reference to an arbitration
tribunal is also available to the parties and the factual
findings of the adjudicator are not binding on either the
High court or the arbitration tribunal. This is specifically
provided for in section 37 of CIPAA 2012.
[78] Further, s. 37 of CIPAA 2012 provides that an

adjudication proceeding, arbitration and court litigation may
10
proceed concurrently and in parallel. It is also apparent that

adjudication is a mandatory procedure under CIPAA 2012 and
the right to statutory adjudication should not be circumvented
by any contract where parties have agreed to arbitrate.”
[19] Consequently, I find and hold this contention of MC is

unsustainable in limine and must necessarily fail.
[20] The next contention of MC is that MSM’s notice of adjudication

dated 11 March 2019 is defective because it is devoid of supporting
documents in breach of s. 8(1) of the CIPAA. However, no supporting
case authority is tendered by MC.
[21] It is provided as follows in s. 8 of the CIPAA:
“8. Initiation of adjudication
(1) A claimant may initiate adjudication proceedings by

serving a written notice of adjudication containing the nature
and description of the dispute and the remedy sought together
with any supporting document on the respondent.
(2) Upon receipt by the respondent of the notice of

adjudication, an adjudicator shall be appointed in the manner
described in section 21.
(3) A party to the adjudication proceedings may represent

himself or be represented by any representative appointed by the
party.”
[22] From my reading of s. 8(1) of the CIPAA, I find and hold that it
is permissive but not mandatory upon MSM to accompany the notice
of adjudication with any supporting document(s) particularly
documentary evidence supporting MSM’s claims. In this respect, it is
preferable that the payment claim made pursuant to s. 5 of the CIPAA
11
is provided as a supporting document principally for administrative

purposes of the AIAC such as identifying a suitable adjudicator in the
event a request is subsequently made to the AIAC to appoint when the
parties could not agree on a suitable person as adjudicator. Towards
this end, I find that MSM in fact annexed its payment claim with its
notice of adjudication.
[23] In the premises, I therefore find and hold that MC’s contention
that the notice of adjudication is defective is unmeritorious.
[24] Finally, MC contended that MSM had breached ss. 8(2) and 21
of the CIPAA read together by directly requesting the AIAC to
appoint an adjudicator without having prior attempted to agree with
MC on a suitable adjudicator. It is provided as follows in s. 21 of the
CIPAA:
“21. Appointment of adjudicator
An adjudicator may be appointed in the following manner:-
(a) by agreement of the parties in dispute within ten

working days from the service of the notice of
adjudication by the claimant; or
(b) by the Director of the KLRCA-
(i) upon the request of either party in dispute if

there is no agreement of the parties under
paragraph (a); or
(ii) upon the request of the parties in dispute.”
[25] Upon my reading of ss. 8(2) and 21 of the CIPAA, in particular

the latter, I find and hold that the appointment of the adjudicator is
not mandatorily a two tier process whereby a disputant party must
make a nomination of an adjudicator to the other disputant party for
12
its consent, failing which, then to be referred to the director of the

AIAC to appoint the adjudicator. It is plain in s. 21 (b)(i) of the
CIPAA that the aforesaid two tier process may be adopted, but
alternatively, a disputant party may make a direct request to the
director of the AIAC to appoint the adjudicator pursuant to s. 21(b)(ii)
of the CIPAA. The benefit of the former is to permit the disputant
parties to choose a suitable adjudicator particularly when the dispute
entails a specific issue of specialised technical complexity whilst the
latter permits an adjudicator to be appointed quickly to avoid the
hassle of the parties agreeing to an adjudicator.
[26] In One Amerin Residence Sdn Bhd v. Asain international

Arbitration Centre & Ors [2018] 1 LNS 2101, Nordin Hassan J hence
held as follows:
“[22] Based on established facts, there is no agreement by

parties to appoint an adjudicator within 10 working days from
the service of the notice of adjudication. As such the
appointment of the 2 nd respondent by the director of 1 st
respondent was legally made pursuant to subsection 21(b)(i) of
CIPAA 2012.
[23] The applicant’s contention that the 3 rd respondent is

obligated to nominate an adjudicator pursuant to subsection
22(1) is misplaced as subsection 21(b)(i) empowers the 1 st
respondent to appoint an adjudicator upon request of either
party if no agreement by parties on the said appointment.”
[27] Premised on the same, I therefore find and hold that MC’s
contention is again devoid of merit.
[28] Consequently, the Setting Aside originating Summons must

necessarily fail. As consented, by parties, the Enforcement
Originating Summons must be allowed. I am also satisfied that MSM
13
have upon my review of its applications met the principles on

enforcement of the adjudication decisions for the Court of Appeal
case of Inai Kiara Sdn Bhd v. Puteri Nusantara Sdn Bhd [2019] 2 CLJ
229.
Conclusion
[28] It is for the foregoing reasons that I made my orders as so

ordered.
Dated: 17 FEBRUARY 2020
(LIM CHONG FONG)

Judge
High Court Kuala Lumpur
COUNSEL:
For the plaintiff in the setting aside originating summons & defendant
in the enforcement originating summons - Yap Chean Hong; M/s -
Azmi & Associates
For the plaintiff in the enforcement originating summons & defendant

in the setting aside originating summons - Darshendev Singh Tasha
Lim Yi Chien; M/s - Lee Hishamuddin Allen & Gledhill
Legislation referred to:
Construction Industry Payment and Adjudication Act 2012, ss. 5,

8(1)(2), 15, 21, 37
14

Masterplan Consulting SDN BHD v. Motorola SoAlutions Malaysia SDN BHD (2020) 1 LNS 219

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Masterplan Consulting SDN BHD v. Motorola SoAlutions Malaysia SDN BHD (2020) 1 LNS 219

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[2020] 1 LNS 219 Legal Network Series

IN THE HIGH COURT OF MALAYA

(HEARD TOGETHER WITH)

MOTOROLA SOLUTIONS MALAYSIA SDN BHD

MASTERPLAN CONSULTING SDN BHD … DEFENDANT

MASTERPLAN CONSULTING SDN BHD … PLAINTIFF

MOTOROLA SOLUTIONS MALAYSIA SDN BHD

(HEARD TOGETHER WITH)

MOTOROLA SOLUTIONS MALAYSIA SDN BHD

MASTERPLAN CONSULTING SDN BHD … DEFENDANT

IN THE HIGH COURT OF MALAYA

MASTERPLAN CONSULTING SDN BHD … PLAINTIFF

MOTOROLA SOLUTIONS MALAYSIA SDN BHD

MOTOROLA SOLUTIONS MALAYSIA SDN BHD

MASTERPLAN CONSULTING SDN BHD … DEFENDANT

MASTERPLAN CONSULTING SDN BHD … PLAINTIFF

MOTOROLA SOLUTIONS MALAYSIA SDN BHD

(HEARD TOGETHER WITH)

MOTOROLA SOLUTIONS MALAYSIA SDN BHD

MASTERPLAN CONSULTING SDN BHD … DEFENDANT

IN THE HIGH COURT OF MALAYA

MASTERPLAN CONSULTING SDN BHD … PLAINTIFF

MOTOROLA SOLUTIONS MALAYSIA SDN BHD

[1] These are cross applications to set aside adjudication decisions

[2] The Plaintiff, Masterplan Consulting Sdn Bhd (“MC”) in

[3] The Plaintiff, Motorola Solutions Malaysia Sdn Bhd (“MSM”) in

[4] Accordingly, MSM is the Defendant in the Setting Aside

[5] MC has appointed MSM to provide comprehensive maintenance

[6] MSM has pursuant to these Contracts provided services and

[7] As a result, MSM commenced five separate adjudication

[8] The adjudicator appointed by the Asian International Arbitration

[9] Consequently, MC applied to the High Court to set aside the

(i) CMSA Sarawak 2018 Works

(ii) CMSA Peninsular 2018 Works

(iii) CMSA Sabah 2018 Works

(iv) C4i Works

(v) CMSA Sarawak 2019 Works

[10] The hearing of the Setting Aside Originating Summons and

[11] I now furnish below the grounds of my decision.

Contentions and Findings

[13] In the Setting Aside Originating Summons, Mr. Yap Chean

[14] Mr Darshendev Singh of counsel of MSM principally retorted

[15] The provision on setting aside an adjudication decision is set out

“15. Improperly procured adjudication decision

An aggrieved party may apply to the High Court to set aside an

(a) the adjudication decision was improperly procured

(b) there has been a denial of natural justice;

(c) the adjudicator has not acted independently or

(d) the adjudicator has acted in excess of his

[16] According to MC, there is plainly an arbitration agreement in

“Any dispute which cannot be settled amicably shall be

Hence, MC contended following the Court of Appeal case Syarikat

[18] It is instead provided in s. 37 of the CIPAA as follows:

“37. Relationship between adjudication and other dispute

(1) A dispute in respect of payment under a construction

(2) Subject to subsection (3), a reference to arbitration or the

(3) An adjudication proceeding is terminated if the dispute

“[76] We are not persuaded. We are fully in agreement with the

[76] I agree that the dispute resolution mechanism under

Arbitration and Litigation will still continue except that now

[48] In any event, an adjudication award is only of a

[78] Further, s. 37 of CIPAA 2012 provides that an