JCW

[CIPAA- jurisdiction of Adjudicator – claim filed different from interim claims without being rectified first] Alvin was the counsel for the Respondent. This case involves the question of law whether the Adjudicator exceeded his jurisdiction for having adjudicated on Mersing’s payment claim which included rectified claims i.e. amount of claim in the interim claim had been amended unilaterally by Mersing without re-submitting the rectified claim to Puncak Niaga for rectification/certification before the payment claim is served on Puncak Niaga pursuant to CIPAA 2012. The Court of Appeal dismissed the Appeal and inter-alia held that:- [60] For the reasons stated above, we are impelled to the view that the rectified Claims which were part of the Payment Claim are not new claims. Indeed, Puncak Niaga does not even contend that the Rectified Claims are new claims. They are plainly and patently part of previous monthly claims which Puncak Niaga chose not to verify and certify. These are in any event, interim claims, and are by definition, “not final”. Hence, they are capable of adjustment, refinement and pruning. [61] We agree that a Payment Claim which consists of a premature claim or a in futuro claim is not one which complies with ss.4 and 5 CIPAA. But that is not the case here. The fact that Mersing did not re-submit the Rectified Claims through the route of clause 8.1 LOA is not an impediment to the impugned items being submitted as part of the Payment Claim because the claims are in fact, for work done under a Construction Contract and the claims had already been submitted previously to Puncak Niaga and all that has happened is that these same claims have been “refined” or “pruned” by way of discarding erroneous amounts before being submitted as a Payment Claim. [62] Indeed, instead of refining or pruning the amounts, Mersing could well have chosen to leave the original amounts pertaining to the impugned items intact and not make any refinement or pruning prior to the submission of the Payment Claim. What would have then happened is that during the Adjudication Proceedings, Mersing could have dropped or abandoned that part of the impugned items which they concede as being erroneous. If they could do it during the Adjudication Proceedings, we see no reason why the refinement or pruning cannot be done earlier and be made as part of the Payment Claim. [63] Further, the Adjudication had the requisite statutory power to determine the correctness of the amounts which are due and payable after taking intoaccount the Adjudication Response and submission of the parties in the Adjudication Proceedings. [64] Thus, at first blush, Puncak Niaga’s objection appeared to be attractive and worthy of consideration. However, upon further reflection especially in light of the principles enunciated by the cases referred to earlier, we are of the view that a mere refinement or pruning of a claim under a construction contract which had been previously submitted to the employer, and being then included as part of the Payment Claim, does not constitute a new claim, or pre-mature claim, or in future claim, such that it affects the Adjudicator’s jurisdiction. In the result, we find that Puncak Niaga’s objection vis-à-vis the Rectified Claims is highly technical and tactical, to say the least. We find no merits in the stand that was taken by Puncak Niaga