The Construction Industry Payment and Adjudication Act 2012 (“CIPAA 2012”) intends to provide quick payment through adjudication. Notwithstanding of the aforementioned, a speedy relief must not be at the expense of fairness to parties.
Therefore, in the Federal Court case of View Esteem Sdn Bhd v. Bina Puri Holdings Sdn Bhd  5 CLJ 479;  1 LNS 1378 (“View Esteem”), it provides that an Adjudicator should not place an erroneous restriction in his own jurisdiction or risk causing a breach of natural justice.
This is echoed in the Court of Appeal case of Guangxi Dev & Cap Sdn Bhd v. Sycal Bhd & Another Appeal  1 CLJ 592, where the learned Adjudicator had established that there is no need for the expert witnesses to give evidence for reasons, inter alia, as follows:
- Taking regards to the time limitation for an Adjudicator to deliver their decision;
- Taking regard that the matter has already been referred to Arbitration, and there will be no prejudice where the said witnesses could be called in arbitration proceedings; and
- Taking into account that the defence was never raised in Payment Response and therefore, cannot be considered.
However, the Adjudicator’s reasoning was rejected in an appeal in the Court of Appeal due to the following reasons:
- Time limitation does not automatically preclude a request for an oral hearing. In the case of Martego Sdn Bhd v. Arkitek Meor & Chew Sdn Bhd & Another Case  1 CLJ 101, the request for an oral hearing was made six days before the due date for the delivery of the adjudication decision and the Adjudicator had made an order for parties to put in written submissions with the relevant documents.
- A speedy relief is counter-productive in the absence of a fair hearing. This is especially important as an Adjudication Decision cannot be reviewed on its merits and the finding of facts by an Adjudicator cannot be challenged. Thus, in such scenario, the Respondent must be permitted to show why it is entitled to withhold payment.
- The argument that a party is able to call up expert witnesses in an Arbitration is not a compelling argument as it forces the Respondent to pay out the Adjudicated Sum without having their arguments fully ventilated and decided upon.
- The Adjudicator may not refuse to consider defence on the basis that it was not raised in the Payment Response. The law as it stands as provided in the case of View Esteem provided that an Adjudicator is obligated to consider all defences raised by a Respondent in an Adjudication Response. Failure of the Adjudicator to do so will render that the Adjudicator has failed to properly perform the task in which the adjudicator is appointed to do and could be said to be in breach of natural justice.
Therefore, it is clear to see that an Applicant may not exploit the speedy mechanism that is provided for by CIPAA 2012. An Adjudicator is still bound to allow parties to ventilate their arguments and to properly present their case even where parties had referred the dispute to Arbitration.