CIPAA IN CONSTRUCTION

DISPUTE RESOLUTION
CONSTRUCTION INDUSTRY PAYMENT & ADJUDICATION ACT 2012
2 November 2018, Pacific Sutera Harbour Resort, Kota Kinabalu

KEYNOTE ADDRESS WHO SHOULD ATTEND

YAA Datuk David Wong Dak Wah Developers, Contractors, Project
The Chief Judge Sabah & Sarawak Consultants, Claims Consultant, Public
Authorities involved in development
and engineering, Advocates &
Solicitors and Pupils-in-Chambers.

The construction industry has traditionally looked to arbitration as an alternative to court resolution of its disputes. For some time,
it was the speed and flexibility of arbitrations that gave it the edge. As construction strove for efficiency, the need for even more
expeditious mechanisms to resolve disputes and to free up cash flow for people on the ground became more acute. Statutory
adjudication under the Construction Industry Payment and Adjudication Act 2012 (CIPAA) came to the fore.

It has been four years since CIPAA came into force. This conference looks at the way in which statutory adjudication has altered the
landscape of construction dispute resolution. The discussions in this conference cannot be timelier, given the landmark decisions
by the Malaysian courts in 2017 and 2018, including the Federal Court’s in View Esteem Sdn Bhd v Bina Puri Holdings Bhd [2017] 1
LNS 1378 and the Court of Appeal’s in Bauer (Malaysia) Sdn Bhd v Jack-in-Pile (M) Sdn Bhd & Anor Appeal [2018] 1 LNS 427, both
of which have each set on foot a wave of other decisions which sparked much debate. Where do we now stand? How do the courts
look at decisions handed down from statutory adjudications – are the beneficiaries of these adjudication decisions assured of timely
payment? Is CIPAA retrospective in its application? What now is the position of pay-when-paid clauses in pre-existing arms-length
contracts? Have adjudications spawned more arbitrations?

These are but some of the current issues that will be discussed at this seminar by eminent Judges well known in the arena of
construction dispute resolution, and experienced industry persons who will share insights and their practical experiences in several
key areas of construction dispute resolution.

Jointly
organised by :

LEGAL PLUS SDN BHD

Suite 33-01, 33rd Floor ,Menara Keck Seng,
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 C O N F E R E N C E F R I D AY
02 NOV 2018
P R O G R A M M E
8.30 am Registration

9.00 am WELCOME ADDRESS

early bird rate before/on By YBhg Tan Sri James Foong

25 OCT 2018
www.legalplus.com.my
Retired Judge of the Federal Court, Malaysia
and Director of Legal Plus Sdn Bhd

9.05 am KEYNOTE ADDRESS :

YAA Datuk David Wong Dak Wah
The Chief Judge of Sabah & Sarawak

Chairman of Session :
Mr Roger Chin, Vice President, Sabah Law Society

09.45 am The Adjudication of Construction Disputes –

Common Challenges Observed
From the perspective of the Construction Court

YA Dato' Lee Swee Seng

Judge, High Court, Malaya
10.45 am Coffee Break

11.15 am The Year That Was – Key CIPAA Decisions in 2018

2018 saw several landmark decisions shaping statutory adjudication
in Malaysia. We look at where these decisions leave us.
■■ the enforceability of pay-when-paid provisions;
■■ the extent to which a non-paying party can assert a set off for
delay damages.
Mr Foo Joon Liang
Advocate & Certified Adjudicator (AIAC)

12.15 pm Giving Effective Expert Evidence in Construction Dispute

Resolution – The Dos and Don’ts from of an Expert
YBhg Datuk Ar. Ho Jia Lit
Principal of Arkitek Summaz, Sabah

1.15 pm Lunch

2.15 pm Four Years On – Has CIPAA Met The Purpose Of Its Enactment?
We hear from YA Dato Lim Chong Fong who was instrumental in the
enactment of CIPAA.
YA Dato Lim Chong Fong
Judge, High Court, Malaya

3.15 pm CIPAA in Construction Dispute Resolution –

What do the stakeholders say?
A panel discussion by several stakeholders in construction disputes
on the benefits and shortcomings of CIPAA.

YA Tuan Hakim Ravinthran Paramaguru, Judge, High Court Sabah

& Sarawak
Mr Brenndon Soh, President of the Sabah Law Society
Ar. David Cheah Ming Yew, Principal of DCDA Architect
Ar. Anthony Lee Tee, Group COO, Bina Puri
Ms Grace Chaw, Advocate & Certified Adjudicator (AIAC)

Moderator
YA Dato’ Mary Lim
Judge, Court of Appeal, Malaysia

5.00 pm Closing remarks by

YBhg Tan Sri James Foong
Retired Judge of the Federal Court, Malaysia
and Director of Legal Plus Sdn Bhd
5.10 pm Networking Tea

Emcee : Ms Daphne Wong, Advocate & Solicitor, High Court, Sabah

 List of Speakers www.legalplus.com.my

Justice Datuk David Wong Dak Wah Justice Dato' Lee Swee Seng
The Chief Judge of Sabah and Sarawak Judge
High Court, Malaya

Justice Datuk David Wong Dak Wah read law at Justice Dato’ Lee Swee Seng graduated
University of New South Wales, Sydney, Australia. He with Bachelor of Laws (Hons) degree from University
also obtained a B.Com (majoring in accountancy) from of Malaya and obtained his Master of Laws from the
the same University. From 1978 to 1979 Datuk David same university. He also holds an MBA degree from
was attached to a Public Accounting Firm in Sydney as a University of Southern Cross, Australia. Justice Dato'
qualified auditor. In 1979 he was admitted as a Barrister Lee was called to the Malayan Bar in February 1985 and
of the New South Wales Supreme Court in Australia. was in active legal practice until May 2010 when he was
appointed a Judicial Commissioner of the High Court
In 1980, Datuk David was admitted to the Sabah Bar of Malaya.
and he practiced as an Advocate and Solicitor in Sabah
until 1992. In 1992, Datuk David practiced in Sydney He was made a Judge of the High Court of Malaya in
until 1996. In 1997 he returned to Sabah and practised 2014 and is currently the Judge of the Construction
until 2005. Datuk David was appointed a Judicial Court in Kuala Lumpur. He has presented numerous
Commissioner of the High Court of Sabah and Sarawak papers and spoken at seminars and conferences on
in Kuching on 29 August 2005 and elevated as a Judge corporate and securities law, intellectual property,
of the High Court of Sabah and Sarawak with effect franchise and competition law, mediation, contractual
from 11 April 2007. disputes and many other topics. He was also a visiting
fellow of Taylor University Law School and a part-time
On 15 January 2009 Datuk David was transferred to the lecturer with UM Law Faculty for the LLM Masters
High Court of Kota Kinabalu, Sabah until his elevation Programme.
to the Court of Appeal Malaysia on 8 January 2013.
Justice Dato' Lee is a trained advocacy trainer with the
He was appointed as Judge of the Federal Court on 27 Malaysian Bar and has conducted numerous courses
April 2018 and Chief Judge of Sabah & Sarawak on 11 on this subject.
July 2018.

Justice Ravinthran Paramaguru

Judge
Justice Dato' Mary Lim High Court, Sabah & Sarwak
Judge
Court of Appeal, Malaysia

Justice Ravinthran Paramaguru

graduated with Bachelor of Laws (Hons) degree
Justice Dato’ Mary Lim read law at the from the University of Malaya in 1986. He read in the
University of Leeds. She was called to the English Bar by chambers of Sutherson &. Co in Penang from April
the Honorable Society of Lincoln’s Inn. of 1986 until September of 1986 when he joined the
Judicial and Legal Service as a Magistrate in Penang.
She obtained a Master of Laws degree from the He was transferred to Kota Kinabalu in June of 1990.
University of Western Australia. Dato’ Mary Lim served Since then he served as Magistrate, Deputy Registrar
various positions in the Attorney General’s Chambers and Sessions Court Judge in Kota Kinabalu, Tawau
until her elevation to the High Court Bench where she and Kuching until he was appointed as a Judicial
was the first Judge of the Construction Court in Kuala Commissioner in January of 2009.
Lumpur. Dato’ Mary Lim is a qualified advocacy trainer
with the Malaysian Bar Council and has conducted He was appointed as a Judge of High Court in Sabah
numerous courses on this subject. She has also delivered and Sarawak in January of 2013. He is currently based
many public lectures of various topics associated with in the Kuching High Court.
the law both nationally and internationally. Justice
Dato’ Mary Lim was elevated as Judge, Court of Appeal
on 21 March 2016.

She recently taught at the Advanced Advocacy Course

at Keble College Oxford.
 List of Speakers www.legalplus.com.my

YA Dato' Lim Chong Fong Datuk Ar. Ho Jia Lit

Judge Principal
High Court, Malaya Arkitek Summaz, Sabah

Yang Arif Dato’ Lim Chong Fong is a Penangite born in Datuk Ar. Ho Jia Lit graduated with a Bachelor of
1962. He studied at the Wellesley Primary School and Architecture (Hons) from Deakin University, Australia. He
the Penang Free School. He is a Pengakap Raja. He is co-founder of Arkitek Summaz which was nominated
graduated with a Bachelor degree in Building from the for the 1995 Aga Khan Award for Architecture for The
National University of Singapore and a Bachelor degree Sabah Parks Administration and Research Centre at
in Laws from the University of London. Kinabalu Parks [an earthquake resistant building] and
Distinction Award for Mount Kinabalu Golf Course
He is also a Chartered Arbitrator, Chartered Builder, Complex and Clubhouse at Kundasang in the BHP-
Chartered Quantity Surveyor and Barrister at Law. He PAM Colorbond Award 1994. Ar. Ho has extensive
has worked as QS in the construction industry and experiences in Nature and Eco-Tourism related works
practiced as construction lawyer and arbitrator from surrounding islands and the jungles of Sabah, under
1985 to 2013. He was ranked as a leading lawyer the Sabah Wildlife Department, Sabah Parks and the
in construction dispute resolution by Chambers & Sabah Forestry Department. Ar. Ho designed and
Partners, Asialaw Profiles and The International Who’s supervised the construction of the [200 acres] Lok Kawi
Who of Construction Lawyers. He has undertaken Wildlife Park in Kota Kinabalu.
research on security of construction payment as a
Fulbright scholar at the William S. Richardson School of Ar. Ho was PAM Sabah Chapter’s drafting school
Law in Hawaii, USA and subsequently appointed by the Principal and Lecturer. He provided workshop lectures
Construction Industry Development Board Malaysia to on Building Construction and Technology to applicants
formulate the draft Construction Industry Payment and for the Real Estate Agents Licensing Registration Board.
Adjudication bill. In 2010, he graduated with a Master He was the past Chairman of [PAM] Sabah Chapter for
of Laws degree from the University of Malaya through [2009-2010]. Presently he is a member of Lembaga
the submission of his dissertation entitled “Malaysian Arkitek Malaysia [LAM] Practice Committee [2009-2018]
Construction Industry Payment - Strategies for Reform”. and was a Council member of [PAM] KL for [2009-2010].
He was a committee member in the Dewan Bandaraya
He was Honorary Advisor (Contracts) of the Master Kota Kinabalu [DBKK] High Risk Development Technical
Builders Association Malaysia and was appointed by Committee and “Traffic Technical Sub-Committee”
the Minister of Works in 2013 as a member of the Expert as PAM’s representative from 2009- 2010. Ar. Ho is
Panel to review the Malaysian construction industry currently a Member of the Central Board [Lembaga
practices following the construction accident at the Pusat Perancang Bandar Dan Desa] appointed by the
Penang Second Bridge Project. State Government via the Ministry of Local Government
and Housing.
YA Dato’ Lim has been appointed as Judicial
Commissioner of the High Court of Malaya on 15 Ar. Ho was called as expert witness in the High Court
January 2014 and confirmed as Judge of the High at Kota Kinabalu to give expert interpretation on
Court of Malaya on 30 January 2017. He is presently approved development plans and building plans under
serving at the Kuala Lumpur High Court (Intellectual sale and purchase agreements vis-à-vis as-built plans.
Property Court) after having served at the Shah Alam Ar Ho’s expert opinion affected developers’ liability
and Penang High Courts. He is a trained mediator by under the agreements and its remedies available to
the AIAC and has also served as the Advisor of the the purchasers. He was also appointed to give expert
Mediation Centre of the Penang Courts. opinion on what constitutes architectural consultancy
services and the conditions of engagements of
architects which was accepted by the civil courts. In
one of the High Court cases, David Wong Dak Wah
(as he then was) found Ar. Ho, the expert witness, “to
be sufficiently experienced and qualified and [his]
evidence to be credible”.
 List of Speakers www.legalplus.com.my

Mr Foo Joon Liang Ar. David Cheah

Advocate & Certified Adjudicator (AIAC) Principal
Co-Founder, Gan Partnership DCDA Architect

Foo Joon Liang was called to the Ar. David Cheah is an Architect, Urban
Malaysian Bar in 2000 and has had extensive Planner, Adjudicator and Chartered Arbitrator. He is
involvement in dispute resolution and advisory work. currently practising as an architect and town planner
He has advised a wide range of clients including the involved in a wide variety of architectural and urban
state government, Ministry of Works, developers and planning work ranging from commercial, residential
contractors, government-linked companies, financial and retail projects. Other than being appointed as
institutions and securities and foreign and local arbitrator and adjudicator in construction arbitrations,
broking houses across a broad spectrum of litigation he has also been involved in expert witness work for
matters in Court and in arbitration, with his main arbitration/litigation. Apart from his experience in
focus being construction, insurance and securities dispute resolution, he has also advised contractors and
transaction disputes. He is also involved in advisory employers on aspects of the design and construction
work, and regularly appears as counsel at all levels of of building projects and professional negligence for
the Malaysian courts, in arbitration and adjudication. contracts.

Joon Liang is a Fellow of the Chartered Institute He has a degree in Architecture, Master’s degree in
of Arbitrators, United Kingdom, and is currently a Urban Planning, Master’s degree in Construction Law
director of the Malaysian Chapter of the Chartered and Arbitration, taught jointly by the National University
Institute of Arbitrators, United Kingdom. He also sits of Singapore (NUS) and King’s College, University of
on the panel of arbitrators of the Asian International London and a Diploma in Arbitration from CEM, UK. He
Arbitration Centre (AIAC) and is certified by the AIAC was also the past president of the Chartered Institute
as an adjudicator. Apart from appearing as counsel of Arbitrators, Malaysia Branch. David is a ‘Chartered
in arbitration and adjudication, Joon Liang also sits Arbitrator’ listed on the panel of Chartered Arbitrators
as adjudicator and as arbitrator in both construction CIArb (UK) and on the AIAC panel of Adjudicators.
and non-construction related disputes. Joon Liang’s
recent matters include his involvement as counsel in David has also seen and experienced the impact CIPAA
an ongoing series of litigation involving the highly has had on the practices of consultants.
publicised collapse of a pedestrian bridge in a major
development in the Klang Valley, and appearing as
counsel in the Commission of Inquiry initiated by the
State of Penang on the devastating collapse of a hill-
slope in Tanjung Bungah. He has also acted in several
disputes arising from construction projects and power
plants in both East and West Malaysia, including the
disputes on the development of the Port Klang Free
Zone, the construction of the landmark Putrajaya
Mosque as well as a large consolidated development
in Penampang. Joon Liang also acted in View Esteem
Sdn Bhd v Bina Puri Holdings Bhd [2017] 1 LNS 1378,
the first decision to have been delivered by the Federal
Court on CIPAA.

Joon Liang authored the Malaysian chapters on

“Arbitration” and “Dispute Resolution” for the
international publication of “Getting the Deal Through”
over several years until 2015.

IN CONSTRUCTION
DISPUTE RESOLUTION
CONSTRUCTION INDUSTRY PAYMENT & ADJUDICATION ACT 2012
 List of Speakers www.legalplus.com.my

Ms Grace Chaw Hei Hei Ar. Anthony Lee Tee

Advocate & Certified Adjudicator (AIAC) Group Chief Operating Officer and Transformation Officer
Grace Chaw & Co Bina Puri Holdings Berhad

Grace Chaw Hei Hei graduated from Ar. Anthony Lee Tee has been a
Monash University, Australia and is a practising Registered Practising Architect since 1995, and
lawyer and the principal of Grace Chaw & Co., a firm continues to practice as an Accredited Architect,
of advocates and solicitors based in Kota Kinabalu, Independent Building Inspector and Forensics Building
Sabah. Grace Chaw specialises in civil litigation and Inspector, Certified Trainer. He is a director of the
dispute resolution with a specific focus on contractual, Architect Centre Sdn Bhd. He has 30 years’ experience
construction and land disputes. She is committed to in project coordination and in bridging communication
civil litigation through trial practice and appellate with foreign-based client, consultants and with
advocacy in the Malaysian civil courts. Japanese, Korean, Malaysian, Australian, India and
Chinese contractors/sub-contractors. He is involved in
She is empanelled as Adjudicator under Asian projects in Thailand, Brunei, Sabah and Sarawak.
International Arbitration Centre (AIAC) to conduct
statutory adjudication under Construction Industry Anthony’s experience has seen him being appointed
Payment & Adjudication Act 2012. She regularly acts as an expert witness in numerous dispute resolution
as counsel for claimants to resolve construction related matters in and outside Malaysia, including in
payment disputes by way of statutory adjudication. She international arbitrations.
advocates the use of statutory adjudication as a novel
alternative dispute resolution procedure to obtain a Anthony has now taken on the position as the Group
swift interim decision on payment disputes. Chief Operating Officer and Transformation Officer
of Bina Puri Holdings Berhad. He oversees the entire
She represents construction industry players including operations for the Bina Puri Group of Companies,
landowners, developers, contractors, consultants particularly its property and construction businesses.
as well as other commercial and private entities In this position, Anthony sees the impact of disputes
as Advocate in trial and appellate courts covering on an industry player and appreciates the importance
contractual, construction and tortious disputes of a competent and efficient dispute resolution
involving landowners, unpaid interim or progress process. Having been on the side of a claimant as well
claims for work done, non-compliance, differing site as a respondent in a number of dispute resolution
conditions, liquidated damages for delay, obligations processes including CIPAA adjudications, Anthony has
under defect liability period, joint venture disputes experienced the benefits and disadvantages of dispute
and other legal issues arising from administering resolution processes first-hand.
of construction contracts, contract claims errors or
omissions.

IN CONSTRUCTION
DISPUTE RESOLUTION
CONSTRUCTION INDUSTRY PAYMENT & ADJUDICATION ACT 2012

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 IN CONSTRUCTION
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 IN CONSTRUCTION
DISPUTE RESOLUTION
CONSTRUCTION INDUSTRY PAYMENT & ADJUDICATION ACT 2012

2 November 2018 | Pacific Sutera Harbour Resort Kota Kinabalu

Jointly
organised by :

The Honourable Society Sabah

of Lincoln’s Inn Alumni Law Society
Association, Malaysia

Legal Plus Sdn Bhd

Registered Office : Suite 33-01, 33rd Floor, Menara Keck Seng, 203, Jalan Bukit Bintang, 55100 Kuala Lumpur
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