A & S Enterprises Limited v Kema Holdings Limited [2004] Adj.L.R. 07/27

A & S Enterprises Limited v Kema Holdings Limited [2004] Adj.L.R. 07/27

The decision of the adjudicator in this case was not enforced by way of summary judgment because it was found that there was a real possibility of bias on the part of the adjudicator.

The key issue before the court related to comments by the adjudicator in his decision in relation to the evidence of a Mr Overend. Mr Overend had not attended a meeting called by the adjudicator or made himself available for interview. In his decision, the adjudicator had said that Mr Overend played a crucial role in the events leading to the dispute. The adjudicator said that Mr Overend’s failure to take part in the meeting was was very unhelpful and that he therefore viewed the responding party’s submissions and the arguments that they had put forward in this light.

The difficulty for the adjudicator was that he had not previously made it clear to either of the parties that he felt it important for him to hear orally from Mr Overend. If the adjudicator had formed this conclusion during the meeting with the parties he ought to have given the responding party an opportunity to make Mr Overend available for oral questioning. Without making clear that he would be influenced to a significant degree by whether he had or had not heard from Mr Overend, when there was no suggestion prior to the meeting with the parties that that was an all-important matter, the adjudicator failed to comply with the requirements of natural justice.

 A & S Enterprises Limited v Kema Holdings Limited [2004] Adj.L.R. 07-27

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One response to “A & S Enterprises Limited v Kema Holdings Limited [2004] Adj.L.R. 07/27

  1. Pingback: International Judgments – Malaysian Construction and Contract Law | Malaysian Construction and Contract Law

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