Contract in writing requirement for statutory adjudication claim under CIPAA 2012

Abstract

Construction Industry Payment and Adjudication Act 2012 (CIPAA 2012) requires any construction contract brought for payment claim under CIPAA 2012 has to have a ‘contract made in writing.’ However, the definition of ‘contract made in writing’ is neither outlined in CIPAA 2012 nor in its subsidiary legislation. This ambiguity led to several number of court cases for setting aside the adjudication decision on the basis that there was no contract made in writing for adjudication to take effect. Therefore, the objective of this study is to identify the requirement to satisfy ‘contract made in writing’ provision under CIPAA 2012. This study was conducted as a legal research on five court cases in Malaysia related to ‘contract made in writing’ provision and CIPAA 2012. An analysis was also made on the only Singaporean case which relates to written contract and Singapore’s Building and Construction Industry Security of Payment Act 2004 (SOPA 2004) as a comparison. The study found that Malaysian adjudicators and court judges are still applying the same basis for validating privity of contract in other construction contract dispute to CIPAA 2012 related cases. Any type of documents that can prove the presence of all elements for formation of a contract were accepted by the court except for oral evidence and oral statement by witnesses. Consequently, a pure oral contract without any contemporaneous evidence in writing will never be accepted for adjudication under CIPAA 2012. This study also concluded that a formal written contract is not required to satisfy the contract made in writing requirement.