The service of notices and documents under CIPAA are to be effected by one out of the four modes of service as set out in Section 38 CIPAA [1]. Consequently, Section 38(c) CIPAA provides for the notice or document to be served “by registered post”. The question that arises is when would the notice / document be deemed to have been served?

This is significant, particularly since CIPAA provides for a stringent timeline within which the adjudication papers are to be served, irrespective of the locality of the sender and receiver:

The AIAC, last month, by its CIPAA Circular No.11 dated 1.4.2022, clarified that where service of a notice / document is effected by registered post, the rebuttable presumption is that the delivery is deemed effected; “when such notice and / or documents would have been delivered in its ordinary course”.

In its ordinary course” is dependent on the locality and distance between the sender and receiver. The onus is on the sender to ensure that a sufficient period of time is allocated within the timelines under CIPAA to effect service by registered post.

For example, the High Court in Ruhimin Adzim @ Ruhimin BinAjim v Tan Sri Bernard Dompok & Ors[2] [2005] 1 MLJ 345 observed, based on the evidence produced in the proceedings, a document delivered by registered post from Kota Kinabalu to Putrajaya would be deemed to have been “delivered in its ordinary course” 4 working days after the date of posting.

As an analogy, a Kota Kinabalu based Claimant would only have 1 working day to prepare and post its Adjudication Reply to a Respondent based in Putrajaya.

As such, considering the risks that may arise from the service of notice / documents by registered post, it is advisable for the parties to:

1. agree, pursuant    to    Section    38(d)    CIPAA, on          an instantaneous mode of service such as email; and / or
2. where possible, effect delivery by personal service pursuant to Section 38(a) and (b) CIPAA.

As it may not always be the case that delivery of notices / documents can be practically effected by personal service, or that parties can agree on an instantaneous mode of service, it may be worthwhile for amendments to be introduced to Section 38 of CIPAA to include other instantaneous modes of service such as email, courier etc.

If you have any queries, please contact associate, Kok Hao Ying (khy@lh-ag.com) or team partner, Darshendev Singh (ds@lh- ag.com).

REFERENCES:

1         Construction Industry Payment and Adjudication Act 2012, s38

2        Ruhimin Adzim @ Ruhimin Bin Ajim v Tan Sri Bernard Dompok & Ors (2005) 1 MLJ 345