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Justice Datuk Lee Swee Seng, who chaired a three-member panel, said Dhaya Maju LTAT Sdn Bhd has satisfied the threshold test that it was adversely affected by the decision made by the government in exercising its public function. — Reuters pic
Justice Datuk Lee Swee Seng, who chaired a three-member panel, said Dhaya Maju LTAT Sdn Bhd has satisfied the threshold test that it was adversely affected by the decision made by the government in exercising its public function. — Reuters pic

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PUTRAJAYA, July 16 — The Court of Appeal here today dismissed the government’s appeal against a High Court’s decision in allowing the contractor for the Klang Valley Double Tracking Phrase 2 (KVDT2) project to proceed with its judicial review to challenge the decision on the termination of its contract.

Justice Datuk Lee Swee Seng, who chaired a three-member panel, said Dhaya Maju LTAT Sdn Bhd has satisfied the threshold test that it was adversely affected by the decision made by the government in exercising its public function.

The panel, also comprising Justices S. Nantha Balan and Datuk Indera Mohd Sofian Abd Razak, unanimously dismissed the appeal by the government, as well as the Transport Minister and the Attorney-General’s Chambers (AGC) with costs of RM15,000 each.

In his decision, Justice Lee said ordinarily, the termination of a construction contract is a private law matter, but in this case, there is a public element as the reason for the termination was on grounds of national interest, security and public interest.

“And that reason for termination is amenable to judicial review as it is infused with the public law element,” he said.

Justice Lee also said that the court did not see any good reasons to interfere with the exercise of discretion by the High Court judge in granting a stay on the government’s decision to call for a public tender pending the hearing of Dhaya Maju LTAT’s judicial review application.

He said the Government Proceedings Act and the Specific Relief Act, in any event and based on binding authorities, do not prohibit the granting of a stay, which is interim in nature, pending the hearing of the judicial review application on its merits.

On April 14 this year, Kuala Lumpur High Court judge Datuk Noorin Badaruddin granted leave to Dhaya Maju LTAT to commence a judicial review to seek for a certiorari order to quash the government’s decision to cancel the project.

The High Court judge also allowed a stay on the government’s decision to call for a public tender pending the disposal of the judicial review application.

In the judicial review application filed in September 2020, Dhaya Maju LTAT named the government and the Transport Minister as defendants.

The company is seeking a declaration that the government’s decision to cancel the KVDT2 project, which was awarded on Aug 19, 2019, and to subsequently reopen the tender for the project, are invalid, null and void.

Dhaya Maju LTAT also wants a certiorari order to quash the government’s decision to cancel the project and a mandamus order compelling the government to execute all documents and agreements.

In today’s appeal proceedings conducted online, senior federal counsel Ahmad Hanir Hambaly @ Arwi appeared for the government, the Transport Minister and the AGC, while lawyers Datuk Dr Cyrus Das and Datuk Lim Chee Wee represented Dhaya Maju LTAT. — Bernama

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