CREST BUILDER SDN BHD SAUJANA TRIANGLE SDN BHD

CREST BUILDER SDN BHD SAUJANA TRIANGLE SDN BHD

The High Court held that the Shah Alam Fortuna injunction was interlocutory and did not produce a final determination giving rise to res judicata or issue estoppel binding the arbitral tribunal; the arbitrator acted within jurisdiction in refusing late amendments and recall after considering delay and prejudice and articulating reasons; Saujana failed to prove on the balance of probabilities that the Award conflicted with Malaysian public policy or that there was a breach of natural justice; enforcement under s 38 AA 2005 was therefore allowed and the application to set aside was dismissed.

Citation
WA-24C(ARB)-25-06/2023 (Mahkamah Tinggi)
Parties
Applicant (o.s. No. WA 24 C(arb) 25 06/2023); Defendant (o.s. No. WA 24 C(arb) 40 08/2023): Crest Builder Sdn Bhd; Respondent (o.s. No. WA 24 C(arb) 25 06/2023); Plaintiff (o.s. No. WA 24 C(arb) 40 08/2023): Saujana Triangle Sdn Bhd
Court
ARB
Jurisdiction
Malaysia
Judgment Date
29 February 2024
Case Number
WA-24C(ARB)-25-06/2023 (Mahkamah Tinggi)
Procedural Posture
Originating Summonses to Enforce and to Set Aside a Domestic Arbitration Award / Hearing on Enforcement and Setting Aside; Judgment at High Court (first Instance)
Outcome
Setting Aside Application dismissed; Enforcement Application allowed (Award recognised and enforceable)
Legal Topics
Enforcement of Arbitration Award, Setting Aside Arbitration Award, Public Policy Ground, Natural Justice, Res Judicata and Issue Estoppel, Fortuna Injunction, Performance Bond, Liquidated and Ascertained Damages
Source Language
Malay/English
Arbitration Civil Procedure Contract Law Construction Law Company Law Enforcement of Arbitration Award Setting Aside Arbitration Award Public Policy Ground +5 more

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 7 Authorities cited 10 Party arguments 2 Amounts and remedies 4
Sign in to unlock

Parties

Crest Builder Sdn Bhd

Applicant (o.s. No. WA 24 C(arb) 25 06/2023); Defendant (o.s. No. WA 24 C(arb) 40 08/2023)

Saujana Triangle Sdn Bhd

Respondent (o.s. No. WA 24 C(arb) 25 06/2023); Plaintiff (o.s. No. WA 24 C(arb) 40 08/2023)

Procedural Posture

Originating Summonses to Enforce and to Set Aside a Domestic Arbitration Award / Hearing on Enforcement and Setting Aside; Judgment at High Court (first Instance)

Legal Issues

  1. 1 Whether the arbitral award conflicts with public policy because the arbitrator failed to give effect to res judicata/issue estoppel arising from a High Court Fortuna injunction (Suit 533)
  2. 2 Whether there was a breach of natural justice in the arbitral process by refusal to allow amendments to claim and to recall a witness
  3. 3 Whether enforcement application was premature

Ratio Decidendi

The High Court held that the Shah Alam Fortuna injunction was interlocutory and did not produce a final determination giving rise to res judicata or issue estoppel binding the arbitral tribunal; the arbitrator acted within jurisdiction in refusing late amendments and recall after considering delay and prejudice and articulating reasons; Saujana failed to prove on the balance of probabilities that the Award conflicted with Malaysian public policy or that there was a breach of natural justice; enforcement under s 38 AA 2005 was therefore allowed and the application to set aside was dismissed.

Court Disposition

Setting Aside Application dismissed; Enforcement Application allowed (Award recognised and enforceable)

Orders

  • Setting Aside Application dismissed with costs of RM15,000 to be paid by Saujana Triangle Sdn Bhd to Crest Builder Sdn Bhd (subject to allocator)
  • Enforcement Application allowed; Award recognised and to be enforced by entry as judgment; Saujana Triangle Sdn Bhd to pay Crest Builder Sdn Bhd RM18,361,302.73 as per the Award plus interest at 5% per annum from 13 May 2023 until actual realization