Pook Fong Fee and Aswath Ramkrishnan [Messrs Ahmad Deniel, Ruben & Co.] Abdullah Az-Zubayr bin Awaluddin and Ashmadi bin Othman [Messrs Zulpadli & Edham]

Pook Fong Fee and Aswath Ramkrishnan [Messrs Ahmad Deniel, Ruben & Co.] Abdullah Az-Zubayr bin Awaluddin and Ashmadi bin Othman [Messrs Zulpadli & Edham]

The High Court refused to set aside the Final Award because the respondent failed to establish any of the limited statutory grounds under ss36/39 Arbitration Act 2005: there was no demonstrable breach of natural justice, no excess of jurisdiction, and the alleged conflict of interest had been previously litigated and dismissed (res judicata/estoppel); the arbitrator had considered the evidence and issues; therefore the award is final and enforceable and recognition and enforcement are granted.

Citation
SAMAN PEMULA NO.: WA-24C(ARB)-18-05/2022 (Mahkamah Tinggi)
Parties
Plaintiff (applicant in Enforcement): Wiradini Development Sdn Bhd; Defendant (applicant in Set Aside): SPNB Aspirasi Sendirian Berhad
Court
ARB
Jurisdiction
Malaysia
Judgment Date
29 November 2022
Case Number
SAMAN PEMULA NO.: WA-24C(ARB)-18-05/2022 (Mahkamah Tinggi)
Procedural Posture
Enforcement of Domestic Arbitration Award and Application to Set Aside Award / High Court Judgment on Competing Originating Summonses (recognition/enforcement and Setting Aside)
Outcome
Application to set aside the Final Award dismissed; application to recognise and enforce the Final Award allowed
Legal Topics
Recognition and Enforcement of Arbitral Award, Setting Aside Arbitral Award, Natural Justice / Breach of Fair Hearing, Jurisdiction of Arbitrator / Excess of Jurisdiction, Conflict of Interest / Bias, Res Judicata and Estoppel, Unjust Enrichment, Costs and Interest
Source Language
Malay/English
Arbitration Contract Civil Procedure Civil Remedies Public Policy Recognition and Enforcement of Arbitral Award Setting Aside Arbitral Award Natural Justice / Breach of Fair Hearing +5 more

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Parties

Wiradini Development Sdn Bhd

Plaintiff (applicant in Enforcement)

SPNB Aspirasi Sendirian Berhad

Defendant (applicant in Set Aside)

Procedural Posture

Enforcement of Domestic Arbitration Award and Application to Set Aside Award / High Court Judgment on Competing Originating Summonses (recognition/enforcement and Setting Aside)

Legal Issues

  1. 1 Whether the Final Award dated 25.04.2022 should be recognised and enforced under s38 Arbitration Act 2005
  2. 2 Whether the Final Award should be set aside under ss36/39 Arbitration Act 2005 on grounds including denial of natural justice, excess of jurisdiction, conflict of interest and public policy
  3. 3 Whether alleged conflict of interest / common prior solicitors amounted to bias or was res judicata

Ratio Decidendi

The High Court refused to set aside the Final Award because the respondent failed to establish any of the limited statutory grounds under ss36/39 Arbitration Act 2005: there was no demonstrable breach of natural justice, no excess of jurisdiction, and the alleged conflict of interest had been previously litigated and dismissed (res judicata/estoppel); the arbitrator had considered the evidence and issues; therefore the award is final and enforceable and recognition and enforcement are granted.

Court Disposition

Application to set aside the Final Award dismissed; application to recognise and enforce the Final Award allowed

Orders

  • Originating Summons No. WA-24C(ARB)-23-07/2022 (SPNB Aspirasi) dismissed (application to set aside the Final Award)
  • Originating Summons No. WA-24C(ARB)-18-05/2022 (Wiradini Development) allowed — Arbitration Award dated 25.04.2022 recognised and enforced under Arbitration Act 2005; order in terms prayers a, b and c granted