JANA DCS SDN BHD TAR PH SDN BHD

JANA DCS SDN BHD TAR PH SDN BHD

The court dismissed the setting aside applications because the TAR Companies failed to meet the high statutory threshold: the issues found by the arbitrator were within the pleaded scope and supported by evidence, there was no breach of natural justice or public policy, and the awards therefore stood; enforcement applications were allowed as formal requirements under s38 AA were met and no valid s39 defence was established.

Citation
WA-24NCC(ARB)-26-04/2022 (Mahkamah Tinggi)
Parties
Applicant / Plaintiff (setting Aside Applications): TAR PH Sdn Bhd; Applicant / Plaintiff (setting Aside Applications): TAR PH Family Entertainment Sdn Bhd; Applicant / Plaintiff (setting Aside Applications): PH Marina Boulevard Sdn Bhd; Respondent / Claimant / Applicant (enforcement Applications): Jana DCS Sdn Bhd
Court
ARB
Jurisdiction
Malaysia
Judgment Date
11 January 2023
Case Number
WA-24NCC(ARB)-26-04/2022 (Mahkamah Tinggi)
Procedural Posture
Originating Summonses Under Arbitration Act 2005 and Rules of Court 2012 (setting Aside and Enforcement of Arbitral Awards) / Judgment Disposing of Setting Aside and Enforcement Applications (final)
Outcome
Setting aside applications dismissed; enforcement applications allowed; costs awarded to Jana DCS
Legal Topics
Setting Aside Arbitral Award, Enforcement of Arbitral Award, Natural Justice, Scope of Submission to Arbitration, Interpretation of Contractual Clause, Liquidated Damages/penalty
Source Language
Malay/English
Arbitration Contract Civil Procedure Public Policy Commercial Law Setting Aside Arbitral Award Enforcement of Arbitral Award Natural Justice +3 more

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Parties

TAR PH Sdn Bhd

Applicant / Plaintiff (setting Aside Applications)

TAR PH Family Entertainment Sdn Bhd

Applicant / Plaintiff (setting Aside Applications)

PH Marina Boulevard Sdn Bhd

Applicant / Plaintiff (setting Aside Applications)

Jana DCS Sdn Bhd

Respondent / Claimant / Applicant (enforcement Applications)

Procedural Posture

Originating Summonses Under Arbitration Act 2005 and Rules of Court 2012 (setting Aside and Enforcement of Arbitral Awards) / Judgment Disposing of Setting Aside and Enforcement Applications (final)

Legal Issues

  1. 1 Whether the arbitral awards dealt with matters beyond the submission to arbitration
  2. 2 Whether the arbitral process breached rules of natural justice or public policy
  3. 3 Whether the arbitrator erred in fact or law on contract interpretation and damages formula

Ratio Decidendi

The court dismissed the setting aside applications because the TAR Companies failed to meet the high statutory threshold: the issues found by the arbitrator were within the pleaded scope and supported by evidence, there was no breach of natural justice or public policy, and the awards therefore stood; enforcement applications were allowed as formal requirements under s38 AA were met and no valid s39 defence was established.

Court Disposition

Setting aside applications dismissed; enforcement applications allowed; costs awarded to Jana DCS

Orders

  • Setting aside originating summons nos. WA-24NCC(ARB)-18-03/2022, WA-24NCC(ARB)-19-03/2022 and WA-24NCC(ARB)-20-03/2022 dismissed
  • Enforcement originating summons nos. WA-24NCC(ARB)-26-04/2022, WA-24NCC(ARB)-27-04/2022 and WA-24NCC(ARB)-28-04/2022 allowed and awards recognised and enforceable as judgments