RZH SETIA JAYA SDN BHD (IN LIQUIDATION) SIME DARBY ENERGY SOLUTIONS SDN BHD

RZH SETIA JAYA SDN BHD (IN LIQUIDATION) SIME DARBY ENERGY SOLUTIONS SDN BHD

SDES failed to establish that the Award conflicted with Malaysia's public policy or that there was a breach of natural justice that materially affected the outcome; the arbitrator's interpretation — that no implied right to apply for EOT exists absent an express term and related findings on delays, LAD, VO and evidence evaluation — fell within her jurisdiction and was supported by the contract and evidence; accordingly the setting aside application was dismissed and the enforcement application was allowed.

Citation
BA-24C(ARB)-8-08/2023 (Mahkamah Tinggi)
Parties
Applicant (setting Aside Os) / Defendant (enforcement Os): Sime Darby Energy Solutions Sdn Bhd; Defendant (setting Aside Os) / Applicant (enforcement Os): RZH Setia Jaya Sdn Bhd (In Liquidation)
Court
ARB
Jurisdiction
Malaysia
Judgment Date
28 February 2024
Case Number
BA-24C(ARB)-8-08/2023 (Mahkamah Tinggi)
Procedural Posture
Originating Summons (setting Aside & Enforcement of Arbitration Award) / Judgment on Applications; Setting Aside Dismissed; Enforcement Allowed
Outcome
Setting aside application dismissed; enforcement of the Arbitration Award granted
Legal Topics
Setting Aside Arbitral Award, Enforcement of Arbitration Award, Public Policy, Natural Justice, Extension of Time (eot), Liquidated Ascertained Damages (lad), Variation Orders, Adjudication
Source Language
Malay/English
Arbitration Civil Procedure Construction Law Contract Law Setting Aside Arbitral Award Enforcement of Arbitration Award Public Policy Natural Justice +4 more

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Parties

Sime Darby Energy Solutions Sdn Bhd

Applicant (setting Aside Os) / Defendant (enforcement Os)

RZH Setia Jaya Sdn Bhd (In Liquidation)

Defendant (setting Aside Os) / Applicant (enforcement Os)

Procedural Posture

Originating Summons (setting Aside & Enforcement of Arbitration Award) / Judgment on Applications; Setting Aside Dismissed; Enforcement Allowed

Legal Issues

  1. 1 Whether the arbitral award conflicts with the public policy of Malaysia
  2. 2 Whether there was a breach of natural justice in the arbitral proceedings or in making of the award
  3. 3 Whether a contractor has an implied contractual right to apply for extension of time absent an express clause

Ratio Decidendi

SDES failed to establish that the Award conflicted with Malaysia's public policy or that there was a breach of natural justice that materially affected the outcome; the arbitrator's interpretation — that no implied right to apply for EOT exists absent an express term and related findings on delays, LAD, VO and evidence evaluation — fell within her jurisdiction and was supported by the contract and evidence; accordingly the setting aside application was dismissed and the enforcement application was allowed.

Court Disposition

Setting aside application dismissed; enforcement of the Arbitration Award granted

Orders

  • OS No. BA-24C(ARB)-7-06/2023 (Setting Aside) dismissed with costs RM5,000.00 subject to allocatur fees
  • OS No. BA-24C(ARB)-8-08/2023 (Enforcement) allowed; no order as to costs