VISTASIK SDN BHD PROPEL SYNERGY SDN BHD

VISTASIK SDN BHD PROPEL SYNERGY SDN BHD

The Court found only one challenged aspect sustainable: the Arbitrator decided on matters beyond the scope of the submission (the Arbitrator's findings on delay in certification of payments and delay in payment) and that part of the Award fell within s37(1)(a)(v); applying s37(3) the Court severed and set aside only that part. All other grounds failed: the arbitrator had afforded fair opportunity, applied contract interpretation and evidence assessment within his remit, and the remainder of the Award was enforceable under s38 AA2005. Costs of RM15,000.00 each awarded to Vistasik for both applications (subject to allocatur).

Citation
WA-24C(ARB)-44-10/2019 (Mahkamah Tinggi)
Parties
Applicant (setting Aside): Propel Synergy Sdn Bhd; Applicant (enforcement): Vistasik Sdn Bhd
Court
ARB
Jurisdiction
Malaysia
Judgment Date
30 November 2020
Case Number
WA-24C(ARB)-44-10/2019 (Mahkamah Tinggi)
Procedural Posture
Setting Aside and Enforcement of Arbitral Award (arbitration Act 2005) / High Court Originating Summons Applications; Grounds of Judgment and Orders Delivered
Outcome
Setting Aside Application partly allowed (only that part of the Award concerning delay in certification of payments and delay in payment set aside); Enforcement Application allowed in part (Award recognized and enforced as judgment except for the severed part)
Legal Topics
Setting Aside Arbitral Award (s37), Recognition and Enforcement of Award (s38), Natural Justice, Public Policy, Final Account/conclusive Evidence, Performance Bond and Set Off, Extension of Time, Severability of Awards
Source Language
Malay/English
Arbitration Construction Law Contract Law Civil Procedure Evidence Setting Aside Arbitral Award (s37) Recognition and Enforcement of Award (s38) Natural Justice +5 more

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Parties

Propel Synergy Sdn Bhd

Applicant (setting Aside)

Vistasik Sdn Bhd

Applicant (enforcement)

Procedural Posture

Setting Aside and Enforcement of Arbitral Award (arbitration Act 2005) / High Court Originating Summons Applications; Grounds of Judgment and Orders Delivered

Legal Issues

  1. 1 Whether the Award should be set aside under s37 AA2005 for breach of natural justice (inability to present case)
  2. 2 Whether the Award decided matters beyond the scope of the submission to arbitration (s37(1)(a)(v))
  3. 3 Whether parts of the Award can be severed under s37(3)

Ratio Decidendi

The Court found only one challenged aspect sustainable: the Arbitrator decided on matters beyond the scope of the submission (the Arbitrator's findings on delay in certification of payments and delay in payment) and that part of the Award fell within s37(1)(a)(v); applying s37(3) the Court severed and set aside only that part. All other grounds failed: the arbitrator had afforded fair opportunity, applied contract interpretation and evidence assessment within his remit, and the remainder of the Award was enforceable under s38 AA2005. Costs of RM15,000.00 each awarded to Vistasik for both applications (subject to allocatur).

Court Disposition

Setting Aside Application partly allowed (only that part of the Award concerning delay in certification of payments and delay in payment set aside); Enforcement Application allowed in part (Award recognized and enforced as judgment except for the severed part)

Orders

  • Set aside and severed that part of the Final Award pertaining to findings on delay in certification of payments and delay in payment (Ground No.5) pursuant to s37(1)(a)(v) and s37(3) Arbitration Act 2005
  • Recognition and enforcement of the remainder of the Final Award (all decisions on matters submitted to arbitration) pursuant to s38 Arbitration Act 2005