OCNED WATER TECHNOLOGY SDN BHD 1. ) UEM BUILDERS BERHAD 2. ) EDGENTA PROPEL BERHAD

OCNED WATER TECHNOLOGY SDN BHD 1. ) UEM BUILDERS BERHAD 2. ) EDGENTA PROPEL BERHAD

The court dismissed both applications because the Arbitrator's findings were rooted in the parties' pleadings, evidence and submissions (including express pleadings and oral evidence on EoT, commencement, and delayed issuance of LoA), the impugned observations were part of the tribunal's reasoning or immaterial to the outcome, UB-EP failed to prove a new unpleaded issue or a material breach of natural justice that affected the result, and the court exercised residual discretion not to set aside the Award; procedural non-compliance in Rules of Court did not vitiate enforcement under s38/s39 AA 2005.

Citation
WA-24C(ARB)-1-01/2021 (Mahkamah Tinggi)
Parties
Applicant/defendant (in Related Summons): OCNED WATER TECHNOLOGY SDN BHD; Respondent/plaintiff (in Related Summons): UEM BUILDERS BERHAD; Respondent/plaintiff (in Related Summons): EDGENTA PROPEL BERHAD
Court
ARB
Jurisdiction
Malaysia
Judgment Date
4 February 2022
Case Number
WA-24C(ARB)-1-01/2021 (Mahkamah Tinggi)
Procedural Posture
Originating Summonss Under Arbitration Act 2005 (setting Aside Award and Resisting Enforcement) / Decision on Applications to Set Aside Arbitral Award and to Set Aside/stay Enforcement of Ex Parte Recognition Order (final Grounds of Judgment)
Outcome
Both the application to set aside the arbitral Award and the application to set aside or stay enforcement of the ex-parte recognition/enforcement order were dismissed
Legal Topics
Setting Aside Arbitral Award (s37), Recognition and Enforcement of Award (s38/s39), Natural Justice (procedural Fairness), Jurisdiction of Arbitrator (scope of Submission), Extension of Time / Time at Large, Public Policy, Costs
Source Language
Malay/English
Arbitration Construction Law Contract Law Civil Procedure Enforcement of Awards Setting Aside Arbitral Award (s37) Recognition and Enforcement of Award (s38/s39) Natural Justice (procedural Fairness) +4 more

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Parties

OCNED WATER TECHNOLOGY SDN BHD

Applicant/defendant (in Related Summons)

UEM BUILDERS BERHAD

Respondent/plaintiff (in Related Summons)

EDGENTA PROPEL BERHAD

Respondent/plaintiff (in Related Summons)

Procedural Posture

Originating Summonss Under Arbitration Act 2005 (setting Aside Award and Resisting Enforcement) / Decision on Applications to Set Aside Arbitral Award and to Set Aside/stay Enforcement of Ex Parte Recognition Order (final Grounds of Judgment)

Legal Issues

  1. 1 Whether arbitrator exceeded jurisdiction by deciding issues not pleaded (time at large, EoT)
  2. 2 Whether arbitrator breached rules of natural justice by considering/unilaterally raising unpleaded issues (LoA issuance, termination/rescission, independent consultant)
  3. 3 Whether arbitrator failed to consider critical pleaded defences (bank guarantees, insurance, condition precedent for EoT)

Ratio Decidendi

The court dismissed both applications because the Arbitrator's findings were rooted in the parties' pleadings, evidence and submissions (including express pleadings and oral evidence on EoT, commencement, and delayed issuance of LoA), the impugned observations were part of the tribunal's reasoning or immaterial to the outcome, UB-EP failed to prove a new unpleaded issue or a material breach of natural justice that affected the result, and the court exercised residual discretion not to set aside the Award; procedural non-compliance in Rules of Court did not vitiate enforcement under s38/s39 AA 2005.

Court Disposition

Both the application to set aside the arbitral Award and the application to set aside or stay enforcement of the ex-parte recognition/enforcement order were dismissed

Orders

  • Setting Aside Application dismissed
  • Setting Aside Ex-Parte Order Application dismissed