PROPEL SYNERGY SDN BHD VISTASIK SDN BHD

PROPEL SYNERGY SDN BHD VISTASIK SDN BHD

Court held that PSSB proved on balance that one part of the Award (Arbitrator’s findings on delay in certification of payments and delay in payment — Ground No.5) contained decisions beyond the scope of the submission and must be set aside under s37(1)(a)(v) read with s37(3); the remainder of the Award dealt with matters within the submission, is separable, and is recognized and enforceable under s38 AA 2005; costs RM15,000 awarded to Vistasik for each originating summons.

Citation
WA-24C(ARB)-39-09/2019 (Mahkamah Tinggi)
Parties
Applicant (setting Aside Application); Defendant (enforcement Application): Propel Synergy Sdn Bhd; Applicant (enforcement Application); Respondent (setting Aside Application): Vistasik Sdn Bhd
Court
ARB
Jurisdiction
Malaysia
Judgment Date
30 November 2020
Case Number
WA-24C(ARB)-39-09/2019 (Mahkamah Tinggi)
Procedural Posture
Originating Summonses: Setting Aside and Enforcement of Arbitral Award / High Court Judgment on Originating Summonses (setting Aside Under S37 and Recognition/enforcement Under S38 Arbitration Act 2005)
Outcome
Setting Aside Application partly allowed: only the part of the Award concerning delay in certification of payments and delay in payment (Ground No.5) set aside; Enforcement Application allowed in respect of remainder of the Award (whole Award except the part set aside).
Legal Topics
Setting Aside Arbitral Award (s37 AA 2005), Enforcement/recognition of Award (s38 AA 2005), Severability of Awards (s37(3)), Final Account and Conclusive Evidence Clause, Performance Bond and Set Off, Extension of Time and Delay, Costs
Source Language
Malay/English
Arbitration Construction Contract Law Civil Procedure Administrative Law (natural Justice) Public Policy Setting Aside Arbitral Award (s37 AA 2005) Enforcement/recognition of Award (s38 AA 2005) Severability of Awards (s37(3)) +4 more

Case Brief

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Parties

Propel Synergy Sdn Bhd

Applicant (setting Aside Application); Defendant (enforcement Application)

Vistasik Sdn Bhd

Applicant (enforcement Application); Respondent (setting Aside Application)

Procedural Posture

Originating Summonses: Setting Aside and Enforcement of Arbitral Award / High Court Judgment on Originating Summonses (setting Aside Under S37 and Recognition/enforcement Under S38 Arbitration Act 2005)

Legal Issues

  1. 1 Whether the Award should be set aside under s37 AA 2005 on grounds including breach of natural justice, exceeding scope of submission, procedural irregularity and public policy
  2. 2 Whether the Arbitrator decided matters beyond the submission to arbitration (pleadings)
  3. 3 Whether part of the Award can be severed under s37(3)

Ratio Decidendi

Court held that PSSB proved on balance that one part of the Award (Arbitrator’s findings on delay in certification of payments and delay in payment — Ground No.5) contained decisions beyond the scope of the submission and must be set aside under s37(1)(a)(v) read with s37(3); the remainder of the Award dealt with matters within the submission, is separable, and is recognized and enforceable under s38 AA 2005; costs RM15,000 awarded to Vistasik for each originating summons.

Court Disposition

Setting Aside Application partly allowed: only the part of the Award concerning delay in certification of payments and delay in payment (Ground No.5) set aside; Enforcement Application allowed in respect of remainder of the Award (whole Award except the part set aside).

Orders

  • Set aside only that part of the Final Award dated 13.7.2019 relating to the Arbitrator’s findings on delay in certification of payments and delay in payment (Ground No.5) pursuant to s37(1)(a)(v) read with s37(3) Arbitration Act 2005
  • Allow recognition and enforcement of the remainder of the Award (the whole Award except the part set aside) pursuant to s38 Arbitration Act 2005