M101 Entity Sdn Bhd Geopancar Sdn Bhd

M101 Entity Sdn Bhd Geopancar Sdn Bhd

The High Court held that M101 did not prove on the balance of probabilities that the Award should be set aside under s 37(1)(a)(iv) or under s 37(1)(b)(ii) read with s 37(2)(b)(ii). The arbitrator did not exceed his jurisdiction because determining whether the Architect/Engineer instructions contained new requirements (and thus required variation orders) was integral to the pleaded dispute; the documents-only procedure and opportunity to respond nullified M101's complaints of denial of opportunity to lead expert evidence; no breach of natural justice or public policy was established. Consequently the Setting Aside Application was dismissed and the Award was recognised and enforced by the...

Citation
WA-24C(ARB)-15-06/2020 (Mahkamah Tinggi)
Parties
Applicant (o.s. No. WA 24 C(arb) 15 06/2020); Defendant (o.s. No. WA 24 C(arb) 20 06/2020): M101 Entity Sdn Bhd; Respondent (o.s. No. WA 24 C(arb) 15 06/2020); Plaintiff (o.s. No. WA 24 C(arb) 20 06/2020): Geopancar Sdn Bhd
Court
ARB
Jurisdiction
Malaysia
Judgment Date
15 February 2021
Case Number
WA-24C(ARB)-15-06/2020 (Mahkamah Tinggi)
Procedural Posture
Originating Summonses Concerning Setting Aside and Enforcement of an Arbitral Award Under the Arbitration Act 2005 / High Court Judgment on Interlocutory Originations: Setting Aside Application Heard and Dismissed; Enforcement Application Heard and Allowed
Outcome
Setting aside application dismissed; enforcement application allowed.
Legal Topics
Setting Aside Arbitral Award (s 37 Arbitration Act 2005), Enforcement of Arbitral Award (ss 38 39 Arbitration Act 2005), Natural Justice/public Policy, Jurisdiction of Arbitrator, Variation Orders Under Construction Contracts, Costs
Source Language
Malay/English
Arbitration Construction Law Contract Law Civil Procedure Setting Aside Arbitral Award (s 37 Arbitration Act 2005) Enforcement of Arbitral Award (ss 38 39 Arbitration Act 2005) Natural Justice/public Policy Jurisdiction of Arbitrator +2 more

Case Brief

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Parties

M101 Entity Sdn Bhd

Applicant (o.s. No. WA 24 C(arb) 15 06/2020); Defendant (o.s. No. WA 24 C(arb) 20 06/2020)

Geopancar Sdn Bhd

Respondent (o.s. No. WA 24 C(arb) 15 06/2020); Plaintiff (o.s. No. WA 24 C(arb) 20 06/2020)

Procedural Posture

Originating Summonses Concerning Setting Aside and Enforcement of an Arbitral Award Under the Arbitration Act 2005 / High Court Judgment on Interlocutory Originations: Setting Aside Application Heard and Dismissed; Enforcement Application Heard and Allowed

Legal Issues

  1. 1 Whether the Award dealt with matters not contemplated by the submission to arbitration (s 37(1)(a)(iv) AA 2005)
  2. 2 Whether the arbitrator exceeded his jurisdiction by deciding that the New Instructions amounted to a variation
  3. 3 Whether there was a breach of natural justice/public policy in connection with making of the Award (s 37(1)(b)(ii) read with s 37(2)(b)(ii)) by refusing opportunity to lead evidence

Ratio Decidendi

The High Court held that M101 did not prove on the balance of probabilities that the Award should be set aside under s 37(1)(a)(iv) or under s 37(1)(b)(ii) read with s 37(2)(b)(ii). The arbitrator did not exceed his jurisdiction because determining whether the Architect/Engineer instructions contained new requirements (and thus required variation orders) was integral to the pleaded dispute; the documents-only procedure and opportunity to respond nullified M101's complaints of denial of opportunity to lead expert evidence; no breach of natural justice or public policy was established. Consequently the Setting Aside Application was dismissed and the Award was recognised and enforced by the...

Court Disposition

Setting aside application dismissed; enforcement application allowed.

Orders

  • Setting aside application (O.S. No. WA-24C(ARB)-15-06/2020) dismissed with costs of MYR 15,000.00 (subject to allocatur fees)
  • Enforcement application (O.S. No. WA-24C(ARB)-20-06/2020) allowed with costs of MYR 10,000.00 (subject to allocatur fees)