TMF TRUST LABUAN LIMITED ROBINSON PLANNER COMPANY LIMITED

TMF TRUST LABUAN LIMITED ROBINSON PLANNER COMPANY LIMITED

The court found the identity of authorised persons was not a pleaded issue submitted for determination, the arbitral tribunal had considered the parties' arguments and properly based its finding of breach on the undisputed fact that the impugned instructions emanated from third‑party fraudsters; there was no material breach of natural justice nor conflict with Malaysian public policy, so the setting aside application was dismissed and the Partial Award was recognised and enforced.

Citation
WA-24NCC(ARB)-1-01/2024 (Mahkamah Tinggi)
Parties
Applicant in Os1; Respondent in OS41: TMF Trust Labuan Limited; Respondent in Os1; Applicant in OS41: Robinson Planner Company Limited
Court
ARB
Jurisdiction
Malaysia
Judgment Date
10 June 2024
Case Number
WA-24NCC(ARB)-1-01/2024 (Mahkamah Tinggi)
Procedural Posture
Originating Summons (setting Aside and Enforcement of Arbitral Award) / Judgment (decision on Applications to Set Aside and to Enforce a Partial Arbitral Award)
Outcome
TMF's application to set aside the Partial Award dismissed; RPL's application to recognise and enforce the Partial Award allowed
Legal Topics
Setting Aside Arbitral Award Under Arbitration Act 2005 S37, Recognition and Enforcement Under Arbitration Act 2005 S38, Breach of Natural Justice/audi Alteram Partem, Interpretation of Custodian Agreement Provisions on Proper Instructions, Fraud and Impersonation in Cross Border Payments
Source Language
Malay/English
Arbitration Commercial Law Contract Civil Procedure Public Policy Setting Aside Arbitral Award Under Arbitration Act 2005 S37 Recognition and Enforcement Under Arbitration Act 2005 S38 Breach of Natural Justice/audi Alteram Partem +2 more

Case Brief

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Parties

TMF Trust Labuan Limited

Applicant in Os1; Respondent in OS41

Robinson Planner Company Limited

Respondent in Os1; Applicant in OS41

Procedural Posture

Originating Summons (setting Aside and Enforcement of Arbitral Award) / Judgment (decision on Applications to Set Aside and to Enforce a Partial Arbitral Award)

Legal Issues

  1. 1 Whether the arbitral tribunal breached natural justice by failing to determine identity of authorised persons
  2. 2 Whether failure to determine identity of authorised persons renders award in conflict with Malaysian public policy under s37 AA 2005
  3. 3 Whether the identity of authorised persons was a pleaded issue before the tribunal

Ratio Decidendi

The court found the identity of authorised persons was not a pleaded issue submitted for determination, the arbitral tribunal had considered the parties' arguments and properly based its finding of breach on the undisputed fact that the impugned instructions emanated from third‑party fraudsters; there was no material breach of natural justice nor conflict with Malaysian public policy, so the setting aside application was dismissed and the Partial Award was recognised and enforced.

Court Disposition

TMF's application to set aside the Partial Award dismissed; RPL's application to recognise and enforce the Partial Award allowed

Orders

  • Partial Award dated 14.8.2023 (save as to costs) recognised as binding and enforced as a judgment of the High Court pursuant to s38 AA 2005
  • Costs of RM20,000.00 to be paid jointly by TMF to RPL for both OS 1 and OS 41, subject to allocatur fees