SYARIKAT SUCCESS CONSTRUCTION SDN BHD M.E.I. PROJECT ENGINEERS SDN BHD

SYARIKAT SUCCESS CONSTRUCTION SDN BHD M.E.I. PROJECT ENGINEERS SDN BHD

The High Court dismissed the s 37 setting aside application because the Arbitrator had considered the parties' evidence and submissions and expressly made findings on the validity and effect of the mutual agreements; the absence of an explicit reference to the witness admission in the Award did not constitute a breach of natural justice nor a public policy violation, and the complaints related to merits of the Award which are not reviewable under s 37; accordingly the enforcement application under s 38 was allowed.

Citation
WA-24C(ARB)-21-05/2023 (Mahkamah Tinggi)
Parties
Plaintiff / Respondent: M.E.I. Project Engineers Sdn Bhd; Defendant / Applicant: Syarikat Success Construction Sdn Bhd
Court
ARB
Jurisdiction
Malaysia
Judgment Date
26 September 2023
Case Number
WA-24C(ARB)-21-05/2023 (Mahkamah Tinggi)
Procedural Posture
Setting Aside and Enforcement of Arbitral Award / Hearing of Originating Summonses; Grounds of Judgment (high Court Decision)
Outcome
Setting Aside Application dismissed; Enforcement Application allowed
Legal Topics
Setting Aside Arbitral Award Under S 37 Arbitration Act 2005, Enforcement of Arbitral Award Under S 38 Arbitration Act 2005, Breach of Natural Justice (audi Alteram Partem), Validity and Effect of Mutual Agreements (extensions of Time), Liquidated Ascertained Damages
Source Language
Malay/English
Arbitration Civil Procedure Contract Law Public Policy Administrative Law (natural Justice) Setting Aside Arbitral Award Under S 37 Arbitration Act 2005 Enforcement of Arbitral Award Under S 38 Arbitration Act 2005 Breach of Natural Justice (audi Alteram Partem) +2 more

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Parties

M.E.I. Project Engineers Sdn Bhd

Plaintiff / Respondent

Syarikat Success Construction Sdn Bhd

Defendant / Applicant

Procedural Posture

Setting Aside and Enforcement of Arbitral Award / Hearing of Originating Summonses; Grounds of Judgment (high Court Decision)

Legal Issues

  1. 1 Whether the arbitral award is in conflict with the public policy of Malaysia because the arbitrator failed to consider an admission by the claimant's witness regarding conditional mutual agreements (MA6 and MA7)
  2. 2 Whether the High Court can set aside the award and substitute the award with specific orders/judgment for the applicant's counterclaims

Ratio Decidendi

The High Court dismissed the s 37 setting aside application because the Arbitrator had considered the parties' evidence and submissions and expressly made findings on the validity and effect of the mutual agreements; the absence of an explicit reference to the witness admission in the Award did not constitute a breach of natural justice nor a public policy violation, and the complaints related to merits of the Award which are not reviewable under s 37; accordingly the enforcement application under s 38 was allowed.

Court Disposition

Setting Aside Application dismissed; Enforcement Application allowed

Orders

  • Setting Aside Application dismissed with costs of MYR 7,000 payable by M.E.I. Project Engineers Sdn Bhd to Syarikat Success Construction Sdn Bhd
  • Enforcement Application allowed with costs of MYR 5,000 payable by M.E.I. Project Engineers Sdn Bhd to Syarikat Success Construction Sdn Bhd, subject to allocator fees