MRCB BUILDERS SDN. BHD. BRILLIANT STAR CONSTRUCTION (M) SDN BHD

MRCB BUILDERS SDN. BHD. BRILLIANT STAR CONSTRUCTION (M) SDN BHD

The court set aside the arbitrator's Final Award under s37 AA 2005 because the arbitrator made a serious and material error in relation to the effect of section 33A of the CIDB Act 1994 on the contract and Award; that error was likely to have affected the outcome and thus enforcement would be injurious to public good and justice. The court refused to remit the dispute to a new tribunal and ordered relief in favour of the application to set aside (granted specified prayers of OS34) and dismissed the enforcement application (OS49).

Citation
WA-24C(ARB)-34-05/2024 (Mahkamah Tinggi)
Parties
Applicant (os34) / Defendant (os49): MRCB Builders Sdn Bhd; Respondent (os34) / Applicant (os49): Brilliant Star Construction (M) Sdn Bhd
Court
ARB
Jurisdiction
Malaysia
Judgment Date
12 February 2025
Case Number
WA-24C(ARB)-34-05/2024 (Mahkamah Tinggi)
Procedural Posture
Arbitration — Setting Aside and Enforcement of Final Award (arbitration Act 2005) / Judgment on Originating Summonses (application to Set Aside Award and Application to Enforce Award)
Outcome
Award set aside under s37 Arbitration Act 2005; OS34 (application to set aside) granted in part; OS49 (application to enforce) dismissed.
Legal Topics
Setting Aside Arbitration Award (s37 AA 2005), Enforcement of Arbitration Award (s38 AA 2005), Breach of Natural Justice, Public Policy, CIDB Accreditation (s33 a CIDB Act 1994), Scope/jurisdiction of Arbitrator, Remittal to New Tribunal
Source Language
Malay/English
Arbitration Construction Law Contract Law Administrative/statutory Interpretation Setting Aside Arbitration Award (s37 AA 2005) Enforcement of Arbitration Award (s38 AA 2005) Breach of Natural Justice Public Policy +3 more

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Parties

MRCB Builders Sdn Bhd

Applicant (os34) / Defendant (os49)

Brilliant Star Construction (M) Sdn Bhd

Respondent (os34) / Applicant (os49)

Procedural Posture

Arbitration — Setting Aside and Enforcement of Final Award (arbitration Act 2005) / Judgment on Originating Summonses (application to Set Aside Award and Application to Enforce Award)

Legal Issues

  1. 1 Whether the Award dealt with disputes outside the submission to arbitration (new difference)
  2. 2 Whether the arbitrator breached rules of natural justice rendering the Award contrary to public policy
  3. 3 Whether section 33A CIDB Act 1994 is a mandatory statutory requirement that the arbitrator misapplied, affecting the Award outcome

Ratio Decidendi

The court set aside the arbitrator's Final Award under s37 AA 2005 because the arbitrator made a serious and material error in relation to the effect of section 33A of the CIDB Act 1994 on the contract and Award; that error was likely to have affected the outcome and thus enforcement would be injurious to public good and justice. The court refused to remit the dispute to a new tribunal and ordered relief in favour of the application to set aside (granted specified prayers of OS34) and dismissed the enforcement application (OS49).

Court Disposition

Award set aside under s37 Arbitration Act 2005; OS34 (application to set aside) granted in part; OS49 (application to enforce) dismissed.

Orders

  • Set aside the Final Award dated 18.4.2024 under section 37 of the Arbitration Act 2005.
  • Grant Order in Terms for prayers (a) and (e) of OS 34.