EK INTEGRATED CONSTRUCTION SDN BHD RIMBUNAN MELATI SDN BHD

IN THE HIGH COURT IN MALAYA AT KUALA LUMPUR IN THE FEDERAL TERRITORY OF KUALA LUMPUR, MALAYSIA ORIGINATING SUMMONS NO.: WA-24C(ARB)-3-01/2020 BETWEEN EK INTEGRATED CONSTRUCTION SDN BHD (Company No.: 584788-T) ... PLAINTIFF AND RIMBUNAN MELATI SDN BHD (Company No.: 304034-U) ... DEFENDANT GROUNDS OF JUDGMENT INTRODUCTION [1] On 15.11.2019, the parties entered into a Consent Order in the Kuala Lumpur High Court Originating Summons (‘O.S.’) No.: WA-24C(ARB)- 23-05/2019 that – 1 (a) the interim award published by the Arbitrator and received by the Plaintiff on 27.2.2019 in the arbitration between the Plaintiff and the Defendant (‘Piling Contract Arbitration’) be set aside; and (b) the question proposed by the Plaintiff in the Piling Contract Arbitration, namely – “Whether the Claimant’s claim and/or cause of action as disclosed in the Claimant’s Statement of Claim dated 24.8.2018 are barred by limitation and as such, ought to be dismissed in limine?” (‘Proposed Question’), be referred to the High Court for determination pursuant to para 41(1)(b) of the Arbitration Act 2005 [Act 646] (‘AA 2005’) provided that the Defendant shall be at liberty to raise and contend in the intended reference proceedings that – (i) the Proposed Question is not a question of law; and 2 (ii) in any event, the Proposed Question should be decided in the negative. [2] By way of the present O.S. filed on 8.1.2020, the Plaintiff sought an order that the issue of limitation raised in the arbitral pleadings in the Piling Contract Arbitration be decided in the Plaintiff’s favor and that consequent thereto, the Arbitrator be directed to forthwith dismiss the Defendant’s claims against the Plaintiff in the Piling Contract Arbitration in limine with costs to be determined by the Arbitrator; or alternatively, to continue with the Piling Contract Arbitration in accordance with, or by having regard to, and/ or giving full effect to the decision of the Court. The Proposed Question for the determination of the Court is stated in para B(b) at p 4 of the O.S. [3] Having read the cause papers and written submissions filed and having heard oral submissions by Dato’ Lee Chan Leong representing the Plaintiff and Mr. Sanjay Mohan representing the Defendant, this Court had dismissed the Plaintiff’s application with costs of 3 RM10,000.00 to be paid by the Plaintiff to the Defendant, subject to allocatur. [4] I now provide my full grounds for the decision. SALIENT BACKGROUND FACTS [5] The Defendant is the owner of the project known as “Building, Infrastructure And Associated Works For Proposed Mix Development Of Land Located On Lot H.S.(D)107003, PT21706 (Previously Known As Geran 33388, Lot 55311), Jalan Kepong, Mukim Batu, Daerah & Wilayah Persekutuan Kuala Lumpur – Phase 3 (191 Units Of 3-Storey Terrace Houses)” (‘Project’). The Project comprises of Section 1 with 111 units of 3 storey houses and Section 2 with 80 units of the same type of houses. [6] By a Letter of Acceptance dated 3.10.2007 (‘Letter of Acceptance - Piling Works’), the Defendant appointed the Plaintiff as its contractor 4 to carry out the piling, pile caps and column stumps for the Project for a contract sum of RM5,808,790.34. [7] This was followed by a Letter of Award dated 29.4.2008 (‘LoA - Building Works’) where the Defendant awarded to the Plaintiff the building works in respect of the Project for a contract sum of RM50,996,3017.42. [8] In para 23 of the Letter of Acceptance - Piling Works and para 24 of the LoA - Building Works on “Contract Document”, it is provided that “The Conditions of Contract to be used shall be the PAM 98 Form (Private Edition with Quantities – 1998 Edition)” (‘PAM Contract 1998’). The arbitration agreement is provided for in Clause 34 of the PAM Contract 1998. [9] On 2.1.2008 and 15.10.2008, the parties entered into the PAM Contract 1998 for the piling works (‘Piling Contract’) and for the building works (‘Building Contract’), respectively, for the Project. 5 [10] The Plaintiff has achieved practical completion of the following works: (a) Piling Contract  Section 1 on 28.5.2008 by way of the Certificate of Practical Completion (‘CPC’) dated 27.6.2008; and  Section 2 on 21.2.2008 by way of the CPC dated 5.3.2008. (b) Building Contract  Section 1 on 5.4.2010 by way of the CPC dated on the same date; and  Section 2 on 2.2.2010 by way of the CPC dated 19.3.2010. [11] On 31.3.2009, the consultant issued the Statement of Final Account stating that the final contract sum for the piling works is RM6,431,333.40. 6 [12] The Defendant alleged that it discovered cracks in the houses constructed by the Plaintiff in February 2011, however, the cause for these cracks was discovered only in September 2011 as the Plaintiff had fraudulently concealed the fact that the pilings that were driven by the Plaintiff did not reach the prescribed depth. [13] The allegations were naturally disputed by the Plaintiff on the grounds that the site is a former mining land and the works had been carried out under the supervision of, and with the approval by, the Defendant's representatives. [14] The Defendant further claimed that it had instructed the Plaintiff to carry out rectification works on the defective units and despite the said rectification works, there were recurrent defects which the Plaintiff purportedly refused to attend to. The Defendant then proceeded to carry out the rectification works at its own costs by appointing independent consultants and third-party contractors. According to the Defendant, it had incurred a sum of approximately RM10.9 million in carrying out the rectification works and continues to incur costs. 7 - The Plaintiff’s claims in respect of the Building Contract in the adjudication proceedings [15] Meanwhile, the Plaintiff had served a Payment Claim under the Construction Industry Payment And Adjudication Act 2012 [Act 746] on the Defendant on 2.2.2016 (‘said Adjudication’) wherein the Plaintiff claimed the amount of RM6,567,845.40, which comprised of RM4,018,030.02, being the alleged unpaid balance revised final contract sum and RM2,549,815.38 being the sum of the amounts paid to the Defendant under the Bank Guarantees in respect of the Building Contract. The Notice of Adjudication was issued by the Plaintiff on 18.4.2016. The learned Adjudicator had, on 11.10.2016, delivered his decision, inter alia, that the Defendant shall pay the Defendant the sum of RM2,549,815.38 with interest at the rate of 5% per annum from 4.1.2013 until payment of the adjudicated sum. The Defendant duly complied with the adjudication decision. 8 - The Defendant’s Notice To Arbitrate dated 9.5.2016 in respect of the Piling Contract and the Building Contract [16] While the adjudication proceedings were ongoing, the Defendant launched its own claim by way of a Notice To Arbitrate dated 9.5.2016. In para 3, the Notice To Arbitrate is said to relate to a dispute that has arisen out of, and in relation to, the Piling Contract and the Building Contract. In para 14, the Defendant nominated Ir. Harbans Singh K.S. as the sole arbitrator. The Defendant claimed a sum of RM10 million from the Plaintiff being the costs of rectification works, or alternatively, that the said sum be set-off against any payments allegedly due to the Plaintiff. [17] In response, the Plaintiff’s solicitors issued a letter dated 6.6.2016 to the Defendant’s solicitors stating that the Notice To Arbitrate was issued pursuant to two separate and distinct arbitral clauses/ agreements i.e. Clause 34 under the Piling Contract and Clause 34 under the Building Contract. It was additionally stated that the Notice To Arbitrate was embarrassing, equivocal, ineffective and/ or null and void and therefore has to be ignored accordingly. 9 [18] Following the abovesaid letter, which to the Defendant indicates that the Plaintiff did not agree to the appointment of Ir. Harbans Singh as the arbitrator, the Defendant’s solicitors wrote to the President of Pertubuhan Akitek Malaysia (‘PAM’) on 13.6.2016 pursuant to Clause 34.2 of the Piling Contract and Building Contract requesting that a sole arbitrator be appointed to hear and determine the disputes and differences between the parties. The said Clause states as follows: “34.2 Upon the disputes or differences having arisen then: 34.2(i) any party may serve written notice on the other party that such disputes or differences shall be referred to an arbitrator to be agreed between the parties; or 34.2(ii) failing agreement or absence of reply or reluctance to act by the other party then the party serving the written notice may after the expiration of fourteen (14) days from the 10 date of the notice to concur on the appointment of an Arbitrator, apply to the President or Deputy President for the time being of Pertubuhan Arkitek Malaysia to appoint an arbitrator and such arbitrator so appointed shall be deemed to be appointed with the agreement and consent of the parties to this Contract.”. [19] The Plaintiff’s solicitors immediately responded on 15.6.2016 by issuing a letter to the President of PAM. In that letter, apart from conveying the Plaintiff’s position as was stated in the letter dated 6.6.2016 to the Defendant’s solicitors, it was highlighted that under s 40 AA 2005, unless with the parties’ agreement, the arbitral tribunal has no power to order consolidation of arbitration proceedings and as such, save where the parties mutually consent, two or more arbitration proceedings could not be consolidated. The letter ends with the statement that, absent a valid, regular and proper notice to arbitrate, 11 there is no valid, regular and proper invocation of PAM’s power to appoint an arbitrator and/ or such purported invocation is premature. [20] PAM then wrote a letter dated 23.6.2016 to the Defendant’s solicitors seeking for their response to the abovementioned letter dated 15.6.2016 but none was issued. - The Plaintiff’s Notice To Arbitrate dated 2.12.2016 in respect of the Building Contract [21] To recap, the learned Adjudicator did not allow the Plaintiff's claim for the outstanding amount of RM4,018,030.02 in the said Adjudication. This led the Plaintiff to serve its Notice To Arbitrate under the Building Contract to the Defendant on 2.12.2016. [22] By way of a letter dated 4.4.2017, the Plaintiff’s solicitors requested that the President of PAM appoint an arbitrator to hear and determine the dispute between the parties in respect of the Building Contract. PAM accordingly replied to the solicitors for both parties on 11.5.2017 12 enclosing a copy of the Letter of Appointment, also dated 11.5.2017, of Ar. Lim Fang Keong as the Arbitrator. [23] The Award was published on 15.3.2019 wherein the learned Arbitrator directed that the Defendant pay to the Plaintiff the balance sum of RM4,018,030.02 as in the Final Account together with interest and costs of the arbitration. Among the Arbitrator’s findings are that – (a) the Defendant has failed to prove that the defects and settlement of the units of houses in question were due to the building works; (b) all the Defendant’s witnesses had given evidence that the cause of cracks and settlements were due to the foundation/ piling works; and (c) the Plaintiff in the Building Contract cannot be held responsible for the damages and all associated cost for repairs due to the piling works. 13 - The Defendant’s civil suit against the Plaintiff [24] According to the Defendant, it had, on 19.12.2016, suggested to the Plaintiff to have the disputes between the parties under both the Piling and the Building Contracts be heard by a single arbitrator or alternatively, that the disputes be referred to court for disposal. However, on 22.12.2016, the Plaintiff informed that it is not agreeable to the said suggestion. [25] Subsequently, the Defendant filed a claim against the Plaintiff in court on 26.1.2017 to recover the costs incurred by the Defendant in carrying out the rectification works. [26] The Plaintiff then filed an application to stay the court proceedings pending arbitration vide a Notice of Application dated 24.2.2017. During the hearing of this application on 21.4.2017, the Defendant requested the learned Judge to make a conditional order pursuant to 14 sub-s 10(2) AA 2005 that the disputes between the parties under both contracts be heard by a single and the same arbitrator. [27] However, the learned Judge was of the view that he has no discretion to grant the order as prayed and the Defendant was informed that it may file an application for a declaration that the disputes under both contracts to be heard by a single and same arbitrator. [28] Thereafter, on 8.6.2017, the Defendant filed such an application vide Shah Alam High Court O.S. No.: BA-24C(ARB)-4-06/2017. This suit was subsequently transferred to the Kuala Lumpur High Court and registered as O.S. No.: WA-24C(ARB)-42-09/2017. On 12.12.2017, an Order was made by consent that: (a) the Defendant would write to PAM to request the same Arbitrator i.e. Ar. Lim Fang Keong, who was then already appointed to hear the dispute pertaining to the Building Contract, to be appointed as the arbitrator to hear the dispute between the parties under the Piling Contract; and 15 (b) the Plaintiff shall not object to the application in subpara (a) and shall leave it to PAM to decide accordingly. - Further correspondence with PAM [29] On 15.12.2017, the Defendant’s solicitors wrote to PAM to request that Ar. Lim Fang Keong be appointed as the arbitrator in respect of the dispute between the parties under the Piling Contract. [30] Subsequently, two letters both dated 18.12.2017 were sent to PAM, each by the Plaintiff’s and the Defendant’s solicitors as to the actual tenor of the Consent Order made on 12.12.2017. [31] Finally, on 11.1.2018, PAM sent a letter to Ar. Lim Fang Keong appointing him as the Arbitrator in the Piling Contract Arbitration. 16 [32] However, the matter did not end there as the Plaintiff’s solicitors again wrote to the President of PAM on 2.5.2018, with the permission of the learned Arbitrator and with reference to the Letter of Appointment dated 11.1.2018, seeking confirmation as to the commencement of the arbitration and at whose request was the appointment of the Arbitrator made and the particulars of such request, and who are the respective Claimant and Respondent in the arbitration. [33] The Chairman of the Alternative Dispute Resolution Committee, PAM replied on 31.5.2018 that the President of PAM had appointed Ar. Lim Fang Keong as the Arbitrator for the dispute arising out of – (a) the Building Contract on 11.5.2017 at the request of the Plaintiff; and (b) the Piling Contract on 11.1.2018 at the request of the Defendant. [34] At the time of hearing of this O.S., the arbitration in respect of the Piling Contract was still ongoing. 17 FIRST ISSUE: WHETHER THE REQUIREMENTS IN SUB-S 41(1) AA 2005 ARE FULFILLED (i) Is the Proposed Question a question of law? - The parties’ contentions [35] The Defendant relied on the decision of the Court of Appeal in Bauer (M) Sdn Bhd v Kukdong Engineering & Construction Co Ltd [2016] MLJU 1779 for the proposition that the jurisdiction of this Court under s 41 AA 2005 is derived only when the question framed relates to a pure question of law arising in the course of arbitration. [36] It was submitted that the Proposed Question is not a question of law since the answer to the same depends heavily on the finding of facts that can be decided only by the Arbitrator in the ongoing Piling Contract Arbitration as to whether the Plaintiff has fraudulently concealed the depth of the piling driven by it for the construction of the terrace houses. 18 [37] For the Plaintiff, Dato’ Lee Chan Leong argued that it is axiomatic that the Court must be presented and furnished with a given set of facts in order for it to adjudicate upon the subject matter in dispute between the parties. Learned counsel then cited the decision of Far East Holdings v Majlis Ugama Islam [2018] 1 MLJ 1 where Jeffrey Tan FCJ, in delivering the judgment of the Federal Court at p 60, had explicated on what would meet the paradigm of a question of law in the context of s 42 AA 2005 and this includes “a question concerning the legal effect to be given to an undisputed set of facts” (emphasis is mine). Although s 42 AA 2005 has since been repealed, it was contended that this legal principle is still valid and applicable in the context of s 41. [38] The Plaintiff took the position that all the facts required for the formulation and disposal of the Proposed Question are undisputed and have already been sufficiently placed before this Court and thus, having nothing further to be resolved first by the Arbitrator. This renders the Proposed Question, which is a pure question of law as its resolution merely requires the identification, consideration and application of the law of limitation to the given set of undisputed facts, 19 perfectly suited for determination and disposal under s 41 AA 2005 by this Court. At the very least, the Plaintiff posited that the Proposed Question is a mixed question of law and fact, namely whether the facts satisfy the legal tests, and hence still a question of law within the meaning of s 41 AA 2005. - The findings of the Court [39] The provision on the “Determination of preliminary point of law by court” is set out in s 41 AA 2005 and sub-s (1) states: “41. (1) Any party may apply to the High Court to determine any question of law arising in the course of the arbitration – (a) with the consent of the arbitral tribunal; or (b) with the consent of every other party.”. 20 [40] At the beginning of this judgment, I had alluded to the fact that in the Consent Order dated 15.11.2019, the parties agreed that the Proposed Question be referred to the High Court for determination pursuant to para 41(1)(b) AA 2005 provided that the Defendant shall be at liberty to raise the issue that the Proposed Question is not a question of law. [41] In Bauer (supra), a case which involved a reference of two questions to the High Court under para 41(1)(a) AA 2005, the Court of Appeal emphasised that the jurisdiction of the High Court under s 41 AA 2005 is derived only when the question framed relates to a pure question of law arising in the course of the arbitration. This is expressed in the following passage from the judgment: “[15] To recapitulate, section 41 of the Arbitration Act 2005 can only be resorted to when the questions to be referred to the High Court must be questions of law arising “in the course of the proceedings”. In other words, the High Court’s jurisdiction to hear such application is premised only on the existence of a question of law which forms the subject matter 21 of the application itself. As it is a jurisdiction issue, the High Court must be satisfied that there are questions of law involved even though as in this case the application was made with the consent of the arbitrator. The High Court is fully entitled to strike out the application if the same does not contain questions of law.”. [42] Even though the instant case is a reference under para 41(1)(b) AA 2005, the general principles as expounded by the Court in Bauer’s case would be equally applicable. The Court of Appeal also acknowledged that the task of determining what is a question of law and question of fact is sometimes not an easy task. In this regard, Professor Sundra Rajoo in his book Law, Practice and Procedure of Arbitration (Second Edition), Lexis Nexis, 2017 at pp 548 - 549 had referred to a series of Malaysian and English cases where the general principles were conveniently summarised in these words: “The arbitral tribunal in giving its approval, and the court in deciding whether there are likely to be substantial savings in 22 costs or substantial impacts on the rights of a party, may also take into consideration the following: (1) The question of law must be clear cut and capable of being accurately stated as a point of law. The question of law must not merely be a matter of fact or evidence dressed up as a point of law. Some clear- cut examples of points of law include the interpretation of statutes, construction of contracts and implication of a term in a contract. (2) On the other hand, examples of matters of fact include the surrounding circumstances of a contract, customary ways of working, reasonableness of an act or omission and acceptability of the quality of work done. It was held in Compagnie d’Armement Maritime SA v Compagnie Tunisienne de Navigation SA that what is the proper law of the contract is also a question of fact. Nevertheless, there will more frequently be instances of mixed 23 points of fact and law, for example, repudiation or breach of contract, damages suffered or negligence. In these instances, the question of law could still be stated but the arbitrator must find the relevant facts encompassing the question. (3) The points of law are open to serious argument. There is no point stating a case on a particular question of law that is clearly trite and pronounced by the highest court. On the other hand, the point of law need not necessarily be a novel one. (4) The question of law must be substantial in the sense of being important for the resolution of the dispute. Generally, the question of law should be a matter of substantive law going to the root of the dispute and not one of procedure. However, an arbitral tribunal may state as a question of law whether there is evidence on which the arbitral tribunal could make a 24 particular finding of fact or whether particular evidence is admissible or properly received. (5) The question of law must be raised bona fide and not for some ulterior motive. It should not be over a question of jurisdiction of the arbitral tribunal because if the arbitral tribunal had no jurisdiction to deal with the dispute, it would have no jurisdiction to state a case. Thus, the court has the discretion to refuse to consider the question.” (emphasis added; see too, UNCITRAL Model Law & Arbitration Rules: The Arbitration Act 2005 (Amended 2011 & 2018) and the AIAC Arbitration Rules 2018, Datuk Professor Sundra Rajoo & Special Contributor Dr. Thomas R. Klötzel, Sweet & Maxwell, 2019 at pp 614 - 615). 25 When did the Defendant’s cause of action accrue? [43] The Proposed Question as drafted raises the fundamental question as to when the Defendant’s cause of action accrued. Reference is made to the “Claimant’s Statement of Claim dated 24/08/2018” and upon perusal of the Points Of Claim, I find that the Defendant had pleaded the following facts in paras 15 - 23: (a) Upon completion of the works under the Building Contract, in February 2011, the Defendant discovered severe cracks in the buildings especially in the units located at Block A4, B4, C4 and C5 of Phase 2 and Phase 3 (‘defective units’). These are latent defects which the Defendant was able to discover only in February 2011. (b) The Defendant then instructed the Plaintiff to carry out rectification works on the defective units. Although the Plaintiff carried out the rectification works, the cracks continued to recur immediately and subsequent instructions to the Plaintiff to further rectify the defects were ignored by the Plaintiff. 26 (c) The Defendant appointed an independent consultant, LTE Engineers Sdn Bhd (‘LTE’) to carry out a review and investigation on the causes for the cracks and settlement and the possible rectification works. (d) LTE issued its Interpretation & Analysis Report dated 20.9.2011 wherein it was stated that the cracks and settlement located in Block B4 and C4 in Section 2 of Phase 3 were very critical and that there may be occurrence of critical cracks and settlement in Block C5 of Section 2 of Phase 3. Therefore, it was recommended that rectification works for the cracks and settlement must be carried out. (e) On 24.11.2011, the Defendant through its former solicitors issued a letter to the Plaintiff informing them of the discovery of the cracks, the on-going investigation by the independent consultant and that the need to carry out the rectification works. 27 (f) On 9.1.2012, the Defendant appointed Concrete Solution Sdn Bhd (‘Concrete Solution’) to carry out the settlement monitoring works. The Plaintiff was informed of this appointment vide a letter dated 23.2.2012 sent by the Defendant’s former solicitors. (g) The Defendant contends that the Plaintiff, in breach of – (i) its obligations pursuant to the terms and conditions of the Piling Contract, did not provide the sufficient pile length; and (ii) its duty of care to the Defendant, provided inaccurate information in the piling records. (h) The Defendant’s former solicitors issued its letter of demand dated 26.11.2012 to the Plaintiff to inform of LTE’s findings and to demand payment of RM2,626,623.52 for estimated losses incurred at that juncture. 28 [44] The pleadings in the Points Of Claim continue to narrate the facts surrounding the encashment of the Bank Guarantees by the Defendant; issuance of the Statement of Final Accounts on 1.10.2013; further complaints of serious defects from the unit owners at Blocks B4 and C5 of Section 2 as well as Block B3 of Section 1 in January 2015; and the appointment of LTE and Soil Centralab Sdn Bhd (‘Soil Centralab’) to conduct investigations and to carry out settlement monitoring works, respectively, and the subsequent submission of their reports. [45] In LTE’s report which was submitted on 18.9.20015, LTE found that 17 units of houses have settlement issues; Lot 175, Block C5 had serious settlement; and Lot 164, Block C3 had significant differential settlement. [46] I further find that the plea of limitation was raised by the Plaintiff in paras 2 - 2.8 in the Statement of Defence dated 1.10.2018 whereby the Plaintiff contends that the Defendant’s cause of action is time- barred with effect from 28.5.2014 and/ or 21.2.2014 since the cause 29 of action accrued on the date when the piling works were completed, namely – (a) for Section 1, on 28.5.2008 as evidenced by the CPC dated 27.6.2008; and (b) for Section 2, on 21.2.2008 as evidenced by the CPC dated 5.3.2008. [47] Alternatively, and on the assumption that there was defective piling works and that the date of damage suffered is taken as the date of accrual of the cause of action, the Plaintiff pleaded that the Defendant's alleged cause of action would have accrued latest by February 2011 when the ensuing damage had already become apparent to the Defendant and thereby the cause of action became time barred latest by February 2017. [48] In the Statement Of Reply dated 30.10.2018, the Defendant stated that the cause of action occurred only after it discovered the cause of 30 the cracks in September 2011 (see para 1) and this is further elaborated in paras 3 and 4 as follows: “3. The Claimant further states that the Claimant discovered the cracks sometime in February 2011 but the cause for the cracks on the building only discovered in September 2011 when the independent consultant appointed by the Claimant found that the cracks were caused by the under piling work of the Respondent. In this regard, the Claimant states that the Respondent had fraudulently concealed the fact that the pilings which were driven by the Respondent did not reach 24 meters as recorded by the Respondent. The Claimant states as follows:- 3.1 The independent consultant appointed by the Claimant, LTE, found from the piling records prepared by the Respondent that it was recorded that the friction piles were driven to 24 meters. 31 LTE opined that this was impossible as at some instances there were limestone between 10.7 meters to 20.8 meters. 3.2 The Respondent had fraudulently concealed to the Claimant that the piles in fact were not driven to 24 meters. 3.3 The Respondent had manipulated the piling records to mislead the Claimant. 3.4 The Claimant became aware of the fraudulent concealment of the Respondent in September 2011 when the same was discovered by the independent consultant LTE. 4. Premised on paragraph 3 above, the Claimant states that the limitation period started to run from September 2011 pursuant to Section 29 of the Limitation Act 1953 32 and that the Claimant’s claim is not time barred as alleged by the Respondent.”. [49] Based on para 6(1)(a) of the Limitation Act 1953 [Act 254] (‘LA 1953’), actions founded on a contract shall not be brought after the expiration of six years from the date on which the cause of action accrued. [50] For purposes of the Defendant’s plea of fraud in the Statement of Reply, s 29 LA 1953 on the postponement of limitation period in a case of fraud is relevant and it states: “29. Where, in the case of any action for which a period of limitation is prescribed by this Act, either— (a) the action is based upon the fraud of the defendant or his agent or of any person through whom he claims or his agent; or 33 (b) the right of action is concealed by the fraud of any such person as aforesaid; or (c) … the period of limitation shall not begin to run until the plaintiff has discovered the fraud or the mistake, as the case may be, or could with reasonable diligence have discovered it: …”. [51] In addition, s 30 LA 1953 provides for the application of the LA 1953 and any other written law on the limitation of actions to arbitrations as follows: “30. (1) This Act and any other written law relating to the limitation of actions shall apply to arbitrations as they apply to actions. 34 (2) Notwithstanding any term in any submission to the effect that no cause of action shall accrue in respect of any matter required by the submission to be referred until an award is made under the submission, the cause of action shall, for the purpose of this Act and of any other such written law (whether in their application to arbitrations or to other proceedings), be deemed to have accrued in respect of any such matter at the time when it would have accrued but for that term in the submission. ….”. [52] The seminal work of Prof. Choong Yeow Choy in Law of Limitation, Butterworths Asia, 1995 at pp 170 - 171 mentions sub-s 30(1) LA 1953 in the following excerpt: “Under subsection (1) if a contract contains an arbitration clause, a party wishing to rely on such a clause and refer the matter for arbitration must do so within the limitation period of 35 six years as it would be an action founded on contract within the meaning of section 6(1)(a) of the Limitation Act 1953. As to when such a limitation period would begin to run, subsection (2) provides that the cause of action shall be deemed to have accrued, in the case of an action founded on contract, at the date of the breach of such contract. …”. [53] The Plaintiff’s counsel had cited a plethora of cases which have elucidated on the issue as to when a cause of action founded on a contract accrues and the general rule that the cause of action accrues when the breach occurred, and not when the damage is suffered (see Lim Kean v. Choo Koon [1970] 1 MLJ 158; Nasri v. Mesah [1971] 1 MLJ 32; Loh Wai Lian v. Sea Housing Corp. Sdn. Bhd. [1984] 1 CLJ (rep) 223; Ambank (M) Bhd v. Abdul Aziz Hassan & Ors [2010] 7 CLJ 663; and Aneka Melor Sdn Bhd v. Seri Sabco (M) Sdn Bhd & Another Appeal [2016] 2 CLJ 563). However, Mr. Sanjay Mohan correctly pointed out that these cases do not make reference to s 29 LA 1953, a provision which is being relied upon by the Defendant as evident from the Statement Of Reply. 36 [54] The opening words of s 6 LA 1953 viz. “Save as hereinafter provided” signify that the provision in s 6 is to be applied subject to the other following provisions of the Act which would include s 29. If the Defendant can show that the right of action was concealed by the fraud of the Plaintiff, then the period of limitation would not begin to run until the Defendant discovered the fraud (see Sivapiran a/l Sabapathy v Lim Yoke Kong [1992] 2 MLJ 381 and upheld by the Supreme Court in Lim Yoke Kong v Sivapiran a/l Sabapathy [1992] 2 MLJ 571). [55] In Ambank’s case at pp 670 - 672, the Court of Appeal held that: “[16] We have read s 29 of the Limitation Act 1953 and we say that this is the only provision which allows a plaintiff to postpone the limitation period on the grounds that the facts are not known to the plaintiff. We say that the limitation period may be postposed only if the cause of action is based on fraud of the defendant or is concealed by the defendant or is an action for relief from consequences of a mistake. We categorically say that s 29 37 of the Limitation Act 1953 is not applicable to the appellant for the simple reason that this issue was never pleaded nor raised. The parties must be bound by their pleadings … [17] Credit Corporation (M) Bhd v Fong Tak Sin [1991] 1 MLJ 409 (SC), is a judgment of Hashim Yeop A Sani CJ (Malaya) and we are bound by it. In that case, this was what His Lordship said in regard to the cause of action (see p 411 of the report): From established authorities we can now accept that the cause of action normally accrues when there is in existence a person who can sue and another who can be sued, and when all the facts have happened which are material to be proved to entitle the plaintiff to succeed. [18] Continuing at p 412 of the report, His Lordship Hashim Yeop A Sani CJ (Malaya) had this to say: 38 … Section 29 of our Limitation Act 1953 is in pari materia with s 26 of the old English Limitation Act 1939 … This provision was inserted to protect a plaintiff who was ignorant of his right of action in the special case of fraudulent concealment, and to overcome the difficulty that time would otherwise be running against him, unknown to him. ...” (emphasis added). [56] Since the Defendant has pleaded s 29 LA 1953, the answer to the question as to whether the Defendant’s cause of action accrued on 21.2.2008, 28.5.2008, in February 2011 or in September 2011 depends on the findings of fact on whether the Plaintiff has fraudulently concealed the fact that the pilings which were driven by it did not reach the required depth. The Defendant had also pleaded that upon discovery of the cracks, the Defendant took steps in appointing LTE to 39 investigate the matter and subsequently hired Concrete Solution and Soil Centralab to remedy the defects. It was further pleaded that as at January 2015, the Defendant was still receiving complaints and discovering more cracks, allegedly because of the Plaintiff’s defective works. [57] In the upshot, the Proposed Question as framed in para B(b) at p 4 of the O.S. (encl. 1) is not a pure a question of law. It is a question which involves mixed points of fact and law which requires the Arbitrator to make certain findings of facts based on the evidence before him before the law can be applied to the facts as established. Although the Plaintiff contends that the question merely requires the identification, consideration and application of the law of limitation to a given set of undisputed facts, the affidavit evidence in this application show that the material facts which have to be established in order to answer the question are actually heavily disputed. [58] Even if I am to venture to offer an opinion on the issue of the accrual of the cause of action, and assuming that the Defendant discharges 40 the burden of proving that there are defective piling works, I would reject the dates as suggested by the Plaintiff i.e. 21.2.2008 or 28.5.2008 on the ground that the breach had not occurred on either of those dates. This leaves either the month of February or September in the year 2011 as the time when the Defendant’s cause of action accrued. (ii) Did the issue of limitation arise in the course of the arbitration? [59] It is the Defendant’s stance that the Proposed Question did not arise in the course of the arbitration but was an issue which was apparent from the outset as evident in the Plaintiff’s pleadings. This being the case, the parties had agreed to put forward the issue of limitation for the Arbitrator to consider and not to subsequently file an application pursuant to s 41 AA 2005. The Defendant contends that this is consistent with ss 8 and 18 AA 2005 which provides for limited court intervention and for the competence of the arbitral tribunal to rule on its jurisdiction. 41 [60] In emphasising that raising the issue of limitation does not amount to a challenge to the jurisdiction of the Arbitrator, Dato’ Lee Chan Leong in para 6.9 of the Executive Summary conceded that “… the issue of limitation arose out of the original arbitral pleadings and was there for arbitral adjudication (albeit now being referred to court for determination as preliminary point of law pursuant to Section 41 of AA 2005) …”. [61] The learned authors of UNCITRAL Model Law & Arbitration Rules: The Arbitration Act 2005 (Amended 2011 & 2018) and the AIAC Arbitration Rules 2018 (supra, at pp 613 - 614) opined that the words “arising in the course of the arbitration” means that the “… applications must be made prior to the issue of the award. Formerly, if a question of law arose after the making of an award, then an application was required to be made under the former section 42 of the AA 2005. …” [see too, The Arbitration Act 2005: UNCITRAL Model Law as applied in Malaysia (supra, at p 194)]. 42 [62] In my opinion, the words “in the course of the arbitration” simply means that the question of law emanated during the arbitration proceedings being at any point of time between the commencement of arbitral proceedings as set out in s 23 AA 2005 until the date that the Award is made or published. Since the issue of limitation was first raised by the Plaintiff in the Statement Of Defence (see s 25 AA 2005), which was submitted after the arbitration had commenced, and the arbitration proceedings is still ongoing, the said issue can be said to have arisen in the course of the arbitration. [63] Upon deeper reflection, it seems to me that the essence of the Defendant’s submission is that, by virtue of the arbitration clause in the Piling Contract, the Proposed Question should be answered by the Arbitrator and not by reference to the High Court under s 41 AA 2005, rather than as regards the point of time when the issue of the statutory limitation period was raised by the Plaintiff. 43 SECOND ISSUE: WHETHER THE REQUIREMENTS IN PARAS (a) AND (b) OF SUB-S 41(2) AA 2005 ARE FULFILLED [64] Based on sub-s 41(2) AA 2005, this Court shall not consider an application under subsection (1) unless it is satisfied that the determination is likely to produce substantial savings in costs and substantially affects the rights of one or more of the parties. The Defendant argued that the Plaintiff has not alluded to these matters whether in the Affidavit In Support (‘AIS’; encl. 2) or 2ND AIS (encl. 5) and this failure would mean that the Plaintiff’s application should be dismissed. [65] I have scrutinised the Plaintiff’s affidavits in encls. 2 and 5 and find that there are indeed no averments on the matters as stated in paras (a) and (b) of sub-s 41(2) AA 2005. I have also examined the O.S. where in compliance of O. 69, r. 4(1) RoC 2012, the Plaintiff states that the statutory requirements of ss 41(1)(b) and 50 AA 2005 have been met since the O.S. is filed with the consent of both parties to the Piling Contract Arbitration and the application to the High Court has been made by an O.S. as provided in the RoC 2012. Further, in compliance 44 of O. 69, r. 7 RoC 2012, the Plaintiff repeats that the O.S. is filed with the consent of both parties to the Piling Contract Arbitration pursuant to para 41(1)(b) AA 2005. Nothing is mentioned about the requirements in sub-s 41(2) AA 2005. [66] In view of the express stipulation in sub-s 41(2) AA 2005 that the Court must be satisfied that the determination of the question of law is likely to produce substantial savings in costs and will substantially affect the rights of one or more parties, it is incumbent on the Plaintiff to aver on these matters in its affidavit(s). Statements in the Written Submissions that the dual requirements are fulfilled are merely statements from the Bar and is not evidence (see the decisions of the Court of Appeal in Ng Hee Thoong & Anor v Public Bank Bhd [1995] 1 MLJ 281; Lie Kok Keong v Tang Container & Services Sdn Bhd [2004] 1 MLJ 373; and Beatrice A/P At Fernandez v Sistem Penerbangan Malaysia & Anor [2004] 4 MLJ 466). [67] This Court therefore holds that the Plaintiff has not established the requirements in paras (a) and (b) of sub-s 41(2) AA 2005. 45 THIRD ISSUE: WHAT IS THE COMMENCEMENT DATE OF THE ARBITRATION PROCEEDINGS? - The parties’ contentions [68] The Plaintiff cited Article 2.1 of the PAM Arbitration Rules (2015 Edition) (‘PAM Rules 2015’; exhibit “CFC-19”, encl. 2) in contending that the Piling Contract Arbitration commenced on 15.12.2017 upon the Defendant’s request to PAM to appoint Ar. Lim Fang Keong to be the arbitrator (exhibit “CFC-17”, encl. 2). Later, the fact that the arbitral proceedings shall be in accordance with the AA 2005 and the PAM Rules 2015 was mentioned by the Arbitrator in his letter dated 20.1.2018 (exhibit “CFC-19” as well) to the solicitors for the parties to inform that he has accepted the appointment and seeking for the parties’ free dates to convene a preliminary meeting. Therefore, the Defendant’s claim is said to be time barred. [69] At the other end of the spectrum, the Defendant asserted that the arbitration commenced vide the Notice To Arbitrate dated 9.5.2016 (exhibit “CFC-10”, encl. 2) which was issued by the Defendant 46 pursuant to s 23 AA 2005 and sub-s 30(3) LA 1953. Alternatively, it was contended that the commencement date is 13.6.2016 when the Defendant issued the letter to PAM requesting PAM to appoint a single arbitrator (exhibit “GK-2”, encl. 6). Based on either date, Mr. Sanjay Mohan submitted that the Defendant’s claim is not time barred. [70] Specifically, the Defendant took the position that – (a) the Plaintiff did not take any steps to challenge the validity of the Notice To Arbitrate dated 9.5.2016; (b) Article 2.1 of the PAM Rules 2015 is inconsistent with s 23 of the AA 2005; (c) there is no agreement between the parties to apply the PAM Rules 2015 or in particular, to opt for Article 2.1 of the same, in determining the commencement date for the arbitration; and 47 (d) the Plaintiff’s reliance on Article 2.1 of the PAM Rules 2015 in alleging that the arbitration proceedings commenced only on 15.12.2017 is inconsistent with Clause 34 of the PAM Contract 1998. - The findings of the Court (i) Whether the Plaintiff took any steps to challenge the validity of the Notice To Arbitrate dated 9.5.2016 [71] Sub-s 18(3) AA 2005 provides that a plea that the arbitral tribunal does not have jurisdiction shall be raised not later than the submission of the statement of defence. A perusal of the Plaintiff’s Statement of Defence filed at the arbitration proceedings clearly shows that the Plaintiff did not challenge the validity of the Notice to Arbitrate nor the jurisdiction of the Arbitrator to decide the dispute between the parties in respect of the Piling Contract. 48 [72] However, the Plaintiff’s submission is that its objections to the Notice To Arbitrate were made in its solicitor’s letter dated 15.6.2016 to the President of PAM as outlined earlier. Thereafter, the Defendant did not reply to PAM’s letter dated 23.6.2016 and had participated in the Plaintiff’s Building Contract Arbitration until completion. Hence, the Notice To Arbitrate is alleged to have been abandoned by the Defendant and/ or superseded by subsequent events and the Defendant is estopped from trying to resurrect the same. [73] I have considered the abovesaid submissions and in my view, the Plaintiff’s contentions at this stage that the Notice To Arbitrate is null and void are absolutely baseless. The “subsequent events”, particularly, the Consent Order dated 12.12.2017, in fact supports the Defendant’s stance that the Plaintiff has waived whatever objections it has with regards to the Notice to Arbitrate by agreeing that it shall not object to the Defendant’s application to PAM for Ar. Lim Fang Keong to be appointed to hear the dispute between the parties under the Piling Contract and shall allow PAM to decide accordingly. 49 [74] In any event, the Defendant’s submission that this is not the appropriate forum for the Plaintiff to raise issues in respect of the validity of the Notice to Arbitrate when the dispute is currently subject to ongoing arbitration proceedings is on firm ground. The question raised by the Plaintiff in respect of the present application before the Court is clear and that is whether the Defendant’s cause of action is time barred. The Plaintiff did not propose any question of law pertaining to the validity of the Notice to Arbitrate. (ii) Did the parties agree to apply the PAM Rules 2015 or had opted to apply Article 2.1 of the same in determining the commencement date for the arbitration? (iii) Is the Plaintiff’s reliance on Article 2.1 of the PAM Rules 2015 inconsistent with Clause 34 of the PAM Contract 1998? (iv) Is Article 2.1 of the PAM Rules 2015 inconsistent with s 23 of the AA 2005? [75] The abovementioned three issues will be addressed collectively as they are interlinked with one another. 50 [76] Before embarking further on the issue of the interplay between Clause 34 of the PAM Contract 1998, Article 2.1 of the PAM Rules 2015 and ss 23 and 30 of the AA 2005, it would be useful to re-produce the relevant parts of these provisions for expediency (any added emphasis to the sections quoted are my own). [77] Firstly, the other relevant parts of Clause 34 of the PAM Contract 1998 which have yet to be re-produced are as follows: “34.0 Arbitration 34.1 In the event that any dispute or difference arises between the Employer, or the Architect on his behalf, and the Contractor, either during the progress or after completion or abandonment of the Works regarding: 34.1(i) any matter or thing of whatsoever nature arising thereunder or in connection therewith 51 including any matter or thing left by this Contract to the discretion of the Architect; or 34.1(ii) the withholding by the Architect of any certificate to which the Contractor may claim to be entitled to; or 34.i(iii) the measurement and valuation in sub-clause 30.5(i); or 34.1(iv) the rights and liabilities of the parties under Clauses 25.0, 26.0, 31.0 or 32.0; or 34.1(v) the unreasonable withholding of consent or agreement by the Employer or the Architect on his behalf or by the Contractor. then such disputes or differences shall be referred to arbitration. 52 34.2 … 34.3 Upon appointment the Arbitrator shall, with despatch, initiate the arbitration proceedings following the provisions of the Arbitration Act 1952 (Revised 1972) or any statutory modification or re- enactment thereof for the time being in force and the PAM Arbitration Rules or any modification or revision thereof. The hearing may be held “ex parte” should either party, after having been given proper notice, fail to attend. …”. [78] Secondly, Article 2 of the PAM Rules 2015 provides that: “Article 2 - Commencement of the Arbitration 53 2.1 The arbitration shall be regarded as commenced when one party submits to the Appointing Authority an application in the form prescribed by PAM requesting him to appoint the Arbitrator accompanied by an application fee to be determined from time to time by PAM.” [79] Thirdly, the provision governing the commencement of arbitral proceedings can be found in s 23 AA 2005 and it stipulates that: “23. Unless otherwise agreed by the parties, the arbitral proceedings in respect of a particular dispute shall commence on the date on which a request in writing for that dispute to be referred to arbitration is received by the respondent.”. [80] Fourthly, sub-s 30(3) of the LA 1953 reads: “30. (1) … (2) … 54 (3) For the purpose of this Act and of any such written law as aforesaid, an arbitration shall be deemed to be commenced when one party to the arbitration serves on the other party a notice requiring him or them to appoint an arbitrator or to agree to the appointment of an arbitrator, or, where the submission provides that the reference shall be to a person named or designated in the submission, requiring him or them to submit the dispute to the person so named or designated.”. [81] Section 23 of the AA 2005 has a twofold effect viz. it allows the parties to choose at which point in time the arbitration is considered to have commenced and it explains how this commencement is to be determined if the parties fail to make a specific agreement on this point (see The Arbitration Act 2005: UNCITRAL Model Law as applied in Malaysia, supra, at p 108). The AA 2005 does not specify the requirement of a notice to commence arbitration and for the purpose of s 23, the term “request” to arbitrate is used interchangeably with “notice” to arbitrate (see UNCITRAL Model Law & Arbitration Rules: 55 The Arbitration Act 2005 (Amended 2011 & 2018) and the AIAC Arbitration Rules 2018, supra, at pp 397 - 398). [82] The opening words in s 23 i.e. “Unless otherwise agreed by the parties” signify that the parties are free to agree on how and when the arbitration is to commence. The parties can agree to a different date of commencement of arbitral proceedings from that as stated in s 23. Therefore, in this case, the first point of enquiry would be whether the parties had indeed come to an agreement as to the date of commencement of the arbitral proceedings. This calls for an examination of Clause 34 of the PAM Contract 1998 or more precisely, Clause 34.2 and 34.3. [83] Clause 34.2 sets out the procedure for the appointment of the arbitrator whilst Clause 34.3 governs “Ex Parte” Hearing where the arbitrator is required to proceed with the arbitration in accordance with the AA 2005 and the PAM Arbitration Rules or any modification or revision thereof. 56 [84] I have given careful consideration to the forceful arguments by Dato’ Lee Chan Leong and Mr. Sanjay Mohan for their respective clients and in my view, there is no agreement between the parties, whether express or implied, for the PAM Rules 2015 to apply in determining the commencement of the arbitral proceedings for the following reasons: (a) By reading Clause 34 of the PAM Contract 1998, it is obvious that it does not contain an express agreement by the parties for the PAM Rules 2015, and/ or to opt for Article 2.1 of the same, to apply in determining the commencement date of the arbitral proceedings. What the parties agreed to in Clause 34.3 is that the AA 2005 and PAM Rules 2015 shall apply in respect of the conduct of the arbitration after the appointment of the Arbitrator as denoted by the words “Upon appointment, the Arbitrator shall, with despatch, initiate the arbitration proceedings following the provisions of …”. 57 (b) Assuming that by virtue of Clauses 34.2 and 34.3 of the PAM Contract 1998, the parties can be said to have impliedly agreed on the date of commencement of arbitral proceedings, the question then arises as to what is the applicable date? Clause 34.3 makes reference to the Arbitration Act 1952 (Revised 1972) or any statutory modification or re-enactment thereof for the time being in force and the PAM Arbitration Rules or any modification or revision thereof. It is observed that in para E. 15 of the Notice To Arbitrate dated 9.5.2016, it is stated that “In accordance with the arbitration proceedings shall be initiated in accordance with the provisions of the Arbitration Act 2005 and the PAM Arbitration Rules.” (emphasis added). Now, applying s 23 AA 2005 to the facts in this case, the commencement date of the arbitral proceedings shall be the date on which the written request for the dispute to be referred to arbitration is received by the Plaintiff whilst if Article 2.1 of the 58 PAM Rules 2015 is applied, the arbitration shall be regarded as commenced when the Defendant submitted its application to the President or Deputy President of PAM as the Appointing Authority requesting him to appoint the arbitrator. It is in this context that the Defendant vehemently argued that there is a conflict between s 23 of the AA 2005 and Article 2.1 of the PAM Rules 2015. In this regard, although the textbook The PAM 2006 Standard Form of Building Contract by Sundra Rajoo, Dato’ WSW Davidson and IR Harbans Singh KS, LexisNexis, 2010 is, as its title suggests, largely a commentary on the then new PAM 2006 Standard Form, nevertheless at p 841, the learned authors have explained that the purpose of arbitration rules, which would include rules such as the PAM Rules 2015, is to provide the procedural machinery to reduce or eliminate unnecessary delays or expense and that the PAM Arbitration Rules is a working commercial document regulating the conduct of any arbitration under the PAM Form. It is further stated that “The rules are procedural in character and should be construed as such. It must 59 be read together with the provisions of the Arbitration Act 2005 to see which provision would prevail if there is a conflict between them.”. In the course of his submission, Mr. Sanjay Mohan referred to sub-s 21(1) AA 2005 which provides that “Subject to the provisions of this Act, the parties are free to agree on the procedure to be followed by the arbitral tribunal in conducting the proceedings.” and to the decision of Mohamad Ariff J (as he then was) in Infineon Technologies (M) Sdn Bhd v Orisoft Technology Sdn Bhd (previously known as Orisoft Technology Bhd) and another application [2011] 7 MLJ 539 to support his contention that even in the context of an institutionalised arbitration, the AA 2005 must override any rules of procedure chosen by the parties. Hence, it was postulated that since Article 2.1 of the PAM Rules 2015 has no force of law and that the application of the PAM Rules 2015 is subject to the provisions of the AA 2005, Article 2.1 of the PAM Rules 2015 is inapplicable as it contradicts s 23 AA 2005. 60 With respect, learned counsel appears not to have fully appreciated the fundamental difference between ss 21 and 23 of the AA 2005. Section 21 is about the rules of procedure to be followed by the arbitral tribunal in conducting the proceedings whereas s 23 sets out when the arbitral proceedings in respect of a particular dispute commences. Returning to the question at hand as to what is the date of commencement of the arbitral proceedings that the parties can be said to have, by implication, agreed upon, I find that no definitive answer can be given based on Clause 34 of the PAM Contract 1998 as drafted and the contemporaneous documents, namely, the Notice To Arbitrate and the correspondence between the parties at the material time in June 2016. [85] Following from the finding that the parties did not come to any agreement on the event and date as to when the arbitral proceedings is to commence, s 23 AA 2005 shall apply. The Notice To Arbitrate dated 9.5.2016 is in writing and has identified the particular dispute and 61 makes clear the intention that arbitration is resorted to. In other words, the formal requirements for a request for arbitration are met and the Plaintiff did not contend otherwise. The arbitral proceedings therefore commenced on the date when the Notice To Arbitrate was received by the Plaintiff. There is no evidence as to the exact date of service of the Notice To Arbitrate but in view of the Plaintiff’s solicitors letter dated 6.6.2016 (exhibit “CFC-11”, encl. 2), it can be safely assumed that the Plaintiff received the Notice To Arbitrate some time between 9.5.2016 and 6.6.2016. [86] The preceding conclusion would accord with the provision in sub-s 30(3) LA 1953 since in para 14 of the Notice To Arbitrate, the Defendant had requested and required the Plaintiff to concur with the Plaintiff in the appointment of an arbitrator and had proposed Ir. Harbans Singh K.S. as the arbitrator. [87] Alternatively, as contended by the Defendant, even if Article 2.1 of the PAM Rules 2015 is applicable, the Defendant had submitted its request to the Appointing Authority, namely the President of PAM on 62 13.6.2016, for him to appoint a sole arbitrator to hear and determine the dispute between the parties in respect of the Piling Contract. The parties did not raise any issue as to whether the letter dated 13.6.2016 is in the form as prescribed by PAM and whether the Defendant had also submitted the application fee. Hence, the arbitration shall otherwise be regarded as having commenced on 13.6.2016. [88] In so far as the Plaintiff’s contention that the Defendant’s letter of request dated 15.12.2017 has to be taken as the date of commencement of the Piling Contract Arbitration for the determination of the issue of limitation and not any other notices or requests, the Court finds that this contention is fallacious based on the following grounds: (a) The said letter was issued pursuant to the Consent Order dated 12.12.2017 where it seeks to inform PAM about the outcome of O.S. No. WA-24C(ARB)-42-09/2017 and to request PAM to appoint Ar. Lim Fang Keong, the same Arbitrator who heard the Building Contract Arbitration, to hear the dispute and that the 63 Plaintiff will leave it to PAM to decide on the appointment. The fact that the Defendant has, through its solicitors, served the Notice To Arbitrate dated 9.5.2016 to the Plaintiff was mentioned in the said letter. (b) Even though the Plaintiff’s solicitors wrote to PAM on 2.5.2018 seeking confirmation on, among others, the commencement of the Piling Contract Arbitration, PAM in its response dated 31.5.2018 (refer exhibit “CFC-20”, encl. 2 for the letters), did not provide the confirmation as desired by the Plaintiff. PAM merely confirmed that its President has appointed Ar. Lim Fang Keong as the Arbitrator for the Piling Contract Arbitration and that it is for the Arbitrator to resolve and decide on the dispute between the parties. (c) The courts have consistently held that the commencement of arbitration starts with the issuance of the notice of arbitration by one party to the other (see Mohammad Faizan bin Abd Khahar v AmGeneral Insurance Berhad [2019] MLJU 673 and the cases 64 cited therein, namely, Jayapadu Oil & Gas Sdn Bhd v Chersonese Oil Sdn Bhd [2014] 1 LNS 972; Foster Wheeler E & C (Malaysia) Sdn Bhd v Arkema Thiochemicals Sdn Bhd and another case [2015] MLJU 1952; Main Frontier Sdn Bhd v Koperasi Kesatuan Guru-Guru Melayu Malaysia Barat Berhad [2017] 1 LNS 2190; and Tan Sri Dato’ Seri Vincent Tan Chee Yioun & Anor v Jan De Nul (M) Sdn Bhd & Anor and another appeal [2019] 1 MLJ 557). Thus, the Piling Contract Arbitration commenced on 9.5.2016 when the Defendant issued the Notice to Arbitrate. (d) The Plaintiff’s submission on the purposive approach in the construction of statute as propounded by the Federal Court in Pengurusan Danaharta Nasional Berhad v Tang Kwoe Ham & Ors [2007] 5 MLJ 125 FC, wherein reference was made to s 17A of the Interpretation Acts 1948 And 1967 [Act 388] because there are allegedly multiple notices to arbitrate and/ or requests for the appointment of the arbitrator, is misplaced as my scrutiny of the Defendant’s submission does not show that the Defendant had 65 contended that there is an inconsistency between s 30 of the LA 1953 and Article 2.1 of the PAM Rules 2015. What Mr. Sanjay Mohan said for his client was that pursuant to s 23 AA 2005 and sub-s 30(3) LA 1953, an arbitration proceeding is deemed to have been commenced when a written notice or a request in writing is served on the other party or is received by the respondent. Consistent with these provisions, the Court agrees that the arbitral proceedings in this case commenced on the date on which the Notice to Arbitrate dated 9.5.2016 was received by the Plaintiff, or alternatively, on 13.6.2016. [89] Since I have earlier opined that the Defendant’s cause of action accrued in either February or September 2011, the commencement of the arbitral proceedings in May or June 2016 would be within the 6 year limitation period as provided under the LA 1953. 66 Conclusion [90] Following from the foregoing considerations, it is thus concluded that the Plaintiff has failed to establish that the Proposed Question is a question of law as required under sub-s 41(1) and that the stipulations in paras (a) and (b) of sub-s 41(2) of the AA 2005 have been fulfilled. In any event, the Proposed Question is answered in the negative as the Plaintiff has not proven, on a balance of probabilities, that the Defendant’s claims and/ or cause of action as disclosed in the Points of Claim dated 24.8.2018 are barred by limitation. [91] The Plaintiff’s application in encl. 1 was accordingly dismissed with cost. Dated: 30 June 2021 (ALIZA SULAIMAN) Judge Construction Court 2 High Court Kuala Lumpur 67 Counsels/ Solicitors: For the Plaintiff: Dato’ Lee Chan Leong Messrs. Chan Leong & Co. Advocates & Solicitors No. 3-4B, Jalan Anggerik Vanilla N 31/N Kota Kemuning, Seksyen 31 40460 Shah Alam Selangor Darul Ehsan For the Defendant: Sanjay Mohanasundram (Gobinath Karuppan with him) Messrs. Sanjay Mohan Advocates & Solicitors 5.01, Level 5 WORK@Clearwater Jalan Changkat Semantan 50490 Kuala Lumpur Cases, legislation and other sources referred to in the submissions by learned counsels and in the Grounds of Judgment: Cases: Allianz Versicherungs AG v Fortuna Co Incorporated [1998] Lexis Citation 3421 Ambank (M) Bhd v. Abdul Aziz Hassan & Ors [2010] 7 CLJ 663 68 Aneka Melor Sdn Bhd v. Seri Sabco (M) Sdn Bhd & Another Appeal [2016] 2 CLJ 563 Bauer (M) Sdn Bhd v Kukdong Engineering & Construction Co Ltd [2016] MLJU 1779 Charles M Willie & Company (Shipping) Ltd v Ocean Laser Shipping Ltd; G Roussos Sons SA and another v Charles M Willie & Company (Shipping) Ltd (The ‘Smaro’) [1998] Lexis Citation 3365 CIMB Bank Bhd v Lee Kim Kee & Ors and another appeal [2018] 3 MLJ 72 Director Of Custom, Federal Territory v. Ler Cheng Chye (Liquidator of Castwell Sdn. Bhd. (In Liquidation)) [1995] 3 CLJ 316 Far East Holdings Bhd & Anor v Majlis Ugama Islam dan Adat Resam Melayu Pahang and other appeals [2018] 1 MLJ 1 Foster Wheeler E & C (Malaysia) Sdn Bhd v Arkema Thiochemicals Sdn Bhd and another case [2015] MLJU 1952 Glencore Grain Ltd v Flacker Shipping Ltd; The Happy Day [2002] 2 All ER (Comm) 896 HTJ Development Sdn Bhd v Teoh Chin Kee & Anor [2018] MLJU 1753 69 Infineon Technologies (M) Sdn Bhd v Orisoft Technology Sdn Bhd (previously known as Orisoft Technology Bhd) and another application [2011] 7 MLJ 539 Jayapadu Oil & Gas Sdn Bhd v. Chersonese Oil Sdn Bhd [2014] 1 LNS 972 Kosmar Villa Holidays plc v Trustees of Syndicate 1243 [2008] 2 All ER (Comm) 14 Lai Yoke Ngan & Anor v Chin Teck Kwee & Anor [1997] 2 MLJ 565 Leif Hoegh & Co A/S v Petrolsea Inc. ("The World Era") [1992] 1 Lloyd's Rep. 45 QB Lim Kean v. Choo Koon [1970] 1 MLJ 158 Lim Yoke Kong v Sivapiran a/l Sabapathy [1992] 2 MLJ 571 Loh Wai Lian v. Sea Housing Corp. Sdn. Bhd. [1984] 1 CLJ (rep) 223 Main Frontier Sdn Bhd v. Koperasi Kesatuan Guru-Guru Melayu Malaysia Barat Berhad [2017] 1 LNS 2190 Mobikom Sdn Bhd v Inmiss Communications Sdn Bhd [2007] 3 MLJ 316 70 Mohammad Faizan bin Abd Khahar v AmGeneral Insurance Berhad [2019] MLJU 673 Nasri v. Mesah [1971] 1 MLJ 32 Niko Bioenergy Sdn Bhd v RH Balingian Palm Oil Mill Sdn Bhd [2018] MLJU 1574 Obnet Sdn Bhd v. Telekom Malaysia Bhd [2019] 8 CLJ 628 Parkson Corp Sdn Bhd v Fazaruddin bin Ibrahim (ta Perniagaan Fatama) and another appeal [2011] 2 MLJ 46 Pengurusan Danaharta Nasional Bhd v Tang Kwor Ham & Ors [2007] 5 MLJ 125 Penta-Ocean Construction Co. Ltd v Penang Development Corporation [2003] MLJU 11 Pihak Berkuasa Tatatertib Majlis Perbandaran Seberang Perai & Anor v Muziadi bin Mukhtar [2020] 1 MLJ 141 Sivapiran a/l Sabapathy v Lim Yoke Kong [1992] 2 MLJ 381 71 Sunway Creative Stones Sdn Bhd v Syarikat Pembenaan Yeoh Tiong Lay Sdn Bhd [2020] MLJU 658 Super Chem Products Ltd v American Life and General Insurance Co Ltd and others [2004] 2 All ER 358 Tan Mei Li & Ors v KSCH Property Sdn Bhd & Anor [2019] MLJU 1827 Tan Sri Dato’ Seri Vincent Tan Chee Yioun & Anor v Jan De Nul (M) Sdn Bhd & Anor and another appeal [2019] 1 MLJ 557 Thai-Lao Lignite Co Ltd & Anor v Government of The Lao People’s Democratic Republic [2017] MLJU 1196 Universiti Utara Malaysia v KIC Management Sdn. Bhd. [2015] MLJU 980 Legislation: Arbitration Act 1996, United Kingdom, s 14 Arbitration Act 2005, ss 8, 18(3), 21, 23 & 41 Interpretation Acts 1948, ss 3 & 23 72 Limitation Act 1953, ss 6, 29 & 30 Rules of Court 2012, O. 69, rr. 4(1) & 7 and O. 92, r. 4 Other sources: Choong Yeow Choy, Law of Limitation, Butterworths Asia, 1995 Datuk Professor Sundra Rajoo, Law, Practice and Procedure of Arbitration (Second Edition), Lexis Nexis, 2017 Datuk Professor Sundra Rajoo & Special Contributor Dr. Thomas R. Klötzel, UNCITRAL Model Law & Arbitration Rules: The Arbitration Act 2005 (Amended 2011 & 2018) and the AIAC Arbitration Rules 2018, Sweet & Maxwell, 2019 David St John Sutton, Judith Gill and Matthew Gearing, Russell On Arbitration, Twenty-Third Edition, Sweet & Maxwell London, 2007 Sundra Rajoo and WSW Davidson, The Arbitration Act 2005: UNCITRAL Model Law as applied in Malaysia, Sweet & Maxwell Asia, 2007 Sundra Rajoo, Dato’ WSW Davidson and IR Harbans Singh KS, The PAM 2006 Standard Form of Building Contract, LexisNexis, 2010 73