ENG HAN ENGINEERING SDN BHD TOSHIBA ELEVATOR (MALAYSIA) SDN BHD

ENG HAN ENGINEERING SDN BHD TOSHIBA ELEVATOR (MALAYSIA) SDN BHD

The Court held there was no breach of natural justice nor excess of mandate by the arbitrator: the arbitrator addressed matters falling within the scope of the submission, considered pleadings and evidence (handover delays, site obstructions, CNCs, EOTs, supplementary agreements), and was entitled to draw on expertise; errors of fact or law did not warrant setting aside under section 37. Accordingly OS 44 was dismissed and enforcement (OS 51) granted in terms of the Award.

Citation
WA-24C(ARB)-44-10/2022 (Mahkamah Tinggi)
Parties
Plaintiff: Eng Han Engineering Sdn Bhd; Defendant: Toshiba Elevator (Malaysia) Sdn Bhd (formerly MS Elevators Engineering Sdn Bhd)
Court
ARB
Jurisdiction
Malaysia
Judgment Date
26 June 2023
Case Number
WA-24C(ARB)-44-10/2022 (Mahkamah Tinggi)
Procedural Posture
Originating Summons (arbitration) / Judgment on Originating Summonses OS 44 and OS 51
Outcome
Originating Summons No. WA-24C(ARB)-44-10/2022 (OS 44) dismissed with costs; Originating Summons No. WA-24C(ARB)-51-12/2022 (OS 51) granted (Order in Terms for prayers 1 and 2(a)–(e))
Legal Topics
Setting Aside Arbitral Award, Enforcement of Arbitral Award, Breach of Natural Justice, Acts of Prevention, Liquidated Damages, Arbitrator's Use of Expertise
Source Language
Malay/English
Arbitration Civil Procedure Construction Law Contract Law Administrative Law Setting Aside Arbitral Award Enforcement of Arbitral Award Breach of Natural Justice +3 more

Case Brief

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Parties

Eng Han Engineering Sdn Bhd

Plaintiff

Toshiba Elevator (Malaysia) Sdn Bhd (formerly MS Elevators Engineering Sdn Bhd)

Defendant

Procedural Posture

Originating Summons (arbitration) / Judgment on Originating Summonses OS 44 and OS 51

Legal Issues

  1. 1 Whether the Final Arbitration Award should be set aside for breach of natural justice or for exceeding the scope of the submission to arbitration
  2. 2 Whether the arbitrator failed to deal with essential issues or applied extraneous evidence
  3. 3 Whether the arbitrator drawing on her own knowledge/expertise without adducing evidence breached natural justice

Ratio Decidendi

The Court held there was no breach of natural justice nor excess of mandate by the arbitrator: the arbitrator addressed matters falling within the scope of the submission, considered pleadings and evidence (handover delays, site obstructions, CNCs, EOTs, supplementary agreements), and was entitled to draw on expertise; errors of fact or law did not warrant setting aside under section 37. Accordingly OS 44 was dismissed and enforcement (OS 51) granted in terms of the Award.

Court Disposition

Originating Summons No. WA-24C(ARB)-44-10/2022 (OS 44) dismissed with costs; Originating Summons No. WA-24C(ARB)-51-12/2022 (OS 51) granted (Order in Terms for prayers 1 and 2(a)–(e))

Orders

  • OS 44 dismissed with costs
  • Order in Terms for prayers 1 and 2(a) to (e) granted (enforcement of Final Arbitration Award dated 30.08.2022)