PEMBINAAN LIMBONGAN SETIA BERHAD JOSU ENGINEERING CONSTRUCTION SDN BHD

PEMBINAAN LIMBONGAN SETIA BERHAD JOSU ENGINEERING CONSTRUCTION SDN BHD

The Court held the Consent Order and agreed arbitration terms showed the parties intended the arbitration to be governed by the Arbitration Act 2005 including s.42; the Plaintiff's s.42 reference was filed within time and the repeal of s.42 was prospective and did not affect the Plaintiff's application; the Defendant's striking out application was dismissed for inordinate delay and abuse of process; on the merits the Arbitrator's factual findings and application of the prevention principle were tenable given absence of critical path/concurrent delay evidence and thus neither party was entitled to terminate, so the s.42 reference failed.

Citation
WA-24C(ARB)-56-12/2017 (Mahkamah Tinggi)
Parties
PLAINTIFF: Pembinaan Limbongan Setia Berhad; DEFENDANT: Josu Engineering Construction Sdn Bhd
Court
ARB
Jurisdiction
Malaysia
Judgment Date
27 November 2019
Case Number
WA-24C(ARB)-56-12/2017 (Mahkamah Tinggi)
Procedural Posture
Originating Summons Under Arbitration Act 2005 S.42 and Interlocutory Striking Out Application / High Court (kuala Lumpur) Final Judgment on Striking Out Application and S.42 Reference (reasons Delivered)
Outcome
Defendant's Striking Out Application dismissed; Plaintiff's s.42 Application dismissed on merits
Legal Topics
Reference on Question of Law Under S.42 AA 2005, Court‑referred Arbitration Under S.24 a CJA 1964, Striking Out for Delay and Abuse of Process, Prevention Principle (contract Termination), Concurrent Delay Analysis, Termination Clause Interpretation
Source Language
Malay/English
Arbitration Contract Law Construction Law Civil Procedure Reference on Question of Law Under S.42 AA 2005 Court‑referred Arbitration Under S.24 a CJA 1964 Striking Out for Delay and Abuse of Process Prevention Principle (contract Termination) +2 more

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 5 Authorities cited 15 Party arguments 2 Amounts and remedies 3
Sign in to unlock

Parties

Pembinaan Limbongan Setia Berhad

PLAINTIFF

Josu Engineering Construction Sdn Bhd

DEFENDANT

Procedural Posture

Originating Summons Under Arbitration Act 2005 S.42 and Interlocutory Striking Out Application / High Court (kuala Lumpur) Final Judgment on Striking Out Application and S.42 Reference (reasons Delivered)

Legal Issues

  1. 1 Whether the arbitration was governed by the Arbitration Act 2005 or was a court‑referred reference under s.24A CJA 1964 and the effect on jurisdiction to refer questions of law
  2. 2 Whether s.42 AA 2005 applied to this arbitration and whether its subsequent repeal operated retrospectively
  3. 3 Whether the Plaintiff's Originating Summons under s.42 raised questions of law arising out of the Award that substantially affect parties' rights

Ratio Decidendi

The Court held the Consent Order and agreed arbitration terms showed the parties intended the arbitration to be governed by the Arbitration Act 2005 including s.42; the Plaintiff's s.42 reference was filed within time and the repeal of s.42 was prospective and did not affect the Plaintiff's application; the Defendant's striking out application was dismissed for inordinate delay and abuse of process; on the merits the Arbitrator's factual findings and application of the prevention principle were tenable given absence of critical path/concurrent delay evidence and thus neither party was entitled to terminate, so the s.42 reference failed.

Court Disposition

Defendant's Striking Out Application dismissed; Plaintiff's s.42 Application dismissed on merits

Orders

  • Enclosure 50 (Striking Out Application) dismissed with costs RM10,000.00 to Plaintiff subject to allocator
  • Originating Summons (s.42 reference) dismissed with costs RM15,000.00 to Defendant