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

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

The High Court found the arbitrator addressed matters within the scope of the submission, considered the pleaded issues and evidence (including handover delays, water ingress, debris, CNCs, EOTs and supplementary agreements), did not commit a material breach of natural justice nor act beyond her mandate, and any alleged errors of fact or law were not grounds to set aside the Award under s 37; accordingly OS44 was dismissed and enforcement orders (prayers 2(a)–(e) of OS51 enclosure 1) were granted while enclosure 5 of OS51 was dismissed without cost.

Citation
WA-24C(ARB)-44-10/2022 (Mahkamah Tinggi)
Parties
Plaintiff (os44); Defendant (os51): Eng Han Engineering Sdn Bhd; Defendant (os44); Plaintiff (os51): 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 (setting Aside and Enforcement of Arbitration Award) / Originating Summons Heard Together; Judgment on Applications Delivered
Outcome
Originating Summons No WA-24C(ARB)-44-10/2022 (OS44) dismissed with costs; Originating Summons No WA-24C(ARB)-51-12/2022 (OS51) granted in part (Order in Terms for prayers 2(a)–(e) in enclosure 1); Enclosure 5 of OS51 dismissed without cost.
Legal Topics
Setting Aside Arbitral Award, Enforcement of Arbitral Award, Breach of Natural Justice, Acts of Prevention, Extension of Time, Liquidated Damages, Interest, Costs
Source Language
Malay/English
Arbitration Construction Law Contract Civil Procedure Public Policy Setting Aside Arbitral Award Enforcement of Arbitral Award Breach of Natural Justice +5 more

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Parties

Eng Han Engineering Sdn Bhd

Plaintiff (os44); Defendant (os51)

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

Defendant (os44); Plaintiff (os51)

Procedural Posture

Originating Summons (setting Aside and Enforcement of Arbitration Award) / Originating Summons Heard Together; Judgment on Applications Delivered

Legal Issues

  1. 1 Whether Final Arbitration Award dated 30.08.2022 should be set aside under s 37 Arbitration Act 2005 for breach of natural justice or exceeding mandate
  2. 2 Whether the Award should be enforced and judgment entered under ss 38, 41A, 41B Arbitration Act 2005
  3. 3 Whether the arbitrator relied on extraneous material or failed to give parties reasonable notice of her chain of reasoning

Ratio Decidendi

The High Court found the arbitrator addressed matters within the scope of the submission, considered the pleaded issues and evidence (including handover delays, water ingress, debris, CNCs, EOTs and supplementary agreements), did not commit a material breach of natural justice nor act beyond her mandate, and any alleged errors of fact or law were not grounds to set aside the Award under s 37; accordingly OS44 was dismissed and enforcement orders (prayers 2(a)–(e) of OS51 enclosure 1) were granted while enclosure 5 of OS51 was dismissed without cost.

Court Disposition

Originating Summons No WA-24C(ARB)-44-10/2022 (OS44) dismissed with costs; Originating Summons No WA-24C(ARB)-51-12/2022 (OS51) granted in part (Order in Terms for prayers 2(a)–(e) in enclosure 1); Enclosure 5 of OS51 dismissed without cost.

Orders

  • OS44 dismissed with costs
  • Order in Terms for prayers 2(a) to 2(e) in enclosure 1 of OS51 granted (enter judgment/enforce Final Arbitration Award dated 30.08.2022)