SIME DARBY ENERGY SOLUTIONS SDN BHD Jabatan Insolvensi Malaysia

SIME DARBY ENERGY SOLUTIONS SDN BHD Jabatan Insolvensi Malaysia

The High Court dismissed SDES's application to set aside the Award and allowed enforcement: the arbitrator acted within her jurisdiction, applied the contract terms and relevant authorities, did not breach natural justice nor offend Malaysian public policy, and was entitled to decline to imply a contractor's right to apply for EOT absent an express contractual provision; the Award is final and enforceable.

Citation
BA-24C(ARB)-7-06/2023 (Mahkamah Tinggi)
Parties
Applicant (setting Aside) and Respondent (enforcement): Sime Darby Energy Solutions Sdn Bhd; Respondent (setting Aside) and Applicant (enforcement): RZH Setia Jaya Sdn Bhd (in Liquidation)
Court
ARB
Jurisdiction
Malaysia
Judgment Date
28 February 2024
Case Number
BA-24C(ARB)-7-06/2023 (Mahkamah Tinggi)
Procedural Posture
Originating Summons (arbitration Setting Aside and Enforcement) / Judgment at High Court (shah Alam)
Outcome
Setting aside application dismissed; Enforcement of the Arbitration Award allowed
Legal Topics
Setting Aside Arbitral Award, Enforcement of Arbitral Award, Extension of Time (eot), Liquidated Ascertained Damages (lad), Variation Orders and Remeasurement, Breach of Natural Justice, Implied Terms in Contract
Source Language
Malay/English
Arbitration Law Contract Law Construction Law Public Policy Administrative Law (natural Justice) Setting Aside Arbitral Award Enforcement of Arbitral Award Extension of Time (eot) +4 more

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Parties

Sime Darby Energy Solutions Sdn Bhd

Applicant (setting Aside) and Respondent (enforcement)

RZH Setia Jaya Sdn Bhd (in Liquidation)

Respondent (setting Aside) and Applicant (enforcement)

Procedural Posture

Originating Summons (arbitration Setting Aside and Enforcement) / Judgment at High Court (shah Alam)

Legal Issues

  1. 1 Whether the arbitration award is in conflict with the public policy of Malaysia under s37(1)(b)(ii) Arbitration Act 2005
  2. 2 Whether there was a breach of natural justice in the arbitral proceedings under s37(2)(b)(ii) Arbitration Act 2005
  3. 3 Whether an implied contractual right to apply for Extension of Time exists in absence of an express EOT clause

Ratio Decidendi

The High Court dismissed SDES's application to set aside the Award and allowed enforcement: the arbitrator acted within her jurisdiction, applied the contract terms and relevant authorities, did not breach natural justice nor offend Malaysian public policy, and was entitled to decline to imply a contractor's right to apply for EOT absent an express contractual provision; the Award is final and enforceable.

Court Disposition

Setting aside application dismissed; Enforcement of the Arbitration Award allowed

Orders

  • Setting Aside Originating Summons dismissed with costs of RM5,000.00 subject to allocatur fees
  • Enforcement Originating Summons allowed; no order as to costs