MAMMOTH EMPIRE CONSTRUCTION SDN. BHD. (BA-24NCC(ARB)-1-07/2019) (Co. No.: 536187-H) MAMMOTH EMPIRE CONSTRUCTION SDN. BHD. (BA-24NCC(ARB)-2-08/2019) (Co. No.: 536187-H) KENWISE SDN. BHD. (BA-24NCC(ARB)-6-09/2019) (Co. No.: 966568-D) KENWISE

MAMMOTH EMPIRE CONSTRUCTION SDN. BHD. (BA-24NCC(ARB)-1-07/2019) (Co. No.: 536187-H) MAMMOTH EMPIRE CONSTRUCTION SDN. BHD. (BA-24NCC(ARB)-2-08/2019) (Co. No.: 536187-H) KENWISE SDN. BHD. (BA-24NCC(ARB)-6-09/2019) (Co. No.: 966568-D) KENWISE

Interpretation Acts s30(1) preserves vested rights acquired when arbitration commenced (4.10.2017); Act A1569 did not expressly or by necessary implication repeal those vested rights so Kenwise's preliminary objection failed. Even if s42 remained available, the six questions did not arise out of the arbitral award nor substantially affect the parties' rights and the court would not exercise its discretion under s42(4). The award fell within the arbitration submission, the arbitrator did not commit a material breach of natural justice or exceed jurisdiction such that the award should be set aside under s37, and therefore the award is enforceable under s38 absent any s39 ground.

Citation
BA-24NCC(ARB)-1-07/2019, BA-24NCC(ARB)-2-08/2019 & BA-24NCC(ARB)-6-09/2019 (Mahkamah Tinggi)
Parties
Plaintiff/defendant (various Originating Summonses): Mammoth Empire Construction Sdn. Bhd.; Defendant/plaintiff (various Originating Summonses): Kenwise Sdn. Bhd.
Court
ARB
Jurisdiction
Malaysia
Judgment Date
14 July 2020
Case Number
BA-24NCC(ARB)-1-07/2019, BA-24NCC(ARB)-2-08/2019 & BA-24NCC(ARB)-6-09/2019 (Mahkamah Tinggi)
Procedural Posture
Originating Summonses Under Arbitration Act 2005 (setting Aside, Reference on Question of Law, Enforcement) / Final Judgment on Three Originating Summonses
Outcome
Kenwise's preliminary objection dismissed; Mammoth's reference on questions of law dismissed; Mammoth's setting aside application dismissed; Kenwise's enforcement application allowed; costs awarded to Kenwise.
Legal Topics
Setting Aside Arbitral Award S37, Recognition and Enforcement S38 S39, Reference on Question of Law S42 (repealed), Retrospectivity of Amendments, Rules of Natural Justice, Damages Assessment
Source Language
Malay/English
Arbitration Contract Law Civil Procedure Statutory Interpretation Setting Aside Arbitral Award S37 Recognition and Enforcement S38 S39 Reference on Question of Law S42 (repealed) Retrospectivity of Amendments +2 more

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Parties

Mammoth Empire Construction Sdn. Bhd.

Plaintiff/defendant (various Originating Summonses)

Kenwise Sdn. Bhd.

Defendant/plaintiff (various Originating Summonses)

Procedural Posture

Originating Summonses Under Arbitration Act 2005 (setting Aside, Reference on Question of Law, Enforcement) / Final Judgment on Three Originating Summonses

Legal Issues

  1. 1 Whether Arbitration (Amendment) (No.2) Act 2018 (Act A1569) operates retrospectively to repeal s42 AA for arbitrations commenced before 8 May 2018
  2. 2 Whether the six questions posed under s42 arise out of the award and substantially affect parties' rights
  3. 3 Whether the arbitral award exceeded jurisdiction or dealt with matters beyond the submission to arbitration under s37(1)(a)(iv)-(v)

Ratio Decidendi

Interpretation Acts s30(1) preserves vested rights acquired when arbitration commenced (4.10.2017); Act A1569 did not expressly or by necessary implication repeal those vested rights so Kenwise's preliminary objection failed. Even if s42 remained available, the six questions did not arise out of the arbitral award nor substantially affect the parties' rights and the court would not exercise its discretion under s42(4). The award fell within the arbitration submission, the arbitrator did not commit a material breach of natural justice or exceed jurisdiction such that the award should be set aside under s37, and therefore the award is enforceable under s38 absent any s39 ground.

Court Disposition

Kenwise's preliminary objection dismissed; Mammoth's reference on questions of law dismissed; Mammoth's setting aside application dismissed; Kenwise's enforcement application allowed; costs awarded to Kenwise.

Orders

  • Kenwise's preliminary objection dismissed with costs
  • Enclosure 7 struck out with no liberty to file afresh and no order as to costs