TUNAS MANJA DEVELOPMENT & CONSTRUCTION (KL) SDN BHD SPNB ASPIRASI SENDIRIAN BERHAD

TUNAS MANJA DEVELOPMENT & CONSTRUCTION (KL) SDN BHD SPNB ASPIRASI SENDIRIAN BERHAD

SPNB failed to discharge the burden on a balance of probabilities to show any statutory ground under s37 AA 2005 warranting setting aside; alleged jurisdictional defects were not timely raised before the tribunal and separability preserves arbitral competence to decide antecedent misconduct; alleged breaches of natural justice were either challenges to merits or immaterial to outcome; costs were the subject of procedural direction and uncontested by SPNB; consequently both the application to set aside the Award and the application to set aside the ex-parte enforcement order were dismissed.

Citation
WA-24C(ARB)-27-07/2022 (Mahkamah Tinggi)
Parties
Applicant in Os27; Defendant in OS31: Tunas Manja Development & Construction (KL) Sdn Bhd; Respondent in Os27; Plaintiff in OS31: SPNB Aspirasi Sdn Bhd
Court
ARB
Jurisdiction
Malaysia
Judgment Date
27 January 2023
Case Number
WA-24C(ARB)-27-07/2022 (Mahkamah Tinggi)
Procedural Posture
Arbitration Enforcement and Setting Aside Proceedings Under the Arbitration Act 2005 / Hearing of Two Originating Summonses to Set Aside an Arbitral Award and an Ex Parte Enforcement Order; Judgment Delivered Dismissing Both Applications
Outcome
Both applications dismissed
Legal Topics
Setting Aside Arbitral Award (s37), Enforcement of Award (s38 S39), Competence Competence (s18), Separability of Arbitration Clause, Natural Justice and Public Policy, Conflict of Interest, Costs
Source Language
Malay/English
Arbitration Civil Procedure Contract Law Public Policy Setting Aside Arbitral Award (s37) Enforcement of Award (s38 S39) Competence Competence (s18) Separability of Arbitration Clause +3 more

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Parties

Tunas Manja Development & Construction (KL) Sdn Bhd

Applicant in Os27; Defendant in OS31

SPNB Aspirasi Sdn Bhd

Respondent in Os27; Plaintiff in OS31

Procedural Posture

Arbitration Enforcement and Setting Aside Proceedings Under the Arbitration Act 2005 / Hearing of Two Originating Summonses to Set Aside an Arbitral Award and an Ex Parte Enforcement Order; Judgment Delivered Dismissing Both Applications

Legal Issues

  1. 1 Whether the arbitral award contained decisions beyond the scope of submission to arbitration
  2. 2 Whether the award conflicted with Malaysia's public policy due to alleged breach of natural justice
  3. 3 Whether the arbitrator lacked jurisdiction to decide alleged pre-contract fraud

Ratio Decidendi

SPNB failed to discharge the burden on a balance of probabilities to show any statutory ground under s37 AA 2005 warranting setting aside; alleged jurisdictional defects were not timely raised before the tribunal and separability preserves arbitral competence to decide antecedent misconduct; alleged breaches of natural justice were either challenges to merits or immaterial to outcome; costs were the subject of procedural direction and uncontested by SPNB; consequently both the application to set aside the Award and the application to set aside the ex-parte enforcement order were dismissed.

Court Disposition

Both applications dismissed

Orders

  • Setting Aside Application - Award (O.S. WA-24C(ARB)-31-07/2022) dismissed with costs RM20,000.00 subject to allocatur
  • Setting Aside Application - Order (O.S. WA-24C(ARB)-27-07/2022) dismissed with costs RM10,000.00 subject to allocatur