SETIAKON BUILDERS SDN BHD BELLWORTH DEVELOPMENTS SDN BHD

SETIAKON BUILDERS SDN BHD BELLWORTH DEVELOPMENTS SDN BHD

Bellworth failed to establish on the balance of probabilities any s37 ground that justified setting aside the Award: the one-day delay in submitting the draft award under AIAC Rule 12(2) did not warrant invalidation of the Tribunal's jurisdiction or setting aside, the CNC issue was pleaded and within the Tribunal's remit (not a 'new difference'), there was no material breach of natural justice or public policy, and remission under s37(6) was inappropriate because Bellworth did not timely request remission in its originating summons. Consequently the setting aside application was dismissed and the enforcement application allowed.

Citation
WA-24C(ARB)-35-08/2023 (Mahkamah Tinggi)
Parties
Plaintiff (o.s. No. WA 24 C(arb) 35 08/2023); Defendant (o.s. No. WA 24 C(arb) 41 09/2023): Setiakon Builders Sdn Bhd; Defendant (o.s. No. WA 24 C(arb) 35 08/2023); Plaintiff (o.s. No. WA 24 C(arb) 41 09/2023): Bellworth Developments Sdn Bhd
Court
ARB
Jurisdiction
Malaysia
Judgment Date
3 July 2024
Case Number
WA-24C(ARB)-35-08/2023 (Mahkamah Tinggi)
Procedural Posture
Originating Summonses for Setting Aside and Enforcement of an Arbitral Award Under the Arbitration Act 2005 / High Court Decision on Competing Originating Summonses; Setting Aside Dismissed and Enforcement Allowed; Notices of Appeal/cross Appeal Filed
Outcome
Setting Aside Application dismissed; Enforcement Application allowed and Award enforced as a judgment of the High Court
Legal Topics
Setting Aside Arbitral Award (s37 AA 2005), Enforcement of Award (s38 AA 2005), AIAC Rules Rule 12 Technical Review and Time Computation, Remission to Tribunal (s37(6) AA 2005), Natural Justice/public Policy, Computation of Time
Source Language
Malay/English
Arbitration Contract Civil Procedure Administrative Law (rules of Natural Justice) Setting Aside Arbitral Award (s37 AA 2005) Enforcement of Award (s38 AA 2005) AIAC Rules Rule 12 Technical Review and Time Computation Remission to Tribunal (s37(6) AA 2005) +2 more

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Parties

Setiakon Builders Sdn Bhd

Plaintiff (o.s. No. WA 24 C(arb) 35 08/2023); Defendant (o.s. No. WA 24 C(arb) 41 09/2023)

Bellworth Developments Sdn Bhd

Defendant (o.s. No. WA 24 C(arb) 35 08/2023); Plaintiff (o.s. No. WA 24 C(arb) 41 09/2023)

Procedural Posture

Originating Summonses for Setting Aside and Enforcement of an Arbitral Award Under the Arbitration Act 2005 / High Court Decision on Competing Originating Summonses; Setting Aside Dismissed and Enforcement Allowed; Notices of Appeal/cross Appeal Filed

Legal Issues

  1. 1 Whether the arbitral award should be set aside under s37 AA 2005 (various subparagraphs)
  2. 2 Whether the Arbitrator submitted the Draft Final Award within the three month period under Rule 12(2) AIAC Rules and whether delay affected jurisdiction
  3. 3 Whether the Arbitrator decided a 'new difference' by ruling the Certificate of Non-Completion (CNC) invalid independently of EoT determinations

Ratio Decidendi

Bellworth failed to establish on the balance of probabilities any s37 ground that justified setting aside the Award: the one-day delay in submitting the draft award under AIAC Rule 12(2) did not warrant invalidation of the Tribunal's jurisdiction or setting aside, the CNC issue was pleaded and within the Tribunal's remit (not a 'new difference'), there was no material breach of natural justice or public policy, and remission under s37(6) was inappropriate because Bellworth did not timely request remission in its originating summons. Consequently the setting aside application was dismissed and the enforcement application allowed.

Court Disposition

Setting Aside Application dismissed; Enforcement Application allowed and Award enforced as a judgment of the High Court

Orders

  • Setting Aside Application (O.S. No. WA-24C(ARB)-41-09/2023) dismissed
  • Enforcement Application (O.S. No. WA-24C(ARB)-35-08/2023) allowed; Final Award of 7.7.2023 recognized and to be enforced as judgment