M.E.I. PROJECT ENGINEERS SDN BHD SYARIKAT SUCCESS CONSTRUCTION SDN BHD

M.E.I. PROJECT ENGINEERS SDN BHD SYARIKAT SUCCESS CONSTRUCTION SDN BHD

The court found MEI failed to prove on balance that the Award conflicted with public policy or that there was a breach of natural justice materially affecting the outcome; the arbitrator had considered submissions and evidence (including issues concerning MA6 and MA7) and provided reasons; MEI’s complaint amounted to a merits challenge not permissible under s 37; therefore the Setting Aside Application was dismissed and the Enforcement Application allowed.

Citation
WA-24C(ARB)-15-04/2023 (Mahkamah Tinggi)
Parties
Plaintiff in O.s. No. WA 24 C(arb) 15 04/2023; Respondent in O.s. No. WA 24 C(arb) 21 05/2023: M.E.I. Project Engineers Sdn Bhd; Defendant in O.s. No. WA 24 C(arb) 15 04/2023; Applicant in O.s. No. WA 24 C(arb) 21 05/2023: Syarikat Success Construction Sdn Bhd
Court
ARB
Jurisdiction
Malaysia
Judgment Date
26 September 2023
Case Number
WA-24C(ARB)-15-04/2023 (Mahkamah Tinggi)
Procedural Posture
Setting Aside and Enforcement of Arbitral Award Under Arbitration Act 2005 / Grounds of Judgment Disposing of Setting Aside Application and Enforcement Application
Outcome
Setting Aside Application dismissed; Enforcement Application allowed.
Legal Topics
Setting Aside Arbitration Award, Enforcement of Arbitration Award, Public Policy, Breach of Natural Justice (audi Alteram Partem), Liquidated Damages
Source Language
Malay/English
Arbitration Contract Civil Procedure Public Policy Administrative Law (natural Justice) Setting Aside Arbitration Award Enforcement of Arbitration Award Breach of Natural Justice (audi Alteram Partem) +1 more

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Parties

M.E.I. Project Engineers Sdn Bhd

Plaintiff in O.s. No. WA 24 C(arb) 15 04/2023; Respondent in O.s. No. WA 24 C(arb) 21 05/2023

Syarikat Success Construction Sdn Bhd

Defendant in O.s. No. WA 24 C(arb) 15 04/2023; Applicant in O.s. No. WA 24 C(arb) 21 05/2023

Procedural Posture

Setting Aside and Enforcement of Arbitral Award Under Arbitration Act 2005 / Grounds of Judgment Disposing of Setting Aside Application and Enforcement Application

Legal Issues

  1. 1 Whether the Award is in conflict with the public policy of Malaysia under s 37(1)(b)(ii) AA 2005
  2. 2 Whether the arbitrator breached the rules of natural justice by failing to consider a witness admission (CW1’s admission)
  3. 3 Whether the Court may set aside the Award and substitute its own orders awarding MEI’s counterclaims

Ratio Decidendi

The court found MEI failed to prove on balance that the Award conflicted with public policy or that there was a breach of natural justice materially affecting the outcome; the arbitrator had considered submissions and evidence (including issues concerning MA6 and MA7) and provided reasons; MEI’s complaint amounted to a merits challenge not permissible under s 37; therefore the Setting Aside Application was dismissed and the Enforcement Application allowed.

Court Disposition

Setting Aside Application dismissed; Enforcement Application allowed.

Orders

  • Setting Aside Application dismissed with costs of RM7,000.00
  • Enforcement Application allowed; MEI to pay Success costs of RM5,000.00 (subject to allocator fees)