AMGENERAL INSURANCE BERHAD (Dahulunya dikenali sebagai KURNIA INSURANS (MALAYSIA) BERHAD) (No. Syarikat: 44191-P) TOK KOK LEONG (No. K/P: 720922-14-5587) (yang berniaga di bawah nama dan gaya YIT LEONG CRANE SERVICES ) (No. Perniagaan: 0012

AMGENERAL INSURANCE BERHAD (Dahulunya dikenali sebagai KURNIA INSURANS (MALAYSIA) BERHAD) (No. Syarikat: 44191-P) TOK KOK LEONG (No. K/P: 720922-14-5587) (yang berniaga di bawah nama dan gaya YIT LEONG CRANE SERVICES ) (No. Perniagaan: 0012

Condition 6 required that differences be referred to an arbitrator appointed in writing within the contractual timeframes; the defendant's written request issued six days before the 12-month proviso could not realistically permit the appointment mechanism to be completed as required by Condition 6, rendering the arbitration agreement inoperative or incapable of being performed for the purposes of s10(1); no undue hardship justified an extension under s45; accordingly the stay was not required and the appeal was dismissed with costs.

Citation
WA-12ANCC-63-09/2019 (Mahkamah Tinggi)
Parties
Appellant / Defendant: AMGeneral Insurance Berhad (formerly Kurnia Insurans (Malaysia) Berhad); Respondent / Plaintiff: Tok Kok Leong (trading as Yit Leong Crane Services)
Court
High Court
Jurisdiction
Malaysia
Judgment Date
10 March 2020
Case Number
WA-12ANCC-63-09/2019 (Mahkamah Tinggi)
Procedural Posture
Civil Appeal (stay Pending Arbitration) / High Court Judgment on Appeal From Sessions Court
Outcome
Appeal dismissed with costs
Legal Topics
Stay of Proceedings, Arbitration Agreement Construction, Repudiation of Policy, Time Limits for Arbitration, Extension of Time Under S45, Section 10 Arbitration Act 2005 Exceptions
Source Language
Malay/English
Arbitration Insurance Contract Civil Procedure Stay of Proceedings Arbitration Agreement Construction Repudiation of Policy Time Limits for Arbitration +2 more

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Parties

AMGeneral Insurance Berhad (formerly Kurnia Insurans (Malaysia) Berhad)

Appellant / Defendant

Tok Kok Leong (trading as Yit Leong Crane Services)

Respondent / Plaintiff

Procedural Posture

Civil Appeal (stay Pending Arbitration) / High Court Judgment on Appeal From Sessions Court

Legal Issues

  1. 1 Whether the High Court must grant a stay under s10(1) Arbitration Act 2005 given an arbitration clause requiring appointment of an arbitrator within contractual timeframes
  2. 2 Whether the arbitration agreement became inoperative or incapable of being performed because the appointment process could not be completed within the time specified in the Policy's Condition 6
  3. 3 Whether the Court should exercise its discretion under s45 to extend time to make the arbitration agreement operative

Ratio Decidendi

Condition 6 required that differences be referred to an arbitrator appointed in writing within the contractual timeframes; the defendant's written request issued six days before the 12-month proviso could not realistically permit the appointment mechanism to be completed as required by Condition 6, rendering the arbitration agreement inoperative or incapable of being performed for the purposes of s10(1); no undue hardship justified an extension under s45; accordingly the stay was not required and the appeal was dismissed with costs.

Court Disposition

Appeal dismissed with costs

Orders

  • Appeal dismissed with costs