WCT Construction Sdn Bhd (No. Syarikat: 140381-U) Muhamad Azra bin Bani [Berniaga sebagai "Redong Enterprise"] (No. Pendaftaran: JM0337225-T)

WCT Construction Sdn Bhd (No. Syarikat: 140381-U) Muhamad Azra bin Bani [Berniaga sebagai "Redong Enterprise"] (No. Pendaftaran: JM0337225-T)

The court held that the arbitration clause was valid and operative and that the Defendant had not taken any step in the court proceedings that would amount to waiver of the right to arbitrate (filing an appearance and attending case management did not constitute such a step); Clause 39 merely required an attempt at amicable settlement within 30 days and did not preclude relief under section 10; therefore a mandatory stay under section 10 of the Arbitration Act 2005 was required and the appeal was allowed.

Citation
JA-12ANCC-15-09/2020 (Mahkamah Tinggi)
Parties
Appellant/defendant: WCT Construction Sdn. Bhd.; Respondent/plaintiff: Muhamad Azra bin Bani (trading as Redong Enterprise)
Court
High Court
Jurisdiction
Malaysia
Judgment Date
13 July 2021
Case Number
JA-12ANCC-15-09/2020 (Mahkamah Tinggi)
Procedural Posture
Civil Appeal Concerning Stay of Proceedings Under Arbitration Act 2005 / High Court Determination on Appeal From Sessions Court Order
Outcome
Appeal allowed in favour of Defendant; Sessions Court decision set aside
Legal Topics
Stay of Proceedings, Arbitration Clause Enforcement, Waiver and Steps in Proceedings, Interpretation of Contractual Dispute Resolution Clause, Section 10 Arbitration Act 2005
Source Language
Malay/English
Arbitration Civil Procedure Contract Law Stay of Proceedings Arbitration Clause Enforcement Waiver and Steps in Proceedings Interpretation of Contractual Dispute Resolution Clause Section 10 Arbitration Act 2005

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Parties

WCT Construction Sdn. Bhd.

Appellant/defendant

Muhamad Azra bin Bani (trading as Redong Enterprise)

Respondent/plaintiff

Procedural Posture

Civil Appeal Concerning Stay of Proceedings Under Arbitration Act 2005 / High Court Determination on Appeal From Sessions Court Order

Legal Issues

  1. 1 Whether a mandatory stay under section 10 Arbitration Act 2005 should be granted
  2. 2 Whether filing a Memorandum of Appearance or attending case management constitutes taking a step in the proceedings and amounts to waiver of arbitration
  3. 3 Whether Clause 39 required a response to a notice of demand within 30 days as precondition to refer to arbitration

Ratio Decidendi

The court held that the arbitration clause was valid and operative and that the Defendant had not taken any step in the court proceedings that would amount to waiver of the right to arbitrate (filing an appearance and attending case management did not constitute such a step); Clause 39 merely required an attempt at amicable settlement within 30 days and did not preclude relief under section 10; therefore a mandatory stay under section 10 of the Arbitration Act 2005 was required and the appeal was allowed.

Court Disposition

Appeal allowed in favour of Defendant; Sessions Court decision set aside

Orders

  • Appeal allowed
  • Proceedings stayed and parties referred to arbitration pursuant to section 10, Arbitration Act 2005