F.H. BERTLING PROJECTS LOGISTICS SDN. BHD (NO. SYARIKAT : 200901011326(854351-U) SAPURA FABRICATION SDN. BHD. (NO. SYARIKAT : 198201003562(83307-K)

F.H. BERTLING PROJECTS LOGISTICS SDN. BHD (NO. SYARIKAT : 200901011326(854351-U) SAPURA FABRICATION SDN. BHD. (NO. SYARIKAT : 198201003562(83307-K)

The court found the arbitration clauses in the STC (section 9.2) and the General Conditions (Clause 26(b)) were validly incorporated and applicable; the language mandated referral to arbitration and under section 10(1) Arbitration Act 2005 the court must stay proceedings when a party applies before taking other steps. The defendant had not unequivocally waived its right to arbitrate. Therefore the interlocutory application to stay the court proceedings in favour of arbitration was allowed.

Citation
WA-22NCVC495-09/2021 (Mahkamah Tinggi)
Parties
Plaintiff/appellant: F.H. BERTLING PROJECTS LOGISTICS SDN. BHD.; Defendant/respondent: SAPURA FABRICATION SDN. BHD.
Court
High Court
Jurisdiction
Malaysia
Judgment Date
23 December 2021
Case Number
WA-22NCVC495-09/2021 (Mahkamah Tinggi)
Procedural Posture
Civil Suit (debt Recovery/invoice Dispute) / Interlocutory Application to Stay Proceedings Pending Arbitration
Outcome
Application allowed — proceedings stayed pending arbitration
Legal Topics
Stay Pending Arbitration, Incorporation of Standard Trading Conditions, Arbitration Clause Enforcement, Waiver of Arbitration Right
Source Language
Malay/English
Arbitration Contract Civil Procedure Stay Pending Arbitration Incorporation of Standard Trading Conditions Arbitration Clause Enforcement Waiver of Arbitration Right

Case Brief

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Parties

F.H. BERTLING PROJECTS LOGISTICS SDN. BHD.

Plaintiff/appellant

SAPURA FABRICATION SDN. BHD.

Defendant/respondent

Procedural Posture

Civil Suit (debt Recovery/invoice Dispute) / Interlocutory Application to Stay Proceedings Pending Arbitration

Legal Issues

  1. 1 Whether the arbitration clauses in the STC and the General Conditions (Clause 26(b)) were validly incorporated and applicable to the dispute
  2. 2 Whether the court should stay proceedings under section 10(1) Arbitration Act 2005 in favour of arbitration
  3. 3 Whether the defendant waived its right to arbitrate by filing a defence or seeking extensions and making payments/repayment proposals

Ratio Decidendi

The court found the arbitration clauses in the STC (section 9.2) and the General Conditions (Clause 26(b)) were validly incorporated and applicable; the language mandated referral to arbitration and under section 10(1) Arbitration Act 2005 the court must stay proceedings when a party applies before taking other steps. The defendant had not unequivocally waived its right to arbitrate. Therefore the interlocutory application to stay the court proceedings in favour of arbitration was allowed.

Court Disposition

Application allowed — proceedings stayed pending arbitration

Orders

  • Application (Lampiran 7) allowed and all court proceedings in this suit are stayed pending disposal of the arbitration pursuant to the STC and Clause 26(b) of the General Conditions
  • Costs of the application fixed at RM2000.00 to be paid by the Plaintiff, subject to taxation