2025 MarsdenLR 1123
HIGH COURT MALAYA KUALA LUMPUR
DATO LER CHENG CHYE & ANOR – Appellant
Versus
ATURAN PRISMA SDN BHD & ORS – Respondent
Petitioner Advocates:Wong Fook Meng ,Respondent Advocate: Wilson Lim,Huam Wan Ying
Judgement Key Points
Based on the provided legal document, here are the key points:
- Validity of Arbitration Agreements in Insolvency: An arbitration agreement remains valid and operative despite the insolvency or liquidation of one party. Liquidation does not alter the pre-agreed mode of dispute resolution via arbitration unless the matter is non-arbitrable on grounds of public policy (!) (!) (!) (!) (!) (!) (!) (!) .
- Mandatory Stay under Section 10: Under Section 10 of the Arbitration Act 2005, a stay of proceedings is mandatory if the preconditions are met (valid agreement, dispute within scope, agreement not null/void/inoperative/incapable of performance). The court has no discretion to refuse a stay once these conditions are satisfied (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) .
- Arbitrability of Set-Off Claims: Disputes regarding set-offs are not exclusively within the purview of winding-up courts and are arbitrable. The true issue is the entitlement to set-off, which stems from pre-insolvency contractual rights rather than post-insolvency statutory remedies like undue preference or fraudulent trading (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) .
- Definition of Insolvency Dispute: An "insolvency dispute" is one that arises from the operation of statutory provisions of the insolvency regime per se (e.g., avoidance of payments, fraudulent trading). Pre-insolvency contractual disputes, such as construction set-offs, do not qualify as non-arbitrable insolvency disputes (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) .
- Costs and Efficiency: The argument that an insolvent company lacks the financial ability to engage in expensive arbitration or that arbitration would hinder the efficiency of the liquidation process is insufficient to refuse a stay. Courts cannot rewrite contract terms or intervene unless expressly provided by the Arbitration Act (!) (!) (!) (!) (!) (!) (!) (!) .
- Presence of Non-Party Co-Defendants: The existence of co-defendants who are not parties to the arbitration agreement does not render the arbitration agreement "inoperative" or "incapable of being performed" under Section 10. The agreement's validity is not affected by overlapping issues with non-parties (!) (!) (!) (!) (!) (!) (!) (!) .
- Proper Approach to Overlapping Proceedings: When dealing with overlapping court and arbitral proceedings involving non-parties, the court must balance competing interests. The mandatory stay applies to parties bound by the arbitration agreement. For non-parties, the court may use its inherent jurisdiction to manage proceedings (e.g., staying the arbitration pending the resolution of the court suit against non-parties) to achieve the most just result, but this does not negate the mandatory stay for the parties to the arbitration (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) .
- No Requirement to Prove Existence of Dispute: Under the current Section 10 of the Arbitration Act 2005, it is not necessary for the applicant to prove that a dispute actually exists to obtain a stay. The determination of whether a dispute exists is a matter for the arbitral tribunal, not the court (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) .
- Outcome: The court ordered a stay of proceedings against the 1st Defendant (Aturan) pending arbitration, while the suit against the 2nd to 6th Defendants (non-parties to the arbitration) was allowed to proceed for trial (!) (!) (!) .
JUDGMENTLeong Wai Hong J:
[Stay Of Proceedings Pending Arbitration Notwithstanding Insolvency Of A Party To The Arbitration And Co-Defendants Who Are Not Parties To The Arbitration]
Introduction
Issues
[1] The issues before me, [as framed by the plaintiffs in their reply written submissions at para 2 and modified by me], are:
i. Whether an arbitration agreement remains valid if one party becomes insolvent;
ii. Whether the arbitration agreement is contrary to the objectives of the insolvency regime and against public interest under s 4 and/or s 10 of the Arbitration Act 2005 [" AA 2005"];
iii. Whether a stay of the plaintiffs' suit should be granted as the Second to Sixth defendants are not parties to the arbitration agreement between Pustaka Efektif Sdn Bhd (In Liquidation) ("Pustaka") [the plaintiffs in this suit are Ler Cheng Chye and Lum Tuck Cheong as liquidators of Pustaka] and the 1st defendant Aturan Prisma Sdn Bhd ("Aturan"); and
iv. Whether a stay of the plaintiffs' suit should be granted if there are no dispute necessitating reference to arbitration.
Projects
[2] Aturan is the main contractor for two projects known as the "Scott Tower Project" and the "PR1MA Tebrau Project" loc
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