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2022 MarsdenLR 2492
HIGH COURT MALAYA SHAH ALAM
RAGAWANG CORPORATION SDN BHD – Appellant
Versus
ONE AMERIN RESIDENCE SDN BHD & OTHER CASES – Respondent
[Originating Summons No: BA-24C(ARB)-4-07/2021 BA-24C(ARB)-6-08/2021 BA-24C(ARB)-11-11/2021 & BA-24C(ARB)-12-11/2021]
The court affirmed the enforceability of arbitral awards under the Arbitration Act, upholding the awards despite various challenges on jurisdiction and procedural grounds.
Headnote:(A) Arbitration Act 2005 – Section 38 – Final Award recognition and enforcement – Four originating summonses (OS) filed concerning the validity and enforcement of arbitral awards – OS No 4 dismissed; OS No 6 allowed; OS No 11 refused; OS No 12 granted – Dismissal based on application within six years of award and not raising sufficient grounds – Conflicting claims for costs between parties adjudicated. (Paras 1-64)
(B) Jurisdictional Challenges – Standard of proving acting outside jurisdiction lies with the party claiming breach of arbitration rules – Finding of no breach of natural justice under arbitration provisions. (Paras 8-42)
(C) Costs – Arbitrators have discretion in awarding costs; dissatisfaction with costs alone is not grounds for setting aside. (Paras 60-62)
(D) Limitation – Parties are entitled to enforce awards within six years as per Section 6 of the Limitation Act, 1953. (Paras 11-12)
(E) Overall judicial endorsement of the arbitration awards as consistent with the law and evidence provided. (Paras 59-64)
(4 Originating Summonses)
A. Introduction
[1] This judgment decides the following four originating summonses (4 OS):
(1) Ragawang Corporation Sdn Bhd (RC) has filed OS No BA-24C(ARB)-4-07/2021 (OS No 4) against One Amerin Residence Sdn Bhd (OAR) for the following orders, among others-
(a) an order to set aside a "Final Award (Save as to Costs)" dated 7 May 2021 [Final Award (Save as to Costs)] by an arbitrator, Ir. Chong Pick Eng (Arbitrator); and
(b) an order that the Arbitrator's "Addendum" to the Final Award (Save as to Costs) (dated 11 May 2021) [Addendum to Final Award (Save as to Costs)] be set aside by the court;
(2) OS No BA-24C(ARB)-6-08/2021 (OS No 6) has been filed by OAR for a court order under s 38(1) of the Arbitration Act 2005 ( AA ) to recognize-
(a) the Final Award (Save as to Costs) Award; and
(b) the Addendum to the Final Award (Save as to Costs) as binding and be enforced by entry as judgments in terms of the Final Award (Save as to Costs) and Addendum to the Final Award (Save as to Costs);
(3) RC has filed OS No BA-24C(ARB)-11-11/2021 against OAR (OS No 11) which seeks a court order to set aside the Arbitrator's "Final Award as to Costs" dated 18 October 2021 [Final Award (Costs)]; and
(4) by way of OS No BA-24C(ARB)-12-11/2021 (OS No 12), OAR has applied for the court to recognize the Final Award (Costs) as binding and be enforced by entry as a judgment in terms of the Final Award (Costs).
[2] By consent of all learned counsel, the 4 OS are decided in the following manner:
(1) OS No 4 shall be decided first;
(2) after the court's determination of OS No 4, the court shall resolve OS No 6;
(3) the court shall decide OS No 11 after the court's disposal of OS Nos 4 and 6; and
(4) OS No 12 shall be determined last.
B. Background
[3] By way of a letter of award dated 8 December 2014 ( LA ), OAR had appointed RC for certain construction works (Works) in a mixed development project on Lot 8761, Sungai Balak, Mukim Kajang, Hulu Langat District, Selangor Darul Ehsan (Project).
[4] According to cl 2 LA , among others, the "Agreement and Conditions of PAM Contract 2006 (Without Quantities)" (PAM Contract 2006) shall apply. The PAM Contract 2006 contained an arbitration agreement (Arbitration Agreement).
[5] Disputes arose between OAR and RC regarding the Works. Consequently, OAR's solicitors sent a letter dated 14 September 2018 to RC's solicitors (OAR's Notice of Arbitration) which gave notice to arbitrate OAR's claim against RC for RM14,934,000.00 as liquidated damages (LD) due to RC's delay in completing the Works (OAR's Claim).
[6] Pursuant to the PAM Contract 2006, by way of a letter dated 9 November 2018, the President of "Pertubuhan Arkitek Malaysia" (PAM) appointed the Arbitrator to arbitrate OAR's Claim.
C. Arbitration
[7] In the arbitral proceedings before the Arbitrator (Arbitration)-
(1) RC had counterclaimed from OAR as follows, among others-
(a) a sum of RM7,600,175.19 (RC's Certified Works Claim) for Works performed by RC which had been certified by Messrs PI Architect (Project Architect);
(b) an amount of RM6,057,532.32 for Works completed by the Plaintiff but had not been certified by the Project Architect (RC's Uncertified Works Claim);
(c) a sum of RM1,822,110.51 [RC's Loss (EOT's)] as loss and expense incurred by the RC during the periods of time when five applications for extension of time to complete the Works were made by RC;
(d) release of retention funds totalling RM4,452,000.00 [RC's Claim (Retention Funds)]; and
(e) a refund of RM50,000.00 regarding advertisement charges contributed by RC at OAR's request [RC's Claim (Advertisement Charges)].
(2) by way of a letter dated 18 October 2019, OAR objected to the Arbitrator's jurisdiction to decide on the following counterclaims of RC (OAR's Jurisdictional Challenge):
(a) RC's Uncertified Works Claim;
(b) RC's Loss (EOT's);
(c) RC's Claim (Retention Funds); and
(d) RC's Claim (Advertisement Charges);
(3) on 28 February 2020, the Arbitrator issued t
