Consent judgments cannot be re-opened when they constitute full and final settlements of disputes; actions grounded on parts of an award cannot be sustained.

JUDGMENT

Lim Chong Fong J:

Introduction

[1] This is an application to strike out an originating summons filed to set aside an arbitration award.

[2] The Plaintiff is a private limited company involved in the construction business.

[3] The Defendant is also a private limited company involved in the real estate business.

Background

[4] By a letter of acceptance of tender dated 26 May 2014 ("Contract"), the Defendant appointed the Plaintiff to construct and complete the project described as "Bangunan Pejabat 12 Tingkat (Fasa 2B) di Atas Sebahagian Lot 3282 dan PT 4543, Mukim Utan Aji, Kangar, Perlis Indera Kayangan" ("Project") at the contract sum of RM23,146,037.40.

[5] There were disputes and differences that arose between the parties in connection with the performance of the Contract and the Plaintiff instituted Kangar High Court Suit No RA-22NCVC-07-09/2017 against the Defendant claiming for the sum of RM8,807,931.65.

[6] The Defendant applied to stay the Suit to be referred to arbitration pursuant to s 10 of the Arbitration Act 2005 (" AA ") and the Court allowed the Defendant's application on 2 February 2018.

[7] As the result, the parties appointed Ir. Chong Thaw Sing as the arbitrator ("Arbitrator") to resolve the claim and counterclaim of the parties.

[8] The Arbitrator on 30 April 2020 published its arbitral award ("Award") in favour of the Plaintiff by ordering as follows:

For all the reason above, I, accordingly, FIND, DECLARE, DETERMINE, AND AWARD as follows:

1. That the Respondent shall pay the Claimant the principal sum of RM947,693.55 within four weeks from the date of this award.

2. That the Respondent shall pay the Claimant a party to party costs of RM126,302.50.

3. That the Respondent shall bear in full the cost of the award which the tribunal has taxed as RM163,000.00.

4. Any sum awarded by the Tribunal shall be payable within four weeks, if no specific date is stated, from the date of the award, failing this the Claimant is entitled to impose a further interest at a rate of 5% per annum after four weeks grace period until the sums are paid.

[9] The Plaintiff thereafter instituted Kangar High Court Originating Summons No RA-24C(ARB)-01-06/2020 to enforce the Award pursuant to s 38 AA .

[10] Consequently, the parties on 7 August 2020 recorded a consent judgment ("Consent Judgment") in the following terms:

1. That a sum of RM1,155,496.05 as agreed by the parties which has been paid by the Defendant and received and accepted by the Plaintiff's solicitors, Messrs Mohd Nasir & Co, is full and final settlement of the Final Award which was published between PENS HOLDING SDN BHD (Company No: 24317-T) and UDA LAND (NORTH) SDN BHD (Company No: 22339-T), published by Mr Chong Thaw Sing.

2. That the Defendant do pay to the Plaintiff's Solicitors, Messrs Mohd Nasir & Co, within seven (7) days from the date of the consent judgment is recorded the sum of RM5,856.62 as full and final settlement for the interest in the Final Award in respect of the Matter of Arbitration between PENS HOLDING SDN BHD (Company No: 24317-T) and UDA LAND (NORTH) SDN BHD (Company No: 22339-T), published by Mr Chong Thaw Sing;

3. No order as to costs.

Preliminary

[11] That notwithstanding, the Plaintiff also on 27 July 2020 instituted this originating summons in the Construction Court to set aside the Award praying as follows:

1. Bahawa berdasarkan s 37(1)(a)(iv); 37(1)(a)(v); 37(1)(b)(ii) dan/atau 37(2)(b)(ii) Akta Timbang Tara 2005 sebahagian Award Muktamad yang bertarikh 30 April 2020 ("Awad Muktamad") berkenaan tuntutan LAD (Liquidated and Ascertained Damages) yang dikenakan terhadap pihak Plaintif, yang di buat dan yang diterbitkan oleh Mr Chong Thaw Sing iaitu Penimbangtara Tunggal ("Tribunal Timbang Tara") diketepikan dan dibayar balik kepada Plaintif;

2. Kos tindakan ini ditanggung oleh pihak Defendan; dan

3. Lain-lain perintah yang Mahkamah yang Mulia ini fikirkan sesuai dan wajar dilaksanakan.

[12] In consequence, the Defendant on 14 August 2020 filed its applicat