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2021 MarsdenLR 4221
HIGH COURT MALAYA KUALA LUMPUR
SABAH SHELL PETROLEUM COMPANY LIMITED – Appellant
Versus
GUMUSUT-KAKAP SEMI-FLOATING PRODUCTION SYSTEM (LABUAN) LIMI.... – Respondent
[Originating Summons No: WA-24C(ARB)-10-05/2020 & WA-24C(ARB)-18-03/2021]
The court emphasizes the need for affidavits to be pertinent and material, allowing expungement of irrelevant or scandalous content per established legal standards.
Headnote:{"Statute Analysis":"The applications are made pursuant to O 2 r 2 and O 46 r 1 of the Rules of Court 2012, and s 38, 39 of the Arbitration Act 2005.\n\nFacts of the Case:\nSSPC, the plaintiff in the Enforcement Application, seeks to enforce an arbitral award while GKL, the plaintiff in the Setting Aside Application, contends the affidavits are relevant to procedural events during arbitration.\n\n
Findings of Court:
\nThe court affirms that the Affidavits are irrelevant to the records of the arbitral proceedings and allow the expungement applications. ","Issues":"The critical inquiry is whether the Affidavits constitute scandalous or irrelevant matters per O 41 r 6.", "Ratio Decidendi":"The court established that affidavits must not be scandalous or irrelevant, citing prior rulings, and discretion may be exercised by the court in expunging unnecessary evidence. ","Result":"I allow the Expungement Applications with costs of RM20,000.00 subject to the usual allocator."}
| Table of Content |
|---|
| 1. introduction of case and parties involved. (Para 1 , 2 , 3 , 4) |
| 2. contentions regarding the inclusion of affidavits. (Para 19 , 20) |
| 3. court's analysis of arbitral records and evidentiary standards. (Para 21 , 22 , 23 , 24 , 25 , 26 , 27) |
| 4. final ruling on expungement of affidavits. (Para 30) |
Introduction
[1] These are applications to expunge an affidavit filed in relation to the applications to set aside an arbitral award as well as to resist the enforcement of the same arbitral award.
[2] The Plaintiff in KLHC Originating Summons No WA-24C(ARB)-10-05/2020 ("Enforcement Application") and the Defendant in KLHC Originating Summons No WA-24C(ARB)-18-03/2021 ("Setting Aside Application") is a limited company incorporated in the United Kingdom and involved in the oil and gas business.
[3] The Defendant in the Enforcement Application and the Plaintiff in the Setting Aside Application is a limited company incorporated in Labuan and involved in the oil and gas business as well.
[4] For ease of reference, the parties will hereinafter be described as SSPC and GKL respectively.
Background And Preliminary
[5] By a Lease Agreement (Contract No C-591673) dated 9 November 2012 ("Contract"), the parties contracted for the carrying out of the engineering, procurement, construction and lease of a Semi-Submersible Floating Production System ("Semi-FPS").
[6] There were disputes and differences that arose between the parties in connection with the Contract and the disputes and differences were referred to arbitration before an arbitral tribunal comprising of Sir Vivian Ramsey QC, Professor Doug Jones and Dr Robert Gaitskell QC ("collectively "Tribunal"). The arbitration was conducted under the auspices of the Kuala Lumpur Regional Centre of Arbitration (now Asian International Arbitration Centre).
[7] The arbitral tribunal published its final award dated 8 April 2020 ("Award") in favour of SSPC.
[8] Consequently SSPC on 22 May 2020 filed its Enforcement Application here in the Construction Court to enforce the Award.
[9] GKL thereafter on 7 July 2020 filed KLHC Originating Summons No WA-24NCC(ARB)-16-07/2020 in the Commercial Court to set aside the Award.
[10] I heard the Enforcement Application on 7 July 2020 and gave the ex-parte order in favour of SSPC pursuant to s 38 of the Arbitration Act 2005 (" AA ") after hearing both parties on a contested ex-parte basis since GKL has already been named in the Enforcement Application.
[11] As the result, GKL on 27 July 2020 filed its application to challenge/set aside the ex-parte order pursuant to s 39 AA ("Challenge Application").
[12] GKL thereafter on 4 August 2020 filed its application to transfer the SSPC's Enforcement Application as well as GKL's Challenge Application thereunder to the Commercial Court.
[13] On 9 October 2020, GKL filed an affidavit affirmed by Robert Breeze dated 9 October 2020 as well as an affidavit affirmed by Lee Shih dated 9 October 2020 that exhibited the same but unaffirmed affidavit of Robert Breeze (collectively "Affidavits") in its Challenge Application in this Court as well as in the setting aside application in the Commercial Court.
[14] I dismissed GKL transfer applications on 24 February 2021 which is reported in [2021] 3 AMR 188. Subsequent thereto, the parties by consent transferred GKL's setting aside application in the Commercial Court to this Court that is now re-registered as the Setting Aside Application.
[15] SSPC then on 17 November 2020 filed its application which is with the leave of this Court amended on 26 February 2021 to expunge the Affidavits ("First Expungement Application") in the Challenge Application. Similarly, SSPC also on 17 November 2020 filed its application which is with the leave of this Court amended on 6 April 2021 to expunge the Affidavits ("Second Expungement Application") in the Setting Aside Application.
[16] The affidavits which were filed for purposes of these First Expungement Application and Second Expungement
