The court upheld the arbitral award, finding no breach of natural justice, and affirmed that specific commercial terms prevail over general contract conditions.

JUDGMENT

Aliza Sulaiman J:

Introduction

[1] By the Amended Originating Summons ('Amended O.S.', encl 94) dated 30 June 2021, the Plaintiff applied to set aside the "Final Award" dated 30 July 2020 read with the "Corrections To The Final Award: dated 28 September 2020 ('Award') made by the learned Arbitrator, Mr Mohanadass Kanagasabai ('Arbitrator') in the arbitration proceedings between the Plaintiff/ respondent and the Defendant/ claimant pursuant to subparagraphs 37(1)(a) (iv), 37(1) (a) (v), 37(1)(b)(ii) and/ or 37(2)(b) of the Arbitration Act 2005 [Act 646] (' AA 2005').

[2] After giving due consideration to the cause papers, the oral submissions and the comprehensive written submissions by the parties, including the clarification by the learned counsels, Mr Alex T an for the Plaintiff and Mr N. Rajentharan for the Defendant after the hearing of the application, I had dismissed the Plaintiffs application.

[3] These are my full grounds of judgment in respect of the said decision.

The Cause Papers

[4] The cause papers, except for the Amended O.S., are as follows:

(a) the Plaintiffs 1st Affidavit In Support ('AIS') affirmed by its Director, Dato' IrZaini Bin Ismail on 27 October 2020 (encls 2 - 8);

(b) the Defendant's 1st Affidavit-In-Reply ('AIR') affirmed by its Chief Executive Officer and Managing Director, Liew Hau Seng on 16 December 2020 (encls 9 - 38);

(c) the Plaintiff's 2nd Affidavit affirmed by the same deponent on 4 February 2021 (encls 41 - 70);

(d) the Defendant's 2nd AIR affirmed by the same deponent on 4 March 2021 (encl 73);

(e) the Plaintiff's 3rd Affidavit affirmed by the same deponent on 24 March 2021 (encl 78);

(f) the Plaintiffs Additional Affidavit affirmed by the same deponent on 9 April 2021 (encl 79);

(g) the Plaintiff's 5th Affidavit affirmed by the same deponent on 9 July 2021 (encl 95);

(h) the Defendant's 3rd AIR affirmed by the same deponent on 23 July 2021 (encl 99); and

(i) the Plaintiff's 6th Affidavit affirmed by the same deponent on 2 August 2021 (encl 100).

Salient Background Facts

[5] The Butteworth Outer Ring Road Project ('Project') involved five packages, namely:

(a) Package 1A: Road between CH375 to CH2400;

(b) Package 1B: Cable-stay Bridge across Sg. Prai & Road between CH2400 and CH4250;

(c) Package 2: Road between CH4250 and CH6800;

(d) Package 3: Road between CH6800 and CH10750; and

(e) Package on Toll Plazas.

[6] The dispute between the parties relates to Package 1B of the Project. The Government of Malaysia ('Government') had awarded a turnkey contract to the Plaintiff for Package 1B. The design of the Package 1 B works were prepared by the Plaintiff who engaged its team of design consultants. The design was approved by the Government before the Package 1 B works were tendered out to contactors.

[7] Initially, the Plaintiff appointed Ballast Nedam Groep N.V. (M) Sdn Bhd ('Ballast Nedam') as the contractor for Package 1B. However, the engagement with Ballast Nedam was subsequently terminated.

[8] After the termination of Ballast Nedam and for purpose of inviting tenders for the balance of works left by Ballast Nedam for Package 1 B, the Plaintiff divided Package 1 B into three sections, namely-

(a) casting and delivery of Precast Segments (S1);

(b) erection of Precast Segments, Pylon Construction and Ancillary Works (S2); and

(c) remaining In-Situ Concrete Works, At Grade Works, Road Furniture, Finishes and Mechanical and Electrical Works (S3).

[9] The Plaintiff awarded the S3 Contract to the Defendant where the latter was asked to assist by doing token casting segment works in order to give the Public Works Department ('PWD') the appearance of work activities in the segment casting yard. After more than one month of such token casting works, the Plaintiff decided to award the S1 Contract to the Defendant.

[10] Thereafter, the Plaintiff considered the tenders for S2, including the Defendant's. Eventually the S2 Contract was also awarded to the Defendant in joint venture with Zublin Malaysia Sdn Bhd [the cont