The court affirmed that amendments to the Arbitration Act do not apply retrospectively to ongoing proceedings, upholding the integrity of prior rights and the limited grounds for setting aside arbitration awards.

(3 Originating Summonses)

Wong Kian Kheong J:

A. Introduction

[1] This is a judgment concerning Mammoth Empire Construction Sdn Bhd (Mammoth), Kenwise Sdn Bhd (Kenwise) and the following three originating summonses (OS):

(1) OS No BA-24NCC(ARB)-1-07/2019 (Mammoth's Reference OS) has been filed by Mammoth against Kenwise which refers six questions of law (6 Questions) to this court pursuant to s 42(1) of the Arbitration Act 2005 ( AA ). According to Mammoth, the 6 Questions arose from a final arbitral award dated 12 June 2019 by a sole arbitrator, Mr Nahendran Navaratnam (Arbitrator), in favour of Kenwise against Mammoth (Award); and

(2) Mammoth has also filed OS No BA-24NCC(ARB)-2-08/2019 (Mammoth's Setting Aside OS) against Kenwise to set aside the Award under s 37(1)(a)(iv), (v), (b)(ii), (2)(b)(i) and (ii) AA ; and

(3) OS No BA-24C(ARB)-6-09/2019 has been filed by Kenwise against Mammoth for a court order under s 38(1) AA to recognize the Award as binding and be enforced by entry as a judgment in terms of the Award (Kenwise's Enforcement OS).

B. Background

[2] Mammoth was a main contractor of a development project known as "Empire City" (Project).

[3] By way of a Letter of Award dated 31 May 2015 (LA), Mammoth appointed Kenwise to supply, deliver, install, maintain, test and commission 8 " LG Water Cooled Centrifugal Chillers " units (Chillers) for the Project at a price of RM12,480,000.00.

[4] Mammoth sent a letter dated 6 April 2017 to Kenwise which stated as follows, among others:

(1) Kenwise had sent an email dated 20 February 2017 to Mammoth which alleged that, among others-

(a) the Chillers had been manufactured and were subject to " LG factory performance tests "; and

(b) Kenwise had been waiting for almost 68 weeks for Mammoth's confirmation;

(2) Mammoth had sent an mail dated 28 February 2017 to Kenwise [ Mammoth's Email (28 February 2017) ] which requested Kenwise to furnish Mammoth with all the relevant documents regarding the Chillers so that Mammoth could get verification from Mammoth's employer;

(3) despite Mammoth's Email (28 February 2017), Kenwise did not furnish Mammoth with all the relevant documents regarding the Chillers;

(4) Kenwise had failed to complete the works under the LA (Works) within the time period stipulated in cl 3.1 LA;

(5) Mammoth gave notice to terminate the LA pursuant to cl 9.1 LA; and

(6) Mammoth reserved all its rights, including the right to recover a sum of RM1,248,000.00 paid by Mammoth to Kenwise as down payment for the LA (Down Payment).

[5] In view of Mammoth's termination of the LA [ LA (Mammoth's Termination) ], Kenwise commenced arbitral proceedings against Mammoth (Arbitral Proceedings) in accordance with the arbitration agreement provided in cl 13 LA (Clause 13).

[6] In the Arbitral Proceedings-

(1) Kenwise claimed for the full price of the 8 Chillers or alternatively, general damages (Kenwise's Claim);

(2) Mammoth counterclaimed for Kenwise's return of the Down Payment (Mammoths' Counterclaim); and

(3) the learned Arbitrator delivered the Award as follows, among others-

(a) Kenwise's Claim is allowed to the extent that Mammoth shall pay the following sums as damages to Kenwise (with interest at 8% per annum from the date of the Award until full payment of these sums)-

(i) US$1,100,000.00; and

(ii) RM1,165,605.78

(Award Sums); and

(b) Mammoths' Counterclaim is dismissed.

C. Three OS

[7] Learned counsel for Kenwise has raised a preliminary objection against Mammoth's Reference OS as follows (Kenwise's PO):

(1) section 42 AA had been repealed by the Arbitration (Amendment) (No 2 Act 2018 (Act A1569) with effect from 8 May 2018; and

(2) Mammoth's Reference OS was filed on 23 July 2019 (after the enforcement of Act A1569). Accordingly, the court has no jurisdiction to hear Mammoth's Reference OS because s 42 AA has already been repealed by Act A1569 on the date of filing of Mammoth's Reference OS.

[8] In Kenwise's Enforcement OS, Mammoth applied in court enclosure no 7 for a stay of Kenwis