The acknowledgment of debt under ss 26 and 27 of the Limitation Act must meet strict legal requirements, including being in writing and made to the party entitled to the acknowledgment.

[1] The present two Originating Summonses are agreed to be heard together given that both Originating Summonses concerned the same arbitration award.

[2] In Originating Summons No. 24(ARB)-9-03/2015, the Plaintiff, Ssangyong Engineering & Construction Co Ltd [Ssangyong] seeks to set aside the Award dated 21 January 2015 under the Arbitration Act 2005 [Act 646] under subparas 37 (1) (a) (iv) and (v); subpara 37 (2) (b) (ii) and para 37 (2) (b). Alternatively, Ssangyong seeks to invoke s 42 of the same Act to refer certain questions of law that it claims arises under the Award. As a consequence to the answer or determination of these questions of law, Ssangyong seeks the consequential order of setting aside of the same Award. The Defendant is Tridant Engineering (M) Sdn Bhd [Tridant].

[3] In Originating Summons No. 24C(ARB)-24-06/2015, Tridant seeks to recognize that same Award as binding and enforce the same as an order of the High Court. That application is made under s 38 of Act 646.

[4] The parties agree that the outcome of Ssangyong's application will determine the appropriate order to be made in respect of Tridant's application.

Background Facts

[5] On 1^st March 1996, Ssangyong entered into a contract with a company known as Yetcome Investments Ltd [the Employer] where Ssangyong was appointed as the main contractor of a project to construct the superstructure for the Menara Landmark Johor Bahru [the project] at Lot PTB No. 13177, Jalan Ngee Heng, Johor Bahru [the project site]. Tridant was the nominated sub-contractor appointed by Employer to carry out electrical services installation and extra-low voltage installation works for the project. On 9 September 1999, Ssangyong and Tridant subsequently entered into two sub-contracts in respect of those works [sub-contracts].

[6] By letters dated 3 April 2012 and 30 April 2012, Tridant's solicitors alleged that Ssangyong owed Tridant a total sum of RM3,070,019.74 under various progress payment certificates [nos. 32 and 33; and 43 to 45]. This was denied by Ssangyong.

[7] In July 2012, Tridant issued a Notice of Arbitration. In its Statement of Case, Tridant alleged that Ssangyong had failed to make the total payment of RM 3,070,019.74. In its Defence, Ssangyong denied the claim on two grounds. First, on the basis that it was not obliged to pay Tridant until it was paid by the Employer. To date, Ssangyong had not been paid by the Employer but reasonable steps had been taken to recover the outstanding sums from the Employer including winding up proceedings which led to the winding up of the Employer. Second, which was an alternative ground, that the claim was time-barred.

[8] In Reply to this Defence, Tridant claimed that it was entitled to claim against Ssangyong after the lapse of reasonable time notwithstanding that Ssangyong had not been paid by the Employer. In respect of limitation accrued from the date reasonable steps had been taken by Ssangyong to be paid by the Employer.

[9] After hearing for three days and upon perusing submissions made by both parties, the learned Arbitrator made the following findings:

i. On progress payment certificates nos. 32 and 33, Ssangyong was not entitled to withhold payment whilst in respect of the progress payment certificates nos. 43 to 45, the pay when paid clause did not prevent Tridant from claiming; Ssangyong's liability to pay Tridant was not contingent on Ssangyong's receipt of the sum from the Employer - paras 34 to 61 of the Award

ii. On the issue of limitation, Tridant's claims are