The enforcement of consultancy agreements is subject to compliance with professional registration laws, and non-compliance can render such agreements unenforceable.

Ian HC Chin J:

Introduction

Three learned arbitrators had on 22 February 2000 on different grounds made an award in favour of Sami Mousawi-Utama Sdn Bhd ("the claimant"), by answering affirmatively the preliminary issues that are worded in the following terms:

Whether the Claimant (a body corporate) being not an "Architect", "Engineer" or "Quantity Surveyor", as defined in the Architects Act, 1967 , Registration of Engineers Act, 1967 and Quantity Surveyors Act, 1967 , (respectively) can, having regard to Sections 7 and 7A of the said Acts, provide in Malaysia, the comprehensive architectural, engineering and quantity surveying consultancy services for the design and supervision of the construction, building and erection of the new State Mosque and related buildings which the Claimant is contractually obligated to provide under the Consultancy Services Agreement dated 26th October, 1984. In any event whether the Claimant has a cause of action against the Respondent in respect of its entitlement to fees and other remedies pursuant to the Consultancy Services Agreement dated 26th October 1984 in light of the provisions of the ,Registration of Engineers Act 1967 and Quantity Surveyor's Act 1967.

They are formulated in consequence of the respondent's (the Government of the State of Sarawak) contention that the consultancy services agreement dated 26 October 1984 ("the CSA") which "purports to provide consultancy services, as architects, engineers and quantity surveyor in contravention of s. 7A(1) of [the said three Acts] is unlawful or illegal and hence unenforceable in law and equity." That was in answer to the claims by the claimant for (1) outstanding fees of RM300,057.61 due under phase I of the project and (2) for loss of entitlement of fees amounting to RM22,981,361.71 resulting from the respondent appointing another firm of architects instead of the claimant to perform the services for phase II and III of the project for the construction of the state mosque.

Two of the arbitrators decided on the ground that those sections have no application while the other arbitrator disagreed but nevertheless answered the questions positively on account of s. 39 of the three Acts which I will set out later.

The respondent came into the picture by virtue of a novation agreement made on 20 November 1984 under which it took the place of Lembaga Amanah Kebajikan Mesjid Negeri Sarawak ("the lembaga") which executed the CSA with the claimant signing as the other party.

Facts Of Case

On 5 July 1984 the British architectural firm called Sami Mousawi International ("SMI"), with Sami Mousawi as the principal, and the Malaysian architectural cum engineering firm called Perunding Utama ("PU"), with Abdullah Mohd. Noor as the principal, jointly wrote to the lembaga to propose the provision of comprehensive consultancy services for the design and supervision of a proposed new Sarawak State mosque. It was stated in the proposal:

(1) that SMI would prepare in the United Kingdom the architectural drawings from concept, schematic and outline design to actual tender drawings and specifications as well as the mechanical and engineering (M&E) report, layout, design and calculations; and

(2) that PU would assist in some of those works and, inter alia, prepared the civil work designs and drawings, cost estimates, structural drawings, M&E detail drawings and specifications and bills of quantities and PU would submit and seek approval of the building plans from all the relevant authorities.

The proposal mentioned that the fees to be charged would be based on that prescribed by the relevant professional bodies of