A party seeking a stay for arbitration must file the application before taking any steps in litigation, or risk being deemed to have abandoned the right to arbitration.

JUDGMENT

Umi Kalthum Abdul Majid JCA:

A. Introduction

[1] Infinity Vantage Sdn Bhd, the Respondent/Plaintiff, filed an action against one Yeo Eng Lam, the Appellant/Defendant, vide Civil Suit No: NA-22NCvC-57-08/2017 at the High Court in Malaya at Seremban, Negeri Sembilan (the Civil Suit).

[2] The Respondent's/Plaintiffs claim was for breach of contract and the Respondent/Plaintiff was seeking a sum of RM 7,000,000.00 pursuant to a Joint Venture Agreement (JVA) dated 3 October 2014 between the parties. Clause 29.3 of the JVA provides that all disputes between the parties are to be referred to arbitration.

[3] On 17 October 2017, the Appellant/Defendant vide encl 8 at the High Court, filed an application under O 92 r 4 of the Rules of 2012 (ROC) and/or s 10 of the Arbitration Act 2005 (Act 646) to stay the proceedings at the High Court and to essentially refer the dispute to arbitration.

[4] On 8 February 2018, the High Court dismissed the Appellant's/Defendant's application in encl 8 with costs of RM 3,000.00 subject to the payment of the allocatur's fee.

[5] Aggrieved by the said decision, the Appellant/Defendant filed an appeal to this Court.

[6] For the purpose of this appeal, the parties will be referred to as they were at the High Court.

B. Background Facts

[7] The facts relevant to this appeal are as follows. The Plaintiff initiated the Civil Suit against the Defendant on 25 August 2017 alleging, amongst others, that the Defendant had breached the JVA between them and as a result of which the Plaintiff is seeking a sum of RM 7,000,000.00 with interest, special damages and other reliefs from the Defendant.

[8] During case management at the High Court on 25 September 2017, the learned Deputy Registrar directed the Defendant to file her Statement of Defence on or before 13 October 2017. The Defendant then filed the Memorandum of Appearance on 3 October 2017.

[9] On 9 October 2017, the Defendant filed an application in encl 5 to disqualify the Plaintiff's solicitors, M/s Ghazi & Lim, to act for the Plaintiff. Enclosure 5 was premised on the basis that the Plaintiff's solicitors had acted as common solicitors of the parties in the preparation of the JVA. As such, they were privy to confidential information pertaining to the Defendant and there will be a serious conflict of interest if the said solicitors were to represent the Plaintiff against the Defendant in the Civil Suit.

[10] The Defendant alleged in her Affidavit in Support to encl 5, at para 6, that the solicitors for the Plaintiff will be called to testify as witnesses of any material and disputed questions of fact in this action. Enclosure 5 has yet to be heard by the High Court.

[11] Then, on 13 October 2017, the Defendant filed her Statement of Defence and Counter-Claim. Four days after the filing of the Statement of Defence and the Counter-Claim the Defendant filed the Notice of Application encl 8 under s 10 of Act 646, being the subject matter of this appeal, for the proceedings at the High Court to be stayed pending reference to arbitration pursuant to cl 29.3 of the JVA.

[12] The Plaintiff objected to the application in encl 8 and argued that the Defendant had participated in the proceedings at the High Court and had in fact taken two other steps prior to the filing of the stay application; the two other steps being the filing of encl 5 and the Statement of Defence and the Counter-Claim. The stay application should have been filed before the Defendant had taken any other steps at the High Court proceedings and the Defendant's failure to comply with the conditions prescribed in s 10(1) demonstrated the Defendant's participation in the proceedings at the High Court and should be precluded from now referring the matter to arbitration.

[13] On the contrary, the Defendant argued that the Defendant has not taken any steps in the proceedings that would disentitle her to apply for a stay order to be granted. The Defendant argued that application to disqualify the Plaintiff's solici