Nik Hashim JCA:

Background

[1] The arbitrator, Tan Sri Datuk Amar Chong Siew Fai (the former Chief Judge of Sabah and Sarawak) at the request of the appellant and the respondent, referred by way of case stated pursuant to s. 22(1)(a) of the Arbitration Act 1952 (the Act) five questions of law for the determination of the High Court. The five questions posed and the answers given by the learned judge as reported in [2004] 5 MLJ 449 are as follows:

(1) Q: Whether or not a dispute or difference had arisen between the appellant and the respondent;

A: No.

(2) Q: If the answer to (1) above is in the affirmative was there a reference of the dispute or difference by the respondent to the engineer for a decision?;

A: As the answer to (1) above is 'No', this question does not arise for consideration.

(3) Q: If the answer in (2) above is in the negative can the arbitration be proceeded with and continued further?;

A: Notwithstanding that question (2) was not answered, the answer is 'Yes' in view of the answer to questions (4) and (5).

(4) Q: Alternatively whether the arbitrator has been validly appointed by the parties pursuant to the letter of appointment dated 12 December 2001;

A: Yes.

(5) Q: In the further alternative whether the appellant in view of their conduct as stated in the statement of agreed facts is now entitled to dispute the validity of the arbitration proceedings.

A: No.

[2] Dissatisfied with the decision, the appellant appealed to us. On 14 May 2005 we unanimously dismissed the appeal with costs and affirmed the decision of the learned judge and further ordered that the deposit be paid to the respondent to account of its taxed costs.

[3] The appeal before us was directed against the learned judge's answers to questions (3), (4) and (5) of the case stated. The appellant contended that the answers to the questions were erroneous on the grounds that:

(i) since the learned judge had made a finding that there was no dispute or difference between the parties, there was no valid reference to arbitration that could have been made as there was a mistaken belief with regard to the existence or otherwise of a dispute or difference between the parties,

(ii) the letter of appointment was vitiated on the ground that there was a mistake; and

(iii) the doctrine of estoppel did not arise in this case as the recital in the letter of appointment was premised on a mistake.

[4] It is worthy of note that the proceedings under s. 22 of the Act for the decision of the High Court judge were purely for the consideration of matters of law posed to him which arise in the course of the arbitration proceedings. Thus, the learned judge, when making his findings on questions (4) and (5), was entitled to treat and indeed treated them independently of questions (1) and (2). Questions (4) and (5) too were separately considered by the learned judge and they were drafted as stand-alone questions, which are to be answered in the alternative to the other questions.

[5] With regard to question (4) which reads:

(4) Alternatively whether the arbitrator has been validly appointed by the parties pursuant to the Letter of Appointment dated 12 December 2001,

it is clear that what was sought to be impugned before the learned judge was the appointment of the arbitrator and not the letter of appointment dated 12 December 2001. Since the validity of the letter of appointment was not challenged, we therefore agree with the respondent that there was no necessity for the learned judge to make any finding thereon. As such, the learned judge was right in that he did not even need to consider the possibility of mistake based on circumstances leading to the letter of appointment that the appellant now alleges to have existed. Furthermore, the issue of a mistake was not even posed by the arbitrator for the decision of the High Court and therefore, the need to consider it does not arise.

Was There An Ad-hoc Agreement?

[6] It was the submission of the appellant that when