The repeal of Section 42 of the Arbitration Act 2005 restricts the referral of questions of law to the High Court to awards published before 8 May 2018.

Azizul Azmi Adnan JCA:

Introduction

[1] Section 42 of the Arbitration Act 2005 conferred upon a party to arbitration proceedings the right to refer to the High Court a question of law arising out of an arbitral award. Section 42 was repealed by the Arbitration (Amendment) (No. 2) Act 2018 , which took effect from 8 May 2018. The effect of the repeal meant that questions of law arising from an arbitral award could no longer be referred to the High Court, leaving s 37 as the only means by which an aggrieved party may challenge an arbitral award.

[2] There have been conflicting cases at the High Court on the precise effect of the repeal of s 42. In these grounds of judgment, we explain that a question of law arising out of an arbitral award may only be referred to the High Court if the award had been published prior to 8 May 2018.

The Parties

[3] Luxor Holdings Sdn Bhd and Luxor YRM Sdn Bhd were the employers under construction contracts awarded to SQA Builders Sdn Bhd, a contractor. There were two separate letters of award, one issued by Luxor Holdings Sdn Bhd for the construction of offices on Lot 1 and the other by Luxor YRM Sdn Bhd for Lots 2 and 3, both relating to a development located in a technology park in Kota Damansara. Both letters of award incorporated the Agreement and Conditions of PAM Contract 2006 (Without Quantities), cl 34 of which contained an arbitration agreement.

Adjudication

[4] Disputes arose. SQA Builders referred the disputes to adjudication pursuant to the provisions of the Construction Industry Payment and Adjudication Act 2012.

[5] In 2017, SQA Builders obtained two adjudication decisions in its favour. These adjudication decisions were subsequently set aside by the Court of Appeal in 2021.

Arbitration

[6] In September 2017, shortly after the two adjudication decisions were issued, each of Luxor Holdings and Luxor YRM issued a notice of arbitration, contending (among others) that the Amended Statement of Account/Final Account issued by the appointed quantity surveyor was final and conclusive and hence SQA Builders was only entitled to the amounts certified in such statement. The parties agreed for both disputes to be resolved in the same arbitration proceedings before the same arbitrator and for the arbitrator to issue a single award.

[7] On 30 July 2021, the arbitrator delivered his award, by the terms of which Luxor Holdings and Luxor YRM were to pay RM2,279,718.85 to SQA Builders.

Proceedings At The High Court

[8] Before the High Court:

(a) SQA Builders filed an application at the High Court to enforce the arbitral award pursuant to s 38 of the Arbitration Act 2005 . This originating summons is referred to here as "OS 8";

(b) Luxor Holdings and Luxor YRM commenced an originating summons to refer ten questions of law to the Court, pursuant to s 42(1) of the Arbitration Act 2005 ("OS 9"). OS 9 was subsequently amended: seven of the ten questions of law were amended and an additional question added;

(c) Luxor Holdings and Luxor YRM commenced an action to set aside the arbitral award, pursuant to s 37 of the Arbitration Act 2005 ("OS 10");

(d) SQA Builders filed an application to tax the costs of the arbitration proceedings pursuant to s 44 of the Arbitration Act 2005 ("OS 14").

[9] These four proceedings were heard together. The learned High Court Judge hearing the matters issued a single set of grounds of judgment.

[10] There were five appeals before the Court of Appeal:

(a) in Appeal No 2354, SQA Builders appealed against the decision of the High Court in OS 8 to allow only part of its application to enforce the final arbitral award and the two adjudication decisions;

(b) in Appeal No 2394, Luxor Holdings and Luxor YRM appealed against the decision of the High Court in OS 8 allowing in part the application by SQA Builders to (among others) enforce the final arbitral award;

(c) in Appeal No 2395, Luxor Holdings and Luxor YRM appealed against the decision of the High Court in OS 9. The High Court had f