BACKGROUND.

By a Building Contract (hereinafter referred to as the Contract) entered between the plaintiff and the 3rd defendant on the 22.11.96, the plaintiff appointed the 3rd defendant, as the contractor to carry out and to complete the construction of the proposed 15 storey condominium project at Lot 2855 Muara Tebas Land District, Ulu Sg. Stutong, Kuching.

Works came to a halt on the site around the end of August 1999. The 3rd defendant purportedly determined its obligations under the Contract on 19.8.99, alleging non-payment by the plaintiff. The plaintiff, rejected that determination and then gave its own termination notice to the 3rd defendant vide its letter dated 10.9.99 based, inter-alia, on the breaches of the Contract by the 3rd defendant pursuant to clause 25(1) therein, for failing to remedy the default specified by the architect.

Clause 34 of the Contract stipulates that all disputes or differences arising thereunder or in connection with the Contract shall be referred to arbitration.

On 7.10.99, the 3rd defendant wrote to the plaintiff giving notice of intention to refer the disputes to arbitration and proposed two names that could be appointed as arbitrators. The plaintiff responded on 20.10.99, pointing out that the two names proposed by the 3rd defendant were not agreeable but did not object to the 3rd defendant's intention to refer the said disputes or differences to arbitration.

The plaintiff indicated that it would nominate an arbitrator of its own choice within 14 days therefrom. The plaintiff never made such nomination at all. Consequently, pursuant to clause 34 of the Contract, solicitors for the 3rd defendant wrote to the President of Pertubuhan Arkitek Malaysia (PAM) on 11.11.99, requesting his good office to appoint an arbitrator.

On 15.11.99, the plaintiff through its solicitors retracted its letter dated 20.10.99 citing that the letter was issued without the benefit of legal advice.

Following that, on 14.12.99, the plaintiff commenced an action against the 3rd defendant herein as the sole defendant vide High Court Kuching Suit No. 22-255-99-111 (1) (hereinafter referred to as 'the 1st suit') , inter alia, for the following orders:

(i) a declaration that the termination of the Contract by the 3rd defendant is invalid, given unreasonably and/or vexatiously;

(ii) a declaration that the 3rd defendant's employment under the Contract was validly terminated by the plaintiff vide the plaintiffs letter dated 10.9.1999;

(iii) a declaration that any claim by the defendant would be premature until clause 25(3) of the Contract is fulfilled;

(iv) an Order that all actions to refer the matter for arbitration be stayed until the determination of (i), (ii) and (iii) above; and

On 6.1.2000, the 3rd defendant entered a conditional appearance and on 19.1.2000, an application was filed pursuant to s.6 of the Arbitration Act 1952, to stay the proceedings therein so that the disputes could be referred to arbitration.

In the meantime, on 24.2.2000, the 2nd defendant (President of PAM) appointed the 1st defendant as Arbitrator. Two meetings were called by the 1st defendant but on both occasions the plaintiff refused to attend on the ground that the matter was subjudiced.

On 13.1.2000, the plaintiff served an Amended Statement of Claim on the 3rd defendant. The principal reason for the amendment was to bring in an allegation of fraud against the 3rd defendant.

Present Suit (the 2nd Suit).

On 3.5.2000 the plaintiff commenced an action before this Court (hereinafter referred to as the 2nd suit) against the 1st, 2nd and 3rd defendants by way of writ of summons, praying, inter-alia, for the following orders and declarations:

(i) a declaration that the purported appointment of the 1st defendant as "arbitrator" is invalid and improper;

(ii) that any directions purportedly issued by the 1st defendant in the purported arbitration are invalid, null and void;

(iii) an injunction to restrain the defendants from proceeding