JUDGMENT

Suriyadi Halim Omar J:

The plaintiff (hereinafter referred to as "the applicant"), and the defendant (hereinafter referred to as "the respondent"), on 12 August 1996 executed an agreement for the construction of a 27 hole golf course at Gapam, Melaka. Embedded within the agreement was cl. 14 which provided for the referral of any disputes to an arbitrator, subject to the provisions of the Arbitration Act 1952 (hereinafter called "the Act"). True to form, a dispute arose between them pertaining to payments. As there was a dispute as to whether the matter ought to be resolved before an arbitrator, or by the High Court, the matter ended up before Augustine Paul J. His Lordship on 7 February 1998 ordered that the matter be heard by an arbitrator. Being dissatisfied with that decision, the respondent subsequently filed an appeal to the Court of Appeal. In open court before me, both parties admitted that not only did the court not name the arbitrator, but no application for stay was applied for by the respondent let alone unilaterally ordered by the court.

With the uncertainty of the forum cleared, to cut the matter short, the applicant instructed the arbitrator, one Mr. Khoo Choong Keow to proceed with the arbitration. According to the applicant, Mr. Khoo Choong Keow refused to do so. After a period of time had elapsed, the applicant eventually gave notice to the respondent of its desire to invoke s. 12 of the Act, and to proceed with the appointment of a fresh arbitrator. In a letter dated 30 December 1998 (B265), the applicant also gave the respondent twenty one days to concur to such an appointment, failing which it would be compelled to take the necessary steps, including an application to the High Court to ensure that appointment. That letter also mentioned of its intention to replace Mr. Khoo Choong Keow.

The matter culminated with this originating motion being filed in my court by the applicant on 22 April 1999. Before we could delve into the merits of the originating motion, the respondent posed a preliminary objection, on the grounds, inter alia:

1. the application should be by originating summons and not by originating motion as filed;

2. the affidavit of the applicant was affirmed earlier by a day to that of the originating motion, and therefore was invalid; and

3. the court could only appoint an arbitrator but not remove him due to the lacuna in s. 12 of the Act.

The respondent ventilated that the proceedings should have been begun by originating summons, as, an application by originating motion could only be undertaken if, but only if the proceedings in question were required or authorised by law to be in that format. As there is no provision in the Rules of the High Court 1980, or under any written law which states so, it therefore must follow that the application must be made by originating summons. The relevant provision adverted to by the respondent was O. 5 r. 5. It reads:

Proceedings may be begun by originating motion or petition if, but only if, by these rules or by or under any written law the proceedings in question are required or authorised to be so begun.

In further support of his argument, the respondent resorted to the case of Lee Phet Boon v. Hock Thai Finance Corporation Berhad [1994] 3 CLJ 466. Abdul Kadir bin Sulaiman J there held that as the plaintiff had adopted the wrong procedure, the preliminary objection raised therefore was in order, and accordingly had the application dismissed. His Lordship at p. 469 opined:

As mentioned earlier, originating motion not being the required or authorised mode, and the nature of the application is not one to be made by a petition, so what is left is the originating summons or a writ. Since the plaintiff has chosen the originating motion procedure to commence the action, I have no alternative but to agree with the submission of the learned counsel for the defendant and I accordingly allow the preliminary objection.

Having heard the preliminary objection, and inspite