Alauddin Mohd Sheriff FCJ:

Introduction

[1] The appellant commenced legal proceedings in the High Court, Kuala Lumpur for, inter alia, the following orders:

i) An injunction against the second respondent from entering the project site and a mandatory injunction against them to vacate the site.

ii) An injunction against the first respondent and the architect (second Defendant in the High Court proceedings) from conspiring to terminate the appellant's employment.

iii) An injunction against the architect to issue the Certificate of Practical Completion (CPC) and in the event the architect refuses to do so, an independent third party be appointed to assess the works, and if the third party confirms that the building works are practically completed, the Senior Assistant Registrar will issue a CPC.

[2] On 18 June 2001 the High Court allowed the appellant's application and dismissed the first respondent's application for a stay pending arbitration.

[3] On 22 June 2001, the Court of Appeal granted an interim stay and on 27 June 2001, the interim stay was extended. The Court of Appeal proceeded to hear the respondents' appeal and on 26 March 2002 delivered its decision, reversing the decision of the High Court.

[4] On 2 October 2002, the appellant was granted leave to appeal against the decision of the Court of Appeal on the following question:

Whether the courts have the power to open up, review and revise certificates, opinions and decisions of the architect when such powers have been given to the arbitrator under the arbitration clause.

[5] Hence the present appeal before us.

Background Facts

[6] The first respondent is the proprietor of land known as Lot Nos 151, 152 and 157 Section 87A, Jalan Tun Razak, Kuala Lumpur ("the said lands").

[7] By an agreement entered into between the appellant and the first respondent on 16 March 1995 ("the contract"), the first respondent appointed the appellant as the contractor for the construction of a building comprising of commercial office and apartments proposed to be built on the said lands ("the project").

[8] The articles of agreement in the contract provide for disputes or differences under the contract to be referred to arbitration (see cl 34 at p 1675 vol 3 AR).

[9] The second Defendant in the High Court action was appointed the architect for the project ("the architect").

[10] It was agreed between the appellant and the first respondent that the first respondent shall procure the issuance of an irrevocable bank guarantee that the appellant would be paid the contract sum of RM110,000,000 and the financing cost of RM12,770,000 (collectively referred to as "the guaranteed sum") upon issuance of the CPC by the architect.

[11] Pursuant to the Contract Bank Bumiputra Malaysia Berhad ("the guarantor") issued a letter dated 16 March 1995 ("the guarantee") in favour of the appellant to pay the guaranteed sum upon the production by the appellant to the guarantor of a CPC subject however to the guarantor withholding the retention sum, which it would hold for and on behalf of the first respondent during the defects liability period (see cl 2(A) of the guarantee at pp 892 to 896 vol 4 AR).

[12] The appellant was to have commenced work on 30 March 1995 and completed the same within 30 months (15 September 1997). The date of completion was extended to 28 February 1998 pursuant to an application for extension of time. No further extensions of time were granted to the appellant despite numerous requests.

[13] The appellant applied for the CPC on 22 May 2000. This request was denied by the architect on the grounds that work was not completed.

[14] On 29 May 2000, the architect allegedly inspected the building and issued a letter alleging that the appellant had not carried out the works regularly and diligently. The letter was followed by a notice dated 1 June 2000 from the architect. This notice was issued pursuant to cl 25 of the contract. Yet on the same date the first respondent issued invitations to its potentia