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2012 MarsdenLR 1390
COURT OF APPEAL PUTRAJAYA
DUTA WAJAR SDN BHD – Appellant
Versus
PASUKHAS CONSTRUCTION SDN BHD & ANOR – Respondent
[Civil Appeal No: W-02(IM)-1100-2010]
Petitioner Advocates:S Ashok,Vijaylatha Vellupillai ,Respondent Advocate: Gideon Tan,Brian Cummings
An arbitration agreement must be in writing to be enforceable; conduct alone does not suffice to establish acceptance of arbitration terms.
Headnote:(A) Arbitration Act 2005 - Section 10 - No arbitration agreement in writing existing between the parties; the Court deemed it imperative that an arbitration agreement be in writing (para 9-10) - Appellant argued that the conduct of proceeding with works constitutes acceptance of arbitration clause, but the Court disagreed, requiring clear evidence of written agreement (paras 31-32).
(B) Legal burden lies on the party asserting the existence of an arbitration agreement to prove it clearly, especially when relying on circumstantial evidence (para 26).
Facts of the case:
This appeal arose from a High Court decision that allowed defendants' appeal against the dismissal of their application to stay proceedings based on alleged arbitration agreements. The plaintiff denied having signed any such agreement. The defendants argued that the plaintiff's conduct in completing work constituted acceptance of an unwritten arbitration clause.
Findings of Court:
The Court found that there was no written arbitration agreement, which meant the stay of proceedings was not warranted. The contractual relationship existed, but the sub-contract was not formalized in writing.
Issues: The main issues were whether an arbitration agreement existed, and if the conduct of the parties could establish such an agreement despite the lack of a signed document.
Ratio Decidendi: The court ruled that an arbitration agreement must be in writing and the defendants failed to meet the burden of proof to demonstrate its existence. The Court emphasized that conduct alone, without written confirmation, does not constitute acceptance of the agreement (paras 9, 26).
Result: Appeal allowed with costs; order of the High Court set aside, restoring the order of the Senior Assistant Registrar.
| Table of Content |
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| 1. background of the appeal (Para 1 , 1 , 2) |
[1] This is an appeal against the decision of the High Court of Kuala Lumpur of 24 March 2010. The appellant, Duta Wajar Sdn Bhd was the plaintiff at the High Court. The respondents, namely:
(1) Pasukhas Construction Sdn Bhd
(2) I-Innovations Construction Sdn Bhd were the defendants.
[2] On 24 March 2010 the learned judge of the High Court of Kuala Lumpur, on appeal to the judge in chambers, had allowed the respondents'/defendants' appeal against the decision of the learned Senior Assistant Registrar.
