Edgar Joseph Jr. SCJ:

In the application by way of originating summons the plaintiffs Teong Piling Co. had prayed for an order that their cost arising out of the arbitration in respect of disputes arising out of piling and basement works of a proposed 6-storey bank and office block on three plots of land situated in the North Eastern District of Penang pursuant to the award of the Arbitrator Mr. W.Y. Chin made and published on 8 September 1986 be taxed by the Senior Assistant Registrar on a Party and Party basis.

The Arbitrator's Award ("the Award") provided as follows:

Whereas by an agreement made on 1st day of August 1984, between the claimant of the one part and the respondent of the other part, it was agreed that in the event of any dispute or difference arising between the two contracted parties as to certain matters set out in the said agreement, such dispute or difference shall be referred to arbitration for a final decision of a person to be appointed on the request of either party, by the President or Vice President for the time being of the Pertubuhan Akitek Malaysia (PAM) and

Whereas a dispute or difference having arisen between the parties to the said Agreement and at the request of both parties, the President of PAM had successively nominated me to be the Arbitrator,

Now, I, the said Chin Wai Yeong, an Associate of the Chartered Institute of Arbitrators, London, having accepted the said appointment and having visited the site, heard and considered the allegations, witnesses and evidence of both parties Do Hereby Award And Determine As Follows:

1. The Respondent to pay the Claimant the sum of RM379,824.90 (Malaysian Ringgit: Three hundred seventy nine thousand eight hundred twenty four and cents ninety only) within 14 (fourteen) days from the receipt of this Award, failing which payment, an interest at 8% per annum shall be added thereon until the actual receipt of the said payment by the Claimant 2. The Counter claim of the Respondent brought against the Claimant is dismissed hereof and 3. The Respondent and the Claimant shall jointly pay for the costs of this Arbitration including that of the Arbitrator's fees, expenses and disbursements of RM23,740 (Malaysian Ringgit: Twenty three thousand seven hundred and forty only), in the ratio of 7:3 respectively.

In his "Appraisal for Award" under the sub-heading "Arbitration Costs" the Arbitrator said this:

As established, the party predominantly in default was the respondent and logically, they would bear most of the arbitration costs of this proceeding. However, the claimant was not absolutely blameless and in submitting their dispute to this arbitration, they had engaged many expensive expert witnesses in support of their claims. The engagement of these expensive witnesses were outside the jurisdiction and control of the respondent but who had been reasonably responsive to the present arbitration in the true spirit that it was intended.

In awarding the costs, therefore, it would not be fair for the respondent to wholly shoulder the expensive costs of witnesses of the claimant. In this respect, a ratio of 7:3 in favour of the claimant was considered fair and had accordingly been apportioned.

The costs of Arbitration would involve the arbitrator's fee, his disbursements on travel, accommodation and expenses, PAM's charges, Mr. G. Moffatt's fees as well as the fees and expenses for the legal Counsels and the witnesses of both parties.

Before me, the sole issue which arose for determination concerned a question of construction; namely, whether the expression "costs of this Arbitration" in para 3 of the Award meant that costs were to be paid on Party and Party basis, as contended by Counsel for the plaintiff, Or that the whole costs of the arbitration and expenses amounted to RM23,740 and that no other costs were payable by the defendant, as contended by Counsel for the defendant.

The expression "costs of this arbitration", used by the Arbitrator in the