Abdul Malik Ishak J:

Enclosure 46

[1] By this enclosure, the plaintiff sought under the inherent jurisdiction of this court and/or the liberty to apply implied in the order of the High Court dated 9 September 1996 as affirmed by the order of the Federal Court dated 18 September 2000 for an order that:

(a) the order of the High Court dated 9 September 1996 (staying the proceedings for the disputes to be referred to arbitration) as affirmed by the order of the Federal Court dated 18 September 2000 be varied by adding the proviso that the defendant be precluded from pleading and relying on the defence of limitation for the period beginning from 17 May 1995 and ending on 18 September 2000 in the arbitration proceedings (the starting date of 17 May 1995 represents the date the defendant first applied for a stay of proceedings whereas the closing date of 18 September 2000 represents the date the Federal Court disposed off the issue whether the proceedings ought to be referred to arbitration);

(b) the costs of this application be taxed and paid by the defendant to the plaintiff; and

(c) such other relief and/or order as this Honourable Court may deem fit and just.

Facts Of The Case

[2] The chronology of events that led to the application in encl. 46 will now be set out in accordance to the proceedings that took place in the High Court, Court of Appeal and the Federal Court. The proceedings by way of an arbitration and back again to the Federal Court would also be alluded to.

(a) Proceedings In The High Court

[3] Here, I shall refer to the specific dates and the events that occurred.

On 18 January 1995 - The plaintiff commenced an action against the defendant for the sum of RM455,753.98 being the management expenses and commission due under the Fire, Marine Cargo and Miscellaneous Accident Insurance Underwriting Agreement (hereinafter referred to as the "said agreement") between the parties dated 1 October 1980 (exh. "CWC1" of encl. 45) which was terminated by the defendant in 1992 in the High Court (para. 5 of exh. "CWC2 at p. 33 of encl. 45). Clause 13 of the said agreement reads as follows (pp. 18 to 19 of exh. "CWC1" of encl. 45):

All disputes and differences which may arise between the contracting parties in respect of business ceded under this Agreement or the meaning of its conditions are to be settled by an equitable rather than a strictly legal interpretation of the provisions of this Agreement. Failing agreement between the parties they shall submit it to the decision of three Arbitrators, one to be named by each party and the third to be chosen by the two Arbitrators before entering upon the reference. In the event of failure by one of the parties to appoint an Arbitrator within thirty (30) days after having been requested to do so or if the Arbitrators fail within thirty (30) days of their appointment to agree upon the choice of an Umpire, such nomination shall be made by the President for the time being of the General Insurance Association of Malaysia ... .

On 14 April 1995 - The defendant entered an unconditional appearance (exh. "CWC3" of encl. 45).

On 2 May 1995 - The plaintiff applied for summary judgment (exh. "CWC4" of encl. 45).

On 17 May 1995 - The defendant applied for a stay of the proceedings in order to refer the dispute to arbitration (exh. "CWC5" of encl. 45).

On 21 June 1995 - The senior assistant registrar allowed summary judgment to be entered (exh. "CWC6" of encl. 45).

On 26 June 1995 - The defendant appealed to the High Court Judge (exh. "CWC7" of encl. 45) against the summary judgment entered on 21 June 1995.

On 20 September 1995 - The High Court Judge allowed the aforesaid appeal and set aside the summary judgment (exh. "CWC8" of encl. 45) on the ground that the hearing of the plaintiff's application for summary judgment ought to have been postponed until after the disposal of the defendant's application for a stay of the proceedings (exh "CWC9" of encl. 45).

On 17 October 1995 - The plaintif