The Malaysian court acts solely as an enforcement court and maintains a minimalist approach in arbitration matters under the Arbitration Act.

Introduction

[1] This judgment discusses whether the plaintiff company (plaintiff) may apply to this court under s 38(1) of the Arbitration Act 2005 ( AA ) to recognise as binding and to enforce as a judgment against the defendant company (defendant), a total of four interim and final arbitral awards (Australian Arbitral Awards) by a sole Western Australian arbitrator, Mr Matthew Zilko SC (Australian Arbitrator).

[2] The peculiar feature of this case is that the defendant has not only failed to attend the arbitration proceedings before the Australian Arbitrator (Australian Arbitration Proceedings) but the defendant has also filed a suit in Kuala Lumpur High court NCC No 2 (NCC2 court), Civil Suit No: 24NCC(ARB)-8-02-2014 against, among others, the plaintiff (defendant's suit), and has applied for, among others, a declaration that the defendant is not a party to the agreement in question and is not "bound in any manner to accede to the" plaintiff's request for the Australian Arbitration Proceedings.

Parties

[3] The plaintiff is an Australian proprietary company limited by shares with a registered office in Perth, Western Australia.

[4] The defendant is a private limited company incorporated in Malaysia with a registered and business address in Petaling Jaya, Selangor Darul Ehsan.

[5] The plaintiff and "Marine & Civil Construction Pty Ltd" (MCC), an Australian proprietary company, entered into a joint venture agreement (JVA).

[6] Pursuant to the JVA, the plaintiff and MCC formed an unincorporated joint venture named Murray & Roberts-Marine & Civil JV (JV Entity).

Background

[7] On 16 November 2010, the JV Entity entered into a supply agreement with the defendant (supply agreement).

[8] The plaintiff exercised "step-in rights" under the JVA to assume control over the JV entity.

[9] On 8 February 2011, the plaintiff and MCC entered into a "Deed of Release and Discharge" wherein the parties agreed to dissolve the JV Entity and terminate the JVA. Thereafter, the plaintiff took full control of the business of the JV Entity and continued that business.

[10] The plaintiff alleged that the defendant had breached the supply agreement and consequently, the plaintiff had to carry out extensive rectification work (rectification work). The plaintiff claimed the cost of rectification work amounting to RM696,675.34 (plaintiff's claim).

[11] The plaintiff's claim was referred to the Australian Arbitrator.

[12] Messrs Rajinder & Goh (Messrs RG) is a firm of solicitors who represented the defendant in the Australian Arbitration Proceedings and in Malaysia. Messrs RG wrote to the Australian Arbitrator by way of a letter dated 27 January 2014 (which was copied to the plaintiff's solicitors in Australia) requesting for a preliminary point to be decided by the High court of Malaya on whether the defendant was bound to arbitrate a dispute with the plaintiff when the plaintiff was not a party to the supply agreement (which contained the arbitration clause) (defendant's preliminary matter).

[13] Both the Australian Arbitrator and the plaintiff disagreed for the defendant's preliminary matter to be decided by the High court of Malaya.

[14] By way of a letter dated 29 January 2014 from Messrs RG to the Australian Arbitrator (which was copied to the plaintiff's Australian solicitors), Messrs RG stated, among others:

(a) Messrs RG had instructions from the defendant "to take no further part" in the Australian Arbitration Proceedings;

(b) the issue of the plaintiff's standing, namely the plaintiff was not a