Wan Suleiman SCJ:

The appellants Gunung Bayu Sdn. Bhd. were the defendants in the Court below (in High Court Alor Star Civil Suit No. 461 of 1984). They had entered into a building contract with the respondents/plaintiffs (Syarikat Pembinaan Perlis Sdn. Bhd.), a firm of building Contractors, for the construction of a housing scheme called Taman Tunku Putra in Kulim, Kedah.

The architects named in the contract are Hijjas Kasturi Associates Sdn. who are specifically described therein as the appellants' architect. There was the usual provisions for periodic or progress payments based on interim certificates to be issued by the appellants' architects, and the time for honouring these certificates were also specified in the appendix to the agreement (one month and fourteen days respectively).

There was also the usual arbitration clause. Work proceeded apace and in due course 5 interim certificates were issued on the work done, duly signed by the architects. appellants refused to honour these certificates. Respondents terminated the contract and filed a writ, and also applied for and was granted an injunction against appellants to restrain them from bringing other contractors onto the site, it being respondents' contention that they had substantially completed the project.

Appellants then applied by way of summons-in-chambers to have the writ struck out on the ground that under the agreement (Clause 34) parties had agreed to go to arbitration in the event of "any dispute or difference". The application was heard and dismissed on 6 January 1985.

Next the respondents applied by summons-in-chambers for an O. 14 judgment on the sums due on the interim certificates. Appellants countered with a summons-in-chambers for a stay of the hearing of respondents' application for an O. 14 judgment, pending the outcome of appellants' appeal to this Court against the dismissal of their application to strike out respondents' writ.

These two applications were hears together by the learned Judge, and on 22 February 1985 appellant's application for stay was dismissed whilst respondents were allowed to enter summary judgment under O. 14.

This appeal is therefore against both the abovementioned decisions, and with the consent of Counsel for the various parties were heard together.

Dato Peter Mooney for the appellants confined this appeal to two issues only viz:

(i) Is this a proper case for summary judgment; and

(ii) If not, should it be dealt with by the High Court or should it go to arbitration?

Certain preliminary questions would, it was argued, have to be determined before an answer can be given for the main issues earlier referred to.

Paragraph 4 of the statement of claim alleged that one of the terms of respondents' employment by the appellants/defendants was that the appellant should honour the interim certificates issued by his own architects within 14 days of presentation or alternatively within a reasonable time of such presentation.

Arising out of this, one of the questions is - Is such interim certificate issued by an unqualified architect a valid certificate?; and secondly assuming such certificate is valid, is it to be regarded as a sort of cheque, regardless of whether work is well done, badly done or not done at all.

The agreement (at p. 16 of Civil Appeal No. 16/85) specifies that the term "the architect" in the conditions annexed shall mean M/s. Hijjas Kasturi Associates Sdn. etc.

Clause 30(1) reads as follows: "At the period of Interim Certificate named in the appendix to these conditions the Architect shall issue a certificate stating the amount due to the contractor from the employer, and the Contractor shall, on presenting any such certificate to the employer, is entitled to payment therefor within the period for honouring Certificates named in the appendix to these conditions. Interim valuations shall be made whenever the Architect considers them to be necessary for the purpose of ascertaining the amount to be stated as due