Hashim Hamzah JC:

GROUNDS OF JUDGMENTBACKGROUND FACTS

[1]This is the brief facts of this case. There was an agreement entered into between Bauer (Malaysia) Sdn. Bhd. (the Respondent) and Embassy Court Sdn. Bhd. (the 1^st Applicant) on 6.10.2005 (hereinafter referred to as the “First Agreement”). The Respondent was appointed by the 1^st Applicant to carry out piling and substructure works for the development of a 41 storey luxury condominium on a piece of land held under Lot 305, Section 63, Lorong Kuda, Off Jalan Tun Razak, Wilayah Persekutuan Kuala Lumpur.

[2]The Respondent commenced work in pursuant of the First Agreement. According to the terms of the First Agreement, the Respondent was to receive payment from the 1s t Applicant within 30 days from the date of each and every interim certificate issued by the architect.

[3]The 1st Applicant failed to make payments on various interim certificates. As a result, the Respondent issued notices of default and their intention to determine its employment under the First Agreement.

[4]On 12.9.2006, a meeting was held between the Respondent, the 1^st Applicant and Magna Prima Berhad (the 2^nd Applicant) in order to avoid the determination of the First Agreement. (hereinafter referred to as “the said meeting”)

[5]The said meeting ended with the parties agreeing to several terms and conditions which were supplemental to the First Agreement. The Respondent then issued a letter dated 12.9.2006 (hereinafter referred to as the “Second Agreement”) to the 1st Applicant to record in writing the terms agreed upon in the said meeting.

[6]However, the Respondent claimed that there was a constant breach on the part of the 1st Applicant in refusing to comply with the terms of the Second Agreement. The 1^st Applicant failed to pay all due or overdue amounts to the Respondent. As a result, the Respondent determined its employment on 19.1.2007.

[7]The matter was then referred to an Arbitration Tribunal presided by Ir. P.E. Chong.

[8]The preliminary issue raised by the parties in the Arbitration Proceeding was regarding the existence and the validity of the Second Agreement. The Arbitrator made a finding that the Second Agreement was in fact in existence and thus enforceable. This finding is found in the Interim Award dated 14.1.2010 (hereinafter referred to as “the Interim Award).

[9]On 26.8.2010, the Interim Award was registered as the judgment of the High Court of Malaya at Kuala Lumpur in pursuant to Section 38Arbitration Act 2005

[10]The 1^st Applicant’s appealed against this decision by the High Court dated 26.8.2010. It was dismissed with costs by the Court of Appeal on 8.2.2011.

[11]The Respondent filed a suit against the 1^st Applicant at Kuala Lumpur High Court on the 4.3.2011 to enforce the awards which has been registered. The Respondent in that suit claims for specific performance against the 1^st Applicant with regard to the Second Agreement. The case is still pending.

[12]After dealing with the issue on the Second Agreement, the parties proceeded with the arbitration to deal with other issues regarding the liability and quantum of damages. This led to the issuance of the Final Award (save as to costs) dated 3.2.2012 (hereinafter referred to as “the Final Award”).

[13]On 2.4.2012, the Final Award was registered as the Judgment of the High Court of Malaya in pursuant to section 38Arbitration Act 2005

[14]On 23.4.2012, the Applicants filed an Originating Motion (hereinafter referred to as Enclosure 1) to this Court and prayed as follows:-

1)To wholly set aside the Award dated 3/2/2012 under section 37Arbitration Act 2005section 37(1)(a)(iii)37(1)(a)(iv)37(1)(b)(ii)37(2)(b)(i)37(2)(b) (ii)Court;

2)A declaration that the Supplementary Contract dated 12.9.2006 (hereinafter referred to the September Agreement) is never in existence or otherwise invalid, void and unenforceable.

3)A declaration that the 2^nd Applicant, which is not a party to the Arbitration proceeding, to be allowed to present its case with regard to the