Aliza Sulaiman J:

GROUNDS OF JUDGMENT

[1]This suit involves novel questions of law relating to the procedure and the applicable legal principles in setting aside an arbitral award under paragraph 24A(3)(b) of the Courts of Judicature Act 1964 (Revised 1972) [Act 91] (‘CJA’).

[2]The glaring lacuna in the law of any rules of procedure on how paragraph 24A(3)(b) of the CJA is to operationalize meant that this Court had to consider the cases in other jurisdictions which had, at one time, a similar provision in their statute books.

[3]As all other jurisdictions have repealed the equivalent of s 24ACJAs 24ACJAcourt.

[4]This suit was heard in two stages covering, firstly, the procedural issues (‘Procedural Issues’) and followed by the substantive issues (‘Substantive Issues’) in respect of the Applicant’s application to set aside the Arbitration Award published by Ms. Goh Hui Ring dated 10.3.2022 (‘Award’).

[5]By the Amended Originating Summons (‘O.S.’) in encl. 58, the Applicant applied for the following main reliefs against the Respondent:

(a)that the Award be set aside;

(b)alternatively, that the Award be set aside to the extent or on such part of which is deemed just and appropriate by the Court; and

(c)consequential upon the prayer in subparagraph (a) or (b) above, the judgment of this Court in Civil Suit No. WA-21C- 3-03/2019 (‘Suit No. 3’) given on 21.3.2022 (‘Said Judgment’) be declared null and void and accordingly set aside; or in the alternative, the Said Judgment be declared null and void and accordingly set aside and consequentially, the Award be set aside to the extent or on such part of which is deemed just and appropriate by this Court.

[6]At the end of the hearing on the Procedural Issues, and after having given utmost consideration to the submissions of the parties on the points of law, I had decided in favour of the Applicant. Following the decision, I then proceeded to hear the submissions of the parties in relation to the Substantive Issues.

[7]After having considered the cause papers and the oral and written submissions of the parties, I allowed the first prayer in encl. 58 and thus, the Award was set aside, largely on the grounds relating to the Applicant’s entitlement to additional extension of time (‘EoT’).

[8]Further, in the light of my decision on the Procedural Issues, prayer (3A) in encl. 58 was also allowed and the Said Judgement was declared null and void and accordingly set aside.

[9]The Respondent has filed a Notice of Appeal wherein, based on the date of decision mentioned, the dissatisfaction appears to be in respect of my decision on the Substantive Issues only.

[10]Nevertheless, as important issues on the operation of paragraph 24A(3)(b) CJA 1964 were raised and decided in this suit, this judgment contains my full grounds for the decision in respect of both the Procedural Issues and Substantive Issues.

THE CAUSE PAPERS

[11]Apart from the Amended O.S., the cause papers are as follows:

(a)the Applicant’s Affidavit In Support (‘AIS’) affirmed by its Director, Hj Azhar Bin Ahmad on 25.05.2022 (encl. 2 - 10);

(b)the Applicant’s Additional Affidavit affirmed by the same deponent on 8.6.2022 (encl. 12 - 29);

(c)the Respondent’s Affidavit In Reply (‘AIR’) affirmed by Datuk Ir. Hj. Ismail Bin Abd Rahman, Director of Public Works Department Melaka on 8.7.2022 (encl. 32);

(d)the Applicant’s AIR affirmed by the same deponent on 28.7.2022 (encl. 34);

(e)the Respondent’s Supplemental Affidavit affirmed by the same deponent on 27.1.2023 (encl. 60); and

(f)the Applicant’s Supplemental Affidavit affirmed by the same deponent on 2.2.2023 (encl. 61).

BACKGROUND FACTS

[12]By way of the Surat Setujuterima Tender dated 27.4.2016, the Applicant was appointed by the Respondent as the main contractor to carry out the project known as “UTeM – Pembinaan Fakulti Teknologi Kejuruteraan (Reka & Bina)” (‘Project’) for the contract sum of RM68,897,752.75.

[13]On 7.11.2016, the parties executed the Standard Form Of Design And Build Contract, PWD Form DB