Mohd Hishamudin JCA:

[1]This appeal concerns ‘two questions of law’ referred by the respondent to the High Court by originating summons pursuant to s 42(1)Arbitration Act 2005

[2]The respondent was the plaintiff before the High Court; whilst the appellant in the appeal before this court was the defendant at the High Court.

[3]Section 42(1) provides:

References on questions of law

42(1) Any party may refer to the High Court any question of law arising out of an award.

[4]The two questions of law referred to the High Court are:

Question 1

Whether the defendant [Appellant] ought to be awarded the full costs of the arbitration when the defendant [Appellant] claimed for the sum of RM1,224,013.41 but was only awarded the sum of RM525,000.00 ie 42.89% of its claim?

Question 2

If the answer to Question 1 is in the negative, how should the costs of the arbitration be awarded in such circumstances?

[5]At the arbitration proceeding, the appellant/defendant was the claimant; whilst the respondent/plaintiff was the respondent.

[6]The learned High Court judge allowed the respondent’s application by admitting the questions as proper questions of law for reference to the High Court; by answering the first question in the negative; and by answering the second question to the effect that the appellant ought to be awarded only 50% of the costs.

[7]Aggrieved by the decision, the appellant appeals to the Court of Appeal.

[8]I am allowing the appeal with costs.

[9]In my judgment, for a proper invocation of s 42(1)Arbitration Act 2005

[10]For the purpose of this judgment, I need only to focus on the first proposed question, since the second proposed question is consequential in nature.

[11]In my view, in the present case, this particular ‘question of law’ referred to the High Court purportedly pursuant to s 42 is not a properand valid question of law.

[12]But how does one determine whether a particular question raised is a proper and valid question of law or not? In my judgment, one does so by considering the propriety of the question that is proposed in the context of the facts of the case as a whole, including the issues that have to be dealt with by the arbitrator.

[13]In the case before us, the manner the question is framed by the respondent/plaintiff (the respondent in the arbitration proceeding) for the High Court’s consideration appears to suggest that the issue before the arbitrator is simply this: it is purely a question of a claim for the payment of professional fee in the sum of RM1,224,031.41. However, upon a closer examination of the issues before the arbitrator, this, clearly, is not the case to be. There is more than meets the eye; for, upon examining the issues before the arbitrator, I find that the arbitrator had to deal not merely with the issue of the claim for professional fee by an architect, but it also had to deal with the issue of the respondent’s counterclaim for breach of contract and for negligence performance of contract on the part of the appellant/defendant (the claimant in the arbitration proceeding), which counterclaim was dismissed by the arbitrator. The following is the ruling by the arbitrator:

8.5 The respondent’s (respondent’s/plaintiff’s) Counterclaim

8.5.1 I had determined that the claimant’s (appellant’s/defendant’s) withdrawal of services was valid and that it was not in breach of its contractual obligations nor had it repudiated the Contract. As such, the issue of damages for breach of contract does not arise.

8.5.2 I find that the respondent’s claim that the claimant was guilty of negligence in the performance of services as the architect for the project, is without any merit whatsoever.

8.5.3 I therefore determine that the respondent’s counterclaim is without any basis and is thus rejected.

[14]And in determining the liability as to costs, the arbitrator, in awarding full costs to the appellant (the claimant in the arbitration proceeding), had correctly taken into account this dismissal of the respondent’s (the respondent in the