Nadzarin Wok Nordin J:

GROUNDS OF JUDMENT

(Enclosure 1)

[1]In Originating Summons No. WA-24C(ARB)-30-05/2024 (OS 30) Datuk Bandar Kuala Lumpur (“DBKL”) has applied to this Court to set aside the Arbitration Award dated 6.2.2024 (“Award”) made in favour of Sri Tinggi Sdn Bhd (“STSB”) pursuant to section 37(1)(a)(iii) and (v)Arbitration Act 2005

[2]In Originating Summons No. WA-24C(ARB)-16-03/2024 (OS 16), STSB has applied to enforce the Award in accordance with section 38Arbitration Act 2005

Brief Background Facts

[3]DBKL was the Employer of the project known as “Cadangan Membina Persimpangan Bertingkat Di Persimpangan Jalan Ampang/ Jalan Jelatek at Kuala Lumpur” (“Project”).

[4]By way of a Letter of Acceptance dated 21.7.2014 (“LOA”), DBKL appointed STSB as a contractor to undertake the construction of a multi-level interchange at Jalan Ampang/Jalan Jelatek (“ Works”) for a contract sum of RM165,303,202.15.

[5]Pursuant to the LOA, the parties entered into and executed the DBKL Form 203A (Rev. 1/2010) together with the Special Provision to the Condition of Contract.

[6]The agreement between the parties consists of the following documents as contained in the Contract Documents: –

(a)Instruction Letter to Commence Work;

(b)Insurance Policy;

(c)LOA;

(d)Part 1 – Instructions to tenderers;

(e)Part 2 – Conditions of making a Tender;

(f)Part 3 - Form of Tender;

(g)Part 4 – Conditions of Contract based on DBKL Form 203A (Rev. 1/2010) together Special Provision to the Conditions of Contract;

(h)Part 5 – Preamble to Bill of Quantities;

(i)Part 6 – Tender Summary;

(j)Part 7 – Preliminaries;

(k)Part 8 – List of Quantities;

(l)Part 9 – Specification; and

(m)Part – Annexures.

(n)(hereinafter collectively referred to as the “Contract”)

[7]The Conditions of Contract contains an arbitration clause which reads as follows: -

“66.0 ARBITRATION

66.1 If any dispute or difference shall arise between Datuk Bandar and the Contractor out of or in connection with the contract, the parties shall refer such matter. dispute or difference to the officer named in Appendix for a decision.

66.2 The officer named in Appendix’s decision shall be in writing and shall subject to clause 66.4 hereof, be binding on the parties until the completion of the Works and shall forthwith be given effect to by the Contractor who shall proceed with the Works with all due diligence whether or not notice of dissatisfaction is given by him.

66.3 If he parties-

(a)fails to receive a decision from the officer named in the Appendix within forty-five (45) days after being requested to do so; or

(b)is dissatisfied with any decision of the officer named in the Appendix, then such dispute or difference shall be referred to arbitration within forty-five (45) days to an arbitrator to be agreed between the Parties and failing such agreement, to be appointed by the Director of the Regional Centre for arbitration in Kuala Lumpur on the application of either Party hereto. Such arbitration shall be heard at the Kuala Lumpur Regional Centre for Arbitration and shall be conducted in accordance with the rules for arbitration of the Kuala Lumpur Regional Centre for Arbitration using the facilities and the system available at the Centre.

66.4 Such reference, except on any difference or dispute under clause 51 hereof shall not be commenced until after the completion or alleged completion of the works or determination or alleged determination of the Contractor’s employment under this Contract, or abandonment of the Works, unless with the written consent of Datuk Bandar and the Contractor.

66.5 In the event that such consent has been obtained in accordance with clause 66.4, the reference of any matter, dispute or difference to arbitration pursuant to this clause and/or the continuance of any arbitration proceedings consequent thereto shall in no way operate as a waiver of the obligations of the parties to perform their respective obligations under this Contract.

66.6 In any arbitration proceedings conducted pursuant to clause 66.3, th