Wong Kian Kheong JC:

AMENDED JUDGMENT

(4 Originating Summonses)

A. Background

[1]In 1978, the Malaysian Government (Government) entered into a “Host Country Agreement” [HCA (1978)] with the Asian-African Legal Consultative Committee (AALCC). AALCC is an international governmental organization and has changed its name in 2001 to Asian-African Legal Consultative Organization (AALCO).

[2]The HCA (1978) established the Kuala Lumpur Regional Centre for Arbitration (KLRCA).

[3]The HCA (1978) was renewed by the Government and AALCO on 26.3.2013 [HCA (2013)]. On 7.2.2018, a supplementary agreement to HCA (2013) has been concluded by the Government and AALCO.

[4]KLRCA is subsequently named as Asian International Arbitration Centre (AIAC).

[5]On 21.11.2018, the late Mr. Vinayak Prabhakar Pradhan (Mr. Pradhan) was appointed by the Government as AIAC’s acting Director (Acting Director). The Government subsequently confirmed Mr. Pradhan’s appointment as AIAC’s Director (Director) on 8.5.2019.

[6]Pursuant to ss 21(b)23(1)Construction Industry Payment and Adjudication Act 2012CIPAA), Mr. Pradhan had appointed the following two adjudicators (2 Adjudicators) in two adjudication proceedings (2 Adjudication Proceedings) commenced against Prestij Mega Construction Sdn. Bhd. (Prestij):

(1)by way of AIAC’s letter dated 5.8.2019, Mr. Loh Charn Yung (Mr. Loh) had been appointed to adjudicate an “adjudication claim” (AC) by Quzen Sdn. Bhd. (Quzen) against Prestij; and

(2)with regard to an AC by PME Power Engineering Sdn. Bhd. (PME) against Prestij, Dr. Wendy Ooi Su Ghee (Dr. Ooi) had been appointed in AIAC’s letter dated 8.10.2019 to be an adjudicator for PME’s AC against Prestij.

[7]The 2 Adjudicators has delivered the following two adjudication decisions (2 AD’s):

(1)Mr. Loh has adjudicated that Prestij shall pay to Quzen, among others, an adjudicated amount of RM255,261.85 with interest, costs of adjudication, adjudicator’s fees and AIAC’s fees (Mr. Loh’s AD); and

(2)a sum of RM214,829.61 together with interest, costs of adjudication, adjudicator’s fees and AIAC’s fees has been adjudicated by Dr. Ooi to be paid by Prestij to PME (Dr. Ooi’s AD).

[8]By way of a letter dated 20.11.2019 from AALCO, Mr. Pradhan’s appointment as Acting Director was terminated with effect from 8.5.2019.

B. Proceedings

[9]The following four originating summonses (OS) have been filed in this court:

(1)Prestij has initially filed OS no. BA-24C-13-02/2020 against Mr. Pradhan and Quzen [Prestij’s OS (Quzen)];

(2)OS no. BA-24C-25-03/2020 has been instituted by Prestij against Mr. Pradhan and PME [Prestij’s OS (PME)];

(3)Quzen has filed OS no. BA-24C-54-06/2020 for leave of court under s 28CIPAAQuzen’s OS); and

(4)in OS no. BA-24C-15-02/2020, PME has applied for leave of court to enforce Dr. Ooi’s AD against Prestij (PME’s OS).

[10]On 8.3.2020, Mr. Pradhan passed on. Hence, the personal representative of Mr. Pradhan’s estate (Mr. Pradhan’s Representative) was ordered by the court to be a substitute for Mr. Pradhan in Prestij’s OS (Quzen) and Prestij’s OS (PME). I will refer in this judgment to Prestij’s OS (Quzen) and Prestij’s OS (PME) as “Prestij’s 2 OS”.

[11]Prestij has obtained leave of court to join Government as third defendant in Prestij’s 2 OS.

[12]In Prestij’s 2 OS, Prestij has prayed for among others, the following orders:

(1)a declaration that Mr. Pradhan’s appointment as Acting Director has been terminated by AALCO “immediately” on 8.5.2019;

(2)a declaration that Mr. Pradhan was not the Acting Director after 8.5.2019;

(3)the 2 AD’s shall be set aside; and

(4)a “Fortuna Injunction” should be granted to restrain Quzen from filing and serving a winding up petition against Prestij based on Mr. Loh’s AD [Prestij’s Fortuna Injunction Application (Quzen)].

[13]Mr. Pradhan’s Representative has applied in Prestij’s 2 OS for the following orders [2 Applications (Mr. Pradhan’s Representative)]:

(1)a declaration that the court has no jurisdiction over Mr. Pradhan with regard to the claims and/or relief appli