Wan Muhammad Amin Wan Yahya JC:

JUDGMENT

[1]The was an appeal against the decision of the Sessions Court dated 8.11.2021 allowing the Respondent/2nd Defendant’s application (“the Application”) for, inter alia, a stay of proceedings pending reference of the dispute to arbitration pursuant to the inherent jurisdiction of the Court (“this Appeal”).

[2]It must be highlighted that the Application was not made pursuant to section 10Arbitration Act 2005Arbitration Act”) and in the Application the Respondent had also sought to strike out the suit as an alternative to the stay which he applied for.

[3]The relief sought by the Respondent in the Application are essentially as follows:

(a)bahawa Writ dan Pernyataan Tuntutan Terpinda Plaintif kedua-duanya bertarikh 3.8.2021 (“Tuntutan Plaintif’) terhadap Defendan ke-2 dibatalkan menurut Aturan 19 Kaedah 10(b), (c) dan/atau (d) Kaedah- Kaedah Mahkamah 2012;

(b)sebagai altematif, semua presiding dalam tindakan ini terhadap Defendan Ke-2 digantungkan sementara menunggu rujukan pertikaian ke timbang tara menurut bidang kuasa sedia ada Mahkamah Yang Mulia ini;

(c)bahawa Defendan Ke-2 diberi kebebasan untuk memfailkan Pembelaannya dalam tempoh masa empat belas (14) hari selepas pendengaran dan pelupusan permohonan ini sekiranya permohonan ini tidak dibenarkan;

[4]The learned Sessions Court Judge allowed prayers (b) and (c) above.

[5]At this juncture I must emphasise that the Respondent did not file an appeal (or cross-appeal) against the decision of the Sessions Court which did not allow prayer (a) of the Application, that is to strike out the suit (see Douglas Ding Jangan & Ors v Kerajaan Negeri Sarawak & Ors

[6]I must also add that prayer (b) of the Application was a relief that the Respondent had specifically prayed for in the alternative and having been granted the said prayer cannot now complaint that the Sessions Court and now this Court ought to strike out the suit against the Respondent under prayer (a) of the Application (paragraphs 16 and 76 of the Respondent’s Written Submissions (Enclosure 10).

A] BACKGROUND

[7]The Appellant filed a claim against the Respondent (2nd Defendants) and the 1^st Defendant (Lineclear Motion Pictures Sdn Bhd) (“Lineclear”) at the Sessions Court.

[8]The Appellant and Lineclear entered into an agreement called “Film Co-Investment Agreement” dated 28.3.2014 (“Film Agreement”) to, inter alia, the produce films.

[9]At the material time, the Respondent was a director and majority shareholder of Lineclear. The Respondent had executed a “Deed of Guarantee” dated 28.3.2014 (“Guarantee”). The Guarantee, inter alia, guarantees the performance of Lineclear under the Film Agreement and indemnifies the Plaintiff against all losses, liabilities, damages, costs and expenses arising out of Lineclear’s failure to perform, inter alia, its obligations under the Film Agreement.

[10]The Appellant’s claim against Lineclear and the Respondent as pleaded in its Amended Statement of Claim (“Statement of Claim”) is summarised as follows:

i)Against Lineclear - for breach of the Film Agreement where the Appellant has not been presented with any films for its consideration to be produced with Lineclear, leading to a failure on part of the Lineclear to perform its obligations under the Film Agreement. The Appellant has paid RM937,500.00 to Lineclear and is claiming this sum including general damages and costs;

ii)Against the Respondent – the Appellant is seeking to recover the RM937,500.00 from the Respondent based on the Guarantee. The failure of Lineclear to perform its obligations under the Film Agreement represents a breach of the terms of the Guarantee on the part of the Respondent, in his failure to ensure such performance by Lineclear.

[11]The Film Agreement contains an arbitration agreement and after the present case was filed at the Sessions Court, Lineclear applied to stay proceedings against Lineclear pending reference of the dispute to arbitration pursuant to section 10Arbitration ActStay Orde