A precondition for arbitration must be strictly complied with to confer jurisdiction on the arbitrator.

[1] The plaintiff, as employer, had entered into a PWD 203 Contract with the defendant, as a Contractor. Under the contract dated 17 February 2006, the defendant agreed to perform certain works, more particularly described as "Cadangan Pembangunan Keperluan Perumahan Anggota Tentera dan Kakitangan Awam, Kem Sungai Besi, Kuala Lumpur-Kerja Bangunan di Zon C" (the works), for the plaintiff, subject to the terms and conditions therein. A dispute arose between the parties. The plaintiff terminated the contract by its letter dated 19 February 2008. The defendant as claimant proceeded to arbitration by issuing a Notice of Arbitration dated 12 February 2014 to the plaintiff. The arbitrator appointed, Mr Bhag Singh, proceeded to fix a date for the preliminary meeting on 19 May 2015.

Problem

[2] Before the preliminary meeting, the plaintiff wrote to the Arbitrator, which letter was copied to the defendants solicitors, to state that in accordance with cl 54 of the contract, the defendant would first have to refer the dispute or differences to the officer named in the Appendix, the Managing Director of the plaintiff, for a decision before the dispute is referred to arbitration. As such, the notice of arbitration dated 12 February 2014 is premature and accordingly the Arbitrator has no jurisdiction to decide the dispute between the parties.

[3] The solicitors for the plaintiff also notified the arbitrator that they will be making an application under s 18 of the Arbitration Act 2005 and proposed to take directions in this regard at the preliminary meeting.

[4] On 24 September 2015, a hearing was held by the arbitrator in respect of the plaintiffs application. By a decision dated 7 December 2015, the arbitrator held that he did have the jurisdiction to decide the dispute between the parties and he dismissed the plaintiffs application.

Prayer

[5] The plaintiff being dissatisfied with the decision of the said arbitrator, appealed to this court under s 18(8) of the Arbitration Act 2005 .

[6] The plaintiff contended that the defendant would first have to refer the dispute or differences to the Superintending Officer ("SO") who is the Managing Director of the plaintiff for a decision before the dispute is referred to arbitration in accordance with cl 54 of the contract. It argued that no dispute or differences were ever referred to the Managing Director of the plaintiff or his predecessor as required under cl 54. It was submitted by the plaintiff that the conditions found in cl 54(a) and (b) are mandatory, in the form of a precondition or a condition precedent, which must be fulfilled before the arbitrator has jurisdiction to hear the dispute between the parties.

[7] The defendant, on the other hand, contended that the various letters between the parties, both before and after the notice of arbitration, are sufficient compliance in substance, directly or indirectly, with the requirement of cl 54 of the contract. In any event the plaintiff had waived the requirement and is estopped from objecting on that ground, as it had not raised it at the earliest opportunity when it received the notice of arbitration on 13 February 2014 and had a few rounds of without prejudice negotiations with the defendant even after the preliminary meeting before an earlier arbitrator appointed before the current arbitrator Mr Bhag Singh.

Principles

[8] Clause 54 of the Contract reads:

"54. Arbitration

Reference to SO for a decision.

(a) If any dispute s