Gopal Sri Ram JCA:

[1] This appeal does not raise any novel point of law. It has to do with the court's function in an application made under the Arbitration Act 1952 to challenge an arbitrator's award. That, of course, is a settled question. And I will, later in this Judgment, deal with it at some length. In the case at hand, the High court set aside one part of the arbitrator's award, varied another part and remitted yet another to the arbitrator the appellant complains that the basis on which the High court acted amounts to the exercise of appellate jurisdiction and therefore outside the set parameters of arbitral jurisdiction. The respondent argues that the learned Judge kept entirely within the circumscribed limits of his jurisdiction. Or, if he did not, then, his decision is correct on the facts and no miscarriage has been occasioned. It is now important to set out the facts in a nutshell. Here they are.

[2] On 15 February 1997, the respondent appointed the appellant as the main contractor to construct an office and a factory. The parties entered into a formal agreement on 8 April 1998. That agreement was in the PAM form. That is to say, the contract was in the form prescribed by the Architects Association of Malaysia. cl 25 of the contract reads as follows:-

25. (1) If the Contractor shall make default in any one or more of the following respects, that is to say:-

(a) If he without reasonable cause wholly suspends the carrying out of the Works before completion thereof, or

(b) If he fails to proceed regularly and diligently with the Works, or

(c) If he refuses or persistently neglects to comply with a written notice from the Architect requiring him to remove defective work or improper materials or goods and by such refusal or neglect the Works are materially affected, or

(d) If he fails to comply with the provisions of cl 17 of these Conditions

then the Architect may give to him a notice by registered post or recorded delivery specifying the default, and if the Contractor either shall continue such default for fourteen days after receipt of such notice or shall at any time thereafter repeat such default whether previously repeated or not) then the Employer without prejudice to any other rights or remedies may within ten days after such continuance or repetition by notice by registered post or recorded delivery forthwith determine the Employment of the Contractor under this Contract provided that such notice shall not to be given unreasonably or vexatiously.

[3] By April 1998, the appellant had had difficulties with the respondent. Matters appear to have come to a head because, on 24 April 1998, the appellant wrote to the respondent raising three matters based on which it said that it was entitled to temporarily stop work. By a letter of the same date the appellant informed the architect that it would not be attending the site meeting scheduled for 2.30pm that day. Work at the site was then suspended. On the very next day, that is to say, on 25 April 1998, the architect, acting under cl 25 of the contract issued to the appellant a default notice. In it he held the appellant in breach of contract and warned that if work was not re-commenced, another contractor would be appointed.

[4] Now, as you can see, cl 25 requires such a notice to be served by registered post or recorded delivery. This did not happen. Instead, the notice was sent by fax on 25 April and then delivered by hand two days later, on 27 April 1998. The appellant did not re-commence work, and, after 26 days had passed, the respondent by its solicitors' letter of 21 May 1998 terminated the contract. In the meantime, on 1 May 1998, the architect issued his certificate of non-completion. Later, the parties submitted their differences to an arbitrator who, in his award dated 15 March 2002, found for the appellant. Essentially, he held that the respondent's termination of the contract was invalid and that consequently the respondent had acted in breach of contract.