Accent Technique Sdn Bhd v Kuala Lumpur Aviation Fuelling System Sdn Bhd (W-02(C)(A)-702-04/2025)

This is an appeal concerning extension of time to commence arbitration proceedings.

The Appellant, who is the plaintiff in the High Court is a private limited company.

Similarly, the Respondent, who is the defendant in the High Court is a private limited company.

We heard the appeal on 22nd January 2026 and thereafter curia advisari vult it.

Now after having duly deliberated the submissions advanced by the parties, we give our decision below together with the supporting grounds.

The Respondent on 30th December 2020 issued a letter of award for the design and build of the fuel hydrant pipeline network system at the New Low-Cost Carrier Terminal (KLIA 2) ( ) jointly to the Appellant and Maxwell Energy Sdn Bhd ( ) (Appellant and ME collectively ).

Subsequently on 6th April 2011, the Respondent and JV executed an engineering, procurement, construct and commissioning agreement for the Project ( ).

The Contract contains an arbitration clause which provides: Article 41: Arbitration

41.1 If any dispute of difference shall arise between the Parties hereto touching any Article, matter or thing whatsoever herein contained or the operation or construction thereof or any matter or thing in any way connected with this Contract, or the rights, duties or liabilities of either Party under or in connection with this Contract, then and in every such case the dispute or difference shall be referred to a single arbitrator in case the Parties agreed upon one (1) of otherwise to three (3) arbitrators one (1) to be appointed by each Party and the third to be jointly appointed by the two (2) arbitrators. In the event the two (2) arbitrators cannot agree on the third arbitrator; either Party may apply to the High Court of Malaya for the third arbitrator to be appointed by the court.

41.2 Such arbitration shall be held in Kuala Lumpur in accordance with the Malaysian Arbitration Act 2005 or any statutory modification or re-enactment thereof for the time being in force.

41.3 The language in the arbitral proceedings shall be in the English Language.

41.4 The award of the arbitrator (s) shall be final and binding upon the Parties herein and both parties shall take necessary steps to implement/give effect to the Award.

41.5 The operation of this Article shall not preclude the making of an injunctive or other similar relief. [9] There was thereafter a dispute that arose in the course of execution th July 2014 for work done under variation order no. 2 ( ). In this regard, the Appellant on 26th April 2016 only approved the VO 2 claim partially and did not pay for it ( ). [10] On 29th June 2016, ME was compulsorily wound up. [11] Subsequently, there was a notice to arbitrate the Dispute issued on 24th January 2017 by Maxwell Accent JV Sdn Bhd ( ) to the Respondent ( ). [12] Upon the commencement of the First Arbitration, the Respondent raised the jurisdictional challenge that the Contract is between the Respondent and the JV but not JV Co. [13] ME thereafter sought sanction from the Director General of Insolvency ( ) to commence and/or continue arbitration proceedings on the Dispute and the DGI gave the sanction on 16th April 2021. [14] The arbitrator of the First Arbitration on 12th May 2022 dismissed the JV; hence resulted in the termination of the First Arbitration. [15] Consequently, there was another notice to arbitrate the Dispute issued on 9th the Second Arbitration ). [16] After the commencement of the Second Arbitration, the Respondent raised the jurisdictional challenge that the JV is incompetent to commence from the DGI is defective. [17] However, the arbitrator on 2nd June 2023 dismissed the [18] The Respondent on 28th June 2023 appealed against the decision of the arbitrator to the High Court via Kuala Lumpur High Court Originating Summons no. WA-24C(ARB)-29-06/2023. The High Court on 8th February 2024 allowed the appeal and declared that the Second Arbitration is invalid and void. [19] Consequently, the arbitrator took the position that the Second Arbitration is terminated because the arbitration has been nullified by the High Court. [20] The Appellant therefore on 26th July 2024 commenced Kuala Lumpur High Court Originating Summons no. WA-24C(ARB)-50-07/2024 ( ). IN THE HIGH COURT [21] The Appellant prayed for the following reliefs in the Proceedings:

a declaration that the Plaintiff be granted an extension of time to commence an arbitration against the Defendant;

a declaration that the period between the commencement of the arbitration on 8.9.2022 up to and until be the High Court Decision on 8.2.2024 be excluded in computing the time prescribed by the Limitation

alternatively, a declaration that the Defendant is precluded from pleading the defence of limitation;

the costs of and incidental to this application be provided for; and

such further and/or other relief which this Honourable Court may deem fit, just and appropriate. [22] The learned Judge however dismissed the same with costs of RM20,000.00 ( ) on, inter alia, the following reasons as reported in [2025] MLRHU 1243: Here in the matter before me, I find, for reasons which I will allude to when the issue of res is addressed later in my judgment, that the Plaintiff did not sought to apply for the order now before this Court at the time when the Appeal at the KLHC was made and when they could and should have done so, or when the KLHC O 8 February 2024 was given. [22] There is also in my view, no issue of any "lamentable delay" by the KLHC in fixing the date of hearing of the application for stay. I hold therefore that based on the facts before me, Commissioner of The Federal Capital (supra) does not apply as it was within the control of the aggrieved party i.e the Plaintiff herein to at least file for and apply for an order consistent with his legal rights to escape the consequences of his claim being barred by the effluxion of time. [23] I also hold that the Plaintiff here cannot bring this action in this Court independently on its own as both Arbitration 1 and Arbitration 2 were commenced by 2 separate claimants i.e the Plaintiff and Maxwell. Further it is my finding that the fact is that the documents in encl 2 exhibit YS -2 and YS -3 respectively show that Maxwell and the Plaintiff are 2 separate legal entities and that they had both respectively entered into the Letter of Award issued by the Defendant to the Plaintiff and Maxwell and the Agreement between the Defendant to the Plaintiff and Maxwell. [24] The issue of the Plaintiff herein not being in liquidation is in this Court's decision therefore untenable as there does not appear to be any independent or separate arbitration agreement between the Plaintiff and the Defendant alone. [25] Accordingly, it is clear in my mind that any sanction from JIM must be obtained for the purposes of Arbitration 2 separately. It is also my finding that the Plaintiffs therein in Arbitration 1 and/or Arbitration 2 had not followed the proper and correct procedures, as well as the legal and technical requirements in initiating both Arbitration 1 and/or Arbitration 2 and thus the Defendant cannot be faulted, and in fact in my view having the right to do so, in raising the jurisdictional challenge which they did in Arbitration 1 and/or Arbitration 2. [26] From the said Letter of Award issued by the Defendant to the Plaintiff and Maxwell and the Agreement between the Defendant to the Plaintiff and Maxwell, the Plaintiff and Maxwell were for the purpose of definition only described as the "JV Contractor" collectively and "Partner of the JV Contractor" individually. They were never at any material time a single legal entity or described as such. [27] I also agree with learned counsel for the Defendant that art 41 of the Agreement, envisages that the Plaintiff and Maxwell must initiate any arbitration as one party as the definition of 'parties' in the Agreement therein refers to the Defendant and the JV Contractor only. [28] I further hold that the application before this Court now tantamounts to a backdoor appeal against the KLHC Order given on 8 February 2024 referred to above and I find that this is no less than the 3rd time that the Plaintiffs are canvassing the same argument which was raised and decided by Her Ladyship Aliza Sulaiman at the KLHC and which in the circumstances I hold is now res and that the principle of issue estoppel will now bar the Plaintiff from once again [23] The Appellant is dissatisfied with the Decision and has on 22nd April 2025 lodged its appeal to the Court of Appeal. FINDINGS OF THIS COURT [24] The function of this Court here is merely review based on the criteria established in Vasudevan Vazhappulli Raman v. T Damodaran PV Raman & Anor [1981] CLJ 84 where Abdoolcadeer J (later SCJ) held as follows: refer to a few which restate the well-settled principles. An appellate court can review questions of discretion if it is clearly satisfied that the judge was wrong but there is a presumption that the judge has rightly exercised his discretion and the appellate court must not reverse the judge's decision on a mere "measuring cast" or on a bare balance as the mere idea of discretion involves room for choice and for differences of opinion (Charles Osenton & Co v. Johnston [1942] AC 130 (at page 148), 148 per Lord Wright). The Privy Council held in Ratnam v. Cumarasamy & Anor [1964] CLJU 237; [1964] 1 LNS 237; [1965] 1 MLJ 228 that an appellate court will not interfere with the discretion exercised by a lower court unless it is clearly satisfied that the discretion had been exercised on a wrong principle and should have been exercised in a contrary way or that there has been a miscarriage of justice, referring to Evans v. Bartlam [1937] AC 473. The House of Lords, approving the decision of the English Court of Appeal in Ward v. James [1966] 1 QB 273, held to the same effect in Birkett [1978] AC 297 (at pages 317, 326), 317, 326. For good measure, we would refer to the felicitous expression of Goulding J., in Re Reed (a debtor) [1979] 2 All ER 22, 25 on this point (at page 25): ... the duties of an appellate court in such a matter as this are, in my judgment, confined to those normally exercisable where the lower court has a discretion, that is to say, we are not justified in setting aside or varying an order simply because we may think we might have come to a different conclusion ourselves on similar material. We can only interfere if either we can see that the court below has applied a wrong principle, or has taken into account matters that are in law irrelevant, or has excluded matters that it ought to have taken into account, or otherwise that no court, properly instructing itself in the law, could have (emphasis added) [25] Before us, the Appellant basically contended that the learned judge fell into error in failing to appreciate that the Proceedings were necessitated and meritorious because time limitation to initiate arbitration set in by reason of circumstances beyond the Appellant relied on the equitable jurisdiction of the court vested by s. 3(1) Civil Law Act 1956 and ss. 23(2), 25(2) & Schedule item 8 Courts of Judicature Act 1964 as well as Order 92 rule 4 Rules of Court 2012. In the Federal Court case of Commissioner of the Federal Capital v. Insurance Company of North America [1968] 2 MLJ 143, MacIntyre FJ held as follows: Section 16 was subsequently re-enacted as s 18 of the Supreme Court of Judicature (Consolidation) Act of 1925. But it is apparent that if the High Court did not exercise that power, it was because circumstances thereafter did not lend themselves to the exercise of that power. No more were litigants confronted with the problem of choosing the right Court to bring an action. As for the High Court of Malaysia, the equitable jurisdiction of the High Court of England is vested therein by virtue of the provisions of s 3(1) of the Civil Law Ordinance and s 23(2) and s 25(2) of the Courts of Judicature Act, 1964. [10] Another point taken was that the decisions of the old Court of Chancery are irrelevant, since they relate to the lapse of time under the Statute of Limitation, whereas, in the instant case the lapse of time is in respect of a contractual obligation. No reasons were advanced as to why the terms of a contract are to be considered more sacrosanct than the provisions of a statute. The conclusion, I have come to it that, if, the Court has inherent jurisdiction to restrain a defendant from setting up the defence of limitation under a statute it must be deemed to have the power, in an appropriate case, to also restrain him from pleading limitation under a contract. The test for the application of the rule appears to be not whether the period of limitation is statutory or contractual, but whether the lapse of time was caused by circumstances beyond the control of the party concerned when he was actively pursuing his right of action in a Court. (emphasis added) The Appellant also relied on the High Court cases of Dalin Interscope Versicherung Sdn Bhd v. Sime Axa Assurance Sdn Bhd (formerly known as United Malayan Insurance Co Bhd) [2007] 3 MLJ 232. [26] Further or alternatively, the Appellant relied on s. 30(5) Limitation Act 1953 as applied in the High Court cases of Dceil Imex Sdn Bhd v. Pembinaan Punca Cergas Sdn Bhd [2014] 7 CLJ 552 and Government-Lao Lignite (Thailand) Co Ltd [2024] 7 CLJ 976. [27] On the other hand, the Respondent counter-contended that the circumstances which necessitated the Proceedings are not beyond but its own demise. Moreover, the cases relied by the Appellant particularly those with respect to s. 30(5) Limitation Act 1953 are starkly different and distinguishable. [28] It is apt at this juncture that we reproduce s. 30 Limitation Act 1953 which reads: Application of Act and other limitation enactments to arbitrations

This act and any other written law relating to the limitation of actions shall apply to arbitrations as they apply to actions.

Notwithstanding any term in any submission to the effect that no cause of action shall accrue in respect of any matter required by the submission to be referred until an award is made under the submission, the cause of action shall, for the purpose of this act and of any other such written law (whether in their application to arbitrations or to other proceedings), be deemed to have accrued in respect of any such matter at the time when it would have accrued but for that term in the submission.

For the purpose of this act and of any such written law as aforesaid, an arbitration shall be deemed to be commenced when one party to the arbitration serves on the other party a notice requiring him or them to appoint an arbitrator or to agree to the appointment of an arbitrator, or, where the submission provides that the reference shall be to a person named or designated in the submission, requiring him or them to submit the dispute to the person so named or designated.

Any such notice as aforesaid may be served either-

by delivering it to the person on whom it is to be served;

by leaving it at the usual or last known place of abode in Malaysia of that person; or

by sending it by post in a registered letter addressed to that person at his usual or last known place of abode in Malaysia, as well as in any other manner provided in the submission; and where a notice is sent by post in a manner prescribed by paragraph (c) of this subsection, service thereof shall, unless the contrary is proved, be deemed to have been effected at the time at which the letter would have been delivered in the ordinary course of post.

Where the High Court orders that an award be set aside or orders, after the commencement of an arbitration, that the arbitration shall cease to have effect with respect to the dispute referred, the Court may further order that the period between the commencement of the arbitration and the date of the order of the Court shall be excluded in computing the time prescribed by this act or any such written law as aforesaid for the commencement of proceedings (including arbitration) with respect to the dispute referred.

This section shall apply to an arbitration under any written law as well as to an arbitration pursuant to a submission, and subsections (3) and (4) thereof shall have effect, in relation to an arbitration under any written law, as if for the references to the submission there were substituted references to such of the provisions of the law or of any order, scheme, rules, regulations, or by-laws made thereunder as relate to the arbitration.

In this section the expressions "arbitration", "award" and "submission" have the same meanings as in the Arbitration act 1952 [act 93]. [29] Upon our review, we are of the opinion that the exercise of the 1953 must be undertaken conjunctively here. It is a discretionary relief. [30] In this regard, we are satisfied that s. 30(5) Limitation Act 1953 has been properly sought in the Proceedings in view that the Second Arbitration has ceased or terminated pursuant to the decision of the High Court dated 8th February 2024 notwithstanding that it was neither previously sought nor ordered by the High Court on 8th February 2024. In necessarily be the same court that ordered the cessation of the arbitration. [31] However, we are firstly not satisfied that the circumstances which led to the making of the Proceedings are not beyond the control of the Appellant according to Commissioner of the Federal Capital v. Insurance Company of North America (supra). In this regard, we are mindful that the parties are not ad idem as to exactly when the cause of action on VO 2 that gave rise to the dispute accrued; nonetheless it is common ground that limitation has set in by the time the High Court made in the Second Arbitration. [32] From our examination of the facts presented by the parties, it is plain to us that the First Arbitration was commenced by the JV Co which is plainly the wrong party to the Contract. This is a basic mistake of law which cannot be said to be beyond the control of the Appellant. [33] As for the Second Arbitration, the Appellant and ME commenced and continued with the same based on the sanction obtained by ME from the liquidator in disregard of the High Court decisions of Small Medium Enterprise Development Bank Malaysia Berhad v. Oren Venture Sdn Bhd & Ors and Another case [2022] MLRHU 506 and Oren Venture Sdn Bhd v. Small Medium Enterprise Development Bank Malaysia Berhad [2022] MLRHU 3020. This is another mistake of law which again cannot be said to be beyond the control of the Appellant. We are nonetheless mindful that ME had made an application in the Johor Bahru High Court for retrospective leave to commence and/or continue the Second Arbitration but that was not pursued on an urgent basis. It was subsequently withdrawn after the Kuala Lumpur High Court allowed the th February 2024. [34] We have secondly also carefully scrutinized the Contract and find Contract contrary to that as asserted by the Appellant, particularly pertaining to the VO 2 claim here and on commencement of arbitration individually if a dispute ensues between the JV and the Respondent in relation to the Contract. [35] As the result and since the Appellant commenced the Proceedings merely to pursue the arbitration solely and independently of ME against the Respondent, we thirdly find and hold that this is flawed being contrary to the Contract. Furthermore, this is barred by res judicata because it is in substance February 2024. [36] For completeness, we have also examined the cases of Dceil Imex Sdn Bhd v. Pembinaan Punca Cergas Sdn Bhd (supra) and-Lao Lignite (Thailand) Co Ltd (supra) particularly the former relied by the Appellant but we find that the facts therein are vastly dissimilar in that the delay had not been caused by the party who sought for the extension of time. CONCLUSION [37] For the foregoing reasons, we do not find there is any appealable Proceedings as so ordered. The appeal is, in other words, unmeritorious. [38] The bedrock of this appeal is the clear, unambiguous language of the Contract, which recognises the Appellant only as a constituent the absence of an express provision permitting a single partner to is a fundamental departure from the four corners of the agreement. To grant an extension of time in these circumstances would not merely be a procedural indulgence, [39] Furthermore, the discretionary relief under section 30 (5) of the Limitation Act 1953 is reserved for those caught by circumstances truly beyond their control. Equity cannot be used as a palliative for basic mistakes of law, specifically the repeated failure to identify the correct legal party or secure valid corporate sanctions. History of both the First and Second Arbitrations reveals a pattern of avoidable procedural errors. As the Appellant was the sole architect of its own procedural demise, it cannot now claim to be a victim of lamentable delay or external misfortune. In the premise, the interest of finality must prevail. [40] We therefore dismiss the appeal and the Decision is affirmed. The Appellant shall pay the Respondent costs of RM30,000.00 subject to allocator. Dated this 23rd April 2026 Sgd. LIM CHONG FONG COURT OF APPEAL JUDGE LIST OF COUNSELS: Counsels for the Appellant Solicitors for the Appellant MESSRS. HAROLD & LAM PARTNERSHIP Advocates & Solicitors, Suite 32-5, 32nd Floor, Oval Tower Damansara, 60000 Kuala Lumpur, Malaysia siawling@hlplawyers.com Counsel for the Respondent Solicitors for Respondent MESSRS. MOIDEEN & MAX Advocates & Solicitors, Suite B-05-12, Gateway Kiaramas, No. 1, Jalan 50480 Kuala Lumpur. Malaysia. general@moideenmax.com STATUTE/LEGISLATION REFERRED TO: s. 30 (5) Limitation Act 1953 CASES REFERRED TO: Vasudevan Vazhappulli Raman v. T Damodaran PV Raman & Anor [1981] CLJ 84; Commissioner of the Federal Capital v. Insurance Company of North America [1968] 2 MLJ 143; Dalin Interscope Versicherung Sdn Bhd v. Sime Axa Assurance Sdn Bhd (formerly known as United Malayan Insurance Co Bhd) [2007] 3 MLJ 232; Dceil Imex Sdn Bhd v. Pembinaan Punca Cergas Sdn Bhd [2014] 7 CLJ 552; -Lao Lignite (Thailand) Co Ltd [2024] 7 CLJ 976; Small Medium Enterprise Development Bank Malaysia Berhad v. Oren Venture Sdn Bhd & Ors and Another case [2022] MLRHU 506; Oren Venture Sdn Bhd v. Small Medium Enterprise Development Bank Malaysia Berhad [2022] MLRHU 3020