Chambers of Jesvant Singh v Pacific & Orient Insurance Co. Bhd (WA-24NCC(ARB)-1-01/2025)

The Plaintiff’s 2 application seeks the following orders: -

1.1 That the Plaintiff is given the extension of time to file the Originating Summons dated 2-1-2025.

1.2 That the filing of the Originating Summons on 2-1-2025 is regularized.

1.3 Costs in the cause.

1.4 To amend the Originating Summons to add section 37(b)(ii) of the Arbitration Act and Order 69 of the Rules of Court, marked as Annexure A of the Application.

1.5 Costs in the cause. B. Decision of this Court

After considering the arguments put forth by the parties in the affidavits, written submissions, and at the hearing of the 2 applications, I find that this Court should allow both applications.

My reasons for allowing the applications sought by the Plaintiff are explained in the following paragraphs.

Firstly, I find that this Court is bound by the decision of the Court of Appeal in Government of the Lao People’s Democratic Republic v Thai-Lao Ignite Co Ltd & Hongsa Lignite Co Ltd [W-02(NCC)-1287-2011.

That case concerns the appeal against the decision of the High Court that had refused to allow the application for extension of time to set aside an arbitral award that was filed beyond 90 days as stipulated under section 37 of the Arbitration Act.

In that case, the application to set aside the arbitration award was premised on the allegation that the award went beyond the scope of arbitration; therefore, the appellant in that case relied on section 37(1)(a)(iv) of the Arbitration Act.

The High Court refused the application and found that it had the powers to extend time, but the delay of 9 months was unreasonable.

The Court of Appeal disagreed on the issue of the time frame as being unreasonable, but agreed that the High Court did have powers to extend time. The Court of Appeal allowed the appeal. Ramli Ali CJA (as he then was) held: - “14. On the issue of jurisdiction, this court is in agreement with the learned High Court judge that the High Court has the jurisdiction to grant an extension of time to set aside an arbitral award, based on the wording of section 37(4) of the Arbitration Act 2005. The court has an unfettered discretion to grant an extension of time. The court may extend such period of time, although the application is only made after the expiration of the said period. This is supported by item 8 of the schedule to Courts of Judicature Act 1964 which empowers the court to enlarge or abridge the time prescribed by any written law for doing any act or taking any proceeding, although any application therefore is not made until after the expiration of the time prescribed. Order 3 Rule 5(1) and

of the Rules of the High Court 1980, also provides for the same power to the court.”

It is also trite that for this Court to allow for the extension of time, the Plaintiff must show that it is reasonable to allow the said application based on the following factors: -

the length of the delay

reason for the delay

prospect of success

degree of prejudice that will be faced by the Respondent.

In this case, the Plaintiff claims that it had missed the 90-day period only for a further period of 3 days and that this was caused by the mistake in the calculation of the time frame by its solicitors. Therefore, they contend that the Respondent has suffered no prejudice as the issues to be determined as raised in the Originating Summons will not be affected by the said delay. The Plaintiff also contends that it is best that the issues raised in the Originating Summons should be determined once and for all by this Court, especially given the delay of only 3 days.

The Respondent disputes the said allegations and averment. The Respondent suggests that there is no such power to extend time and that the application for the extension of time is abusive as it was only made at the last minute and after this issue was raised in its opposition to the application to set aside the arbitration award. It also contends that the application as contained in the originating summons to set aside the award will fail; therefore, this application should be dismissed by this Court.

After carefully considering the above factors and arguments raised by the Plaintiff and the Respondent, based on the decision of the Court of Appeal cited earlier, I find that this is a suitable case for the said powers to extend time to be granted by this Court. The delay was only for 3 days, and the Respondent shall not be prejudiced by the said application. The merits of the Originating Summons will be determined by this Court, and parties are entitled to raise all of the issues relevant to the said application as contained in the affidavits filed by the Plaintiff and the Respondent.

On the issue of the amendment as proposed by the Plaintiff, I also find that the said application should also be allowed. I do not find that the Respondent will be prejudiced by the said amendment. If it believes that the said provisos do not exist or do not apply to the facts at hand, the Respondent is entitled to raise such arguments at the hearing of the application to set aside the Award. The Respondent will not be prejudiced by the said amendment and the said extension of time sought by the Plaintiff. It is best that the merits of the claim by the Plaintiff must be heard to determine whether there exist any grounds for the Arbitration Award which justify setting aside under the grounds laid down in section 37 of the Arbitration Act.

I find that the current trend is for the Court to consider and put emphasis on substantive justice. The parties must be given the opportunity to ventilate their case in Court. Mistakes that are minor and could be excused, such as the delay of 3 days due to mistakes made by solicitors, should not be used to punish the litigants. It is best that the merits of the case be heard and determined. See Order 1A and Order 2(2) of the Rules of Court 2012 and the decision of the Court of Appeal in Tong Kim Soo v Tirai Prospektif Sdn Bhd [2020] 3 CLJ 353.

For the above reasons, I allow the orders sought by the Plaintiff in Enclosure 13 and Enclosure 15 with costs in the cause. Dated 12th August 2025 (DATO’ INDERA MOHD ARIEF EMRAN BIN ARIFIN) JUDGE HIGH COURT OF MALAYA KUALA LUMPUR NCC5 FEDERAL TERRITORY OF KUALA LUMPUR Counsel: For the Plaintiff : Daniel Bock Jr Wei Messrs. Shukor Baljit & Partners For the Defendant :