Crest Builder Sdn Bhd v Saujana Triangle Sdn Bhd (WA-24C(ARB)-25-06/2023)

Crest Builder Sdn Bhd (‘Çrest’) in Originating Summons No. WA- 24C(ARB)-25-06/2023 (‘O.S. No. 25’) for the Final Award dated 12.5.2023 (‘Award’) by the learned Arbitrator, Ar. Thurai Das Thuraisingham (‘Arbitrator’) to be recognised as binding and be enforced by entry as a judgment against Saujana Triangle Sdn Bhd (‘Saujana’) pursuant to s 38 of the Arbitration Act 2005 [Act 646] (‘AA 2005’) (‘Enforcement Application’); and

Saujana in Originating Summons No. WA-24C(ARB)-40-08/2023 (‘O.S. No. 40’) to set aside the Award pursuant to paragraph 14(3)(a); sub-s 33(3); subparagraphs 37(1)(a)(iii), 37(1)(a)(iv), 37(1)(a)(v), 37(1)(b)(ii) 37(2)(b)(i) and/ or 37(2)(b)(ii) of the AA 2005 and/ or ss 50 and 51 of the Specific Relief Act 1950 [Act 137] (‘SRA 1950’) and the Courts of Judicature Act 1964 [Act 91] (‘Setting Aside Application’). [3] In paragraph 2 of O.S. No. 40, Saujana also sought for the relief, that upon an order to set aside the Award being made, both parties shall, within 30 days from the date of the order, appoint by way of mutual consensus a new sole arbitrator for the purpose of referring to him afresh all such disputes and differences which have arisen between the parties in the arbitration proceedings, and failing which, either party shall be at liberty pursuant to sub-s 13(5) AA 2005 to apply to the Director of the Asian International Arbitration Centre (‘AIAC’) for the appointment of a new sole arbitrator, in which event the Director of AIAC shall appoint a sole arbitrator in this arbitration either a senior member of the Bar practicing in the High Court of Malaya and registered as an arbitrator with AIAC and having extensive experience as an arbitrator in handling building construction claims, disputes and differences or a retired Judge either of the Court of Appeal or the Federal Court and registered with AIAC as an arbitrator and having extensive experience as an arbitrator in handling building construction claims, disputes and differences. [4] At the hearing of these applications, Saujana’s counsel had agreed that the Court only needs to decide on the issues as to whether –

the Award is in conflict with the public policy of Malaysia under subparagraph 37(1)(b)(ii) AA 2005 as the Arbitrator failed to give effect to the principles of res judicata and/ or issue estoppel by reason of the Order of the High Court at Shah Alam (‘HCSA’) dated 14.1.2013 in O.S. No. 24-533-05/2012 (‘Suit 533’); and

a breach of the rules of natural justice occurred during the arbitral proceedings or in connection with the making of the Award when the Arbitrator refused to allow Saujana’s application to amend the Points of Claim dated 16.11.2015 and to tender further documents and to re-call its witness, Zulkifli Mohd. Isa (CW9). [5] After having given careful consideration to the affidavit evidence and the oral and written submissions of the parties, I had dismissed the Setting Aside Application and allowed the Enforcement Application. [6] Saujana has appealed against my decision. These are my full grounds of judgment. The Cause Papers [7] The cause papers for each application are as follows:

Crest’s O.S. dated 21.6.2023 (encl. 1);

Crest’s Affidavit In Support (‘AIS’) affirmed by its Legal Manager, Yong Tiok Chin on 21.6.2023 (encls. 2 - 4);

Saujana’s Affidavit In Reply (‘AIR’) affirmed by its Senior General Manager, Zulkifli Bin Mohd Isa on 24.7.2023 (encls. 6 - 9);

Crest’s AIR affirmed by the same deponent on 7.8.2023 (encl. 13);

Saujana’s AIR No. 2 affirmed by the same deponent on 18.8.2023 (encl. 19); and

Crest’s 2nd AIR affirmed by the same deponent on 25.8.2023 (encl. 20).

Saujana’s O.S. dated 28.8.2023 (encl. 1);

Saujana’s AIS affirmed by the same deponent on 29.8.2023 and (encls. 2 - 89);

Crest’s AIR affirmed by the same deponent on 20.9.2023 (encls. 90 - 100); and

Saujana’s AIR affirmed by the same deponent on 13.10.2023 (encl. 101). Background Facts [8] Crest is a private limited company incorporated under the laws of Malaysia and having its business address at Penthouse, The Crest, 3 Two Square, No. 2, Jalan 19/1, 46300 Petaling Jaya, Selangor Darul Ehsan. [9] Saujana is also a private limited company incorporated under the laws of Malaysia with its business address at No. 17, Jalan PJU 8/5H, Perdana Business Centre, Bandar Damansara Perdana, 47820 Petaling Jaya, Selangor Darul Ehsan. [10] By way of the Letter of Acceptance dated 20.9.2006 (‘LoA’), Saujana appointed Crest as the main contractor to carry out the superstructure works (‘Works’) for a project known as "Cadangan Pembangunan 1 Blok Apartment dan Podium Letak Kereta bagi Fasa 1B Yang Mengandungi Blok B (36 Tingkat) - 518 Unit Podium B Letak Kereta (6 Tingkat), 2 Kolam Renang, 1 Rumah Kelab dan 2 Pencawang Letrik TNB on Part of Lot PT 31431, Mukim Sungai Buloh, Daerah Petaling, Selangor Darul Ehsan for Saujana Triangle Sdn Bhd” (‘Project’). [11] The LoA incorporated the following Contract Documents:

Articles of Agreement;

PAM Conditions of Contract 1998 (With Quantities) (‘PAM

Contract Bills;

Contract Drawings; and

other documents expressly incorporated as part of the Contract Documents. (hereinafter collectively referred to as the ‘Main Contract’). [12] Subsequently, the parties entered into three agreements, namely –

Settlement Agreement dated 31.12.2008 (‘Settlement

Supplementary Agreement No. 1 dated 24.9.2010 (‘SA No. 1’); and

Supplementary Agreement No. 2 dated 12.4.2011 (‘SA No. 2’), which are to be read together with the Main Contract (hereinafter collectively referred to as the ‘Contract’). [13] Crest alleged that, shortly after SA No.2 was executed, Saujana failed to make payment of the certified sums and the problem with payment persisted. The non-payment of the certified sums is said to have prevented Crest from progressing with the Works as planned. [14] By the letter dated 2.8.2011, the Architect reported to Saujana that the Certificate of Non-Completion had been issued and that the Architect had requested Crest to expedite its work numerous times during the site meetings and via letters, but Crest failed to take serious and effective measures to improve the progress of works. Additionally, the Architect mentioned the options to exercise the rights which are available under Clauses 25.0 and 25.1(ii) and (iv) of the Conditions of Contract and that Saujana should seek legal contractual advice in order to find a solution to complete the Project. [15] By the letter dated 22.9.2011, Crest notified Saujana that the continued failure to make payment of the certified sums amounts to a repudiation of the Contact and that Crest accepted the repudiation and exercised its right under the law to terminate the Contract. [16] Subsequent to the termination, and in view of Saujana’s purported failure to make payment for the outstanding certified sum of RM7,451,062.00 for the Work that had been carried out by Crest, Crest Builder issued notices dated 10.4.2012 and 24.4.2012 pursuant to s 218 of the Companies Act 1965 [Act 125] (‘s 218 Notice’), demanding payment of the certified sum from Saujana. [17] On 8.5.2012, Saujana proceeded to refer the dispute to arbitration in accordance with Clause 34.0 of the PAM Form by way of the Notice of Arbitration dated 8.5.2012 (‘Notice of Arbitration’). [18] Saujana then filed an application at the HCSA for a Fortuna Injunction and declaratory orders vide Suit 533. [19] On 14.1.2013, the HCSA made the following Order (‘HCSA Order’): “1. Suatu deklarasi bahawa Defendan bukan satu pemiutang Plaintif dalam maksud Seksyen 217 Akta Syarikat 1965 kerana tuntutan hutang yang dituntut adalah dipertikaikan secara bona fide dan substansial oleh Plaintif dan/atau kerana mengambil-kira tolakan Gantirugi Tetap & Terkira atau jika akaun muktamad disediakan, Defendanlah yang berhutang kepada Plaintif atau kerana memandangkan penamatan penggajian Defendan, tiada wang yang kena dibayar sebelum pensijilan akaun muktamad selepas penyiapan baki kerja-kerja kelak;

Suatu deklarasi bahawa Defendan tidak berhak untuk mengemukakan petisyen penggulungan menurut notis Seksyen 218 Akta Syarikat 1965 bertarikh 10.04.2012 dan 24.04.2012 yang telah diserahkan kepada Plaintif oleh Defendan kerana memandangkan penamatan penggajian Defendan, tiada wang yang kena dibayar sebelum pensijilan akaun muktamad selepas penyiapan baki kerja-kerja kelak atau kerana wang yang dituntut adalah dipertikaikan secara bona fide dan substansial oleh Plaintif dan/atau kerana mengambil-kira tolakan Gantirugi Tetap & Terkira atau jika akaun muktamad disediakan, Defendanlah yang berhutang kepada Plaintif dan bahawa ianya akan menjadi suatu penyalahgunaan proses Mahkamah untuk mengemukakan petisyen tersebut sebegini;

Suatu deklarasi bahawa Plaintif tidak harus dianggap sebagai tidak mampu membayar hutangnya menurut

Akta Syarikat 1965 atas ketidakpatuhannya terhadap notis Seksyen 218 Akta Syarikat 1965 bertarikh 10.04.2012 dan 24.04.2012 yang telah disampaikan kepada Plaintif oleh Defendan kerana memandangkan penamatan penggajian Defendan, tiada wang yang kena dibayar sebelum pensijilan akaun muktamad selepas penyiapan baki kerja-kerja kelak atau kerana wang yang dituntut adalah dipertikaikan oleh Plaintif secara bona fide dan substansial dan/atau kerana mengambil-kira tolakan Gantirugi Tetap & Terkira atau jika akaun muktamad disediakan, Defendanlah yang berhutang kepada Plaintif dan/atau kerana Plaintif adalah sebuah syarikat yang solvent;

Suatu deklarasi bahawa Defendan tidak berhak untuk menyampaikan kepada Plaintif apa-apa notis selanjutnya menurut Seksyen 218 Akta Syarikat 1965 berdasarkan amaun yang dikatakan terhutang itu yang berjumlah RM7,451,062 atau apa-apa bahagian daripadanya kerana memandangkan penamatan penggajian Defendan, tiada wang yang kena dibayar sebelum pensijilan akaun muktamad selepas penyiapan baki kerja-kerja kelak kerana wang yang dituntut itu adalah dipertikaikan secara bona fide dan substansial oleh Plaintif dan/atau kerana mengambil-kira tolakan Gantirugi Tetap & Terkira atau jika akaun muktamad disediakan, Defendanlah yang berhutang kepada Plaintif dan/atau kerana Plaintif adalah sebuah syarikat yang solvent;

Suatu Perintah injunksi terhadap Defendan adalah sama ada melalui secara sendiri, pengkhidmat-pengkhidmatnya atau ejen-ejennya atau selainnya adalah dihalang walau macam mana pun daripada mengemukakan sebarang petisyen kepada Mahkamah yang Mulia ini atau sebarang Mahkamah, untuk penggulungan terhadap Plaintif yang dinamakan di atas berdasarkan jumlah sebanyak RM7,451,062 yang dituntut di bawah tuntutan statutori bertarikh 20.01.2012 dan diserahkan ke atas Plaintif;

Sekiranya Defendan sudah mengemukakan satu petisyen penggulungan terhadap Plaintif, suatu perintah injunksi terhadap Defendan sendiri, pengkhidmat-pengkhidmatnya atau ejen-ejennya atau selainnya yang mana menghalangnya walau macam mana pun daripada meneruskan selanjutnya apa-apa petisyen yang mungkin telah dikemukakan kepada Mahkamah Mulia ini atau sebarang Mahkamah untuk penggulungan terhadap Plaintif, Saujana Triangle Sdn Bhd, berdasarkan jumlah sebanyak RM7,451,062 yang dituntut dalam tuntutan statutori bertarikh 10.04.2012 dan 24.04.2012 dan diserahkan ke atas Plaintif, sama ada secara pengiklanan petisyen, langkah-langkah dalam petisyen atau sebaliknya; …”. [20] In view of the HCSA Order, Crest could not proceed with the winding-up petition against Saujana. The parties then proceeded with the arbitration proceedings. [21] On 22.7.2015, the President of PAM appointed Ar. Thurai Das Thuraisingham as the sole arbitrator for the arbitration proceedings. [22] In the arbitration, Saujana was named as the Claimant, and Crest as the Respondent. [23] The arbitration went through 31 days of evidential hearings from 6.11.2017 to 1.7.2022. Out of the 31 days of hearing days, 30 days were conducted physically at the AIAC and one day by way of virtual platform. [24] Saujana produced nine witnesses, including two expert witnesses, and Crest produced five witnesses, including two expert witnesses. [25] In the Award, the Arbitrator declared as follows: “158 I have read and taken into consideration, the pleadings, the evidence adduced and the oral and written submission by both the Claimant and Respondent, in this reference to arbitration. Based on my findings and determinations in this Final Award dated 12 May 2023, I hereby award and direct that, in full and final settlement of all disputes, claims and counterclaims in this arbitration:

the Claimant, Saujana Triangle Sdn Bhd, shall pay the Respondent, Crest Builder Sdn Bhd, within twenty one (21) days, after the day upon which either party has taken up the Final Award, the sum of Eighteen Million, Three Hundred and Sixty One Thousand, Three Hundred and Two Ringgit and Seventy Three Sen (RM18,361,302.73), plus interest at five percent (5%) per annum simple interest, from 13 May Claimant to the Respondent.

(ii) the Claimant shall bear and pay the Respondent’s cost in this arbitration reference, in the sum of Two Million, One Hundred and Twenty Six Thousand, Eight Hundred and Eight Ringgit and Ninety One Sen (RM2,126,808.91) within twenty one (21) days after the day upon which, either party has taken up this Final Award; and

(iii) the Claimant shall bear and pay the costs of the award, and if the Respondent has already paid any part of such cost, the Claimant shall within twenty one (21) days, after the day upon which either party has taken up this Final Award, reimburse the Respondent accordingly.”. [26] Through the letter dated 2.6.2023 from Crest’s solicitors, Messrs. Harold & Lam Partnership to Saujana, Crest demanded payment from Saujana in accordance with the determination made by the Arbitrator in the Award (‘Letter of Demand’). To date, Saujana has not made any payment to Crest. The Legal Principles [27] The general and specific provisions of the AA 2005 which are relevant to the Setting Aside Application and Enforcement Application are as follows: “Extent of court intervention

No court shall intervene in matters governed by this Act, except where so provided in this Act.” “Equal treatment of parties “An award is final and binding

36.

An award made by an arbitral tribunal pursuant to an arbitration agreement shall be final and binding on the parties and may be relied upon by any party by way of defence, set-off or otherwise in any proceedings in any court.

The arbitral tribunal shall not vary, amend, correct, review, add to or revoke an award which has been made except as specifically provided for in section 35.” “Application for setting aside

37.

An award may be set aside by the High Court only if –

…

(ii) the award is in conflict with the public policy of Malaysia.

Without limiting the generality of subparagraph

(1)(b)(ii), an award is in conflict with the public policy of Malaysia where –

during the arbitral proceedings; or

(ii) in connection with the making of the award. …”. “Recognition and Enforcement …”. [28] In hearing the Setting Aside Application, it is trite that –

this Court does not sit in appellate capacity. This Court cannot scrutinise the merits of the parties’ respective case or responses before the arbitral tribunal and interfere in the findings of facts and/ or law made by the arbitral tribunal even if there is an error. The powers of this Court are confined to the provisions of the AA 2005 (see The Government of India v Cairn Energy India Pty Ltd & Ors [2014] 9 MLJ 149);

the public policy ground for setting aside an arbitration award was expounded by the Federal Court in Jan De Nul (M) Sdn Bhd & Anor v Vincent Tan Chee Yioun & Anor [2019] 2 MLJ 413 (see in particular paragraphs 49, 52, 55 and 56) whereby –

in applying the concept of public policy for the purpose of setting aside an award under s 37 AA 2005, the concept of public policy ought to be read narrowly, more restrictively and taken in the higher sense where some fundamental principle of law or justice is engaged, some element of illegality, where enforcement of the award involves clear injury to public good or the integrity of the court’s process or powers will be abused;

(ii) the public policy ground for setting aside an arbitral award could be invoked where a violation of the most basic and fundamental notions or principles of morality and justice is proven. It covers fundamental principles of law and justice in both substantive and procedural aspects;

(iii) instances such as “patent injustice”, “manifestly unlawful and unconscionable”, “substantial injustice”, “serious irregularity” and other similar flaws in the arbitral process and award would fall within the applicable concept of public policy but these do not mean injustice which is more than de minimis. What is required is that the injustice had real effect and had prejudiced the basic rights of the applicant and where the upholding of the arbitral award would shock the conscience, be clearly injurious to the public good or wholly offensive to the ordinary reasonable and fully informed member of the public;

(iv) the circumstances stated in sub-s 37(2) AA 2005 are not exhaustive and other appropriate situations may also fall under the category of “public policy” in view of the opening phrase “without limiting the generality of sub-para (1)(b)(ii)” as appears in sub-s 37(2); and

the court’s intervention should be sparingly used. The court must be compelled that a strong case has been made out that the arbitral award conflicts with the public policy of Malaysia before an order can be made to set aside the award;

the guiding principles on the exercise of residual discretion when an application for setting aside an award is grounded on breach of natural justice were laid down by the apex court in paragraph 53 of the judgment in Master Mulia Sdn Bhd v Sigur Rus Sdn

the burden is on Saujana to prove, on a balance of probabilities, its grounds of challenge to merit a setting aside of the Award; and

even though the Court may find that a breach of the rules on natural justice has been established or that an arbitral award is in conflict with the public policy under s 37 AA 2005, this does not necessarily mean that the Award must be set aside as a matter of course. The power of this Court to set aside the Award is discretionary and will not be exercised automatically in every case where the complaints are established (see paragraph 56 in Jan De Nul’s case (supra, at p 429 citing Kyburn Investments Ltd v Beca Corporate Holdings Ltd [2015] 3 NZLR 644 and Sigur Ros Sdn Bhd v Master Mulia Sdn Bhd [2018] 3 MLJ 608). These discretionary powers must be exercised judiciously. [29] This Court was guided by the aforesaid legal principles in determining the issues which arose in cases such as SJIC Bina Sdn Bhd v Iskandar Regional Development Authority and another case [2020] MLJU 2366, Propel Synergy Sdn Bhd v Vistasik Sdn Bhd and another case [2022] MLJU 824, East Coast Economic Region Development v Multi-Spex Architects Sdn Bhd and another case [2022] 11 MLJ 761 and Tunas Manja Development & Construction (KL) Sdn Bhd v SPNB Aspirasi Sdn Bhd and another application [2024] 7 MLJ 617 (all these decisions were affirmed by the Court of Appeal) and was similarly guided in arriving at the decision in this instant case. The Setting Aside Application 1st Ground: Whether the Award is in conflict with the public policy of Malaysia under subparagraph 37(1)(b)(ii) AA 2005 as the Arbitrator failed to give effect to the principles of res judicata and/ or issue estoppel by reason of the HCSA Order in Suit 533 [30] The essence of Saujana’s Points of Claim and Amended Reply To Defence and Defence To Counterclaim dated 8.2.2017 was set out in Part D of the Award on “The Pleadings”. In paragraphs 32 - 35 of the Award, the Arbitrator narrated the gist of Saujana’s pleadings that the judgment of the HCSA in Suit 533 has given rise to an estoppel and Crest is estopped by the doctrine of res judicata from re-litigating against the findings and decision of the HCSA, including that Crest has admitted and recognised Saujana’s right to withhold RM7,500,000.00 for the PB and to deduct the liquidated and ascertained damages (‘LAD’) for the period from 1.8.2011 until 27.12.2011. Alternatively, issue estoppel arose in the arbitration to bar Crest from arguing against the findings of the HCSA. [31] Similarly, the Arbitrator dealt with the crux of Crest’s pleadings in the Amended Points of Defence and Counterclaim and Amended Reply To Defence To Counterclaim, among others, as follows: “Res Judicata Court Originating Summons No. 24-533-05/2012 was in respect of an application for an injunction to restrain the Respondent from proceeding with the winding up petition against the Claimant based on the unpaid certified sums. The criteria and reliefs made in the said High Court in the Shah Alam High Court Originating Summons No. 24-533-05/2012 were different from the claims made in this arbitration. The crux of the matter for determination of the High Court was whether there are triable issues with regard to the subject matter, whereas in this arbitration the subject matter relates to the Respondent’s entitlement to the claims made. The Court was not required, and in any event was in no position to make a final determination of any factual matters concerning the merits of the Respondent's claims in this arbitration. Further and in any event, the Respondent avers that it is trite law, that the High Court in an interim measure application, such as the one in the said High Court in the Shah Alam High Court Originating Summons No. 24-533-05/2012, could not make a binding decision on the merits of the subject matter referred to arbitration. The Respondent avers that the contentions made by the Claimant in it’s Points of Claim are misconceived and misleading.”. [32] The Arbitrator’s “Consideration Of Issues And Determination” are in Part E of the Award and the relevant excerpts from the Award for purposes of analysing the 1st Ground are re-produced below for ease of reference: “(ii) The Issue of Estoppel “6.6 In the circumstances, the judgement of the High court in the 1st Previous Suit has given rise to the estoppel whereby the Respondent/Contractor is estopped from re-litigating or arguing against the decision and findings of the High Court in the Previous Suit.

6.7 In the premises, the learned judge’s findings in the 1st Previous Suit that the Respondent/Contractor has admitted and recognised the Claimant/Employer's right to withhold RM7,500,000/- for the Performances Bond and to deduct Liquidated & Ascertained Damages (LAD) are also binding on the Respondent/Contractor in this arbitration, and the Respondent/Contractor is estopped by doctrine of res judicata from arguing against the learned judge’s findings.

6.8 Further or alternatively, issue estoppel also arose in this arbitration to bar or estop the Respondent/Contractor from re-litigating or arguing against the findings of the High Court in the said Previous Suit.” …

The concluding paragraphs 40 & 41 of the Judgement, reads as follows: - “(40) By reason of the aforesaid paragraphs, this court is of the view that the defendant's issuance of the s.218 notice is an abuse of process of the court. This court is of the view also that there is existence bona fide disputes as to whether or not the defendant could receive the amount of its claim under the notice as a debt due. The balance of convenience favours in the granting of the injunction as the Plaintiff would suffer irreparable damage and prejudice.

It is altogether clear from the Judgement that it was issued pursuant to the Claimant's application for an injunction (Fortuna Injunction) to restrain the Respondent from proceeding with the winding-up petition against the Claimant. The Hight Court had heard the submissions from both parties and arrived at its decision to grant the injunction, applied for by the Claimant. The concluding Paragraphs 40 & 41 of the Judgement, cited herein, unequivocally pronounces the decision of the High Court. It is significant that the Judgement in Paragraph 40 states that the “court is of the view also that there is existence bona fide disputes as to whether or not the defendant could receive the amount of its claim under the notice as a debt due.” The Judgement also notes the reference to arbitration and paragraph 29 of the Judgement, reads as follows:- “(29) It was contended by the plaintiff that the disputed claims should be decided under the arbitration proceedings since arbitration proceedings has been commenced as stated under section 23 Arbitration Act 2007 (sic) and should not be resolved in companies court. The Plaintiff here has referred the disputes to arbitration, and has commenced arbitration (see paragraph 25 of Affidavit Sokongan, exhibit PA-17)"

Based on the Judgement of the High Court, I am unable to accept the Claimant’s contention that this Judgement of the High Court has given rise to an estoppel whereby the Respondent is estopped from re-litigating or arguing against the decision and findings of the High Court. Contrary to this contention, the Judgement acknowledges the existence of bona fide disputes between the parties and the reference to arbitration, initiated by the Claimant. I therefore hold that the Claimant’s assertion that the Respondent is estoppel by the doctrine of res judicata, from arguing against the learned Judge’s findings, to be without merit. Premised on the court Judgement and the matters in dispute in this arbitration reference, I am also unable to accept the Claimant’s contention that “... issue estoppel also arose in this arbitration to bar or estop the Respondent/ Contractor from re-litigating or arguing against the findings of the High Court...” The Respondent’s submission avers that the test for a Fortuna injunction application is whether there is a triable issue and whether there is a bona fide substantive dispute as to the debt based on the certified sum by the Claimant. It submits that in dealing with the issues, the High Court Judge had made some preliminary findings to support the injunction application. I am inclined to accept the Respondent's submission on this issue.

It is therefore my determination that the Claimant's contentions that the Respondent is barred and/or estopped from denying the Claimant's right to withhold the Performance Bond money and to deduct Liquidated and Ascertained Damages, to be without a legal basis nor merit. I therefore hold that the doctrine of res judicata and the principle of issue estoppel, are not applicable and parties are entitled to raise all substantive issues in relation to their claims and counterclaims, as pleaded, in this arbitration reference.”. [33] The learned counsel for Saujana forcefully argued that the failure by the Arbitrator to be bound by the HCSA Order and judgment in Suit 533 led him to make findings that flew in the face of the HCSA Order and judgment. This had far-reaching, prejudicial and adverse consequences to Saujana. The Arbitrator held that all the issues were at large in the arbitration proceedings and decided diametrically opposite when he held, among others, that –

the original Performance Bond (‘PB’) for RM9.1 million was effective and Crest made a mistake in agreeing to submit a new PB for RM7.6 million (paragraph 85 of the Award). [34] Saujana contended that the breaches of public policy are self-evident from the following findings made by the Arbitrator which repudiate the express decisions of the HCSA:

Paragraph 1 of the HCSA Order held that: “... bahawa Defendan bukan satu pemiutang Plaintif ... kerana mengambil kira tolakan Gantirugi Tetap & Terkira atau jika akaun muktamad disediakan, Defendanlah yang berhutang kepada Plaintif … tiada wang yang kena dibayar sebelum pensijilan akaun muktamad selepas penyiapan baki kerja-kerja kelak;”

Paragraph 2 of the HCSA Order held that: “... kerana memandangkan penamatan penggajian Defendan, tiada wang yang kena dibayar sebelum pensijilan akaun muktamad … jika akaun muktamad disediakan, Defendanlah yang berhutang kepada Plaintif ...” however, the Arbitrator held that: “101. ... that the Claimant had by its letter dated 28 December 2011, gave notice to terminate the Respondent's employment as the Main Contractor. My earlier determination herein is that the Respondent had validly terminated the Contract through its letter to the Claimant dated 22 September 2011. The Contract between the parties had come to an end with this termination letter. ... The Architect’s default notice dated 7 December 2011, and the determination of employment by the Claimant through it’s letter dated 28 December 2011, issued well after the Contract had been validly terminated on 22 September 2011, are therefore, determined to be contractually and legally invalid.”.

Paragraph 30 of the Grounds of Judgment of the HCSA (‘GoJ’) state that: “[30] As at the date of the defendant’s section 218 demand notice, the defendant’s employment was already determined/ terminated by the plaintiff pursuant to clause Clause [sic] 25.1 and 25.2 of the Conditions of Contract The legal and contractual consequences of determination of employment are stipulated in clauses 25.4(i) and 25.4(iv) inter alia as follows:

25.4(i) the Employer (Plaintiff) may employ and pay other persons to carry out and complete the Works [see Exhibit PA-2 at page 33 of exhibit bundle to Afidavit Sokongan Plaintif];

25.4(iv) ... Until after the completion of the Works under sub-clause 25.4(1), the Employer shall not be bound by any provision of this contract to make any further payment to the Contractor...”; … [36] By this letter, I find the defendant-contractor recognized and admitted that the plaintiff has the right to deduct … (LAD) ….”, but the Arbitrator took a dismissive position and disregarded the declaratory orders made by the HCSA (see paragraphs 73 and 74 of the Award as quoted previously). [35] Upon consideration of the averments and submissions by the parties, I was persuaded by Crest’s arguments that the principles of res judicata and issue estoppel do not apply to this case for the following reasons:

Saujana submitted that the issues regarding its right to deduct PB monies and LD, repudiation of contract by Crest, extension of time and retention monies have been finally decided by the HCSA in Suit 533. However, this submission is not justified because six days before Suit 533 was filed, Saujana had submitted the Notice of Arbitration wherein Saujana had referred all disputes and differences between the parties to arbitration, including the following: “2. Disputes and/or differences have arisen between you and us as regards:

your claims for value of work done;

our deduction of the amount of the Performance Bond from your certified value of works;

our deduction of the … (“LAD”) from your value of works done (pre-determination LAD of RM6,560,000) and our entitlement of post-determination LAD and/or delay damages;

the amount of rectifications for defects in your works;

your purported termination on purported ground of alleged repudiation;

our determination of your employment under Clause 25.1 and 25.2 of the

losses which we are entitled to claim against you in respect of our determination of your employment, including:

LAD for the period after date of termination: 29.12.2011 to 31.03.2012 being reasonable period to employ new contractors: RM52,000/day x 90 days = RM4,680,000

(ii)

01.04.2012 to 31.01.2013, being period for completion of balance work: RM52,000/day x 303 days - RM15,756,000 or, in alternative to (i) and (ii), delay damages payable to purchasers: RM1,000,000/month x 13 months =

(iii) higher costs of construction awarded or to be awarded to new contractor(s): RM7,200,000

(iv) additional fees and expenses payable to Consultants

increase in costs of Nominated Sub-Contract works;

(vi) additional overheads and administrative costs for the Project;

(vii) defects rectification costs; and

(viii) additional holding costs of partly-built project.

Losses and damages as a result of your breach or contravention breach of clause 25.4(f) and clause 25.4(ii) in that you have prevented us from using the Tower Cranes and hoists for our execution of the balance works, and/or you failed or neglected to cooperate to facilitate of our use of the Tower Cranes and hoists:

LAD for 3 months: RM52,000/day x 91 days = RM4,732,000. Alternatively, delay damages to purchasers: RM1,000,000/month x 3 months = RM3,000,000

(ii) New contractor’s claim for 3 months of losses/idling costs: to be assessed

(iii) Additional fees and expenses payable to consultants for 3 months;

(iv) Additional 3 months of overhead and administrative expenses for the Project

Additional holding costs of the partly-built Project for 3 months; and

(vi) Additional costs of installation and rental charges of replacement tower cranes and hoists.

3.

The purpose of Suit 533 was to seek for a Fortuna Injunction to restrain Crest from proceeding with the Winding Up Petition against Saujana (see paragraph 1 of the HCSA’s Grounds of Judgment). The crux of the matter for determination by the HCSA would not have gone into the merits of the disputes as the HCSA was not required and nor was it in any position to make a final determination of any factual matters concerning the merits of Saujana’s claims in the arbitration proceedings.

In deciding whether to grant a Fortuna Injunction to restrain the presentation of a winding up petition that is based on a statutory demand for a debt, the Court must be satisfied that there are triable issues and the debt was “bona fide disputed on substantial ground” (see Tan Kok Tong v Hoe Hong Trading Co Sdn Bhd [2007] 4 MLJ 355). The essence of the HCSA Order in Suit 533 was to restrain Crest from presenting a Winding Up Petition against Saujana, and it is not declaratory of the rights concerning the issues set out in subparagraph (a) above. In this Court, Saujana claimed that the HCSA Order is a declaratory order and is final in nature, relying on O. 15, r. 16 of the Rules of Court 2012 (‘RC 2012’) which reads: “No action or other proceeding shall be open to objection merely on the ground that a declaratory judgment or order is sought thereby, and the Court may make binding declarations of right whether or not consequential relief is or could be claimed.”. Saujana contended, on the authority of Shaharuddin Bin Md. Idros Ex-Parte: Esso Malaysia Berhad [2004] MLJU 129 that, contrary to the Arbitrator’s finding, the Court has no authority to make an interim declaration. However, a perusal of the O.S. for Suit 533 shows that only ss 50 and 51 SRA 1950 were cited in the intitulement, and not ss 41 and 42 SRA 1950 on “Declaratory Decrees”. This indicates that Saujana never intended to seek a declaratory order in respect of the issues set out in subparagraph (a) above. Moreover, not all relevant documents were before the HCSA, including the PB. The expert evidence and all other evidence that are relevant for the determination of the issues referred to arbitration were not produced for Suit 533. 14 witnesses, out of which four are experts, were called in the arbitration proceedings. Even if Saujana had prayed for declaratory reliefs on issues which had already been referred to arbitration, the HCSA could not have made a declaratory order on the issues which have been referred to arbitration (see Panzana Enterprise Sdn Bhd v Turnpike Synergy Sdn Bhd [2022] MLJU 01000 where it was held that “… when parties have agreed to an “arbitration agreement” as understood in ss 2(1) and 9(1) AA, the court cannot grant any declaration before and during arbitral proceedings under s 41 SRA and/or O 15 r 16 RC.”; see too, Ragawang Corporation Sdn Bhd v One Amerin Residence Sdn Bhd [2020] MLJU 1141).

The Fortuna Injunction application does not require the HCSA to make a final determination of the disputes referred to arbitration. The justification in allowing the Fortuna Injunction was premised on a “prima facie view” and a tentative finding for the limited purpose of deciding whether a Fortuna Injunction ought to be granted, and therefore lacked the element of finality (see Cheng Hang Guan & Ors [1988] 3 MLJ 90 and JAKS Resources Bhd v Star Media Group Bhd and other appeals [2023] 6 MLJ 114). This can be seen from the following excerpts from the GoJ: “[29] It was contended by the plaintiff that the disputed claims should be decided under the arbitration proceedings since arbitration proceedings has been commenced as stated under section 23 Arbitration Act, 2007 and should not be resolved in companies court. The Plaintiff here has referred the disputes to arbitration, and has commenced arbitration (see paragraph 25 of Afidavit Sokongan, exhibit PA-17). … [31] Until today, the works have not been completed by another contractor. Thus, it was submitted that no amount of money is payable to the defendant-contractor. [32] As the plaintiff has set-off the LAD totaling RM12,716,000 as at 28.12.2011 pursuant to clause 22.1 of the Conditions of Contract, and after the set-off, the plaintiff contends that it is the defendant who owes RM5,264,938 to the plaintiff. [33] Put it in summary, the submission of the plaintiff, is that:

the defendant is in debit balance;

(ii) the defendant is not a creditor;

(iii) the defendant’s claim for RM7,451,062 was bona fide disputed on substantial grounds; and

(iv) the defendant is not entitled to file any winding-up petition against the plaintiff. [34] It is contended the defendant is not a creditor and the defendant's threat to file winding-up petition is an abuse of the process of the court. [35] In the defendant-contractor’s letter dated 23 August 2011 [exhibit “PA-5” at page 151 of exhibit bundle to Afidavit Sokongan Plaintif), the defendant-contractor wrote to the plaintiff inter alia as follows: “... We wish to appeal to your good self for your kind consideration to grant us the necessary temporary waiver of 90% liability being imposed the above LAD’s which is RM32,000.00 per day for Wing A and the Common Facilities and RM20,000.00 per day for Wing B. Hence, i.e. we hereby proposed the current LADs Deductions to be reduced from RM52,000.00 to RM5,200.00 instead. In additions, we also wish to propose the existing Performance Bond amounting to RM7.5 million to be retained progressively for the amount of RM6,235,329.35 (i.e. to be retained at 10% from the Value of Work done from Balance of Main Builder's Works...) and RM1,264,670.65 to be deducted from the Total Amount Payment Retained... as per enclosed Appendix A”. [36] By this letter, I find the defendant-contractor recognized and admitted that the plaintiff has the right to deduct Liquidated and Ascertained Damages (LAD) and also that the Plaintiff has the right to retain the Performance Bond value amounting to RM7,500,000.00, but the Defendant-contractor appealed for progressively deductions and retentions of only 10% of the LAD and 10% of the values of works done. The defendant’s appeal was eventually rejected by the plaintiff, and the plaintiff exercised its rights to deduct the full rate of LAD and the full amount of the Performance Bond value. [37] Due to the defendant’s failure to provide the Performance Bond required by the Contract, the plaintiff retained and deducted RM7.6 million (the value of the Performance Bond) from current and future payment (see pages 150, 155 in exhibit PA-5, dated July 2011 and September 2011). Even before 28.12.2011 (date of determination), there were already disputes as to the defendant's claim for payment of RM7,451,062.00. Months before 28.12.2011, there were already bona fide disputes. [38] Therefore, the defendant is not a creditor and has no locus standi to file winding-up petition. The plaintiff has showed that it is a solvent company having good financial standing. Hence, this court is of the view the defendant’s intended winding-up petition is an abuse of process of the court. [39] The balance of convenience favours in the granting of the injunction as the plaintiff would suffer irreparable damage and prejudice. The Plaintiff has given the usual undertaking as to damages. [40] By reason of the aforesaid paragraphs, this court is of the view that defendant’s issuance of the s. notice is an abuse of the process of the court. This court is of the view also that there is existence bona fide disputes as to whether or not the defendant could receive the amount of its claim under the notice as a debt due. The balance of convenience favours in the granting of the injunction as the Plaintiff would suffer irreparable damage and prejudice. [41] An injunction is therefore granted against the defendant restraining them from presenting any petition to this court or any court, for the winding up of the plaintiff. The plaintiff's prayers for an order in terms of the originating summons is allowed with costs.” (emphasis added). The Court of Appeal in Redmax Sdn Bhd v PSI Incontrol Sdn Bhd [2018] 6 MLJ 281 (followed by the High Court in Yeoh Thiam Soon v Phoenix Oasis Sdn Bhd [2020] MLJU 374) held that an O.S. for a Fortuna Injunction was merely an interlocutory application, and that estoppel and res judicata did not apply as the decision by the High Court was made on certain established principles.

Although Crest did not appeal against the decision of the HCSA, the Fortuna Injunction does not result in a final judgment and the doctrine of res judicata does not apply in this case. [36] In sum, the facts leading to the filing of Suit 533, the HCSA Order and the GoJ, when properly understood, support Crest’s submission and Saujana has not proven, on a balance of probabilities, that the Award should be set aside under subparagraph 37(1)(b)(ii) AA 2005. 2nd Ground: Whether a breach of the rules of natural justice occurred during the arbitral proceedings or in connection with the making of the Award when the Arbitrator refused to allow Saujana’s application to amend the Points of Claim and to tender further documents and to re-call its witness, CW9 [37] Saujana asserted that the decision-making process which culminated in the Award was flawed by several breaches of natural justice in relation to –

its application to amend its Points of Claim (‘Amendment Application’) at the stage where Saujana had not closed its case in the arbitration. The amendment was material to one or more of the issues in contention, namely that –

even if there was no termination, Crest would have still delayed in completing the Works and be liable for delay consequences after 28.12.2011; and

(ii) even if the employment had not been terminated, Crest would not be capable of completing the balance works within the stipulated period; and

its application vide the letter dated 1.7.2022 to recall CW9 to adduce further evidence in the Common Bundle of Documents 26 – 38 concerning its claims and the losses and damage suffered (‘Recall Application’) at the stage where Saujana had not closed its case in the arbitration which had a bearing on one or more of the issues in contention viz. –

the incremental costs incurred by Saujana on the execution of the balance of the works at Wing A together with the common facilities and at Wing B respectively;

(ii) the additional cost incurred by Saujana in respect of the works executed by the Nominated Sub-contractors/ suppliers in the Project; and

(iii) LAD paid by the Plaintiff to the end purchasers pursuant to Clauses 26(1) and (2) of the relevant Sale and Purchase Agreements entered into by Saujana and the respective purchasers in respect of the Project. [38] The Arbitrator’s rejection of the Amendment Application was conveyed in the letter dated 31.7.2019 (‘31.7.2019 Letter’) which states, among others, that: “… It is therefore my determination that allowing the amendments to the Points of Claim at this late stage would be seriously prejudicial to the Respondent which would not be compensated by the order of cost. Allowing it may contravene the principles of natural justice.”. Saujana contended that the Arbitrator’s decision is a misdirection because there are no reasons as to why the inconvenience could not be compensated in costs and as to the purported breach of natural justice. It was within the Arbitrator’s powers to issue directions and timelines to enable Crest a reasonable opportunity to respond. [39] Saujana argued that the rules of natural justice entitle it, as a party to the arbitral dispute, to adduce all material evidence in support of its case and would lean towards an inclusionary approach rather an exclusionary approach. This is imperative in view of the fact that there are no rights of appeal arising from this arbitration. Hence, the Award is in breach of the rules of natural justice under paragraph 37(2)(b) AA 2005 in that, by rejecting –

the Amendment Application, the Arbitrator had denied the Plaintiff the right to present its case in full; and

the Recall Application on the basis that if it was allowed at that juncture, it would be prejudicial to Crest, is disproportionate, untenable and inexplicable having regard to the Arbitrator’s overall conduct of the proceedings when he himself had vacated the hearing dates fixed during the year 2020, 2021 and early 2022 on the ground that the Covid-19 pandemic was then still fluid and for other reasons (see Front Row Investment Holdings (Singapore) Pte Ltd v. Daimler South East Asia Pte Ltd [2010] SGHC 80 at paragraph 56). [40] Furthermore, Saujana highlighted that any prejudice could have been mitigated by an award of costs as recognized by Crest’s solicitors in their letter dated 18.7.2019 sating that “… in the event the Tribunal is minded to allow these amendments, the Respondent would respectful seek for the Claimant to pay the Respondent the getting up costs incurred forthwith and the Respondent would undertake to provide the breakdown of the said costs.”. [41] The PAM Arbitration Rules (2015 Edition) applied to this arbitration. Article 11 of the said Rules provides as follows: “Article 11 - Amendment to Statement of Claim and Defence During the course of the proceedings, either party may amend or supplement his case or defence unless the Arbitrator on the application of the other party considers it inappropriate to allow such amendment having regard to the delay in making it or prejudice to the other party or any other circumstances. Provided, however that a case may not be amended in such a manner that the amended case falls outside the scope of the arbitration agreement.”. Based on Article 11 as quoted above, it is clear that the decision whether to allow an amendment to a pleading or otherwise is within the discretion of the Arbitrator. [42] In the 31.7.2019 Letter, the Arbitrator stated that: “1. The Claimant vide it’s counsel's letter dated 17 July 2019 had submitted it’s Amended Points of Claim dated 17 July 2019. It had also submitted the Supplementary Witness Statement of it’s witness En. Zulkifli Mohd. Isa and additional bundle of documents, CBOD 24. The Respondent vide it’s counsel’s letter dated 18 July 2019 requested that all three documents be expunged and/or disregarded by the Tribunal, for reasons cited therein. The Claimant's counsel's letter dated 21 July 2019 states that the Respondent's objection and position taken on this issue were wholly unreasonable and unjustified.

Further oral submissions were heard on this matter on 22 July 2019, which was a scheduled Hearing date. Upon hearing counsels of both parties, the Tribunal made the following determination, which had been orally communicated to the parties:- “The crucial issue here is whether allowing the amendments to the Points of Claim at this late stage of the proceedings would be prejudicial to the Respondent. In arriving at the answer to this question, significance was attributed to the fact that eight of the nine witnesses for the Claimant had completed their testimonies. Consideration was given to counsel’s arguments on the approach taken by the Courts on late amendment of pleadings. However, the determining factor would necessarily have to be the circumstances surrounding this arbitration proceeding. It is therefore my determination that allowing the amendments to the Points of Claim, at this late stage would be seriously prejudicial to the Respondent which would not be compensated by the order of costs. Allowing it may contravene the principles of natural justice. The Claimant’s Amended Points of Claim is therefore disallowed.”

It was also determined that the Supplementary Witness Statement of En. Zulkifli Mohd. Isa (CW9) be consistent with the Claimant’s Points of Claim. Amendments were made by the said witness to his Supplementary Witness Statement during the Hearing on 22 July 2019. The Claimant’s additional Bundle of Documents CBOD 24 & 25, were allowed.

The Hearing resumed on 22 July 2019 (Day 19) with Examination-In-Chief of CW9. The Claimant then applied for Hearing dates on 23 & 24 July 2019 to be vacated, citing that it's witness, (CW9) was unwell; the said Hearing dates were vacated. Hearing resumed on 25 July 2019 with the Cross-Examination of CW9. The said witness did not attend the Hearing scheduled for 26 July 2019, citing personal reasons and the Hearing date was vacated.

The next two tranches of scheduled Hearing dates, are as follows: • 25, 26, 27, 28 & 29 November 2019. • 9, 10, 11, 12 & 13 December 2019. Parties are to liase on their common available dates for the continuation of Hearings in January, February & March 2020, and inform the Tribunal by 16 August 2019.”. The arbitration commenced in late 2015 and the hearing phase commenced on 6.11.2017. Parties have been given ample opportunity and significant latitude to advance their respective case; Saujana Triangle opened its case on 6.11.2017 and closed its case on 13.6.2022. Crest Builder opened its case on 14.6.2022 and closed its case on 1.7.2022; Articles 19.1 and 19.2 of the PAM Arbitration Rules (2015 Edition) are not mandatory in nature and they relate to the tribunal’s prerogatives; The documents that Saujana Triangle intended to produce ought to have been available in May 2016 and Saujana Triangle has had full opportunity, over a significant period of time, to tender the documentary evidence; Crest Builder would be prejudiced if Saujana Triangle’s late application was allowed as ample opportunity had been afforded to Saujana Triangle previously in the production of their evidence.”. [43] Reading the 31.7.2019 Letter in its entirety, the Arbitrator had obviously considered the factors of delay and prejudice to Crest before disallowing the Amendment Application, which was made after eight out of nine witnesses for Saujana have concluded their evidence, and those evidence have touched on the issues relating to the proposed amendment. [44] The refusal of the Recall Application similarly involves the exercise of the Arbitrator’s power given under Articles 19.1 and 19.2 of PAM Arbitration Rules (2015 Edition) which read: “Article 19 – Closure of Hearings “19.1 The Arbitrator may inquire of the parties if they have any further proof to offer or witnesses to be heard or submission to make and, if there are none, it may declare the hearings closed.

19.2 The Arbitrator may, if he considers it necessary owing to exceptional circumstances, decide, on it own motion or upon motion of a party, to reopen the hearings before the award is made.”. [45] During the re-examination of CW9, the witness himself has confirmed that Saujana did not have further documents to substantiate its claims. Hence, it appears that Saujana had changed its mind after the closure of evidentiary hearing. Saujana failed to justify to the Arbitrator as to why the additional documents were not tendered at the start of the arbitration or in 2016, before the commencement of the hearing. [46] With regards to the Arbitrator’s decision to vacate or adjourn the hearing dates due to the Covid-19 pandemic, Saujana itself had requested the Tribunal to vacate the hearing on this ground. [47] In any event, this is not a case where the Arbitrator had refused the Amendment Application and Recall Application without any reasons. The Arbitrator had set out his justifications and these were not solely based on the issue of timeliness. [48] In my considered view, the Arbitrator's rejection of the Amendment Application and the Recall Application does not amount to a breach of the rules of natural justice (see SQA Builders Sdn Bhd v Luxor Holdings Sdn Bhd & Anor and other cases [2023] MLJU 459). [49] Saujana has not proven, on a balance of probabilities, that the Award should be set aside under subparagraph 37(1)(b)(ii) read with subparagraph 37(2)(b)(i) and/ or (ii) AA 2005. [50] The 2nd Ground is answered in the negative. The Enforcement Application [51] In defending itself against the Enforcement Application, Saujana raised the issue that the Enforcement Application is premature because in paragraph 158(i) of the Award, the Arbitrator directed that Saujana make payment to Crest within 21 days after the day upon which either party has taken up the Award. [52] It is not disputed that both parties received the Award on 1.6.2023. This means that Saujana has until 22.6.2013 to pay Crest in accordance with the terms of the Award. However, the Enforcement Application was filed on 21.6.2023. For this reason, Saujana submitted that the Enforcement Application should be dismissed in limine. [53] Crest drew the attention of this Court to the fact that it had issued the Letter of Demand on 2.6.2013 and Saujana had replied vide the letter dated 20.6.2023 stating the intention to set aside the Award. This shows that Saujana will not make payment to Crest in accordance with the Award. It is in these circumstances that Crest filed the Enforcement Application on 21.6.2023, an act which is well within its rights to do. [54] Saujana’s reliance on the case of Ideal City Development Sdn Bhd v PWC Bina Sdn Bhd & Others Appeal [2019] 2 CLJ 615 is misplaced as it concerns sub-s 5(1) of the Construction Industry Payment and Adjudication Act 2012 [Act 746] and the finding that the adjudicator had exceeded her jurisdiction or committed a jurisdictional error when she adjudicated on a claim which commenced before the date of accrual of the cause of action. The issues which arose in that case and which are the subject of discussion in the instant case are poles apart. [55] As the Award is made in respect of an arbitration where the seat of arbitration is in Malaysia and premised upon a valid arbitration agreement entered into between Saujana and Crest; Crest has complied with sub-s 38(2) AA 2005; Saujana has not proven its case for the Setting Aside Application; and none of the grounds for refusing the recognition or enforcement of the Award pursuant to sub-s 39(1) AA 2005 are applicable, there is no valid reason for this Court to refuse the Enforcement Application (see CTI Group Inc v International Bulk Carriers SPA [2017] 5 MLJ 314 and Siemens Industry Software GmbH & Co Kg (Germany) (formerly known as Innotec GmbH) v Jacob and Toralf Consulting Sdn Bhd (formerly known as Innotec Asia Pacific Sdn Bhd) (M) & Ors [2020] 3 MLJ 1). Conclusion [56] Based on the foregoing considerations, the Setting Aside Application was dismissed and the Enforcement Application was allowed. [57] Mr. Lam Wai Loon prayed for costs of RM25,000.00 for each application for the reason that the documents were substantial and the submissions were lengthy. [58] However, the written submissions were extensive because of the grounds for the Setting Aside Application at the stage of preparation, which were subsequently narrowed down on the date of hearing. In view of this factor, and the other matters as set out in O. 59, r. 16 of the Rules of Court 2012, and in the exercise of my discretion, I agreed with Dato’ M. Pathmanathan’s proposal for costs to be in the total sum of RM25,000.00 for both applications. [59] I therefore ordered costs of RM15,000.00 for the Setting Aside Application and RM10,000.00 for the Enforcement Application to be paid by Saujana to Crest, both subject to allocator. Dated: 31 December 2024 (ALIZA SULAIMAN) Judge High Court in Malaya Kuala Lumpur Counsels/ Solicitors: For the Applicant in O.S. No. 25 and for the Defendant in O.S. No. 40: Lam Wai Loon (Serene Hiew Mun Yi & Felicia Lai Wai Kim with him) Messrs. Harold & Lam Partnership Advocates & Solicitors Suite 32-5, 32nd Floor Oval Tower Damansara No. 685, Jalan Damansara 60000 Kuala Lumpur For the Plaintiff in O.S. No. 40 and for the Respondent in O.S. 25: Dato'. M. Pathmanathan (Shirin Devi Pathmanathan, N. Rejentharan, Rutheran Sivagnanam, Germaine Chuah, Fatin Muzfirah Binti Ahmad Shauhada & Teh Wen Miin with him) Messrs. M Pathmanathan & Co. Advocates & Solicitors 2A-23A-2, Blk 2A Plaza Sentral, Jln Stesen Sentral 5 Kuala Lumpur Sentral 50470 Kuala Lumpur Cases, legislation and other sources referred to in the submissions by learned counsels and in the Grounds of Judgment: Cases: AKN and another v ALC and others and other appeals [2015] SGCA 18 Andrew Chioh Eng Hua & Anor v Kewangan Utama Berhad [1998] 4 AMR 3651 @ [1998] MLJU 302 Asia Commercial Finance (M) Berhad v. Kawal Teliti Sdn. Bhd. 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Pardons Board, Johore & Ors.; Oie Hee Koi & Ors. v. Pardons Board, Johore & Ors. [1968] 2 MLJ 249 Lembaga Kemajuan Ikan Malaysia v WJ Construction Sdn Bhd [2013] 5 MLJ 98 Li See Kit Lawrence v Debate Association (Singapore) [2023] SGHC 154 Lim Sue Beng v Maybank Investment Bank Berhad & Ors [2012] MLJU 1576 Malayan United Finance Bhd. V. Noormurni Sdn. Bhd. & Anor. [1988] 1 MLJ 395 Master Marine AS v Labroy Offshore Ltd and others [2012] SGCA 27 [2012] 3 SLR 125 Master Mulia Sdn Bhd v Sigur Rus Sdn Bhd [2020] 12 MLJ 198 Muhammad Nur Hafiz Roslan v Mohamed Izani Mohamed Jakel & Ors [2021] 1 LNS 1828 Ng Kong Ling & Anor v Low Peck Lim & Ors [2017] 5 CLJ 651 North Somerset Council v LP & 3 Ors & NG [2009] EWCA Civ 610 Pacific China Holdings Ltd (In Liq) v Grand Pacific Holdings Ltd [2012] 3 HKC 498 Pancaran Prima Sdn Bhd v Iswarabena Sdn Bhd and anor appeal [2021] 1 MLJ 1 Panzana Enterprise Sdn. Bhd. v Turnpike Synergy Sdn. Bhd. [2022] MLJU 01000 Propel Synergy Sdn Bhd v Vistasik Sdn Bhd and another case [2022] MLJU 824 Proton Edar Sdn Bhd v Electric Angels (Msc) Sdn Bhd [2019] MLJU 2002 PT Asuransi Jasa Indonesia (Persero) v Dexia Bank SA [2007] 1 SLR(R) 597 Ragawang Corporation Sdn Bhd v One Amerin Residence Sdn Bhd [2020] MLJU 1141 Redmax Sdn Bhd v PSI Incontrol Sdn Bhd [2018] 6 MLJ 281 Rotating Offshore Solutions Pte Ltd v TH Heavy Engineering Bhd [2017] MLJU 904 Serac Asia Sdn Bhd v Sepakat Insurance Brokers Sdn Bhd [2013] 5 MLJ 1 Shaharuddin Bin MD Idros Ex-parte: Esso Malaysia Berhad [2004] MLJU 129 Siemens Industry Software GmbH & Co Kg (Germany) (formerly known as Innotec GmbH) v Jacob and Toralf Consulting Sdn Bhd (formerly known as Innotec Asia Pacific Sdn Bhd) (M) & Ors [2020] 3 MLJ 1 Sim Yong Teng and another v Singapore Swimming Club [2016] SGCA 10 Sime Darby Property Berhad v Garden Bay Sdn Bhd and another case [2017] MLJU 145 SJIC Bina Sdn Bhd v Iskandar Regional Development Authority and another case [2020] MLJU 2366 Soh Beng Tee & Co Pte Ltd v Fairmount Development Pte Ltd [2007] SGCA 28 Som Datt Builders Ltd v. State of Kerala [2009] INSC 1600 SQA Builders Sdn Bhd v Luxor Holdings Sdn Bhd & Anor and other cases [2023] MLJU 459 Sungai Megah Sdn Bhd v YAM Tengku Muhaini Bte Sultan Haji Ahmad Shah [1998] MLJU 123 Syarikat Sebati Sdn. Bhd. v. Pengarah Jabatan Perhutanan & Anor [2019] 3 CLJ 157 Syed Mohamed bin Syed Alwi & Ors v Shariffah Badariah bt Alwi Al-Attas & Ors [2010] 6 MLJ 422 Tan Kok Tong v Hoe Hong Trading Co Sdn Bhd [2007] 4 MLJ 355 Tanjung Langsat Port Sdn Bhd v Trafigura Pte Ltd & Another Case [2016] 4 CLJ 927 The Attorney General of Hongkong v. Zauyah Wan Chik & 3 Ors. & Another Appeal [1995] 3 CLJ 35 The Government of India v Cairn Engergy India Pty Ltd & Ors [2014] 9 MLJ 149 Tridant Engineering (M) Sdn Bhd v Ssangyong Engineering & Construction Co Ltd [2016] 6 MLJ 166 Tunas Manja Development & Construction (KL) Sdn Bhd v SPNB Aspirasi Sdn Bhd and another application [2024] 7 MLJ 617 Vernon v Bosley [1997] 1 All ER 614 Vye v Vye [1969] 2 All ER 29 Yamaha Motor Co Ltd v. Yamaha Malaysia Sdn Bhd & Ors [1983] 1 MLJ 213 Yeoh Thiam Soon v Phoenix Oasis Sdn Bhd [2020] MLJU 374 Yoong Leok Kee Corporation Sdn Bhd v Chin Thong Thai [1981] 2 MLJ 21 Legislation: Arbitration Act 2005, ss 8, 20, 36, 37, 38 & 39 Rules of Court 2012, O. 15, r. 16 & O. 59, r. Specific Relief Act 1950, ss 41, 42, 50 & 51 Other sources: Redfern and Hunter on International Arbitration, 6th Edition, Oxford University Press, 2015